Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and Agee, 

JJ., and Carrico, S.J. 

GARY DEAN BULLARD 

 OPINION BY 

v. Record No. 031519 SENIOR JUSTICE HARRY L. CARRICO 

 April 23, 2004 

DINA M. ALFONSO 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Robert B. Cromwell, Jr., Judge 

 In this personal injury case, the sole question for 

decision is whether the trial court erred in excluding evidence 

of lost income allegedly suffered by the plaintiff. Finding the 

exclusion erroneous, we will reverse. 

 In a motion for judgment filed below, the plaintiff, Gary 

Dean Bullard, sought to recover from the defendant, Dina M. 

Alfonso, damages for personal injuries suffered by the plaintiff 

in an automobile accident allegedly caused by the defendant’s 

negligence. In the motion, the plaintiff alleged, inter alia, 

that as a direct and proximate result of the defendant’s 

negligence he “was prevented from attending to his lawful 

affairs, thereby losing wages, earnings and profits.” 

 At the time of the accident, the plaintiff was a drywall 

hanger and plasterer employed by Grant Drywall and Plastering, 

Inc., a Subchapter S corporation of which the plaintiff was sole 

stockholder and president. The plaintiff claimed that, as a 

result of his injuries, he was unable to perform his duties as a 

drywall hanger and plasterer for approximately six months and 
suffered a wage loss of $4,500.00 per month, for a total of 

$27,000.00. 

In a discovery deposition, the plaintiff testified that his 

employer had continued to pay him his monthly salary of 

$4,500.00 during the six-month period he was unable to work.∗

 

The defendant then filed a motion in limine seeking “to exclude 

any attempted claim by the plaintiff to assert a lost wage claim 

since he continued to receive his salary without reduction and 

without sick leave, vacation or any other collateral source.” 

After argument on the motion, the trial court, the 

Honorable Alan E. Rosenblatt presiding, granted the motion in 

limine. Then, in a trial before a jury, the Honorable Robert B. 

Cromwell, Jr., presiding, the evidence of lost wages was 

excluded and the plaintiff was awarded the sum of $15,000.00 as 

damages for his injuries. The plaintiff moved to set aside the 

verdict for the court’s “refusal to allow the Plaintiff to 

introduce testimony and other evidence of wage loss as proffered 

into the record.” The court denied the motion and entered final 

judgment on the verdict. We awarded the plaintiff this appeal. 

Code § 8.01-35 is pertinent to resolution of the question 

before us. It provides as follows: 

 ∗

 The plaintiff testified later at trial that the funds used 

to pay his salary during his disability consisted of “prior 

years’ earnings” that had been left in “the business account.” 

He said he had “already been taxed on that money.” 

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In any suit brought for personal injury or death, provable 

damages for loss of income due to such injury or death 

shall not be diminished because of reimbursement of income 

to the plaintiff . . . from any other source, nor shall the 

fact of any such reimbursement be admitted into evidence. 

Also pertinent is the collateral source rule. The Court 

first recognized this rule more than one-hundred years ago in 

Baltimore & Ohio R.R. Co. v. Wightman, 70 Va. (29 Gratt.) 431 

(1877), where we held that the trial court did not err in 

refusing to admit evidence offered by the defendant in a tort 

case to show that the wife and children of a deceased had 

received the proceeds from life insurance policies in the sum of 

$5,000.00. We said: “The mere fact that the family of the 

deceased received money from some other source would not justly 

influence the measure of compensation to be made by the 

defendant for injuries attributable to the misconduct of its 

employees and agents.” Id. at 446. 

We recently applied the collateral source rule in Acuar v. 

Letourneau, 260 Va. 180, 188-89, 531 S.E.2d 316, 320 (2000). 

There, we held that the portions of bills for medical expenses 

written off by a plaintiff’s health care providers could not be 

deducted from the amount of damages owed by a tortfeasor. Id.

at 192, 531 S.E.2d at 322. We said that “the injured party 

should be made whole by the tortfeasor, not by a combination of 

compensation from the tortfeasor and collateral sources.” Id.

