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Cummins v. U.S. Xpress

March 30, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Roland B. Cummins brought this action after sustaining injuries on November 12, 2004, when his parked tractor trailer was struck by a tractor trailer operated by Defendant Spray and owned by Defendant U.S. Xpress. Defendants have moved for summary judgment on the ground that Plaintiff did not sustain a "serious injury" within the meaning of New York Insurance Law § 5102(d). (Dkt. No. 7) Defendant U.S. Xpress also seeks summary judgment on Plaintiff's negligent hiring and supervision claim on the ground that it has conceded that it is liable for Defendant Spray's negligent acts. (Def. Br. at 12-14) For the following reasons, Defendants' motion is DENIED with respect to Plaintiff's anxiety disorder and depression claims, but is otherwise GRANTED.


A court must grant summary judgment where "there is no genuine issue as to any material fact" and the moving party shows that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To defeat a motion for summary judgment, the non-moving party "must establish that there is a genuine issue of material fact" by doing more than "simply show[ing] that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A court should not grant summary judgment if, "after resolving all ambiguities and drawing all inferences in favor of the non-moving party," it determines that "a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

I. New York's No-Fault Insurance Law

New York Insurance Law § 5104(a) provides that in a personal injury or negligence action between insured persons, "there shall be no right of recovery for non-economic loss, except in the case of a serious injury." New York Insurance Law § 5102(d) defines "serious injury" to include, inter alia, a personal injury that results in: (1) a "permanent consequential limitation of use of a body organ or member" (hereafter the "permanent consequential limitation" category); (2) a "significant limitation of use of a body function or system" (hereafter the "significant limitation" category); or (3) "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (hereafter the "90/180" category).

The New York Court of Appeals has held that because the purpose of the no-fault statute is to reduce litigation, "[i]t is incumbent upon the court to decide in the first instance whether [a] plaintiff has a cause of action to assert within the meaning of the statute" by "determin[ing] whether the plaintiff has established a prima facie case of sustaining serious injury." Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570 (1982). "If it can be said, as a matter of law, that plaintiff suffered no serious injury . . . , then plaintiff has no claim to assert and there is nothing for the jury to decide." Id.

In order to prevail on a motion for summary judgment on this issue, the defendant must offer evidence establishing a "prima facie case that plaintiff's injuries were not serious." Gaddy v. Eyler, 79 N.Y.2d 955, 956, 582 N.Y.S.2d 990 (1992). If the defendant does so, the "burden then shift[s] to [the] plaintiff to come forward with sufficient evidence to . . . demonstrate that []he sustained a serious injury within the meaning of the No-Fault Insurance Law." Id. at 957.

Moreover, summary judgment for a defendant is warranted where there is insufficient "objective medical evidence" for a jury to find that the plaintiff's injuries were caused by the accident:

"To recover damages for non-economic loss related to personal injury allegedly sustained in a motor vehicle accident, the plaintiff is required to present nonconclusory expert evidence sufficient to support a finding not only that the alleged injury is 'serious' within the meaning of Insurance Law § 5102(d), but also that the injury was causally related to the accident. Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's conclusion that plaintiff's condition is causally related to the subject accident is mere speculation, insufficient to support a finding that such a causal link exists."

Valentin v. Pomilla, 59 A.D.3d 184, 873 N.Y.S.2d 539, 539-40 (1st Dep't 2009), quoting Diaz v. Anasco, 38 A.D.3d 295, 295-96, 831 N.Y.S.2d 398 (1st Dep't 2007) (holding that defendants were entitled to summary judgment where plaintiff failed to offer "any objective medical evidence that his injuries were caused by the accident"). Thus, where there is evidence that the plaintiff had a pre-existing condition at the time of the accident and the plaintiff fails to offer sufficient evidence to show that the injuries were caused by the accident rather than the pre-existing condition, the defendant is entitled to summary judgment. Id.; see also Pommells v. Perez, 4 N.Y.3d 566, 574-75 (2005) (affirming dismissal of complaint where plaintiff had pre-existing condition and failed to offer evidence that his injuries were actually caused by the accident).

II. Plaintiff's Claim for Non-Economic Damages

Plaintiff asserts that he suffered hypertension*fn1 , anxiety disorder, and depression following the accident and that those injuries qualify as "serious injuries" under the "permanent consequential limitation" and "significant limitation" categories. (Pltf. Br. at 7-10) Plaintiff also asserts that, because of his injuries, he was unable to work or engage in other routine household activities for more than eighteen months, and therefore suffered a serious injury under the "90/180" category.*fn2 (Pltf. ...

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