Kaminsky v. Sebile

• Decision Date: 05 September 2000
• Docket Number: No. COA99-1037.,COA99-1037.
• Citation: 140 NC App. 71,535 S.E.2d 109
• Court: North Carolina Court of Appeals
• Parties: Jarrett KAMINSKY and Susan Kaminsky, Plaintiff-Appellees, v. Alfred SEBILE, Defendant-Appellant.

535 S.E.2d 109

140 NC App. 71

Jarrett KAMINSKY and Susan Kaminsky, Plaintiff-Appellees, v. Alfred SEBILE, Defendant-Appellant.

No. COA99-1037.

Court of Appeals of North Carolina.

September 5, 2000.

Boose and Gurnee, by Michael C. Boose, Fayetteville, for plaintiff-appellee.

Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven C. Lawrence and Robert A. Hasty, Jr., Fayetteville, for defendant-appellant.

EDMUNDS, Judge.

Defendant Alfred Sebile appeals jury verdicts in favor of plaintiffs Jarrett and Susan Kaminsky. We find no error. Jarrett is the son of Susan and Randall Kaminsky, both of whom were active-duty military personnel with the United States Army at the time of the incident leading to this action. Defendant, a friend of Jarrett's father, was clearing land to build a house and farm, and Jarrett's father asked his son, who was then fourteen years old, if he would like to help. On 7 September 1993, while working with defendant at a hydraulic log-splitting machine, Jarrett's little finger on his left hand became trapped and was severed below the bottom joint. Jarrett received treatment first at Womack Army Hospital, then at Duke Medical Center.

Pursuant to 10 U.S.C.A. § 1072 (1998), Jarrett's injuries were covered by the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), because Jarrett was a dependent of members of the armed services. Accordingly, CHAMPUS paid most of the medical expenses resulting from Jarrett's injury.

Susan originally filed an action against defendant both individually and as the guardian ad litem of Jarrett, but later dismissed the case without prejudice. Thereafter, on 5 September 1996, the United States brought an action against defendant under the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C.A. §§ 2651-2653 (1994 & Supp.2000), to recover the "reasonable value of [ ] care and treatment" furnished to Jarrett. On 18 April 1997, the United States dismissed its claims against defendant with prejudice. The case at bar was filed on 5 June 1997 by Jarrett, who had then reached the age of majority, and Susan. Plaintiffs sought to recover for personal injuries and medical expenses.

When the case was called for trial on 8 February 1999, defendant filed and argued a motion in limine to preclude any evidence of medical bills incurred for the treatment and care of Jarrett. Defendant cited 10 U.S.C.A. §§ 1095 (1998, amended 1999), 2651 (1994, amended 1996) for the proposition that only the United States Government "incurred" medical expenses. Defendant also argued that the United States' dismissal with prejudice of its claim against defendant was res judicata as to any claim brought by Susan. The trial court denied defendant's motion.

The jury found in favor of plaintiffs and awarded Jarrett $35,000 in damages for personal injuries and Susan $29,000 in damages for medical expenses. The trial court entered judgment on 9 March 1999. On 15 March 1999, defendant filed a Motion for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial, which was denied by the trial court on 21 April 1999. Defendant appeals.

I.

Defendant assigns error to the trial court's denial of his motion in limine to exclude the medical bills for Jarrett's treatment. However, our appellate courts repeatedly have held that motions in limine are not appealable. See, e.g., State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999); Southern Furn. Hardware v. Branch Banking and Trust, 136 N.C.App. 695, 526 S.E.2d 197 (2000); Heatherly v. Industrial Health Council, 130 N.C.App. 616, 504 S.E.2d 102 (1998); T & T Development Co. v. Southern Nat. Bank of S.C., 125 N.C.App. 600, 481 S.E.2d 347 (1997). This assignment of error is overruled.

II.

Defendant's remaining assignments of error relate to the trial court's denial of his motion for judgment notwithstanding the verdict (JNOV). See N.C. Gen.Stat. § 1A-1, Rule 50 (1999). He argues, first, that the federal government had the exclusive right to recover from defendant, and second, that the United States' previous action and dismissal with prejudice is res judicata as to Susan's present claim. We will address these contentions seriatim.

