Present: All the Justices 

FIDELINA D. ACUAR 

v. Record No. 992228 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 9, 2000 

KEVIN LETOURNEAU 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 This appeal arises out of a motor vehicle accident 

that occurred in December 1995 in the City of Virginia 

Beach. Kevin Letourneau filed a motion for judgment 

against Fidelina D. Acuar seeking damages for injuries he 

allegedly sustained as a result of that accident. Acuar 

admitted liability, and the case proceeded to trial solely 

on the issue of damages. A jury returned a verdict in 

favor of Letourneau and awarded him damages in the amount 

of $150,000. The circuit court entered judgment in 

accordance with the jury verdict. 

We awarded Acuar this appeal on two assignments of 

error: (1) that the circuit court erred in allowing 

repeated references to a police accident report in 

violation of Code § 46.2-379, and (2) that the circuit 

court erred in allowing those portions of Letourneau’s 

medical expenses that were “written off” by his health care 

providers to be submitted to the jury. Because we conclude 

that the court erred in permitting numerous references to 
the accident report, we will reverse the circuit court’s 

judgment and remand for a new trial. Furthermore, since 

the second issue will arise again during a new trial on 

remand, we also decide that issue and conclude Letourneau 

may present evidence at the new trial of the full amount of 

his reasonable medical expenses without any reduction for 

the amounts “written off” by his health care providers. 

FACTS 

The facts pertinent to these issues are not in 

dispute. On the morning of trial, Acuar made a motion to 

exclude the amounts of Letourneau’s medical bills that were 

“written off”1 by his health care providers.2 Although the 

court expressed the view that those portions written off 

should not be introduced into evidence, the court denied 

Acuar’s motion on the basis that it was in the nature of a 

 1

 Pursuant to agreements between health care providers 

and health insurance carriers, health care providers 

routinely deduct certain amounts from the total costs of 

medical treatment. Those are the amounts “written off.” 

2

 Letourneau’s medical bills were in excess of $41,000. 

However, after deducting the amounts written off by the 

health care providers, his medical bills totaled 

$13,618.51. Letourneau introduced bills totaling 

$40,831.03 into evidence during the trial. Acuar admitted 

the reasonableness and authenticity of Letourneau’s medical 

bills. 

2
motion in limine and that, as such, it was not timely made 

under the court’s scheduling order.3

During the trial, Albert L. Mills, the police officer 

who investigated the motor vehicle accident in question, 

testified. During direct examination, counsel for 

Letourneau asked Mills if he needed to refresh his memory 

with regard to the type of one of the vehicles involved in 

the accident. In response, Mills stated, “Yes. I don’t 

have a copy of the accident report.” At that point, while 

handing the accident report to Mills, Letourneau’s counsel 

advised the court that Mills “may need to refer to this. 

This is his accident report.” 

Acuar’s counsel then requested a bench conference, 

after which the following colloquy took place: 

BY [LETOURNEAU’S COUNSEL]: 

Q Officer Mills, does what I just handed you 

refresh your recollection? 

A Yes, sir. That’s a copy of the accident 

report which I filled out during that time frame. 

Q Okay. 

 [ACUAR’S COUNSEL]: I’ve objected. 

 3

 The circuit court had previously entered a scheduling 

order that provided, in pertinent part, that “[m]otions in 

limine shall be scheduled for hearing before the trial 

date.” 

3
 THE COURT: Officer, just look directly at 

the report and respond to the question. 

Acuar then objected to the manner in which the 

document was being utilized to refresh the officer’s 

memory. The trial court overruled the objection on the 

basis that the document was only being used to refresh 

Mills’ recollection. 

Later in the direct examination of Mills, Letourneau’s 

counsel asked the officer to mark on a photograph the 

location of Letourneau’s vehicle at the accident scene. In 

response Mills stated, “I don’t particularly remember 

exactly where the vehicle was in that intersection. All I 

can do is recollect what the diagram shows on my accident 

report.” Mills’ reference to his accident report again 

drew an objection from Acuar’s counsel. 

On re-direct, Letourneau’s counsel asked Mills, 

“Officer, when you testified that the — how the truck ended 

up, was that going by your memory?” Mills answered in the 

affirmative, and counsel then asked, “Look at your diagram 

again and tell me whether or not —.” Acuar’s counsel 

objected again and stated that the problem of referring to 

the accident report was being compounded. The court then 

directed the officer to check his notes and refresh his 

recollection. 

