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WOOD V. WILLIAMS
Posted July 19, 2010

"Brian Powers and Gordon Bowley recently obtained a summary judgment for the defense in an interesting case in which the decedent was allegedly frightened to death by defendant's dog. The 87 year-old defendant owned a smooth-coated Shar-Pei that accidentally escaped through the front door while the defendant was letting his cleaning lady into his house. Defendant got into his car and followed his dog for more than one-half hour trying to coax the animal into the car. The dog finally ran up onto the front yard of the decedent who was there with his two Chihuahuas. The plaintiffs were the decedent’s wife and their children and they alleged that the defendant's dog acted aggressively and appeared ready to attack the decedent or his dogs. The wife witnessed the incident and testified in her deposition that she thought defendant's dog was a Pit Bull. The defendant's dog did not bite or even touch the decedent or his pets. The decedent got his pets into his house and then began throwing rocks at defendant's Shar-Pie. While doing so he fell to the ground and died. The plaintiffs asserted their husband and father died of a heart attack due to fright.

In the motion for summary judgment, Powers & Miller successfully argued that the defendant did not breach a duty to use due care because the death was not reasonably foreseeable based on the facts of the case. The Court agreed and in its ruling wrote, "The tragic death…though perhaps indirectly caused by the dog, was not the kind of harm which could reasonably have been foreseen by the defendant…" The plaintiffs’ attorney has appealed the ruling."

SUPREME COURT GRANTS REVIEW OF HOWELL v. HAMILTON MEATS; CASE NO LONGER AUTHORITY
Posted March 19, 2010

On March 10, 2010 , the California Supreme Court granted review in Howell v. Hamilton Meats (2009) 179 Cal.App.4th 686 (Review Granted and Opinion Superseded (Mar 10, 2010)). As a result, the Howell case can no longer be cited as legal authority in other matters.

The plaintiffs' bar had used the Howell decision from the Fourth Appellate District to suggest that the recoverable amount of special medical damages was the value of such services for which plaintiff incurs actual liability, regardless of whether the medical providers subsequently accept less as full payment from a private health insurer. The Howell case was contrary to the Hanif, Nishihama, Greer line of cases which allowed a post trial hearing to reduce jury awards for medical specials based on medical care providers write-offs, adjustments and what was accepted as full and complete payment.

The practical effect of the Supreme Court's decision to grant review is that the Howell opinion's publication status is now automatically changed from “published” to “not published”. (Rule 8.1105(e).) Under Rule 8.1115(a), a case that is not published cannot be cited as authority in other cases. The citable authority is now back to where it was before Howell and trial courts are now required to choose among Hanif, Nishihama, Greer, Katiuzhinsky and Olsen, as they were before the Howell decision.

After the grant of review, formal briefs on the merits and amicus briefs will now be prepared and filed. It is estimated it will be between twelve and eighteen months before the Supreme Court holds the oral argument and rules on this matter.

ANALYSIS OF OLSEN V. REID
In June 2008, the Fourth District Court of Appeal issued an opinion in Olsen v. Reid. The majority opinion is quite simple and based on familiar facts. Plaintiff was billed $62,475.81 for medical care. Defendant claimed there were reductions totaling $57,394.24. The court denied defendant’s motion in limine to preclude the jury from hearing the total amount of the bills and said that any reductions would be "handled after the trial," according to the opinion. The court granted plaintiff’s motion to admit evidence of the full amounts of the bills. After a verdict in the total amount of $250,000, including the full amount of the bills, defendant’s attorney moved to reduce the verdict based on Hanif and Nishihama, but only submitted a bill from Anaheim Memorial Medical Center that had entries that appeared to indicate reductions. (e.g., "ADJ-MHIPA CAP ADJ.") The trial court stated on the record that the write-offs "to this court’s way of thinking, are clear" and reduced the judgment by $57,394.24.

