Van Dyne v. McCarty

• Decision Date: 12 March 1985
• Citation: 212 Cal.Rptr. 571,166 Cal.App.3d 817
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 166 Cal.App.3d 817 166 Cal.App.3d 817 Nancy VAN DYNE, Plaintiff, Cross-Defendant, Respondent and Cross-Appellant, v. Joseph R. McCARTY, Defendant, Cross-Complainant, Cross-Defendant and Cross-Respondent, William Gerald Dunn, Defendant, Cross-Complainant, Cross-Defendant, Appellant and Cross-Respondent. Civ. 23032.

Page 571

212 Cal.Rptr. 571

Previously published at 166 Cal.App.3d 817

166 Cal.App.3d 817

Nancy VAN DYNE, Plaintiff, Cross-Defendant, Respondent and Cross-Appellant, v. Joseph R. McCARTY, Defendant, Cross-Complainant, Cross-Defendant and Cross-Respondent William Gerald Dunn, Defendant, Cross-Complainant, Cross-Defendant, Appellant and Cross-Respondent.

Civ. 23032.

Court of Appeal, Third District, California.

March 12, 1985.

Rehearing Denied and Partial

Publication Ordered April 10, 1985.

Certified for Partial Publication. ^*

Review Granted May 23, 1985.

Trembath, McCabe, Schwartz, Evans & Levy, Michael P. McCabe, and Bryce C. Anderson, Concord, for plaintiff, cross-defendant, respondent, and cross-appellant, Nancy Van Dyne.

Weintraub, Genshlea, Hardy, Erich & Brown, Steven T. Scully, and Pamela E. Cogan, Sacramento, for defendant, cross-complainant, cross-defendant, and cross-respondent, Joseph R. McCarty.

Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Mark G. Bonino, Lawrence M. Guslani, and Robert S. Luft, Redwood City, for defendant, cross-complainant, cross-defendant, appellant, and cross-respondent, William Gerald Dunn.

EVANS, Acting Presiding Justice.

Plaintiff suffered a knee injury in a pedestrian automobile accident caused by defendants. Defendant Dunn appeals from the judgment finding him negligent, and plaintiff cross-appeals from the order reducing her damage award by the amount she received from her uninsured motorist's coverage. We shall affirm the finding of negligence on the part of Dunn, but reverse the set-off order.

Plaintiff and her husband were standing by a snowbank on the north side of the road west of the intersection of highways 89 and 28 in Tahoe City, waiting for a ride to the ski areas. East of the intersection, highway 89 has four lanes, two left turn only lanes and two through lanes. West of the intersection the two through lanes merge into one. As traffic stopped for a red light, defendant Dunn was in the second left turn only lane (lane # 2). Although the road markings were covered by sand, an overhead sign clearly delineated the turn lanes. An unidentified red vehicle occupied the through lane to the right of Dunn (lane # 3), and defendant McCarty was in the far right lane (lane # 4). As the light changed, defendant McCarty proceeded through the intersection in the far through lane (lane # 4); defendant Dunn did not turn left, but instead proceeded through the intersection and shifted to the right toward the red vehicle. The unidentified red vehicle veered to the right toward the McCarty vehicle, causing McCarty's vehicle to swerve to the right and strike plaintiff.

Dunn, McCarty, and Tana McDonald, owner of the vehicle driven by McCarty, were named in plaintiff's complaint as defendants. A default judgment was taken against McDonald. The red vehicle did not stop after the accident, and its owner was not identified. The jury returned a verdict in favor of plaintiff against Dunn and McCarty for $50,000. In a special verdict, the jury found plaintiff had been contributorily negligent in the amount of 5 percent and reduced the judgment accordingly to $47,500. Dunn and McCarty were each found to be 45 percent negligent. ¹ Upon the request of the defendants, the judgment was further reduced by $15,000, the amount plaintiff received prior to trial from her uninsured motorist insurance policy.

I ²

II

On her cross-appeal, plaintiff contends the trial court erred in reducing her judgment by $15,000 she received from her insurance carrier under the uninsured motorist clause. We agree.

Plaintiff is insured by California State Automobile Association (hereafter CSAA). Under the uninsured motorist provision included in her policy, CSAA paid plaintiff $15,000 prior to the trial because of the uninsured status of Dunn and Tana McDonald, the owner of the vehicle driven by McCarty. At the time the judgment was reduced by this amount on motion of the defendants, the statute of limitations had not run on the time in which CSAA could bring an action against defendants under its subrogation rights. (Ins.Code, § 1580.2, subd. (g).) That time has now expired, and CSAA has failed to bring such an action against defendants. However, plaintiff remains potentially liable to CSAA for reimbursement under the terms of her policy.

More importantly, the motion to reduce the judgment was made in reliance upon Waite v. Godfrey (1980) 106 Cal.App.3d 760, 163 Cal.Rptr. 881. In Waite, the plaintiff received injuries as the result of a chain reaction accident. The vehicle which made the first impact fled the scene and was not joined as a defendant. The plaintiff received $12,000 from her insurance company under the uninsured motorist clause, because she successfully proved to the carrier the hit-and-run driver had caused her injuries. (Id., at p. 764, 163 Cal.Rptr. 881.) The defendants were the driver of the vehicle hit by the phantom driver and the person he hit, who in turn struck the plaintiff. Prior to trial, the court granted the defendants' motion to set off any judgment obtained by the $12,000 settlement. After the jury returned a verdict in favor of the plaintiff for $20,000, the trial court reversed its prior order and declined to allow a setoff. (Id., at p. 765, 163 Cal.Rptr. 881.)

The appellate court reversed, taking great pains to emphasize that its decision was based on the fact the uninsured motorist settlement was paid because of the concurrent negligence of the hit-and-run driver, not because of the negligence of the named defendants. The court stated, "In short, the settlement of $12,000 received by plaintiff is in no conceivable sense traceable to any act of the defendants. [p] ... In the case before us, we repeat, the uninsured motorist coverage settlement was paid to plaintiff only because of the concurrent negligence attributable to the Jaguar driver and not because of any negligence of the defendants. [Emphasis in original.] ... [p] In terms of the relationships of the parties here, including the absent Jaguar driver, we reiterate that the uninsured motorist settlement received by plaintiff represented only a payment made on the occasion of damage inflicted by another joint tortfeasor, i.e., another wrongdoer besides defendants, regardless of what carrier was the source of the payment." (Id., at p. 772, 163 Cal.Rptr. 881.) The court correctly noted that a plaintiff is entitled to only one satisfaction, and if partial payment is received from one tortfeasor, the obligation to pay on the part of the others shall be reduced accordingly. (Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 813, 155 P.2d 633; Code Civ.Proc., § 877.)

Waite is factually inapposite to the present proceedings and does not support the order of reduction for three reasons. First, the present case involves an uninsured motorist payment made because of the uninsured status of defendants, ³ not because of the action of the unidentified red vehicle, a potential joint tortfeasor. Plaintiff could not have made a claim under her uninsured motorist coverage for the actions of the red car as there was no physical contact between it and her. (Ins.Code, § 11580.2, subd. (b)(1); Boyd v. Inter-insurance Exchange (1982) 136 Cal.App.3d 761, 764, 186 Cal.Rptr. 443.)

The "collateral source" rule is an exception to the general rule of mitigation of damages. Where a plaintiff receives compensation from a source wholly independent of the tortfeasor, his or her recovery is not reduced. (Anheuser-Busch, Inc. v. Starley (1946) 28...