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Musa v. Continental Ins. Co.

July 14, 1994

ABAS O. MUSA, APPELLANT
v.
CONTINENTAL INSURANCE COMPANY, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Trial Judge)

Before Terry, Schwelb and King, Associate Judges. Opinion for the court by Associate Judge Terry. Opinion by Associate Judge Schwelb, Concurring in the result.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: 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, *fn1 apparently because he felt that the information presented to the arbitrator did not adequately reflect the severity of the injury to his foot. Specifically, Musa claimed that he "was forced to undergo three surgical procedures" since the filing of his original complaint in order to stabilize the part of his foot that was most seriously injured. According to Musa, these injuries "greatly impeded his ability to walk and significantly affected his ability to perform his usual daily activities." *fn2

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. *fn3 Continental then moved for partial summary judgment on the uninsured motorist claim, arguing that the Compulsory/No-Fault Motor Vehicle Insurance Act ("No-Fault Act"), D.C. Code §§ 35-2101 to 35-2114 (1993), generally does not permit a claimant to file for PIP benefits while also maintaining a separate action for personal injuries. Asserting that none of the statutory exceptions to this general rule applied to Musa's case, Continental maintained that Musa's claim under the uninsured motorist clause of his policy was barred by statute.

Musa based his opposition to Continental's motion on D.C. Code § 35-2105 (b)(1), 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. *fn4 In support of this argument, he relied on the February 19 letter from Dr. Moskovitz (see note 2, (supra) ) stating that his great toe had experienced a forty percent permanent physical impairment, and on his own affidavit describing the post-accident adjustments he had been forced to make in order to walk without pain.

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 ...


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