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Charles Tatar and v. Gray Meadows Trucking

December 12, 2011

CHARLES TATAR AND JENNIFER TATER, PLAINTIFFS,
v.
GRAY MEADOWS TRUCKING, INC. AND HENRY L. BACHELDER, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs commenced this action pursuant to 28 U.S.C. § 1332(a) to recover for damages Plaintiff Charles Tatar ("Plaintiff") allegedly suffered in a vehicular accident that occurred on January 28, 2008. At that time, Plaintiff was the operator of a 1984 Ford Truck that his employer, Mountain Fuels, Inc., owned. Defendant Bachelder was operating a 2000 Tractor Trailer, which his employer, Defendant Gray Meadows Trucking, owned. The two vehicles collided when the truck that Defendant Bachelder was operating crossed the center line.

Plaintiffs allege that Defendant Bachelder was negligent in that he was (1) operating the tractor trailer in a careless and negligent manner, (2) operating the tractor trailer at an unsafe rate of speed for the existing conditions, (3) following too closely to the vehicle ahead of him, (4) failing to maintain control of the tractor trailer, (5) failing to stop the tractor trailer and avoid the accident, (6) failing to stay in his designated lane of travel, and (7) failing to negotiate a turn. In addition, Plaintiffs assert that Defendant Gray Meadows Trucking was negligent in that it (1) failed to keep the tractor trailer in a proper state of maintenance and repair, (2) violated applicable regulations and laws regarding the operation and maintenance of the tractor trailer, (3) failed to maintain, equip, inspect, and repair the tractor trailer adequately, (4) failed to train and supervise Defendant Bachelder adequately, and (5) negligently hired and selected Defendant Bachelder as an employee.

In their complaint, Plaintiffs contend that, as a result of the accident, Plaintiff sustained a serious injury as defined in Section 5102(d) of New York Insurance Law and/or economic loss greater than basic economic loss within the meaning of Section 5102(a).*fn1 Plaintiffs assert three causes of action arising from the accident: (1) for serious injuries to Plaintiff due to the accident, (2) against Defendant Gray Meadows Trucking for vicarious liability under New York Insurance Law § 388 and as the employer of Defendant Bachelder pursuant to the doctrine of respondeat superior, and (3) on behalf of Plaintiff Jennifer Tatar for loss of services, society, companionship and consortium of Plaintiff.

Currently before the Court are the parties' cross-motions for summary judgment. See Dkt. Nos. 17, 20.

II. DISCUSSION

A. "Serious injury" under New York Insurance Law § 5102(d)

Jurisdiction in this case is based on diversity of citizenship; therefore, New York substantive law governs. See Tsveitel v. Geoghegan, No. 05-CV-5721, 2009 WL 2182379, *3 (E.D.N.Y. July 21, 2009) (citation omitted). Under New York law, "'[w]hether a claimed injury meets the statutory definition of a "serious injury" is a question of law which may properly be decided by the court on a motion for summary judgment.'" Id. (quoting Martin v. Schwartz, 308 A.D.2d 318, 319, 766 N.Y.S.2d 13, 15 (1st Dep't 2003) (citing Licari v. Elliott, 57 N.Y.2d 230, 237, 441 N.E.2d 1088, 1091, 455 N.Y.S.2d 570, 573 (1982))). To maintain a claim for personal injuries arising from a motor vehicle accident, the plaintiff must prove that he sustained either basic economic loss or serious injury and that his injuries were causally related to the accident at issue. See id. (citing N.Y. Insurance Law § 5104(a);*fn2 Pommells v. Perez, 4 N.Y.3d 566, 572, 830 N.E.2d 278, 281, 797 N.Y.S.2d 380, 383 (2005)).

Under New York Insurance Law § 5102(d), a serious injury is a personal injury that results in any of the following:

[1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [6] permanent loss of use of a body organ, member, function or system; [7] permanent consequential limitation of use of a body organ or member; [8] significant limitation of use of a body function or system; or [9] 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.

N.Y. Ins. Law § 5102(d).

"New York courts require objective proof of a plaintiff's injury in order to 'satisfy the statutory serious injury threshold [as] subjective complaints alone are not sufficient.'" Tsveitel, 2009 WL 2182379, at *4 (quoting Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350, 774 N.E.2d 1197, 1199-1200, 746 N.Y.S.2d 865, 868 (2002)).

According to his answers to Defendants' interrogatories, Plaintiff claims that he has sustained (1) "a permanent and consequential limitation of use of his neck, cervical spine, cervical disc and associated nervous system," (2) "a significant limitation of use of his neck, cervical spine, cervical discs and associated nervous system," (3) "disfiguring scarring," and (4) "permanent loss of use of the cervical disc that was operated upon by Dr. Lawrence." See Plaintiffs' Verified Answers to Interrogatories of Defendants at ¶ 12. Plaintiff further states that he "has sustained economic loss in excess of 'basic economic loss' due to his accident related injuries due to his past and future lost wages and medical expenses." See id. at ¶ 13.

