Petition — Sims v. Virginia Electric & Power Co.

MAR 21 977

MICHAEL RODAK, JR., CLERK

In The

Supreme Court of the United States

October Term, 1976

No. €671305

WILLIAM M. SIMS, Petitioner

vs.

VIRGINIA ELECTRIC AND POWER COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

womens comes WILLIAM C. RAPER

' 2400 Wachovia

2400 Wachovia Winston-Salem,

Building N. C. 27102

Telephone 919/

Winston-Salem, 725-1311

N. C. 27102 Counsel for Petitioner

INDEX

Page

OPINIONS BELOW. - + ++ +e = 1

JURISDICTION - - © © © © «© « « 2

QUESTION PRESENTED ....--s- - 2

STATEMENT OF THE CASE ..- « - 2

REASONS FOR GRANTING WRIT .-«- - 6

CONCLUSION ad ° . . eo * 7 . . o 2 7

AUTHORITIES CITED

Cases:

Awtrey v. Norfolk Western

Co., 1 Va. 284, S.E.

S70 (1917) 2. we ee ew ew ee

Burks v. Webb, 199 Va. 296, 99

S.E. 2d 629 (1957) . . . . . - 17

Elliott v. U.S., 329 F. Supp.

o Mmeane, 1971) . . ce « « 13

Johnson v. Kellam, 162 Va.

757, 175 Se Be 634 (1934) . . . 17

Keller v. 6, of St. raps

152 Mo. 596, 54 S.W.

(1899) 7 . . . 7 . . 7 . 16

Mihalcoe v. Holub, 130 Va. 425,

107 S.E. 704 (1921) . . - . © . 16

ii

Authorities, Continued Page iii

Moses v. Akers, 203 Va. 130,

l22 S.E. 2g 904 (1961) .. 7, 8, ll, 13

Statutes:

Norfolk So. . Co. v. Fin- Page

cham, 213 Va. 122, 189 S.E. Code of Virginia, §8-629

2d 380 (1972) . . . ° e e ° e ° 14 (1975 Cum. Supp. ) . . . . . . . . 8

Owen v. Dixon, 162 Va. 601, Code of Virginia, §8-629

ome nn 6 « 6.6 & 6 *« 17 (1957 Replacement Volume) ,. ... 10

Rayfield v. Lawrence, 253

F. 24 209 (4th Cir., 1958) ... 18, 22 Miscellaneous:

Smith v. Hewett, 235 N.C. 615, : 67 C.J.S., Parent and Child

70 S.E. 2d 825 (1952) ..... 15 7 $55 at 743 ‘ear arr ee 14

Trueman v. United States, 59 Am. Jur. 2d, Parent and

180 F. Supp. 172 (E.D. La.,

Child, §129 at 230

1960) . . . . . . . . . . . . . . 24 | ——_"' .

. + . + . e 14

United States v. Price,

268 F. 2a 448 (4th Cir.,

1961) . - . 7 - + . . . - . . 7 . 20

Walthew v. Davis, 201 Va.

557, 1ll S.E. 20 784 (1960)

.

.

~

~

Watson v. Daniel, 165 Va.

564, 183 S.E. 183 (1936) ... 8, 12, 13

IN THE

SUPREME COURT OF THE UNITED STATES JURISDICTION

ee The judgment of the Court of

Appeals was entered on January 7, 1977.

The jurisdiction of this Court rests

on 28 U.S.C. §1254(1) (1966).

No.

QUESTION PRESENTED

WILLIAM M. SIMS, Petitioner Whether the Court of Appeals

erred in its interpretation of Virginia

Ve law to the effect that the collateral

source doctrine does not apply and the

VIRGINIA ELECTRIC AND POWER COMPANY, plaintiff has not been damaged where

all past medical expenses for the treat-

Respondent | ment of plaintiff's infant daughter have

; been paid by plaintiff's insurance, in-

stead of by the plaintiff personally,

and where there was no evidence pre-

PETITION FOR A WRIT OF CERTIORARI sented that future medical expenses

TO THE UNITED STATES COURT OF APPEALS were likely to exceed plaintiff's

FOR THE FOURTH CIRCUIT | existing insurance coverage.

STATEMENT OF THE CASE

William Sims (Sims) is the

William M. Sims pare Se. © | father of Jennifer Sims, a minor. Sims

west of corttorass leave teqettaere'se | «snd Jenner's mother, art yn, Brannon,

a for the Fourth Circuit entered ya aa tee i aan haben ae

in the above-entitled action on Janu- Chilton County, Alabama. Jennifer's

ary 7, 1977 (Court of Appeals Opinion mother has since remarried. The di-

appented) 4_. vorce decree awarded custody of Jenni-

fer to Mrs. Brannon, but it made Sims

OPINIONS BELOW solely responsible for any medical ex-

penses incurred by Jennifer, requiring

The opinion of the Court of him to maintain full medical and hospi-

Appeals is appended. tal coverage insurance for her.

On May 24, 1972, while living

with her mother in Virginia, Jennifer

was injured when she climbed a tree in

her backyard and contacted a high vol-

tage power line under the control of

Virginia Electric and Power Company ~

(Vepco). As a result, Jennifer requir-

ed extensive medical treatment.

An action arising out of this

incident, styled Jennifer Sims, a child,

by her natural mother and next friend,

Marilyn Brannon v. Virginia Electric

and Power Company, was filed in Vir-

ginia State Court. Sims was not a

party to this action, was not served

with any of the pleadings, and never

made an appearance or participated in

any way in that proceeding. On March l,

1974, that case was settled. In the

Order Approving Compromise Settlement,

the Court stated that the natural father

(Sims) was outside the jurisdiction of

the Court. Sims was otherwise not men-

tioned in the Settlement Order.

The instant action was there-

after filed by plaintiff Sims, a North

Carolina resident, against defendant

Vepco in the General Court of Justice,

Superior Court Division, Forsyth County,

North Carolina. The action was subse-

quently removed to the United States

District Court for the Middle District

of North Carolina and, thereafter,

transferred to the United States Dis-

trict Court for the Eastern District

of Virginia.

