ARAMBULA v. WELLS

Court of Appeal of California, 1999.

72 Cal.App.4th 1006, 85 Cal.Rptr.2d 584.

CROSBY, J.

[Plaintiff was injured in a rear-end collision. He was employed in a family-owned business in which he owned 15 percent of the stock. “Despite missing work because of his injuries, he continued to receive his $2,800 weekly salary.   He testified that his brother [who held 70 percent of the stock] ‘wished’ to be reimbursed, but he had not promised to do so.” In the ensuing suit, defendant admitted liability and contested causation and damages. Plaintiff alleged severe brain injury. Defendant denied that claim.]

At the start of trial, Wells moved in limine to exclude all evidence and testimony regarding Arambula's lost wages claim of approximately $50,000. Her attorney, relying on dicta in a footnote in Helfend v. Southern Cal. Rapid Transit Dist. [465 P.2d 61 (Cal. 1970)], argued, "Plaintiff is not receiving payment by means of disability insurance, pension or from utilizing [ ] sick time or vacation time.   Further, plaintiff has failed to provide any documentation or demand that the monies received from his employer will be required to be reimbursed."

[The trial judge agreed and instructed the jury not to award damages for lost earnings “because his employer paid for the time he was off without any requirement to do so and there was no agreement by plaintiff to refund same."  The jury awarded $54,334 to Arambula, but nothing to his wife.   Both appeal.]

Under the collateral source rule, plaintiffs in personal injury actions can still recover full damages even though they already have received compensation for their injuries from such "collateral sources" as medical insurance. [ ] The idea is that tortfeasors should not recover a windfall from the thrift and foresight of persons who have actually or constructively secured insurance, pension or disability benefits to provide for themselves and their families.   A contrary rule, it is feared, would misallocate liability for tort‑caused losses and discourage people from obtaining benefits from independent collateral sources. [ ]

Helfend is the leading case.   The court rejected defense efforts to introduce evidence that about 80 percent of an injured motorist's medical bills had been paid by his Blue Cross insurance carrier.   Applying a benefit of the bargain rationale, the Supreme Court allowed the motorist to receive the advantage of his investment of "years of insurance premiums to assure his medical care."   It stated "[t]he tortfeasor should not garner the benefits of his victim's providence."  [ ]1

Helfend on its face says nothing about gratuitous wage payments.   Wells, however, cited Helfend to convince the trial court to limit the collateral source rule to situations where plaintiffs incurred an expense, obligation or liability in obtaining the services for which they seek compensation.   According to Wells, Helfend is "replete with indications that the California Supreme Court does not intend for the collateral source rule to apply to gratuitous payments and services."

            [Defendant relied on footnote 5 in Helfend that noted that New York’s rule against reimbursing non-insurance gifts was “reasonable.” On the other hand, the court elsewhere had said that it was leaving open all questions other than insurance payments.]

We take Helfend at its word.   Not only do we consider its language at face value, but we construe it in the light of its facts and the issues raised. [ ] While we do not take lightly any of the Supreme Court's statements, we reasonably construe them in the context of the thoroughness of the court's analysis and in light of its prior expressions on the same subject. [ ] There are five specific reasons why footnote five fails to pass these tests.

First, there is the matter of existing California law (prior to Helfend ), which made no special distinction for purely gratuitous collateral benefits.   In [ ], the court stated, "The same rule [as to collateral sources] seems to apply to wages paid an injured person by the employer.   The injured employee may still recover the full amount of such wages from the wrongdoer."   The Supreme Court repeated similar language in Fifield Manor v. Finston [354 P.2d 1073 (Cal. 1960):  "The fact that either under contract or gratuitously such treatment has been paid for by another does not defeat the cause of action of the injured party to recover the reasonable value of such treatment from the tortfeasor." (Italics added.)  ??   If the Supreme Court desired to throw into doubt such long‑established pronouncements (including its own decision in Fifield Manor ), we believe it would have done so more directly than through footnote 5's oblique references to New York decisional law.

Second, no subsequent appellate opinion has construed footnote 5 in the highly expansive manner suggested by Wells.   To the contrary, several post‑Helfend decisions have allowed plaintiffs to recover the costs of gratuitous medical care as an element of their damages even without any contractual right to reimbursement.  [ ] [parents who cared for minor child can recover special damages for reasonable costs of such care based on prevailing rates for home care nurses, even though services were rendered "without an agreement or expectation of payment"];  [ ] [same with respect to wife who provided 24‑hour‑a‑day attendant care to her injured husband:  "Insofar as gratuities are concerned, the rule appears to be in keeping with the collateral source rule rationale."];  see also [ ] [in “California even [gratuitous] benefits are subject to the collateral source rule."].) Wells's proposal would create a conflict in the law with [these three cases].

