Acuar v. Letourneau

Present: All the Justices

FIDELINA D. ACUAR

v. Record No. 992228 OPINION BY JUSTICE CYNTHIA D. KINSER
June 9, 2000
KEVIN LETOURNEAU

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge

This appeal arises out of a motor vehicle accident

that occurred in December 1995 in the City of Virginia

Beach. Kevin Letourneau filed a motion for judgment

against Fidelina D. Acuar seeking damages for injuries he

allegedly sustained as a result of that accident. Acuar

admitted liability, and the case proceeded to trial solely

on the issue of damages. A jury returned a verdict in

favor of Letourneau and awarded him damages in the amount

of $150,000. The circuit court entered judgment in

accordance with the jury verdict.

We awarded Acuar this appeal on two assignments of

error: (1) that the circuit court erred in allowing

repeated references to a police accident report in

violation of Code § 46.2-379, and (2) that the circuit

court erred in allowing those portions of Letourneau’s

medical expenses that were “written off” by his health care

providers to be submitted to the jury. Because we conclude

that the court erred in permitting numerous references to
the accident report, we will reverse the circuit court’s

judgment and remand for a new trial. Furthermore, since

the second issue will arise again during a new trial on

remand, we also decide that issue and conclude Letourneau

may present evidence at the new trial of the full amount of

his reasonable medical expenses without any reduction for

the amounts “written off” by his health care providers.

FACTS

The facts pertinent to these issues are not in

dispute. On the morning of trial, Acuar made a motion to

exclude the amounts of Letourneau’s medical bills that were

“written off” 1 by his health care providers. 2 Although the

court expressed the view that those portions written off

should not be introduced into evidence, the court denied

Acuar’s motion on the basis that it was in the nature of a

1
Pursuant to agreements between health care providers
and health insurance carriers, health care providers
routinely deduct certain amounts from the total costs of
medical treatment. Those are the amounts “written off.”
2
Letourneau’s medical bills were in excess of $41,000.
However, after deducting the amounts written off by the
health care providers, his medical bills totaled
$13,618.51. Letourneau introduced bills totaling
$40,831.03 into evidence during the trial. Acuar admitted
the reasonableness and authenticity of Letourneau’s medical
bills.

2
motion in limine and that, as such, it was not timely made

under the court’s scheduling order. 3

During the trial, Albert L. Mills, the police officer

who investigated the motor vehicle accident in question,

testified. During direct examination, counsel for

Letourneau asked Mills if he needed to refresh his memory

with regard to the type of one of the vehicles involved in

the accident. In response, Mills stated, “Yes. I don’t

have a copy of the accident report.” At that point, while

handing the accident report to Mills, Letourneau’s counsel

advised the court that Mills “may need to refer to this.

This is his accident report.”

Acuar’s counsel then requested a bench conference,

after which the following colloquy took place:

BY [LETOURNEAU’S COUNSEL]:

Q Officer Mills, does what I just handed you
refresh your recollection?

A Yes, sir. That’s a copy of the accident
report which I filled out during that time frame.

Q Okay.

[ACUAR’S COUNSEL]: I’ve objected.

3
The circuit court had previously entered a scheduling
order that provided, in pertinent part, that “[m]otions in
limine shall be scheduled for hearing before the trial
date.”

3
 THE COURT: Officer, just look directly at
the report and respond to the question.

Acuar then objected to the manner in which the

document was being utilized to refresh the officer’s

memory. The trial court overruled the objection on the

basis that the document was only being used to refresh

Mills’ recollection.

Later in the direct examination of Mills, Letourneau’s

counsel asked the officer to mark on a photograph the

location of Letourneau’s vehicle at the accident scene. In

response Mills stated, “I don’t particularly remember

exactly where the vehicle was in that intersection. All I

can do is recollect what the diagram shows on my accident

report.” Mills’ reference to his accident report again

drew an objection from Acuar’s counsel.

