Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS02434
RAYE, J.The jury in this personal injury case was confronted with the sole, but difficult, task of segregating the damages that arose from plaintiff Curtis Staggs’s preexisting degenerative disc disease from the damages that were caused by a minor traffic accident. On appeal, plaintiff asserts he is entitled to a new trial on damages because the jury award was inadequate and the trial court did not allow him to recover his past medical expenses from both defendants, Union Pacific Railroad Company and Renzenberger, Inc. Plaintiff overlooks the limited scope of appellate review, undervalues the role of the jury, and confuses the collateral source rule with defendants’ joint and several liability. We affirm.
FACTS
The jury heard and rejected both plaintiff’s and defendants’ filtered versions of the facts, and yet both sides reiterate the same hyperboles on appeal, forgetting perhaps that we are appellate judges, not jurors. This case was not, as defendants contend, an exclusive battle of the experts. If it had been, the jury would have been far more generous to plaintiff based on the impressive testimony of his spine specialist. Rather, the jury heard not only the competing opinions of plaintiff’s treating physicians and the defense orthopedist, who had a limited practice, had spent only an hour with plaintiff, and who testified almost exclusively on behalf of defendants, but contrasting views of plaintiff himself. The verdict suggests the jurors were neutral arbiters of his injuries and his character-neither the saint nor the villain painted by the advocates. There are far fewer relevant facts than the extensive briefing would suggest.
Before the Accident
Plaintiff, following in his father’s footsteps, began working for defendant railroad when he was in his early twenties. He did not graduate from college. During high school and in the military, he boxed. Before the accident, he was active in sports, rode horses, and took care of his property. In 1994 an X-ray of the spine showed severe degenerative cervical disc disease, advanced for his age. Plaintiff failed to disclose this X-ray in answers to interrogatories because the discomfort was mild and fleeting, he did not miss work, and he had forgotten all about it. On appeal, he points out that the X-ray was of a different part of his back. The defense produced evidence, however, that plaintiff told one of his treating physicians that he had difficulty with his neck for many years. By 2003 plaintiff was a conductor with considerable seniority and a handsome salary and benefit package.
The Accident
Union Pacific contracted with Renzenberger to provide transportation for railroad employees. On May 9, 2003, plaintiff was riding in the front passenger seat of a van owned and operated by Renzenberger, en route from Lathrop to Roseville on Interstate 80. The engineer, who was also a passenger, testified the van was traveling about 10 miles an hour when the traffic slowed and the driver was unable to stop before the van bumped a car in front of it. He was not injured. Plaintiff testified he believed they were traveling between 10 and 20 miles per hour. Plaintiff’s neck and back felt stiff shortly thereafter. He reported his injury, was taken to the railroad’s clinic, and was prescribed medication.
Medical Treatment Following the Accident
For several weeks following the accident, plaintiff consulted with various doctors, all of whom prescribed conservative treatment, including physical therapy, muscle relaxants, and pain and sleep medication. On June 13, 2003, plaintiff consulted with a spine specialist in the Bay Area. Scans and X-rays revealed that plaintiff’s disc disease had gotten much worse since 1994, particularly on the right side, as evidenced by the presence of bone spurs and atrophy of his right triceps muscle. He had a bulging disc that was putting pressure on his spinal cord.
Union Pacific hired a videographer to record plaintiff’s daily activities. The jury watched videos in which plaintiff coached his son’s baseball team, rode a motorcycle, went boating on choppy water, and performed household chores. The defense expert who had viewed the video testified that plaintiff did not appear to be in any pain or discomfort.
Returning to Work
Despite his condition, plaintiff returned to work in November of 2004 without any medical restrictions. As a conductor, he had to climb up on the sides of train cars, release hand brakes, tie together air hoses, turn angle cocks, and perform a variety of other physical tasks. He requested, however, a freight route that usually required little switching activity, and he was able to spend most of his time on these trains sitting in the locomotive.
