Finocchio v. U. S. Fidelity & Guaranty Co.

389 So. 2d 1246 | Fla. Dist. Ct. App. | 1980

BOOTH, Judge.

This cause is before us on appeal from a final declaratory judgment entered in the Circuit Court, Alachua County, holding that appellee, U.S. Fidelity & Guaranty Company, was entitled to a setoff against uninsured motorist coverage provided appellant for personal injury protection benefits and medical payment benefits paid to or on behalf of appellant. We affirm.

The insured, appellant herein, was involved in an automobile accident on February 23, 1979 with an underinsured motorist, whose liability insurer paid the $10,000 policy limits to appellant. Appellant’s own insurer paid him $10,000 in PIP benefits and $5,000 in medical benefits under its policy, which provided for UM coverage of $100,-000. Appellant contends that Florida Statutes § 627.727(1), as amended effective October 1,1979,¹ should be applied retroactively so as to make the setoff improper. Two recent cases from this court hold to the contrary. Carter v. Government Employee’s Insurance Company, 377 So.2d 242 (Fla. 1st DCA 1979, cert. denied, 389 So.2d 1108 (Fla.1980); Hall v. Liberty Mutual Insurance Company, 376 So.2d 1183 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 757 (Fla.1979). We adhere to those opinions, recognizing that a contrary view has been taken in State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

Accordingly, the judgment below is affirmed.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

1 . Chapter 79-241, Laws of Florida: . [0]nly the underinsured motorist’s automobile liability insurance shall be set-off against underinsured motorist coverage . . .