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Smith v. Russell12/6/2002
Appeal dismissed.
A workers compensation insurer, which had been notified that a civil action had been filed by its insured against a tortfeasor, appeals the district court's denial of its motion to intervene in the civil action 5 months after the district court approved a settlement agreement between the insured and the tortfeasor. Three issues are raised: (1) Was the insurer's notice of appeal timely filed, and (2) did the district court err in denying (a) the insurer's motion to intervene and (b) the insurer's motion to vacate judgment?
On April 9, 1999, Richard Smith sustained injuries as the result of being struck by a pick-up truck driven by Zachary Russell. At the time of the accident, Smith, 83 years old, was employed and working as a school crossing guard for the City of Norton, Kansas. In addition to his employment with the city, Smith also supervised the weight room at the high school in the evenings and did seasonal yard work for additional income.
Smith filed a workers compensation claim and received benefits from EMC Insurance Companies (EMC), the City of Norton's workers compensation insurance provider, for injuries he sustained in the accident. On December 13, 1999, Smith filed a petition in Norton County District Court against Russell and Russell's father Chuck (the Russells) for the damages he sustained as result of the accident. The petition alleged damages in excess of $75,000. Smith's petition specifically referenced medical expenses of $5,000, loss of nearly half the use of his left arm, economic loss from his inability to work in his former vocations as crossing guard and weight room supervisor, and economic loss from other income-generating activities. EMC and the City of Norton were notified in writing of the filing of the action by Smith against the Russells on December 29, 1999. A copy of the petition accompanied the notice. EMC chose not to intervene.
On August 3, 2000, the parties to the civil action appeared in court for a hearing and requested that the district judge approve their settlement agreement. The following exhibits were admitted into evidence at the hearing: the accident report; the transcript of the deposition of one of Smith's treating physicians; diagrams illustrating the injury to Smith's left upper extremity and right knee; the medical evaluation performed by the defendants' expert; a projection of wage figures from Smith's employment in the weight room and from lawn mowing jobs; and jury verdict computer research showing a case value of at least $300,000. The medical evaluations admitted into evidence opined that Smith had lost 44 to 45 percent of the use of his left upper extremity, that Smith will have to permanently avoid the use of his left hand for movement above shoulder level and all lifting in that area, and that until his total right knee joint is revised, Smith will be unable to walk without support and for only short distances. Smith's lost wages for supervising the weight room and seasonal yard work were listed as $43,748 ($5,948 for past employment and $37,800 for future employment [weight room-$42 per week; lawn care-$100 per week]).
Smith's wife, Mildred Smith, testified at the hearing that prior to the accident Smith had been in good health. Mildred testified that she expected Smith to live "into his 90s," stating that Smith's father lived to be 96 years old and his mother lived to be 94 years old. Mildred testified that as a result of the accident, Smith is no longer able to drive or make repairs on the car, work on the lawn or garden, remove snow, or make repairs or help around the house. Mildred testified that as a result of the accident, "the strength of [their] companionship is gone," c
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