UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

“ When the fact finder determines a plaintiff is contributorily negligent, the statute provides that the total award of damages to the plaintiff shall be reduced "in proportion to the amount of negligence attributed" to the plaintiff. Id. § 60-258a (a) ; cf. Mick v. Mani, 766 P.2d 147, 150 (Kan. 1988) (discussing purposes of comparative negligence statute) .
Section 60-258a thus speaks in terms of the jury or, in the event of a bench trial, the trial court making determinations as to the plaintiff’s total damages and comparative negligence following a trial. ”

“ On appeal, Copeland argues the district court erred by (1) failing to reduce SRS' recovery by the percentage of Copeland’s negligence; (2) refusing to apply equitable subrogation principles to reduce or eliminate SRS' statutory subrogation right to the settlement proceeds; and (3) ordering SRS to pay attorney fees in the amount of 33.33% of SRS’ medical assistance recovery rather than 40%. ”

“ The provisions allow the recipient and spouse to divide joint income and resources into separate shares, and place limitations on the state’s rights to the spouse’s share. ↑ Many cases raising the issue of whether the state’s subrogation right is subject to equitable principles involve a request by an injured party that the state pay a portion of the injured party’s attorney fees and other litigation expenses incurred in obtaining a recovery from a third party. ”

“ Invoking the district court’s diversity jurisdiction, Copeland sued and then settled with Toyota Motor Sales, U.S.A., Inc. and Toyota Motor Corporation (collectively “Toyota”) . Thereafter, the United States District Court for the District of Kansas ordered that essentially all the net settlement proceeds be paid to the Kansas Department of Social and Rehabilitation Services ("SRS") pursuant to Kan. Stat. Ann. § 39-719a as reimbursement for the funds it dispersed for Copeland’s medical treatment.Copeland appeals the district court’s apportionment of the settlement proceeds. ”

“ The Order identified the $244,814.30 subject to SRS' subrogation right and rejected each of Copeland’s arguments for reducing SRS' subrogation share or assessing SRS a 40% attorney fee.
FirsTier requires this court to determine whether the Order would have been appealable if immediately followed by the entry of judgment. A decision is appealable only if it is final, meaning it "leaves nothing for the court to do but execute the judgment." ”

“ This subsection provides that SRS may recover for medical expenditures from the medical assistance recipient and that SRS is subrogated to the rights of the recipient “except as provided under K.S.A. 39-786 and 39-787, and amendments thereto, or under section 303 and amendments thereto of the federal Medicare catastrophic coverage act of 1988, whichever is applicable." Id. The referenced provisions in this subsection address the treatment of the joint income and resources of the medical assistance recipient and his or her spouse. ”

“ App. 1995) (stating that “ [s] ubrogation and lien are separate equitable remedies designed to secure repayment of an underlying obligation” and that " [t] he structure and language of the statutes at issue support the presumption that the Legislature was cognizant of the historical distinction between the two remedies and created a statutory lien as an alternate means to recover") ”