Appellate Decisions
| Publication year | 2010 |
| Pages | 47 |
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Supreme Court
Attorney Discipline
IN RE NANCY F. ORRICK TWO-YEAR SUSPENSION NO. 103,698 - JUNE 11, 2010
FACTS: This is an original proceeding in discipline filed by the disciplinary administrator's office against the respondent, Nancy F. Orrick, of Overland Park, an attorney admitted to the practice of law in Kansas in 1988. A bill Orrick submitted to the Johnson County District Court in a child in need of care case contained significant misrepresentations on time and billing.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator's office recommended respondent receive a two-year suspension. The office also recommended that prior to respondent being allowed to resume the practice of law that she undergo a reinstatement hearing.
HEARING PANEL: The hearing panel determined respondent violated KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460) (fees must be reasonable); 3.3(a)(1) (2009 Kan. Ct. R. Annot. 545) (false statement made to tribunal); and 8.4(c) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct involving misrepresentation). The hearing panel recommended a 60-day suspension and a mandatory reinstatement hearing.
HELD: Court stated suspension was the appropriate discipline because respondent's misconduct was the result of multiple misrepresentations in her dealings with the district court. Court found a two-year suspension to be the appropriate length for respondent's discipline given the nature of her offenses and the undisputed findings that respondent knowingly gave the district court misleading explanations in response to inquiries after the initial misrepresentations were disclosed. Court agreed that a reinstatement hearing would be necessary.
IN RE BRYAN W. SMITH TWO-YEARS SUPERVISED PROBATION NO. 103,860 - JUNE 11, 2010
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Bryan W. Smith, of Topeka, an attorney admitted to the practice of law in Kansas in 1992. Smith's alcoholism lead to charges of misdemeanor public intoxication, disorderly conduct, and felony vandalism. The felony charges were eventually dropped in a plea. Smith's employment with his law firm was terminated. Smith entered treatment, but was unable to control his alcoholism. Smith participated in a diversion agreement with the disciplinary administrator's office, but he was unable to stop drinking and the diversion was terminated.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be placed on probation pursuant to the terms and conditions outlined in the respondent's proposed probation plan.
HEARING PANEL: The hearing panel determined that respondent violated KRPC 8.4(b) (2009 Kan. Ct. R. Annot. 602) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) and 8.4(g) (engaging in conduct adversely reflecting on the lawyer's fitness to practice law).
HELD: The evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supported the panel's conclusions of law. Court adopted the panel's findings and conclusions. Smith was suspended for one year from the practice of law in the state of Kansas, but that imposition of the suspension be suspended, provided that respondent continues to abide by the terms of his probation plan for two years from the date of the filing of this opinion. In addition, the Court hereby imposes an additional probation term requiring respondent Smith to obtain, within 30 days of the filing of this opinion, a supervisor for his law practice for the term of his probation.
Civil
COLLATERAL SOURCE RULE MARTINEZ V. MILBURN ENTERPRISES INC. RICE DISTRICT COURT - REVERSED AND REMANDED NO. 100,865 - JUNE 4, 2010
FACTS: On July 23, 2005, plaintiff Karen Martinez slipped and fell while shopping at defendant's business in Lyons. She underwent back surgery at Wesley Medical Center and was ultimately billed $70,496.15. The hospital accepted $5,310 in satisfaction of the bill: $4,689 from plaintiff's private health insurance company, Coventry Health Systems (Coventry), and $621 from plaintiff as her deductible and co-pay. Pursuant to its contract with Coventry, the hospital wrote off the balance of $65,186.15. In plaintiff's suit for recovery of damages, defendant filed a motion in limine asking the district court to prohibit plaintiff from claiming the full $70,496.15 as damages. The defendant apparently erred in its recitation of the specific amounts paid by each source to satisfy the bill, as well as the total amount paid to the hospital. Those errors apparently were repeated by plaintiff and the district court and by the parties on appeal. The court granted defendant's motion, limiting plaintiff's recovery to those amounts actually paid by Coventry and plaintiff ($5,310) and preventing her from submitting evidence of medical expenses in excess of that amount. The court granted an interlocutory appeal. The case was transferred to the Supreme Court.
