*1
action,
grants
from the
summary judg-
and
remaining
ment
favor of
DOTSON,
five defendants
Representa-
Wanda
Personal
plaintiffs’
except
on all of
claims
Roberts,
the fraud
deceased,
tive of Alfred
and
claim, is not a final
order.
In a multi-
Dotson, guardian Mary
Wanda
Rob-
case,
party, multi-claim
an order
which dis-
Mary
Roberts,
erts
Hoover
a/k/a
misses fewer than all of the defendants
incompetent person, Appellants,
not a final order
expressly
unless
order
v.
just
determines that there is no
reason for
RAINBOLT; Liberty
H.E.
State
delay
expressly
filing
directs the
of a
Bank, Inc.,
corporation;
judgment. 12 O.S.1991 1006. The case
§
al., Appellees.
et
Dickerson,
(Okl.
of Davis v.
Steve HANDY and Susan Handy, Appellees, LAWTON, Municipal The CITY OF ORDER Corporation, Appellant. 16, 1992, judge On June the trial filed an No. 74064. order, dismissing two seven defendants action, entering summary from the Supreme Court of Oklahoma. remaining favor defen- July plaintiffs’ except dants on all of claims plaintiffs’ Appellants brought fraud claim. appeal appellees
this filed motions to
dismiss.
Appellees’ grant- motions to dismiss are appeal
ed and prema- this is dismissed as
ture. The June 1992 order of the dis- court,
trict which dismisses two defendants *2 Lampkin, McCaffrey summary judgment arguing & Tawwater moved for Bob Behlen, City, appellees. Oklahoma at the time incident Grzeskiewicz acting scope was not within the of his Cruz, Lawton, Atty., Felix A.D. employment. granted The trial court appellant. motion. *3 HODGES, Vice Chief Justice. Handy appealed ruling. the trial court’s case The threshold issue in this is wheth- Appeals, 2, The Court of in Division er, appeal, Ap- on a second the Court of unpublished opinion summary vacated the peals in was bound its decision the first judgment finding dispute that a material of appeal. answer in the affirmative. Af- We facts and existed remanded' the case granted summary ter the district court (Handy I). petition No for certiorari was defendants, judgment in favor of the the filed and the of the of Ap- decision Court plaintiff appealed. Appeals, The of Court 2, peals, Division became final. summary judgment Division vacated the voluntarily Grzeskiewicz was dismissed and the remanded case. After the time from the lawsuit. The case tried to a was lapsed filing petition certiorari, jury. evidence, Handys’ At the of end the that became After a jury decision final. City’s as to improper demurrer the issue trial, appealed the was case second time. hiring, training supervising and of Grzesk- appeal, On the second Court Ap- the City’s iewicz was sustained. But the de- peals, decision Division rendered a incon- respondeat supe- murrer as to the issue of appeal. sistent with the decision in first the rior was overruled. At the conclusion of 2, 1986, April On the afternoon of Steve trial, City’s the motion for directed verdict Handy, (Handy), standing the was respondeat superior on the issue of was yard in Handy his front with his brother. jury overruled. The returned a verdict in police City Lawton, was a officer for the Handy. favor of both and Steve Susan The (City). duty defendant He was not on at City judgment moved for notwithstand- Grzeskiewicz, Gary the time. also an offi- ing the or a new verdict trial. The motions City, cer patrol with the arrived in his car were denied. at his residence across the street from the The City appealed the denial of the de- Handy got residence. Grzeskiewicz out of murrer, verdict, the jury’s the denial of the his car and went his house. Remember- verdict, motion for directed the and denial ing forgotten that had his keys, he house of the motion for notwithstand- way he went outside. get back On the ing the verdict and for a trial. new The car, keys his of the and Handy out he Appeals, Court of Division reversed the time, exchanged quips. At that Grzeskiew- jury’s verdict found and that Grzeskiewicz weapon icz drew it in the his waved air. scope was acting within the of his returning gun While was Grzeskiewicz employment when incident occurred holster, discharged striking to the Handy II). (Handy Division determined that the right side of his face. This incident trial court when it City’s erred denied the p.m. 2:57 occurred at Grzeskiewicz’s shift motions for a demurrer and for directed ended at three o’clock. verdict. It reversed trial court’s order Handy hospital. taken was to the He denying motion for new trial and light duty returned to about a month after jury entered on the verdict. In early August, Handy incident. re- Handys filed Petition for Certiorari duty turned to full status. arguing Appeals, Court of Division wife, Susan, his Handy filed suit against l’s reversal was of the case law against City and the Grzeskiewicz Law- opinion established Division 2’s find- alleging City ton of Lawton failed ing summary judgment improper. hire, supervise properly train and employees demurrer nor city was liable on “Neither to evidence respondeat theory superior based on motion for directed be sus verdict.should negligence. tained is an Grzeskiewicz’s unless there entire absence of proof any right Express Culp, show recover.” See Mistletoe Service v. Co., (Okla.1960). According v. Meadow Gold P.2d to the Fletcher (Okla.1970). Both a demurrer and City, Appeals decision for a verdict should be a motion directed Handy entirely upon was based dispute there is a material denied “scope employment” prong. minds could differ.
