MORGAN v. STATE OF CALIFORNIA

Filed 4/18/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The State of California appeals from a jury verdict in favor of Morgan Robert Smock in his personal injury suit. The State contends the trial court erred when it applied the collateral source rule to exclude from the jury's consideration certain payments Smock received from his employer during his convalescence. The State also argues that it was error to award costs jointly and severally. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2001, Smock was seriously injured in a traffic accident on the westbound approach to the San Francisco-Oakland Bay Bridge.^[1] He filed a complaint alleging his injuries were due to the negligence of another driver and a dangerous condition of State property. The jury found for Smock and apportioned liability 10 percent to the State and 90 percent to the other driver. Total damages awarded to Smock included past and future medical expenses, past lost earnings, and past and future non-economic damages.^[2]

Smock is a lawyer who, at the time of the accident, had recently become a partner in a law firm. As a result of his injuries, Smock did not work the hours he agreed to bill for his services in 2001 and 2002. Nevertheless, the law firm paid his agreed salary and bonus without any reduction. On Smock's motion, the trial court applied the collateral source rule and excluded evidence of those payments by his employer from the jury's consideration.^[3] After hearing evidence that Smock worked reduced hours, the jury awarded him $108,000 in lost earnings.^[4]

Following trial the State moved to tax costs. The court granted the State's motion, but declined to limit the State's responsibility for costs in proportion to its percentage of fault reflected in the judgment. The State timely appealed.^[5]

DISCUSSION

This case presents another challenge to the application of the collateral source rule to exclude from evidence and the computation of damages the payments a plaintiff receives from a source independent of the wrongdoer. Though oft-maligned, a form of the rule has been a part of our jurisprudence since California's earliest days in the union. (See Martin White v. Mary Ann (1856) 6 Cal. 462, 470-471.) The rule derives its earliest articulation in cases of equity and admiralty, where a wrongdoer was held to be responsible for injury irrespective of whether anyone else provided protection or indemnity to the victim. â€