In his Complaint, Sims alleg-

ed that his daughter Jennifer was in-

jured as a result of the negligence of

Vepco. He sought damages for the medi-

cal expenses, both past and future, for

the treatment of his daughter.

It was agreed at the time of

trial that Sims's claim included

$28,365.56 in medical expenses already

paid on behalf of Jennifer by insurance

companies solely as a result of Sims

having obtained and having kept in full

force medical and hospital insurance

coverage on Jennifer. The case was

tried to a jury on July l, 1975. The

District Court applied the Virginia

"collateral source" doctrine and ruled

that Vepco could not take advantage of

the fact that the past medical expenses

had literally been paid by Sims's insur-

ance carrier tather than by Sims person-

ally. No evidence regarding the limits

of Sims's insurance policy was attempt-

ed to be introduced. The District Court

also instructed the jury that it could

consider as damages only those future

medical expenses which had been proved

with reasonable certainty. Dr. Judson

Randolph testified that future surgery

on Jennifer, particularly with regard

to extensive revisional surgery on her

face, her neck, her right axilla, and

her left hand, would cost between

$25,000 and $40,000.

The jury rendered its verdict

for Sims and awarded damages in the

amount of $35,000. Judgment was enter-

ed accordingly against Vepco, and Vepco

appealed to the United States Court of

Appeals for the Fourth Circuit.

The Court of Appeals reversed

the judgment of the District Court and

entered judgment for Vepco. The sole

issue decided by the Court of Appeals,

and upon which the entire decision was

based, was that Sims had not suffered

any damages.

The Court held that under its

interpretation of Virginia law, the col-

lateral source doctrine did not apply

because all past medical expenses for

Jennifer's care and treatment had been

paid, not by Sims, but by Sims's insur-

ance coverage. The Court stated that

"Sims has suffered no injury. He has

not been physically hurt and has not

been required to pay any money because

of the injury to Jennifer." As to fu-

ture medical expenses awarded by the

jury, the Court stated that since

there was no evidence presented at _

trial that future expenses for Jenni-

fer's treatment would be likely to ex-

ceed Sims's existing insurance cover-

age, the collateral source doctrine

again did not apply, and Sims was not

entitled to damages for future medi-

cal expenses.

—s —--

TN a AE ct le I ae le er Ba 8 tl i i te) IT el Be Ol

ee

REASONS FOR GRANTING THE WRIT

The question presented by this

petition involves the very basic issue

of the extent of power in a federal

court in a diversity action to overturn,

in effect, a long-standing and well-

settled doctrine of state law. It is

respectfully submitted that the decision

of the Court of Appeals in this matter

is in direct conflict with both applic-

able state law and other decisions of

the Fourth Circuit interpreting that

Same state's law. If this decision is

allowed to stand, it will seriously im-

pair and alter future applications of

the collateral source doctrine in Vir-

ginia and elsewhere within the Fourth

Circuit to the substantial detriment

of the petitioner and of future plain-

tiffs who have the prudent foresight

to have insurance coverage.

The precise issue which is

presented in this petition may be stat-

ed as follows:

Under Virginia law, may a

father recover from the tort-

feasor the sums expended for

medical treatment of his in-

fant daughter where all of the

past medical expenses have

been paid by the father's in-

Surance carrier, rather than

by the father personally, and

where there is no evidence

presented at trial that future

medical expenses for his in-

fant daughter are likely to

exceed the father's insur-

ance coverage?

A. Sims's Cause of Action

In Virginia, two separate

and distinct causes of action arise.

when an unemancipated infant is in-

jured by a tortious act. In Moses

v. Akers, 203 Va. 130, 122 S.E. 2d

864 (1961), the Virginia Supreme

Court stated at 865-66:

"It is well settled that in

case of an injury to an un-

emancipated infant by wrong-

ful act two causes of action

ordinarily arise. One cause

of action is on behalf of

the infant to recover dam-

ages for pain and suffering,

permanent injury and impair-

ment of earning capacity

after attaining majority.

The other is on behalf of

the parent for loss of ser-

vices during minority and

necessary expenses incurred

for the infant's treatment.

[citations] The parent's

cause of action is founded

upon the principle that he

is primarily responsible

for the necessary expenses

incurred in curing or re-

lieving the infant of his

injuries. [citation]”"

ee ee Be eae

ee ee ee ee

eet me re ee Oe et. ee ee

ee

In Moses, supra, the Court fur-

ther stated at 866 that an infant cannot

recover medical expenses unless:

"(1) he has paid or agreed to

pay the expenses; or (2) he

alone is responsible by reason

of his emancipation or the

death or incompetency of his

parents; or (3) the parent has

waived the right of recovery

in favor of the infant; or (4)

recovery therefor is permitted

by statute."

None of the above exceptions

applies in this case and, therefore, Jen-

nifer could not recover her medical ex-

penses in a suit against Vepco. In ac-

cord, Watson v. Daniel, 165 Va. 564, 183

S.E. 183 (1936).

The common law rule as to two

causes of action arising out of an in-

jury to an unemancipated minor has also

been recognized in Section 8-629 of the

Virginia Code. The statute allows the

two causes of action to be tried at the

same time, but emphasizes that if both

are tried simultaneously, there must be

distinctly separate verdicts and judg-

ments. This statute, before its amend-

ment in 1973, read as follows:

"§8-629. Joinder of action of

tort to infant with action for

recovery Of expenses incurred

thereby. -- Where there is

pending any action by an infant

plaintiff against a tort feasor

for a personal injury, énry par-

ent, or guardian of such infant,

who is entitled to recover from

the same tort feasor the expenses

of curing or attempting to cure

such infant from the result of

such personal injury, may bring

an action against such tort

feasor for such expenses, in

the same court where such in-

fant's case is pending, and upon

motion of any party to either

case, made to the court at least

one week before the trial, both

cases shall be tried together

at the same time as parts of

the same transaction. But sep-

arate verdicts when there is a

jury trial shall be rendered in

each case, and the judgment

shall distinctly separate the

decision and judgment in each

case.

