§ 33.1 Introduction: Rule and Distinctions
Library | Damages (OSBar) (2016 Ed.) |
The common-law "collateral-source" rule in Oregon provided that benefits received by an injured plaintiff from sources independent of the defendant would not diminish the amount of damages recoverable. The Oregon Supreme Court recounts the history of the rule and its development in Oregon in White v. Jubitz Corp., 347 Or 212, 219 P3d 566 (2009) (plaintiff entitled to recover full amount of reasonable and necessary medical bills, not reduced by Medicare write-offs); see also French v. Christner, 173 Or 158, 176-77, 143 P2d 674 (1943) (cross-examination denied as to who paid medical bills); Cary v. Burris, 169 Or 24, 28-29, 127 P2d 126 (1942) (damages not reduced by third-party medical payments). Collateral benefits include, for example, gratuitous medical care, continued salary and wage payments, insurance proceeds, welfare and pension benefits, and gifts or contributions. Damages, 22 Am Jur2d §§ 408-24 (2013) (supplemented periodically). This chapter discusses these and related benefits an injured party may receive, and the rights of the providers of such benefits to recoup them.
This common-law rule was significantly altered by the enactment of the 1987 "tort reform" package, which included what is now ORS 31.580. Under this statute, courts "may" now deduct certain collateral benefits received from the amount of "damages awarded" for bodily injury or death. However, the following exempt sources do not diminish the damages award under the statutory collateral-source rule:
(1) Benefits that the injured person or the injured person's estate must repay;
(2) Life insurance or death benefits;
(3) Insurance benefits for which the person injured or deceased, or members of that person's family, paid premiums;
(4) Retirement, disability, and pension plan benefits, and federal Social Security benefits.
In Ishikawa v. Delta Airlines, Inc., 343 F3d 1129, 1135, amended on denial of reh'g, 350 F3d 915 (9th Cir 2003), the defendant-airline fired the plaintiff after the codefendant, a testing laboratory, negligently analyzed the plaintiff's urine sample. The airline reinstated the plaintiff, reimbursing her for "lost pay and benefits." The laboratory sought credit against the jury's award for those payments. The Ninth Circuit concluded that ORS 31.580 does not apply to collateral payments made by an employer for "lost pay and benefits" because they are not damages "for injury or death." The common-law rule therefore applied, and the court affirmed the judgment of the trial court, which did not deduct the collateral payments from the verdict.
Although qualifying collateral benefits may be deducted from the amount of damages, evidence of such payments is still...
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