Plaintiff worked for a year and a half. Over time, the weakness in his hand, numbness in his arm, and pain in his neck increased, and as a result, he increased his pain medication. An additional CT scan showed severe narrowing of the disc space and that bone spurs caused a narrowing of the passageway through which the spinal cord runs. Pressure on one of the nerve roots was a major cause of his pain and right arm weakness. Plaintiff had a spinal fusion on May 1, 2006. He has not worked as a conductor since the surgery.
Postsurgery Outcomes
Plaintiff’s condition improved following his surgery. He regained strength, and his neck and arm pain decreased. Nevertheless, he suffered permanent nerve damage and continues to suffer chronic neck and arm pain, and chronic weakness in his right triceps muscle. To relieve the pain, he undergoes neurotomies every 9 to 18 months, during which the orthopedist places a heated needle into the affected nerves. His specialist testified that plaintiff was not permanently and totally disabled, but he was unwilling to give him a medical clearance to return to his job as a conductor.
Expert Testimony
Plaintiff’s spine specialist opined that the accident had caused a significant tear in one or more of plaintiff’s discs, and permanent damage to the nerves in the same area of the cervical spine. Plaintiff’s expert testified that in less than a quarter of a second, plaintiff’s head and neck had been thrust forward and then backward, and the movement tore the front and back walls of the disc and closed off the nerve hole. In short, plaintiff’s preexisting degenerative cervical spine disease became symptomatic following the accident.
Defendants’ expert orthopedic surgeon opined that the accident caused a strain or sprain of plaintiff’s cervical and lumbar spine. Such a soft tissue injury, according to the defense expert, was resolved within four months. He conceded that the accident might have aggravated plaintiff’s preexisting condition, but he believed plaintiff would have needed the same treatment, including surgery, within a few years even if he had not been involved in the accident.
Damages
Since defendants conceded liability, the jury was asked to find causation and damages. The issues raised in this appeal relate exclusively to damages. Plaintiff presented evidence that his past medical expenses were approximately $145,000; the jury awarded $70,000. Plaintiff’s expert economist opined his gross past wage loss was approximately $382,000, which would have incurred an income tax liability of $69,900; the jury awarded $160,000, allowing for an income tax liability of $29,000.
The jury awarded plaintiff $50,000 for past pain and suffering, but nothing for future pain and suffering. Plaintiff claimed future medical expenses of $4,000 for each neurotomy every 9 to 18 months for the rest of his projected 28-year remaining lifespan, and for $2,500 in medications annually. A vocational rehabilitation counselor estimated the cost of a recommended training program to be $12,733. The jury awarded $50,000 for future medical/rehabilitation expenses. And finally, plaintiff’s economist projected his gross future wage loss to be between $1,385,000 and $1,669,000; the jury awarded plaintiff $65,000 for future loss of earning capacity. Following posttrial motions, the court entered an amended judgment in a net amount of $284,188.66 against Union Pacific and in a net amount of $327,488.66 against Renzenberger.
DISCUSSION
I
Standard of Review
“A reviewing court must uphold an award of damages whenever possible and all presumptions are in favor of the judgment.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61, citations omitted (Bertero).) “The amount of damages is a fact question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. [Citations.] All presumptions favor the trial court’s ruling, which is entitled to great deference because the trial judge, having been present at trial, necessarily is more familiar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. [Citations.] [¶]... [¶]... [W]e do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor. [Citation.]” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
With citations to criminal cases and civil cases based on irregularity of the proceedings or other grounds not including the inadequacy of damages, plaintiff suggests that our review is de novo and our independent assessment requires a review of the entire record. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832; Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161; People v. Albarran (2007) 149 Cal.App.4th 214, 224-225; People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) While we have indeed reviewed the entire record, we are not at liberty to independently assess the credibility of the witnesses or to reweigh the evidence. We reject plaintiff’s notion that our review is de novo.