The appellate court disagreed with the trial court and reversed the judgment based on its opinion that the bill was not clear in terms of showing the write-offs. ". . . we find it far from clear as to what was paid, what, if anything, was ‘written off,’ and to what extent Olsen remained liable for any further charges. The cryptic notations the court relied upon may reflect payments, or write-downs or write-offs, we cannot know, and if any evidence revealed the actual facts, they are not present in the record." The court noted that defendant argued that at the time of her motion in limine she was prepared to show the amounts actually paid, but ". . . with this evidence, we cannot find she did so, even under the most permissive standard of review."

Clearly the defense must come to trial prepared with clear, admissible evidence to submit on the issue of the amounts actually paid and that the plaintiff owes nothing more than those amounts.

The first concurring opinion is even more noteworthy (and scarier). In that opinion, it is argued that the post-verdict hearing "schemes" based on Hanif, Nishihama, and Greer should not be applied "to private insurance situations, absent either statutory authority or endorsement from the Supreme Court." The basis of the argument is that reducing the medical special damages to the amounts paid violates California’s collateral source rule. No doubt the plaintiff’s bar is going to cite this and the onslaught against Hanif, Nishihama, et. al. will continue.

I think the concurring opinion is wrong in its analysis of the collateral source rule. The rule is stated as follows: "The general rule is that damages recoverable by the injured person are not reduced by the amount of payments for his or her loss from a source wholly independent of the wrongdoer." (Johns, California Damages: Law and Proof, 5th ed., 2007.) However, pursuant to Hanif, Nishihama, and Greer there is no reduction for amounts paid, only amounts not paid.

Olsen v. Reid (2008) --- Cal.Rptr.3d ----, 2008 WL 2486789 (Cal.App. 4 Dist.), 08 Cal. Daily Op. Serv. 7812, 2008 Daily Journal D.A.R. 9727.

MITIGATION OF DAMAGES
ISSUE: Must a personal injury plaintiff mitigate damages by attending medical treatment appointments outside working hours in order not to incur damages for loss of time from work?

A personal injury plaintiff has a general duty to mitigate his/her damages. "The person injured by the wrongful act of another is bound...to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part." Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 844. "A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion." Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 citing Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69. However, "The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable." Valencia 23 Cal.2d at 846. "The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights." Valle de Oro 26 Cal.App.4th at 1691 citing Seaboard Music Co. v. Germano (1972) 24 Cal.App.3d 618, 623.

The court in Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346 stated "The correct rule is that an injured person must use reasonable diligence in caring for his injuries. What is reasonable diligence depends on all the facts and circumstances of each case." "The doctrine [of mitigation] does not require the injured party to take measures which are unreasonable or impractical or which would involve expenditures disproportionate to the loss sought to be avoided or which may be beyond his financial means." Green v. Smith (1968) 261 Cal.App.2d 392, 396.

Despite plaintiff having the duty to mitigate, the burden of proving the extent to which the damages could have been mitigated lies with defendant.

It is true that plaintiff is in duty bound to minimize his damage in any way that he reasonably can, and if he negligently refuses to do so he cannot recover for that which he might have prevented. It is for appellant to establish that the steps taken by plaintiff to so minimize his loss or damage falls short of the obligation so fixed. In other words, the burden is on defendant to establish matters asserted by him in mitigation or reduction of the amount of plaintiff’s damage...

McNary v. Hanley (1933) 131 Cal.App.188, 190.

There is no case law holding that personal injury plaintiffs have a duty to mitigate damages by attending medical care/treatment appointments outside of his or her working hours, rather the rule is that the injured party must use reasonable diligence in caring for his or her injuries. Whether it is reasonable to require a personal injury plaintiff to mitigate wage loss damages by attending medical appointments outside of working hours will be fact specific to each individual case. For the individual who works weekdays during normal 9 a.m. to 5 p.m. business hours, requiring attendance at medical appointments outside of these hours may not be reasonable. However, for the personal injury plaintiff who works a less traditional schedule, depending on the particular facts of the case, it may be considered reasonable if it is not impractical or expensive for the plaintiff to attend medical appointments outside his/her normal work schedule.