"In the event of the cases being

carried to the Supreme Court of

Appeals of Virginia, which may

be done if there be the jurisdic-

tional amount in either case,

they shall both be carried to-

gether as one case and record,

but the Supreme Court of Appeals

shall clearly specify the deci-

sion in each case, separating

them in the decision to the ex-

tent necessary to do justice

among the parties."

dh sats ante tare tied

—

—

10

The amended statute is as set forth be-

"§8-629. Joinder of action of tort

to infant with action for recovery

of expenses incurred thereby. --

Where there is pending any action

by an infant plaintiff against a

tort-feasor for a personal injury,

any parent, or guardian of such

infant, who is entitled to recover

from the same tort-feasor the ex-

penses of curing or attempting to

cure such infant from the result

of such personal injury, may

bring an action against such tort-

feasor for such expenses, in the

Same court where such infant's

case is pending, either in the ac-

tion filed in brhalf of the infant

Or in a separate action. If the

claim for expenses be by separate

action, upon motion of any party

to either case, made to the Court

at least one week before the

trial, both cases shall be tried

together at the same time as

parts of the same transaction.

But separate verdicts when there

is a jury trial shall be render-

ed, and the judgment shall dis-

tinctly separate the decision and

judgment in the separate causes

of action.

"In the event of the cases being

carried to the Supreme Court of

Virginia, which may be done if

1l 12

there be the jurisdictional The next question, therefore, is in whose

amount in either case, they favor this claim for medical expenses

shall both be carried to- arises -- whether the cause of action

gether as one case and re- for medical expenses belongs to Sims,

cord, but the Supreme Court Jennifer's father, or to Mrs. Brannon,

shall clearly specify the her mother.

decision in each case, sep-

arating them in the deci- The courts of Virginia have

held that the parent who has the right

to bring the action for medical ex-

penses is the father. In Watson v.

Daniel, 165 Va. 564, 183 S.E. 183 (1936),

sion to the extent neces-

sary to do justice among

the parties."

a a

In Moses v. Akers, the Court the Court held at 187:

explained the plain meaning of this

statute at 866: "When the infant sued the de-

fendants, the medical and

hospital expense was sought

to be shown as an element of

his damage, but upon objec-

tion of the defendants the

court correctly ruled that

it was not proper in that ac-

tion. The father is legally

chargeable with such expense.

"Section 8-629, Code of 1950,

1957 Replacement Volume, rec-

ognizes the common law rule

that two separate causes of

action arise out of an injury

to an infant by wrong act."

(Emphasis addeay

a a ee Din eee needs ”

Section 8-629 makes it clear It is his duty to provide his

that had Jennifer and her father filed child with the necessary med-

claims at the same time and these ical attention. . .. (Empha-

claims had resulted in a judgment sis added)

against Vepco, it would have been nec-

essary that the jury determine each

claim separately and that two differ- |

ent judgments be prepared. The two ac- "The father's action is one

tions could not be consolidated into to recover the pecuniary loss

he sustained by being requir-

x ekkeek

one.

| ed to furnish medical treat-

A wholly distinct and separ- ment to his child and by los-

ate cause of action arises with regard ing the child's services."

to the parent's claim for medical ex- (Emphasis added)

penses related to curing the infant.

ROE cee | ene

13

In Moses v. Akers, supra,

in discussing who has the right to

bring an action foran infant's med-

ical expenses, the Court stated,

122 S.E. at 866, that since the

father was dead, the mother was

"primarily responsible for the nec-

essary bills incurred" in the treat-

ment of the infant's injuries. The

mother, therefore, could maintain

the action for medical expenses. In

the present case, Sims is obviously

not dead. In addition, not only did

Sims have the primary responsibility

for payment of all of Jennifer's med-

ical bills under both Virginia law

and the terms of the divorce decree,

he has in fact caused these medical

bills to be paid.

A Federal District Court in

Maine, applying Virginia law, has also

held that the father is the parent en-

titled to recover medical expenses.

Elliott v. U.S., 329 F. Supp. 621 (D.

Maine 1971). The holding of the Court,

based on Moses v. Akers, supra, and

Watson v. Daniel, supra, was stated at

629:

"Kerri Lynn's father is, of

course, entitled to recover

for past and future medical

expenses, including the ex-

penses of any special ther-

apy or special schooling,

which may be required in

the care and treatment of

ee

Se ee ae ORCL Ste Ue Be eee

derelict

14

Kerri Lynn during her minor-

ity. Moses v. Akers, 203 Va.

130, 122 S.E. 2d 864 (1961);

Watson v. Daniel, 165 Va. 564,

183 S.E. 183, 187 (1936)."

(Emphasis added)

To the same effect is a re-

cent case from Virginia, Norfolk

Southern Railway Co. v. Fincham, 213

Va. 122, te , which

states at 384 that "[t]Jhe father's

cause of action for medical and inci-

dental expenses was a derivative ac-

tion. . . ." (Emphasis added)

Virginia law regarding the

father's duty to support his children

is in conformity with the law found in

most other jurisdictions. 67 C.J.S.,

Parent and Child, §55, at 743, provides:

"Where the duty of support re-

mains with the father after

separation of the parents, al-

though the custody of the child

was given to the mother, the

right of action is not in the

mother, but in the father."

59 Am. Jur. 2d, Parent and

Child, §129, at 230, provides:

"The fact that the mother has

the custody of the child by

virtue of a judicial decree

does not entitle her to sue

for injury to it so long as

15

the father is still charged with

the duty of support. .. .”

