Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. YC048688, Bob T. Hight, Judge.
Selman Breitman and Jerry C. Popovich for Defendant and Appellant.
Jacobs, Jacobs & Eisfelder, Stanley K. Jacobs, Robert W. Eisfelder; Good West & Schuetze, Ned Good; Law Office of Marian H. Tully and Marian H. Tully for Plaintiffs and Respondents.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Plaintiffs Marilyn, Andrew, and Scott Ortner prevailed in a jury trial of a wrongful death action against defendant Enterprise Rent-A-Car Company of Los Angeles (Enterprise). A van owned by Enterprise and driven by Enterprise employee Joseph Ortiz, Jr. (Ortiz) rear-ended a car driven by plaintiffs’ decedent, James Ortner (Ortner). Both Ortner and Ortiz died as a result of injuries sustained in the crash. Enterprise appeals from the judgment, contending that the trial court erred by (1) belatedly agreeing to admit particular evidence it previously excluded, and (2) excluding evidence of a death benefit paid to Marilyn Ortner by James Ortner’s pension fund. We reject each of these contentions and affirm the judgment.
BACKGROUND
The Ortners’ complaint alleged theories of negligent entrustment, and negligent hiring, training, and/or supervision, in addition to respondeat superior liability for Ortiz’s negligence.
Philip Madden testified at trial that he was stopped at a red light on northbound Silver Spur in Palos Verdes at Basswood at about 5:30 p.m. on December 26, 2003. He saw Ortner’s car approach the same intersection on southbound Silver Spur and stop for the red light. Ortner’s headlights were on. Madden then noticed Enterprise’s van speeding southbound on Silver Spur toward Ortner’s car at a speed of 60 to 70 miles per hour. The speed limit in the area was 35 miles per hour. The van never slowed as it approached the intersection, but it appeared to make an attempt to go around Ortner’s car on the left side. The van slammed into the rear of Ortner’s car, which spun through the intersection and struck Madden’s car. Madden did not see any indication that the van hit a curb or went onto the center divider before colliding with Ortner’s car.
The Pester family lived very near the intersection of Silver Spur and Basswood. When they heard the collision, they ran to the scene. Jonathan Pester testified at trial that at the time of the accident he was a certified emergency medical technician. He reached the accident scene within one minute. He immediately called 911 and assessed the condition of both drivers. Although Jonathan was 30 to 40 feet from the van, he saw that its driver was sitting upright in the seat, had his eyes open, was moving his left arm, and was talking to one of Jonathan’s parents. Jonathan therefore tended to the driver of the Mazda (Ortner), who was unconscious. William Pester testified that he approached the van about three minutes after he heard the crash. The van’s driver was sitting upright in his seat with his hands on the steering wheel at the 10 and 2 o’clock positions. William asked the driver whether he was okay. The driver turned and looked at William and said, “Yes.” William asked the driver whether he had passengers and whether he needed an ambulance. The driver looked at William and responded, “No.” William thought the driver of the van answered in a timely and coherent manner. Karen Pester testified that she approached the driver’s side of the van five or six minutes after the crash. The driver was sitting upright with both of his hands on the steering wheel. She asked him if he was okay, and he told her he was having a little trouble breathing. She rubbed the driver’s arm and talked to him. He told her his arms were sore from the airbag deploying. The driver spoke coherently and turned to look at Karen when he spoke to her. She stayed at the van and conversed with the driver until the paramedics arrived. She believed the driver understood her and responded accordingly. Neither William nor Karen Pester saw any limpness or paralysis on the left side of the van driver’s face or body.
Defense witness Ralph Ibarra also lived near the accident site and also ran to the intersection after hearing the crash. He testified that he went to Ortner’s car first, then approached the van three or four minutes later. The driver of the van was in the driver’s seat, leaning against the door with his eyes closed and his head tilted back. The driver did not respond when Ibarra shouted at him.
Defense witness Jason Van Buren was across the street from the accident scene. He saw the van speeding toward the intersection. It did not slow and its brake lights did not come on. Van Buren saw the collision and ran to the intersection. He went to the driver’s side of the van and saw that the driver was sitting upright with his eyes closed. Van Buren asked the driver if he was all right, and the driver slowly nodded up and down. On cross-examination, Van Buren acknowledged that he had previously given a statement in which he said that the van driver’s eyes were open, it was clear to Van Buren that the driver understood him when he asked if the driver was all right, and it appeared to him that the van driver did not need help.