4
Acuar’s counsel also objected when a diagram was 

mentioned in the following colloquy between Letourneau’s 

counsel and Mills: 

Q Did you look at the skid marks in the 

street? 

A I did look at the scene. I don’t have 

anything indicated about skid marks, although the 

diagram I have indicated that — 

 [ACUAR’S COUNSEL]: Judge, there’s where I 

have an objection as to — 

THE COURT: Do you have any independent 

recollection or in looking at your notes to 

indicate if at any time any vehicle spun? 

 THE WITNESS: Yes, sir, the diagram that I 

have drawn based on the accident scene during 

that time frame shows that the vehicle did turn 

slightly after impact. 

 At a recess during trial, Acuar’s counsel argued that 

“the words ‘accident report’ are not supposed to be used in 

front of the jury,” and moved for a mistrial because of the 

numerous references to the report. The circuit court 

denied the motion, although it indicated that it might give 

the jury a cautionary instruction. 

 On the second day of the trial after reviewing 

relevant cases, the court acknowledged that Acuar’s 

objections to the use of the term “accident report” should 

have been sustained, but the court had not yet decided what 

action to take with regard to the admission of that 

5
testimony. On the third and final day of trial, the court 

announced that it was not going to change its earlier 

ruling with respect to the references to the accident 

report, and was allowing the testimony to remain in 

evidence. The court also declined to give a curative 

instruction, believing that “it [would] create more 

problems than it would resolve.” 

 Since Acuar admitted liability, Mills’ testimony 

focused on the force of the impact between the two vehicles 

and their relative positions after the collision occurred. 

Donald Stanley, a deputy sheriff with the City of Virginia 

Beach Sheriff’s Office, also testified with regard to the 

same issues, without referring to the accident report. 

Stanley was driving to work, travelling directly behind 

Letourneau’s truck at the time of the collision. Stanley 

witnessed the accident and saw Acuar’s vehicle collide 

broadside with Letourneau’s truck, causing the truck to 

spin around 180 degrees, go up and over the curb, and knock 

down a tree in the median. Letourneau also introduced into 

evidence photographs depicting the damage to both parties’ 

vehicles. 

ANALYSIS 

I. ACCIDENT REPORT 

6
 On the first issue, Acuar argues that the circuit 

court violated Code § 46.2-379 by allowing the jury to hear 

repeated references to Mills’ accident report. Acuar also 

posits that the court’s direction to the officer to refer 

to his report to refresh his recollection increased the 

likelihood that the jury placed undue weight on its 

contents even though the report was not actually admitted 

into evidence. 

 In response, Letourneau points out that the first 

mention of the accident report occurred when Mills stated, 

without solicitation, that he did not “have a copy of the 

accident report.” Continuing, Letourneau stresses the fact 

that the only time that his counsel used the phrase 

“accident report” was when he handed the report to Mills so 

the officer could use it to refresh his recollection. 

Letourneau also contends that Mills’ references to the 

accident report and its contents were merely cumulative of 

Stanley’s testimony and the photos of the vehicles, both of 

which conclusively established the force of the impact 

between the two vehicles. Also, Mills did not testify 

about any facts or circumstances that were disputed. Thus, 

argues Letourneau, any error by the circuit court on this 

issue was harmless. We do not agree. 

7
Code § 46.2-379 provides, in pertinent part, that 

“accident reports made by investigating officers . . . 

shall not be used as evidence in any trial, civil or 

criminal, arising out of any accident.” As we have 

previously stated, “[t]he rationale of the statute is that 

the report, although routinely and sometimes hurriedly 

made, . . . nevertheless carries with it the stamp of a 

written and official document to which a jury could attach 

more weight than it is properly due.” Davis v. Colgin, 219 

Va. 5, 7, 244 S.E.2d 750, 751 (1978). Accord Cherry v. 

D.S. Nash Constr. Co., 252 Va. 241, 246, 475 S.E.2d 794, 

797 (1996); Galbraith v. Fleming, 245 Va. 173, 175, 427 

S.E.2d 187, 188 (1993). 

