Musa v. Continental Insurance Co.
Musa v. Continental Insurance Co.
Opinion of the Court
Appellant Abas Musa challenges an order by the trial court granting partial summary judgment in favor of his insurer, Continental Insurance Company, on his claim for uninsured motorist benefits. He argues that a genuine issue exists as to whether he came-within one of the three statutory exceptions, found in D.C.Code § 35 — 2105(b)(1) (1993), permitting a recipient of personal injury protection (“PIP”) benefits to maintain a separate tort action. We hold that the trial court’s ruling was correct and accordingly affirm.
I
On August 1,1990, Mr. Musa was involved in an automobile accident while driving along Missouri Avenue, N.W., in which he sustained injuries to his back and his right foot. According to Musa, the accident resulted from the negligent driving of another motorist whose identity he never ascertained because the other driver fled from the scene. At the time of the accident, Musa was enrolled as a full-time student at the University of the District of Columbia (UDC), worked “off and on” as a security guard, and also worked for a fledgling cleaning business of which he had been a co-founder. Following the accident, he continued taking a full course load at UDC (eighteen to twenty credit hours per semester) and remained employed as a part-time security guard until January 1991. He alleged, however, that as a result of the accident he was unable to continue working for the cleaning service.
Musa filed a claim with Continental under his automobile insurance policy, which included both PIP and uninsured motorist coverage. His uninsured motorist coverage had a $25,000 limit, while his PIP benefits had a limit of $50,000 to pay for medical bills. His claim specifically sought reimbursement under the uninsured motorist clause of the policy.
Musa and Continental entered into negotiations to resolve the claim, but they were unable to agree on a mutually satisfactory settlement. As a result of this impasse, Musa filed suit in the Superior Court seeking $300,000 in damages, based on Continental’s alleged breach of its obligation under the uninsured motorist clause. The parties agreed to enter non-binding arbitration through the court’s alternative dispute resolution program, which resulted in an award in Musa’s favor of $23,597.68. Musa rejected this award, however, and requested a trial de novo,
With leave of court, Musa amended his complaint by adding a count for PIP benefits to his existing claim for uninsured motorist benefits. He also modified his prayer for damages, now seeking $25,000 plus expenses under the uninsured motorist claim, and $16,-302.68 plus future medical expenses under the PIP claim, over and beyond what he had already received.
Musa based his opposition to Continental’s motion on D.C.Code § 35-2105(b)(l), which states:
(b) A victim who elects to receive personal injury protection benefits may maintain a civil action based on liability of another person only if:
(1) The injury directly results in [1] substantial permanent scarring or disfigurement, [2] substantial and medically demonstrable permanent impairment which has significantly affected the ability of the victim to perform his or her professional activities or usual and customary daily activities, or [3] a medically demonstrable impairment that prevents the victim from performing all or substantially all of the material acts and duties that constitute his or her usual and customary daily activities for more than 180 continuous days_ [Bracketed numbers added.]
Invoking the second and third of the three statutory exceptions, Musa argued that he was entitled to receive PIP benefits and, at the same time, to file a separate action for uninsured motorist benefits.
The trial court granted Continental’s motion for partial summary judgment, ruling that Musa “has not shown a genuine issue of fact that he is prevented from performing all or substantially all of his customary daily activities. Altering his manner of walking does not rise to that level.” A subsequent jury trial on the PIP claim resulted in a verdict for Continental. Musa then noted this appeal, claiming error only in the trial court’s ruling on the uninsured motorist claim.
II
A motion for summary judgment should be granted whenever it is shown “that
In considering an appeal from a summary judgment, we view the record in the light most favorable to the non-moving party, thereby providing that party with the benefit of “all favorable inferences that can be drawn from the evidence.” Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983); see Coleman v. Cumis Insurance Society, 558 A.2d 1169, 1170 n. 3 (D.C. 1989). In the case at bar, however, even under this lenient standard, we conclude that appellant Musa did not demonstrate that there was any genuine issue of material fact. Consequently, we must affirm the trial court’s order granting Continental’s motion for summary judgment.
Under the No-Fault Act, motorists who elect to receive PIP benefits are generally barred from pursuing private tort actions seeking damages for their injuries. D.C.Code § 35-2105(b) (1993). The No-Fault Act, however, contains certain exceptions that allow the most seriously injured accident victims to bring tort actions even after having received PIP benefits. In the present ease, Musa relies upon the second of these exceptions,
Neither the legislative history of the No-Fault Act nor any prior decisions of this court have focused on this second exception. The plain language of the statute, however, makes clear that it requires proof of two elements: (1) “substantial and medically demonstrable permanent impairment” caused by the accident which (2) has “significantly affected” the victim’s ability to perform his or her “professional” or “usual and customary” daily activities. We assume for the sake of argument that there is a genuine issue as to whether Musa sustained a “substantial ... permanent impairment” from the accident.