Paramedic Michella Kovacs reached Ortiz at 5:56 p.m. His eyes were closed and he did not communicate with her. Her assessment of Ortiz’s consciousness was a level 6 on a scale running from 3 (completely unresponsive to various stimuli) to 15 (fully conscious). She observed swelling and abrasions on Ortiz’s arms and left knee. An emergency medical technician and Kovacs measured Ortiz’s blood pressure, which did not appear to be within the range of what Kovacs had observed in patients who were verifiably suffering stroke.
Ortiz was unconscious when he reached the hospital. A C.T. scan of his head performed about 90 minutes after the accident revealed that a very large hemorrhage deep within his brain had led to a stroke. Treating physician Dr. Jim Nieman testified at trial that the hemorrhage started spontaneously, not as a result of head trauma. Although Nieman could not determine the time the hemorrhage began, he believed it was prior to Ortiz’s arrival at the emergency room because Ortiz’s condition upon arrival was consistent with a right-side brain lesion. The testimony of defense experts Drs. John Go and Peter Gruen was consistent with Nieman’s testimony: the hemorrhage was not caused by trauma, no one could pinpoint when it began, and no one could opine that it occurred prior to the accident.
An event data recorder in the Enterprise van recorded 7.8 seconds of data pertaining to two “events.” The recorder indicated that the van’s speed increased from 50 to 55 miles per hour during the recorded interval. However, the speeds recorded were not always accurate. The recorder also showed that during that recorded interval the brakes were not applied, but the pressure on the gas pedal varied. An event that did not cause the airbag to deploy “awoke” the recorder 2.8 seconds before the event that caused the airbag to deploy.
Los Angeles County Sheriff’s Deputy Kevin Kuwata arrived at about 6:15 p.m. to investigate the accident. He noticed an indentation in the dirt of the center median, plant leaves and a small amount of dirt on the road just south of the indentation and north of the intersection with Basswood, a black tire mark on the curb of the center median, and damage to the plants in the median, “as if a vehicle going southbound on Silver Spur had gone into the center median, kicked [the dirt] up out of the center median, [and] continued down.” Kuwata also noticed scraping and scoring on the tires on the driver’s side of the Enterprise van. Deputy Grant Gazeley testified, however, that the damaged vegetation in the center median was 251.5 feet south of the north curb line of Basswood.
The described location would lie south of the collision site, i.e., beyond the path covered by the Enterprise van.
Enterprise’s accident reconstruction expert, Greg Stephens, opined that the Enterprise van struck the curb on its left, went onto the median, struck the bushes on the median, came off the median where the left turn lane began, struck the curb on its left again, angled slightly to the right, and struck Ortner’s car at 50 to 55 miles per hour. The “entire curb activity” constituted the “nondeployment event” on the event data recorder. Stephens believed that the van “was uncontrolled” through the entire sequence of events, i.e., that Ortiz did not react to control the van at all, even after it went onto the median. This pattern was consistent with an incapacitated driver, but not an inattentive driver. Stephens’s inspection of the van revealed swiping scratch marks on its left side that were consistent with contact with the bushes on the median and tire damage consistent with curb contact.
In rebuttal, the Ortners called their accident reconstruction expert, Stephen Plourd, who opined that the van was moving slightly to the left when it struck Ortner’s car. In addition, Plourd testified that the event data recorder did not record the last 0.99 second after the “deployment event” and before the collision. In order to have the computer simulation depict the van at its actual ultimate point of rest, both Plourd and Stephens were forced to include as a parameter the full application of the van’s brakes in the one-tenth second after the collision. Plourd included in his simulation the application of the van’s brakes at the moment of the collision. Plourd opined that the van accelerated as it went toward Ortner’s car, struck the curb but did not go onto the median, veered very slightly to the left just before the point of impact, and fully applied the brakes at the moment of impact. Application of the van’s brakes and the variations in the throttle recorded by the event data recorder in the seconds prior to the accident were inconsistent with a conclusion that Ortiz was incapacitated.
