141 Wn.2d 431, COX v. SPANGLER

[2] This Court has long held that "payments, the origin of which is independent of the tort-feasor, received by a plaintiff because of injuries will not be considered to reduce the damages otherwise recoverable." Ciminski v. SCI Corp., 90 Wn.2d 802, 804, 585 P.2d 1182 (1978). See also Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 798, 953 P.2d 800 (1998). Thus, courts generally exclude evidence that the plaintiff has received compensation from a third party for an injury for which the defendant has liability. Id. at 798. The "rule is designed to prevent the wrongdoer from benefitting from third-party payments." Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 375, 936 P.2d 1191 (1997). Accordingly, "as between an injured plaintiff and a

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defendant-wrongdoer, the plaintiff is the appropriate one to receive the windfall." Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 523, 844 P.2d 389 (1993) (citing Ciminski, 90 Wn.2d at 804).

We are satisfied that the trial court properly applied the rule in this case. We reach this conclusion because, had evidence been admitted to the effect that Cox received industrial insurance benefits after November 1993, Spangler would have improperly benefited from that evidence. That is because the jury could have reduced Cox's damages by the amount of the industrial insurance benefits that Cox had received following the November accident. In that event, Spangler would have received a windfall. Our decision is buttressed by our awareness that the Department would be entitled to claim a lien for the amount of benefits it paid to Cox against any recovery Cox obtained from Spangler. See, e.g., Flanigan v. Department of Labor & Indus., 123 Wn.2d 418, 425, 869 P.2d 14 (1994). This would have had the effect of allowing Spangler to escape paying those damages while Cox would have to reimburse the Department from whatever damages she recovered from Spangler. This is a circumstance the collateral source rule is designed to prevent.

In reaching our decision, we are not unmindful of Spangler's contention that evidence that Cox received industrial insurance benefits should have been admitted for a variety of purposes, including: to show that Cox was malingering; to impeach Cox's medical experts; and to attribute Cox's injuries to the May accident. In making this argument, Spangler ignores the point that though evidence of collateral source compensation may well be relevant for a variety of purposes, such evidence is excluded on the basis that it is unfairly prejudicial because the jury could use it for improper purposes. As we said in Johnson v. Weyerhaeuser: "[t]he very essence of the collateral source rule requires exclusion of evidence of other money received by the claimant so the fact finder will not infer the claimant is receiving a windfall and nullify the defendant's respon

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sibility." 134 Wn.2d at 803. Thus, even when it is otherwise relevant, proof of such collateral payments is usually excluded, lest it be improperly used by the jury to reduce the plaintiffs damage award. Boeke v. International Paint Co., 27 Wn. App. 611, 618, 620 P.2d 103 (1980) (quoting Reinan v. Pacific Motor Trucking Co., 270 Or. 208, 213, 527 P.2d 256 (1974)). In this respect, courts generally follow a policy of strict exclusion. Although the fact that Cox received industrial insurance benefits might have some marginal relevance regarding the apportionment of Cox's damages, to show malingering, or to attack her experts' credibility, we believe such relevance is outweighed by the unfair influence this evidence would likely have had upon the jury. Johnson, 134 Wn.2d at 803.

We are also satisfied that exclusion of evidence of the industrial insurance benefits did not harm Spangler in any significant way. The trial court's ruling was sufficiently limited to exclude only that evidence that would have been unfairly prejudicial. As is clear from its oral ruling, the trial court only precluded evidence that the Department paid for part of Cox's treatment. Spangler was not prevented from presenting more relevant evidence about Cox's medical condition and the treatment she received both before and after the November accident. Had she desired to produce evidence that Cox's injury was attributable only to the May accident, Spangler should have obtained that evidence by asking Cox's treating physicians their opinion, not by attempting to draw speculative inferences from the billing practices of the physicians. Despite Spangler's assumption to the contrary, the total of all bills paid is not necessarily the best indication of the value of medical services provided. See Patterson v. Horton, 84 Wn. App. 531, 543, 929 P.2d 1125 (1997) ("A plaintiff in a negligence case may recover only the reasonable value of medical services received, not the total of all bills paid.") (citing Torgeson v. Hanford, 79 Wash. 56, 58-59, 139 P. 648 (1914)).

Finally, Spangler asserts that the injuries Cox suffered in the November accident were unrelated to her injuries from

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the May accident. We find no support in the record for this assertion. However, even if there had been evidence that some or all of Cox's injuries were attributable only to the May 1993 accident, Spangler would not have been prejudiced by the trial court's ruling. We say that because, under the trial court's proximate cause jury instruction, benefits that were solely related to the May 1993 accident could not be considered by the jury in the determination of damages. In sum, Spangler has failed to convince us that the trial court improperly applied the collateral source rule.

