Buy it here



  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





Another case on Hanif

Codner v. Wills (2009) 2009 WL 4915839 is not published but it is a case that is worth looking at for personal injury lawyers due to its treatment of Hanif issues. It was decided by Division Six of the Second Appellate District in Ventura with Justice Perren writing the opinion.

Codner was driving a motorcycle when he collided with a car driven by Wills near the exit of In-N-Out Burger in Ventura. Liability was disputed and cross-complaints were filed by Wills and In-N-Out. In-N-Out settled with Codner before trial. Even though the trial court approved the settlement, In-N-Out participated at trial. The jury found Wills was 100% at fault and awarded damages of $3,084,305.29.

Wills appealed, challenging several rulings during trial. He also claimed the trial court erred in denying his post-verdict to reduce the award for past medical expenses to the amount that Codner’s insurer actually paid. In-N-Out also cross-appealed.

Wills relied on Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to support his request for a reduction in past medical expenses. The opinion does not cite the recently published case of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686. The court concluded that Wills had not met his burden of showing that the plaintiff did not remain liable for the full costs of medical services. Wills provided statements from Accent, a “financial recovery company” (aka bill collector), showing that Codner’s medical providers assigned their claims to Accdent for a reduced sum.

The court stated,

“The amount for which a medical provider is willing to sell and a third party is willing to buy an account receivable has little if any bearing on the value of the services rendered to the plaintiff and provides no basis for concluding that [plaintiff] does not remain liable for payment of the full amount of the services provided.”

(Opn., pg. 14)

Because Wills failed to eliminate the possibility that Codner had potential liability for the full cost of medical services provided, he had not carried his burden. Thus, it appears here the determinative issue was whether the plaintiff had potential liability, which might have been established in contractual agreements between plaintiff and his insurer. Lack of financial liability could also have been established by obtaining an acknowledgment from plaintiff, Accent, or the medical providers that Codner was off the hook for the excess sum.


Congratulations on another win on appeal

Well, I don't know if you believe in Santa Claus but one of my clients, Tom Luebke of Prestininzi and Luebke, has a new reason to celebrate the Holiday season. Tom recently tried a case for personal injuries. His client, Douglas Harp, was injured when his parked pick-up truck was struck head-on by a dump truck driven by George Armitage, Jr. at a construction site. At the time, Armitage was on his lunch break and was driving in an unauthorized area with his son.

Harp sued Armitage, his employer, Leading Edge, and Mesa Contracting, the grading contractor. Tom pursued several theories, including one based on negligent training, against Leading Edge Trucking, Inc. The jury found Armitage was not acting within the scope of his employment. The jury awarded Harp over $1.8 million in damages.

The special verdict form did not distinguish between the theories of negligent hiring, training and supervision. The jury allocated 5% fault against Mesa, even though it found Mesa's negligence was not a substantial factor in causing plaintiff's injuries. In post-trial proceedings, the trial court reallocated the 5% fault to Leading Edge and Armitage.

Leading Edge appealed. The main thrust of its appeal was the lack of substantial evidence, but it also argued the jury's findings were inconsistent and the trial court could not resolve the inconsistency in post-trial proceedings. Tom and I worked on the appeal and he argued the case before the Court of Appeal.

On December 18, 2009, just seven days before Christmas, the Court of Appeal filed its opinion, affirming the judgment. It concluded there was sufficient evidence of negligent training, and that Leading Edge waived its challenge to the trial court's post-verdict reallocation. The court held that it was incumbent upon Leading Edge to object to the post-trial proceedings and its failure to do so was a waiver of the point.

Congratulations, Tom!


A really important new case on Hanif

Here's a case that plaintiff's personal injury lawyers have been hoping for:  Howell v. Hamilton Meats & Provisions, Inc. (2009) 2009 WL 4021368.  In that case, the plaintiff was seriously injured when her vehicle was struck by a truck driven by defendant's employee while he was attempting to make an illegal U-turn across the lane in which plaintiff was traveling.  The jury awarded plaintiff $689,978.63, including $189,978.63 for past medical expenses.

The defendant employer first raised the issue of reducing the past medical expense to what was actually paid in a motion in limine to preclude evidence of amounts not paid by the plaintiff.  Plaintiff argued she was entitled to present evidence of the "gross amount of all medical bills" under Helfand v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1

After judgment, defendant brought a Hanif motion, seeking a reduction of the verdict.  It argued the plaintiff did not incur or expend monies for the full value of the medical bills, and thus, the defendant was entitled to the benefit of the "negotiated rate differential."