 

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at 192-93, 531 S.E.2d at 323. See also Acordia of Virginia Ins. 

Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377, 387, 560 S.E.2d 

246, 251 (2002); Schickling v. Aspinall, 235 Va. 472, 474, 369 

S.E.2d 172, 174 (1988); Walthew v. Davis, 201 Va. 557, 563, 111 

S.E.2d 784, 788 (1960); Burks v. Webb, 199 Va. 296, 304, 99 

S.E.2d 629, 636 (1957); Johnson v. Kellam, 162 Va. 757, 764, 175 

S.E. 634, 636 (1934); Owen v. Dixon, 162 Va. 601, 608, 175 S.E. 

41, 43 (1934). 

The plaintiff contends that Code § 8.01-35 is a 

codification of the collateral source rule. The defendant 

contends that it is not. The defendant notes that in Schickling

we said that, under the collateral source 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,” 235 Va. at 474, 369 

S.E.2d at 174 (emphasis added), while Code § 8.01-35 provides 

that such damages “shall not be diminished because of 

reimbursement of income to the plaintiff.” (Emphasis added.) 

The defendant maintains that Code § 8.01-35 “has replaced 

the common law Collateral Source Rule” so that now the focus is 

not upon the receipt of compensation for loss of income but upon 

the reimbursement of income. Here, the defendant says, the 

plaintiff lost no income, there was nothing to be reimbursed 

and, therefore, Code § 8.01-35 is inapplicable. 

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We do not agree that the use of the word “reimbursement” in 

Code § 8.01-35 has the effect of altering the collateral source 

rule as it was enunciated in Schickling. A person reimbursed 

for loss of income certainly receives compensation as a result, 

so if there is any distinction between receiving compensation 

and obtaining reimbursement in the context of the collateral 

source rule, it is a distinction without a difference. 

The defendant also argues that the salary payments made to 

the plaintiff in this case were not from “any other source,” as 

contemplated by Code § 8.01-35. Rather, the defendant says, 

“the Plaintiff continued to receive his same salary of $4,500 

per month from his corporation as an employee of his 

corporation.” 

The defendant misreads Code § 8.01-35. As noted supra, the 

Code section provides that a plaintiff’s claim for loss of 

income shall not be diminished because of reimbursement “from 

any other source.” The defendant would have us read the words 

“from any other source” as meaning a source not collateral to 

the defendant but to the plaintiff, thus excluding any 

compensation received from such a source in determining whether 

a plaintiff’s damages for loss of income are diminished within 

the meaning of Code § 8.01-35. To adopt this meaning would, in 

effect, overrule the previous decisions in which we have applied 

the collateral source rule. 

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Correctly read, the words “from any other source” mean a 

source collateral to the defendant, i.e., a source other than 

the defendant. See Schickling, 235 Va. at 474, 369 S.E.2d at 

174 (compensation from source collateral to the tortfeasor not 

deductible); Kellam, 162 Va. at 764-65, 175 S.E. at 636-37 

(compensation from a source wholly independent of the defendant 

not deductible); Black’s Law Dictionary 256 (7th ed. 1999) 256 

(defining “collateral-source rule” as meaning that compensation 

“from a source independent of the tortfeasor . . . should not be 

deducted from the damages that the tortfeasor must pay).” 

The question then becomes whether the compensation paid to 

the plaintiff by his employer in this case is deductible from 

the damages the tortfeasor owes. Our earlier decisions are 

informative. In Acordia, supra, we quoted with approval Comment 

b to the Restatement (Second) of Torts § 920A (1979): 

If the plaintiff was himself responsible for the benefit, 

as by maintaining his own insurance or by making 

advantageous employment arrangements, the law allows him to 

keep it for himself. If the benefit was a gift to the 

plaintiff from a third party or established for him by law, 

he should not be deprived of the advantage that it confers. 

