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Kaminsky v. Sebile9/5/2000
Appeal by defendant from judgment entered 9 March 1999 and order entered 21 April 1999 by Judge Ronald L. Stephens in Cumberland County Superior Court. Heard in the Court of Appeals 19 May 2000.
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, --- N.C. App. ---, 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).
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