As a preliminary matter, the Court notes that the only evidence in the record of any scarring is a letter in which Dr. Bilfield indicates that Plaintiff has a 4cm, i.e., 1.57480 inch, anterior cervical scar on his neck. See Dr. Bilfield's Letter to Defendants' Counsel dated March 3, 2011, at 3. Although Plaintiffs note that Defendants did not move for summary judgment on the issue of whether Plaintiff's scar would constitute a basis for finding that he suffered a serious injury, the Court finds that, as a matter of law, a reasonable person could not conclude that such a scar was unattractive, objectionable or an object of pity or scorn -- the measure of whether a scar would be a significant disfigurement and, thus, constitute a serious injury within the meaning of § 5102(d). See Waldron v. Wild, 96 A.D.2d 190 (4th Dep't 1983). Furthermore, as Defendants correctly point out, removal of a disc does not constitute a serious injury. See Schou v. Whiteley, 9 A.D.3d 706, 709 (3d Dep't 2004) (finding that the court "properly dismissed plaintiffs' claim, under Insurance Law § 5102(d), for a permanent loss of use of a body organ, member, function or system by finding that neither the removal of plaintiff's discs nor the loss of use of certain cervical and lumbar vertebrae constitutes a total loss of use" (citations omitted)).

Therefore, the Court finds that Plaintiffs may only rely on the following definitions of serious injury in this case: "permanent consequential limitation of use of" Plaintiff's neck, cervical spine, cervical discs and associated nervous system or a "significant limitation of use of" Plaintiff's neck, cervical spine, cervical discs and associated nervous system as a basis for their claim that Plaintiff suffered a serious injury as a result of the accident.

B. Causal relationship between injuries and accident

Before the Court determines whether Plaintiff has demonstrated that he suffered a serious injury as the result of the accident, the Court must decide whether there is a causal connection between Plaintiff's injuries, serious or not, and the accident.

Defendants assert that, given the gap in time between the accident and Plaintiff's treatment with his orthopedist, as well as his work history and Dr. Schneider's notes that Plaintiff complained that he had started getting numbness in his hand that spread to both hands with some pain about 2 1/2 weeks before his first appointment with Dr. Schneider in October 2008, Plaintiffs cannot establish that Plaintiff's injuries, even if serious, were causally related to the accident. Specifically, Defendants assert that Plaintiff did not begin treating with Dr. Lawrence, his orthopedist, until August 11, 2009, more than one and one-half years after the accident. Furthermore, at Plaintiff's first visit to Dr. Lawrence, Dr. Lawrence's records indicate that Plaintiff complained that, on or about October 2008, he began having constant pain in his shoulders, upper arms and the dorsal aspect of his forearms going into the hands. Plaintiff also stated that the only thing he could recall was a head-on collision in January 2008, after which he did not have substantial problems with his neck range of motion, stiffness or any problems in his hands. Moreover, Defendants note that Plaintiff never filed a Workers Compensation claim in connection with the accident.

Finally, Defendants submitted the supplemental affidavit of Dr. Bryan Bilfield in which he stated that, "within a reasonable degree of medical certainty[,] . . . traumatic herniations of C4-5, C5-6 and C6-7 [would] result in immediate severe symptoms that would require immediate medical attention." See Bilfield Supplemental Affidavit sworn to September 23, 2011, at ¶ 3. He further stated that "[s]omeone who suffer[ed] from such traumatic herniations and nerve compressions would not typically be able to forego medical attention for a period of six months or more." See id.

In response, Plaintiffs note that, one week after the accident, Plaintiff sought treatment with Dr. Lee McGunnigle, a chiropractor, complaining about neck and back pain as well as numbness in his hands and fingers. In his affidavit, Dr. McGunnigle noted that Plaintiff "reported no prior history of neck or back pain prior to the accident" and that he performed several objective tests that indicated that Plaintiff had suffered an injury to his spine, specifically a disc herniation in his spine. See Affidavit of Lee McGunnigle, D.C., sworn to August 9, 2011 ("McGunnigle Aff."), at ¶¶ 6-7. After examining Plaintiff, Dr. McGunnigle diagnosed him as suffering from "Nerve Root compression, Brachial Radiculitis/Neuritis, Displacement of Cervical Intervetebral [sic] Disc, [and] Hyperflex/Hypertext Injury." See id. at Exhibit "A." Dr. McGunnigle opined that Plaintiff's complaints and symptoms were causally related to the January 2008 accident. See id. at ¶ 5.

Plaintiff also submitted the affidavit of Dr. Robert Schneider, his family physician, from whom he sought treatment in October 2008. Dr. Schneider noted that, prior to the January 2008 accident, Plaintiff had never complained to him about neck or back pain; and he was not taking any narcotic pain medication. See Affidavit of Robert Schneider, M.D., sworn to August 23, 2011 ("Schneider Aff."), at ¶ 5. When Plaintiff sought treatment in October 2008, he complained about "back pain, significant numbness of the spine through the neck and down the arms and hands and reported that the severe symptoms had been consistent for 2 to 2 1/2 weeks" prior to that visit. See id. at ¶ 8. Dr. Schneider obtained x-rays of Plaintiff's cervical spine, which "showed a reversal of normal curvature (lordosis) which [was] consistent with a traumatic injury to the spine such as whiplash from the truck accident." See id. at ¶ 9. Dr. Schneider urged Plaintiff to obtain an MRI due to his complaints of numbness, but Plaintiff resisted because of his claustrophobia. See id. "It was ...


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