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09/16/93 CARROLL SMITH v. WASHINGTON METROPOLITAN

September 16, 1993

CARROLL SMITH, APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Bruce S. Mencher, Trial Judge)

Before Farrell and Wagner, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Senior Judge Gallagher. Dissenting opinion by Associate Judge Wagner.

The opinion of the court was delivered by: Gallagher

GALLAGHER, Senior Judge : This is an appeal from an order of the Superior Court granting summary judgment in favor of appellees Washington Metropolitan Area Transit Authority (hereinafter "WMATA") and "Alfonso Rojas Restrepo in a negligence action brought by appellant Carroll Smith as a result of a motor vehicle accident. In determining whether summary judgment was properly entered against Smith, the principal issue we are called upon to decide is whether, under the 1982 Compulsory/No-Fault Motor Vehicle Insurance Act ("No-Fault Act") (D.C. Code §§ 35-2101 to -2113 (1988 Repl.)), Smith has adequately demonstrated that she meets an exception to the Act's restrictions against tort actions for non-economic losses. We affirm.

On April 4, 1986, Smith was a passenger aboard a WMATA metro bus when the bus was involved in an accident with a taxicab owned and operated by Restrepo. Smith was injured in the accident and requested, pursuant to the No-Fault Act (D.C. Code § 35-2104 (1988 Repl.)), personal injury protection (PIP) benefits from WMATA for economic losses. *fn1 Accordingly, WMATA, a self-insurer, *fn2 paid Smith PIP benefits for medical expenses and loss of work.

On March 18, 1989, Smith brought suit to recover certain non-economic losses *fn3 which she contends she is entitled to recover from WMATA under the No-Fault Act. On January 9, 1991, the trial court granted appellees' oral motion for leave to file a motion for summary judgment. In their motion for summary judgment, filed on January 29, 1991, appellees asserted that "WMATA is self-insured against liability for injury to persons," *fn4 that "at all times material to this action the No-Fault Act is applicable, that Smith did not incur medical expenses in excess of the medical threshold of Five Thousand dollars, *fn5 and there was no genuine issue as to material fact pertaining to Smith's claim. *fn6 Consequently, appellees claimed that they were entitled to summary judgment as a matter of law since Smith elected to receive PIP benefits from WMATA, and thus was prevented from maintaining a tort action for non-economic losses because she tailed to make her prima facie case, pursuant to the No-Fault Act, D.C. Code § 35-2105 (b) (1988 Repl.), which requires that the injury directly resulted in:

substantial and medically demonstrable permanent impairment which has significantly affected ability . . . to perform . . . her professional activities or usual and customary daily activities; or a medically demonstrable impairment that prevents from performing all or substantially all of the material acts and duties which constitute . . . her usual and customary daily activities for more than 180 continuous days.

Smith, in her opposition to appellees' motion for summary judgment, claimed that it was a question for the jury to determine whether she had provided sufficient evidence that she met the exception. Smith supported her opposition to the motion for summary judgment with her answers to interrogatories and an unsigned and unsworn report of her physical examination performed on January 16, 1991. The trial court held a hearing on these issues on April 11, 1991 and, "upon consideration of the [Appellees'] Motion for Summary Judgment and the Memorandum of Points and Authorities in support thereof, Opposition and Argument thereon," issued an order granting appellees' motion. It is, from this order that Smith appeals. *fn7

I.

Both a motion to strike and motion for summary judgment test the legal sufficiency of a cause of action, the former when the pleadings are open, the latter when pleadings are closed. See Camp v. Chase, 39 Conn. Supp. 264, 476 A.2d 1087 (D.C. 1983). In other words, where the pleadings are closed, the motion for summary judgment, supported by verified pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, may be used to test whether the party opposing the motion met the threshold question of law at issue. See Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979), cert. denied, 444 U.S. 1078, 62 L. Ed. 2d 761, 100 S. Ct. 1028 (1980); Super. Ct. Civ. R. 56. Where the party opposing the motion fails to meet the burden of demonstrating that she has stated a cause of action, then there is "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Nader, supra, 408 A.2d at 42.

In reviewing the grant of the summary judgment, this court must conduct an independent review of the record, Scrimgeour v. Magazine, 429 A.2d 187, 188 (D.C. 1981), and must view the facts in "the light most favorable to the non-moving party," Sayan v. Riggs Nat'l Bank of Washington, D.C., 544 A.2d 267, 268 (D.C. 1988). After the moving party, here appellees, makes its initial requisite showing, the non-moving party, here Smith, "must set forth specific facts showing that there is a genuine issue for trial," and must demonstrate that a jury or Judge is necessary to resolve the disputed fact. Super. Ct. Civ. R. 56 (e); Nader, supra, 408 A.2d at 42. The requisite "showing of a 'genuine issue for trial' is predicated upon the existence or a legal theory which remains viable under the asserted version of the facts . . . ." Id. 48 (quoting McGuire v. Columbia Broadcasting Sys., Inc., 399 F.2d 902, 905 (9th Cir. 1968)). Once movant has made the requisite showing in support of its motion for summary judgment, the non-moving party, in order to make the evidentiary showing that will permit her to advance to trial, must show that she has a plausible ground to maintain the particular cause of action; i.e., she must produce enough evidence to make out a prima facie case in support of her claim Id. at 48-49.

II.

The No-Fault Act "established a compulsory insurance system for personal injury in which victims of automobile accidents would be compensated irrespective of fault." Dimond v. District of Columbia, 253 U.S. App. D.C. 111, 114, 792 F.2d 179, 182 (1986). Under this Act, no-fault personal injury protection benefits paid by his own insurer compensated a victim for economic detriment incurred as a result of an accident. *fn8 Id. at 114-15, 792 F.2d at 182-83. On the other hand, non-economic losses *fn9 could be recovered only by bringing a tort action against the driver "at fault" in an accident, but the No-Fault Act restricted a victims' ability to bring such actions. See Monroe, supra note 5, 540 A.2d at 742. 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 non-economic losses. Id.

WMATA, in support of its summary judgment motion, has met its reqtuisite initial showing that it is self-insured, that the No-Fault Act applies here, and that appellant his not incurred medical expenses in excess of the medical threshold of Five Thousand Dollars; therefore, the burden of proof shifts to Smith. Thus, to defeat a motion for summary judgment, Smith must produce enough evidence through verified pleadings, interrogatories, affidavits, and depositions to demonstrate that she can maintain a cause of action for non-economic losses under the limitations set forth by the No-Fault Act (D.C. Code § 35-2105 (b) (1988 Repl.)). She must show that she suffered a "substantial and medically demonstrable permanent impairment" and/or a "medically demonstrable impairment" that prevented her from "performing all or substantially all of the material acts and duties" of her "usual and customary daily activities for more than 180 continuous days." Id.

In our review of the record, however, we conclude that Smith's evidentiary showing is insufficient to maintain a cause of action under the statutory provisions of the No-Fault Act so that WMATA is entitled to summary judgment as a matter of law. In order to try to meet the substantial permanent impairment exception of the No-Fault Act's restrictions against tort actions for non-economic losses, Smith was examined by a doctor on January 16, 1991, almost five years after the accident. However, the report that she submitted to the trial court of this examination was unsigned and unsworn as required by Super. Ct. Civ. R. 56 so it cannot properly be considered. Even assuming, arguendo, that this report could be considered, it does not help her claim. Though the report describes her condition as of that date as "permanent" on the ground that "she will continue to have problems from time to time," the described injuries are minor and relieved by aspirin. See Patrello v. United States, 757 F. Supp. 216, 223 (S.D.N.Y. 1991) (noting that plaintiff's ...


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