As a matter of first impression, the collateral source rule, while not implicated in this action, applies in the context of an underinsured motorist action.

The defendant insurer filed an application to admit a report prepared by an expert (the first expert) at the plaintiff insured's request in connection with her Industrial Accident Board claim. The insurer sought to use the report to impeach a second expert's opinion testimony. After the insured was injured in a work-related automobile accident, the insurer sought to admit the first expert's permanency report for the insured's Industrial Accident Board case in order to impeach her present claims. The court found that, because the insurer was not seeking to admit the first expert's report as substantive evidence to prove the truth of the matters therein, Del. R. Evid. 801(c) did not apply. The documents pertaining to the prior litigation did not implicate the collateral source rule. The collateral source rule "prohibits the admission of evidence of an injured party receiving compensation or payments for tort-related injuries from a source other than the tortfeasor." The collateral source rule does not, however, impair a defendant's ability to introduce evidence of a prior, unrelated injury as part of its defense on the issue of causation. The evidence was relevant to the insurer's causation defense and would provide the jury with an indication of the insured's baseline condition vis-a-vis the similar injuries claimed in the current case, thereby enabling the insurer to argue that the damages must be apportioned to include only the aggravation or exacerbation of the insured's similar pre-existing physical injuries. Further, to avoid misleading or prejudicing the jury, the insurer stipulated, pursuant to Del. R. Evid. 403, to redact any indication of monetary sums received by the insured due to the prior litigation. Thus, the evidence was admissible under Del. R. Evid. 703. As a result, the application was granted with the qualification that the first expert's report was admissible only to impeach the second expert's opinion testimony.

Case Law Alert - 3rd Qtr 2011