Posted On: November 4, 2010 by

Wife Of Sacramento Veteran Seeks Damages After Husband's Wrongful Death, Part 5 of 5

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Evidence of Retirement and Survivor Payments and Benefits Based on Mr. Hill's Military Service Are Admissible As Collateral Sources

Issues pertaining to the amount of damages sought in this case, particularly in reference to claims made based on Mr. Hill's projected income must be examined at the time of trial and cannot justifiably be excluded from evidence. For example, serious questions exist as to whether Mr. Hill, even if he otherwise was able to resolve his suicidal tendencies including two § 5150 holds within close proximity to each other, a while driving a military vehicle and a drug overdose, would have allowed him to remain in the military so as to reach full retirement. Had Mr. Hill reached his full 20 years of military service, he would have been entitled to a pension at 50% of his base pay at retirement. For more information you are welcome to contact , Moseley Collins.

Assuming plaintiffs seeks to present evidence regarding the viability of a full military career to 20 years, defendants are entitled to an offset for whatever equivalent payments Mrs. Hill is receiving in lieu of that pension which would otherwise have not been obtained had he not died. See, e.g. Rotolo v. Superior Court (2003) 105 Cal.App.4th 242. Rotolo dealt with a functionally identical situation as here, of a plaintiff claiming both lost wages (albeit due to a disabling injury, not a death) and lost standard retirement/pension payments benefits of about $875,000. However, the evidence showed that, due to his disability, he was entitled to receive replacement disability retirement payments of a nearly equivalent amount in lieu of his normal retirement, He otherwise would not have received such sums had he not become disabled and retired for this reason.

While the Court found that the lost wages were fully recoverable and protected by the collateral source rule, plaintiff could not exclude evidence of the disability retirement while still seeking damages for the standard retirement benefits, as this would amount to triple recovery. Rather, evidence of the disability retirement benefits was fully admissible and not barred by the collateral source rule, to offset and reduce the claimed retirement benefits loss.

The principle articulated in Rotolo apply with equal force here, where plaintiff can no longer obtain the standard pension to which her husband was entitled and has, incidentally, acknowledged receiving numerous, alternative benefit payments that would not have been received but for the death. Plaintiff claims as damages the alleged lost pension benefits, which these benefits directly offset.

Conclusion

For the foregoing reasons, defendants respectfully request that the Court order that any evidence of payments and compensation that decedent David Hill and/or plaintiff Stella Hill has received or will receive as a result of the decedent's death be admitted into evidence at or during the time of trial for the reasons and purposes outlined herein.

For more information you are welcome to contact , Moseley Collins.