263 Va. at 387, 560 S.E.2d at 251. 

Although not cited in Acordia, Comment c(2) to the above 

section of the Restatement is also helpful: 

c. The rule that collateral benefits are not subtracted 

from the plaintiff’s recovery applies to the following 

types of benefits: 

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. . . . 

(2) Employment benefits. These may be gratuitous, as in 

the case in which the employer, although not legally 

required to do so, continues to pay the employee’s wages 

during his incapacity. 

 And, in Schickling, we said: 

In the early cases, the collateral compensation involved 

was money paid {to} the plaintiff by his own insurer. 

Later cases have applied the rule to social security 

benefits, public and private pension payments, unemployment 

and workers’ compensation benefits, vacation and sick leave 

allowances, and other payments made by employers to injured 

employees, both contractual and gratuitous. 

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

 Finally, in Phillips v. United States, 182 F. Supp. 312 

(E.D. Va. 1960), the plaintiff was injured in an automobile 

accident and his salary was gratuitously paid by his employer 

during the period of his disability. Interpreting Virginia law, 

the District Court held the plaintiff was “nevertheless, 

entitled to recover for loss of time” from work under the 

collateral source rule. Id. at 317. 

Here, the plaintiff argues that the salary payments made to 

him by his employer were, in fact, from a source collateral to 

the defendant and that under the collateral source rule and Code 

§ 8.01-35, he should have been permitted to submit his wage-loss 

claim to the jury. On the other hand, the defendant argues that 

“this Court has never actually held, as opposed to stated in 

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dicta, that a plaintiff who actually continued to receive a 

salary can make a claim for lost wages.” 

It is true that none of our previous cases involved a 

situation where an employer continued to pay an employee’s 

salary during the period of the employee’s disability. However, 

our earlier references to such a situation were part of the 

rationale for the decisions then made and, therefore, not dicta. 

But if there be any doubt about the matter, we now expressly 

hold that under the collateral source rule and Code § 8.01-35, 

compensation paid by an employer to an employee during the 

period of the employee’s disability is not deductible from the 

quantum of damages the tortfeasor owes. And it follows that 

evidence of the employee’s loss of income is admissible in 

evidence at trial and that, under Code § 8.01-35, the fact of 

any reimbursement to the employee by the employer shall not be 

admitted into evidence. 

But, argues the defendant, the plaintiff was not entitled 

to have his claim submitted to the jury because he continued to 

perform his duties as corporate president and “[t]he corporation 

. . . generated income from the employees who performed drywall 

and plastering services as well as from subcontracting work to 

other entities.” Although the defendant takes considerable 

liberty with the record concerning these matters, we will assume 

for the purpose of discussion that he has correctly stated what 

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the record shows. But whether the plaintiff continued to 

perform his duties as corporate president and the corporation 

generated income from the employees who performed drywall and 

plastering services as well as subcontracting work to other 

entitles is all irrelevant to the question whether the 

plaintiff’s evidence of lost income was properly excluded in the 

trial below. 

The fact remains, and it is undisputed by the defendant, 

that the plaintiff was disabled from performing his drywall 

hanging and plastering duties for six months. Yet his employer 

continued paying him his monthly salary of $4,500.00 

notwithstanding his inability to perform such duties. We hold 

that this constitutes reimbursement “from any other source” 

under Code § 8.01-35 and that reimbursement cannot be used to 

diminish the plaintiff’s “provable damages for loss of income 

. . . nor shall the fact of any such reimbursement be admitted 

into evidence.” 

The plaintiff should have the opportunity to prove his 

damages for loss of income. Accordingly, for the trial court’s 

error in excluding the plaintiff’s evidence on that point, we 

will reverse the judgment appealed from and remand the case for 

a new trial limited to the issue of damages consistent with the 

views expressed in this opinion. Any recovery for such loss 

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shall, of course, be in addition to other damages the jury finds 

the plaintiff suffered for his personal injuries. 

This disposition gives the plaintiff a chance to bring his 

case within the purview of the collateral source rule, which is 

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. 

Schickling, 235 Va. at 474-75, 369 S.E.2d at 174. 

Reversed and remanded. 

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