SECTIONS 985 - California Statutes

GOVERNMENT CODE

SECTION 985

985. (a) As used in this section:
(1) "Collateral source payment" includes either of the following:
(A) The direct provision of services prior to the commencement of
trial to the plaintiff for the same injury or death by prepaid health
maintenance organizations providing services to their members or by
nonfederal publicly funded health service providers.
(B) Monetary payments paid or obligated to be paid for services or
benefits that were provided prior to the commencement of trial to or
on behalf of the plaintiff for the same injury or death from a
provider of collateral source payments described in paragraphs (1)
and (2) of subdivision (f).
(2) "Plaintiff" includes, but is not limited to, a person or
entity who is entitled to make a claim under Part 2 (commencing with
Section 6400) of Division 6 of the Probate Code for the collateral
source benefits against the tortfeasor or alleged tortfeasor, and in
the case of a minor, the minor and the minor's parent, legal guardian
or guardian ad litem.
(3) "Commencement of trial" occurs as defined in paragraph (6) of
subdivision (a) of Section 581 of the Code of Civil Procedure.
(b) Any collateral source payment paid or owed to or on behalf of
a plaintiff shall be inadmissible in any action for personal injuries
or wrongful death where a public entity is a defendant. However,
after a verdict has been returned against a public entity that
includes damages for which payment from a collateral source listed
below has already been paid or is obligated to be paid for services
or benefits that were provided prior to the commencement of trial,
and the total of the collateral source payments is greater than five
thousand dollars ($5,000), that amount to be increased 5 percent
compounded on January 1, 1989, and each January 1 thereafter, the
defendant public entity may, by a motion noticed within the time set
in Section 659 of the Code of Civil Procedure, request a posttrial
hearing for a reduction of the judgment against the defendant public
entity for collateral source payments paid or obligated to be paid
for services or benefits that were provided prior to the commencement
of trial. The hearing may be noticed with any motions pursuant to
Sections 962 and 984 of the Government Code or Section 659 of the
Code of Civil Procedure; however, the hearing shall not occur until
after the determination of any motions for a new trial, for judgment
notwithstanding the verdict, for remittitur, for additur, and after
any mandatory settlement conference pursuant to Section 962 of the
Government Code.
(c) A defendant public entity may, by interrogatory or in writing
at the trial-setting conference, request from the plaintiff a list of
the names and addresses of any provider of a collateral source
payment affected by this section that has provided collateral source
payments directly to or on behalf of the plaintiff and the amount
provided to the plaintiff from each collateral source. The plaintiff
shall produce the requested list within 30 days of such request. The
plaintiff shall have a continuing duty to disclose to the public
entity defendant the name and address of any provider of a collateral
source payment affected by this section but not disclosed in
plaintiff's response if that provider pays or owes collateral source
payments to or on behalf of plaintiff between the time of plaintiff's
response and the commencement of trial.
The public entity shall provide written notice to each provider of
a collateral source payment listed by the plaintiff or identified by
defendant of the date set for any pretrial settlement conference.
The provider of a collateral source shall not be required to
attend a settlement conference unless requested to do so by the
court. The court may request a provider of a collateral source to
attend a settlement conference or to provide written information, to
be available by telephone, or to otherwise participate in the
conference, and a provider of a collateral source shall waive its
rights to reimbursement unless it attends or otherwise complies with
the request.
(d) If the plaintiff fails or refuses to supply to the defendant
public entity information as to the identity of a provider of a
collateral source payment, as required by this section, the defendant
public entity may, upon discovery of the identity of the provider of
a collateral source payment, within five years of the date of entry
of judgment, request a reduction of the judgment for payment made or
for services provided prior to the commencement of trial by that
source. Failure of plaintiff to provide the names of collateral
source providers affected by this section and known to plaintiff,
shall subject plaintiff or plaintiff's attorney to sanctions pursuant
to Section 128.5 of the Code of Civil Procedure.
(e) The public entity shall also give 20 days' notice to the
provider of a collateral source payment of any posttrial settlement
conference or hearing regarding collateral source payments under this
section.
Proof of service of any notice sent pursuant to this section shall
be filed with the court and a copy served on all parties to the
action.
(f) At the hearing the trial court shall, in its discretion and on
terms as may be just, make a final determination as to any pending
lien and subrogation rights, and, subject to paragraphs (1) to (3),