On re-direct, Letourneau’s counsel asked Mills,

“Officer, when you testified that the — how the truck ended

up, was that going by your memory?” Mills answered in the

affirmative, and counsel then asked, “Look at your diagram

again and tell me whether or not —.” Acuar’s counsel

objected again and stated that the problem of referring to

the accident report was being compounded. The court then

directed the officer to check his notes and refresh his

recollection.

4
 Acuar’s counsel also objected when a diagram was

mentioned in the following colloquy between Letourneau’s

counsel and Mills:

Q Did you look at the skid marks in the
street?

A I did look at the scene. I don’t have
anything indicated about skid marks, although the
diagram I have indicated that —

[ACUAR’S COUNSEL]: Judge, there’s where I
have an objection as to —

THE COURT: Do you have any independent
recollection or in looking at your notes to
indicate if at any time any vehicle spun?

THE WITNESS: Yes, sir, the diagram that I
have drawn based on the accident scene during
that time frame shows that the vehicle did turn
slightly after impact.

At a recess during trial, Acuar’s counsel argued that

“the words ‘accident report’ are not supposed to be used in

front of the jury,” and moved for a mistrial because of the

numerous references to the report. The circuit court

denied the motion, although it indicated that it might give

the jury a cautionary instruction.

On the second day of the trial after reviewing

relevant cases, the court acknowledged that Acuar’s

objections to the use of the term “accident report” should

have been sustained, but the court had not yet decided what

action to take with regard to the admission of that

5
testimony. On the third and final day of trial, the court

announced that it was not going to change its earlier

ruling with respect to the references to the accident

report, and was allowing the testimony to remain in

evidence. The court also declined to give a curative

instruction, believing that “it [would] create more

problems than it would resolve.”

Since Acuar admitted liability, Mills’ testimony

focused on the force of the impact between the two vehicles

and their relative positions after the collision occurred.

Donald Stanley, a deputy sheriff with the City of Virginia

Beach Sheriff’s Office, also testified with regard to the

same issues, without referring to the accident report.

Stanley was driving to work, travelling directly behind

Letourneau’s truck at the time of the collision. Stanley

witnessed the accident and saw Acuar’s vehicle collide

broadside with Letourneau’s truck, causing the truck to

spin around 180 degrees, go up and over the curb, and knock

down a tree in the median. Letourneau also introduced into

evidence photographs depicting the damage to both parties’

vehicles.

ANALYSIS

I. ACCIDENT REPORT

6
 On the first issue, Acuar argues that the circuit

court violated Code § 46.2-379 by allowing the jury to hear

repeated references to Mills’ accident report. Acuar also

posits that the court’s direction to the officer to refer

to his report to refresh his recollection increased the

likelihood that the jury placed undue weight on its

contents even though the report was not actually admitted

into evidence.

In response, Letourneau points out that the first

mention of the accident report occurred when Mills stated,

without solicitation, that he did not “have a copy of the

accident report.” Continuing, Letourneau stresses the fact

that the only time that his counsel used the phrase

“accident report” was when he handed the report to Mills so

the officer could use it to refresh his recollection.

Letourneau also contends that Mills’ references to the

accident report and its contents were merely cumulative of

Stanley’s testimony and the photos of the vehicles, both of

which conclusively established the force of the impact

between the two vehicles. Also, Mills did not testify

about any facts or circumstances that were disputed. Thus,

argues Letourneau, any error by the circuit court on this

issue was harmless. We do not agree.

7
 Code § 46.2-379 provides, in pertinent part, that

“accident reports made by investigating officers . . .

shall not be used as evidence in any trial, civil or

criminal, arising out of any accident.” As we have

previously stated, “[t]he rationale of the statute is that

the report, although routinely and sometimes hurriedly

made, . . . nevertheless carries with it the stamp of a

written and official document to which a jury could attach

more weight than it is properly due.” Davis v. Colgin, 219

Va. 5, 7, 244 S.E.2d 750, 751 (1978). Accord Cherry v.

D.S. Nash Constr. Co., 252 Va. 241, 246, 475 S.E.2d 794,

797 (1996); Galbraith v. Fleming, 245 Va. 173, 175, 427

S.E.2d 187, 188 (1993).