Dr. Dennis Shanahan, a physician and biomechanist, also testified as an expert witness for the Ortners. He opined that, under either Stephens’s or Plourd’s accident reconstruction scenarios, if Ortiz became incapacitated within the last three seconds before the collision with Ortner’s car, Ortiz’s hands would drop from the steering wheel and he would slump forward onto the steering wheel and receive severe, obvious injuries to his face and upper chest from the deployment of the airbag. The records indicated Ortiz did not have such injuries. Shanahan further opined that if Ortiz were incapacitated, the movement of the van after the collision would move Ortiz’s body toward the right side of the van. The injuries to Ortiz’s arms were typical of those suffered by drivers whose hands were on the steering wheel when the airbag deployed. If Ortiz had been wearing a seatbelt and “the belt locked up” while he was still upright, he would not have slumped forward if he became incapacitated. However, the event data recorder indicated Ortiz was not wearing a seatbelt. Shanahan opined, therefore, that the evidence was not consistent with Ortiz being incapacitated.
Using a special verdict form, the jury found that Enterprise was negligent, and its negligence was a substantial factor in causing Ortner’s death. The jury found that Marilyn Ortner sustained damages including $311,587 for past economic damages, $1,397,864 for future economic damages, and $1.75 million for loss of love and companionship, etc. The jury also found that Andrew and Scott Ortner sustained damages of $300,000 each for loss of their father’s love and companionship, etc. The court accepted the jury’s apportionment of the damages, denied Enterprise’s motion for a new trial, and entered judgment for the plaintiffs.
DISCUSSION
1. Admission of evidence that Ortiz was not wearing a seatbelt
Enterprise defended the Ortners’ action on the theory that Ortiz was medically incapacitated by a stroke at the time he crashed into Ortner’s car. The key disputed issue at trial thus became the timing of Ortiz’s stroke. In their effort to prove that Ortiz was not incapacitated prior to or at the moment of the collision, the Ortners relied upon eyewitness testimony about Ortiz’s condition immediately after the accident, evidence concerning the movement of the van, and expert testimony regarding what would have happened to Ortiz’s body immediately preceding and during the collision if he were unconscious or otherwise incapacitated. Whether Ortiz was restrained by a seatbelt or not was a crucial factor in the expert’s analysis of what would have happened to Ortiz’s body if he were incapacitated.
Enterprise’s second motion in limine sought to exclude evidence that Ortiz was not wearing his seatbelt at the time of the accident. The motion argued that such evidence was irrelevant and posed a risk of confusing or unduly prejudicing the jury. The Ortners opposed the motion by explaining how the seatbelt evidence fit into their expert’s analysis to show that Ortiz did not suffer a pre-accident stroke. They attached to their opposition excerpts from the depositions of plaintiffs’ and defense experts. The trial court granted the motion on relevance and Evidence Code section 352 grounds. The Ortners subsequently filed supplemental points and authorities regarding the purpose and relevance of the evidence. The trial court declined to reconsider its ruling. During trial, the Ortners again requested reconsideration, and the trial court again denied it.
During a break in the testimony of Dr. Shanahan, two jurors sent the court notes asking whether Ortiz was wearing a seatbelt at the time of the accident. The court discussed the notes with counsel and conducted an Evidence Code section 402 hearing at which Shanahan testified. The court then agreed to admit the seatbelt evidence. The court noted that it made its prior ruling “before all the evidence was in and certainly before the expert witness” testified. It explained that “[o]ne of the things that tips the consideration at this time is two different inquiries from two different jurors about the seatbelt. Counsel have demonstrated that there is a clear argument both ways based on expert testimony and on their analysis on what the expert said. [¶] It is a different ball game than it was at the time of the original inquiry and particularly the curiosity of the jurors.”
When the jury returned to the courtroom, the court, with the express agreement of counsel, informed the jury that “the driver of the car” was not wearing a seatbelt at the time of the accident. Shanahan resumed testifying and stated that all of his opinion testimony prior to the break was based upon his belief that Ortiz was not wearing a seatbelt. He further testified that the event data recorder showed Ortiz was not wearing a seatbelt.