Third, a majority of jurisdictions and many commentators are in accord. [ ]  indent here ?? In Montgomery Ward & Co., Inc. v. Anderson [976 S.W.2d 382 (Ark. 1998)], a hospital partially forgave a patient's medical bills. The court held the patient was entitled to recover compensation for the full amount of the harm inflicted upon her, notwithstanding the discount, stating "There is no evidence of record showing that [defendant] had anything to do with procuring the discount of [plaintiff's] bill by [the hospital].  The rationale of the rule favors her, just as it would had she been compensated by insurance for which she had arranged." [ ]

Fourth, public policy concerns weigh heavily in favor of application of the collateral source rule to gratuitous payments and services.   Just as the Supreme Court in Helfend found the rule "expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities" [ ], so too we adhere to the rule to promote policy concerns favoring private charitable assistance.   Indeed, until recent times, family assistance has been the primary means of coping with a tragedy in this country.   Were we to permit a tortfeasor to mitigate damages because of a third party's charitable gift, the plaintiff would be in a worse position than had nothing been done.   Why would a family member (or a stranger) freely give of his or her money or time if the wrongdoer would ultimately reap the benefits of such generosity?

The concept of charity is embedded in basic notions of civic virtue, finding expression in legislation ranging from tax law to wills and estates and many others.   When called upon to construe private humanitarianism, "courts do not now adopt an antagonistic spirit toward [a donor's] charitable intent for it is the rule that where doubt exists, a gift must be interpreted in favor of a charity."  [ ].

This is more than "do‑gooderism";  the state's own self‑interest is involved as well.   To the extent that private generosity steps to the fore, the impact on the state is lightened "by rendering beneficences which the state would otherwise be obliged to furnish or indirectly further the interests of the state by the public benefit they promote."  [ ]

Charitable contributions are primarily motivated by the intended use to which donations are put.   Under these circumstances, we logically turn to the intent of the donors.   Whom did they intend to help when they gratuitously agreed to cover lost wages?   The person who caused the accident?   Or the victim?   We doubt such gifts would continue if, notwithstanding a donor's desire to aid the  injured, the person who caused the injury ultimately stood to gain a windfall.   Donors should not have to consult with a lawyer to make sure their largesse is not hijacked by the tortfeasor.

We do not necessarily consider a tort recovery made after gratuitous benefits are received as a windfall to the plaintiff, although it clearly might be a windfall to the defendant.   As one leading treatise puts it, "Compensation in these cases is not double in any true sense.   It might be condemned under a system that would give to each only according to his need, but even the Marxists have put aside this part of their philosophy for their nirvana."  (4 Harper, James & Gray, The Law of Torts, supra, § 25.22 at p. 661.)   If a generous person chooses to pay the wages of someone who has been injured, intending to add the gift to the latter's compensation, "there seems to be no good reason for denying effect to such intention or for diverting it to another beneficiary, whether that other is a wrongdoer or not....  In these cases of private generosity the best solution seems to be a rule of thumb that would give greatest scope to the donor's generosity and to the adjustment of moral obligations within the more or less intimate relationships that usually bring such generosity into play.   The gift should be disregarded in assessing damages."  (Id. at pp. 661‑663.)

Even without an ironclad requirement of reimbursement, the plaintiff may be motivated to repay the donor from any tort recovery, or, inspired by example, to similar acts of generosity on the notion that one good act leads to another.   Such reimbursement would avoid any prospects of a double recovery, as if there ever could be a double recovery where pain and suffering is concerned.   Moreover, as Helfend noted, the injured victim may not have been made whole because generally "plaintiff's attorney will receive a large portion of the plaintiff's recovery in contingent fees....  The collateral source rule partially serves to compensate for the attorney's share and does not actually render 'double recovery' for the plaintiff."  [ ]

The rationale of the collateral source rule thus favors sheltering gratuitous gifts of money or services intended to benefit tort victims, just as it favors insurance payments from coverage they had arranged.   No reason exists in these circumstances to confer a bonanza upon the party causing the injury.   As one court noted nearly a century ago in connection with an employer's voluntary wage payment, "[I]f time has been lost as the result of a tort, sound sense, common justice, and, it may be, public policy would demand that the tortfeasor be prohibited from making a defense founded upon the proposition ... that some third person, not only not in sympathy with the wrongdoer, but despising him and his act, has, from some worthy motive, paid to the injured person an amount which, if it had come from the wrongdoer, would have equaled the damages which would have been assessed against him."  (Nashville, C. & St. L.Ry. v. Miller [47 S.E. 959, 960 (Ga. 1904)].

III

A

While a gift is presumptively intended for the benefit of the donee, the presumption should be a rebuttable one.   We can posit examples where a wrongdoer's family or friends might pay the victim's bills out of a sense of moral obligation or atonement.   Public policy encourages such expiation.   Under these circumstances the tortfeasor may well be entitled to an offset to effectuate the donors' intent and to avoid a double recovery.  Put another way, such sources might not be considered as "wholly independent" of the tortfeasor. [ ]

We also do not decide whether the collateral source rule extends to payments from a public source.4 [FN4]  The question of gratuitous  public benefits is not at issue here and invokes a host of other concerns, which must be considered in light of their specific factual contexts.  [Helfend]

B

The collateral source rule operates both as a substantive rule of damages and as a rule of evidence.   As a rule of evidence, it precludes the introduction of evidence of the plaintiff being compensated by a collateral source unless there is a "persuasive showing" that such evidence is of "substantial probative value" for purposes other than reducing damages. [ ]5