In Phillips v. Schools, 211 Va. 19, 175 S.E.2d 279

(1970), the plaintiff’s attorney sought to cross-examine

the defendant about a prior statement by making specific

reference to an accident report. Although the plaintiff

conceded that the report itself could not have been

introduced into evidence if the defendant denied making the

statement, the plaintiff nevertheless asserted that he

should be permitted to use the report to cross-examine the

defendant about a statement in the report. However, this

Court held that “to have permitted plaintiff’s counsel to

make specific reference to the report in the presence of

8
the jury, and to read defendant’s statement therein for the

purpose of contradicting him, would have in effect

accomplished indirectly what [former] Code § 46.1-407[ 4 ]

forbids to be done directly.” Id. at 22-23, 175 S.E.2d at

281.

Similarly in Davis, the plaintiff’s counsel furnished

the investigating police officer with a copy of the

officer’s accident report for the purpose of refreshing the

officer’s memory. The officer was then questioned about

the details of the accident. On cross-examination, the

defendant’s counsel attempted to ascertain how the officer

had refreshed his recollection regarding the accident and

asked the officer about the accident report. Davis, 219

Va. at 6, 244 S.E.2d at 750-51. Even though the report was

not introduced into evidence, this Court held that “no

reference” should have been made to the report by either

party or their counsel. Id. at 8, 244 S.E.2d at 751.

As in Davis and Phillips, the accident report was not

introduced into evidence in the present case. However, the

4
Former Code § 46.1-407 provided that accident reports
were to be confidential, while former Code §§ 46.1-408 and
–409, inter alia, barred the use of accident reports as
evidence in any trial. Those portions of former Code
§§ 46.1-408 and –409 are now codified at Code § 46.2-379.

9
numerous references to it 5 during Mills’ testimony by not

only the officer but also the court and Letourneau’s

attorney amounted to nothing less than an official stamp

being placed on the document used to refresh Mills’

recollection. Thus, the jury could have placed more weight

on Mills’ testimony than it might otherwise have done. As

we said in Phillips, the references to the accident report

“accomplished indirectly what Code § [46.2-379] forbids to

be done directly.” 211 Va. at 22-23, 175 S.E.2d at 281.

Therefore, we conclude that the circuit court erred in

allowing the repeated references to the accident report.

We also do not believe that the error was harmless.

Since Acuar admitted liability, the only issue for the jury

to determine was the quantum of damages. Evidence of the

details of the collision and the severity of the impact

between the two vehicles was material and relevant to an

assessment of the trauma and injury that Letourneau

sustained. See Wallen v. Allen, 231 Va. 289, 293-94, 343

S.E.2d 73, 76 (1986). Since Stanley’s testimony followed,

and was in most respects cumulative of, Mills’ testimony,

the repeated interjection of the accident report in front

of the jury made it more difficult for Acuar’s counsel to

5
The accident report was also referred to by the terms
“diagram” and “report.”

10
effectively test Stanley’s memory during cross-examination.

In other words, the “stamp of a written and official

document,” Davis, 219 Va. at 7, 244 S.E.2d at 751, that

implicitly accompanies an accident report enhanced not only

Mills’ testimony but also that of Stanley. Therefore, we

cannot say that the numerous references to the accident

report were not prejudicial to Acuar. Accordingly, we will

remand this case to the circuit court for a new trial.

II. MEDICAL EXPENSES WRITTEN OFF

We now address the question whether those portions of

Letourneau’s medical bills that his health care providers

wrote off can be submitted to the jury. We decide this

issue because it will likely arise again in a new trial. 6

See Shelby Ins. Co. v. Kozak, 255 Va. 411, 416, 497 S.E.2d

864, 868 (1998).

We begin with a discussion of the collateral source

rule, the applicability of which is central to this issue.

The collateral source rule is a long-standing principle in

Virginia tort law and has been applied in tort cases for

6
We will not address the question whether the circuit
court abused its discretion in ruling that Acuar’s motion
to exclude the portions of the medical bills written off
was not timely under the court’s scheduling order. In
light of our determination that this case will be remanded
for a new trial, that question is moot.