In Phillips v. Schools, 211 Va. 19, 175 S.E.2d 279 

(1970), the plaintiff’s attorney sought to cross-examine 

the defendant about a prior statement by making specific 

reference to an accident report. Although the plaintiff 

conceded that the report itself could not have been 

introduced into evidence if the defendant denied making the 

statement, the plaintiff nevertheless asserted that he 

should be permitted to use the report to cross-examine the 

defendant about a statement in the report. However, this 

Court held that “to have permitted plaintiff’s counsel to 

make specific reference to the report in the presence of 

8
the jury, and to read defendant’s statement therein for the 

purpose of contradicting him, would have in effect 

accomplished indirectly what [former] Code § 46.1-407[4] 

forbids to be done directly.” Id. at 22-23, 175 S.E.2d at 

281. 

Similarly in Davis, the plaintiff’s counsel furnished 

the investigating police officer with a copy of the 

officer’s accident report for the purpose of refreshing the 

officer’s memory. The officer was then questioned about 

the details of the accident. On cross-examination, the 

defendant’s counsel attempted to ascertain how the officer 

had refreshed his recollection regarding the accident and 

asked the officer about the accident report. Davis, 219 

Va. at 6, 244 S.E.2d at 750-51. Even though the report was 

not introduced into evidence, this Court held that “no 

reference” should have been made to the report by either 

party or their counsel. Id. at 8, 244 S.E.2d at 751. 

As in Davis and Phillips, the accident report was not 

introduced into evidence in the present case. However, the 

 4

 Former Code § 46.1-407 provided that accident reports 

were to be confidential, while former Code §§ 46.1-408 and 

–409, inter alia, barred the use of accident reports as 

evidence in any trial. Those portions of former Code 

§§ 46.1-408 and –409 are now codified at Code § 46.2-379. 

9
numerous references to it5 during Mills’ testimony by not 

only the officer but also the court and Letourneau’s 

attorney amounted to nothing less than an official stamp 

being placed on the document used to refresh Mills’ 

recollection. Thus, the jury could have placed more weight 

on Mills’ testimony than it might otherwise have done. As 

we said in Phillips, the references to the accident report 

“accomplished indirectly what Code § [46.2-379] forbids to 

be done directly.” 211 Va. at 22-23, 175 S.E.2d at 281. 

Therefore, we conclude that the circuit court erred in 

allowing the repeated references to the accident report. 

We also do not believe that the error was harmless. 

Since Acuar admitted liability, the only issue for the jury 

to determine was the quantum of damages. Evidence of the 

details of the collision and the severity of the impact 

between the two vehicles was material and relevant to an 

assessment of the trauma and injury that Letourneau 

sustained. See Wallen v. Allen, 231 Va. 289, 293-94, 343 

S.E.2d 73, 76 (1986). Since Stanley’s testimony followed, 

and was in most respects cumulative of, Mills’ testimony, 

the repeated interjection of the accident report in front 

of the jury made it more difficult for Acuar’s counsel to 

 5

 The accident report was also referred to by the terms 

“diagram” and “report.” 

10
effectively test Stanley’s memory during cross-examination. 

In other words, the “stamp of a written and official 

document,” Davis, 219 Va. at 7, 244 S.E.2d at 751, that 

implicitly accompanies an accident report enhanced not only 

Mills’ testimony but also that of Stanley. Therefore, we 

cannot say that the numerous references to the accident 

report were not prejudicial to Acuar. Accordingly, we will 

remand this case to the circuit court for a new trial. 

II. MEDICAL EXPENSES WRITTEN OFF 

We now address the question whether those portions of 

Letourneau’s medical bills that his health care providers 

wrote off can be submitted to the jury. We decide this 

issue because it will likely arise again in a new trial.6 

See Shelby Ins. Co. v. Kozak, 255 Va. 411, 416, 497 S.E.2d 

864, 868 (1998). 

We begin with a discussion of the collateral source 

rule, the applicability of which is central to this issue. 

The collateral source rule is a long-standing principle in 

Virginia tort law and has been applied in tort cases for 

 6

 We will not address the question whether the circuit 

court abused its discretion in ruling that Acuar’s motion 

to exclude the portions of the medical bills written off 

was not timely under the court’s scheduling order. In 

light of our determination that this case will be remanded 

for a new trial, that question is moot. 

