Kimsey v. National Automotive Insurance Co.
153 So. 3d 1035
La. Ct. App.2014Background
- On Feb. 3, 2010, 17-year-old Karl Kimsey injured his left knee in an automobile collision while driving his father’s insured vehicle (State Farm). The other driver was Terry Dickens; that vehicle was insured by National Automotive Insurance Company (NAIC).
- Kimsey treated with Dr. John Park for a partial ACL tear, underwent arthroscopy, missed work during recovery, and continued to have physical limitations. Dr. Park recommended knee reconstruction that Kimsey could not afford.
- Kimsey sued Dickens, State Farm, and NAIC; he stipulated pretrial that his total damages did not exceed $50,000. State Farm filed a cross-claim asserting subrogation against NAIC and Dickens.
- The trial court found for Kimsey, entered judgments for past lost wages and NAIC policy limits, and determined future medicals (approx. $34,602) for the recommended knee reconstruction but did not cast a definite monetary award—rather it ordered the plaintiff’s vocational expert to facilitate scheduling, required State Farm to approve surgery if scheduled within one year, and limited State Farm’s exposure to remaining UEO limits.
- The court also provided contingent awards for loss of future earnings if surgery occurred (or an alternative lesser award if surgery was not scheduled) and permitted any party to return to court if surgery was not scheduled within one year.
- Kimsey appealed; State Farm answered. The court of appeal dismissed the appeal for lack of subject-matter jurisdiction and denied Kimsey’s request to convert the appeal into a supervisory-writ application, then remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial judgment awarding future medicals and contingent loss-of-earnings is a final, appealable judgment | Kimsey argued the court’s order directing surgery and future payments is enforceable and appealable; he challenged lack of a specific monetary award and the court’s direction to a third party to schedule surgery | State Farm argued the trial court lacked sufficient evidence to award future medicals and that the order was conditional and not a definite monetary judgment | The court held the judgment was conditional/indefinite (contingent on scheduling surgery within one year) and therefore not a final, appealable judgment; appeal dismissed for lack of subject-matter jurisdiction |
| Whether the appellate court should convert the appeal into a supervisory-writ application | Kimsey asked conversion to supervisory writ if the panel found no final judgment | State Farm opposed conversion (and noted procedural defects) | The court declined to exercise supervisory jurisdiction and denied the motion to convert, noting procedural formalities were not met and an adequate remedy by appeal will exist after entry of a precise final judgment |
| Whether State Farm’s cross-claim/subrogation against NAIC remained | N/A (procedural/subrogation posture) | State Farm argued subrogation entitlement for sums it paid | The trial court’s finding that NAIC’s payment exhausted its obligations extinguished State Farm’s cross-claim against NAIC; the appellate court did not disturb that disposition in this decision |
| Whether the trial court properly awarded contingent expert fee and allocation of costs | N/A | N/A | The court left in place the award of a $1,000 expert fee and assessment of court costs against NAIC and State Farm; these ministerial portions did not render the judgment final given the conditional medical award |
Key Cases Cited
- Brooks v. Sibille, 107 So.3d 826 (La. Ct. App. 2013) (appellate court’s independent duty to consider subject-matter jurisdiction)
- Gaten v. Tangipahoa Parish Sch. Sys., 91 So.3d 1073 (La. Ct. App. 2012) (jurisdictional review by appellate court)
- Elston v. Montgomery, 70 So.3d 824 (La. Ct. App. 2011) (final judgment on a money demand must be precise and certain)
- Vanderbrook v. Coachmen Indus., Inc., 818 So.2d 906 (La. Ct. App. 2002) (a judgment that requires future contingency or extrinsic ascertainment is not final)
- Fontelieu v. Fontelieu, 41 So. 120 (La. 1906) (historical rule that money judgments must state amount with certainty)
- Stelluto v. Stelluto, 914 So.2d 34 (La. 2005) (standard for appellate courts’ exercise of supervisory jurisdiction)
- Thomas v. Lafayette Parish Sch. Sys., 128 So.3d 1055 (La. Ct. App. 2013) (appellate court generally refrains from supervisory review when adequate appellate remedy exists)