J-A19043-19

2019 PA Super 353

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* Former Justice specially assigned to the Superior Court.

CAROL EVANS 

Appellant

v.

TRAVELERS INSURANCE COMPANY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2531 EDA 2018

Appeal from the Order Entered August 14, 2018

In the Court of Common Pleas of Wayne County Civil Division at No(s): 

531-Civil-2016

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 04, 2019

Appellant Carol Evans appeals the order of the Court of Common Pleas 

of Wayne County entering summary judgment in favor of Appellee Travelers 

Insurance Company (“Travelers”). The trial court concluded that summary 

judgment was warranted as it found that Evans failed to produce evidence of 

a fact essential to her cause of action: whether her Post-Traumatic Stress 

Disorder (PTSD) resulted from bodily harm sustained in the motor vehicle 

accident at issue. We reverse and remand for further proceedings.

On September 17, 2014, Evans was traveling southbound in her 

Chrysler PT Cruiser in the left passing lane of Interstate 476 (I-476 or the 

Pennsylvania Turnpike) near Kidder Township, Carbon County.1 At that time, 

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1 Evans’ complaint indicates that she was driving in a “generally northerly 

direction” on I-476 when the accident occurred. Compl. at ¶ 3. However, at

a subsequent deposition, Evans indicated that she was driving southbound on 

I-476 from Scranton to Jim Thorpe when the accident occurred. Evans 
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Rodolfo Hudson was traveling southbound in a tractor-trailer in the right lane 

of I-476. At some point, Hudson attempted to move his tractor-trailer to the 

left passing lane and violently collided with Evans’ vehicle. Compl. at ¶ 1-5; 

Evans Deposition (“Dep.”), December 14, 2017, at 15.

This forceful impact cracked Evans’ windshield, broke the passenger side 

mirror off her vehicle, smashed her passenger side windows, caused broken 

glass to fly into the vehicle, and pushed Evans’ entire vehicle to the left 

towards the concrete barrier. Evans regained control of her vehicle and pulled 

over to the right side of the interstate. Hudson pulled over his tractor-trailer,

and both parties waited for emergency personnel to arrive. Dep. at 14-17. 

While Evans felt pain in her head and neck immediately after the 

accident, she did not initially seek medical care but instead took generic pain 

medications. Id. at 19. Evans’ pain in her head and neck escalated, and she 

began to experience dizziness in the week following the accident. Id. at 19-

22. Her husband insisted that she get treatment at a local hospital. Id. at 

22. Evans subsequently reported various symptoms including persistent 

headaches and neck pain, dizziness, balance issues, fogginess of her mental 

processes, extreme exhaustion, nightmares, flashbacks, and panic attacks. 

Id. at 23-25, 34-37, 40-46, 56-69, 73-75.

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Deposition (“Dep.”), December 14, 2017, at 15. This inconsistency does not 

affect our conclusion in this case.
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Thereafter, Evans submitted to extensive medical testing, received 

injections into her cervical spine to alleviate pain, underwent physical therapy 

and rehabilitation to regain balance and address issues with cognition, and 

was prescribed multiple medications for pain, dizziness, and emotional 

distress. Dep. at 23-28, 32-34, 52-69. Several months after the collision,

beginning in February 2015, Evans was evaluated and treated by psychiatrist 

Dr. Matthew Berger for PTSD. Id. at 34-37.

It is undisputed that Evans was treated for “injuries to her neck and 

thoracic spine with radiculopathy,” and head injuries that included 

“concussion, closed head injury, post-concussion syndrome, vertigo, posttraumatic vascular headac[h]es, post-traumatic vestibuloneuronitis, and/or 

post-traumatic stress disorder (PTSD).” Compl. at ¶ 8. Evans indicated that 

she was advised that her injuries “may be permanent in nature.” Id.

Evans submitted an application to her insurer, Travelers, for first party 

benefits coverage under her automobile policy.

2 The first party benefits 

endorsement requires Travelers to pay “medical expenses” of an “insured who

sustains ‘bodily injury’ caused by an accident arising out of the maintenance 

or use of a motor vehicle.” Endorsement, at 2 (some quotation marks 

omitted). The endorsement defined “medical expenses” in part as “reasonable 

and necessary charges incurred for ... medical and rehabilitative services, 

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2 Evans also filed a separate third-party action against Hudson and other 

parties in federal court. It appears the outcome of that litigation was pending 

at the time that the lower court entered summary judgment in this case.
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including but not limited to ... psychiatric, and psychological services.” Id. at 

1. The endorsement defined “bodily injury” as “accidental bodily harm to a 

person and that person’s resulting illness, disease, or death.” Id. 