11
more than a century.7 See Schickling v. Aspinall, 235 Va. 

472, 475, 369 S.E.2d 172, 174 (1988); Johnson v. Kellam, 

162 Va. 757, 764-65, 175 S.E. 634, 636-37 (1934); Baltimore 

& Ohio R.R. Co. v. Wightman’s Adm’r, 70 Va. (29 Gratt.) 

431, 446 (1877), rev’d on other grounds sub nom. Railroad 

Co. v. Koontz, 104 U.S. 5 (1881). The meaning of the 

collateral source rule and its rationale are found in the 

following passages from several of our prior cases: 

 The law seems quite well settled that damages, 

recoverable for personal injuries inflicted through 

the negligence of another are not to be reduced by 

reason of the fact that the injured party had been 

partly compensated for his loss by insurance which he 

has procured and for which he has paid. The reason 

for this rule is that the defendant, who by his 

negligence, has injured another, owes to such other 

compensation for the injuries he has inflicted and the 

payment for those injuries from a collateral source 

cannot relieve the defendant of his obligation. 

Kellam, 162 Va. at 764, 175 S.E. at 636. Accord Burks v. 

Webb, Adm’x, 199 Va. 296, 304, 99 S.E.2d 629, 636 (1957). 

Pursuant to the rule, “compensation or indemnity received 

by a tort victim from a source collateral to the tortfeasor 

may not be applied as a credit against the quantum of 

damages the tortfeasor owes.” Schickling, 235 Va. at 474, 

 7

 The rule also applies to actions ex contractu in some 

jurisdictions, see Hall v. Miller, 465 A.2d 222, 226-27 

(Vt. 1983) (collecting authorities). This Court has never 

considered that question, Schickling v. Aspinall, 235 Va. 

472, 475, 369 S.E.2d 172, 174 (1988), and need not do so 

today. 

12
369 S.E.2d at 174. A person who is negligent and injures 

another “owes to the latter full compensation for the 

injury inflicted[,] . . . and payment for such injury from 

a collateral source in no way relieves the wrongdoer of 

[the] obligation.” Walthew v. Davis, Adm’r, 201 Va. 557, 

563, 111 S.E.2d 784, 788 (1960) (citing Webb, 199 Va. at 

304, 99 S.E.2d at 636). 

With regard to the issue concerning the medical 

expenses that were written off, Acuar first points out that 

the purpose of compensatory damages is to make a plaintiff 

whole. See F.B.C. Stores, Inc. v. Duncan, 214 Va. 246, 

251, 198 S.E.2d 595, 599 (1973). Relying on Sykes v. 

Brown, 156 Va. 881, 159 S.E. 202 (1931), Acuar argues that 

a plaintiff may recover medical expenses only when the 

plaintiff “is liable for the debt incurred.” Id. at 887, 

159 S.E. at 204. Continuing, she asserts that, based on 

this Court’s decision in State Farm Mut. Auto. Ins. Co. v. 

Bowers, 255 Va. 581, 500 S.E.2d 212 (1998), the portions of 

medical bills that are written off by health care providers 

are not “incurred” expenses because a plaintiff is never 

legally obligated to pay those amounts. Thus, Acuar 

contends that the collateral source rule is not applicable 

to the present case because Letourneau is not, and never 

will be, legally obligated to pay those portions of his 

13
medical bills that were written off, nor were those amounts 

paid on his behalf. According to Acuar, the amounts 

written off by health care providers are not benefits 

derived from a collateral source, and to allow Letourneau 

to recover such amounts as damages in this tort action 

would create a double recovery or windfall in his favor. 

In opposition, Letourneau asserts that the collateral 

source rule does apply and that therefore Acuar cannot 

reduce the amount of damages for which she is liable by 

deducting the amounts written off by Letourneau’s health 

care providers. Letourneau points out that his health care 

providers wrote off certain portions of the medical 

expenses because of agreements between them and his health 

insurance carrier, and that such agreements are part of the 

benefits that Letourneau obtained in exchange for the 

consideration, or premium, that he paid for his health 

insurance coverage. Letourneau maintains that, if Acuar’s 

position were adopted, she would derive a benefit from 

Letourneau’s health insurance without having paid any 

consideration for such a benefit, thereby creating a 

windfall for Acuar. However, based on this Court’s 

decision in Schickling, Letourneau asserts that the law 

favors a windfall for the tort victim rather than the 

wrongdoer. 

