Allstate Ins. Co. v. Morales, 88-567
| Decision Date | 23 November 1988 |
| Docket Number | No. 88-567,88-567 |
| Citation | 13 Fla. L. Weekly 2568,533 So.2d 952 |
| Parties | 13 Fla. L. Weekly 2568 ALLSTATE INSURANCE COMPANY, Appellant, v. Norma I. MORALES, Appellee. |
| Court | Florida District Court of Appeals |
Janet DeLaura Harrison of Smalbein, Johnson, Rosier, Bussey, Rooney & Ebberts, P.A., Rockledge, and Robert W. Mixson of Smalbein, Johnson, Rosier, Bussey, Rooney & Ebbetts, P.A., Orlando, for appellant.
Thomas M. Ervin, Jr. and Robert M. Ervin, Jr., of the Law Firm of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Maher, Overchuck & Langa, P.A., Orlando, for appellee.
The issue presented on this appeal is whether under section 627.727(1), Florida Statutes (1983) 1, an underinsured motorist carrier is entitled to set off the monies paid by the liability carrier for the tortfeasor from the verdict rendered in favor of the plaintiff under the underinsured motorist (UM) coverage. In March, 1984, the appellee, Morales, was injured in an auto accident caused by William Oates, who is not a party to this appeal. Morales was paid $10,000.00 (the policy limit) by Oates's liability insurer, State Farm Insurance Company. Morales brought suit against Allstate for underinsured motorist coverage benefits under a policy issued to Morales's sister, with whom she resided. The policy provided underinsured motorist coverage of $100,000.00 per person, $300,000.00 per accident.
Allstate moved for a set-off under section 627.727(1) seeking a reduction from any judgment rendered in Morales's favor by the amount of the tortfeasor's liability limits already paid--$10,000.00. Allstate also requested that the set-off occur after the verdict and not before the jury, to which request Morales agreed.
The jury was not informed of the $10,000.00 payment made to Morales, and the judge instructed the jury to award the total amount of any damages sustained by Morales which were legally caused by the accident in question and which were not duplicated by benefits available from other sources. The jury returned a verdict in the amount of $42,500.00 in favor of Morales, but determined her to be 77% comparatively negligent leaving her a net verdict of $9,775.00. Morales moved for entry of final judgment in this amount, and Allstate moved for the $10,000.00 set-off, which would effectively preclude Morales from recovering underinsured motorist benefits from Allstate.
The trial court denied Allstate's motion for a set-off on the ground that Allstate failed to show a duplication of benefits as thought to be required under the rationale of Hartford Accident Indemnity Company v. Lackore, 408 So.2d 1040 (Fla.1982), Bergmann v. Sentry Insurance, 422 So.2d 972 (Fla. 4th DCA 1982), and Lobry v. State Farm Mutual Automobile Insurance Company, 398 So.2d 877 (Fla. 5th DCA 1981). Lackore and Bergmann stand for the proposition that under section 627.727(1) (1983) an underinsured motorist carrier is not entitled to a set-off of the amounts paid to the plaintiff under non-liability insurance coverage absent a showing that recovery under the underinsured motorist coverage would be duplicative of the items of damage already compensated by non-liability benefits. Lackore and Bergmann are inapplicable here where Allstate seeks a set-off equal to the amount paid to Morales under the tortfeasor's liability coverage.
The purpose behind underinsured motorist coverage is to compensate the plaintiff, Morales, for a deficiency in the tortfeasor's personal liability insurance coverage. Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978). Section 627.727(1) was only intended to allow the insured the same recovery which would have been available to her had the tortfeasor been insured to the same extent as the insured herself. Id.; Lobry v. State Farm Mutual Auto Insurance Company, 398 So.2d 877 (Fla. 5th DCA 1981).
Morales argues that Allstate has overlooked the fact that there are fourteen discrete elements of "non-ecomonic damage" alone for which an injured person may recover as revealed by ...
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