Opinion
NUMBER 2013 CA 0054
10-01-2014
EDDIE HOFFMAN v. 21ST CENTURY NORTH AMERICA INSURANCE COMPANY AND CAROLYN ELZY
Spencer H. Calahan David M. Lefeve Baton Rouge, Louisiana and Robert E. Kleinpeter Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, Eddie Hoffman James R. Nieset, Jr. Ralph J. Aucoin, Jr. New Orleans, Louisiana and Richard D. Roniger, II New Orleans, LA Attorneys for Defendants/Appellees, 21st Century North America Insurance Company and Carolyn Elzy
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Docket Number 604,592
The Honorable R. Michael Caldwell, Judge Presiding Spencer H. Calahan
David M. Lefeve
Baton Rouge, Louisiana
and
Robert E. Kleinpeter
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellant,
Eddie Hoffman
James R. Nieset, Jr.
Ralph J. Aucoin, Jr.
New Orleans, Louisiana
and
Richard D. Roniger, II
New Orleans, LA
Attorneys for Defendants/Appellees,
21st Century North America Insurance
Company and Carolyn Elzy
BEFORE: WHIPPLE, C.J., GUIDRY, WELCH, CRAIN, AND THERIOT, JJ.
ON REHEARING
CRAIN, J.
This court granted plaintiff's application for rehearing and this matter was re-argued before a five-judge panel. We affirm the decision previously rendered, but have reconsidered our analysis of plaintiff's arguments regarding the special damages award.
Although plaintiff complains on appeal about a violation of the collateral source rule, he neither objected to the evidence introduced by defendants nor offered any evidence to establish the collateral source rule's application. Compare Bozeman v. State, 03-1016 (La. 7/2/04), 879 So. 2d 692, 699-701. The trial court, then, was presented with two medical bills showing differing amounts owed for the same medical treatment. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 806. Considering the record before us, we cannot conclude that the trial court was manifestly erroneous in its award of $2,478.00 in special damages. Cf. Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So. 3d 1104, 1118.
AFFIRMED.
WHIPPLE, C.J. dissents and would grant the application for rehearing.
I respectfully disagree with the majority herein. Although the certified records of the MRI provider reflected two different amounts due, I disagree that the disputed damages awarded herein was a result of "proper weighing of two permissible views of the evidence." In awarding the reduced bill, the trial court specifically commented that plaintiff had incurred the expenses for two MRIs, "but because of Mr. Spencer Callahan's [plaintiff attorney's] arrangement with the providers, the fee for that was only $950.00." Clearly, the trial court's determination of the "correct" amount to award for the MRIs was premised upon its failure to properly consider the collateral source rule.
Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's procuration or contribution. Bozeman v. State, 2003-1016 (La. 7/2/04), 879 So. 2d 692, 698. Contrary to the majority's reasoning, the collateral source rule is a rule of both evidence and damages. Thus, "[f]rom an evidentiary perspective, the rule bars the introduction of evidence that a plaintiff has received benefits or payments from a collateral source independent of the tortfeasor's procuration or contribution." Bozeman, 879 So. 2d at 699. As specifically set forth in Bozeman, from an evidentiary perspective, even where there is no dispute that the plaintiff did not object to the reduced bill on grounds of the collateral source rule (and, indeed, filed the exhibit jointly), we are still "called upon to make a determination regarding the damages aspect of the collateral source rule." See Bozeman, 879 So. 2d at 700.
Accordingly, upon further review and consideration, I agree with plaintiff that, at a minimum, a remand and evidentiary hearing on this issue is necessary. In particular, after further review of the record, I am unable to find any evidence in the record that would support any conclusion by the trial court as to why the MRI imaging center bill was reduced or the financial basis for such. Instead, the only evidence presented and relied upon by the defendants on this issue was a copy of a bill obtained by the defendants, which simply states that there was an "ajust [sic]" in the amount of $2,050.00. There is no further testimony, explanation or evidence as to why this reduction occurred, at whose instance or on whose behalf the bill was adjusted, or the basis for such.
For example, the record does not address or answer whether plaintiff's patrimony was actually, or should be deemed to be, reduced because of attendant expenses or attorney's fees incurred by plaintiff if any reduction or forgiveness of the debt occurred; nor does the record establish why or on what basis the bill was "offset."
Moreover, if the bill was reduced pursuant to an arrangement between the medical provider and plaintiff's counsel, as the trial court inferred, additional evidence of the payment arrangement between plaintiff and his counsel is needed. Specifically, if plaintiff paid a contingency fee to his counsel and his counsel then worked on plaintiff's behalf to obtain this reduced bill, such a diminution of plaintiff's patrimony in order to obtain the benefit of a reduced bill amount should be taken into account in determining whether or not the defendants would be entitled to benefit from such efforts taken by plaintiff's counsel for plaintiff's benefit.
As this court recognized in Bellard v. American Central Ins. Co., 2007-1335 (La. 4/18/08), 980 So.2d 654, 669, there are two primary considerations that must guide our determination with respect to the application of the collateral source rule:
The first consideration is whether application of the rule will further the major policy goal of tort deterrence. The second consideration is whether the victim, by having a collateral source available as a source of recovery, either paid for such benefit or suffered some diminution in his or her patrimony because of the availability of the benefit, such that no actual windfall or double recovery would result from application of the rule.
Moreover, I question why the principles underlying the collateral source rule should be any different in a situation involving a pre-trial negotiation of a bill by plaintiff's counsel as opposed to the common case where medical provider bills are negotiated to a lower amount after settlement or trial. In such cases, the tort victim undisputedly is not expected nor required to reimburse the tortfeasor for the difference between the amount incurred and awarded, and the discounted bill that he ultimately secures or pays.
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Thus, given the record deficiencies herein, I am convinced that allowing our prior opinion to stand without a demonstrated evidentiary basis to support the trial court's decision is not warranted on this record and would further serve to effectively abrogate the major policy reasons underlying the existence of the collateral source rule.
As set forth in Bozeman:
The major policy reason for applying the collateral source rule to damages has been, and continues to be, tort deterrence. The underlying concept is that tort damages can help to deter unreasonably dangerous conduct. Tort deterrence has been an inherent, inseparable, aspect of the collateral source rule since its inception over one hundred years ago.Bozeman, 879 So. 2d at 700.
For these reasons, I respectfully dissent from the majority's ultimate denial of rehearing and would remand for further proceedings. NOT DESIGNATED
FOR PUBLICATION
19th Judicial District Court
Case #: 604592
East Baton Rouge Parish
On Application for Rehearing filed on 09/26/2014 by Eddle Hoffman Rehearing _________
/s/_________
Vanessa G. Whipple
/s/_________
Jewel E."Duke" Welch
/s/_________
William J Crain
Filed MAR 27 2014 /s/_________
Christine L. Grow, Clerk