Waite v. Godfrey

• Decision Date: 10 June 1980
• Docket Number: A-C,A-D
• Citation: Waite v. Godfrey, 163 Cal.Rptr. 881, 104 Cal.App.3d 790 (Cal. App. 1980)
• Court: California Court of Appeals
• Parties: Previously published at 104 Cal.App.3d 790 104 Cal.App.3d 790, 106 Cal.App.3d 760 Martha WAITE, Plaintiff and Respondent, v. George W. GODFREY and Dollar-ay Rent-ar Systems, Defendants and Appellants. Civ. 20418.

Page 881

163 Cal.Rptr. 881

Previously published at 104 Cal.App.3d 790

104 Cal.App.3d 790, 106 Cal.App.3d 760

Martha WAITE, Plaintiff and Respondent, v.George W. GODFREY and Dollar-A-Day Rent-A-Car Systems, Defendants and Appellants.

Civ. 20418.

Court of Appeal, Fourth District, Division 2, California.

June 10, 1980.

Hearing Denied Aug. 6, 1980.

Ruston & Nance, and Terry L. Sorensen, Tustin, for defendants and appellants.

Association of Southern California Defense Counsel, Richard B. Goethals, Los Angeles, Donald R. Worley, San Diego, and Phillip R. Marrone, Los Angeles, as amici curiae, on behalf of defendants and appellants.

Norbert R. Bunt, Santa Ana, for plaintiff and respondent.

California Trial Lawyers Ass'n, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Stephen I. Zetterberg, Claremont, Richard Bridgman, Oakland, Arne Werchick, San Francisco, Ralph D. Drayton, Sacramento, Harvey R. Levine,

Claremont, Ian Herzog, Los Angeles, Glen T. Bashore, and Leonard Sacks, Encino, as amici curiae, on behalf of plaintiff and respondent.

OPINION

McDANIEL, Associate Justice.

The petition for rehearing was granted in this case because of the representation by plaintiff's counsel that he had not received notice of the calendaring of oral argument and therefore had been foreclosed from the opportunity to present such argument.

After hearing plaintiff's argument and considering otherwise the petition for rehearing, we find no reason to change the opinion and decision heretofore filed.We therefore reissue the opinion.

The principal issue we are called upon to resolve on this appeal is whether uninsured motorist proceeds, received by plaintiff because of injuries caused by a hit-and-run driver, should be characterized as coming from a collateral source and hence not available as a setoff to the defendants involved in the same collision as joint tortfeasors.

Plaintiff sustained personal injuries and damage to her automobile as the result of a multi-car, low speed, chain-reaction type collision on the transition ramp leading from the northbound Newport (now designated Costa Mesa) Freeway onto the westbound Santa Ana Freeway in Orange County.Plaintiff's vehicle, while stopped, was rear-ended by another driven by Russell Williams.Williams had just an instant before been rear-ended by defendant Godfrey's vehicle rented from defendantDollar-A-Day Rent-A-Car.The Williams' vehicle was catapulted forward into plaintiff's by the force of the impact received from Godfrey's.

Defendant Godfrey testified at trial that he collided with Williams' vehicle because his had been rear-ended by one which had fled the scene after the accident.According to defendant Godfrey, traffic on the transition ramp was proceeding at a stop-and-go pace and, upon entering the ramp, he observed immediately behind him an older model Jaguar convertible, dark in color.The Jaguar, while remaining behind defendant Godrey, repeatedly gunned its engine.Just before the collision under litigation, defendant Godfrey observed Williams' vehicle moving forward, and defendant Godfrey began to move his forward as well, maintaining a safe interval between the two.Seconds thereafter, he heard the Jaguar's tires screech and felt a rear impact, which he stated propelled him forward into a collision with Williams' vehicle.As noted, Williams' then struck plaintiff's.

With reference to her damages, plaintiff offered evidence that she suffered severe neck and back injuries as a result of the collision.As a consequence, she claimed that she was unable to work for approximately two years and incurred significant medical expenses.

After a jury trial, a verdict was returned for plaintiff awarding her $20,000 in damages.Thereafter, defendants moved for a new trial which the trial court denied.Defendants appealed.