Because the jury previously heard the parties stipulate that Ortner wore a seatbelt at the time of the accident, the court’s imprecise language may not have confused the jury.
The court subsequently gave the following jury instruction addressing the seatbelt issue: “Evidence has been presented to you that Joseph Ortiz was not wearing a seatbelt during the time period leading up to the events surrounding this accident. You may consider this evidence for all issues in the case, except you may not use this evidence to conclude that Mr. Ortiz was negligent in the operation of the van simply from the fact that he was not wearing a seatbelt.”
Enterprise contends the trial court abused its discretion by reversing its ruling on the seatbelt evidence due to jurors’ curiosity.
A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.) A ruling on a motion in limine is inherently tentative, and the trial court is free to reconsider its ruling on such a motion. (People v. Karis (1988) 46 Cal.3d 612, 634, fn. 16; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1430.) Moreover, we review the trial court’s ruling, not its rationale. (Cates v. Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1312.) This standard applies to the trial court’s exercise of its discretion, i.e., we review the correctness of the trial court’s ruling, not the reasons underlying it. (People v. Koontz (2002) 27 Cal.4th 1041, 1075, fn. 4.)
The trial court’s original exclusion of the seatbelt evidence appears to have been based on an incomplete understanding of its relevance. The Ortners disclaimed any intention to argue that Ortiz’s failure to wear a seatbelt played any role in causing the accident or that Ortiz was negligent because he was not wearing a seatbelt. The absence of a seatbelt played a more subtle role as an element showing body movement or lack thereof, which in turn was relevant to show whether or not Ortiz was incapacitated by a stroke just prior to or at the time of the accident. The Ortners’ theory was, in essence, that Ortiz’s body position and movement would have been different and his body would have suffered different physical trauma than it actually exhibited if he were both incapacitated and unrestrained by a seatbelt as the Enterprise van sped toward Ortner’s car. The evidence was thus highly probative. In contrast with the exceptionally dangerous manner in which the Enterprise van approached the intersection and the extremely tragic consequences, evidence that Ortiz was not wearing a seatbelt created little or no risk of undue prejudice. Moreover, any risk of undue prejudice was dramatically diminished by the Ortners’ willingness to stipulate or otherwise make it clear to the jury that they did not seek a finding of negligence simply because Ortiz was not wearing a seatbelt. Under the circumstances, the risk of undue prejudice did not outweigh the probative value of the seatbelt evidence. Furthermore, the evidence as to whether Ortiz was wearing a seatbelt was simple and its introduction consumed little time. Although this evidence was used in fairly complicated theories of body motion, whether or not Ortiz wore a seatbelt was a very simple matter that posed no risk of confusing the jury. Accordingly, the trial court erred by initially excluding the seatbelt evidence.
The court’s subsequent ruling admitting the seatbelt evidence corrected the court’s prior error. The events and circumstances that prompted the court’s change of heart are of no consequence in determining the propriety of the subsequent ruling.
In its reply brief, Enterprise argues for the first time that Code of Civil Procedure section 1008 precluded the trial court from reconsidering and changing its ruling on the motion in limine. An argument may not be raised for the first time in a reply brief without an explanation for failing to raise it earlier. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Moreover, Code of Civil Procedure section 1008 does not limit the trial court’s ability to reconsider and correct its interim rulings. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) It does not matter whether the trial court acts upon its own motion or at the suggestion of a party. (Id. at p. 1108.) Accordingly, it is irrelevant that juror questions prompted the trial court to reconsider its ruling in this case.
The late timing of the court’s ruling admitting the seatbelt evidence clearly created the potential for prejudice. However, Enterprise did not argue during trial that it would be prejudiced by the court’s late reversal of its ruling. Nor did Enterprise seek an opportunity to re-open its case or a continuance to attempt to counter the evidence.
Nor has Enterprise made any offer of proof or showing of prejudice at the motion for new trial or here on appeal. It argues that Stephens, its expert who could have testified on “occupant kinematics,” lived in Washington. However, Enterprise never made a showing in the trial court that Stephens had already returned to Washington at the time the court reversed itself on the seatbelt evidence or, if so, that Enterprise could not secure his return to testify, perhaps after a brief continuance. Nor did Enterprise at any time attempt to show the substance of Stephens’s testimony, had he been re-called to address the seatbelt issue. Absent such a showing, Enterprise has not sustained its burden of showing a reasonable probability that, absent the late reversal by the trial court, it would have obtained a more favorable verdict. It is also noteworthy that during trial, Enterprise informed the court that Stephens would testify that Ortiz was not wearing a seatbelt.