fact or when reasonable evidentiary that neither the mate- contends applied thé This is same standard to a Id. support summary rials submitted summary judgment. See Roach motion reversal, judgment, any or its trial evi- Co., Ins. v. Atlas genuine dence raises a issue of material Life (Okla.1989). reversing In the district concerning prong. fact the second summary judgment in this grant court’s Appeals Handy I must Court of case, of Appeals Division of the Court *4 prongs have both of the rule considered dispute of fact implicitly found material quoted because it that an standard that reasonable minds could differ on and employer is for harm inflicted while liable presented. Id. the facts See agent acting “scope is within the of presented The trial evidence at employment” act and the is an incident substantially as was the same the facts employee’s principal. to Be- service summary argued judg in the motion for Appeals summary cause the found Court If minds could differ ment. reasonable on improper the issue of presented facts on when those were sum City’s liability, necessarily found that judgment, mary then reasonable minds genuine there were issues of fact as to the could differ when the same facts were prong. as prong, second as well the first presented at trial. appellate An court’s settles decision Stores, syllabus Safeway In the Inc. determines, only actu questions and not all Fuller, 193 Okla. in ally presented, questions existing all but stated, (1943), “The on this Court decision by the record and involved in the decision is case’ in all appeal first ‘law of the subse- Medlock, 201 implication. Jones v. quent stages, ordinarily and not will (Okla.1948). P.2d 212 When Okla. appeal, where facts are reviewed on-second Handy brought, I all of the facts about was substantially the Division same.” 2’s deci- employment scope both the of the officer’s people could differ on sion that reasonable for out his requirements carrying and the evidentiary in material the facts de duties known or could have were been summary judg- in the for presented motion sufficiency veloped. those same The case ment law of the and that became Ap facts were determined the Court not thereafter. The issue was reviewable ques peals Handy I and not be substantially presented trial were facts subsequent appeal. tioned on in the presented as those motion the same judgment. summary Division 2’s deci- were assume that if we Even finding binding fact was dispute of sion doctrine, the deci under the law-of-the-case subsequent ap- trial court on the not issue for Handy sion did bar the Therefore, Appeals, the Court of peals. subsequent litigation, ample evi there 1, erred it found that the Division jury to the requiring dence the submission granted the demur- trial court should have respondeat aspects of both of the test for motion for a directed rer and the verdict example, For the follow superior liability. a new trial. Division and remanded ing testimony supports the verdict: 2’s decision. was bound Division “on while was shooting occurred the officer police duty;” signed on his he had not off argues liability rests, radio; only not in uniform employee acts of not he was the tortious required to be carrying weapon but was proof employee’s action only upon that its the offi carry weapon; employment, his in uniform and scope was within scene; shooting squad at the was cer’s car was upon evidence act but also home squad take car required his he was his carrying means of out duties. done as a deterrence; part policy Overturff, of the of crime and the medical required respond upon to calls should be used to reduce the he was ended; request shift he re- even after his parties were not em- Overturff sponded shooting by calling po- to the ployer employee, pas- but a driver and board dispatcher; lice a firearms review case, senger in a car accident. In that complaints investigates of firearm mis- only obligated pay insurer was the dam- performing official use officers while ages that the