In addition, two other juris-

dictions have held that even though

the parents of the injured child are di-

vorced, the father is the proper party

to maintain the action for the child's

medical expenses. In Smith v. Hewett,

235 N.C. 615, 70 S.E. 2d 825 (1952),

the plaintiff was 17 years of age. His

parents had been divorced for several

years, but there was no court order re-

garding his custody. He lived part of

the time with his mother and part of

the time with his grandmother. The hos-

pital bills resulting from his injuries

were charged to the father. In holding

that the father was not estopped to bring

his action for medical expenses since,

notwithstanding the divorce, he was

still liable in law for the medical and

hospital expenses of his son, the Court

he:d the following at 827:

"The father is under the legal

duty to support his child dur-

ing minority, and he has the

right of action to recover for

loss of earnings and for expenses

incurred for medical-care in

treating an injury to his child

caused by the wrongful act of

another. He would have right

to maintain an action to recover

the amounts he had paid thereon,

and also for those for which he

is legally liable."

16

A similar conclusion was reach-

ed in the case of Keller v. City of St.

Louis, 152 Mo. 596, 54 S.W. 438 (1899).

In that case, the mother sought to re-

cover damages for injuries to her minor

son. The child's parents were divorced

at the time of the action and the divorce

decree awarded the children to the

mother. The decree made no reference to

the support of the children. The Court

held at 439:

"It follows, then, that, as the

duty of supporting the child

was not transferred by the de-

cree to the mother, it still re-

mained with the father; and, as

the right to the services of the

child rests upon the duty to sup-

port, the right of action in

this case is in him, and not in

the plaintiff, and cannot be

maintained by her. The judgment

of the circuit court will there-

fore have to be, and is, revers-

ed."

As to a father's duty of support

to a child who lives with another, the

Virginia Court stated in Mihalcoe v.

Holub, 130 Va. 425, 107 S.E. 704, 706

), that:

"The rules are much the same regard-

ing support of infant children by

a father. He owes them the duty

of maintenance. This by the weight

of American authorities, founded

the "

17

upon common sense and natural jus-

tice, is a legal, and not merely

a moral, obligation. Where the

child is living away from the

father, the question of his lia-

bility will depend upon the cir-

cumstances of the case. ..."

The Collateral Source Doctrine

There is no question but that

collateral source" doctrine is the

law of the Commonwealth of Virginia.

In Walthew v. Davis, 201 Va. 557, lll

S.E.

, the Virginia Supreme

Court stated at 788:

"It is well settled that damages

recovered for personal injuries

or death caused by the negligence

of another cannot be reduced by

reason of the fact that the injur-

ed party or his estate has been

partly compensated for the loss by

the proceeds of an insurance pol-

icy. The reason for the rule is

that one who by his negligence has

injured another owes to the latter

full compensation for the injury

inflicted by him, and payment for

such injury from a collateral

source in no way relieves the

wrongdoer of his obligation."

For the same holding, see Burks

v. Webb, 199 Va. 296, 99 S.E. 2d 629

S.E.

; Owen v. Dixon, 162 Va. 601, 175

41 (1934); Johnson v. Kellam, 162

Va. 757, 175 S.E. 634 (1934).

18

In actions brought in federal

court where Virginia law applies, the

United States Court of Appeals for the

Fourth Circuit has consistently applied

the collateral source doctrine to pre-

vent a wrongdoer from taking credit for

sums received by the plaintiff from

another source. In Rayfield v. Lawrence,

253 F. 2d 209 (4th Cir., 1958), the

plaintiff had received medical care at

a government hospital totally free of

charge to the plaintiff. In an action

against the defendant, the trial court

applied the collateral source doctrine

and allowed the jury to consider as dam-

ages the reasonable value of medical

services furnished the plaintiff even

though the plaintiff had not expended

any money for those services.

On appeal, the Fourth Circuit

affirmed the action of the trial court

and noted that the collateral source doc-

trine is the rule in many other jurisdic-

tions, including the United States Court

of Appeals for the District of Columbia.

The Court stated at 213-14:

"It is well settled in most juris-

dictions including Virginia where

this accident occurred, that an

injured person may recover in full

from a wrongdoer regardless of any

compensation he may receive from a

collateral source.

x rek*kek

19

"All the Virginia cases on the

subject of ‘collateral payments’

involve insurance beneifts for

which the plaintiff has paid a

premium. The defendant contends

that this court should make a

distinction in cases where the

‘collateral source’ payments re-

sulted from some monetary pay-

ment by the plaintiff, such as

the payment of insurance prem-

ium, and the instant case where

the plaintiffs have in fact paid

no actual consideration for the

services they received. This con-

tention is untenable.

xetkek kt

"In a well-considered opinion,

which cites the Sainsbury and

Plank cases with approval, the

Court of Appeals for the Dis-

trict of Columbia, in Hudson v.

Lazarus, supra, stated the mod-

ern rule, as applied to service-

men receiving free hospital and

medical care, as follows [217 F.

2d 346):

‘In general, the law seeks to

award compensation, and no

more, for personal injuries

negligently inflicted. Yet

an injured person may usually

recover in full from a wrong-

doer regardless of anything

he may get froma "collateral

20

source” unconnected with the

wrongdoer. Usually the col-

lateral contribution neces-

sarily benefits either the

injured person or the wrong-

doer. Whether it is a gift

or the product of a contract

of employment or of insur-

ance, the purposes of the

parties to it are obviously

better served and the inter-

ests of society are likely

to be better served if the

injured person is benefitted

than if the wrongdoer is bene-

fitted.'"

The Fourth Circuit again applied

the Virginia collateral source doctrine

in United States v. Price, 288 F. 2d 448

(4th Cir., 1961). There, the plaintiff

had received certain benefits under the

Civil Service Retirement Act for which

the defendant sought credit. In holding

that such benefit from a collateral source

could not be used to offset an award

against the plaintiff, the Court stated

at 449-50:

"On the other hand, where the

injured plaintiff's compensa-

tion comes from a ‘collateral

source,’ it should not be off-

set against the sum awarded for

the tort nor considered in de-

termining that award. Clune v.

Ristine, 8 Cir., 1899, 54 F.

745, 749; Hudson v. Lazarus,

1954, 95 U.S. App. D.c. lo,

’

21

217 F. 2a 344, 346-347, certiorari

denied 349 U.S. 968, 75 S. Ct. 906,

99 L. Ed. 1289, rehearing denied

350 U.S. 856, 76 S. Ct. 43, 100 L.

Ed. 761; 25 C.J.S. Damages §99;

15 Am. Jur., Damages, §§198-201;

and see Se —

review of the cases in ank v.