Plaintiff opposed the motion, arguing she was not a Medi-Cal beneficiary, and therefore, she could recover the full amount of her medical bills under the collateral source rule.  She also argued she incurred medical expenses for the full amount, even signing an agreement that she would be financially liable for all expenses, including those not paid by her insurance.  Plaintiff claimed the defendant shouldn't receive the benefit of her thrift and foresight in obtaining health insurance.

The trial court granted the defendant's motion to reduce the damages by $130,286.90 to $59,691.73, which was the amount of the negotiated rate actually paid by plaintiff's insurers.  It concluded the plaintiff was only entitled to be made whole and should not receive overcompensation for her injuries.  Plaintiff appealed.

The Fourth Appellate District, Division One was faced with the issue was whether a personal injury plaintiff, who has private insurance, may recover the full economic damages for past medical expense billed by the health care providers under the collateral source rule or should that amount be reduced to what the insurer paid as the agreed-upon full payment.

In an opinion written by Justice Nares, the appellate court reversed, finding the plaintiff was entitled to receive compensation for the detriment caused to her pursuant to Civil Code section 3333, which included objectively verifiable monetary losses, such as medical expenses.  Civil Code section 1431.2(b)(1).  In addition, the collateral source rule barred a deduction for compensation received from a source other than the tortfeasor.  In summary, the plaintiff should receive the benefit of her insurance, and not the defendant, who would then otherwise receive a windfall.  (See Rstmt. 2nd of Torts, sec. 920A.)

The court found Hanif v. Housing Authority (1988) 200 Cal.App.3d 3d 635 to be inapposite.  The minor in  Hanif incurred no personal liability because the charges were billed to Medi-Cal and he lacked the capacity to enter into a financial responsibility agreement with the providers.  As a consequence, the court in Hanif did not address the issues presented by Howell.  The court also disagreed with the holding in Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 [trial court erred in permitting jury to award provider's normal rates, rather than the reduced rates it paid pursuant to agreement].

The appellate court in Howell cited Justice Eileen Moore's concurring opinion in Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 that "[w]ithout statutory authority or the Supreme court's lessing, the Haniff/Nishihama line of cases divorced the collateral source rule from the complicated area of medical insurance," and, "[a]bsent such approval, Hanif/Nishihama simply goes too far."  The Howell court made it clear that making chances to the collateral source rule was best left to the Legislature.

The court also disagreed with Greer v. Buzgheia (2006) 141 Cal.App.4th 1150 about the propriety of bringing a post-trial motion to reduce a jury's award of medical expenses.  Since it had concluded the negotiated rate differential is a collateral source benefit, then the post-trial motion is not necessary, appropriate, or authorized.

The opinion in Howell was filed on November 23, 2009.  We can expect to see a petition for review to the California Supreme Court, as does the plaintiff's attorney, John J. Rice, who is prepared to oppose it.  He notes that "over the last five years, that sum [negotiated rate differential] represents over one billion dollars that hasn't been paid to plaintiff's attorneys."  More to come on this issue      . . .

Even more on punitive damages

The Internet has so substantially increased the amount of information that is available at the press of a button that I often feel overwhelmed.  I know I should be reading legal blogs and commenting on them more than I do, but life is short and I have a day job that requires my attention.  One blog that I enjoy is California Punitive Damages by Horvitz & Levy.  Even though the blog is written by an appellate firm that mostly handles defense appeals, it is always informative.  Recently the authors reported on a paper entitled "The Changing Landscape of Blockbuster Punitive Damage Awards."  You can check out the blog at or you can download the paper from

When Exxon Shipping Co. v. Baker (2008) 128 S.Ct. 2605 was decided in 2008, the U.S. Supreme Court approved a 1:1 ratio between punitive and compensatory damages.  While some legal scholars maintained that this holding was limited to federal maritime cases, others took a more concerned approach that 1:1 would become the norm in all civil cases, especially where punitive damages were accompanied by substantial compensatory damage awards, which is often the case.

In Roby v. McKesson (2009) 2009 WL 4132480, which was recently decided, the California Supreme Court put its stamp of approval on a 1:1 ratio as the constitutional limit in an employment case.

Not surprisingly, California leads the states in terms of number of blockbuster cases and the highest total value of awards, i.e., $49.7 billion.  The authors describe blockbuster punitive damages as a "comparatively new phenomenon," noting the first award breaking the $100 million barrier was in 1985.  They note a "consistent downward trend in the total sale of blockbuster damages in recent years."  The authors also note that State Farm v. Campbell (2003) 538 U.S. 408, 123 S.Ct. 1513, 155 LEd.2d 585 has "dampened the total value of blockbuster punitive damages as well as reducing the number of blockbuster punitive damages in any year."