In their attack on the judgment, the defendants make multiple assignments of error.The key issue recited at the outset is raised by the only contention having merit, and so we need not discuss the others except to note that: (1) there was no error in the admission of opinion testimony by plaintiff about her own physical condition which she claimed had caused her to miss 24 months of work; (2) it was error to admit into evidence certain unrelated medical bills, but any error was not prejudicial because the amounts involved were so small that they could not have had any real influence on the verdict; and (3) there was no error in refusing to instruct on plaintiff's contributory negligence, for, as a matter of law, there was no evidence of any negligent behavior by the plaintiff.

That brings us to the main issue of the case.Because the Jaguar driver fled from the scene of the collision and because plaintiff was able to show to the satisfaction of Nationwide Insurance Company, her own auto insurance carrier, that the hit-and-run driver, whose identity remained unknown, was responsible for her injuries, she received $12,000 in settlement of a claim made under her uninsured motorist coverage.(Ins.Code, § 11580.2, subd. (b).)Otherwise, and also because the identity of the Jaguar driver remained unknown, neither plaintiff nor defendants were able to join that driver as a party to this litigation.

The record discloses that on the first day of trial a hearing was had in chambers where a motion in limine was made, seeking a ruling that defendants were entitled, as a matter of law, to setoff against any adverse judgment the $12,000 paid in settlement of plaintiff's uninsured motorist claim.The trial court granted defendants' motion, conditioning its ruling on defendants' agreement not to argue to the jury the comparative fault of the nonjoined tortfeasor, i. e., of the Jaguar driver.In making that ruling the trial court observed: " . . . if you asked the jury to consider the proportionate shares of negligence of any other of the tortfeasors who are not parties to this action and are successful in reducing your own client's liability as a tortfeasor on a percentage basis, it is plaintiff's position that you are then not entitled to ask the Court for a set-off.Conversely, if you try the case to the jury and do not ask that the negligence of the other tortfeasors be evaluated for the purpose of establishing comparative negligence on a percentage basis, this would then mean that you would be trying your case to the jury on the theory that your client is either not negligent at all or is negligent alone or may be negligent in a proportion with the negligence of the plaintiff, but that the negligence of any other party would not be weighed.If you try your case that way and a judgment should be rendered adverse to your client, then your client would be entitled to claim set-off."¹

Defendants, to assure their entitlement to the setoff, agreed to withhold arguing to the jury the comparative negligence of the Jaguar driver, and the case was tried in this mode.

At the conclusion of the trial, the jury brought in a verdict of $20,000 for the plaintiff.Thereupon, the trial court reversed its earlier ruling on the motion in limine and declined to allow the setoff of $12,000.Defendants then made a motion for a new trial, arguing that "(b)y reversing its position on the set-off issue the court effectively precluded defendants from obtaining a jury finding as to the proportion of fault attributable to a non-party tortfeasor so as to provide the basis for an action for partial equitable indemnity against that tortfeasor(.)"They purported to base such an argument on the landmark decision in American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, but their motion was denied.

Parenthetically, we note that defendants assign error as to this ruling also.Again, we comment only briefly that there was no error as assigned for the reason that defendants were and remain severally liable for the full amount of the judgment vis-a-vis the plaintiff regardless of any right to have liability apportioned among joint tortfeasors under the holding in American Motorcycle.

We come back then to the central issue, and that is whether the trial court properly refused to allow a setoff against the jury's verdict of the uninsured motorist proceeds received by plaintiff before the trial.As to this ruling by the trial court, the defendants contend, in assigning error, "that the failure of the trial court to reduce the judgment to reflect (plaintiff's receipt of) the $12,000.00 uninsured motorist settlement was legal error which substantially increased the judgment entered against defendants and prevented them from receiving a fair trial."This exception then presents the question of whether uninsured motorist proceeds should be characterized as a collateral source, as that designation is understood and as the rule was applied in Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61, and cases which have followed it, and hence should be unavailable to defendants as a setoff against the jury verdict.We regard this as an open question by reason of the language of footnote 3 in Helfend which states, "(t) here are many sorts of collateral sources and a great variety of contexts in which the 'rule' might be applied.We expressly do not consider or determine the appropriateness of the rule's application in the myriad of possible situations which we have not discussed or which are not presented by the facts of this case."(Id. at p. 6, 84 Cal.Rptr. at p. 175, 465 P.2d at p. 63.)

Helfend, a personal injury case, involved as here pertinent whether or not evidence of the receipt by plaintiff of payment for medical bills, based upon medical insurance coverage entirely independent of the tortfeasor, was rightly excluded when offered in mitigation of damages.In that casethe Supreme Court ruled that the evidence was properly excluded and thus that the trial court was correct in applying the...