Friday, March 12, 2010

Is Hanif Dead? (Part 3)

On March 11, 2010, the California Supreme Court granted review in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686. This decision was the focus of my prior blog entitled Is Hanif Dead? As we discussed in that article, that decision rejected Hanif and its "progeny" and confirmed the collateral source rule espoused in Helfend v. Southern California Rapid Transit District (1970) 2 Cal.3d. 1.

The Howell decision relied on the "collateral source rule" to affirm that the injured party in a personal injury case should recover the amount charged by the medical providers, not what the injured party's insurance company actually paid for those services (as had been held in Hanif and Nishihama). In response to this decision, the defense bar (joined as "friends of the court") had requested that the Supreme Court "de-publish" this decision. That request was denied.

So, what does the Supreme Court's decision to review this case mean?

Insurance companies, defense lawyers and so-called "tort-reformers" may view this decision to review Howell as a victory. But, as I posited in my article, it appears that the Supreme Court has simply recognized the split of authority amongst the various California Courts of Appeal and has opted to clear the air. Further, as colleagues in the CAOC have observed, if the Supreme Court had agreed that Howell was just plain wrong, it could simply have granted the requests to depublish the case. It did not.

In the short term, the Supreme Court's decision to review the Howell case means that it is no longer "citable" in briefs per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115. In the long term, this means that for those of us who deal with these medical damages in personal injury cases, we will need to wait on the "final word" from the California Supreme Court who, after all, gave us the Helfend decision in the first place.

The defense bar has long advocated for a repeal of the "collateral source rule", citing dicta in Helfend itself. Meanwhile, the plaintiff's bar has long adhered to the argument that Helfend was properly decided by the state's highest court, but simply ignored by the appellate justices in Hanif and Nishihama. Until Howell, the "Supremes" simply had no reason to directly address this issue.

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