Karl E. Kimsey v. National Automotive Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-856

KARL E. KIMSEY

VERSUS

NATIONAL AUTOMOTIVE INSURANCE
COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2011-0102-A
HONORABLE MARTHA O’NEAL, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.

APPEAL DISMISSED. MOTION TO CONVERT APPEAL TO A
SUPERVISORY WRIT APPLICATION DENIED. REMANDED.

R. Scott Iles
Post Office Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Karl E. Kimsey

Allen J. Mitchell, II
Mitchell & Blanco, LLC
One Lakeshore Drive, Suite 1495
Lake Charles, LA 70629
(337) 436-8686
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

Brent N. Carriere
Allen & Gooch
Post Office Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANT/APPELLEE:
National Automotive Insurance Company

AMY, Judge.

The plaintiff alleged injury to his knee following an automobile accident.

Although the plaintiff’s insurer provided some medical treatment for the knee

injury, it denied a recommended knee reconstruction. Thereafter, the plaintiff filed

suit against his insurer as well as the driver of the other vehicle and the defendant

driver’s insurer. The trial court found in favor of the plaintiff, awarding lost wages

and ordering the plaintiff’s insurer to provide knee surgery within a year if pursued

by the plaintiff. The trial court also awarded loss of future earnings in the event

the plaintiff pursued surgery. Although the plaintiff appeals, and upon a finding

that the ruling under review is not a final appealable judgment, we dismiss the

appeal and the insurer’s answer. We further deny the plaintiff’s request that this

matter be converted to an application for supervisory writ. We remand this matter

for further proceedings.

Factual and Procedural Background

The plaintiff, Karl E. Kimsey, alleges that he sustained left knee injury in an

automobile accident on February 3, 2010. At the time of the accident, Mr. Kimsey

was seventeen years of age and was driving a vehicle owned by his father. The

vehicle was insured by State Farm Mutual Automobile Insurance Company. The

pertinent policy included, not only liability and medical payments coverage, but

$50,000.00 in uninsured-economic only coverage as well. The other vehicle in the

accident was driven by Terry Dickens and owned by Mr. Dickens’s brother. That

vehicle was insured by a $10,000.00 policy issued by National Automobile

Insurance Company (NAIC).

Mr. Kimsey reported that following the accident, he began experiencing left

knee pain. He ultimately began treatment with Dr. John Park, an orthopedic

surgeon, for a partial ACL tear of the left knee. That treatment included physical

therapy and, eventually, an arthroscopic procedure to better balance the kneecap.

The testimony indicated that Mr. Kimsey did not return to work during his period

of rehabilitation after the arthroscopic surgery and that, upon his return, he was

subject to certain physical limitations. Although Mr. Kimsey indicated that he

would like to have a knee reconstruction, as recommended by Dr. Park, he was

unable to afford the surgery.

Mr. Kimsey filed the present matter, naming Mr. Dickens, State Farm, and

NAIC as defendants. State Farm thereafter filed a cross-claim, asserting a

subrogation claim for sums paid under its policy. Prior to trial, Mr. Kimsey

stipulated that his damages did not exceed $50,000.00. By the time of the resulting

bench trial, State Farm continued to contest its responsibility for the left knee

reconstruction recommended by Dr. Park. State Farm further contested Mr.

Kimsey’s claim for future loss of earning capacity.

The trial court ruled in favor of Mr. Kimsey, awarding the plaintiff the limits

of the NAIC policy, less a sum previously tendered by NAIC to State Farm. The

trial court further ordered State Farm to pay past and present lost wages in the

amount of $3,850.00, reflecting Mr. Kimsey’s period of recovery following the

arthroscopic procedure performed by Dr. Park. Further, the trial court determined

that Mr. Kimsey was entitled to future medical expenses relating to the knee

reconstruction recommended by Dr. Park and estimated those expenses to be

approximately $34,602.00. It ordered the plaintiff’s expert in vocational

rehabilitation to facilitate the scheduling of that surgery and subsequent physical

therapy. The trial court ordered State Farm to approve any scheduled surgery

within one year and determined that State Farm’s associated responsibility was

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limited to the remaining balance of its uninsured economic only policy,

$36,400.00.

The trial court further ordered State Farm to pay loss of future earnings for a

specified time in the event that surgery was scheduled and for a contingent award

in the event surgery was not scheduled. In the event that Mr. Kimsey did not

undergo surgery within one year, the trial court determined that any party could

return to the court “to address whether or not these costs should be paid at a future

date or whether the obligation should be terminated.” The trial court awarded an

expert fee of $1,000.00 to the plaintiff’s vocational rehabilitation expert for his

services at trial.

As for State Farm’s cross claim, the trial court determined that its claim

against NAIC was extinguished by NAIC’s payment of its policy limits.

Additionally, the trial court granted State Farm’s claim against Mr. Dickens for the

payment of past lost wages. Finally, the trial court granted the claim against Mr.

