LANNY HALL, APPELLANT,
v.
LIBERTY MUTUAL INS. CO., APPELLEE
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Hall appealed a trial court's underinsured motorist (UMI) insurance settlement, claiming he was owed more benefits from Liberty Mutual. The appellate court held that UMI coverage equals the difference between damages (or UMI limits, whichever is less) and recovery from the tortfeasor's insurer, and that medical expense benefits paid by the insurer reduce available UMI coverage to avoid duplication.
UMI coverage equals the amount by which the insured's damages (or UMI policy limits, whichever is less) exceeds recovery from the tortfeasor's insurer. Attorney fees and costs incurred in obtaining the tortfeasor settlement should not be subtracted from the recovery amount. Medical expense benefits paid by the insurer reduce available UMI coverage to the extent they would otherwise duplicate UMI benefits. Hall's proper recovery is $28,090.
[1] Uninsured Motorist (UM) coverage is calculated as the amount by which an insured's damages or UM limits, whichever is less, exceeds the amount recovered from the tortfeas…
[2] An insured is not entitled to subtract attorney fees and costs incurred in obtaining a settlement from the tortfeasor when calculating the amount of recovery from the tor…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the foundational formula for calculating UMI coverage based on principles from Dewberry, Jones, and Masters.
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Join FLexlaw to unlock all legal intelligenceHall was injured in an accident and recovered $25,000 from the tortfeasor's insurer. He had $50,000 in UMI coverage with Liberty Mutual, which also pa…
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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 available from the tortfeasor but also by the $2,000 medical expense benefits provided by Liberty Mutual. UMI benefits are not awarda-ble to the extent they duplicate “benefits available to an insured under any . . . automobile medical expense coverages . . . .” Section 627.727, Florida Statutes (1977).
Hall’s reply brief makes representations dehors the record concerning the issue or renewal date of the Liberty Mutual policy, suggesting that present section 627.727 is inapplicable. We disregard those representations and treat the case as it apparently was treated below, as one in which the task is to compute the available UMI benefits which are “excess over” and do not “duplicate” benefits otherwise available. Disregarding Hall’s representations, we avoid the latent question, not briefed by the parties, of whether Hall was in fact injured by an “uninsured motorist.” See Section 627.-0851, Florida Statutes (1970 Supp.).
Hall’s proper recovery in this case is: Hall’s UMI coverage $50,000 Less Hall’s recovery from tortfeasor 25.000 $25,000 Less auto medical expense benefits 2,000 $23,000 Plus trial court fees and costs 5.090 Total payable.$28,090 Hall’s motion for appellate fees is DENIED. The judgment is REVERSED and the case REMANDED for entry of a judgment for Hall in the amount of $28,090. BOOTH, J., and KLEIN, HERBERT M., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bruno v. Travelers Ins. Co., 386 So. 2d 251 (Fla. 3d DCA 1980)…v. Travelers Indemnity Co. of Rhode Island, 368 So. 2d 1289 (Fla.1979); Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978); State Farm Mutual Auto. Ins. Co. v. Napoli, 380 So. 2d 1325 (Fla. 4th DCA 1980); Hall v. Liberty Mutual Ins. Co., 376 So. 2d 1183 (Fla. 1st DCA 1979). On the merits, the judgment below was therefore obviously correct. Even Bruno does not dispute this conclusion. Relying on Travelers Ins. Co. v. Allen, 356 So. 2d 1287 (Fla. 3d DCA 1978), cert. denied, 364 So. 2d 893 (Fla.1978)…
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Jacques Lobry v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 877 (Fla. 5th DCA 1981)…iple of “equitable distribution” in the context of set-offs, although logically the principle appears applicable. State Farm Mutual Automobile Insurance Company v. Napoli, 380 So. 2d 1325 (Fla.4th DCA 1980); Hall v. Liberty Mutual Insurance Company, 376 So. 2d 1183 (Fla.1st DCA 1979). The rationale stated by these cases is that Dewberry mandates that the tortfeasor payment be set-off “in gross”; the “philosophy” of the uninsured motorist statute prevents the allowance of set-offs for fees and expenses in suing…
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State Farm Mut. Auto. Ins. Co. v. Fanny Napoli and Edward Napoli, 380 So. 2d 1325 (Fla. 4th DCA 1980)…the coverage of the tortfeasor be considered as a complete set-off equal to the full amount paid. To the same effect, see Jones v. Travelers Indemnity Company of Rhode Island, 368 So. 2d 1289 (Fla.1979). In Hall v. Liberty Mutual Insurance Company, 376 So. 2d 1183 (Fla. 1st DCA 1979), the court was faced with an almost identical situation and in a detailed opinion ruled that the set-off was to be in the gross amount of the coverage paid by the tort-feasor’s carrier, rather than in the net amount received by t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978)
- Gov't Emps. Ins. Co. v. Graff, 327 So. 2d 88 (Fla. 1st DCA 1976)
- Cent. Nat'l Ins. Grp. v. Lindy A. Hotte, 312 So. 2d 235 (Fla. 1st DCA 1975)
- Aubry v. Larson, 368 So. 2d 1289 (Fla. 1979)
- Jones v. Travelers Indem. Co. OF R.I., 368 So. 2d 1289 (Fla. 1979)
- Masters v. Latona Lester, 366 So. 2d 471 (Fla. 1st DCA 1979)