Terry E. Dees was injured in an automobile collision. He and his wife, Freta G. Dees, sued the other driver, Shirley A. Logan, seeking, among other things, punitive damages. The jury awarded Mr. Dees $130,000 for past lost wages, $4,939 for reimbursement of COBRA payments, and $10,000 for past pain and suffering, and Mrs. Dees $5,000 for loss of consortium. In a post-trial motion, State Farm Mutual Automobile Insurance Company (“State Farm”) argued that the Dees could not recover under its uninsured motorist policy (the “UM policy”). State Farm specifically claimed that because Mr. Dees had already received $83,200 in workers’ compensation and $70,056 in social security disability benefits, and because an unallocated $25,000 pretrial settlement had been paid to the Dees by Logan’s liability insurer, State Farm could use such payments to offset its obligation to pay the damages awarded by the jury. The trial court granted the motion and ordered that the Dees take nothing from State Farm or Logan.
On appeal, the Dees claim that the trial court erred by (i) reducing Mr. Dees’ recovery under the UM policy in violation of OCGA § 33-7-11 (a) (1), (ii) using the amount of workers’ compensation and other benefits received by Mr. Dees as a set-off against all of Mr. Dees’ damages (as opposed to using such benefits only as a set-off against his damages for past lost wages), and (iii) failing to properly set off the $25,000 pretrial settlement against each element of the jury’s special verdict. The Dees also contend that the trial court erred in granting State Farm’s motion in limine to exclude evidence that Logan was driving under the influence of crack cocaine and that she may have intentionally crossed over the centerline when she collided with Mr. Dees’ vehicle, which ultimately precluded the Dees’ claim for punitive damages.
As explained more fully below, we discern no error as to the trial court’s grant of State Farm’s motion in limine, and therefore affirm the ruling of the trial court in that regard. We conclude, however, that the trial court erred in part by using the benefits paid to Mr. Dees to set off the jury’s award for damages other than those for past lost wages, and further erred by failing to properly allocate the $25,000 pretrial settlement to evenly reduce each element of the jury’s special verdict. We therefore reverse those rulings of the trial court and remand with direction.
1. The Dees claim that the trial court erred in granting State Farm’s motion in limine to exclude evidence that Logan was driving under the influence and that she intentionally crossed the centerline before colliding with the Dees’ vehicle. Specifically, the Dees argue *838 that the jury was entitled to consider Logan’s entire act of negligence because such evidence was probative of their entitlement to punitive damages. We disagree.
“Atrial court’s ruling on a motion in limine is reviewed for abuse of discretion. [Cits.]”
Forsyth County v. Martin,
The Dees correctly argue that the excluded evidence would have constituted an aggravating circumstance relevant to the issue of punitive damages.
See Moore v. Thompson,
Before trial, the Dees negotiated the partial settlement with Logan and her insurer. Pursuant to OCGA § 33-24-41.1, this settlement released Logan from liability except to the extent other insurance coverage was available to cover the Dees’ claims. The insurer served in this action, State Farm, was not liable to pay punitive damages because it was a UM insurer. See
Roman v. Terrell,
2. The Dees contend that the trial court erred in reducing their damages by setting off the workers’ compensation, social security disability, and other benefits paid to Mr. Dees against any portion of *839 the special verdict of the jury. In this regard, the Dees claim that OCGA § 33-7-11 (a) (1) requires that UM insurance pay, within applicable policy limits, “all sums which [the] insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. . . .” We disagree.
Here, the UM insurance policy expressly provides “any amount payable under this coverage shall be reduced by any amount paid or payable to or for the
insured',
(a) under any workers’ compensation, disability benefits or similar law.” (Emphasis in original.) In Georgia, UM insurance policy language that provides for a set-off for damages awarded to the extent that workers’ compensation has paid benefits to the insured is proper.
See Ferqueron v. State Farm &c. Ins. Co.,
Thus, to the extent that the Dees argue that the UM statute prohibits any reduction of damages on account of workers’ compensation and other benefits payable to Mr. Dees, such argument is without merit.
3. The Dees contend in the alternative, however, that if a set-off against the entirety of the jury’s verdict is not erroneous as violative of OCGA § 33-7-11 (a) (1), then such a set-off is nevertheless erroneous to the extent that the benefits are used to reduce the jury’s damages award for damages other than those for past lost wages. We agree.
As stated in Division 2, supra, UM insurance policy provisions may properly allow for a set-off for damages to the extent that benefits have been paid to the insured. See
Ferqueron,
supra,
4. The foregoing stated, however, the Dees’ damages must still be calculated upon a consideration of the unallocated $25,000 pretrial settlement. In this regard, the Dees correctly contend that the trial court erred in failing to allocate the $25,000 pretrial settlement against the special verdict on a pro rata basis.
“Because the settlement was unallocated at the time the verdict was returned, the full amount of the settlement must be set off from the entire jury verdict.” (Footnote omitted.)
Ga. Pipe Co. v. Lawler,
To establish the pro rata amount of each damages award, the trial court should divide the entire amount of the jury award minus the unallocated settlement ($149,939-$25,000 = $124,939) by the entire amount of the jury award ($149,939). The resulting quotient (0.8332655), a number representing the entire jury award as reduced by the settlement in proportion to the entire jury award, is then multiplied by each damages award to calculate the damages pro rata. Here, this results in damages awards, pro rata, of $108,324.52 2 for past lost wages, $4,115.50 3 for COBRA reimbursement, $8,332.66 4 for pain and suffering, and $4,166.33 5 to Mrs. Dees for loss of consortium. Since, as we discussed in Divisions 2 and 3, State Farm *841 is entitled to a set-off against the jury’s award for past lost wages, and since the Dees have already received benefits for past lost wages in excess of the jury’s award for past lost wages calculated pro rata, the damages award for past lost wages is zero. The case is remanded with direction that the trial court enter a judgment against State Farm consistent with this decision.
Judgment affirmed in part and reversed in part and case remanded with direction.
Notes
To the extent that the Dees also contend that the trial court erred in granting the motion in limine because the excluded evidence was relevant to the issue of proximate cause, the Dees can show no harm because the jury found for the Dees on the issue of liability. “It is axiomatic in Georgia appellate law that an appellant, to secure a reversal, must show not only error but harm.” (Citation and punctuation omitted.)
Cornelius v. Lawrence,
$130,000 x 0.8332655
$4,939 x 0.8332655
$10,000 x 0.8332655
$5,000x0.8332655