Future Pain and Suffering
Plaintiff urges us to reverse the jury verdict because it inconsistently awarded damages for “Future Medical Expenses/ Rehabilitation Costs” but gave him nothing for future pain and suffering when, by all accounts, the neurotomies he will continue to receive for the rest of his life are quite painful. According to plaintiff, awards that fail to provide compensation for pain and suffering are inadequate as a matter of law. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 893; Haskins v. Holmes (1967) 252 Cal.App.2d 580, 586-587 (Haskins); Buniger v. Buniger (1967) 249 Cal.App.2d 50, 54; Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 155 (Gallentine); Clifford v. Ruocco (1952) 39 Cal.2d 327, 329 (Clifford); Cary v. Wentzel (1952) 39 Cal.2d 491, 494.) As defendants aptly point out, however, none of these cases involve a preexisting condition. And it is plaintiff’s preexisting degenerative cervical disc disease that explains the jury’s verdict.
“Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them.” (Wysinger v. Automovile Club of So. Cal. (2007) 157 Cal.App.4th 413, 424.) In this case, the jury’s awards of $50,000 for future medical/rehabilitation expenses but nothing for future pain and suffering are consistent with the evidence and each other. First, we note that plaintiff did not ask the jury to separate medical from rehabilitation expenses. It could be, as defense counsel argued during the hearing on the new trial motions, that the $50,000 award was exclusively for rehabilitation expenses. Although plaintiff’s vocational rehabilitation counselor testified that the cost of the training program she recommended would be approximately $12,000, the jury was free to find that this amount would be inadequate to retrain a gentleman who had no college degree and had spent his entire career with the railroad. Given that he was earning an annual salary of $90,000, the jury could have determined that it would take a substantial investment to provide plaintiff the kind of education he would need to enable him to continue to make this kind of salary.
But even if the $50,000 included compensation for future medical expenses, the award is not inadequate based solely on the jury’s failure to award damages for future pain and suffering. The jury was free to reject plaintiff’s spine specialist’s opinion that the accident caused all of plaintiff’s medical expenses as well as his pain and suffering, and to find that although the accident aggravated plaintiff’s preexisting medical condition, it did not appreciably increase the pain and discomfort that plaintiff would experience in the future. There was evidence that plaintiff had neck pain and weakness in his arm before the accident, expert testimony that the aggravation of the condition had resolved in approximately four months, and testimony that he had returned to work without medical restrictions for two years. Further, a comparison of his 1994 X-ray with the imaging studies taken after the accident demonstrated that his preexisting degenerative disc disease had continued to worsen over time. Thus, the evidence supports the defense expert’s opinion that plaintiff would have experienced the same level of pain from his back disease even if the accident had never occurred.
The adequacy of damages depends upon the facts of each case. (Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555, 558 (Miller).) Miller affirmed a jury verdict that made no allowance for pain and suffering. The linchpin in the Miller analysis is relevant here-whether the medical expenses were incurred because of the defendant’s negligent act. (Ibid.) Even though liability is established, “a jury may conclude... that medical expenses paid were not occasioned by the fault of the defendants.” (Id. at p. 559.) Here the jury may have concluded, and there is substantial evidence to support the finding, that any future pain and suffering were not “occasioned by the fault of the defendants.” (Ibid.) The aggravation to plaintiff’s disc disease may have, in the jury’s view, subsided and any future pain and suffering would result not from the minor car accident, but from the preexisting degenerative disc disease.
Plaintiff relies on Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931 (Dodson) as support for his argument that the damages are inadequate as a matter of law. In finding inadequacy as a matter of law, however, we believe Dodson misapplies the authorities upon which it relies. None of the cases the court cites present conflicting evidence that the damages incurred were attributable to the fault of the defendant tortfeasor.