legally defendant was obli- policy; this acts found him in violation of Therefore, gated pay. the insurance weapon was not an isolated occurrence of payments in provided were not Overturff officers; and an police misuse Lawton employee part as a benefit to an but as of the crime important component liability the defendant’s In insurance. presence of uniformed deterrence is the case, present obligation the insurer's Therefore, weapons. even if officers with contingent the medical bills was not on the apply doctrine did not law-of-the-case City’s liability. here, Appeals erred when it provides 61 of title 23 the mea- Section jury’s reversed the based on the verdict damages: sure presented n evidence at trial. For obligation the breach of an appealed also the trial contract, arising from the measure of *5 post-trial of the Motion for court’s denial damages, except where ex- otherwise Appeals, Remittitur. The Court Division pressly provided by chapter, this is the I, did not review this issue because it held compensate amount which will for all petition City. for the The for certiorari proximately thereby, detriment caused brought by Handys the did not address anticipated it whether could have been or issue of remittitur. Okla.Stat. tit. Under not. 3.15, app. petition ch. rule on In Hargis, Denco Bus Lines v. 229 P.2d certiorari, the be decided on the case will (Okla.1951), applied we this statute. In presented appeal. reviewable issues doing so we stated: presented The of remittitur was issue Upon commission a tort it is the appeal. duty wrongdoer of the to answer for the City employer The contends that as an it damages act, wrought by wrongful his has, benefit, fringe comprehensive, as and that is measured the whole loss group, plan. Handy’s self-insured health receipt compensa- so caused and the supports City’s contention be- brief injured party tion from a collat- bargaining cause stated the collective wholly independent eral source of the agreement City police and the between wrongdoer operate not does to lessen the provides group officers for a health insur- damages person recoverable from the program. City that, ance The asserts be- causing injury. payments Handy’s cause medical bills at 561. Id. fund, paid from this it is entitled to a were Inc., Burlington In Folkestad v. N. payments. credit of those (9th Cir.1987), F.2d the court principal The case relied on is employer’s addressed the issue of whether Overturff Hart, (Okla.1975), purchased may insurance benefits offset payments which the Court found that made liability and stated the courts were a defendant to a before trial determining factor was unanimous
could used to reduce the if the fund, purpose and nature of the money indepen- came from the defendant’s merely the source. If the fund is for Otherwise, fund. source dent collateral general hospital coverage upon and medical applies payments injured rule made to the may which the insured make a claim with- — party from other sources are not credited regard liability part out on the of the benefit, against liability. fringe The employer, policy tort-feasor’s is a part employee’s asserts that the insurance fund this case of the income. The col- prohibits is similar to the insurance fund used in lateral source rule a set-off of
«75 fund. Inso comprehensive the em- self-insurance thereunder received benefits (1) treats the credit However, as far as the court issue if the fund is viewed ployee. for remittitur” cognizable on a “motion employer to a fund to by the a contribution (2) pur made announces liability express provi- protect it insurance fund City-maintained, suant to bargaining states that in the collective sion source,31 are from a collateral recede from then the benefits is allowed set-off pronouncement today’s as well as from judgment. offset the I judgment. would hold that case, City admits that the In this pressed. quest prematurely credit was does not fringe benefit and insurance is plea presents post- nor Its neither a trial