Statute of Limitations in Limited Tort Cases in Doubt
Lizzy McLellan, The Legal Intelligencer
When the Superior Court begrudgingly applied precedent to the question of the statute of limitations in a recent limited tort personal injury case, it may have raised questions about that precedent, observers said.
In Varner-Mort v. Kapfhammer, the Superior Court decided Jan. 21 that the statute of limitations on a limited tort claim begins when it is determined that the plaintiff’s injury may be serious.
The court said Donna Varner-Mort and Daniel Mort’s claims against Bridget Kapfhammer should not have been barred in summary judgment, even though the claims were brought more than two years after the related accident, based on the court’s own 1997 decision in Walls v. Scheckler.
But the court’s majority opinion criticized that precedent.
“While we recognize that we are bound by Walls, we highlight that, in our view, the holding therein is just plain wrong,” wrote Senior
Judge Eugene B. Strassburger III.
That challenge may inspire a petition to reargue the case en banc.
“I think it’s got not only legs, but it’s got rockets on its legs to an en banc ruling,” said Marc I. Simon of Simon & Simon, which handles limited tort cases. “It woke a sleeping giant.”
‘Just Plain Wrong’
Varner-Mort and Kapfhammer were in a car accident in May 2009, according to Strassburger’s opinion, and Varner-Mort sought medical attention for an injury to her back three days afterward. Because the plaintiff had limited tort coverage with her insurer, she was not able to recover noneconomic damages unless she could prove that she suffered a serious injury.
Varner-Mort continued to receive treatment for her back through 2011, Strassburger wrote. Although the accident occurred in May 2009, according to an affidavit from Varner-Mort’s doctor, it wasn’t until June 2010 that the doctor decided her injuries constituted a serious impairment, the opinion said.
Based on that information, Strassburger said, an issue of material fact exists, so the trial court should not have granted a motion for summary judgment on the basis of the two-year statute of limitations.
“Stated succinctly, Varner-Mort’s ‘action for personal injury may have been timely filed, depending on whether a fact-finder credits [her] testimony as to when her injury was diagnosed serious,’” wrote Strassburger, quoting Walls.
Walls involved a 1991 accident in which the injured plaintiff had limited tort coverage. She did not file a negligence suit until two years and three days after the accident. The Superior Court decided in 1997 that the plaintiff was not aware that her injury had become serious until some time after the accident, so the statute of limitations that bound her did not start until that time.
But in 2015, the court was divided on Walls. Strassburger, joined by Judge Cheryl Lynn Allen, questioned the ruling’s contradiction of the typical statute of limitations rules.
“We fail to see why a limited tort plaintiff’s inability to seek noneconomic damages unless the plaintiff suffers a ‘serious injury’ should alter when a negligence cause of action begins to accrue for purposes of the statute of limitations,” Strassburger said.
But in a concurring statement, Judge Kate Ford Elliott defended the precedent. The Walls decision was unanimous, she said, and the Supreme Court denied an appeal on the ruling.
Jon Ostroff, William J. Coppol and David B. Kline of Ostroff Injury Law represented Varner-Mort.
“I was happy to see Judge Kate Ford Elliott’s concurring opinion,” said Coppol. “The Supreme Court could have taken the issue back then and they didn’t.”
James F. Andrews Jr. of Snyder & Andrews in Wexford, Pa., who represented Kapfhammer, did not return a call seeking comment.
En Banc Review
Despite Ford Elliott’s defense, observers said the majority’s criticisms are not in vain.
“Essentially what the majority is inviting is a petition for an en banc motion,” said Scott B. Cooper of Schmidt Kramer in Harrisburg. “What they could end up doing is just deciding as an en banc court to reverse Walls and then apply the en banc decision in this case. That would change the law.”
Cooper said statutes of limitations in limited tort serious injury claims are not as clear as those in wrongful-death and medical malpractice cases, which may also be triggered after the injury is incurred.
“Those are usually more issues of fact as to when the dates start,” he said. “Those are pretty solid.”
Simon agreed. Those types of cases have clearer statutes of limitations, he said, because they have no equivalent to a limited tort and full tort claimant. Many attorneys might not even be aware of Walls, he said.
“It kind of just hummed along for a good amount of time unchecked,” Simon said, “because there’s not enough lawyers doing limited tort law to raise this.”
Cooper said the rule is not often necessary in limited tort cases because serious injuries usually develop immediately.
“You almost need the perfect set of facts,” he said. “I just think most people, if you don’t have a serious injury, you don’t have a serious injury.”
Ostroff said in Varner-Mort’s case, the affidavit from her doctor was important to the court in its decision-making, as it showed the progression of the injury and how it reached the level of “serious” more than a year after the accident.
James C. Haggerty of Haggerty, Goldberg, Schleifer & Kupersmith agreed that Walls can rarely be applied, and said he sees little purpose in the exception.
“The Walls decision, personally, I always thought was a safe haven for delinquent claims,” Haggerty said. “All the Walls decision did was put some uncertainty into an otherwise certain system.”
Because so few people file limited tort claims past the two-year mark, Haggerty said, a potential en banc decision reversing the precedentwould not have a significant narrowing effect on limited tort cases.
However, Simon said, the precedent is very important to those few people who need it.
“If the courts whittle away and whittle away the rights of limited tort plaintiffs, one day we’re going to wake up, and they’re not going to have any rights,” Simon said.
If Varner-Mort is heard en banc, it could eventually end up at the state Supreme Court level, he said.
“We’re a long way away from getting some finality,” Simon said. “The real takeaway is that plaintiffs lawyers should file their lawsuits well in advance of the statute of limitations. You don’t want to be a plaintiffs lawyer arguing Walls.”
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