For example, in Haskins v. Holmes (1967) 252 Cal.App.2d 580, the court was limited to the facts established by the trial judge’s findings because the appeal was on the clerk’s transcript. “These facts, for purposes of appellate review, are undisputed and presumed to be sufficient to sustain the findings, no challenge thereto having been made -- thus, there is no issue either of defendant’s liability or of damage suffered by plaintiff. If then, we are to disturb the award, it must be on the theory that the uncontradicted facts before us demonstrate that it is insufficient as a matter of law.” (Id. at p. 585.)
Clifford, supra, 39 Cal.2d 327 presents an interesting compromise. The court found the evidence established without contradiction the extent of the injuries and the amount of damages. Based on those undisputed facts, the court found the damages inadequate as a matter of law. Nevertheless, the court was not convinced that the evidence of negligence was overwhelming, and therefore it remanded the case for a new trial on both liability and damages. There were no facts presented in Clifford involving a preexisting injury or secondary cause of the damages. Rather, the court intimated that the amount of damages could have been the result of a compromise verdict. On those facts, the court rejected the plaintiff’s request for a new trial limited only to damages. The case offers little to support the Dodson holding because the jury was presented no evidence to allocate damages to multiple causes.
Similarly, in Gallentine, supra, 248 Cal.App.2d 152, the tortfeasor did not seriously dispute the extent of the plaintiff’s injuries, nor did he seriously or successfully contend that the expenses incurred were not proximately caused by the gunshot wound. The court repeated the well-worn principles of appellate review of damages awarded in personal injury cases. “‘“‘The amount of damages in such cases is committed first to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion for a new trial, may consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just. Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is “so plainly and outrageously excessive as to suggest, at first blush, passion or prejudice or corruption on the part of the jury.” [Citing cases.]’”’” (Id. at p. 155.) Where, as in Gallentine, the evidence is undisputed about the extent of the plaintiff’s injuries as a result of the tortfeasor’s fault and a jury returns a verdict for the exact amount of special damages but awards no damages for pain and suffering, “a denial of a new trial by the trial court must be held an abuse of discretion and a judgment on a verdict in an insufficient amount may not be affirmed.” (Ibid.)
Unlike the undisputed facts in Haskins, Clifford, and Gallentine, the facts in Dodson were hotly contested. Not only did Mr. Dodson have a preexisting degenerative neck disease, but he was involved in three separate falls. (Dodson, supra, 154 Cal.App.4th at pp. 933-934.) He alleged that the defendant negligently caused the first fall. The defendant’s experts testified that the injuries the plaintiff sustained in the first fall did not cause the neck injury necessitating cervical surgery. (Id. at p. 934.) Hence, Dodson presented a factual dispute similar to the one presented to the jury in the case before us.
The court in Dodson reversed the jury’s verdict, which failed to award damages for the pain and suffering associated with the cervical surgery. The court explained: “Our review of the precedents leads us to conclude that this case falls squarely among those in which the jury verdict was found to be inadequate as a matter of law. In Dodson’s case, the factual conflicts that Miller and Haskins tell us may justify the jury’s failure to award noneconomic damages-whether the plaintiff received any substantial injury or suffered any substantial pain; whether medical treatment was actually given or was given as a result of the injuries; and whether the medical treatment was reasonable or necessary-were resolved by the jury in its special verdict. In Dodson’s case, we know-because the jury expressly decided-that J. Pacific’s negligence was a cause of Dodson’s injury, and that Dodson suffered economic damages ‘caused by the accident....’ We know that he underwent surgery in which a herniated disc was removed and replaced with a metallic plate. We know the jury awarded damages, at least in part, for Dodson’s surgical expenses. A plaintiff who is subjected to a serious surgical procedure must necessarily have endured at least some pain and suffering in connection with the surgery. While the extent of the plaintiff’s pain and suffering is for the jury to decide, common experience tells us it cannot be zero.” (Dodson, supra, 154 Cal.App.4th at pp. 937-938, fns. omitted.)