Dickens for “any future amounts payable to Karl Kimsey or on his behalf for

medical services or treatment as a result of this Court’s ruling with regard to future

medicals.”

Mr. Kimsey appeals. State Farm answers the appeal, arguing that the award

of future medical expenses should be reversed.

Discussion

Final Judgment – Subject Matter Jurisdiction

Among other assignments, Mr. Kimsey objects to the trial court’s ruling

insofar as the trial court determined that he was entitled to the knee reconstruction

surgery recommended by Dr. Parks, but that the trial court did not award monetary

costs associated with surgery. Instead, the trial court ordered Mr. Kimsey’s

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vocational rehabilitation expert, Mr. Hebert, to facilitate the scheduling of surgery

with certain area physicians. In turn, the trial court ordered State Farm to approve

the surgery in the event that surgery was scheduled within one year and that if the

plaintiff failed to do so within one year, “any party may return to this Honorable

Court to address whether or not these costs should be paid at a future date or

whether the obligation for payment of same should be terminated.” Mr. Kimsey

challenges the award insofar as it orders Mr. Hebert, a third party, to facilitate the

surgery and, further, did not make a specific monetary award. In its answer, State

Farm asserts that the trial court’s hesitancy to award specific monetary damages

reveals a lack of evidence regarding the necessity of the surgery.

We do not reach the merits of the parties’ objections to the trial court’s

ruling in this respect. Instead, as is evident from the parameters of plaintiff’s

assignment of error in which he challenges the judgment’s specific performance by

the insurer and lack of a monetary award, the court’s ruling does not constitute a

final appealable judgment. Certainly, and although indirectly raised by the

plaintiff’s assignment of error, an appellate court has an independent duty to

consider whether it has subject matter jurisdiction over the matter. Brooks v.

Sibille, 12-1093, 12-1094 (La.App. 3 Cir. 1/30/13), 107 So.3d 826 (quoting Gaten

v. Tangipahoa Parish. Sch. Sys., 11-1133 (La.App. 1 Cir. 3/23/12), 91 So.3d

1073).

With regard to an appeal, La.Code Civ.P. art. 2083(A) provides that “[a]

final judgment is appealable in all causes in which appeals are given by law . . . .”

“An interlocutory judgment[,]” however, “is appealable only when expressly

provided by law.” La.Code Civ.P. art. 2083(C). In consideration of whether a

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ruling is a final or interlocutory judgment, and therefore important to the question

of whether a ruling is suitable for appeal, La.Code Civ.P. art. 1841 provides that:

A judgment is the determination of the rights of the parties in
an action and may award any relief to which the parties are entitled. It
may be interlocutory or final.

A judgment that does not determine the merits but only
preliminary matters in the course of the action is an interlocutory
judgment.

A judgment that determines the merits in whole or in part is a
final judgment.

Additionally, La.Code Civ.P. art. 1918 provides that: “A final judgment

shall be identified as such by appropriate language.” Such a judgment must be

precise, definite and certain. Elston v. Montgomery, 46,262 (La.App. 2 Cir.

5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/11), 69 So.3d 1165.

Further, in Elston, the second circuit referenced supreme court jurisprudence

indicating that a final judgment, rendered upon a money demand, must indicate the

amount of recovery with certainty and precision. Id. (quoting Fontelieu v.

Fontelieu, 116 La. 866, 41 So. 120 (1906)). Importantly, if the amount must be

determined by a future contingency or ascertained by extrinsic reference (or is

otherwise indefinite and uncertain), it is not a proper judgment. Id. See also

Vanderbrook v. Coachmen Indus., Inc., 01-0809 (La.App. 1 Cir. 5/10/02), 818

So.2d 906.

In this case, it is clear that the trial court’s ruling is not final as it is

conditional and determined by the future contingency of Mr. Kimsey scheduling

surgery within one year. Further, and although the trial court recognized the

quantum of future medical expenses proven, the trial court’s judgment did not cast

the defendant(s) in judgment for that figure. See Elston, 70 So.3d 824. In short,

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the award of the claimed future medical expenses, and the related loss of future

earnings, was not awarded with certainty and precision. Id. Rather, the award was

indefinite, conditional, and would only become payable upon the plaintiff’s further

action. That indefinite quality is further evident from the judgment’s indication

that, if the surgery is not scheduled “within one year of the Court’s Judgment,

becoming final any party may return to this Honorable Court to address whether or

not these costs should be paid at a future date or whether the obligation for

payment of same should be terminated.”1

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The equivocalness of the trial court’s award of future medical expenses and loss of
earnings is apparent from consideration of the judgment in its totality. The judgment provides as
follows:

