Progressive County Mutual Insurance Co. v. Delgado, 335 S.W.3d 689

Delgado sued Bailey and Progressive for negligence and past medical expenses, among other damages, arising from a motor vehicle accident.
Bailey settled Delgado's claim for policy limits of $25,000; Progressive remained as underinsured motorist insurer.
Delgado had previously received $2,525 in PIP benefits from Progressive; trial occurred in June 2009.
Jury awarded Delgado medical expenses totaling $52,968.39 and additional damages for pain, impairment, and earning capacity.
Delgado moved for entry of judgment using a calculation that deducted PIP and Bailey settlement, then added prejudgment interest; Progressive moved for a take-nothing judgment under Tex. Civ. Prac. & Rem. Code § 41.0105.
The trial court admitted trial exhibits showing the actual payments by Avantra on Delgado’s behalf were far less than billed amounts, indicating remaining balances could not be collected.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 41.0105 limits recovery to amounts actually paid or incurred by Delgado or on his behalf.	Delgado: damages should reflect amounts actually paid or incurred; providers’ write-offs reduce collectible amounts.	Progressive: only amounts actually paid or incurred are collectible; här limits lower than jury awards.	The court held § 41.0105 limits recovery to amounts actually paid or incurred; damages exceedables are offset, yielding take-nothing judgment.

Matbon, Inc. v. Gries, 288 S.W.3d 471 (Tex.App.-Eastland 2009) (written-offs not medical expenses actually incurred)
Garza de Escabedo v. Haygood, 283 S.W.3d 3 (Tex.App.-Tyler 2009) (proper measure of damages; § 41.0105 application)
Mills v. Fletcher, 229 S.W.3d 765 (Tex.App.-San Antonio 2007) (medical expenses written off if not incurred or paid)
Tate v. Hernandez, 280 S.W.3d 534 (Tex.App.-Amarillo 2009) (§ 41.0105 interpretation)