While Travelers initially paid for Dr. Berger’s treatment of Evans’ PTSD, 

Travelers subsequently denied coverage for future treatment. Evans’ counsel 

sent Travelers a letter from Dr. Berger, who indicated he was treating Evans 

for PTSD related to the motor vehicle accident and that continued treatment

of Evans’ PTSD was “medically necessary.” Berger Letter, 8/26/15, at 1. 

On October 7, 2015, Travelers’ claims representative, Kami Hause,

indicated that, while Travelers did not dispute that Evans sustained physical 

injuries in the accident, Travelers claimed Evans’ PTSD does not constitute 

“bodily injury” as defined by the endorsement. Hause Letter, 10/7/15, at 1. 

Hause asserted that the endorsement’s definition of bodily injury was identical

to the policy language in Zerr v. Erie Ins. Exchange, 667 A.2d 237 

(Pa.Super. 1995), in which this Court determined that emotional or mental 

injuries were not covered under that definition of bodily injury, unless they 

were caused by a physical injury. Hause Letter, 10/7/15, at 1.

Evans filed this cause of action in the Court of Common Pleas of Wayne 

County, arguing that Travelers breached the parties’ insurance contract.3,4 

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3 Evans is a resident of Wayne County, Pennsylvania.

4

In her complaint, Evans also contended that Travelers’ conduct and actions 

constituted bad faith in violation of 42 Pa.C.S.A. § 8371. After Travelers’ filed 

preliminary objections, the parties entered a stipulation that the bad faith 

count would be stricken from the complaint. Stipulation, 5/1/17, at 1.
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Evans’ complaint alleges that “Travelers acted with no reasonable foundation 

in refusing to pay first party benefits when due, with respect to the unilateral 

denial of payment for treatment of head and neck injuries and sequelae of 

same, including psychological, neuropsychological, and/or emotional 

manifestations.” Compl. at ¶ 36 (emphasis added). In its answer and new 

matter, Travelers asserted that “[t]he subject Travelers Policy and 

Pennsylvania case law bar coverage for emotional and mental injuries which 

are not caused by physical injury.” Answer at ¶ 47. 

On May 30, 2018, Evans filed a Motion for Partial Summary Judgment, 

arguing that she was entitled to receive first party benefits for the treatment 

of her PTSD, which she sustained in the accident with concomitant physical 

injuries. Evans also argued that Travelers’ strict interpretation of the policy

conflicted with the Motor Vehicle Financial Responsibility Law (MVFRL) and 

violated public policy. On the same day, Travelers filed a Motion for Summary

Judgment, claiming Evans was not entitled to receive coverage for treatment 

for PTSD, which did not result from the physical injuries she sustained in the 

collision as required by policy language.

In an opinion and order entered August 14, 2018, the trial court granted 

summary judgment in favor of Travelers, denied Evans’ motion for summary 

judgment, and dismissed Evans’ complaint with prejudice. Specifically, the 

trial court found that Travelers was entitled to summary judgment as Evans 

“failed to produce evidence that her mental injuries resulted from her physical 
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injuries, which is essential to the cause of action.” Trial Court Opinion

(T.C.O.), 8/14/18, at 5. This timely appeal followed.

Evans raises the following issues for our review on appeal:

I. Did the trial court err in granting [Travelers’] Motion for 

Summary Judgment, denying [Evans’] Motion for Partial 

Summary Judgment, and dismissing [Evans’] Complaint 

when there was no genuine issue or dispute of material fact 

that [Evans] suffered concomitant physical injuries, in 

addition to her psychiatric injuries, as a result of the motor 

vehicle collision at issue; psychiatric services were a 

covered first party medical expense pursuant to her policy 

with [Travelers]; and [Travelers] based their denial and the 

trial court based its opinion solely upon the case of Zerr v. 

Erie Ins. Exchange, 667 A.2d 237 (Pa.Super. 1995)?