III. Burden of Apportioning Damages

As noted above, Spangler also claims that the trial court erred in giving instruction 7, on apportionment of Cox's damages. The instruction is as follows:

If you find that the plaintiff was injured in the accident of May 19, 1993 and the accident of November 2, 1993 and that said accidents caused the plaintiff injury, then the burden of apportioning plaintiffs injuries between the two accidents is upon the defendants. If you further find that plaintiffs injuries are indivisible, then the defendants Spangler are responsible for the entire injury.

Clerk's Papers at 205; Verbatim Report of Proceedings at 820.

[3-5] Our review of jury instructions is guided by the familiar principle jury instructions are sufficient if "they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). On

appeal, jury instructions are reviewed de novo, and an instruction that contains an erroneous statement of the applicable law is reversible error where it prejudices a party. State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977).

[6, 7] Although we agree that the apportionment instruction which Spangler challenges could have been more artfully worded, we conclude that, when it is read in

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conjunction with the other instructions, it does not misstate the law.«2» The language of the instruction is loosely derived from Phennah v. Whalen, 28 Wn. App. 19, 621 P.2d 1304 (1980), a case in which the plaintiff suffered indivisible injuries in two automobile accidents that occurred three months apart. Id. at 20. The plaintiff then brought suit against the parties who caused each accident. At the conclusion of the presentation of all the evidence, the trial court granted the defendants' motion to dismiss, ruling that the plaintiffs failure to present evidence on the basis of which to segregate damages between the "successive tort-feasors" was fatal to the plaintiffs case. Id. at 2122. The Court of Appeals, Division One, reversed the trial court, saying:

[O]nce a plaintiff has proved that each successive negligent defendant has caused some damage, the burden of proving allocation of those damages among themselves is upon the defendants; if the jury find[s] that the harm is indivisible, then the defendants are jointly and severally liable for the entire harm.

Id. at 29.

In support of its ruling, the Phennah court cited RESTATEMENT (SECOND) OF TORTS § 433B (1965). Id. at 28. Section 433B provides that:

(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.

(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

(3) Where the conduct of two or more actors is tortious, and it

«2» Admittedly, the first sentence of the challenged instruction is not entirely clear. We believe the instruction was meant to read "and that said accidents caused the plaintiff [one] injury" or "[a single] injury." For purposes of this opinion, however, only the sentence that shifts the burden of apportionment onto Spangler upon a finding of indivisible injury is relevant.

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is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

(Emphasis added.) The exception in subsection (2) is grounded in the policy that: "[a]s between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former." RESTATEMENT § 433B cmt. d on (2), at 444. Comment c to § 433B(2) makes it clear that subsection (2) does not depend on the joinder of all actors who caused the indivisible harm to the plaintiff.

Spangler claims that the apportionment instruction essentially "direct [ed] the jury to award damages to Plaintiffs for all medical bills incurred after November 2, 1993 and for all other special and general damages which arose from both accidents. The jury had no alternative but to award these damages . . . ." Br. of Appellants at 36. We disagree. Even when read alone, the challenged instruction permitted the jury to find Spangler liable for an injury only if it found the injury to be caused by both accidents. Furthermore, as noted above, we read challenged instructions in light of the other instructions to the jury. The other unchallenged jury instructions dispel any notion that the jury's verdict was "directed" by the trial court's instructions.

First, instruction 5, the elements of negligence instruction, required the jury to find that Cox had proved that Spangler proximately caused Cox's injuries before awarding her any damages in relation to those injuries.«3» In addition, instruction 10 permitted the jury to hold Spangler

«3» Instruction 5 read, in pertinent part:

The court has previously determined that the defendants are liable for any injury which was proximately caused by the November 2, 1993 motor vehicle accident.

The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff was injured;

Second, that the negligence of the defendants was a proximate cause of injury to the plaintiff. Clerk's Papers at 203.

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liable for the aggravation of a pre-existing injury only to the extent that Spangler's negligence worsened that condition. The instructions permitted the jury to find that Cox's injuries from the May accident were divisible from those she suffered in the November accident. Alternatively, the jury could have found that both accidents combined to cause one divisible injury, or that Cox's injuries were caused solely by the November accident. In no way was the jury "directed" to find Spangler liable for any damages.

Spangler also argues that the Phennah case is distinguishable because it involved two defendants who were held to be jointly and severally liable for causing indivisible injuries. Spangler contends, therefore, that the "entire rationale" of Phennah is "missing" from the present controversy. Br. of Appellants at 36. Spangler is correct in noting that, here, there is no joint and several liability, because Spangler is the only defendant against whom judgment has been entered. See Anderson v. City of Seattle, 123 Wn.2d 847, 852, 873 P.2d 489 (1994) (holding that two or more defendants are necessary for a finding of joint and several liability). This observation is, however, irrelevant because Phennah does not make joint and several liability a prerequisite to shifting the burden of apportionment. Although the Phennah court discussed joint and several liability, it did so only in distinguishing our earlier decision in Smith v. Rodene, 69 Wn.2d 482, 423 P.2d 934 (1966).

