ALLSTATE INS. CO., INC. v. Campbell

• Decision Date: 23 April 2003
• Docket Number: No. 2D01-4618.,2D01-4618.
• Parties: ALLSTATE INSURANCE COMPANY, INC., Appellant/Cross-Appellee, v. Samuel CAMPBELL and Margaret Campbell, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

842 So.2d 1031

ALLSTATE INSURANCE COMPANY, INC., Appellant/Cross-Appellee, v. Samuel CAMPBELL and Margaret Campbell, Appellees/Cross-Appellants.

No. 2D01-4618.

District Court of Appeal of Florida, Second District.

April 23, 2003.

Robert D. Grode, II, and Sidney M. Crawford, of Sidney M. Crawford, P.A., Lakeland, for Appellant/Cross-Appellee.

Michael V. Laurato, of Austin & Laurato, Tampa, and Raymond T. Elligett, Jr., and Amy S. Farrior, of Schropp, Buell & Elligett, P.A., Tampa, for Appellees/Cross-Appellants.

DAVIS, Judge.

Allstate Insurance Company, Inc., challenges the final judgment finding in favor of Samuel Campbell and Margaret Campbell and awarding each of them separate damage amounts for injuries they suffered in a motor vehicle accident. The Campbells' claims were based on an underinsured motorist policy issued to them by Allstate. Allstate argues that the trial court erred in refusing to offset the Campbells' individual jury verdicts by the amount of the recovery each of them received from the tortfeasor. The Campbells cross-appeal the judgment, arguing that the verdicts were inadequate as the jury's failure to award any noneconomic damages was contrary to the evidence presented at trial. Because we agree with both parties, we reverse the final judgment and the damages awards and remand for a new trial on past noneconomic damages.

The Campbells were involved in an accident in which Todd Bosselman negligently ran a red light and struck the Campbells' vehicle. Bosselman's liability coverage was limited to $10,000 per person and $20,000 per accident. After both Mr. and Mrs. Campbell settled with Bosselman's carrier for policy limits, they each proceeded to trial against Allstate on the underinsured motorist policy, requesting both economic and noneconomic damages. Prior to trial, the parties agreed that the trial court would credit personal injury protection benefits and automobile medical payment benefits against the verdict posttrial. The trial court granted the Campbells' pretrial motion in limine to preclude admission of the Bosselman settlement.

At trial, the Campbells presented evidence that each had suffered permanent injuries, that each had experienced pain and inconvenience, and that each had incurred hospital and other medical expenses. The trial court instructed the jury regarding both economic and noneconomic damages. Separate verdict forms for each of the Campbells were submitted to the jury. Each verdict form asked the jury to make specific findings as to the damages to be awarded for past and future economic damages (medical expenses and lost earnings), past and future noneconomic damages (pain and suffering), and past and future loss of consortium.

During closing argument, the Campbells' attorney invited the jury to concentrate on the needed medical expenses and to give less attention to the issues of pain and suffering and loss of consortium. The jury found that Mr. and Mrs. Campbell each suffered permanent injuries and awarded damages to each of them for both past and future economic losses (medical expenses and lost earnings). However, for each of the Campbells, the jury entered a zero verdict for past noneconomic losses and loss of consortium, as well as for future noneconomic losses and loss of consortium.

Following the trial, after the trial court set off the personal injury protection benefits and medical payment benefits previously received by the Campbells, the court refused to set off the $10,000 that each had received from the Bosselman settlement, finding that the language of section 627.727(1), Florida Statutes (1999), precluded the setoff. The trial court erred in this statutory interpretation. The relevant statutory language reads: "The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance." Id. (emphasis added). This portion of the statute deals not with posttrial setoff, however, but with the requirement that underinsured coverage must be offered to a person buying liability coverage and that the underinsured coverage offered must not be reduced by the amount of other liability insurance. Accordingly, the language in this section refers to what must be offered or made available to the purchaser; it has nothing to do with posttrial setoff.

The section that does provide for posttrial setoff is section 627.727(6)(t), which states: "The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist's liability policy in all cases to which this subsection applies...." § 627.727(6)(c), Fla. Stat. (1999). However, the underinsured motorist carrier is only entitled to this credit if the underinsured award duplicates the benefits recovered from the tortfeasor's liability insurance. State Farm Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999);...