In our view, the question is not whether the plaintiff suffered pain associated with the surgery, for clearly, as the court pointed out, he did. The question, however, is whether the first fall caused the injury requiring the plaintiff to have a cervical surgery. The court concluded the jury’s special verdict finding the defendant’s negligence a cause of the injury and awarding him damages, in part, for the surgical expenses resolved the factual dispute that, in the earlier cases, precluded the courts from finding damages inadequate as a matter of law. We believe the court read the jury’s finding too broadly. To conclude the defendant was negligent, and his negligence was a cause of the injury, is not to attribute the need for the surgery to the defendant’s negligence. In other words, the jury could have found both negligence and causation, and yet concluded the injury sustained in the first fall did not cause any additional pain and suffering. That is to say, the plaintiff’s degenerative neck disease, coupled with the injuries sustained in the other two falls, might have necessitated the surgery with the attendant pain and suffering even in the absence of the defendant’s negligence.
There was substantial evidence to support the jury’s finding. Defense experts testified that the plaintiff would have exhibited severe symptoms following the first fall if he had herniated his cervical disc. (Dodson, supra, 154 Cal.App.4th at p. 934.) Given his preexisting condition and the subsequent falls, the jury certainly could have found the first fall did not produce pain and suffering above that which the plaintiff would have otherwise undergone.
Nevertheless, the Dodson court found the damages inadequate as a matter of law by overlooking the critical distinction between the facts before it and those in the cases upon which it relied. When, as in Haskins, Clifford, and Gallentine, the relevant and dispositive facts are undisputed, the appellate court does not interfere with the fundamental fact-finding role of the jury by assessing the damages as a matter of law. If, as in Dodson, however, the facts are disputed, then the appellate court usurps the jury’s essential fact-finding role by superimposing its assessment of damages. Although the Dodson court ostensibly based its holding on the jury’s special verdict, in actuality it undermined the jury’s ability to apportion fault and to attribute damages for pain and suffering to the disease or incident it found resulted in the surgery. As a consequence, we will not follow Dodson’s lead.
As we have pointed out above, plaintiff and defendants presented conflicting evidence as to the cause of plaintiff’s condition. The jury did not accept the all-or-nothing proposition offered by each side. It rejected plaintiff’s argument that the minor car accident caused the injuries that led to his surgery and the attendant pain and suffering. At the same time, it rejected defendants’ argument that the aggravation to his preexisting disc disease was resolved within four months. Given the disputed facts, we are not at liberty to decide, as a matter of law, whether the damages were inadequate, for there is nothing in this verdict to suggest it was the result of passion, prejudice, or corruption. Rather, the jury, having heard the conflicting evidence, determined the future pain and suffering were not attributable to Renzenberger’s fault. There is ample evidence to support the jury finding, nothing to suggest the trial court abused its discretion, and no mechanism for us to reweigh the credibility of the witnesses. Thus, unlike the court in Dodson, we affirm the jury’s assessment of damages and the trial court’s denial of the motion for a new trial.
Special Damages
Plaintiff also challenges the adequacy of the damages the jury awarded for lost earnings and future medical expenses, relying to a great extent on defendants’ failure to offer expert testimony on either element of damages. Thus, in plaintiff’s view, his own experts’ testimony is unassailable and he is entitled to far greater damages than the jury was willing to award. He misunderstands defendants’ burden of proof, the role of the jury, and the significance of his preexisting condition.
Defendants’ strategy was not to nitpick each element of damages, but to challenge the very core of plaintiff’s case-that the accident was the cause of all the ensuing discomfort, weakness, surgery, chronic pain, and eventually the inability to work as a conductor for the railroad. In executing this strategy throughout the trial, defendants demonstrated the severity of plaintiff’s preexisting cervical disc disease and how his condition had deteriorated from 1994 to 2003. Their medical expert opined that plaintiff’s preexisting condition, and not the accident, caused the debilitating symptoms plaintiff experienced and would suffer into the future. Moreover, defendants impeached plaintiff’s veracity with evidence that he failed to disclose his preexisting condition and was not forthcoming about the pain he had endured before the accident. Rather, it was one of his treating physicians who disclosed that plaintiff had experienced pain in his neck years before the accident.
