No. 13-0427 – John N. Kenney v. Samuel C. Liston
                                                                          FILED
                                                                       July 18, 2014
                                                                     RORY L. PERRY II, CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA

Benjamin, Justice, concurring:



             I wholeheartedly concur with the majority opinion’s decision in this case. I

write separately to express my belief that the majority opinion’s new syllabus points are

unnecessary because, in my opinion, the issue of the application of the collateral source

rule to medical expense write-offs was long ago settled by this Court and is well-

established law in West Virginia.



             Almost forty years ago, in syllabus point 14 of Long v. City of Weirton, 158

W. Va. 741, 214 S.E.2d 832 (1975), superseded by statute on other grounds as stated in

Pritchard v. Arvon, 186 W. Va. 445, 413 S.E.2d 100 (1991), Justice Charles Haden, for

this Court, wrote that “[t]he award of special medical expenses in a personal injury case

is predicated on proof of the reasonable value of such expenses necessarily incurred by

reason of the defendant’s negligence, and not upon the actual expenses paid.”1 [Emphasis

added.] Again writing for this Court, Justice Haden applied this same principle to

determination of future medical expenses in syllabus point 15 of Jordan v. Bero, 158 W.

Va. 28, 210 S.E.2d 618 (1974), which holds:



      1
        Justice Haden later became Chief Judge of the United States District Court for
the Southern District of West Virginia.
                      To warrant a recovery for future medical expenses, the
              proper measure of damages is not simply the expenses or
              liability which shall or may be incurred in the future but it is,
              rather, the reasonable value of medical services as will
              probably be necessarily incurred by reason of the permanent
              effects of a party’s injuries.


[Emphasis added.] This syllabus point from Jordan v. Bero was relied on more than

twenty years later by Justice Franklin Cleckley in authoring this Court’s opinion in Reed

v. Wimmer, 195 W. Va. 199, 465 S.E.2d 199 (1995). These cases clearly establish that the

measure of damages in a given case is the reasonable value of such damages; therefore,

evidence of any amounts actually paid or payable are not admissible.



              I believe that in the instant case, several if not all of the new syllabus points

simply are not needed.2 This Court already has a long jurisprudence which establishes

that the tortfeasor is responsible for the reasonable value of the damages, not the amount

actually charged or paid. Thus, the majority opinion is not groundbreaking and it is in no

way a departure from this Court’s prior caselaw. Therefore, because the majority opinion

is consistent with the well-settled precedent of this Court, I concur.




       2
         The majority opinion has several new syllabus points which explain or define the
collateral source rule. I favor the simple explanation that for purposes of the collateral
source rule, any benefits, including insurance proceeds, received by a plaintiff from a
source wholly independent of and collateral to the wrongdoer will not diminish the
damages otherwise recoverable.
