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Court of Appeal, Second District, Division 7, California.

WESTERN STEAMSHIP LINES, INC., Plaintiff and Appellant, v. SAN PEDRO PENINSULA HOSPITAL, Defendant and Appellant.

No. B060462.

Decided: May 24, 1993

Kussman & Whitehill and Michael H. Whitehill and Russell S. Kussman, Los Angeles, for plaintiff and appellant. Rushfeldt, Shelley & Drake, and Allan L. Rushfeldt, Sherman Oaks, Linda C. Miller, Pittsburgh, PA, Horvitz & Levy and Daniel J. Gonzalez and Sandra J. Smith, Encino, for defendant and appellant.

San Pedro Peninsula Hospital's (Hospital) appeal presents this novel question:  Does the California Medical Injury Compensation Reform Act (MICRA) 1 limit recovery by maritime employer Western Steamship Lines, Inc., doing business as Western Cruise Lines 2 (Western) in its equitable indemnity action to the amount its injured employee Ann Lennon (Lennon) could have recovered from the medically negligent Hospital and doctors had Lennon brought her malpractice action in California?   Western paid $5,250,000 to Lennon in settlement of a $7,750,000 jury award plus $750,000 for maintenance and cure in her Florida lawsuit.   The Hospital and doctors were not parties to the Florida lawsuit or the postjudgment settlement reached.

Western, thereafter, filed this California action against Hospital and Dr. Wirtschafter and Dr. Orosz for implied equitable indemnity based upon the sums paid by Western as a result of Lennon's Florida judgment and the payments to her for maintenance and cure pursuant to federal maritime law.



Lennon was a 30-year-old diabetic.   She was employed by Western as an assistant purser.   On October 28, 1983, while aboard the vessel “Azure Seas,” en route to Ensenada, Mexico, she fell ill and was confined to her quarters by the ship's doctor.   During the cruise she became more seriously ill and upon the vessel's return to San Pedro on October 31, she was transferred immediately to Hospital, where she came under the care of doctors Larry Orosz, M.D., and Samuel Wirtschafter, M.D.   On November 1, she suffered a cardiac arrest and permanent brain damage.   She had been intubated incorrectly.   An oxygen tube was placed in her esophagus rather than in her trachea.   With inadequate oxygen she suffered permanent brain damage.   She became and remained in a comatose state until her death in 1985.

In May 1984, through her guardian Elizabeth Sachs, Lennon commenced an action in a Florida state court against Western to compensate her for her medical injuries sustained.   The Florida jury returned a general verdict (at Western's request) against Western and assessed the damages in the sum of $7,750,000.

 Federal maritime law imposes upon shipowners the duty to provide proper medical treatment for seamen falling ill or suffering injury in the service of the ship.   This duty is imposed without fault.  (De Zon v. Amer. President Lines (1943) 318 U.S. 660, 667, 668, 63 S.Ct. 814, 818, 819, 87 L.Ed. 1065;  The Osceola (1903) 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760.)

 Under “cure and maintenance” rules, federal maritime law imposed upon Western, as a maritime employer, liability for the medical malpractice of any hospital or doctor to whom Lennon was entrusted by the maritime employer (Fitzgerald v. A.L. Burbank & Co. (2d Cir.1971) 451 F.2d 670, 679–680;  Central Gulf Steamship Corporation v. Sambula (5th Cir.1968) 405 F.2d 291).  In this legal context, Western admitted liability and the case was tried on the issue of damages only.   Lennon's attorney asked the jury to award damages of $22,247,770.   Western's attorney argued damages in the sum of $3.5 to $4 million were more appropriate.   The jury awarded a general verdict of $7,750,000 against Western.   Posttrial motions made by Western, for a new trial or for reduction in the amount of judgment, were denied.   Shortly after the jury verdict and pending appeal, Lennon died.   The fact of death could not be considered by the appellate court under applicable law.

Pending appeal of the Florida $7,750,000 judgment, Western negotiated a settlement for the sum of $5,250,000 in full satisfaction of that judgment.


The California Indemnity Action

Western's action for equitable indemnity against Hospital and the doctors, was bifurcated.   It was tried first before a jury on the issue of liability only.   On the first day of the jury trial—with the court's approval—Western settled its rights to equitable contribution against Dr. Wirtschafter for the payment of the sum of $1 million;  Western then dismissed the action against both Dr. Wirtschafter and Dr. Orosz.   The jury found Western, Hospital and Dr. Wirtschafter and each of them were negligent in their medical care and treatment of Lennon and apportioned their percentage of liability at 20 percent, 30 percent and 50 percent, respectively.