Enterprise refers in its appellate brief to other witnesses who had “potential knowledge” of whether Ortiz was wearing his seatbelt, including the Pesters, Ibarra, Van Buren, and Kovacs. However, Enterprise never sought to recall any of these witnesses and never provided evidence of what any of these witnesses would have said regarding the seatbelt issue. Moreover, Enterprise conceded on several occasions that Ortiz was not wearing a seatbelt.
Enterprise attempts to excuse its failure to reopen its case or seek a continuance in the trial by arguing, in essence, that in order to preserve the issue for appeal, it had avoided “bringing in witnesses to contradict improperly admitted evidence ….” Enterprise is wrong. “An attorney who submits to the authority of an erroneous adverse ruling, after making appropriate objections, does not waive the error in the ruling by introducing responsive evidence to offset or explain the erroneously admitted evidence so far as possible.” (Hoel v. City of Los Angeles (1955) 136 Cal.App.2d 295, 310 (Hoel); see also McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, 209.)
Enterprise misinterprets Gimbel v. Laramie (1960) 181 Cal.App.2d 77 (Gimbel), in which the plaintiff failed to seek a mistrial after learning that the trial court, acting ex parte in a court trial, had effectively received evidence regarding a disputed factual matter from an unsworn witness. The plaintiff instead asked to reopen his case and presented additional evidence on the disputed factual issue. The appellate court concluded that “[b]y electing to reopen his case, rather than move for a mistrial, appellant waived his right to a new trial or to a reversal of the judgment on that ground. Counsel may not elect to introduce additional evidence to counteract evidence wrongfully received by the court, speculating upon a favorable judgment, and at the same time reserve his objection in the event the judgment should be adverse to him.” (Id. at pp. 85-86.) Gimbel is merely an application of the familiar rule that an error is forfeited if not raised in the trial court. The plaintiff in Gimbel forfeited his appellate claim by failing to move for a mistrial. If he had made such a motion and the trial court had denied it, his introduction of additional evidence would not have resulted in a forfeiture of the appellate claim. “If the appellant makes his objection … and is unsuccessful, it is hardly safe for him to stand firm, risking everything on the objection. Usually he will proceed, despite the error, to meet the opposing case on the merits. This necessary precaution on his part does not indicate acquiescence in the ruling and does not result in a waiver of the error.” (Hoel, supra, 136 Cal.App.2d at p. 311.)
Because Enterprise did not attempt to avert prejudice at trial and has made no showing of prejudice from the timing of the court’s ruling, it has no valid claim for relief on appeal.
2. Exclusion of evidence of pension death benefit
Marilyn Ortner sought to recover, inter alia, the loss of the pension payments James Ortner would have received had he survived. The Ortners’ fifteenth motion in limine sought to apply the collateral source rule to exclude evidence of the death benefit paid to Marilyn Ortner by James Ortner’s pension plan. Enterprise, which hoped to use the death benefit as an offset, opposed the motion. The trial court granted the motion. Enterprise sought reconsideration, which the trial court implicitly denied.
The parties stipulated that if a reviewing court found Enterprise was entitled to a credit for the death benefit in issue, its amount would be $119,181.00.
Enterprise contends the trial court erred by excluding evidence of the death benefit Marilyn Ortner received. It argues that it was entitled to offset the death benefit against the economic damages awarded to Mrs. Ortner and that this court should reduce the judgment by $119,181.00.