As here, Rodene was a case in which the plaintiff was involved in two accidents, several months apart. In holding that the trial court improperly shifted the burden of proof to the defendants, this Court placed the burden of apportionment on the plaintiff. Id. at 483-84. That case is distinguishable from both Phennah and the instant case, in that the Rodene defendants were severally but not jointly liable for the Rodene plaintiffs' divisible injuries. The Rodene court stated that "Where was neither concert of action nor independent torts uniting to cause a single injury." Id. at

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484 (emphasis added). The court in Phennah thus properly distinguished the Phennah situation from the Michigan case and annotation cited in Rodene, in which joint liability was imposed for indivisible injuries caused by multiple negligent tort-feasors.«4» In those cases, liability was joint and several where the injuries were not segregable. Since the injuries in Rodene did not amount to a "single injury," liability was not "joint." Thus, as the Phennah court points out, the Rodene court "began on the premise of several liability." 28 Wn. App. at 27.

[8] In the instant case, on the other hand, Cox's injuries were indivisible between the two accidents and liability for her injuries would be joint and several between Spangler and the co-employee who rear-ended Cox in the May 1993 accident. The Industrial Insurance Act, however, prevents Cox from bringing suit against her co-employee, so Spangler is the only defendant in the instant action.«5» Thus, there is no joint and several liability in this case. However, the key similarity between the instant case and Phennah is the indivisibility of Cox's injuries. It was because the plaintiff's injuries were divisible that prevented shifting the burden in Rodene. Thus, Rodene is distinguishable from the instant case, and joint and several liability is not the linchpin of the analysis.

Spangler and amici Washington Defense Trial Lawyers also argue that Scott v. Rainbow Ambulance Serv., Inc., 75 Wn.2d 494, 452 P.2d 220 (1969), provides dispositive authority to reverse the trial court. In that case, the plaintiff, Scott, injured her arm when she slipped and fell on a slippery street. As Scott was being wheeled to the ambulance, she fell from the gurney and landed on the left side of her body. Id. at 495. Scott then sued the Rainbow Ambulance Service for negligence. At the beginning of the trial,

«4» See Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33, 100 A.L.R.2d 1 (1961); D.E. Buckner, Annotation, Apportionment of Damages Involving Successive Impacts by Different Motor Vehicles, 100 A.L.R.2d 16 (1965) (see especially § 6).

«5» RCW 51.04.010 abolishes all common law causes of action by an employee against another employee for injuries received in the course of employment.

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Scott's attorney told the trial court that he would not attempt to prove that the fall from the gurney caused his client any injuries. The trial court then promptly granted a defense motion to dismiss. Id. This court upheld the dismissal of Scott's action, reasoning that "[w]hen the facts of the case are such that plaintiff is clearly one of the two persons responsible for the injury involved, and plaintiff makes no attempt to segregate those damages, we find no over-riding reason in justice for shifting that burden of proof to the defendants." Id. at 498. In short, because Scott was negligent, no policy supported awarding her a windfall.

[9, 10] Here, there was no evidence that Cox had any culpability for the May accident. Nor did Spangler request a jury instruction on comparative negligence. Furthermore, the burden of pleading and proving the plaintiffs negligence is on the defendant. Godfrey v. State, 84 Wn.2d 959, 965, 530 P.2d 630 (1975). Neither Spangler nor the Washington Defense Trial Lawyers Association can raise on appeal what was not litigated in trial. Smith v. Shannon, 100 Wn.2d 26, 666 P.2d 351 (1983). Consequently, for purposes of this appeal, we presume that Cox was without fault in the first accident. Thus, the negligent plaintiff rule announced in Scott is not dispositive in this case, and we express no opinion on that decision.

In sum, when all of the jury instructions are examined, it is apparent that Spangler's only burden was to apportion the damages for injuries that Spangler proximately caused and that could not be attributed solely to the May accident. She clearly did not meet that burden, her own witness, Dr. Cooper, testifying that all of Cox's injuries were either caused or aggravated by the November accident. We are satisfied, therefore, that the injuries were not segregable, and the RESTATEMENT § 433B(2) burden-shifting scheme applies, just as it was applied to the slightly different, multiple defendant, situation in Phennah v. Whalen. It was not error to give the apportionment instruction.

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IV. Conclusion

For reasons stated above, we conclude that the trial court did not err in excluding evidence regarding the industrial insurance benefits Cox received following the November accident or in giving jury instruction number 7. We, therefore, affirm the judgment of the trial court.

Guy, C.J., and SMITH, JOHNSON, MADSEN, TALMADGE, SANDERS, IRELAND, and BRIDGE, JJ., concur.