We do not resolve such issues of admissibility here, but leave them to the sound discretion of the trial judge on remand. [ ] We note, however, our decision does not automatically bar evidence that Arambula's wages were paid by his brother during his period of disability.   For example, such evidence may be admissible, in the court's reasonable discretion and subject to a limiting instruction, to impeach his claimed inability to work.   Evidence of actual wage payments may be persuasive to show that no time was lost, the employee actually performed substantial services during the period of disability, or had a motive to malinger. (See Corsetti v. Stone Co. [483 N.E.2d 793, 802 (Mass. 1985)] [evidence of collateral source income relevant to show employee had motive other than physical disability not to work].)

In Pensak v. Peerless Oil Co. [166 A. 792 (Pa. 1933)], an employee received salary payments (as a supposed gift) from his father and brother (who were co‑owners of the business) during the time of his incapacity.   But the court distinguished between making a claim of gift and proving it:  "Characterizing as a gift the money paid to him does not make it so.   To permit a recovery of money under the guise of wages lost would, with the facts as they here appear, open a wide door to misrepresentation and fraud in this class of cases."

[Other parts of the opinion were not published. The court remanded “for a limited new trial to determine the amount of damages for lost wages (if any) legally caused by defendant's negligence.   The judgment for damages in his favor is otherwise affirmed.”]

 SILLS, P.J., and RYLAARSDAM, J., concur.

Notes and Questions

            1. What is the underlying explanation for the collateral sources rule? Does it apply equally to a gift from a brother, a loan from that brother repayable if and when the tort suit succeeds, a reduced hospital bill, a payment from a health insurer?

            In Peterson v. Lou Bachrodt Chevrolet Co., 392 .E.2d 1 (Ill. 1979), the court, recognizing that it was adopting a minority position, refused to permit plaintiff to recover for the value of medical services he had received at a Shriners' Hospital:  "The purpose of compensatory damages is to compensate [ ];  it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs."  The dissenters asserted that the donors to the hospital "intended that the plaintiff, not the tortfeasor, be the beneficiary of their largess."

            2.  In Bandel v. Friedrich, 584 A.2d 800 (N.J. 1991), the court applied the rule to prevent an offset for the value of needed gratuitous nursing services provided to the permanently disabled plaintiff by his mother. Does that raise issues different from those raised in Arambula?

            The court in Bandel suggested that giving the defendant the benefit of the mother’s nursing care would havea disparate impact on poor victims?  It is often asserted that various damage rules and current efforts to change them affect different groups unequally.  See, e.g., Koenig & Rustad, His and Her Tort Reform:  Gender Injustice in Disguise, 70 Wash.L.Rev. 1 (1995);  Chamallas, Questioning the Use of Race--Specific and Gender-Specific Economic Data in Tort Litigation:  A Constitutional Argument, 63 Fordham L.Rev. 73 (1994);  Note, Caps on Noneconomic Damages and the Female Plaintiff:  Heeding the Warning Signs, 44 Case W.Res.L.Rev. 197 (1994).  Keep this issue in mind as we explore current damage rules and proposed changes.

            3. Notice that two distinct questions are involved in these cases. The first is whether the defendant should get the benefit of the payment from the collateral source. If the answer to that question is negative, there is sometimes a further question: should the plaintiff keep any double payment that may result. The issue arises most commonly where the victim is protected by health or medical insurance or by wage protection insurance. Should it matter whether plaintiff paid the premiums himself or whether his employer provided the medical coverage as a fringe benefit? This issue, addressed generally under the framework of “subrogation,” is explored at length at p. ___, infra.

            4.  Should government programs be treated differently? Are payments from the federal Social Security disability program different from the issues raised in footnote 4 of Arambula?

            In the cited Washington v. Barnes Hospital, as a result of defendant's malpractice, plaintiff brain‑damaged child would need special education for life.  Plaintiff proved what such a private education would cost.  The court held that the defendant was improperly prevented from arguing that public education was available for that need.  Although most courts had sided with the plaintiff, this court disagreed:

                        Here plaintiffs need not purchase the public school benefits, nor work for them as an employment benefit, nor contract for them.  Hence the "benefit of the bargain" rationale does not apply.  Nor are these benefits provided as a gift by a friend or family member to assist plaintiffs specifically, such that it would be inequitable to transfer the value of the benefit from plaintiffs to defendants.  Nor is this a benefit that is dependent upon plaintiffs' indigence or other special status.  Instead, public school programming is available to all by law.  While to some extent public schools are funded by plaintiffs' tax dollars, they are also funded by defendants' tax dollars and no windfall results to either.  We reject the concept that the collateral source rule should be utilized solely to punish the defendant.  Damages in our tort system are compensatory not punitive.

On the remand, plaintiffs "of course, may respond to this evidence with arguments of its inadequacy, the risk of its continued availability, etc."

            5. Statutory change.  The collateral source rule has been the subject of statutory change in about a dozen states.  The nature of these changes is considered at p. ___, infra.