Western and Hospital thereafter waived jury trial, presented evidence and submitted the issue of damages to the court alone.

The trial court found Western's action to be an equitable indemnity action.   It was not a subrogation action.   The damages to be awarded were those sustained by Western, not what Lennon could have recovered against Hospital had she sued Hospital in California.   The trial court concluded that the MICRA statutes did not limit past economic damages incurred by Western.   The court entered judgment against Hospital in favor of Western for $1.8 million.   The judgment reflected Hospital's proportional share of liability, 30 percent of the $6 million total damages sustained by Western.

The trial court also ruled upon other issues tendered by Hospital.   After evaluating the evidence, it found the $5,250,000 settlement between Western and Lennon to be reasonable, fair and made in good faith.   The court also found the sums received by Western from Skuld (Western's insurer) to pay the judgment and maintenance and cure obligations were collateral sources which did not limit Western's recoverable damages in this action.   The court rejected Western's request for interest.

Finally, at the Hospital's request, the court made findings as to what Lennon would have recovered against Hospital had she sued the hospital directly in California.   The court held Lennon's recovery would have been $1,158,573 consisting of $250,000 for pain and suffering, $26,494 for past lost income, $107,079 for future lost income and medical expenses subsequent to the trial but prior to Lennon's death, and $775,000 for maintenance and cure.

From the $1.8 million judgment Hospital appeals.



Hospital contends MICRA applies to this action and defines the outer limits of Lennon's, and equally Western's, recovery against Hospital.

Civil Code section 3333.2 limits the damages recoverable by the “injured plaintiff” in any action against a health care provider based on professional negligence to $250,000 for “noneconomic” losses.  (Civ.Code, § 3333.2, subd. (b).)3  Noneconomic losses are defined by the statute as compensation “for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damage.”  (Civ.Code, § 3333.2, subd. (a).)  Western contends this is an equitable indemnification action in which it seeks only past economic damages (i.e., sums paid to Lennon or her estate pursuant to the judgment [settlement] obtained under federal law).   Consequently, Western argues Civil Code section 3333.2, by its express language, does not limit Western's recovery.

In Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 159, 211 Cal.Rptr. 368, 695 P.2d 665, the Supreme Court said:

“[T]he Legislature placed no limits whatsoever on a plaintiff's right to recover for all of the economic, pecuniary damages—such as medical expenses or lost earnings—resulting from the injury, but instead confined the statutory limitations to the recovery of noneconomic damages, and—even then—permitted up to a $250,000 award for such damages.”

Hospital agrees under American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (AMA ), Western has a right to equitable indemnity;  but it is argued the “pertinent conduct” on which such an action is based “is the tortious conduct which causes harm to Lennon not the Hospital's conduct towards Western.”

Civil Code section 3333.1 subdivision (a) 4 provides that certain insurance and disability benefits paid to plaintiffs “in an action for personal injury against a health care provider” are admissible evidence in that personal injury action.  (Italics added.)

Western asserts it is not seeking noneconomic damages for a personal injury, and therefore these statutes do not apply.   Moreover, if it be assumed Civil Code section 3333.1 applies here, Western argues the sources of insurance which are admissible under section 3333.1 are all income, medical and disability payments normally received by personal injury plaintiffs and not a source of collateral benefits available to corporate defendants for payments made to settle a personal injury action.  Civil Code section 3333.1, it is argued, was not drafted, or not contemplated by its express terms, to be applicable in equitable indemnity actions.


 Basic to all statutory construction is this rule.   The court must ascertain and implement the intent of the Legislature.  (Code Civ.Proc., § 1859;  Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   A court may not add to a statute or rewrite it to conform to an assumed intent not apparent in its language.  (People v. One 1940 Ford V–8 Coupe (1950) 36 Cal.2d 471, 224 P.2d 677.)

In Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 7, 125 Cal.Rptr. 408, it was said:

“It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language:  if the language is clear, there can be no room for interpretation and effect must be given to its plain meaning.  [Citations.]  ‘An intent that finds no expression in the words of the statute cannot be found to exist.   The courts may not speculate that the legislature meant something other than what it said.   Nor may they rewrite a statute to make it express an intention not expressed therein.’  (Fns. omitted.)  (45 Cal.Jur.2d, Statutes, § 128, p. 636.)”  (See also Service Employees Internat. Union v. City of Santa Barbara (1981) 125 Cal.App.3d 459, 467 [178 Cal.Rptr. 89], to the same effect.)