In ruling on a motion for JNOV, "the [non-movants'] evidence must be taken as true and all the evidence must be viewed in the light most favorable to [them], giving [them] the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the [non-movants'] favor." Bryant v. Thalhimer Bros., Inc., 113 N.C.App. 1, 6, 437 S.E.2d 519, 522 (1993) (citation omitted). Our review of a denial of a motion for JNOV is "whether the evidence viewed in the light most favorable to [the non-movants] is sufficient to support the jury verdict." Suggs v. Norris, 88 N.C.App. 539, 543, 364 S.E.2d 159, 162 (1988) (citation omitted).

The FMCRA controls the nature of the United States' right to recover from a tortfeasor the reasonable value of the care and treatment furnished to an injured person. Section 2651 reads in pertinent part:

(a) Conditions; exceptions; persons liable; amount of recovery; subrogation; assignment

In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment ... to a person who is injured ... after the effective date of this Act, under circumstances creating a tort liability upon some third person ... to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished....

(b) Enforcement procedure; intervention; joinder of parties; State or Federal court proceedings

The United States may, to enforce such right, (1) intervene or join in any action or proceeding brought by the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors, against the third person who is liable for the injury or disease; or (2) if such action or proceeding is not commenced within six months after the first day in which care and treatment is furnished by the United States in connection with the injury or disease involved, institute and prosecute legal proceedings against the third person who is liable for the injury or disease, in a State or Federal court, either alone ... or in conjunction with the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors.

42 U.S.C.A. § 2651(a), (b) (1994). Additionally, the Act provides:

(b) Settlement, release and waiver of claims

... [T]he head of the department or agency of the United States concerned may (1) compromise, or settle and execute a release of, any claim which the United States has by virtue of the right established by section 2651 of this title; or (2) waive any such claim, in whole or in part, for the convenience of the Government, or if he determines that collection would result in undue hardship upon the person who suffered the injury ... resulting in care or treatment....

(c) Damages recoverable for personal injury unaffected

No action taken by the United States in connection with the rights afforded under this legislation shall operate to deny to the injured person the recovery for that portion of his damage not covered hereunder.

Id. § 2652(b), (c) (1994). The issue before us, calling for an interpretation of the Act, is one of first impression for the appellate courts of this state.

The cardinal principle of statutory construction is to ensure accomplishment of the legislative intent. See L.C. Williams Oil Co. v. NAFCO Capital Corp., 130 N.C.App. 286, 289, 502 S.E.2d 415, 417 (1998). Accordingly, we must consider "`the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.'" Hayes v. Fowler, 123 N.C.App. 400, 404-05, 473 S.E.2d 442, 445 (1996) (citation omitted). "When the language of a statute is clear and without ambiguity, `there is no room for judicial construction,' and the statute must be given effect in accordance with its plain and definite meaning." Avco Financial Services v. Isbell, 67 N.C.App. 341, 343, 312 S.E.2d 707, 708 (1984) (quoting Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)). However, if a literal reading of the statutory language "yields absurd results ... or contravenes clearly expressed legislative intent, `the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.'" Id. (quoting State v. Barksdale, 181 N.C. 621, 625, 107 S.E. 505, 507 (1921)).

In the case at bar, we are asked to interpret the FMCRA to determine whether an individual plaintiff may bring an action to recover medical expenses paid through CHAMPUS, or whether that right belongs exclusively to the United States. Because the act requiring interpretation is a federal act and thus is applicable throughout the nation, we begin with a review of other jurisdictions. The majority of jurisdictions that have considered the issue permit a similarly-situated individual plaintiff to assert a claim for medical expenses against a tortfeasor. See, e.g., Dempsey by and through Dempsey v. U.S., 32 F.3d 1490 (11th Cir.1994); Mays v. United States, 806 F.2d 976 (10th Cir. 1986); Kornegay v. U.S., 929 F.Supp. 219 (E.D.Va.1996); MacDonald v. U.S., 900 F.Supp. 483 (M.D.Ga.1995); Lozada for and on behalf of Lozada v. U.S., 140 F.R.D. 404 (D.Neb.1991); 1st of America Bank, Mid-Michigan, N.A. v. U.S., 752 F.Supp. 764 (E.D.Mich.1990); Kennedy v. U.S., 750 F.Supp. 206 (W.D.La.1990); Guyote v. Mississippi Valley Gas Co., 715 F.Supp. 778 (S.D...