United States District Court, E.D. Pennsylvania
F. KELLY, SR. J.
Michael Polidoro (“Polidoro”) and Gabriella
Polidoro (collectively, “the Polidoros”)
initiated this action against Defendant Westfield Insurance
Company (“Westfield”) to recover underinsured
motorist benefits (“UIM”) stemming from a May
2012 automobile accident involving Polidoro. Westfield has
filed a Motion for Partial Summary Judgment, seeking
dismissal of Polidoro's claim for past and future wage
loss on the basis that the lost wages were caused by a
separate worked-related incident occurring over three years
after the automobile accident. The Polidoros have filed a
Response in Opposition, and Westfield has filed a Reply
Brief. For the reasons noted below, Westfield's Motion is
29, 2012, Polidoro was a passenger in a “commercial box
truck” that his employer, Custom Aire, Inc., owned.
(Pl.'s Resp. Opp'n to Def.'s Mot. Partial Summ.
J. 4.) While he was stopped in traffic on I-95,
a van rear-ended the truck. (Id. at 4-5.) Emergency
personnel arrived at the scene and transported Polidoro to
the hospital. (Id. at 5-6.) He testified that he has
had neck and head pain since the accident. (Id. at
October 9, 2013, Polidoro filed his first Workers'
Compensation Petition that sought payment for only his
medical bills associated with the accident. (Id.,
Ex. H at 1 (First Workers' Compensation Petition).) The
first Workers' Compensation Petition stated that Polidoro
was involved in an automobile accident during the course of
his work duties and suffered a head injury. (Id.) He
later testified that although he had head pain after the
accident, he was still able to perform his job duties and was
working full forty-hour weeks “for the most
part.” (Def.'s Br. Supp. Mot. Partial Summ. J., Ex.
A (“Polidoro Dep.”) at 84.)
filed a second Workers' Compensation Petition on
September 24, 2015 while the first Petition was still
pending. (Pl.'s Resp. Opp'n to Def.'s Mot.
Partial Summ. J. 9.) In providing a description of the
injury, Polidoro stated he had “severe headache
disorder [and] aggravation of post traumatic
migraines/concussion syndrome.” (Id., Ex. A
(Second Workers' Compensation Petition) at 1.) He further
provided that the date of injury was July 20, 2015 and that
it happened via “[r]epetitive extreme forward flexion
postures adapted to accomplish work related tasks, repetitive
industrial environmental noise and flouroscopic [sic]
lighting while in the course and scope of [his]
employment.” (Id.) In connection with his
second Petition, Polidoro testified before a Workers'
Compensation Judge that he was attributing his increase in
headaches to the fluorescent lighting in the work shop, the
noise from hammers, and the forward pressure when he needed
to lean forward. (Def.'s Br. Supp. Mot. Partial Summ. J.,
Ex. I at 13.)
December 28, 2016, the Workers' Compensation Judge denied
Polidoro's second Workers' Compensation Petition,
finding that Polidoro “failed to establish that he
suffered a new injury or an aggravation of his headache
condition or concussion syndrome at the workplace as of July
20, 2015.” (Pl.'s Resp. Opp'n to Def.'s
Mot. Partial Summ. J., Ex. R at 11.) Polidoro appealed the
denial to the Workers' Compensation Appeal Board.
(Def.'s Br. Supp. Mot. Partial Summ. J. 10.) In his brief
in support of his appeal, he claimed that he suffered a
traumatic brain injury as a result of a work-related
automobile accident in May 2012. (Id.) He further
stated that he was able to return to work following the motor
vehicle accident, “but as of July 2015, continued
exposure to industrial lighting and sounds and neck strain on
the job significantly aggravated his [symptoms], leaving him
unable to keep working.” (Id., Ex. L at 1.)
issued a policy of insurance to Custom Aire that covered the
period in which the May 2012 motor vehicle accident occurred.
The policy states that Westfield “will pay all sums the
‘insured' is legally entitled to recover as
compensatory damages from the owner or driver of an
‘underinsured motor vehicle'.” (Id.,
Ex. M (“Policy”) at 1.) On September 29, 2017,
the Polidoros filed a Complaint against Westfield seeking UIM
benefits under the policy.On May 14, 2018, Westfield filed the
instant Motion for Partial Summary Judgment that seeks
dismissal of Polidoro's claim for past and future
Rule of Civil Procedure 56(a) states that summary judgment is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
Court asks “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether . .
. one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986).The moving party has the initial burden of
informing the court of the basis for the motion and
identifying those portions of the record that demonstrate the
absence of a genuine dispute of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A
fact is material if it could affect the outcome of the suit
after applying the substantive law. Further, a dispute over a
material fact must be ‘genuine,' i.e., the evidence
must be such ‘that a reasonable jury could return a
verdict in favor of the non-moving party.'”
Compton v. Nat'l League of Prof'l Baseball
Clubs, 995 F.Supp. 554, 561 n.14 (E.D. Pa. 1998)
(quoting Liberty Lobby, 477 U.S. at 255).
judgment must be granted “against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Once the moving party has
produced evidence in support of summary judgment, the
non-moving party must go beyond the allegations set forth in
its pleadings and counter with evidence that presents
“specific facts showing that there is a genuine issue
for trial.” See Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992).
“More than a mere scintilla of evidence in its
favor” must be presented by the non-moving party in
order to overcome a summary judgment motion. Tziatzios v.
United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996).
If the court determines there are no genuine disputes of
material fact, then summary judgment will be granted.
Celotex, 477 U.S. at 322.
noted above, Westfield argues that Polidoro's past and
future wage loss claim should be dismissed because there is
no genuine dispute of material fact that his inability to
work was due to a subsequent aggravation of his condition,
which was caused by fluorescent lighting, loud noise, and
forward flexion, rather than the May 2012 automobile accident
occurring over three years prior. Westfield also claims that
to the extent Polidoro argues his inability to work was
caused by the motor vehicle accident, such evidence should be
precluded under the doctrine of judicial estoppel.