 The language of the MICRA statutes is plain and clear.   Nowhere does there appear any intent that an “equitable indemnity proceeding” shall be read in, substituted for or added to the specific language applying to the collateral benefits rule in an “action for personal injuries against a health care provider” (Civ.Code § 3333.1), or an intent to read in or add an equitable indemnitee to Civil Code section 3333.2.   The “injured plaintiff” is limited in damages for noneconomic losses in an action for injuries against a health care provider.   Nowhere does it appear in the specific language used that an equitable indemnitee is to be the equivalent of an “injured plaintiff” in any of the code sections cited.

Furthermore, the specific goals of Code of Civil Procedure section 667.7 are set forth in subdivision (f) which provides:

“[I]t is the ․ intent of the Legislature that the courts will utilize [periodic payment] judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured.”  (Italics added.)

Such a disposition was not available to the Florida court applying federal law.

 A dispassionate reading of the statutes leads to this undisputable conclusion:  if the Legislature intended to apply the MICRA limitations to actions for equitable indemnity, it failed to do so either by word or contextual inference.   It is not the function of a reviewing court to read into the statute a provision the Legislature in its plain language omitted.   (Signal Oil & Gas Co. v. Bradbury (1960) 183 Cal.App.2d 40, 51, 6 Cal.Rptr. 736.)

Had the Legislature intended a party seeking equitable indemnity be cast in the role of an assignee or subrogee of an “injured plaintiff” it could have done so, but it did not.   Moreover, enacting such a rule would have opened a Pandora's box.   First, the federal supremacy doctrine would become operative and controlling where, as here, federal maritime law is involved, imposing liability upon a maritime employer.   Second, a shoal of uncertain and probably unjust results appears.   The injured party may not be able—for jurisdictional reasons—to bring the lawsuit against the maritime employer in California.   The forum in this case was a Florida court.   The named defendant (Western) was a Liberian-registered company.   Whether a Florida court would have jurisdiction over a California hospital or California doctors—absent consent—is highly problematic.   California law cannot and does not control these jurisdictional requirements.   It is the injured plaintiff seeking to enforce the Federal Maritime Maintenance and Cure Law who makes these choices.   It is the injured plaintiff (not Western) and federal law that determine jurisdiction, procedure, substantive law and amount of any award.   Western did not make these choices.   Western had to respond to Lennon's complaint in the forum where Lennon brought suit.   The payment made in settlement of the judgment and cure and maintenance are economic losses imposed by federal law.   California MICRA limitations are not controlling in such a lawsuit.


Hospital cites no case which holds MICRA limitations apply here.   However, by analogy it relies upon the decision in Central Pathology Services Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924.   There the Supreme Court stated the statute (Code Civ.Proc., § 425.13) restricting punitive damage claims against health providers applied whenever the injury for which the damages are sought is one arising out of the professional negligence of a health care provider.  (3 Cal.4th at p. 191, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   From this language Hospital argues this court must look beyond the legal theory of this action to determine whether Western's claim arises out of “or is based upon” (MICRA) the professional negligence of a health care provider.   The case is not in point.   The restrictions made by Code of Civil Procedure section 425.13 on recovery of punitive damages apply to the injured plaintiff in a case “arising out of” professional negligence.   The case does not involve an equitable indemnity claim for monies paid to settle damage claims accruing under federal law.

Hospital also relies upon GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 429, 261 Cal.Rptr. 626 (GEM ), wherein it was stated:

“Hallcraft sees GEM's action for equitable indemnification as being nothing more than a claim by one business against another business for a business loss, a loss which differs from that suffered by a consumer to which strict liability may apply.   This reasoning ignores the origin of the loss.   GEM's claim for equitable indemnification derives from the Association's loss and award of damages.   Whether a defendant is held directly to the consumer/plaintiff for the plaintiff's loss or is held indirectly liable through a complaint for equitable indemnity, it is the same loss that is being apportioned—the loss suffered by the plaintiff/consumer.   We conclude any theory which would have been available to the Association in a direct action against Hallcraft and upon which basis loss could have been apportioned in the Association's action is available to GEM here seeking equitable indemnification.   Accordingly, before GEM's assignment to the Association of indemnity rights against Hallcraft, GEM bore the burden of establishing strict liability constituted a theory available to the Association against Hallcraft upon which the Association would have prevailed, as well as apportionment.”  (Italics added, fn. omitted.)

