TERRI VAN WINKLE, PA v. Johnston, 1D01-1324.
| Decision Date | 22 April 2002 |
| Docket Number | No. 1D01-1324.,1D01-1324. |
| Citation | 813 So.2d 1065 |
| Parties | TERRI VAN WINKLE, P. A., Appellant, v. Barbara JOHNSTON and Keith Johnston, Appellees. |
| Court | Florida District Court of Appeals |
Fred M. Johnson and William D. Horgan of Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellant.
Marsha L. Lyons of Lyons and Farrar, P.A., Tallahassee, for Appellees.
Appellant Terri Van Winkle, P.A. challenges a final order denying its claim to a setoff for the uninsured motorist benefits received by the appellees, Barbara and Keith Johnston, from their insurer, American Express Assurance Company ("AMEX"). We affirm the trial court's ruling that Van Winkle is not entitled to a setoff.
In 1995, appellee Barbara Johnston was involved in an automobile accident with an underinsured motorist. Ms. Johnston retained Van Winkle to represent her as a plaintiff in a lawsuit for personal injuries arising from the automobile accident, but Van Winkle missed the statute of limitations. After retaining different counsel, appellees instituted a lawsuit against AMEX for benefits under the uninsured motorist policy. Ultimately, AMEX paid the appellees $42,500 in uninsured motorist benefits and assigned its right to seek subrogation from the tortfeasor and/or Van Winkle to the appellees.1 Thereafter, the appellees instituted the instant action against Van Winkle for legal malpractice. The parties have stipulated that if Van Winkle is entitled to a setoff, then appellees shall take nothing by this suit, but if Van Winkle is not so entitled, the appellees shall receive a judgment for $42,500.
Citing Kay v. Bricker, 485 So.2d 486 (Fla. 3d DCA 1986), Van Winkle argues that the appellees stipulated that they incurred damages of $50,500, and because they have received that amount from insurance proceeds, there should be a setoff to prevent a double recovery.
However, in Kay, the defendant was entitled to a setoff on the basis of section 768.041(2), Florida Statutes, and the case did not involve uninsured motorist coverage benefits. Because section 768.041(2) does not authorize a setoff based on uninsured motorist coverage, Kay is not applicable. See Int'l Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972)
We also reject Van Winkle's argument that the setoff is required under section 768.76(1), Florida Statutes (1995). Without addressing the issue of whether a set-off under section 768.76 is appropriate in a legal malpractice action, we conclude that the record does not support considering the insurance proceeds from AMEX as a collateral source. Section 768.76(2)(a)2. defines, in pertinent part, "collateral sources" as "any payments made to the claimant" by "automobile accident insurance that provides health benefits or income disability coverage." The record does not specify whether any of the non-PIP proceeds is for health benefits or loss of earnings, therefore Van Winkle has not demonstrated entitlement to a setoff pursuant to section 768.76.
Therefore, we affirm the trial court's denial of Van Winkle's claim to a setoff on legal malpractice damages it owes to appellees.
Although I agree with the majority's decision to affirm, I am unable to join in part II of its opinion, in which it concludes that the record is insufficient to support an inference that the insurance proceeds paid to the Johnstons can be considered a collateral source for the purpose of a setoff under section 768.76(1), Florida Statutes (1995). As the majority points out, the $42,500 paid to the Johnstons were uninsured motorist (UM) benefits. The majority, however, is of the view that the record is inconclusive as to whether these benefits meet the definition of a collateral source provided in section 768.76(2)(a)(2),2 because there is no showing that they were furnished either as health benefits or for loss of earnings.
In my judgment, once Van Winkle presented evidence that the Johnstons received UM benefits from their insurer, she satisfied the burden of establishing, as a matter of law, that such benefits were from a collateral source, and was not required to produce any additional evidence for such purpose. I nevertheless agree to affirm, because, as I later explain, the payment was from a collateral source for which AMEX had a reimbursement right that precluded any setoff under section 768.76(1).
That the UM benefits paid comply with the statutory definition of collateral source is clearly apparent from a reading of the pertinent statutes outlining the types of benefits for which UM coverage applies. Section 627.727(1), Florida Statutes (1995), for example, reflects that UM coverage is available to those entitled to recover damages because of bodily injury, sickness or disease, including death, caused by the owner or operator of an uninsured motor vehicle. Section 627.727(7) provides that the legal liability of a UM carrier does not include damages in tort for pain and suffering unless the injury is described in section 627.737(2)(a) through (d). Those subsections specify when pain and suffering can be recovered, particularly in cases involving permanent injuries and/or losses of bodily functions. Thus, in order to be entitled to UM benefits under the statutes, Mrs. Johnston had to show that she suffered bodily harm resulting from an accident with an uninsured motorist.
Moreover, AMEX was itself contractually obligated to furnish its insureds with UM benefits. The UM coverage section of the policy provides that it will "pay damages for bodily injury ... caused by an accident." The only other type of damage mentioned in the policy involving UM coverage pertains to care, loss of services or death arising out of bodily injury. Therefore, I consider it abundantly clear that the UM payment the Johnstons received was for health benefits, i.e., bodily injury, and, as such, falls within the definition of a collateral source.
Having so concluded, I would then address Van Winkle's alternative argument that she is entitled to a setoff on the theory that neither the Johnstons nor their insurer, AMEX, have any subrogation rights which would qualify as an exception to the setoff requirement under section 768.76(1),3 because the statute of limitations in...
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9-2 Compensatory Damages
...3d Dist. Ct. App. 1986).[15] Kay v. Bricker, 485 So. 2d 486, 487 (Fla. 3d Dist. Ct. App. 1986).[16] Terri Van Winkle, P.A. v. Johnston, 813 So. 2d 1065 (Fla. 1st Dist. Ct. App. 2002).[17] Terri Van Winkle, P.A. v. Johnston, 813 So. 2d 1065, 1066 (Fla. 1st Dist. Ct. App. 2002).[18] Fla. Stat......