Hall v. Liberty Mut. Ins. Co., II-327
| Decision Date | 12 October 1979 |
| Docket Number | No. II-327,II-327 |
| Citation | 376 So.2d 1183 |
| Parties | Lanny HALL, Appellant, v. LIBERTY MUTUAL INS. CO., Appellee. |
| Court | Florida District Court of Appeals |
Gerald Sohn, Jacksonville, for appellant.
Herbert R. Kanning of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
Contesting the amount of uninsured motorist insurance (UMI) benefits payable by Liberty Mutual to Hall, both appeal from a circuit court judgment awarding Hall $40,426.07. Hall accepted the policy limits of $25,000 in settlement of his personal injury claim against a third person and his insurer. He received $2,000 in medical expense benefits from Liberty Mutual, after litigation. Turning to his own UMI protection, in the policy amount of $50,000, Hall demonstrated through arbitration that his total damages were $55,000. The circuit court awarded Hall an amount calculated as follows:
trial court judgment
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Tortfeasor's insurance limits paid $25,000.00
Less Hall's attorney fees and costs 10,336.07
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Hall's net recovery $14,663.93
Hall's UMI coverage $50,000.00
Less credit for net recovery 14,663.93
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Hall's UMI recovery $35,336.07
Attorney fee and costs 5,090.00
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Total ................................ $40,426.07
Hall asserts that he should have an additional $5,000, plus an attorney fee award on appeal, because his actual damage of $55,000 exceeded his UMI coverage of $50,000, and his $14,663.93 net recovery left $40,336.07 uncollected and, he urges, fully covered by his $50,000 UMI coverage. The insurer, on the other hand, complains of the trial court's subtraction of Hall's attorney fees and costs in calculating his recovery from the tortfeasor, and urges also that $2,000 medical expense payments by it to Hall should further reduce the amount of UMI coverage payable.
Under the principles of the Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), Jones v. Travelers Indemnity Co. of Rhode Island, 368 So.2d 1289 (Fla.1979), and Masters v. Lester, 366 So.2d 471 (Fla. 1st DCA 1979), Hall's UMI coverage is the amount by which his damage or his UMI limits, whichever is less, exceeds the amount recovered from the tortfeasor's insurer. Nor is Hall entitled to subtract his attorney fees and costs incurred in producing the $25,000 settlement, when calculating the amount of his recovery from the tortfeasor. This is not a case in which Hall produced a settlement fund from which his own insurer sought subrogation and reimbursement. See Government Employees Ins. Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976); Central National Ins. Group v. Hotte, 312 So.2d 235 (Fla. 1st DCA 1975).
On Liberty Mutual's appeal, we find that the maximum UMI coverage of $50,000 was reduced not only by the amount...
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