It was plaintiff, not defendants, who bore the burden of proving the extent of his damages. The jury, of course, is at liberty to reject plaintiff’s evidence. It is true defendants did not hire economists and vocational rehabilitation counselors to challenge plaintiff’s experts’ calculations of damages. They did not need to. Their strategy was to challenge the vital link between their negligence and the special damages plaintiff incurred. And their strategy turned out to be effective. While the jury did not accept defendants’ notion that the aggravation to plaintiff’s preexisting condition was completely resolved in four months, it certainly accepted the basic premise that it was the preexisting condition, and not the accident, that caused most of the damages plaintiff incurred.
We again must remind plaintiff of the limited scope of appellate review of a jury award of damages. We must presume the jury resolved all evidentiary conflicts in defendants’ favor. (Bertero, supra, 13 Cal.3d at p. 61.) Moreover, we do not expect a jury to allocate damages between an injury attributable to a preexisting condition and the aggravation caused by the accident with “mathematical precision or great exactitude.” (Sauer v. Burlington Northern R.R. Co. (10th Cir. 1996) 106 F.3d 1490, 1494.)
Defendants aptly point out that a unanimous jury awarded plaintiff far less than the amount he sought on every item of damages, including lost earnings and future medical expenses. We must presume the jury found that plaintiff’s career as a conductor would have been shortened by his deteriorating disc condition and that the accident did little, if anything, to accelerate his retirement. We must also presume the jury found that plaintiff might require some additional medical treatment in the future as a result of his aggravated condition, but did not hold defendants responsible for the full extent of the neurotomies and sleep medication he would need the rest of his life. In sum, the jury rejected plaintiff’s theory of the case; that is, the jury did not find, as plaintiff had asked it to do, that defendants’ negligence resulted in a life of pain and suffering and the derailment of his career. We must defer to the allocation the jury attributed to the preexisting condition and to the accident.
II
Plaintiff next seeks additional damages from Renzenberger, even if those damages have already been paid and he would reap a double recovery. Far worse than a potential double recovery, in plaintiff’s view, is the spectacle of allowing Renzenberger, a tortfeasor, to benefit from the payments paid by Union Pacific’s health plan. Thus, he asserts the trial court erred by reducing the $70,000 for medical payments paid by Union Pacific’s insurer to $2,488.66. Plaintiff’s contentions first require an examination of the general principles pertaining to joint and several liability, and the collateral source rule exception to these general principles.
“The general rule of compensatory damages bars double recovery for the same wrong.” (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 673 (Krusi).) As a corollary to the general rule of compensatory damages, partial compensation to the plaintiff by one tortfeasor diminishes the plaintiff’s claim against other tortfeasors. (Ibid.) “Since the plaintiff can have but one satisfaction, evidence of such payments is admissible for the purpose of reducing pro tanto the amount of the damages he may be entitled to recover.” (Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 813.)
Plaintiff insists that defendants are not joint tortfeasors, as if that characterization dispenses with these basic principles. We agree with defendants that it is immaterial whether they are joint tortfeasors. Rather, they are jointly and severally liable for plaintiff’s damages because they face liability for the same indivisible injury to plaintiff. (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1115.) Indeed, plaintiff does not suggest they are responsible for distinct injuries.
Plaintiff does insist, however, that the health insurance payments are a collateral source and that, under the collateral source exception to the general principle that payment by one tortfeasor diminishes the plaintiff’s claim against other tortfeasors, receipt of the insurance payments did not reduce his claim for the same payments from Renzenberger. “The Supreme Court of California has long adhered to the doctrine that if an injured party receives 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.” (Helfend v. Southern California Rapid Transit District (1970) 2 Cal.3d 1, 6.) “The collateral source rule expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. If we were to permit a tortfeasor to mitigate damages with payments from plaintiff’s insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.” (Id. at p. 10.)
