This blog is provided to aid in understanding set-offs in the context of a line of cases starting with Galante v. USAA Casualty Ins. Co., 695 So.2d 456 (Fla. 4th DCA 1997). The following cases cover the issue of set-offs with the Galante twist.
- Galante v. USAA Casualty Ins. Co., 695 So.2d 456 (Fla. 4th DCA 1997),
- State Farm Mutual Auto. v. Vecchio, 744 So.2d 570 (Fla. 2d DCA. 1999),
- Somoza v. Allstate Indem. Co., 929 So.2d 702 (Fla. 3d DCA. 2006),
- Allstate Ins. Co. v. Campbell, 842 So.2d 1031, (Fla. 2d DCA 2003),
- Pate v. Renfroe, 715 So.2d 1094, (Fla. 1st DCA 1998),
- Dolgin v. Dombkowski, 942 So.2d 1 (Fla. 5th DCA 2006)
- Allstate Ins. Co. v. Piatt, 417 So.2d 705 (Fla. 3d DCA 1982)
- Geico Gen. Ins. Co. v. Cirillo-Meijer, 50 So. 3d 681, 682-85 (Fla. 4th DCA 2010)
- Forest v. Sutherland, 110 So. 3d 525, 526 (Fla. 4th DCA 2013)
NO SET OFF of prior recovery when categories of damages change
The plaintiff, Christopher Galante, settled with the at-fault driver’s liability insurance carrier for policy limits of $25,000. Mr. Galante then sued his Uninsured Motorist carrier for non-economic damages only. The Fourth District Court of Appeal held that when a plaintiff receives an undifferentiated bodily injury settlement, it must be deemed to extend to both economic and non-economic losses. If the plaintiff then limits their claims at trial against the Uninsured Motorist carrier so that the jury is not asked to rule on the full extent of the plaintiff’s economic losses along with their non-economic losses, there would be no way of knowing whether the award duplicates benefits already recovered as a matter of law. Hence, the Uninsured Motorist carrier is not entitled to a set off for the Bodily Injury recovery.
In Vecchio, also an Uninsured Motorist claim, the Second District Court of Appeal followed Galante indicating that when a plaintiff submits only one category of damages in the Uninsured Motorist claim, Galante applied.
In Somoza, the court of the Third District Court of Appeal indicated that in the event a party suing its Uninsured Motorist carrier requests the jury return a verdict solely for one portion of damages, thereby ensuring there would be no duplication of a prior settlement with the 3rd party Bodily Injury carrier; there would be no set off of the Bodily Injury settlement. This is logical in that the jury award would not be duplicating the benefits received from the 3rd party Bodily Injury settlement; the jury would not be resolving an identical claim therefore there would be no duplication of the BI settlement and thus, no set off.
In Campbell, the Second District Court of Appeal focused on how the jury was instructed on BOTH future medicals AND FUTURE LOST EARNINGS and indicated that a party has the ability to request that the jury return a verdict solely for one portion of damages, thereby ensuring there would be no duplication of the settlement with the 3rd party Bodily Insurance carrier.
In Pate, the First District Court of Appeal held that the purpose of a set off is to avoid duplication of benefits. The court cited to Galante and Allstate Ins. Co. v. Piatt, 417 So.2d 705 (Fla. 3d DCA 1982). It is the burden of the party seeking the set-off to prove the existence of an actual duplication of benefits in fact.
In Dolgin, the 5th DCA ruled that burden of proof rested upon the Defendant to prove the right of a collateral source reduction.
In Piatt, the Third District Court of Appeal held that there had been no demonstration of duplication of benefits and therefore the trial court had not erred in denying a PIP set off when the Plaintiff had the jury consider future lost wages but not past lost wages that may or may not have been paid by PIP. In the event the jury will not be determining absolutely the same issues as were settled in the prior undifferentiated settlement, pursuant to Galante, when a settlement is undifferentiated, you cannot as a matter of law, prove how much was allocated to each item.
In Cirillo-Meijer, the court again held that when the Plaintiff does not submit all damages to the jury that were settled in a prior settlement then as a matter of law, it is impossible to determine whether the undifferentiated settlement represented a duplication of benefits.
Of course, there are avenues outside the context of the Galante line of cases to avoid set offs. When a plaintiff receives a jury award in a negligence action and the defense attorney wants his usual collateral source set off for PIP benefits received, remind them that the plaintiff receives a deduction from the set off for any monies paid by the plaintiff to obtain the PIP coverage.
According to Goble v. Frohman, 848 So.2d 406 (Fla. Dist. Ct. App. 2003) contractual discounts (the difference between the amounts billed by medical providers and the amounts paid to medical providers pursuant to contractual fee schedules) for health insurance are considered “payments” made on the plaintiff’s behalf for purposes of collateral source setoff. However, since the plaintiff paid a premium for his/her health insurance coverage to secure his/her right to any collateral source benefit which the plaintiff received as a result of his/her injury, such reduction shall be off set to the extent of any amounts that have been paid or contributed for or on behalf of the plaintiff. See Section 768.76(1) below:
Section 768.76(1) provides that any collateral source reduction of damages
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 the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.
In summary, think outside the box! Consider what damages are really important to pursue when bringing an Uninsured Motorist claim? Is future wage loss really important to bring? Do insurance limitations make pursuing all your damages meaningless? By framing your damages so they are not duplicative of the damages in the underlying Bodily Injury settlement, you can avoid a set off and maximize your recovery.