11
more than a century. 7 See Schickling v. Aspinall, 235 Va.

472, 475, 369 S.E.2d 172, 174 (1988); Johnson v. Kellam,

162 Va. 757, 764-65, 175 S.E. 634, 636-37 (1934); Baltimore

& Ohio R.R. Co. v. Wightman’s Adm’r, 70 Va. (29 Gratt.)

431, 446 (1877), rev’d on other grounds sub nom. Railroad

Co. v. Koontz, 104 U.S. 5 (1881). The meaning of the

collateral source rule and its rationale are found in the

following passages from several of our prior cases:

The law seems quite well settled that damages,
recoverable for personal injuries inflicted through
the negligence of another are not to be reduced by
reason of the fact that the injured party had been
partly compensated for his loss by insurance which he
has procured and for which he has paid. The reason
for this rule is that the defendant, who by his
negligence, has injured another, owes to such other
compensation for the injuries he has inflicted and the
payment for those injuries from a collateral source
cannot relieve the defendant of his obligation.

Kellam, 162 Va. at 764, 175 S.E. at 636. Accord Burks v.

Webb, Adm’x, 199 Va. 296, 304, 99 S.E.2d 629, 636 (1957).

Pursuant to the rule, “compensation or indemnity received

by a tort victim from a source collateral to the tortfeasor

may not be applied as a credit against the quantum of

damages the tortfeasor owes.” Schickling, 235 Va. at 474,

7
The rule also applies to actions ex contractu in some
jurisdictions, see Hall v. Miller, 465 A.2d 222, 226-27
(Vt. 1983) (collecting authorities). This Court has never
considered that question, Schickling v. Aspinall, 235 Va.
472, 475, 369 S.E.2d 172, 174 (1988), and need not do so
today.

12
369 S.E.2d at 174. A person who is negligent and injures

another “owes to the latter full compensation for the

injury inflicted[,] . . . and payment for such injury from

a collateral source in no way relieves the wrongdoer of

[the] obligation.” Walthew v. Davis, Adm’r, 201 Va. 557,

563, 111 S.E.2d 784, 788 (1960) (citing Webb, 199 Va. at

304, 99 S.E.2d at 636).

With regard to the issue concerning the medical

expenses that were written off, Acuar first points out that

the purpose of compensatory damages is to make a plaintiff

whole. See F.B.C. Stores, Inc. v. Duncan, 214 Va. 246,

251, 198 S.E.2d 595, 599 (1973). Relying on Sykes v.

Brown, 156 Va. 881, 159 S.E. 202 (1931), Acuar argues that

a plaintiff may recover medical expenses only when the

plaintiff “is liable for the debt incurred.” Id. at 887,

159 S.E. at 204. Continuing, she asserts that, based on

this Court’s decision in State Farm Mut. Auto. Ins. Co. v.

Bowers, 255 Va. 581, 500 S.E.2d 212 (1998), the portions of

medical bills that are written off by health care providers

are not “incurred” expenses because a plaintiff is never

legally obligated to pay those amounts. Thus, Acuar

contends that the collateral source rule is not applicable

to the present case because Letourneau is not, and never

will be, legally obligated to pay those portions of his

13
medical bills that were written off, nor were those amounts

paid on his behalf. According to Acuar, the amounts

written off by health care providers are not benefits

derived from a collateral source, and to allow Letourneau

to recover such amounts as damages in this tort action

would create a double recovery or windfall in his favor.

In opposition, Letourneau asserts that the collateral

source rule does apply and that therefore Acuar cannot

reduce the amount of damages for which she is liable by

deducting the amounts written off by Letourneau’s health

care providers. Letourneau points out that his health care

providers wrote off certain portions of the medical

expenses because of agreements between them and his health

insurance carrier, and that such agreements are part of the

benefits that Letourneau obtained in exchange for the

consideration, or premium, that he paid for his health

insurance coverage. Letourneau maintains that, if Acuar’s

position were adopted, she would derive a benefit from

Letourneau’s health insurance without having paid any

consideration for such a benefit, thereby creating a

windfall for Acuar. However, based on this Court’s

decision in Schickling, Letourneau asserts that the law

favors a windfall for the tort victim rather than the

wrongdoer.