Summers, 1954, 203 Md. 552, 102 A.

2d 262.

"This rule, that compensation from

a collateral source should be dis-

regarded in assessing tort damages,

has been recognized several times

by this court. Brabham v. Balti-

more & O. R. Co., 4 Cir., ,

. ’ -38, L.R.A. 1915E,

1201; Sainsbury v. penn 83

’

Greyhound Lines, 4 Cir.

F. om 548, 550, 21 A.L.R. 2d 266;

and most recently in Rayfield v.

Lawrence, 4 Cir., at Boe ta

209 (applying Virginia law).

this is the Sass of Virginia, it is

controlling in the instant case.

Johnson v. Kellam, 1934, 162 Va.

9 o be ; Owen v. Dixon,

1934, 162 Va. 601, 175 S.E. 41;

Burks v. Webb, 1957, 199 Va. 296,

99 S.E. 2d 629, 636."

In the instant case, the opin-

ion of the Court disregards these prior

decisions of both Virginia state courts

and of its own Circuit which apply the

collateral source doctrine. The Court

appears to state at page 8 of the

22

opinion that because all of the medical

expenses, as opposed to only a part, had

been covered by insurance, Sims cannot

recover:

"We reverse the judgment of the

district court because Sims had

paid nothing for Jennifer's cure

and there was no evidence he

would be expected to pay any-

thing, not because the payments

were by way of insurance, or

other than from Sims pocket,

which is merely incidental.

"It is clear that Sims personally

paid nothing in connection with

medical expenses resulting from

Jennifer's accident. All were

covered by insurance. There is

not any evidence that any future

expenses of cure for Jennifer

would be likely to be paid by

Sims above the routine payments

provided for in the divorce de-

cree. The allegations in Sims'

complaint that he ‘has incurred'

large medical expenses can be

sustained only upon the assump-

tion that Sims can claim credit

for having incurred expenses ac-

tually paid by the medical and

hospital insurance carrier."

This holding is contrary to

both prior decisions and basic logic.

In Rayfield, supra, the plaintiff was

was atisesd to recover expenses for

23

medical treatment even though he per-

sonally had not paid any amount for

those services.

It is respectfully submitted

that under the logic of the decision

in the instant case, Sims would be al-

lowed to recover for medical expenses

if, for instance, his insurance cover-

age had only paid for eighty per cent

of the expenses, or if his insurance

coverage had been in some way defici-

ent and had not provided coverage at

all. The Court's holding, therefore,

totally disregards the sound public

policy upon which the collateral

source doctrine is based by penaliz-

ing the prudent plaintiff who has ob-

tained and kept in force full medical

insurance. The careful foresight of

the plaintiff is allowed to inure to

the benefit of the wrongdoer, Vepco.

This is exactly the situation which

the collateral source doctrine at-

tempts to prevent.

The Court in this case holds

that because all past expenses have

been paid by insurance, Sims has not

been damaged. The opinion provides

at pages 9-10:

"Sims has suffered no injury. He

has not been physically hurt and

has not been required to pay any

money because of the injury to

Jennifer. He paid the insurance

premiums because of the divorce

decree, not as cure for his daugh-

ter, and the amount thereof has

PIA at Keble T hs het Palen Me WEAN RS Ln ib Oy tit pth Oe tae CO aetna

24

not been increased because of her

injury."

The only authority cited by the

Court for the basis of its holding -- that

Sims has not been damaged -- was a Louisi-

ana district court case, Trueman v. Unit-

ed States, 180 F. Supp. 172 (E.D. La.,

- In that case, suit was under the

Tort Claim Act for medical malpractice

alleged to have occurred at an Army hos-

pital. All medical expenses for the

treatment of the child in that case had

been paid by the defendant in the suit,

not by private insurance, and, therefore,

there was no collateral source issue.

As to the action of the parents, the Court

stated at 176:

"In Virginia, absent proof of loss

of services or expense incurred,

the parents, as such, have no

claim in damages for injury to

their child. Their claims, there-

fore, must be dismissed."

The only Virginia authority cit-

ed by the Trueman court was Awtrey v. Nor-

folk Western ot Co., 121 Va. P

S.E.- - In Awtrey, however, the

Virginia Supreme Court was not even con-

cerned with the collateral source doc-

trine, but rather was speaking to an en-

tirely different issue. The Court in

Awtrey stated at 93 S.E. 570, 572:

"The plaintiff's real grievance is

her mental anguish because of the

tragic death of her son and the

25

heartrending and deplorable circum-

stances of his burial in Virginia;

but under well-settled principles,

she cannot recover for this, be-

cause there can be no recovery for

mental anguish which is unaccompan-~

ied by actionable physical or pecun-

iary damage caused by the wrongful

act of another. Connelly v. West-

ern Union Tel. Co., 100 Ua. S51, 40

S.E. 618, 56 L.R.A. 663, 93 Am. St.

Rep. 919; C. & O. Ry. Co. Vv. Tins-

ley, 116 Va. 603, oy S.E. 732."

Nevertheless, the instant opinion con-

strues Trueman to be "analagous to the

case at hand." The obvious difference

between Trueman and the case at bar,

it is submitted, is that in Trueman, the

defendant wrongdoer had paid all of the

infant's medical expenses, while in our

case, private insurance maintained and

paid for by the plaintiff paid for Jen-

nifer's treatment.

With regard to reasonable fu-

ture medical expenses for Jennifer's

treatment, the Court stated at p. 13:

"By the same token, Sims is not

entitled to recover for future

expenses of cure. He has not

paid out anything thus far. All

of the payments for which he

sues were made by the insurance

provided for under the terms of

the divorce decree. There is not

a scrap of evidence in the record

Se he sa

Bint Bike oe net 2h iMAC Oda. SO

spl sh k- Cabbie te ie

.

that any future payments for cure

will exceed the payments for in-

Surance previously provided for

under the decree. Since there is

no proof that Sims is likely to

have any future liability for the

expenses of cure of his daughter

other than that already provided

in the decree prior to the acci-

dent, he may not recover for such

in this action."