“The collateral source rule operates to prevent a defendant from reducing a plaintiff’s damages with evidence that the plaintiff received compensation from a source independent of the defendant.” (McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1222 (McKinney).) Collateral sources falling within this rule include insurance, disability benefits, pensions, and an employer’s continued payment of wages. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 13 (Helfend).) The fundamental rationale for the collateral source rule is that a “tortfeasor should not garner the benefits of his victim’s providence,” (id. at p. 10) i.e., avoid paying full compensation for the injury inflicted merely because the victim, through “thrift or foresight,” “actually or constructively secured insurance, pension or disability benefits to provide for themselves and their families.” (Arambula v. Wells (1999) 72 Cal.App.4th 1006, 1009 (Arambula).) Otherwise, liability for tort-caused losses would be misallocated and the tortfeasor would obtain a windfall. (Ibid.) In addition, “[t]he collateral source rule is also considered to play a necessary role in the complex and delicate calculations of damages. …[B]ecause juries are not told a plaintiff’s attorney may receive a contingent fee out of any recovery, the rule partially serves to compensate the attorney’s share. In these circumstances, the application of the rule is not considered to lead to a double recovery, but rather to a ‘closer approximation to full compensation.’ [Citation.]” (Smock v. State of California (2006) 138 Cal.App.4th 883, 887 (Smock).)
The present case is substantially similar to McKinney, supra, 96 Cal.App.4th 1214. McKinney was retired and received pension and Social Security payments. After his asbestos-related death, his widow brought a wrongful death action seeking, inter alia, loss of the decedent’s pension and Social Security benefits. (Id. at pp. 1219-1221.) One of the defendants sought to preclude Mrs. McKinney from introducing evidence to support these aspects of her damages claim on the ground that she had suffered no financial loss, as she was receiving benefits from the pension plan and Social Security payments. (Id. at pp. 1220-1221.) In opposition, Mrs. McKinney argued that her husband elected to receive reduced pension benefits in order to obtain survivor benefits for her, and she was receiving Social Security death benefits of 70 percent of her husband’s pre-death benefits. (Id. at p. 1221.)
The Court of Appeal in McKinney, supra, 96 Cal.App.4th 1214, held that each source of payments to Mrs. McKinney was a collateral source, and the defendant was not entitled to use these benefits to diminish the damages. (Id. at p. 1222.) The court explained that the absence of any net loss was irrelevant to the application of the collateral source rule. (Id. at p. 1224.) The Social Security benefit “did not exist before decedent’s death, but is a new benefit flowing to Sharon McKinney as a direct result of the death. It is a classic collateral source.” (Id. at p. 1226.) With respect to the pension survivor benefits, the court noted that the election of reduced benefits in exchange for death benefits to a surviving spouse was effectively “a constructive payment for the survivor benefit,” making “it look much like an insurance policy.” (Id. at p. 1227.) The court explained that a survivor’s pension benefit is “‘“a derivative right, an element of the deceased’s compensation earned by the employee by his performance of his duties.”’” (Ibid., citations omitted.) Accordingly, “[t]he contributions to the pension plan resulted in a collateral source benefit wholly independent from the tortfeasor.” (Ibid.)
Similarly, James Ortner constructively “paid for” the pension death benefit Marilyn Ortner received. It was part of the compensation he earned during his employment with the Orange County Transportation Agency. (Frazier v. Tulare County Bd. of Retirement (1974) 42 Cal.App.3d 1046, 1049; McQuillan v. Southern Pacific Co. (1974) 40 Cal.App.3d 802, 807-808.) The death benefit did not exist until James Ortner’s death, and his labor “earned” it for Marilyn Ortner. It is a collateral source that Enterprise may not use as an offset against the damages for which it is liable.
Enterprise relies upon Rotolo Chevrolet v. Superior Court (2003) 105 Cal.App.4th 242, in which a firefighter (Staudt) was injured by a vehicle supplied by the defendant automobile dealer. Staudt claimed his injuries forced him to retire, and he sought to recover the wages and “regular retirement benefits” he lost as a result of his early retirement. He sought, however, to exclude evidence of the disability pension he was receiving. (Id. at p. 244.) The Court of Appeal held that the collateral source rule did not bar evidence of Staudt’s disability pension. The court reasoned that, although the disability pension was a collateral source with respect to lost wages, it was not collateral to the lost “regular” pension: “[A] pension is a pension is a pension, and Staudt is not entitled to characterize the disability pension payments he receives from his employer as a collateral source replacing regular pension payments that he would have received from his employer.” (Id. at p. 247.) The court was concerned that Staudt would receive “triple compensation” if Rotolo were precluded from introducing evidence of the disability pension payments. (Id. at p. 246.) The court explained, “As has been noted, the collateral source rule can result in a double recovery for Staudt, but this consequence is acceptable in furtherance of the policy of encouraging persons to obtain financial protection against misadventures. However, there is no reason to award yet another level of recovery for Staudt who happens to have the option of taking a disability retirement rather than a regular retirement. The logic behind the rule does not extend so far. Staudt could not receive both a disability pension and a regular pension, and there is no justification for allowing him to claim that he has been ‘damaged’ by the loss of his regular pension when he is actually receiving the disability payments.” (Id. at p. 247.)