ISSUE: Collateral source rule
HELD: Court synthesized the state and federal case law on applying the collateral source rule to medical benefits. Court stated the question before it was whether in a case involving private health insurance write-offs, the collateral source rule applies to bar evidence of (1) the amount originally billed for medical treatment or (2) the reduced amount accepted by the medical provider in full satisfaction of the amount billed, regardless of the source of payment. Court held the rule does not bar either type of evidence; both are relevant to prove the reasonable value of the medical treatment, which is a question for the finder of fact. Court reversed and remand to the district court for further proceedings.
CONCURRENCE (Johnson, J.): Concurs that the existing case law precedent would instruct the trial court to admit only the evidence of the amount which the medical care provider had contractually agreed to accept in full satisfaction of the bill for medical services (amount paid), but the Court's opinion clearly muddy's the water as to what evidence should be admitted. Justice Johnson concluded that both the prediscount amount and the amount actually paid are relevant, admissible evidence of damages.
CONCUR IN PART; DISSENT IN PART (Davis, C.J., and Rosen, and Biles, JJ.): Concur in part and dissent in part. The three agreed the district court erred in limiting plaintiff's recovery for medical expenses to only those cash amounts actually paid by plaintiff and her health insurance company. The jury must determine the reasonable value of medical services. But this determination should not depend upon how successful plaintiff's insurance company was at negotiating lower prices to benefit its insureds. However, the three stated the defendant should not be permitted to enjoy any benefit from plaintiff's private insurance contract. That principle should be preserved.
STATUTES: K.S.A. 8-173(c); K.S.A. 20-3018(c); K.S.A. 40-3104, -3117; and K.S.A. 60-401, -406, -455, -2102(c), -2106
CREDIT LIFE INSURANCE AND FAILURE TO DISCLOSE EXISTING CONDITIONS CHISM V. PROTECTIVE LIFE INS. CO. ET AL. MONTGOMERY DISTRICT COURT - ISSUES SUBJECT TO REVIEW ARE REVERSED AND REMANDED COURT OF APPEALS - REVERSED ON THE ISSUES SUBJECT TO REVIEW NO. 99,291 - JUNE 11, 2010
FACTS: In June 2005, Steve and Karen Chism purchased a new vehicle from Quality Motors of Independence Inc. As a part of the transaction, the dealership's business manager, Dennis Urban, offered to sell them a Protective Life Insurance Co. credit life insurance policy that would pay off their car loan if either of them died. Steve had high blood pressure since 1991, Type II diabetes since 1999, and was diagnosed with peripheral vascular disease in November 2004. The Chisms did not circle any health conditions on the application and Urban signed it as Protective's agent. About seven months later, Steve died from a sudden cardiac arrest and the death certificate listed diabetes mellitus, hypertension, morbid obesity, and peripheral vascular disease as cause of death. Karen submitted a claim for benefits under the policy. Based on Steve's prior medical condition, Protective denied the claim and rescinded the policy. Karen sued Protective. The district court granted summary judgment in favor of Protective. The Court of Appeals affirmed the district court finding the policy application specifically negated Steve's eligibility for coverage due to his medical conditions and the conditions the Chisms failed to disclose in the application were clearly material to the risk Protective was being asked to underwrite. Court found that the Chisms had the opportunity and duty to correctly complete the portion of the application form relating to health issues. Court also held that Quality Motors was entitled to summary judgment on Karen's claim of negligent procurement since there was no evidence that Urban, who was an employee of Quality Motors, owed any legal duty to the Chisms when it came to their obligation to read, understand, and accurately respond to the inquiries made in the credit life policy application about their health. Court found no abuse of discovery or in refusing to allow admission of other credit life applications from other Quality Motors customers.
ISSUES...
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