14
In deciding this issue, we first note that our 

decision in Bowers is not dispositive. That case involved 

a contractual dispute between an insured and his automobile 

liability insurance carrier regarding coverage under the 

medical payments provision of the policy at issue. Bowers, 

255 Va. at 583-84, 500 S.E.2d at 212-13. Under the terms 

of that provision, the insurance carrier agreed to pay “on 

behalf of each injured person, medical expense benefits as 

a result of bodily injury caused by accident.” Id. at 583, 

500 S.E.2d at 212. The policy defined medical expense as 

“all reasonable and necessary expenses for medical . . . 

services . . . incurred . . . .” Id. Accordingly, to 

answer the coverage question, we focused on the meaning of 

the term “incurred,” as defined by this Court in Virginia 

Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692, 385 

S.E.2d 612 (1989). In Hodges, we said that “[a]n expense 

can only be ‘incurred’ . . . when one has paid it or become 

legally obligated to pay it.” Id. at 696, 285 S.E.2d at 

614. Thus, we concluded in Bowers that “the medical 

expenses Bowers [had] ‘incurred’ were the amounts that the 

health-care providers accepted as full payment for their 

services rendered to him” and did not include the amounts 

15
written off by such providers.8 Bowers, 255 Va. at 585-86, 

500 S.E.2d at 214. 

Even though that case, like the present one, involved 

medical expenses that health care providers had written 

off, we were construing the specific terms of an insurance 

contract in Bowers. Thus, neither the tort policy of this 

Commonwealth nor the collateral source rule was implicated. 

By contrast, in the instant case, we are reviewing a tort 

claim, not a contractual one, by an injured party against a 

wrongdoer. 

We also point out that Hodges likewise involved the 

interpretation of a medical payments provision. Hodges, 

238 Va. at 693, 385 S.E.2d at 612. In that case, the 

plaintiff sought to recover the cost of surgery under the 

medical payments provision of her automobile insurance 

policy even though she had not yet undergone the surgery 

and had not entered into a contract with the doctor to 

perform the surgery on some future date. Id. at 694-95, 

385 S.E.2d at 613. This Court concluded that the plaintiff 

had not “incurred” that surgical expense within one year 

 8

 We also note that when the General Assembly defined 

the term “incurred” in Code § 38.2-2201(A)(3), it did so 

only in the context of provisions for payment of medical 

expenses in automobile liability insurance policies. 

16
from the date of the accident as required by the terms of 

the insurance policy. Id. at 696, 385 S.E.2d at 614. 

By way of contrast, if the plaintiff in Hodges had 

brought a tort action against the negligent driver who 

caused her injuries, such as the present case filed by 

Letourneau, she undoubtedly would have been allowed to 

recover the cost of future medical expenses as an element 

of damages. See Hailes v. Gonzales, 207 Va. 612, 614, 151 

S.E.2d 388, 390 (1966) (award for future medical expenses 

is appropriate when evidence supports such an award). The 

question whether such future expenses had been “incurred” 

would not have been an issue. 

Likewise, this Court’s decision in Sykes does not 

provide controlling precedent for purposes of the issue 

before us. There, the plaintiff sought damages for 

personal injuries sustained when she was struck by an 

automobile. Testimony from a doctor associated with the 

hospital where the plaintiff had received treatment 

established the approximate amount of her hospital bill and 

the balance due on the bill. Sykes, 156 Va. at 886, 159 

S.E. at 204. One of the errors assigned was the trial 

court’s refusal to instruct the jury that it could not 

consider “any expenses incurred for hospital care, nursing, 

17
medical or surgical treatment.”9 Id. at 886-87, 159 S.E. at 

204. In support of the instruction, the defendant argued 

that the evidence failed to show that the plaintiff had 

paid any part of her medical expenses. Id. at 887, 159 

S.E. at 204. In holding that the instruction was properly 

refused because the record established that the plaintiff 

owed another doctor for services rendered as a result of 

the accident, this Court stated that “[p]ayment of the 

expense of treatment is not essential to a recovery. If 

plaintiff is liable for the debt incurred, that is all that 

is necessary.” Id.

