Cansler v. Harrington

• Decision Date: 03 April 1982
• Docket Number: No. 52160,52160
• Citation: 643 P.2d 110,231 Kan. 66
• Parties: Bonnie S. CANSLER, Appellee, v. Allen D. HARRINGTON, and Dennis W. Bartkoski, Appellants.
• Court: Kansas Supreme Court

Page 110

643 P.2d 110

231 Kan. 66

Bonnie S. CANSLER, Appellee, v. Allen D. HARRINGTON, and Dennis W. Bartkoski, Appellants.

No. 52160.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. In a timely filed action for non-pecuniary loss arising out of an automobile accident, the $500 medical treatment threshold in K.S.A. 40-3117 must be met by the date of trial.

2. The decision to allow a party to reopen a case after having rested is within the sound discretion of the trial court and will not be reversed in the absence of a showing of abuse.

3. In establishing the $500 medical treatment threshold under K.S.A. 40-3117, the reasonableness and necessity of medical bills are questions for the jury.

4. A garnishee may stay a garnishment action against it by posting a supersedeas bond in the amount of its liability plus costs and interest.

Barry W. McCormick, of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellants.

Charles D. Kugler, of Kugler & Dickerson, Kansas City, argued the cause and was on the brief for appellee.

HERD, Justice:

This is an action for damages arising out of a May 31, 1974, automobile-truck collision between Bonnie S. Cansler, appellee, and appellant, Dennis Bartkoski. Allen Harrington, owner of the truck, was joined as a party defendant-appellant. At trial in February, 1980, appellee obtained a $25,000 judgment against Bartkoski, who appeals after denial of his motion for a new trial. Appellee obtained an order of garnishment against Bartkoski's insurance carrier, Farmers Insurance Company, in the absence of a stay. Farmers appeals that order.

The first issue on appeal is whether the threshold requirement of $500 medical treatment expense provided for in K.S.A. 40-3117 must be met within the period for filing actions under the statute of limitations in order for appellee to recover non-pecuniary losses. K.S.A. 40-3117 states:

"In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least five hundred dollars ($500). Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different than the amount actually charged shall be admissible in all actions to which this subsection applies."

Appellant relies on Key v. Clegg, 4 Kan.App.2d 267, 604 P.2d 1212 (1980). There, unlike the present case, the trial was held within the two-year period of limitation. In holding the plaintiff had to have accrued medical treatment of $500 or more by date of trial to meet the threshold, the court stated:

"Without restating the well-settled rules of statutory construction, when the applicable rules are applied we are convinced it was the legislature's intent when it drafted 1978 Supp. 40-3117 that the monetary threshold must be met not later than the date of trial or the date the cause of action is barred by the statute of limitations, whichever first occurs." p. 273.

In the present case the trial court in examining the pertinent language from Key v. Clegg observed:

"If one construes the language 'or the date the cause of action is barred by the statute of limitations,' to be equivalent to the language, 'or the date the cause of action would have been barred by the statute of limitations,' a serious problem would indeed have visited this case. As it is, no statute of limitations ever ran against plaintiff's cause of action, her remedy did not change nor did the theory of her case, and the only result of continued medical expense was to alter the ultimate measure of damages."

The trial court interpreted the language in Key to mean the date the cause of action is actually barred controls; thus, if the case is filed within the limitations period the statute of limitations becomes irrelevant, leaving only the requirement that the threshold amount be met before the date of trial. If the case is not filed within the limitation period, the entire cause of action is barred. In effect the trial court adopted the trial date as the controlling date for meeting the threshold damage issue.

We think the trial court's reasoning is sound and consistent with Key v. Clegg. Further, Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (1978), the case relied on in Key, consistently refers to plaintiff meeting the threshold amount by the time of trial. 159 N.J.Super. at 356-57, 388 A.2d 239. One of the purposes of the automobile injury reparations act is to limit actions for losses from pain and suffering to those actions where "the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more ...." K.S.A. 40-3117. See Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974); Dinesen v. Towle, 3 Kan.App.2d 505, 507, 597 P.2d 264, rev. denied 226 Kan. 792 (1979). Key accomplishes that purpose. We so hold. Appellant's first issue is without merit.

Next appellant urges the trial court erred in permitting appellee to reopen her case and offer documentary evidence of medical expenses. At the conclusion of appellee's case in chief, appellant moved for a directed verdict because appellee had failed to offer evidence of medical treatment reaching the threshold amount under K.S.A. 40-3117. Up to that time appellee had offered evidence of total medical bills of only $431. Upon appellee's motion for leave to reopen which was sustained, she introduced appellee's exhibits 8, 10, 11 and 12 which showed additional medical treatment in the amount of $714.84.

The parties agreed the decision to allow a party to reopen a case after having rested is within the sound discretion of the trial court and will not be reversed in the absence of a showing of abuse. Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 (1974). Here, there is no showing of abuse. Appellant's real argument lies in his claim it was error to admit the exhibits without having laid a proper foundation as to the reasonableness or necessity for the treatment. In Anderson v. Berg, 202 Kan. 659, 661, 451 P.2d 248 (1969), we held:

"The fact that a case is reopened for admission of additional evidence in the form of an exhibit furnishes no basis for the abandonment of the necessary preliminary proof to make it admissible."

The issue, then, is what sort of foundation evidence is necessary preliminary to the admission of medical bills offered to prove the threshold amount under K.S.A. 40-3117. This issue has not been specifically addressed in Kansas. In Key v. Clegg, 4 Kan.App.2d at 274, 604 P.2d 1212, the Court of Appeals touched on the problem:

"It is not mandatory that the services be recoverable as damages for the plaintiff to include the reasonable value of them in order to meet the monetary threshold requirement. Plaintiff was not required to prove accrued recoverable damages of $500 or more; he was only required to prove that he had received medical treatment with a value of at least $500 ...."

This statement of the court, however, is not extremely helpful on the issue we are addressing. It is axiomatic that a foundation must be laid establishing the competency, materiality and relevancy of all evidence prior to admission. Here, however, appellant urges no evidence of reasonableness or necessity of the medical bills was offered. An examination of the record shows appellee testified voluntarily and in detail about her injuries, hospitalization and the doctors she saw as a result of the accident. She discussed bills for medical treatment of injuries resulting from the accident. She merely overlooked offering the identified exhibits prior to resting her case. Appellant's argument essentially is that the admitted exhibits were not relevant because there was no showing of reasonableness and necessity. Relevant evidence is statutorily defined as evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b ). Unless provided otherwise, all relevant evidence is admissible. K.S.A. 60-407(f ). Here the exhibits clearly tended to prove the threshold amount had been met. As such, the evidence was properly admitted. The questions of reasonableness and need for the medical care were questions for the jury which they resolved by finding appellee had proven her medical care exceeded the threshold amount of $500. The appellee, Dr. Brooks and Dr. Whitehead all testified the appellee's treatment was needed, supporting the jury's verdict. It is presumed in a case such as this a doctor's charge is reasonable. See D. Bolin v. Grider, 580 S.W.2d 490 (Ky.1979). Appellant has the right to challenge the reasonableness of the charges, which he did with vigor. The jury believed ...