It is submitted that this por-

tion of the opinion is merely self-serv-

ing and without a logical basis. Since

the collateral source doctrine was ap-

plied by the trial court and, therefore,

insurance coverage became irrelevant to

the issues at trial, Sims did not intro-

duce the limits of his medical insur-

ance coverage into evidence. It is,

therefore, obvious why there was not a

"scrap of evidence" in the record that

Sims, personally, would have to pay for

future medical expenses, over and above

his premium payments. Under the logic

of the Court's opinion, however, if

Sims's insurance policy had provided

only modest limits of coverage, then he

would be entitled to recover likely fu-

ture medical expenses. Again, the hold-

ing of the Court is defeating the very

purpose of the Virginia collateral source

doctrine by allowing the wrongdoer to

profit from the prudent action of the

plaintiff.

27

CONCLUSION

It is submitted that the deci-

sion and opinion of the Fourth Circuit

overrules a most important and basic

doctrine in the law of the Commonwealth

of Virginia.

The novel interpretation of

the Virginia collatral source doctrine

in this case is both without a logical

basis and contrary to prior decisions

of the state and federal courts. Peti-

tioner strongly contends that the deci-

sion in this case, if not reversed, will

result in substantial injustice to Peti-

tioner and to future plaintiffs who may

have the prudent foresight to have insur-

ance coverage.

For these and the other reasons

stated, this Petition for a Writ of Cer-

tiorari should be granted.

Respectfully submitted,

Attorney for Petitioner

P. O. Drawer 84

Winston-Salem, N. C. 27102

OF COUNSEL: Telephone 919/725-1311

Womble, Carlyle, Sandridge & Rice

P. O. Drawer 84

Winston-Salem, N. C. 27102

I ESN S <I ALN Mh DEAE NLL RS AINE bid a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM M. SIMS

Appellee

Vv.

VIRGINIA ELECTRIC AND POWER COMPANY

Appellant

Appeal from the United States Dis-

trict Court for the Eastern Dis-

trict of Virginia, at Alexandria.

Albert V. Bryan, Jr., District

Judge.

Argued April 7, 1976

Decided January 7,

1977

Before BOREMAN, Senior Circuit

Judge, RUSSELL and WIDENER,

Circuit Judges.

Lewis T. Booker (George D. Gibson,

Virginia W. Powell, Hunton, Wil-

liams, Gay & Gibson on brief) for

Appellant;

William C. Raper (Allan R. Gitter,

Jimmy H. Barnhill, Womble, Car-

lyle, Sandridge & Rice on brief)

for Appellee.

WIDENER, Circuit Judge:

Plaintiff, William M.

Sims, sued, in a North Carolina

state court, to recover medical

expenses which he has incurred,

and expects to incur, as a re-

sult of the injury of his daugh-

ter, Jennifer Sims, alleged to

have been due to the negligence

of defendant. The case was re-

moved to the United States Dis-

trict Court for the Middle Dis-

trict of North Carolina, and

then transferred to the United

States District Court for the

Eastern District of Virginia.

Trial by jury resulted in a ver~

dict for plaintiff in the amount

of $35,000 upon which judgment

was entered. We reverse and di-

rect entry of judgment for the

defendant.

William M. Sims, plain-

tiff, and his then wife, Marilyn

M. Sims, were divorced December

31, 1969 by an appropriate court

of the State of Alabama. At

that time, Sims had two daughters.

The younger, Jennifer Sims, was

between seven and eight years of

age. The divorce decree, which

incorporated a voluntary settle-

ment between the parties, gave

custody of the children to t

wife, Marilyn, but with a.

tion privileges to the father.

Alimony was waived by Marilyn

but the decree required Sims

to pay $200 per month, for sev-

eral months, later to be in-

creased to $250 per month, for

the support of the two child-

ren. The decree also required

Sims to maintain full medical

and hospital insurance cover-

age on the two infant girls and

a life insurance policy with

coverage of $35,000 with said

daughters as beneficiaries.

l. The pertinent i

provisions of

the decree and settlement agree-

a divorce case are as

x*eke*ee

"It is further ORDERED

JUDGED AND DECREED that che

agreement for settlement

reached by the parties, dat-

ed December 30, 1969, is at-

tached hereto, warked Ex-

hibit A, and made a part of

this decree, affirmed by the

Court, be and is binding on

Fn. 1 continued -

all parties, until further or-

ders of this Court, the right

to modify provisions concern~

ing child support, custody and

control being expressly reserv~

ed by this Court for further

modification which may be jus~

tified by future changes in

conditions.

xezeekeekee®t

"1. The wife shall have the

custody and control of the in-

fant children, Camille Sims

and Jennifer Sims, but the hus-

band shall have the right to

visit, see and be with said

children at reasonable times

and places, and by making ver-

bal advanced arrangements with

the wife, may have their tem

porary custody on occasions

convenient with the parties.

ee ee

"S. The wife waives alimony

and support for herself, but

the husband agrees to pay

support for the two said in-

fant children in the amount

of Two Hundred Dollars month-

ly, payable by certified

check or postal money order,

no later than the 5th day of

each month, in advance, to

the Register of the Law and

Equity Court of Chilton

County, Alabama, or his suc-

cessor in office, which

money shall be forwarded by

the Court to the wife for

the support and maintenance

of said infant children;

with further stipulation

that beginning August 5,

1970, said payments shall

~4A-

Fn. 1 continued -

be increased to Two Hundred

Fifty Dollars monthly until

further orders of the Court.

"6. In addition to said

payments, the husband agrees

to keep and maintain full

medical and hospital insur-

ance coverage on said in-

fants, and a life insurance

policy with said children

named as beneficiaries there-

on, in the amount of Thirty

Five Thousand Dollars, and

upon request of the Court

of the wife, he shall pro-

duce evidence and satisfac-

tory proof that said insur-

ance coverage is in full

force and effect, and copies

of such policy shall be

furnished to the wife."

rr

Sims has complied with his obli-

gations under the divorce de-

cree.