bargaining allows a that the collective state issue, that can be advanced trial but one benefit, fringe the insurance set-off. As a only adversary postjudgment pro in an Handy’s income and cannot part was a pro ceeding release and satisfaction The trial to offset the be used hence be tanto.4 should denying the motion for correct in court was prejudice to the credit affirmed remittitur. plea’s post-remand resolution in a adver opinion is vacated. Appeals’ sary proceeding. is affirmed. judgment of the trial court PREVIOUSLY GRANT- CERTIORARI ED; APPEALS’ OPINION COURT OF JUDG- THE DISTRICT COURT’S ANATOMY OF LITIGATION
VACATED;,, AFFIRMED. MENT plaintiff [Handy] police was a officer City]. He for the of Lawton was [the LAVENDER, HARGRAVE, ALMA duty gun another officer’s dis- off SUMMERS, JJ., WILSON, KAUGER and him. charged and wounded He sued concur. *6 bodily injury shooting from the City for CityA fund for reimbursement incident. OPALA, C.J., part, concurs in dissents paid Handy’s employee expenses health part. hospital expenses. doctor as well as his SIMMS, J., dissents. pay- these City sought The credit for OPALA, Justice, dissenting part. ments. Chief City initially raised the credit issue today “collateral The The court holds 1 pretrial stages to admit defendant-City, it moved in prevents the
source rule” Handy’s expenses medical securing evidence that employer, from qua plaintiff’s fund. paid by the insurance recovery judgment were credit on a tort for motion; urged he plaintiff opposed the expenses paid plaintiff the from its The rule, reducing bility, has the effect of re- it of course collateral source benefits 1. Under the any payments plaintiff liability. source other the that This is also true ceived quantum not reduce the policy than the will that is main- under an insurance made tortfeasor Okl., Manes, damages. Porter v. of recoverable defendant, made under whether tained Okl., 210, (1959); Huey Stephens, v. P.2d 212 347 regard liability provision or to lia- 254, (1954). Huey was overruled P.2d 257 275 bility, payments clause.” a medical as under Ginn, Hayward point v. of law in on a different Okl., [Emphasis added.] 320, (1957). P.2d 324 306 Okl., Inc., Enterprises, 744 P.2d v. Jett 4. Hart judicial means reduction of 2. “Remittitur" J., 561, (1987) concurring); (Opala, Lambert 563 voluntarily accepted as verdict 124, 225, Hill, 126-127 Okl. 73 P.2d v. 181 T. new trial. See Wellsv. Max an alternative to Co., (1937); Sneary Shepard 70 Okl. v. Nichols & 166, 488, Co., Morgan Okl. 236 P.2d 490 205 366, 133, (1918). For two recent P. 368 173 (1951). examples postconfirmation credit issue in Okl., 1035, Hart, setting, Nowata mortgage see Willisv. foreclosure v. 531 P.2d 1038 3. Overturff Okl., Co., (Second) (1975). 1285 Torts 789 P.2d See Restatement L and and Cattle (1990) (1977), Company Trust which states: Founders Bank and 920A comment § Okl., (1992); see also 63 Upsher, P.2d 1355 830 de- "Payments by If a tort or defendant. for payment OBJ 1048. toward his tort lia- fendant makes a 876 (b) sought from a lateral source rule and allowance
that
the insurance
were
5
upon
source.”
The court deferred
“collateral
of credit
The court
defen-
ruling on the issue. At trial
posttrial
ap-
all
denied
three
motions. On
sought
neither
admission of
evi-
dant
peal
City urged
the trial court
nor
tendered earlier
its motion
dence
by denying
erred
its “remittitur motion.”
voluntary
proof.6
offer of
made a
appellate
City
court
ruled for the
on
grounds
other
and found no need to reach
plaintiff,
jury
After a
verdict for
certiorari,
issue.
the issue
On
“remittitur,”7
new trial8
City
moved
re-presented.11
the court now
stands
Since
notwithstanding
the ver-
and for
prius
the nisi
reinstates
for the
City’s “remittitur mo-
dict
[JNOV].9
10
plaintiff,
plea
we must reach the credit
(a)
pay-
the medical
urged
tion”
exempt from the col-
Handy
ments for
are
review.12
judgment,
"collateral source
a conclusion in which I concur.
5. See
note 1 for the
properly
is hence
us.