GEM, supra, 213 Cal.App.3d 419, 261 Cal.Rptr. 626, is not on point.   It treats with the inclusive nature of legal theories available in the equitable indemnity process (“any theory is available to the indemnitee”).  GEM does not purport to set any limitation on the scope and nature of the equitable indemnity rights here sought to be enforced.


Hospital argues Western's rights are those of a subrogee or assignee, that Western stands in the shoes of Lennon, and that Western has only the rights and duties of Lennon.   California case law since AMA, supra, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, does not support such a view of equitable indemnity rights.

California Courts of Appeal, in a variety of factual and procedural contexts, have detailed the differences between equitable indemnity actions and an underlying action to which subrogation or assignment rules apply.   Several distinct classes of cases demark carefully the difference between the assignee/subrogee and equitable indemnitee's rights/duties.   They are:

A. Statute of Limitations Cases

The distinction between an equitable indemnity action and a plaintiff's underlying or subrogee's action is set forth in People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 163 Cal.Rptr. 585, 608 P.2d 673, where the plaintiff was injured in an automobile accident on a public highway and brought the underlying action against a number of individuals but did not file a timely claim against the state.   One of the defendants cross-claimed against the State of California on an equitable indemnity theory.   The State of California demurred to the cross-complaint arguing that since plaintiff could not recover against the state, the cross-complainant, who the state alleged stood in the plaintiff's shoes, could also not recover.

The California Supreme Court rejected the state's argument holding:

“Past California cases provide a clear and unambiguous answer to this question.   Just two years ago, in E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506 [146 Cal.Rptr. 614, 579 P.2d 505], our court noted that ‘[i]t is well settled that a cause of action for implied indemnity does not accrue or come into existence until the indemnitee [i.e., the initial defendant] has suffered actual loss through payment.  (Sunset–Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834, 843 [36 Cal.Rptr. 741, 389 P.2d 133];  Card Constr. Co. v. Ledbetter (1971) 16 Cal.App.3d 472, 480 [94 Cal.Rptr. 570].)'  (Italics added.)   Numerous additional California authorities, moreover, uniformly confirm ‘the rule that the period of limitations on the [equitable] indemnity claim begins when the claimant settles with the injured party.’


“Furthermore, in recognizing that a tort defendant's claim for equitable indemnity is separate and distinct from the injured party's claim against the additional defendant for statute of limitation purposes, the cases explicitly hold that a tort defendant does not lose his own independent right to seek such recovery simply because the injured party is barred from pursuing its separate claim against the additional defendant by the applicable statute of limitations.  [Citations.]  (‘[W]here the original defendant alleges facts showing that the additional defendant is liable over to him ․ the fact that the statute of limitations will bar the plaintiff from a direct recovery against the additional defendant has no effect on the defendant's right to enforce his claim of contribution or indemnity, since the cause of action owned by the plaintiff is distinct from the cause of action arising out of the duty of the additional defendant to indemnify the defendant’).”  (26 Cal.3d at pp. 751–752, 163 Cal.Rptr. 585, 608 P.2d 673, italics added.)

Akin to Hospital's argument, the state in People ex rel. Dept. of Transportation v. Superior Court, supra, contended if the equitable indemnity action was not barred, the state would be deprived of the protection afforded by the Tort Claims Act's short claim filing period.   It would permit an injured plaintiff to indirectly circumvent the claim statute requirement.   The Supreme Court rejected the state's argument declaring although the claims act aims at assuring prompt notice to a governmental entity its purpose was not to deprive an entire class of claimants (i.e., parties seeking indemnity) of their rights, vis-à-vis governmental entities.  (26 Cal.3d at pp. 760–761, 163 Cal.Rptr. 585, 608 P.2d 673.)

In Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 611, 189 Cal.Rptr. 871, 659 P.2d 1160, it was stated:

“ ‘[T]he governing authorities, both in California and throughout the country, uniformly hold that a tort defendant's equitable indemnity action is separate and distinct from the plaintiff's tort action.   The indemnity action, unlike the plaintiff's claim, does not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.’ ”

B. Assignment and Equitable Indemnity Cases

In Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 13 Cal.Rptr.2d 382, plaintiff sued State Farm alleging bad faith in that it failed to pay benefits due under an insurance policy causing severe emotional distress to O. L. Rains.   In a separate action, O. L. Rains sued petitioners Robert Wright and William Bush for medical malpractice alleging permanent physical injuries arose from the side effects of a drug they prescribed in treating Rains for emotional distress.