II. Did the trial court err in granting [Travelers’] Motion for 

Summary Judgment, denying [Evans’] Motion for Partial 

Summary Judgment, and dismissing [Evans’] Complaint 

when [Travelers’] and the trial court’s interpretation of the 

policy language at issue and Zerr impermissibly conflicts 

with the provisions of the MVFRL and violates public policy?

Evans’ Brief, at 4.

In reviewing a trial court’s order granting summary judgment, we are 

guided by the following principles:

When a party seeks summary judgment, a court shall enter 

judgment whenever there is no genuine issue of any material fact 

as to a necessary element of the cause of action or defense that 

could be established by additional discovery. A motion for 

summary judgment is based on an evidentiary record that entitles 

the moving party to a judgment as a matter of law. In considering 

the merits of a motion for summary judgment, a court views the 

record in the light most favorable to the non-moving party, and 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party. Finally, the court may 

grant summary judgment only when the right to such a judgment 

is clear and free from doubt. An appellate court may reverse the 
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granting of a motion for summary judgment if there has been an 

error of law or an abuse of discretion. 

Gallagher v. GEICO Indem. Co., ___Pa.___, 201 A.3d 131, 136–37 (Pa. 

2019) (citations omitted).

In interpreting the language of an insurance policy, we recognize that:

we must apply general principles of contract interpretation, as, at 

base, an insurance policy is nothing more than a contract between 

an insurer and an insured. 401 Fourth St., Inc. v. Inv'rs Ins. 

Grp., 583 Pa. 445, 879 A.2d 166, 171 (2005). In so doing, we 

must “ascertain the intent of the parties as manifested by the 

terms used in the written insurance policy.” Id. Just as in 

statutory construction, “[w]hen the language of the policy is clear 

and unambiguous, a court is required to give effect to that 

language.” Id. Importantly, however, provisions of insurance 

contracts are invalid and unenforceable if they conflict with 

statutory mandates because contracts cannot alter existing laws. 

Prudential Prop. & Cas. Ins. Co. v. Colbert, 572 Pa. 82, 813 

A.2d 747, 751 (2002).

Gallagher, 201 A.3d at 137.

Evans first argues that the trial court erred in determining that 

treatment for PTSD that she sustained in the accident is not covered under 

her policy with Travelers. Evans argues that her PTSD and other mental 

injuries, sustained with concomitant physical injuries, constitute “bodily 

injury” under the policy language. Evans also contends that the trial court 

erred in finding that this case was controlled by this Court’s prior decision in 

Zerr, which Evans argues is distinguishable. 

In Zerr, the insured was traveling on the Pennsylvania Turnpike and 

was forced to swerve off the road after a tractor-trailer attempted to change 

lanes too quickly in front of the insured’s vehicle. However, “the two vehicles 
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never made contact with one another, and Mr. Zerr suffered no physical harm 

at the scene.” Zerr, 667 A.2d at 237. Zerr sought first party benefits under 

his own policy for coverage for PTSD, globus hystericus, anxiety attacks, 

driving phobia, and numerous physical symptoms, which he alleged, were 

caused by his emotional experience on the highway. The insurer, Erie, denied 

responsibility to pay benefits for Zerr’s emotional injuries, as Zerr suffered no 

physical injuries at the time of the incident. Zerr’s policy contained an 

identical definition of bodily injury: “accidental bodily harm to a person and 

that person’s resulting illness, disease, or death.” Id. at 238.

A three-judge panel of this Court affirmed the trial court’s decision to 

grant Erie’s preliminary objections in the nature of a demurrer. Even though 

Zerr had reported physical manifestations of his emotional distress, this Court 

found Zerr had not sustained a “bodily injury” as defined by his policy or the 

MVFRL as his “injury did not result in an illness, but rather his illness resulted 

in a bodily injury.” Id. at 239. Further, the Zerr Court reasoned that 

neither the legislature nor the Pennsylvania Supreme Court has 

yet to erect a bridge between bodily injury and mental injury, in 

the context of automobile insurance law; that is, a distinction 

between physical and psychological maladies remains, such that 

one who suffers psychological illness cannot successfully claim 

benefits under the MVFRL for “injury.”

