McKenna v. CarlsonMcKenna v. Carlson
Robin Orosz Sharp and Jennifer Gentry Fernandez of Maher, Gibson, Guiley and Maher, P.A., and Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee/Cross-Appellant.
Joseph H. Williams of Troutman, Williams, Irvin, Green & Helms, P.A., Winter Park, Amicus Curiae for The Academy of Florida Trial Lawyers.
COBB, J.
The defendant, McKenna, appeals from a final order denying her motions for attorney fees and costs based upon offers of judgment made in an action for personal injuries arising out of an automobile accident. The plaintiff, Carlson, has cross-appealed. The crucial issue which bears on this controversy is the determination of the amount of the “judgment obtained” as that term is used in the offer of judgment statute,
Carlson alleged that McKenna negligently struck her motor vehicle, causing personal injury. McKenna denied negligence and asserted that any recovery by Carlson was barred or reduced in accordance with the Florida Motor Vehicle No-Fault Law,
During trial, the parties stipulated that Carlson was covered at the time of the accident by an insurance policy issued by Armor Insurance Company. The parties also stipulated that the Armor policy provided PIP benefits of $10,000.00 with a $2,000.00 deductible, and that PIP benefits had been paid in the sum of $887.48. Two medical bills in the amounts of $150.00 and $441.00 were submitted to the PIP carrier (for payment at 80%) but had yet to be paid. The parties also stipulated that Carlson had health insurance with United Healthcare, which was asserting a lien for payment of medical expenses related to the accident. The parties agreed that the stipulations would be used in connection with a post-verdict setoff against any damage award to Carlson.
The jury returned a verdict awarding the following sums as damages to Carlson:
Past medicals $ 4,043.05 Past wages 250.00 Future medical expenses 5,000.00 Future lost earning capacity 1,250.00 __________ $10,543.05
The jury determined that Carlson did not sustain a permanent injury within a reasonable
McKenna moved for a setoff as to the amount of Carlson‘s PIP benefits paid and payable, including her deductible. She also moved for attorney fees pursuant to
Carlson agreed that the amount of her PIP deductible should be set off from the jury‘s verdict for past medical expenses and lost wages. McKenna argued that the total amount set off against past medical expenses and lost wages should equal the applicable percentages payable as PIP benefits. Carlson, on the other hand, contended that any setoff in addition to her deductible against past medical expenses and lost wages should be limited to the amount of PIP benefits actually paid and not the amount payable at 80% or 60%, respectively. Carlson also argued that under
The trial judge, sua sponte, determined that PIP insurance could not be purchased without collision coverage. The court ruled that the setoff should be reduced by the PIP premium and the collision coverage premium, or a total of $592.00. The court denied any reduction for the premium paid for bodily injury or property damage and for comprehensive coverage. Ultimately, the trial court entered an order stating that the following amounts would be set off against the verdict:
PIP deductible $2,000.00 Setoff against past medical expenses and lost wages 1,360.28 Setoff against future medical expenses 4,000.00 Setoff against future lost wages 750.00 _________ $8,110.28
The court then reduced the setoff by the $592.00 cost of the PIP and collision coverage on the vehicle involved in the accident. Reducing the $8,110.28 setoff by this amount resulted in a net setoff of $7,518.28. The court entered a final judgment in favor of Carlson in the amount of $3,024.77, the difference between the verdict of $10,543.05 and the net setoff of $7,518.28. The court denied McKenna‘s motion for attorney fees and her motion to tax costs.
In considering the setoff issue the initial question is whether
The PIP deductible of $2,000 was correctly ordered set off from the verdict. See Hannah v. Newkirk, 675 So. 2d 112 (Fla. 1996). Likewise, the amount of PIP benefits actually paid (or submitted and
As to set off of future medical expenses and lost wages, Rollins holds that only PIP benefits currently payable or owed by the PIP carrier as a result of expenses incurred by the plaintiff should be set off from a verdict that, as here, includes an award of future medical expenses. Rollins thus rejects the view that the term “payable” as used in
We find that the trial court also erred in reducing the PIP setoff by the amount of the premium paid by the plaintiff for PIP and collision coverage. This reduction was predicated upon
In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant or which are otherwise available to him, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of the claimant or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of his injury. [Emphasis supplied].
McKenna argues that
Given our determinations, the trial court was correct in denying attorney‘s fees. We remand, however, for entry of a corrected final judgment in accordance with the rulings expressed herein.
AFFIRMED; REMANDED FOR ENTRY OF CORRECTED FINAL JUDGMENT.
HARRIS, J., concurs.
PLEUS, J., concurs specially with opinion.
PLEUS, J., concurring specially.
I reluctantly concur because of the recent supreme court decision in Rollins v. Pizzarelli, 761 So. 2d 294 (Fla. 2000).
But for Rollins, I would hold that $4,750 in PIP benefits for future medical expenses and lost wages should be a set-off in computing the “judgment obtained” for purposes of determining entitlement to attorney‘s fees. Indeed, the jury had reduced these future benefits to a liquidated amount in its verdict. This court in Kokotis v. DeMarco, 679 So. 2d 296 (Fla. 5th DCA 1996), rev. denied, 689 So. 2d 1068 (Fla. 1997), determined that, for purposes of computation of the net verdict in an auto personal injury action, “payable” includes expenses not yet incurred resulting from a covered injury, i.e., the award of future medical expenses and lost earnings covered by PIP insurance. Since the amounts were liquidated, they must surely be determined to be “due” for purposes of computing the “judgment obtained.” Once liquidated and included in the computation of the final judgment those benefits are presently due and owing rather than benefits potentially payable in the future.
I agree with Chief Justice Wells in his dissent in Rollins that Kokotis is a correct and sound decision.