Some time subsequent

to the divorce decree, Marilyn

married Robert L. Brannon, Jr.

On May 24, 1972, the

ten year old Jennifer Sims was

climbing a tree in her yard in

Fairfax County, Virginia, when

she allegedly came in contact

with an electric wire under

the control of Virginia Elec-

tric and Power Company (VEPCO).

She fell to the ground and

sustained serious injuries.

In 1973, a motion

for judgment was filed by Jen-

nifer Sims, by Marilyn Brannon

as her natural mother and next

friend, against VEPCO, in the

Circuit Court of Fairfax

County, Virginia. Marilyn

waived her right to recover

for the expenses involved in

the cure of her daughter in

favor of Jennifer in that

case. William Sims was noti-

fied of the suit, but was not

a party to it. On March l,

1974, the Circuit Court of

Fairfax County entered an or-

der approving a settlement of

the suit for $475,000.00,

which amount, the order recit-

ed, had been paid into open

court by VEPCO. The order

contained a notation to the

effect "the natural father

was not within the jurisdic-

tion of the Court."

The order of March l,

1974, approving the settlement,

a

included a provision that $25,000

was to go to two escrow agents as

partial security for an undertak-

ing by Robert L. and Marilyn Bran-

non to indemnify VEPCO from any

other claims arising out of the

accident here involved.

VEPCO'S contentions are

that recovery by Sims in this ac-

tion is barred by the compromise

settlement in the Fairfax County

action and the release entered

into between VEPCO and Mr. and

Mrs. Brannon, and Sims cannot re-

cover expenses of curing Jennifer

Sims since he has had and will

have no liability for them.

2. A copy of a letter from Jenni-

fer Sims' then attorney, Charles

H. Mayer, to her natural father,

William Sims, appears several

times in the record. The letter

urges William Sims to execute a

release of all claims he yo

have regarding the case o enni-

fer Sims v. VEPCO. It was obvi-

Ously because Of William Sims'

unwillingness to execute this re-

lease that the indemnification

and escrow agreements were enter-

ed into.

We reverse the judgment

of the district court because Sims

had paid nothing for Jennifer's

cure and there was no evidence

he would be expected to pay any-

thing, not because the payments

were by way of insurance, or

other than from Sims pocket, which

is merely incidental.

It is clear that Sims

personally paid nothing in con-

nection with medical expenses re-

Sulting from Jennifer's accident.

All were covered by insurance.

There is not any evidence that

any future expenses of cure for

Jennifer would be likely to be

paid by Sims above the routine

payments provided for in the di-

vorce decree. The allegations

in Sims' complaint that he "has

incurred" large medical expenses

can be sustained only upon the

assumption that Sims can claim

credit for having incurred ex-

penses actually paid by the med-

ical and hospital insurance car-

rier.

Plaintiff relies upon

the collateral source doctrine

to support his contention that

he is entitled to recover in

this action against VEPCO monies

expended by the insurance com-

pany in connection with Jenni-

fer's injuries. He argues that

to deny his recovery is to ap-

ply the doctrine in violation

of Walthew and Burks, infra.

We hold that the collateral

source doctrine is not applic-

able to the facts of this case,

and that to deny Sims recovery

does not amount to its applica-

tion contrary to the law of

Virginia. To support this con-

tention, plaintiff relies upon

Walthew v. Davis, admr., 201

Va. 557, Ill SE2d 784 (1960),

and Burks v. Webb, admr., 199

Va. 296, 99 SE2d 629 (1957).

These are clear cases for the

true collateral source doc-

trine. In both cases, the ad-

ministrator of a decedent pro-

secuted an action for wrong-

ful death. It was held in each

case that the alleged tortfeas-

or could not show in evidence

that a statutory beneficiary

of the deceased person was en-

titled to recover life insur-

ance on account of the death

complained of in order to dimin-

ish the damages payable by the

wrongdoer.

The facts of our case

are different. Sims has suffered

no injury. He has not been physical-~

ly hurt and has not been required

to pay any money because of the in-

jury to Jennifer. He paid the insur-

ance premiums because of the di-

vorce decree, not as cure for his

daughter, and the amount thereof

has not been increased because of

her injury. A true situation for

application of the collateral

source doctrine might exist if

VEPCO had tried to defend Marilyn's

and Jennifer's action upon the

ground that the medical and hospi-

tal expenses had been paid by an

insurance carrier, but that is not

the case before us. In our case,

VEPCO has paid once for the ex-

penses of cure in Marilyn's and

Jennifer's suit, so depriving a

like recovery to Sims does not

result in the wrongdoer's dimin-

ishing its damages.

| The situation presented

in Trueman v. United States, 180

F. Supp. 172 (E.D. La., 1960), ap-

plying Virginia law, is analogous

to the case at hand. Suit was un-

der the Tort Claims Act for medi-

cal malpractice alleged to have

occurred at an Army hospital at

Fort Eustis, Virginia. Suit by

the parents was joined with a

Suit on behalf of the child. The

father was an Army Sergeant. The

@ 10 «

ee ee

court, sitting without a jury, found

in favor of the infant plaintiff.

As to the action by the parents, it

stated (p. 176):

"In Virginia, absent proof of

loss of services or expense

incurred, the parents, as

such, have no claim in damages

for injury to their child.

Their claims, therefore, must

be dismissed."