14
 In deciding this issue, we first note that our

decision in Bowers is not dispositive. That case involved

a contractual dispute between an insured and his automobile

liability insurance carrier regarding coverage under the

medical payments provision of the policy at issue. Bowers,

255 Va. at 583-84, 500 S.E.2d at 212-13. Under the terms

of that provision, the insurance carrier agreed to pay “on

behalf of each injured person, medical expense benefits as

a result of bodily injury caused by accident.” Id. at 583,

500 S.E.2d at 212. The policy defined medical expense as

“all reasonable and necessary expenses for medical . . .

services . . . incurred . . . .” Id. Accordingly, to

answer the coverage question, we focused on the meaning of

the term “incurred,” as defined by this Court in Virginia

Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692, 385

S.E.2d 612 (1989). In Hodges, we said that “[a]n expense

can only be ‘incurred’ . . . when one has paid it or become

legally obligated to pay it.” Id. at 696, 285 S.E.2d at

614. Thus, we concluded in Bowers that “the medical

expenses Bowers [had] ‘incurred’ were the amounts that the

health-care providers accepted as full payment for their

services rendered to him” and did not include the amounts

15
written off by such providers. 8 Bowers, 255 Va. at 585-86,

500 S.E.2d at 214.

Even though that case, like the present one, involved

medical expenses that health care providers had written

off, we were construing the specific terms of an insurance

contract in Bowers. Thus, neither the tort policy of this

Commonwealth nor the collateral source rule was implicated.

By contrast, in the instant case, we are reviewing a tort

claim, not a contractual one, by an injured party against a

wrongdoer.

We also point out that Hodges likewise involved the

interpretation of a medical payments provision. Hodges,

238 Va. at 693, 385 S.E.2d at 612. In that case, the

plaintiff sought to recover the cost of surgery under the

medical payments provision of her automobile insurance

policy even though she had not yet undergone the surgery

and had not entered into a contract with the doctor to

perform the surgery on some future date. Id. at 694-95,

385 S.E.2d at 613. This Court concluded that the plaintiff

had not “incurred” that surgical expense within one year

8
We also note that when the General Assembly defined
the term “incurred” in Code § 38.2-2201(A)(3), it did so
only in the context of provisions for payment of medical
expenses in automobile liability insurance policies.

16
from the date of the accident as required by the terms of

the insurance policy. Id. at 696, 385 S.E.2d at 614.

By way of contrast, if the plaintiff in Hodges had

brought a tort action against the negligent driver who

caused her injuries, such as the present case filed by

Letourneau, she undoubtedly would have been allowed to

recover the cost of future medical expenses as an element

of damages. See Hailes v. Gonzales, 207 Va. 612, 614, 151

S.E.2d 388, 390 (1966) (award for future medical expenses

is appropriate when evidence supports such an award). The

question whether such future expenses had been “incurred”

would not have been an issue.

Likewise, this Court’s decision in Sykes does not

provide controlling precedent for purposes of the issue

before us. There, the plaintiff sought damages for

personal injuries sustained when she was struck by an

automobile. Testimony from a doctor associated with the

hospital where the plaintiff had received treatment

established the approximate amount of her hospital bill and

the balance due on the bill. Sykes, 156 Va. at 886, 159

S.E. at 204. One of the errors assigned was the trial

court’s refusal to instruct the jury that it could not

consider “any expenses incurred for hospital care, nursing,

17
medical or surgical treatment.” 9 Id. at 886-87, 159 S.E. at

204. In support of the instruction, the defendant argued

that the evidence failed to show that the plaintiff had

paid any part of her medical expenses. Id. at 887, 159

S.E. at 204. In holding that the instruction was properly

refused because the record established that the plaintiff

owed another doctor for services rendered as a result of

the accident, this Court stated that “[p]ayment of the

expense of treatment is not essential to a recovery. If

plaintiff is liable for the debt incurred, that is all that

is necessary.” Id.