Enterprise’s attempt to apply Rotolo to this case has a limited superficial appeal: Ortner could not receive both his regular pension and this death benefit, just as Rotolo could not receive both his disability pension and regular pension. However, the death benefit was not an alternative to Ortner’s pension payments. Like the benefits in issue in McKinney, the death benefit did not exist before James Ortner’s death. It is a new benefit flowing to Marilyn Ortner as a direct result of the death. It is therefore specious to argue that James Ortner could not have received both his regular pension and the death benefit. Indeed, it is possible that Marilyn Ortner would have received a death benefit from her husband’s pension even if James Ortner had retired, received pension payments, and then died. This further distinguishes the death benefit Marilyn Ortner received from the disability pension in Rotolo, in that Staudt could under no circumstances retire for disability and subsequently receive his regular pension, or vice versa.
Neither party presented the trial court with evidence on this point.
Furthermore, Marilyn Ortner did not, as Enterprise argues, receive a “triple recovery.” Her lost share of her husband’s earnings up to the projected date of his retirement and the lost pension benefits constitute one item -- lost earnings -- that covered two time periods -- before and after retirement. Accordingly, she at most received the “double recovery” entailed in most applications of the collateral source rule: an award of damages for her husband’s lost earnings and a death benefit paid by the collateral source. Moreover, we note that the Rotolo court’s focus on whether the plaintiff would obtain a double or triple recovery seems to be a dubious rationale for the sound result reached in that decision. The chief purpose of the collateral source rule is to prevent the defendant tortfeasor from escaping its full share of liability, and whether the plaintiff obtains a “double recovery” is inconsequential, in addition to being largely illusory. (Helfend, supra, 2 Cal.3d at pp. 10, 12-13; McKinney, supra, 96 Cal.App.4th at pp. 1223-1224; Arambula, supra, 72 Cal.App.4th at pp. 1009, 1014, fn. 1.) “In the end, while barring the collateral source from consideration may confer a benefit on the victim, allowing it to be considered would benefit the wrongdoer. So, courts choose in such cases to benefit the victim.” (Smock, supra, 138 Cal.App.4th at p. 888.) A focus upon whether the plaintiff’s recovery including payments from collateral sources is twice, thrice, or “n” times his or her economic loss is unsound, as it does not comport with the principles underlying the rule. As the McKinney court stated, “[The defendant’s] complaint that McKinney did not actually suffer a loss because she received post-death benefits from the same source as her husband’s earnings makes no difference in the application of the collateral source rule. Barring consideration of payments from an outside source will always result in a reduction of the loss actually suffered by a plaintiff. As noted in Hume v. Lacey (1952) 112 Cal.App.2d 147 [245 P.2d 672], the fact that a plaintiff may in fact receive as much, or more than he or she received prior to the injury, does not impact the collateral source rule. (Id. at pp. 151-152.) It is an integral part of the rule that a plaintiff will be compensated for his or her loss in some fashion from the outside source.” (McKinney, supra, 96 Cal.App.4th at p. 1224.)
As in McKinney and many other cases applying the collateral source rule, Enterprise’s argument is, in essence, an attempt to avoid paying the full damages for which the jury found Enterprise liable because Marilyn Ortner benefitted from her husband’s advantageous employment. However, the death benefit was a collateral source, and it is Enterprise’s responsibility to compensate for all harm caused when its employee killed James Ortner, not just Marilyn Ortner’s net loss. “The purpose of the rule is not served by allowing the defendant to escape liability for a wrong merely because the decedent was wise enough to provide for his spouse after death.” (McKinney, supra, 96 Cal.App.4th at p. 1223.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.