The credit issue
before
rule’s" definition.
may argue
appellee
errors
result in
An
which
preserve
proof
required to
6. An offer of
judgment’s
appealing.
correctness without counter
excluding
error in
evidence.
review a court’s
Semrod, Okl.,
lk v.
351 P.2d
fo
Wool
Hendricks, Okl., 695 P.2d
See Braden v.
(1960);
745
see also Oklahoma Water Re
1349-(1985).
urge
did not
here the
Okl.,
County,
sources Bd. v. Texas
9. The terms of provide City argue appeal? the error on Does its O.S.1991 part: argument support pertinent prius nisi ad- reversal of the ruling? verse The credit issue meets this test. "When a motion for a directed verdict ... urged shall, the credit issue as an error on granted, have been the court should *7 argument appeal. supports Its reversal of the request moving party, judg- of the render ruling though prius even it is not the same nisi though a ment in his verdict has been favor him_ assigned by Appeals for its reason the Court of judg- against request for found decision. The record and are to (10) may days be filed within ten ment briefs sufficient after present City’s arguments. is rendered ... and the motion the verdict ... may cases, following aggrieved par- where the joined with a motion for new trial." be error, ty appeal to the claimed are [Emphasis mine.] failed today’s distinguishable from case in which the 10. A by party motion for new seeks remittitur appeal error was raised on and the victorious trial. against party appeal petition a on had to defend Anderson, Okl., P.2d certiorari: Bane v. 786 for 15, 3, 11. App. The terms of 12 O.S.1991 Ch. Rule J., 1230, (1990) concurring part (Opala, 1240 in 3.15, Rules on Practice and Procedure in the Reed, Okl., dissenting part); and in Price v. 725 Appeals of and on Certiorari to that (1986); Cleary Corp. P.2d rison, Petroleum v. Har- 1254 Court, provide pertinent part: in Okl., (1980); City 621 P.2d 534 petition for writ of certiorari "When Okl., Elmore, Frederick v. 587 P.2d 1370 Appeals of the Court of review a decision Teel, Okl., (1978) dissenting). (Opala, J. Teel v. granted, to that an order shall be entered (1988); Matter Estate 766 P.2d 999 The case will then be decided on the effect. Bradshaw, Okl., (1980); May P.2d presented issue or issues in the reviewable Okl., (1979). May, Also distin- 596 P.2d [Emphasis mine.] briefs theretofore filed....” guishable court are those cases in which the party 12. City urged appeal to review an issue that the who on that it is entitled to refused raise, e.g., petitioned certiorari credit for the medical benefits extended to failed for Co., correctly Handy. Mitchell v. Ford Motor Credit That issue became moot and Wade, Okl., (1984); by Appeals when Johnson v. left unaddressed the Court of (1982). judgment reinstate was reversed. We now
«77 case; City’s quest ii al in the for credit presented question dehors merits— QUEST PAY- THE CREDIT FOR CITY’S i.e., a credit claimed to be due on the MENT OF HANDY’S MEDICAL adjudged liability. Injection amount of A BILLS PRESENTS GENUINE proceedings into trial of the notion that the CREDIT-ON- POSTJUDGMENT paid City Handy’s or its insurance fund PLEA JUDGMENT hospital doctor as well might as the bills Although meaning we measure the and have been reversible error.17 Credit to be any paper effect of court-filed its con- given its medical author-provided tent rather than clearly to the tort victim is not invocable title,131 join today’s cannot in consideration both liability damages until have been settled City’s quest part of the credit of its an executable plea. Appellate “remittitur” failure Posttrial issues are those that procedural flag important an in- trial,18 flaw quest remittitur,19 in raised new practice puts sloppy legal vites or motion JNOV.20 “Remittitur” is not A clearer premium ambiguity.14 plea be confused with for credit on a understanding plea of the credit judgment; the former is an alternative to emerges plaintiff’s when the tort action is new trial and affordable to a be, divided, as it must into trichotomous in judicially the verdict his favor is declared (b) (a) trial, stages: posttrial but suggest excessive.21 The did not before (c) judgment becomes executable15 and support evidence does not the amount of postjudgment. reduction; jury’s verdict nor call for its rather, sought on a credit Trial issues deal with the merits of a yet passed had not stage. into executable controversy. The word “merits” has meaning. comprises solely technical It jurisprudence proper Oklahoma fashions grounds real or substantial claim prius procedure for consideration of nisi The term does not in- or postjudgment allowance.22 A rul- relief clude defense. practice, procedure quest and evidence.16 ing payments’ on a City’s liability quantum and the credit neither alters the terms the ver- damages quantum Handy’s raised the issues for tri- dict nor one’s modifies Willis, furnishing, offering promising supra or 13. note 4 at 1285 n. 9. “Evidence of medical, pay hospital expenses or similar Bane, supra (Opala, injury 14. 12 at J. con- note occasioned an is not admissible to curring part dissenting part). prove liability injury. We do for the by rescuing practitioners provide the Bar no favor The terms of 12 O.S.1991 consequences sloppy practice from the of their pertinent part: providing explanation why they liability of the existence of insur- "Evidence gone astray. upon negli- have issue of ance is not admissible gence wrongful [Emphasis action....” 15. A becomes executable when the mine.] Tidmore, for new trial is denied. See Rule motion note 16 *8 1.13(A), Appellate Rules Procedure in Civil supra 18. See note 8 for the terms of 12 O.S.1991 Cases, provides pertinent part: which 651, which define “new trial.” § shall “The effectiveness of ... suspended timely if a new trial motion stand 490, Wells,supra See note 2 at for the defini- 19. filed, judg- and the enforcement of such ... tion of “remittitur.” stayed days shall until ten ment after disposition of the court's motion....” trial supra 20. note for the terms of 12 See 9 O.S.1991 698, Okl., explain procedure. Co., which JNOV § 16. v. Shelter Mut. Ins. 731 P.2d Roark 389, (1987) (Opala, concurring); n. 2 J. Tid 390 490, Wells, Fullman, Okl., 1278, supra 2 at for the defini- 21. See note 646 more v. 1283 J., Crouch, (1982) dissenting); tion of "remittitur." (Opala, Flick v. Okl., 256, (1967). Kimery 434 P.2d 261 But cf. J., Hart, Oklahoma, Okl., (Opala, supra Company 22. See note 4 at 563 Public Service 562 126-127; Lambert, (1977). concurring); supra at note 4 P.2d 858 Willis, Sneary, supra also note 4 at 368. See supra supra Upsher, note 4. note 4 at 1285 and 17. The terms of 12 O.S.1991 2409 are: § 878
judgment. merely quan It plaintiff does not succeed in secur- defines upon ing tum that is the creditor’s due recovery pro double tanto.24 adjudicated I obligation23 would treat The collateral source applies, rule at its City’s prema “remittitur motion” as a maximum, when the tortfeasor claims cred attempt pro ture to secure credit tanto on money paid it for by the victim or yet recovery. an as unexecutable I would victim stranger. In that instance the accordingly press allow the “collateral,” source of the truly benefit is plea this cause’s remand. after i.e., unconnected to the tortfeasor. This
typically occurs when the tortfeasor claims money paid Ill the victim’s own policy.25 insurance payor Whenever the AFTER REMAND THE TRIAL COURT of claimed credit has no connection to the tortfeasor,
SHOULD CONDUCT AN ADVER-
the collateral source rule inter
SARY EVIDENTIARY HEARING TO poses
prevent
itself to
wrongdoer
from
SETTLE THE CREDIT-ON-JUDG-
benefiting from a “windfall.”26
MENT PLEA
jurisprudence
Extant
views as a collat
eral
every
source benefits from
The court
fund to
assumes that
the contested
which the victim has
payments
medical
were made
contributed.27 For
with
government
example, a
Handy’s
money.
rather than
tortfeasor
City’s
It
liability by
reduce its
par-
views
issue as settled because the
victim’s Social
Security28
plan
ties refer to the
medical
or Medicare29
as a
benefits. Funds
“fringe
programs
from
benefit” due under the
these
come
special
collective
from a
bargaining agreement.