The decision in Sykes focused on whether it was

necessary for the plaintiff to have paid her medical

expenses before she could claim them as part of her

damages. The application of the collateral source rule was

not at issue. Thus, we are not persuaded by Acuar’s

argument, based on the previously quoted language from

Sykes and the definition of the term “incurred” used in

Bowers, that the collateral source rule does not apply to

9
Because the doctor who testified could not state the
correct amount due the hospital but only approximated the
expenses incurred, and also could not state whether the
bill had been paid by the plaintiff or whether she was
primarily liable for the bill, the defendant also assigned
error to the trial court’s failure to sustain an objection
to the doctor’s testimony. This Court concluded that the

18
the present case because Letourneau did not “incur” the

medical expenses that his health care providers wrote off.

That argument overlooks the fundamental purpose of the

rule, explained above, to prevent a tortfeasor from

deriving any benefit from compensation or indemnity that an

injured party has received from a collateral source. In

other words, the focal point of the collateral source rule

is not whether an injured party has “incurred” certain

medical expenses. Rather, it is whether a tort victim has

received benefits from a collateral source that cannot be

used to reduce the amount of damages owed by a tortfeasor.

Letourneau is entitled to seek full compensation from

Acuar. See Walthew, 201 Va. at 563, 111 S.E.2d at 788.

Based on the cases cited above dealing with the collateral

source rule, we conclude that Acuar cannot deduct from that

full compensation any part of the benefits Letourneau

received from his contractual arrangement with his health

insurance carrier, whether those benefits took the form of

medical expense payments or amounts written off because of

agreements between his health insurance carrier and his

health care providers. Those amounts written off are as

much of a benefit for which Letourneau paid consideration

_________________
testimony should have been excluded. Sykes, 156 Va. at
886, 159 S.E. at 204.

19
as are the actual cash payments made by his health

insurance carrier to the health care providers. The

portions of medical expenses that health care providers

write off constitute “compensation or indemnity received by

a tort victim from a source collateral to the tortfeasor

. . . .” Schickling, 235 Va. at 474, 369 S.E.2d at 174.

This conclusion is consistent with the purpose of

compensatory damages, which is to make a tort victim whole.

However, the injured party should be made whole by the

tortfeasor, not by a combination of compensation from the

tortfeasor and collateral sources. The wrongdoer cannot

reap the benefit of a contract for which the wrongdoer paid

no compensation. Baltimore & Ohio R.R. Co., 70 Va. (29

Gratt.) at 446. The extent of Acuar’s liability to

Letourneau cannot be “measured by deducting financial

benefits received by [Letourneau] from collateral sources.”

Owen v. Dixon, 162 Va. 601, 608, 175 S.E. 41, 43 (1934).

In other words, “it is the tortfeasor’s responsibility to

compensate for all harm that he [or she] causes, not

confined to the net loss that the injured party receives.”

Restatement (Second) of Torts § 920A cmt. b (1977).

To the extent that such a result provides a windfall

to the injured party, we have previously recognized that

consequence and concluded that the victim of the wrong

20
rather than the wrongdoer should receive the windfall.

Schickling, 235 Va. at 475, 369 S.E.2d at 174. We explain

the rationale for that result by repeating the following

explanation of the collateral source rule:

The collateral source rule is designed to strike
a balance between two competing principles of tort
law: (1) a plaintiff is entitled to compensation
sufficient to make him whole, but no more; and (2) a
defendant is liable for all damages that proximately
result from his wrong. A plaintiff who receives a
double recovery for a single tort enjoys a windfall;
a defendant who escapes, in whole or in part,
liability for his wrong enjoys a windfall. Because
the law must sanction one windfall and deny the other,
it favors the victim of the wrong rather than the
wrongdoer.

Id. at 474-75, 369 S.E.2d at 174.

For these reasons, we hold that Letourneau may present

evidence at the new trial of the full amount of his

reasonable medical expenses without any reduction for the

amounts written off by his health care providers.

Reversed and remanded.

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