The Rainses settled their bad faith action against State Farm for the payment of $1,750,000 and an assignment of its equitable indemnity cause of action against the doctors.   The doctors demurred to plaintiff's complaint arguing, among other things, that the action should be abated because plaintiff's action against them was pending on the same cause of action.   The doctors argued (as Hospital argues here) that the party seeking indemnity stands in the shoes of the underlying plaintiff and that plaintiff cannot collect twice on the same cause of action.   The Court of Appeal rejected this argument stating:

“Petitioners argue that the trial court should have sustained their demurrers because ‘[t]here is another action pending between the same parties on the same cause of action.’  (Code Civ.Proc., § 430.10, subd. (c).)  However, the American Motorcycle indemnity action and the plaintiff's tort action are not on the same cause of action.”  (Bush v. Superior Court, supra, 10 Cal.App.4th at p. 1384, 13 Cal.Rptr.2d 382.)

The Bush court further explained:

“The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.

“ ‘California follows the ‘primary right theory’ of Pomeroy:  “Every judicial action must therefore involve the following elements:  a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant;  a delict or wrong done by the defendant which consisted in a breach of such primary right and duty;  a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself․   Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action․” '  (4 Witkin, Cal. Procedure, supra, Pleading, § 23, pp. 66–67, original italics.)

“The primary right in O.L. Rains's tort action is his right to freedom from bodily harm caused by negligence.   The primary right in the American Motorcycle indemnity action is State Farm's right to freedom from disproportionate liability for damages attributable to the negligence of the concurrent tortfeasors.   These are different primary rights.   Even as pled the tort actions against State Farm and petitioners are based upon different causes of action.”  (10 Cal.App.4th at p. 1384, 13 Cal.Rptr.2d 382, italics original and added.)

C. Dismissal Cases

In American Bankers Ins. Co. v. Avco–Lycoming Division (1979) 97 Cal.App.3d 732, 159 Cal.Rptr. 70, an airplane engine was damaged due to lack of lubricating oil.   The owner of the airplane, Lamb, sued El Cajon Flying Service, the entity servicing the plane, Beech, the manufacturer of the plane, Avco, the manufacturer of the engine, and Champion, manufacturer of the oil filter gasket.   El Cajon's insurer, American Bankers, settled with Lamb for the full amount of the claim and obtained Lamb's dismissal with prejudice as to all defendants.

American Bankers, on behalf of El Cajon Flying Service, then filed an indemnity action against Avco among others.   Avco successfully demurred contending that since Lamb dismissed Avco with prejudice in the underlying action the rights of American Bankers, who Avco alleged stood in the shoes of Lamb, were extinguished.  (American Bankers Ins. Co. v. Avco–Lycoming Division, supra, 97 Cal.App.3d at p. 737, 159 Cal.Rptr. 70.)   The Court of Appeal reversed declaring:

“A dismissal with prejudice in one case ․ does not result in the termination of all litigation involving the same facts.   It is a judgment on the merits only as between the plaintiff in that case and defendants․   Here the parties are different.  (American Bankers, as subrogee of El Cajon's rights—not Lamb's—is suing for apportionment of its damages based on comparative fault.”  (97 Cal.App.3d at p. 737, 159 Cal.Rptr. 70, italics added.)

Accordingly, the court held that a plaintiff in an equitable indemnity action does not stand in the shoes of the underlying plaintiff.

D. Economic Damages Rule

Mullin Lumber Co. v. Chandler (1986) 185 Cal.App.3d 1127, 230 Cal.Rptr. 122, was a equitable indemnity action brought by Mullin Lumber Company against Chandler, a housing contractor.   Mullin had settled a personal injury action brought by a carpenter who fell from a collapsed scaffolding built from defective lumber purchased from Mullin.   At the close of Mullin's opening statement, Chandler successfully moved for nonsuit claiming Mullin could not recover on its claim for equitable indemnity unless it first proved its own negligence and that Mullen could not prove, by a preponderance of evidence, that it supplied the defective board.   Chandler argued (as contended here) that the applicable measure of damages in an equitable indemnity action is what the underlying plaintiff would have recovered, not what the settling party reasonably paid to settle the claim.