pool
require
would
which the victim contributes. The
adversary
payment
the trial court to hold an
eviden-
is thus made from a “collateral
tiary hearing
i.e.,
and then rule on whether the
from a
clearly separate
fund
source” —
Handy’s
general
contest are
government
revenue. There
money
qualify
own
or will
for credit on the
is no
recovery
double
has
if
procedure
to,
This
would assure
paid for,
contributed
or is otherwise
Hart,
J.,
States,
1372,
supra
(Opala,
(10th
See
Cir.1977),
23.
note 4 at 563
ap-
549 F.2d
1379
Lambert,
126-127;
concurring);
supra note 4
plying
jurisprudence
Colorado law. Most extant
Sneary,
Willis,
supra note 4 at
also
rejects tracing as an undue burden. See Brad-
Upsher, supra
note 4 at 1285 and
note 4.
States,
759,
12,
shaw v. United
443 F.2d
765 n.
(D.C.Cir.1971);
States,
Smith v. United
recovery"
represents
24. “Double
is the sum that
1013,
(3rd Cir.1978),
F.2d
applying
Penn-
more than the total maximum loss which a
sylvania law.
party
Co.,
Harper
has sustained. Briscoe v.
Oil
Okl.,
33,
(1985) (Summers,
702 P.2d
J. dis
States,
e.g., Jennings
28. See
v. United
F.2d
senting). See also Blake v. Delaware and Hud
880,
(4th Cir.1961), applying Maryland
887-888
204,
Railway
(2d
Company,
son
484 F.2d
benefits;
law to Civil Service Retirement Act
Cir.1973) (Friendly,
concurring),
Judge
J.
where
Price,
(4th
United States v.
288 F.2d
450-451
Friendly expressed
permitting
the view that
Cir.1961), applying Virginia law to Civil Service
plaintiff to recover from the railroad the bulk of
benefits;
Retirement Act
United States v.
hospital
previously paid by
his
the rail
bills—
Brooks,
(4th Cir.1949), apply-
176 F.2d
shockingly unjust
road—seems a
ery.
double recov
ing North Carolina law to National Service Life
provisions
He concluded that the
of 45
Cf.,
Insurance benefits.
Eichel v. New York
law, required
U.S.C.
not the common
this
Co.,
253, 254,
Central R.
375 U.S.
84 S.Ct.
result.
(1963)
curiam),
(per
tributed to the indirectly, prius then nisi refusal rectly or Keith HATCH Steve Steven a/k/a Lisenbee, for the Appellant, prohibi- against the not offend law’s would v. recovery.35 tion of double Oklahoma, Appellee. STATE of here, though I harsh The result counsel No. F-87-393. prolong would may appear because it contest, path fidelity the beaten traces with Appeals Criminal Oklahoma. long-established precedent. Fundamen- July process litigation cannot tal fairness except within a be framework of afforded law procedure. area of the orderly No exemption
may lay claim to short-cut or range
from the of its basic strictures —not process partial postjudgment
even the Chaos, caprice and satisfaction.
release pronouncements would inevita-
and ad hoc departure.
bly slightest follow
“ * * * procedure spells much It is lawby rule between difference
of and rule whim caprice. Steadfast procedural safe-
adherence strict
guards that there is our main assurance justice law. equal under
will be * * ”* 36 [Emphasis mine.] short, prema I allow the
In would not ruling on the credit issue prius
ture nisi postremand inquiry into the proper
bar a question of the medical benefits
status my rule. In
under the collateral source
view, City’s plea properly proceed post-affirmance
entertained in would, today,
ings. the court does judgment, would plaintiff’s but
affirm prejudice
remand this cause post-re plea's
the credit resolution in re adversary proceeding
mand to secure pro tanto.37
lease satisfaction supra note 4. of "dou- 37. See 35. See note 24 the definition recovery." ble Refugee Committee 36. Joint Anti-Fascist 624, 652, McGrath, 123, 179, 71 S.Ct. 341 U.S. J., (1951) (Douglas, concurring). L.Ed. 817