Id. at 240. Thus, the Zerr Court concluded that “the law states with certainty 

that no recovery is possible, by means of the MVFRL or [the insured’s] policy, 

for mental injury which is not the result of a bodily injury.” Id. (emphasis 

added). 
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However, while the Zerr court held that an individual who suffers 

psychological illness cannot successfully claim benefits under the MVFRL for 

“injury,” this Court held, in a different context, that a plaintiff who exhibited 

“symptoms of severe depression, nightmares, stress and anxiety, requiring 

psychological treatment, and ... ongoing mental, physical and emotional 

harm,” sufficiently set forth physical manifestations of emotional distress or 

physical harm to support an action for negligent infliction of emotional distress 

(NIED). Love v. Cramer, 606 A.2d 1175, 1179 (Pa.Super. 1992). 

This Court has also determined that a plaintiff sufficiently established 

that she sustained physical harm as a result of emotional distress as she 

experienced “knots” in her stomach, nightmares, low self-esteem, was easily 

frightened, and suffered major depression, for which she sought professional 

counseling for ongoing mental and physical harm. Brown v. Phila. Coll. of 

Osteopathic Med., 674 A.2d 1130, 1137 (Pa.Super. 1996). See also

Schmidt v. Boardman Co., 608 Pa. 327, 382, 11 A.3d 924, 958 (2011) 

(Baer, J., concurring) (asserting that the appellees’ physical manifestations of 

emotional trauma, which resulted from witnessing harm to a close relative, 

constituted “physical harm” or “physical injury” as contemplated by the 

Restatement (Second) of Torts Section 402A).5 

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5 Evans asks that this Court consider as persuasive authority the nonprecedential decision in Lipsky v. State Farm Mut. Auto. Ins. Co., 565 EDA 

2010 (Pa.Super. September 1, 2011) (unpublished memorandum). Although 

Pa.R.A.P. 126 was recently amended to allow parties to rely on non-
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In applying these concepts to the contractual language at issue in this 

case, we observe that, in addition to her diagnosis of PTSD, Evans reported

numerous physical manifestations of her emotional distress, including:

persistent headaches, dizziness, balance issues, fogginess of her mental 

processes, extreme exhaustion, nightmares, flashbacks, and panic attacks. 

Moreover, there is no dispute that Evans sustained physical injury to her 

head and neck as a result of this violent collision. Nevertheless, the trial court 

relied on Zerr to conclude that Evans’ PTSD did not constitute “bodily injury” 

that her policy defined as “accidental bodily harm to a person and that 

person’s resulting illness, disease, or death.” 

While this Court is bound by precedent in Zerr which provides that 

physical manifestations of emotional distress cannot constitute “bodily harm” 

as defined by the policy language at issue and the MVFRL,6 Zerr is 

distinguishable as Zerr’s claim for coverage was based solely on emotional 

injury without any accompanying physical injury whereas it is undisputed that 

Evans suffered both physical injuries and emotional distress (including PTSD)

in her accident. Pursuant to Zerr, Evans is entitled to benefits under her 

policy if the physical harm she sustained in the accident resulted in an illness.7

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precedential unpublished decisions of this Court as persuasive authority, this 

amendment only applies to decisions filed after May 1, 2019. As the Lipsky

decision was filed on September 1, 2011, this unpublished memorandum 

cannot serve as persuasive authority.

6 Commonwealth v. Karash, 175 A.3d 306, 307 (Pa.Super. 2017) (“a panel

of this Court cannot overrule the decision by another panel”).

7 The parties do not dispute that PTSD constitutes an “illness.”
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When reviewing the record in the light most favorable to Evans and 

resolving all doubts as to the existence of a genuine issue of material fact 

against Travelers, we reject the trial court’s conclusion that summary 

judgment was warranted based on its finding that Evans “failed to produce 

any evidence that her mental injuries resulted from her physical injuries.” 

T.C.O. at 5. Evans has presented evidence to support her claim that her PTSD

resulted from not only from experiencing the traumatic collision but also from 

her physical injuries which caused Evans continuous physical pain, affected 

her physical and emotional well-being, and required extensive medical testing, 

treatment, and rehabilitation over a period of several years. Evans asserted 

that she still was experiencing continuous neck pain on the day of her 

deposition, over three years after the accident. 

