Opinion
No. 09-11945, A.P. No. 09-1126.
February 23, 2011
Memorandum and Order re Collateral Source Rule
The collateral source rule provides that if an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor. 1 Witkin, Cal. Evid. 4th (2000) Circum Evid, § 160, p. 510; Hrnjak v. Graymar, 4 C.3d 725, 729, 94 C.R. 623, 484 P.2d (1971). The key phrase is "wholly independent." The rule does not apply to recovery where a joint tortfeasor is involved. 6 Witkin, Summary of California Law (10th Ed. 2005) Torts, § 1633, p. 1147. ["collateral recovery is not allowed where a joint tortfeasor is involved, because the source of recovery is not `wholly independent.'"]. Likewise, where the tortfeasor paid for the insurance it is not wholly independent and the rule does not apply. Haueter v. Peguillan, 586 P.2d 403, 404 (Utah 1978) [proceeds of title insurance policy not subject to collateral source rule where tortfeasor required to provide title insurance].
In this case, Exhibit 6 in plaintiffs' exhibit book clearly shows that the title insurance was part of the loan escrow and that defendant paid for it. It does not appear that any party has yet moved for admission of this exhibit (issues as to the collateral source rule having been reserved), but the court will exercise its discretion to admit it unless any party files an objection within seven days and notices a prompt hearing on it. In the absence of such objection, Plaintiff's Exhibit 6 will be deemed admitted into evidence.
Once any issue regarding Exhibit 6 has been resolved, the court will proceed to issue a final decision on the reserved issues.
SO ORDERED.
Dated: February 22, 2011