This court held:

“We hold in an action for equitable indemnity based on comparative fault the settling defendant need only prove the settlement was based on a reasonable estimate of its liability at the time of the settlement.   We applied this test in Barth–Wittmore Ins. v. H.R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3d 124 [214 Cal.Rptr. 894] (Lillie, P. J.) in reviewing a trial court's finding of a good faith settlement under Code of Civil Procedure section 877.6.   The test is just as appropriate here.   In Barth–Wittmore, as in the case at bar, the party seeking to avoid indemnity claimed the settlor had paid too much because, as claimed here, the settling defendant was not liable.  (Id., at pp. 131–132 [214 Cal.Rptr. 894].)  We held it was not necessary the trial court find the settling defendant liable in order to determine the settlement to be in good faith.   The court need only find the defendant's ‘estimate of potential liability was reasonable at the time of the settlement.’  (Id., at p. 133 [214 Cal.Rptr. 894].)  This requirement is satisfied if the injured party could state a recognized cause of action against the settling defendant and the settlor faced actual, potential or reasonably apparent liability.”  (Mullin Lumber Co. v. Chandler, supra, 185 Cal.App.3d at p. 1134, 230 Cal.Rptr. 122.)

The Mullin court further stated:

“We perceive no prejudice to the nonsettling party in our ruling.   Unlike cases involving contractual indemnity, where proof of the settling defendant's fault is necessary to trigger the obligation of a third person to indemnify, in cases involving equitable indemnity based on comparative fault the obligation to indemnify is triggered by proof the party from whom indemnity is sought was itself at fault in causing the injury.   This burden of proof is on the party seeking indemnity.  (American Motorcycle Assn., supra, 20 Cal.3d at p. 607 [146 Cal.Rptr. 182, 578 P.2d 899].)  Furthermore, the party seeking indemnity must prove payment of the settlement amount (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506 [146 Cal.Rptr. 614, 579 P.2d 505] ),and that the settlement amount was reasonable.  (Cf. Tech–Bilt, Inc. v. Woodward–Clyde & Associates, supra, 38 Cal.3d [488] at p. 499 [213 Cal.Rptr. 256, 698 P.2d 159].)  These requirements are sufficient to protect nonsettling defendants from collusion or fraud on the part of settling defendants.”  (185 Cal.App.3d at pp. 1134, 1135, 230 Cal.Rptr. 122.)



 Hospital argues it is entitled to the benefit of the $1 million received in settlement between Western and Dr. Wirtschafter.   This assumption overlooks the economic loss sustained by Western.   The doctor had a 50 percent liability for the loss.   The doctor did not pay his entire 50 percent.   Therefore, Hospital is entitled to no credit.   The percent of jury-assigned fault required the doctor's payment of 50 percent of the $6 million or $3 million.   Hospital cannot benefit from the doctor's underpayment.

 The trial court found the settlement made by Western with Lennon was reasonable;  that conclusion is supported by substantial evidence.   While Western's insurer paid the total cost of the judgment and maintenance except a $1,000 payment by Western, these funds were paid from a source wholly independent from Hospital.   They were not payments received from a separate tortfeasor.   Where a plaintiff obtains compensation from his own insurer, plaintiff's tort recovery is not thereby reduced.  (See Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 674, 192 Cal.Rptr. 793;  Anheuser–Busch, Inc. v. Starley (1946) 28 Cal.2d 347, 349, 170 P.2d 448.)   Western has carried its burden of proof on each of the requisite issues as outlined in Mullen Lumber Co. v. Chandler, supra, 185 Cal.App.3d 1127, 1134–1135, 230 Cal.Rptr. 122.

The judgment is affirmed.

Plaintiff to recover costs on appeal.



1.   Code of Civil Procedure section 667.7 and Civil Code sections 3333.1 and 3333.2.  (See fn. 4, post.)

2.   Western is a Liberian corporation operating cruise liners on the Pacific West Coast.

3.   Civil Code section 3333.2 states, in part:“(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage.“(b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”

4.   Civil Code section 3333.1 provides in relevant part:“(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services.   Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.“(b) No source of collateral benefits introduced pursuant to subdivision (a) shall recovery any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”California Code of Civil Procedure section 667.7, subdivision (a) provides in relevant part:“(a) In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages․“(b)(1) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.   Such payments shall only be subject to modification in the event of the death of the judgment creditor.”Subdivision (e)(1) defines “future damages” as:“[D]amages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering․”

STANIFORTH, Justice (Assigned).* FN* Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

JOHNSON, Acting P.J., and FRED WOODS, J., concur.

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