inclusive, determine what portion of collateral source payments
should be reimbursed from the judgment to the provider of a
collateral source payment, deducted from the verdict, or accrue to
the benefit of the plaintiff. No provider of collateral source
payments pursuant to this section shall recover any amount against
the plaintiff nor shall it be subrogated to the rights of the
plaintiff against a public entity defendant other than in the amount
so determined by the court. The following provisions shall apply to
the court's adjustments:
(1) If the court has determined that the verdict included money
damages for which the plaintiff has already received payment from or
had his or her expenses paid by the following collateral sources:
Medi-Cal, county health care, Aid to Families with Dependent
Children, Victims of Crime, or other nonfederal publicly funded
sources of benefit with statutory lien rights, the court shall order
reimbursement from the judgment of those amounts to the provider of a
collateral source payment pursuant to this section and on terms as
may be just.
(2) If the court has determined that the verdict includes money
damages for which the plaintiff has already received payment from or
had his or her expenses paid by the following collateral sources:
private medical programs, health maintenance organizations, state
disability, unemployment insurance, private disability insurance, or
other sources of compensation similar to those listed in this
paragraph, the court may, after considering the totality of all
circumstances and on terms as may be just, determine what portion of
the collateral source benefits will be reimbursed from the judgment
to the provider of the collateral source payment, used to reduce the
verdict, or accrue to the benefit of the plaintiff. However, nothing
in this section shall create subrogation or lien rights that do not
already exist.
(3) In determining the amount to be reimbursed from the judgment
to a provider of a collateral source payment, or the amount by which
the judgment will be reduced to account for collateral source
payments, the court shall make the following adjustments:
(A) Where plaintiff has been found partially at fault, the
reimbursement or reduction shall be decreased by the same percentage
as the entire judgment is reduced to take into account the plaintiff'
s comparative fault.
(B) The court shall deduct from the reimbursement or reduction the
amount of premiums the court determines were paid by or on behalf of
the plaintiff to the provider of a collateral source payment.
(C) After making the adjustments described in subparagraphs (A)
and (B) above, the court shall reduce that amount by a percentage
equal to the percentage of the entire judgment that the plaintiff
paid or owes for his or her attorney fees and costs and reasonable
expenses incurred.
(g) In no event shall the total dollar amount deducted from the
verdict, paid to lienholders or reimbursed to all collateral source
providers, exceed one-half of the plaintiff's net recovery for all
damages after deducting for attorney's fees, medical services paid by
the plaintiff, and litigation costs; however, the court may order no
reimbursement or verdict reduction if the reimbursement or reduction
would result in undue financial hardship upon the person who
suffered the injury.
(h) Unless otherwise ordered by the court, 50 percent of any
amount reimbursed pursuant to this section shall be due immediately.
The court may order the remaining 50 percent to be paid in
installments over a period of time to be determined by the court
pursuant to Section 984, not to exceed 10 years.
(i) In any case involving multiple defendants, a reduction
pursuant to this section shall be proportional to the percentage of
the judgment actually paid by the public entity and shall satisfy the
judgment as to the portion reduced so that no other judgment debtor
shall be jointly liable for the portion of the judgment reduced
pursuant to this section. If, after a hearing and determination
pursuant to this section, the public entity judgment debtor is
required to satisfy a portion of a joint and several judgment beyond
that public entity judgment debtor's several portion due to the
uncollectability of a joint tortfeasor's portion, the public entity
may make a motion to reduce the additional portion in an amount
proportional to the determination of the court pursuant to this
section.
(j) In all actions affected by this section, the court shall
instruct the jury with the following language:
"You shall award damages in an amount that fully compensates
plaintiff for damages in accordance with instructions from the court.
You shall not speculate or consider any other possible sources of
benefit the plaintiff may have received. After you have returned your
verdict the court will make whatever adjustments are necessary in
this regard."
(k) The Judicial Council shall adopt rules providing for a
reasonable extension of the time for filing the notice of appeal from
a judgment on the verdict to permit a motion for the hearing and the
hearing itself.
(l) If the defendant public entity or defendant public employee is
also a health care provider as defined in Section 3333.1 of the
Civil Code, that section controls as to that defendant.
(m) This chapter does not apply to lien or subrogation rights
provided in Chapter 5 (commencing with Section 385) of Part 1 of
Division 4 of the Labor Code.