The authors identified the industries hardest hit by large punitive damages, starting with the cigarette industry, followed by energy and chemical, finance, investment, insurance, pharmaceutical, health care, and violent crime cases. Oddly enough, the automobile industry did not have a statistically significant premium.

In their conclusion, the authors opine that State Farm has indeed had a dampening effect on blockbuster punitive damage awards.  That dampening effect appears to continue with the publication of Exxon Shipping.  The authors also conclude that the levels of punitive damage awards are not driven by the level of compensatory damages, which one might expect to be high if behavior justifying punitive damages is present, but the type of industry involved.

Some updates on punitive damages

Today the California Supreme Court filed its Opinion in Roby v. McKesson, 2009 WL 4132480.  In Roby, the jury found plaintiff was wrongfully discharged due to her medical condition and related disability.  It awarded Roby $3,511,000 in compensatory damages and $15 million in punitive damages on her claims of harassment and discrimination against defendant McKesson.  Roby also obtained an award of $500,000 in compensatory damages and $3,000 in punitive damages against the harassing supervisor.

The Court of Appeal was unpersuaded there was sufficient evidence of harassment and reduced the compensatory damages to $1,405,000.  It also found the punitive damage award was excessive under federal constitutional standards and reduced it to $2 million.

The California Supreme Court found the jury's noneconomic damages awards to be hopelessly ambiguous, but plaintiff conceded this issue rather than face a new trial, a concession the defendants accepted.  The Court rejected the Court of Appeal's determination that the record was insufficient to support the harassment verdict.  Finally, the Court agreed that the punitive damages exceeded the federal constitutional limit, but disagreed with the limit set by the Court of Appeal (1.42 times the reduced compensatory damages of $1,405,000), reducing the amount even further, and stating, "We hold that in the circumstances of this case the amount of compensatory damages sets the ceilings for the punitive damages."  (Opn., pg. 2)

The Court applied the three guideposts set forth in State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408, including the five reprehensibility factors, and concluded McKesson's reprehensibility was at the low end of the range of wrongdoing.  It also concluded the compensatory damages might include punitive damages.  As such, where the compensatory damages are substantial, the Court stated "then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." (Opn., pg.  38; State Farm, supra, 538 U.S. at p. 425.)  The punitive damages against McKesson were modified to $1,905,000.  The Court also ordered the trial court to reinstate the jury's $3,000 punitive damage award against plaintiff's supervisor.

The Opinion was written by Justice Kennard and Chief Justice George, and Justices Baxter, Chin and Corrigan concurred. Even though the Court concluded a 1:1 ratio is the federal constitutional limit, it noted, "We based this conclusion on the specific facts of this case." (Opn., pg. 39)

Justice Werdegar wrote a concurring and dissenting opinion, in which Justice Moreno concurred, opining that McKesson's reprehensibility was significantly higher.  Justice Werdegar's award would have been $3.8 million, for a 2:1 ratio.  She pointed out the "unusual task" given to the appellate court to make a "culpability assessments independently" on the basis of a factual record.  Because the appellate courts make their decisions on the "cold record" rather than based on live testimony, Justice Werdegar noted the appellate court "is not as well situated as the jury or trial court to make a fine-tuned culpability judgment about conduct that has been the subject of a trial. "  As such, review should be "performed modestly and with caution."  (Dissenting Opn., pg. 2)

She notes that appellate courts do not sit as a replacements for the jurors but as a check on arbitrary awards.  (Ibid.) Justice Werdegar did not necessarily believe the large noneconomic damages award had a punitive component, and believed the majority failed to consider McKesson's wealth, noting McKesson was #38 on the Fortune 500 and had a market value of $5 billion.  Certainly the reduced punitive damage award could not have a truly deterrent effect on McKesson.

I agree with Justice Werdegar's assessment that fixing a constitutional maximum is a "lamentably inexact enterprise."  (Dissenting Opn., pg. 6.)  But since the difference between highest award, which would have been given by Justice Werdegar (representing a 2:1 ratio), compared to the lowest by the California Supreme Court, represents a difference of over $1.8 million, one might assume that this fact alone demonstrates how the appellate courts may be exceeding their roles in determining the highest constitutionally permissible award, and instead, the courts are deciding the proper amount as if they were replacement jurors who did not have the benefit of actually attending the trial.  But neither award, representing $11.2 million less than the jury's award, will cause McKesson to lose much corporate sleep.