The collateral source rule does not apply to payments by other tortfeasors or their insurers; rather, the rule applies only to payments that come from a source entirely independent of the tortfeasor. (Krusi, supra, 144 Cal.App.3d at p. 674.) The question thus presented is whether the insurance payments provided by the health plan are payments emanating from a source wholly independent of Union Pacific and Renzenberger.
Plaintiff does not dispute that the medical expense payments he received under a Union Pacific-procured health insurance policy are not treated as a collateral source. His challenge is to the trial court’s reduction of the judgment against Renzenberger by the amount Union Pacific’s health insurance policy paid for his care. He contends that the payments are from a source entirely independent of Renzenberger, and therefore Renzenberger should be liable to pay again. We disagree.
We begin with the general rule that payment by one tortfeasor’s insurer diminishes the other tortfeasor’s liability. In those cases, the tortfeasor benefits not from the plaintiff’s foresight and sacrifice, but from the reality that another tortfeasor purchased insurance. Plaintiff maintains, however, that the health insurance procured by Union Pacific was a fringe benefit of his employment and fringe benefits fit within the collateral source rule exception. Not so, according to the Ninth Circuit Court of Appeals.
In Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377 (Folkestad), the Ninth Circuit analyzed the same health insurance agreement (policy GA-23000) at issue here. A product of the collective bargaining process, the policy states that the benefits “‘will satisfy any right of recovery against the employing railroad for such benefits to the extent of the benefits so provided.’” (Id. at p. 1379.) The railroads paid all the premiums. The court concluded that payments under GA-23000 are not fringe benefits and are not from a collateral source. Other circuits have endorsed this view. (See CSX Transportation, Inc. v. Williams (1998) 230 Ga.App. 573 [497 S.E.2d 66, 69].)
Plaintiff attempts to limit the Folkestad holding to railroad employers and actions under the Federal Employers’ Liability Act. (FELA; 45 U.S.C. § 51 et seq.) He contends Folkestad simply does not apply to a non-FELA entity like Renzenberger who has been sued under state tort law. He misses the point. Folkestad provides a thorough analysis of the pivotal issue-whether the insurance policy is a fringe benefit. While many employees contribute to the cost of health insurance premiums or in some manner negotiate for health coverage as an integral part of their compensation package, Folkestad makes clear that the railroads alone pay for the premiums and it was the express intention of the parties that the payments made under the plan would constitute full payment of the railroad’s obligation to the extent of the benefits provided. If, as Folkestad holds, the benefits are not a fringe benefit, then the payments are not collateral and plaintiff is not entitled to a double recovery under the collateral source exception.
Plaintiff further attempts to evade Folkestad with a quotation taken entirely out of context. He represents that the court in Folkestad made clear that the actual tortfeasor “‘should not have the benefit of payments to the injured person which he did not make.’” (Folkestad, supra, 813 F.2d at p. 1380, quoting Gypsum Carrier, Inc. v. Handelsman (9th Cir. 1962) 307 F.2d 525, 534.) He fails to point out that the court was distinguishing cases in which the employees paid for the premiums. In those circumstances, the employer tortfeasor should not benefit from the payments “he did not make.” But that, of course, was a distinguishing feature of the GA-23000 policy. The railroads, not the employees, paid for the health plan and the collective bargaining agreement provided that the insurance payments would set off the employer’s liability. Misleading quotations do not assist plaintiff’s position.
Anxious to distance himself from the Folkestad ruling, plaintiff attempts to draw us into the thorny thicket of controversial rulings as to whether a plaintiff can collect from a tortfeasor the negotiated rate differential (the difference between the amount medical providers have billed and the amount they have agreed to accept as payment in full under the terms of contracts with the insurers). In Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641 (Hanif), the court stated that “when the evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, that sum certain is the most the plaintiff may recover for that care despite the fact it may have been less than the prevailing market rate.” (Italics added.) Thus, the court concluded, “a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” (Id. at p. 643.) The collateral source rule, in the court’s view, was not an issue in the case.
