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Polidoro v. Westfield Insurance Co.

United States District Court, E.D. Pennsylvania

June 26, 2018

MICHAEL POLIDORO and GABRIELLA POLIDORO, Plaintiffs,
v.
WESTFIELD INSURANCE COMPANY, Defendant.

          MEMORANDUM

          ROBERT F. KELLY, SR. J.

         Plaintiffs 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 denied.

         I. BACKGROUND

         On May 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.[1]) 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 6.)

         On 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.)

         Polidoro 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.)

         On 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.”[2] (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.)

         Westfield 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.[3]On May 14, 2018, Westfield filed the instant Motion for Partial Summary Judgment that seeks dismissal of Polidoro's claim for past and future wages.[4]

         II. LEGAL STANDARD

         Federal 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).

         Summary 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.

         III. DISCUSSION

         As 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.

         A. ...


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