(Super. Ct. No. CV53193) (Super. Ct. No. CV53202) APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.
The opinion of the court was delivered by: Dawson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In this personal injury lawsuit, the trial court granted a motion reducing the jury's award of past medical expenses from the amount billed by the medical providers to the amount actually paid to the providers under Medicare and Medi-Cal. Three of the plaintiffs appealed, contending the trial court misapplied California's collateral source rule when it reduced the damages to reflect the difference between the amount billed by medical providers and the amount they accepted as payment under Medicare. Plaintiffs did not challenge the reduction in damages related to payments made under Medi-Cal.
Defendants contend the appeal must be dismissed as untimely and, alternatively, the trial court correctly extended Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif) to bills covered by Medicare. In Hanif, the appellate court reduced the jury's award of past medical expense from the amount billed to the amount paid under Medi-Cal.
In the unpublished portion of this opinion, we conclude this case is governed by the California Supreme Court's recent decision, Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell), which held that a plaintiff may not recover as past medical expenses the difference between (1) the medical providers' full billings for the medical care and services supplied to the plaintiff and (2) the amounts the medical providers have agreed to accept from the plaintiff's private insurer as full payment. We conclude this holding concerning private insurance applies with equal force to Medicare. Therefore, the trial court correctly reduced the damages awarded to reflect the amounts paid under Medicare to satisfy the medical bills.
The published parts of this opinion address two points. First, the timeliness of the appeal from the amended judgment is determined under the substantial modification test. We conclude that the amended judgment contained a substantial modification and, therefore, the appeal was timely. Second, we conclude that the limitation on recovery set forth in Howell does not extend to amounts gratuitously written off by a medical provider. Therefore, we will modify the judgment to include an appropriate adjustment for $7,020 gratuitously written off by a medical provider in this case.
In October 2005, Pedro Hueso was driving his 1990 Lincoln Town Car on State Route 120 when it collided with an International truck hauling two semi-trailers. The truck-trailer combination was owned by Diestel Turkey Ranch and operated by Randall Alan Strickland (collectively, defendants).
Pedro Hueso's wife and another passenger, Rebeca Madriz Carbajal, died as a result of the collision. Pedro Hueso spent approximately four months in the hospital recovering from his injuries. Approximately six weeks after his release from the hospital, he died of heart failure.
In October 2007, seven plaintiffs sued defendants. The plaintiffs included Pedro Hueso's two daughters, for themselves and in their capacity as representatives of his estate,*fn2 and the deceased passenger's brother and sister. Among other things, plaintiffs sought to recover the economic damages, which included medical expenses, of Pedro Hueso.
The jury trial began in mid-September 2009. On October 6, 2009, the jury returned a verdict. The completed verdict form included the jury's findings that (1) the defendants were negligent, (2) the negligence was a substantial factor in causing harm to plaintiffs, and (3) the negligence was a substantial factor in causing Pedro Hueso's death. The jury awarded damages totaling $3,115,569, of which $1,339,569 represented the past medical expenses of Pedro Hueso. The jury also found that the driver of the truck was 5 percent responsible for plaintiffs' harm, Diestel Turkey Ranch was 65 percent responsible, and Pedro Hueso was 30 percent responsible.
Defendants filed a motion for adjustment or reduction of verdict amounts. The motion sought, among other things, to reduce the amount awarded for Pedro Hueso's past medical expense to the actual amounts paid or owed to the medical providers and then to reduce that amount by Pedro Hueso's comparative fault. Defendants asserted that the amount of Pedro Hueso's medical bills paid or still owing totaled approximately $240,000. After reducing that amount for comparative fault, defendants argued the award for Pedro Hueso's past medical expenses should have been approximately $169,000.
In January 2010, the trial court heard the motion to reduce the verdict. On March 24, 2010, the trial court filed an order on matter submitted, which granted the motion. The contents of this order, the original judgment, and the amended judgment are discussed in part I.A., post.
On June 28, 2010, plaintiffs filed a notice of appeal.
In August 2010, defendants filed a motion to dismiss the appeal, asserting the notice of appeal was not filed within the time prescribed by California Rules of Court, rule 8.104. Plaintiffs filed an opposition to the motion to dismiss.
In September 2010, this court filed an order stating that consideration of the motion to dismiss would be deferred and treated as a threshold issue when the court considered the appeal on its merits.
I. Motion to Dismiss Untimely Appeal
Under California law, if an appeal is untimely, the appellate court has no jurisdiction to consider its merits and the appeal must be dismissed. (Cal. Rules of Court, rule 8.104(b); Estate of Hanley (1943) 23 Cal.2d 120, 123 [court has no discretion to consider untimely appeal].)
Defendants contend that plaintiffs' notice of appeal was untimely and, under the foregoing rule, this ...