We reject the trial court’s conclusion that the record shows Evans’ PTSD 

and mental injuries were solely caused by the accident and could not have 

been caused in part by her physical injuries, which are closely related and 

seemingly intertwined. While the trial court found that Evans’ deposition 

testimony “indicates more definitively that her mental injuries resulted from 

the accident itself,” Evans’ testimony did not foreclose the possibility that her 

PTSD was also caused by the physical injuries. In Evans’ deposition, opposing 

counsel did not make any inquiry to determine whether Evans’ physical 

injuries had caused her emotional distress. 

In the same manner, we disagree with the trial court’s suggestion that 

Evans’ treating psychiatrist, Dr. Berger, concluded that Evans’ PTSD was 
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solely caused by experiencing the accident. The record contains a oneparagraph letter from Dr. Berger to Travelers which states that Evans “suffers 

from PTSD “related to a motor vehicle accident that occurred in September of 

2014.” Berger Letter, 8/26/15, at 1. The only conclusion Dr. Berger makes in

the letter is that his assertion that Evans’ “medications and her continued 

treatment in our office are medically necessary and indicated to help reduce 

her symptoms of PTSD.” Id. at 1. 

As a result, the record does not conclusively show that Evans’ PTSD and 

mental injury was solely caused by the accident as there is evidence that her 

emotional trauma was intertwined with or related to her physical injuries. 

As such, we find there is a genuine issue of a material fact as to a 

necessary element of the cause of action: whether Evans’ PTSD and other 

mental injury was caused by her bodily harm sustained in the accident. 

Accordingly, the trial court erred in entering summary judgment in favor of 

Travelers.

Evans also argues that the trial court’s interpretation of the policy in this 

case conflicts with the MVFRL and violates public policy. More specifically, 

Evans asserts that the trial court’s interpretation of the policy at issue results 

in “illusory coverage,” as she alleges that she was denied coverage even 

though she paid additional premiums for Added Party Benefits.

Evans points out that, while her policy set forth the minimum limit of 

liability for Basic First Party Benefits at $5,000 for Basic “Medical Expenses,” 

the first party benefits endorsement allowed the insured to pay additional 
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premiums for several options that would require Travelers to provide Added 

Party Benefits. Evans emphasizes that she paid additional premiums to 

receive “Increased Medical Expenses,” in which Travelers’ limit of liability was 

raised to $100,000. 

We are not persuaded by Evans’ claim that she is entitled to payment 

for her psychiatric treatment based on her payment of additional premiums 

for Added Party Benefits. As noted above, the endorsement defines “medical 

expenses” in part as, “reasonable and necessary charges incurred for ... 

medical and rehabilitative services, including but not limited to ... psychiatric, 

and psychological services.” Endorsement, at 1. The endorsement provides 

that Travelers would pay for “medical expenses” for an insured who sustains 

“bodily injury” arising out of the maintenance or use of a motor vehicle. 

As noted above, Evans’ policy contains consistent definitions of bodily 

injury as those at issue in Zerr and in the MVFRL, which defines “bodily injury” 

as “accidentally sustained bodily harm to an individual and that individual's 

illness, disease or death resulting therefrom.” 75 Pa.C.S.A. § 1702. We 

reiterate that this Court is bound by this Court’s interpretation of the identical 

definition of “bodily injury” as set forth in Zerr. 

Evans did not pay additional premiums for “illusory coverage,” but 

instead chose to pay additional premiums for the option of “Increased medical 

expenses,” which raised Travelers’ limit of liability to provide coverage for the 

insured’s “bodily injury” from $5,000 to $100,000. Endorsement, at 2. It is 

inconsequential that Evans chose to pay for such Added Party Benefits, as it 
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did not relieve Evans of the requirement that she show that she sustained 

“bodily injury” in her motor vehicle accident, which we have addressed above. 

Evans does not develop any argument to support her claim that the payment 

of additional premiums allowed her access to coverage for psychiatric 

treatment that was unavailable otherwise.

However, in light of our previous discussion, we find that a genuine issue 

of material fact exists as to whether Evans’ PTSD resulted from her bodily 

harm that she sustained in the motor vehicle accident at issue. As this issue 

can be explored further on remand, we conclude that the trial court erred in 

granting summary judgment in favor of Travelers. We reverse the trial court’s 

order granting summary judgment in favor of Travelers and remand for further 

proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/19