# Petition — Sims v. Virginia Electric & Power Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1453%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 925 ## Text 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