Plaintiff seeks to dis-

tinguish Trueman upon the ground

that the court in that case a

lied upon Awtrey v. Norfolk an

weotesn | Ry. Co., TSI Va. 781, 93

SE - In Awtrey, the

plaintiff's only claim for damages

was that the railroad company had

failed to bury her son who was

found dead on its tracks. The

court held that there could be

no recovery for mental anguish

which is unaccompanied by action-

able physical or pecuniary dam-

age." Thus, plaintiff argues

that Trueman is limited strictly

to cases Of mental anguish. Such

an interpretation of Trueman we

think unwarranted. The general

principle which underlies both

Trueman and Awtrey is that a

party can only recover for ac-

tionable pecuniary damage. In

e 13 «

Awtrey, that principle was applied

to a party's claim based wholly

upon mental suffering. In Trueman,

it was applied so as to deny recov-

ery to a parent for medical expenses,

when all medical and hospital ser-

vices had obviously been paid or

furnished without charge, by the

government, the tortfeasor.

Plaintiff cites Elliott

v. United States, 329 F. Supp. 621

(D. Maine, 1971), for the proposi-

tion that under Virginia law the

father is the parent entitled to

recover for medical expenses occa-

Sioned by a defendant's tortious

injury to an infant child. Defen-

dant properly points out that in

Elliot there was no contest as

between the two parents as there

is here. So the question here

was not before that court.

3. Elliot based its holding that

past medical expenses, having been

paid by the United States, were

not recoverable, on the case of

United States v. Brooks, 175 F2d

482 (4th Cir. 1949), which in turn

was based on the rule that the gov-

ernment should not have to pay a

loss twice, not upon the rule of

Trueman that, absent an expense in-

curred, there was no obligation to

pay.

« 39 «

We thus hold that, so far

as Sims bases his claim to recover

from VEPCO upon the basis of monies

expended for the expenses of cure

for Jennifer, he cannot recover be-

cause he has made no such expendi-

tures. Sims has paid no more for

Jennifer's cure than he was already

obligated to pay, prior to the ac-

cident, under the divorce decree.

The payments he made were in the

nature of previously ascertained

Support payments under the decree,

not expenses for curing his child.

He is not entitled to recover as

expenses for cure routine medical

and hospital insurance payments

provided for under a decree of di-

vorce where the custody of the

child has been given to the mother

and where the payments have in no

way been increased by the accident.

By the same token, Sims

is not entitled to recover for fu-

ture expenses of cure. He has not

paid out anything thus far. All

of the payments for which he sues

were made by the insurance provid-

ed for under the terms of the di-

vorce decree. There is not a

scrap of evidence in the record

that any future payments for cure

will exceed the payments for insur-

ance previously provided for under

- 13 -

the decree. Since there is no proof

that Sims is likely to have any fu-

ture liability for the expenses of

cure of his daughter other than that

already provided in the decree prior

to the accident, he may not recover

for such in this action. See Wine

Beech, 194 Va. 601, 606, 74 SE?

1953), that unlikely damages

are not recoverable.

We do not have before us

a case in which a divorced parent

in Sims' situation has been assess-

ed or charged with, or is likely to

be liable for, or has paid, expenses

of cure for a child in the sole cus-

tody of the other parent, and we

express no opinion on that question.

Sims argues that in Vir-

ginia the father is primarily re-

sponsible for the expenses of cure

for an injured child. See Watson

v. Daniel, 165 Va. 564, 183° SE 163

(1936) .4 Assuming for argument the

validity of this proposition as

4. In no case called to our atten-

tion has there been any question

raised between the mother and father,

as here.

- 14 -

between the parents, or, indeed, for

example, as in a suit by a hospital

against the parents, it has no appli-

cation here to give Sing a cause of

action in his own right disconnect-

ed from the payment of any expenses

of cure and disconnected from any

obligation to pay for the cure above

the routine payment of hospital and

medical insurance in a divorce decree.

In Virginia, for years, a

married woman has had the right to

sue and be sued in her own name.

See Va. Code § 55-36. The mother,

as well as the father, has the duty

to support their child. See Pepart=

ment of Mental Hygiene v. Shepar P

2 Va. ’ SE °

A divorced mother with sole custody

of a minor child also has the right

to compromise the child's claim for

damages tortiously inflicted. Va.

Code § 8-170.

5. Separate from, and which would

extinguish the claim of, the mother,

under the facts here.

6. In Shepard the father was dead.

-15—

The parents' cause of ac-

tion in Virginia for injuries to a

minor child are based on loss of

services and the responsibility

of paying for the cure of the

child. Moses v. Akers, 203 Va.

130, 132, 122 SE2 B67 (1961).

By the divorce decree, Sims' right

to Jennifer's services ended sub-

ject only to some modification of

the decree, which has not occurred.

Under Virginia law, Marilyn had

an equal responsibility with Sims

for the payment of cure for the

injuries to their daughter Jenni-

fer. Marilyn had a right as a

parent who was entitled to the

services of Jennifer and respons-

ible for the expenses of her cure

to bring a suit for such expenses,

which she did. This right of ac-

tion was waived in favor of her

infant daughter, about which no

question is raised. Marilyn has

collected from VEPCO for the ex-

penses of cure, this being neces-

sarily included in the settlement

of the whole case. There is no

question but that Marilyn had a

right to do under Virginia law

that which she did.

The question remains,

however, as to whether Sims is

-16-

also entitled to sue since he

did not sign a release and was

not a party to the suit in Pair-

fax County. We hold that he is

entitled to no recovery in this case.

He has no right to the services of

the child, and he has neither paid,

nor is likely to be called upon to

pay, any expenses of cure. Under

these circumstances, we hold that

Sims may not recover, not because

he may not have any right to sue,

which we do not decide, but because

he has suffered no damage, which we

do decide.

VEPCO additionally and

plausibly argues that since the

divorced wife, Marilyn, had a right

to bring a case in her own name, as

well as that of her daughter; had

waived her claim in favor of the

daughter; and had a right to compro-

mise the whole suit; that upon the

Satisfaction of the claims in such

a suit, VEPCO should be discharged

from all liability, it being deriva-

tive as to the parents, whether or

not the father participated. Be-

cause Sims may not recover in any

event, it is unnecessary for us to

decide the point, and we express

no opinion on that question also.

“lJ

The judgment of the dis-

trict court must be vacated and

remanded with directions to enter

judgment for the defendant.

VACATED AND REMANDED.

-18-