We base our decision primarily on the fact that Musa remained enrolled as a full-time student at UDC in the semesters immediately following the accident, during which he earned between eighteen and twenty credit hours per semester. According to the record, he completed all the courses in which he was enrolled. It is plain that Musa’s aca
In the trial court and again on appeal, Mr. Musa has emphasized that the accident forced him to “alter the normal placement of his foot in that most common of usual and customary daily activities, walking,” and that he therefore was entitled to bring this suit under the second statutory exception. The trial court properly rejected this argument because Mr. Musa failed to show that the alteration of his gait had “significantly affected [his] ability ... to perform his ... professional activities or [his] usual and customary daily activities,” as the statute requires. D.C.Code § 35-2105(b)(l). We do not discount the seriousness of his injuries, but we hold as a matter of law that they are not serious enough to entitle him under the statute to sue for damages after receiving PIP benefits. He chose to seek PIP benefits, and he must now abide by that choice. See Smith v. WMATA, supra, 631 A,2d at 391.
This case cannot be compared to cases from other no-fault jurisdictions, mainly Michigan and New York, allowing recovery under somewhat similar circumstances. See, e.g., Harris v. St. Johnsbury Trucking Co., 57 A.D.2d 127, 393 N.Y.S.2d 611 (1977) (permitting tort action even though plaintiff did not allege interference with her professional or academic life); see generally Francis M. Dougherty, Annotation, What Constitutes Sufficiently Serious Personal Injury, Disability, Impairment, or the Like to Justify Recovery of Damages Outside of No-Fault Automobile Insurance Coverage, 33 A.L.R.4th 767 (1984). In keeping with its stated purpose of reducing litigation expenses stemming from insurance claims,
We cannot accept Musa’s invitation to treat the statutory thresholds set out in section 35-2105(b)(l) as issues of fact requiring jury resolution. “It is a threshold question of law for the court to decide whether appellant has met the strict statutory requirements as set forth in the No-Fault Act sufficient to overcome the Act’s restrictions against tort actions for noneconomic losses.” Smith v. WMATA supra, 631 A.2d at 391 (citation omitted). Furthermore, we reject in this case, as we did in Monroe v. Fore
The judgment in Continental’s favor is accordingly
Affirmed.
. See Super.Ct.Civ.Arb.R. 10.
.The extent and severity of Musa's injuries are not entirely clear. In a letter dated August 22, 1991, Dr. Peter Moskovitz, the physician who performed the three operations on his foot, wrote that Mr. Musa’s "wound is healing very nicely" and that he did not "see any indication of any problems that would create long-term impairment.” Later, however, Dr. Moskovitz wrote in a letter dated February 19, 1992, that Mr. Musa had "a permanent physical impairment rating of 40% of the great toe. This represents a 9% physical impairment of the foot....” Dr. Mos-kovitz went on to conclude that the injury had resulted in "a physical impairment of 2% of the whole person....”
. After filing his complaint, Musa had sought and received payment from Continental under the PIP provisions of his policy for his hospital and doctor bills.
. Musa’s reliance on both exceptions in the trial court resulted in some initial confusion regarding his contentions on appeal. As a result, Continental originally asserted in its brief that Musa had waived his right to rely on the second exception on appeal because he failed to assert it before the trial court. At oral argument, however, Continental conceded that Musa had preserved his claim for relief wider the second exception.
. Musa no longer relies on the third exception, as he did in the trial court. See note 4, supra.
. As we have noted, Dr. Moskovitz concluded that Musa had sustained a 40 percent permanent physical impairment to the great toe on his right foot, which translates into a 2 percent impairment of the whole person. This evidence would, at least arguably, enable reasonable jurors to reach conflicting conclusions as to the severity of Musa's injuries.
. See D.C.Code § 35-2101(a)(1), (a)(2)(D) (1993) (legislative finding that persons injured in motor vehicle accidents were "not adequately protected by [prior] law” because, among other reasons, procedural prerequisites to compensation were “time-consuming and expensive to policyholders”).
Concurring Opinion
concurring in the result.
The applicable statute requires Musa to show that the accident resulted in a “substantial and medically demonstrable permanent impairment” which significantly affected his ability to perform his “professional activities or [Ms] usual and customary daily activities.” D.C.Code § 35 — 2105(b)(1) (1993) (emphasis added). If each word and phrase is given independent significance, the “usual and customary” activities need not be of a professional nature. Thus, if Musa customarily goes for a daily walk, then the statute appears by its terms to apply. Given the foregoing, I am not persuaded that our statute is significantly narrower than New York’s or Michigan’s, cf. maj. op. at 1003-04, for a showing of impairment of professional activities is not required in the District either.
I nevertheless vote to affirm for a slightly different reason. I am not sure what a 2% injury to the whole person is, see maj. op. at 1001 n. 2, but I think I know what it isn’t. It is not the kind of “substantial and medically demonstrable permanent impairment” which would allow Musa to recover.
Reference
- Full Case Name
- Abas O. MUSA, Appellant, v. CONTINENTAL INSURANCE COMPANY, Appellee
- Cited By
- 29 cases
- Status
- Published