Following Hanif’s lead, the court in Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 (Nishihama) barred a plaintiff’s recovery for the amount her providers billed but her insurer did not pay. Because under the terms of an agreement with Blue Cross the medical center agreed to accept reduced rates for specified services, Blue Cross paid and the medical center accepted $3,600 as payment in full for the $17,168 in medical services provided. (Id. at pp. 306-307.) The court found that “CPMC’s lien rights do not extend beyond the amount it agreed to receive from Blue Cross as payment in full for services provided to plaintiff. As CPMC has been paid that amount, it has no lien rights in the damages awarded to plaintiff, and the court, therefore, erred in permitting the jury to award plaintiff an amount in excess of $3,600 for the services provided by CPMC.” (Id. at p. 307.)
The so-called Hanif/Nishihama rule has been criticized within the state and rejected elsewhere. In Olsen v. Reid (2008) 164 Cal.App.4th 200 (Olsen), Acting Presiding Justice Moore wrote separately “to sound the bell of alarm: By virtue of the Hanif/Nishihama procedure... permitting the posttrial reduction of medical expenses, the collateral source rule has been buried without the dignity of any services or parting words. Without statutory authority or the Supreme Court’s blessing, the Hanif/Nishihama line of cases divorced the collateral source rule from the complicated area of medical insurance. Absent such approval, Hanif/Nishihama simply goes too far.” (Olsen, at p. 204.) Another court in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686 (Howell) echoed Justice Moore’s criticism and disagreed with the reasoning of these cases. The court concluded “that any further abrogation of the collateral source rule, particularly in the complex context of medical insurance presented here, is best left to legislative enactment rather than piecemeal common law development.” (Id. at p. 704.) Cases in other states have rejected the Hanif/Nishihama rationale and retained an expansive notion of the collateral source rule. (See, e.g., Pipkins v. TA Operating Corp. (2006) 466 F.Supp.2d 1255, 1259-1260; Bynum v. Magno (2004) 106 Haw. 81 [101 P.3d 1149].)
We need not weigh in on this contentious debate precisely because the insurance policy at issue here is not independent of the tortfeasors. More importantly, plaintiff is not seeking a negotiated rate differential, the pivotal fact at issue in the Hanif/Nishihama line of cases. The collateral source rule exception does not apply because, unlike the health insurance purchased by the plaintiff victims in Olsen and Howell, plaintiff’s benefits were paid by one of the tortfeasors. Thus, the rationale exalted in these cases for the collateral source exception simply does not apply. For example, the court explained in Howell: “[T]his benefit to Howell was a collateral source benefit within the meaning of the collateral source rule because it was conferred upon her as a direct result of her own thrift and foresight in procuring private health care insurance through PacifiCare, a source wholly independent of Hamilton as the defendant in this case. Under California’s collateral source rule..., Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift, and Hamilton, as the party liable for Howell’s injuries, should not garner the benefits of Howell’s providence. The law allows Howell to keep this collateral source benefit for herself because... she was responsible for the benefit by maintaining her own insurance.” (Howell, supra, 179 Cal.App.4th at pp. 699-700.)
Unlike Howell, plaintiff did not maintain his own insurance. Folkestad resolved any doubt in that regard. As a result, we transgress no public policy by providing a disincentive to purchase and maintain health insurance. Rather, we subscribe to the fundamental principles upon which our tort compensation system is predicated; that is, a plaintiff is entitled to compensation for the detriment caused by a tortfeasor’s negligence, but he is not entitled to a double recovery from tortfeasors who share joint and several liability for the injuries attributable to their fault. We reject plaintiff’s notion that adherence to these simple principles does damage to the efficacy of the collateral source exception when, as here, the source of the insurance was not independent of the tortfeasors, albeit in this case it was one of the tortfeasors who provided the insurance.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: NICHOLSON, Acting P. J. BUTZ, J.