The decision in Sykes focused on whether it was 

necessary for the plaintiff to have paid her medical 

expenses before she could claim them as part of her 

damages. The application of the collateral source rule was 

not at issue. Thus, we are not persuaded by Acuar’s 

argument, based on the previously quoted language from 

Sykes and the definition of the term “incurred” used in 

Bowers, that the collateral source rule does not apply to 

 9

 Because the doctor who testified could not state the 

correct amount due the hospital but only approximated the 

expenses incurred, and also could not state whether the 

bill had been paid by the plaintiff or whether she was 

primarily liable for the bill, the defendant also assigned 

error to the trial court’s failure to sustain an objection 

to the doctor’s testimony. This Court concluded that the 

18
the present case because Letourneau did not “incur” the 

medical expenses that his health care providers wrote off. 

That argument overlooks the fundamental purpose of the 

rule, explained above, to prevent a tortfeasor from 

deriving any benefit from compensation or indemnity that an 

injured party has received from a collateral source. In 

other words, the focal point of the collateral source rule 

is not whether an injured party has “incurred” certain 

medical expenses. Rather, it is whether a tort victim has 

received benefits from a collateral source that cannot be 

used to reduce the amount of damages owed by a tortfeasor. 

 Letourneau is entitled to seek full compensation from 

Acuar. See Walthew, 201 Va. at 563, 111 S.E.2d at 788. 

Based on the cases cited above dealing with the collateral 

source rule, we conclude that Acuar cannot deduct from that 

full compensation any part of the benefits Letourneau 

received from his contractual arrangement with his health 

insurance carrier, whether those benefits took the form of 

medical expense payments or amounts written off because of 

agreements between his health insurance carrier and his 

health care providers. Those amounts written off are as 

much of a benefit for which Letourneau paid consideration 

_________________ 

testimony should have been excluded. Sykes, 156 Va. at 

886, 159 S.E. at 204. 

19
as are the actual cash payments made by his health 

insurance carrier to the health care providers. The 

portions of medical expenses that health care providers 

write off constitute “compensation or indemnity received by 

a tort victim from a source collateral to the tortfeasor 

. . . .” Schickling, 235 Va. at 474, 369 S.E.2d at 174. 

 This conclusion is consistent with the purpose of 

compensatory damages, which is to make a tort victim whole. 

However, the injured party should be made whole by the 

tortfeasor, not by a combination of compensation from the 

tortfeasor and collateral sources. The wrongdoer cannot 

reap the benefit of a contract for which the wrongdoer paid 

no compensation. Baltimore & Ohio R.R. Co., 70 Va. (29 

Gratt.) at 446. The extent of Acuar’s liability to 

Letourneau cannot be “measured by deducting financial 

benefits received by [Letourneau] from collateral sources.” 

Owen v. Dixon, 162 Va. 601, 608, 175 S.E. 41, 43 (1934). 

In other words, “it is the tortfeasor’s responsibility to 

compensate for all harm that he [or she] causes, not 

confined to the net loss that the injured party receives.” 

Restatement (Second) of Torts § 920A cmt. b (1977). 

To the extent that such a result provides a windfall 

to the injured party, we have previously recognized that 

consequence and concluded that the victim of the wrong 

20
rather than the wrongdoer should receive the windfall. 

Schickling, 235 Va. at 475, 369 S.E.2d at 174. We explain 

the rationale for that result by repeating the following 

explanation of the collateral source rule: 

The collateral source rule is designed to strike 

a balance between two competing principles of tort 

law: (1) a plaintiff is entitled to compensation 

sufficient to make him whole, but no more; and (2) a 

defendant is liable for all damages that proximately 

result from his wrong. A plaintiff who receives a 

double recovery for a single tort enjoys a windfall; 

a defendant who escapes, in whole or in part, 

liability for his wrong enjoys a windfall. Because 

the law must sanction one windfall and deny the other, 

it favors the victim of the wrong rather than the 

wrongdoer. 

Id. at 474-75, 369 S.E.2d at 174. 

For these reasons, we hold that Letourneau may present 

evidence at the new trial of the full amount of his 

reasonable medical expenses without any reduction for the 

amounts written off by his health care providers. 

Reversed and remanded. 

21