The above captioned matter came before the Court [for] bench trial on August 22,
2012. Written reasons for Judgment were issued by the Court on October 19, 2012, and
Amended Reasons for Judgment were issued on November 26, 2012. The Court finds in
favor of Karl Kimsey and against Terry Dickens on the issue of liability. Furthermore,
the orders of the Court are as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor
of Karl Kimsey and against Terry Dickens and National Automotive Insurance Company
in the amount of $9,058.16, together with judicial interest from the date of demand until
paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be an
award in favor of Karl Kimsey for past and present lost wages in the amount of $3,850.00.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that future medical
expenses be awarded to Karl Kimsey in the form of directing the plaintiff’s expert
witness, Glenn M. Hebert, to facilitate knee surgery and post-operative physical therapy
which the Court has approximated at $34,602.00. Mr. Hebert is directed to schedule the
surgery by a physician of the plaintiff’s choosing in the Alexandria, Lake Charles or
Lafayette area, without cost to the defendants.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant,
State Farm Mutual Automobile Insurance Company, is to approve the surgery scheduled
by Mr. Hebert without fail, provided that the surgery is scheduled within one year of the
Court’s ruling becoming final. State Farm Mutual Automobile Insurance Company’s
exposure and responsibility for payment for the surgery or associated costs is limited to
the remaining balance of its UEO policy limits of $36,400.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if surgery is
scheduled and performed within the time frame directed by the Court, Karl Kimsey is
awarded the sum of $300.00 per week during his recovery for a maximum period of
thirty-six (36) weeks. Alternatively, in the event that the surgery is not scheduled, Karl

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In light of the conditional and uncertain nature of the judgment, we find that

subject matter jurisdiction is lacking for consideration of this matter as an appeal.

Therefore, we find it appropriate to dismiss the appeal and remand for further

proceedings. We do so below.

We further observe, here, that at the oral argument conducted in this matter,

the plaintiff requested that this court consider the matter under its supervisory

jurisdiction in the event the panel concludes that the ruling presented is not a final

judgment. See La.Const. art. 5, § 10(A)(providing that a court of appeal has

“supervisory jurisdiction over cases which arise within its circuit.”). Subsequent to

oral argument, the plaintiff filed a “Motion to Convert Appeal to a Supervisory

Writ Application in the Alternative.” Given the nature of the plaintiff’s motion to

Kimsey is to receive $50.00 per week for a period of eight (8) weeks to be paid by State
Farm Mutual Automobile Insurance Company.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if Karl Kimsey
fails to schedule and complete the surgery within one year of the Court’s Judgment,
becoming final any party may return to this Honorable Court to address whether or not
these costs should be paid at a future date or whether the obligation for payment of same
should be terminated.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert fee
of Glenn M. Hebert is set at $1,000.00 for his trial testimony.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cross claim
by State Farm Mutual Automobile Insurance Company against National Automobile
Insurance Company is resolved by National Automobile Insurance Company’s payment
of the balance of its policy limits to plaintiff, thus exhausting National Automobile
Insurance Company’s total obligations to all claimants.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Judgment on
the Cross Claim is granted in favor of State Farm Mutual Automobile Insurance
Company against Terry Dickens in the amount of $7,450 which reflects prior and future
payment to Karl Kimsey for past lost wages. Judgment is furthered [sic] granted in favor
of State Farm Mutual Automobile Insurance Company against Terry Dickens for any
future amounts made payable to Karl Kimsey or on his behalf for medical services or
treatment as a result of this Court’s ruling with regard to future medicals.

IT IS FINALLY ORDERED, ADJUDGED AND DECREED that court costs be
evenly assessed against the defendants, National Automotive Insurance Company and
State Farm Mutual Automobile Insurance Company.

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convert the appeal into an application for supervisory writ, it is apparent that the

traditional formalities associated with such an application have not been satisfied.

La.Code Civ.P. art. 2201; Uniform Rules—Courts of Appeal, Rule 4-1, et seq.

(providing, in part that: “An application for writs of any kind . . . shall not be

considered by the court or any judge of the court unless it is properly filed with the

clerk.”).

Notwithstanding that lack of formal procedure, and although it is otherwise

within the discretion of an appellate court to convert an appeal to an application for

supervisory writ, we do not exercise that discretion in this instance. See Stelluto v.

Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34. Importantly, an appellate court will

generally refrain from the exercise of its supervisory jurisdiction when an adequate

remedy exists by appeal. Thomas v. Lafayette Par. Sch. System, 13-91 (La.App. 3

Cir. 3/6/13), _ So.3d _. In this instance, an adequate remedy by appeal will exist

upon the entry of a precise, definite and certain judgment, one that denies or grants

relief without the presence of contingencies as referenced above.

For these reasons, we dismiss the defendant’s appeal and further deny the

motion to convert the appeal to an application for supervisory writ. We remand for

further proceedings.

DECREE

For the foregoing reasons, we dismiss the appeal of the plaintiff, Karl

Kimsey, as well as the related answer filed by the defendant, State Farm Mutual

Automobile Insurance Company. Additionally, we deny the plaintiff’s motion to

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convert appeal to a supervisory writ application. We remand this matter for further

proceedings.

APPEAL DISMISSED. MOTION TO CONVERT APPEAL TO A
SUPERVISORY WRIT APPLICATION DENIED. REMANDED.

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