HARRY GAINES, APPELLANT,
v.
INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE
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Harry Gaines appealed the dismissal of his derivative claim for loss of consortium under his wife's uninsured motorist (UM) insurance policy. The court held that prior payments under personal injury protection (PIP) and a UM arbitration award must be offset against the policy's $10,000 UM limit, leaving no remaining coverage for Gaines's derivative claim.
No. The court held that all amounts previously paid under PIP benefits and the UM arbitration award must be offset against the $10,000 policy limit under the policy's 'limits of liability' provision, leaving no remaining coverage available for the derivative claim. The UM coverage limit has been exhausted.
[1] Payments made under uninsured motorist (UM) coverage are reduced by all sums previously paid under the policy for the same bodily injury.
[2] Amounts paid under Personal Injury Protection (PIP) benefits must be set off from the uninsured motorist (UM) policy limits.
Previewing 2 of 3 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“the amounts previously paid under the policy reduce the uninsured coverage available under the policy”
Establishes the central principle that prior payments offset remaining UM coverage
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Join FLexlaw to unlock all legal intelligenceGaines's wife was injured in an accident and received an arbitration award of $6,500 under UM coverage in 1976. She also received PIP benefits totalin…
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HENDRY, Judge.
This appeal arises out of a derivative claim filed in 1977 by appellant; the trial court dismissed the complaint. The record reflects that appellant’s wife received an arbitration award in the amount of Six Thousand, Five Hundred Dollars ($6,500.00) in 1976 under the UM coverage, and that a final judgment had also been entered in a personal injury protection (PIP) case brought by his wife, arising out of the same accident.1 Under the provisions of the subject policy, Ten Thousand Dollars ($10,-000.00) is the UM policy limit for a personal injury claim and a derivative claim. See, Biondino v. Southern Farm Bureau Casual ty Insurance Company, 319 So. 2d 152 (Fla. 2d DCA 1975), cert. den. 330 So. 2d 14 (Fla.1976).
Appellant herein contends that there remains as a balance on the policy’s $10,000.00 UM limit the sum of $3,500.00, upon which he has a right to make a derivative claim for loss of his wife’s services, consortium, companionship and society. We cannot agree.
Looking to the holding of our sister court in Masters v. Lester, 366 So. 2d 471 (Fla. 1st DCA 1979), whereby it was determined that under a certain “limits of liability” provision (which is identical to the provision in the subject policy),2 we see that the amounts previously paid under the policy reduce the uninsured coverage available under the policy. See also, Aetna Casualty and Surety Company v. Ilmonen, 360 So. 2d 1271 (Fla. 3d DCA 1978) and Dewberry v. Auto Owners Insurance Company, 363 So. 2d 1077 (Fla.1978).
Accordingly, in the case sub judice the total amount paid under the PIP benefits, as well as the UM arbitration award of $6,500.00, must be set off from the $10,-000.00 policy limits, as dictated by the “limits of liability” provision. Clearly, the UM coverage limit has been exhausted.
Affirmed.
. Actually, the wife had previously received PIP payments of $1,444.42 and the PIP judgment awarded $3,150.54.
. “Limits of Liability — Coverage D
“(b) any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is insured under this coverage shall be reduced by:
“(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the bodily injury liability coverage of the policy . . . ”
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Citator
Cited By
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State Farm Mut. Auto. Ins. Co. v. Gerhard S. Bergman, 387 So. 2d 494 (Fla. 5th DCA 1980)…preted to allow a set-off. Carter v. Government Emp. Ins. Co.; Masters v. Lester, 366 So. 2d 471 (Fla. 1st DCA 1979); Evans v. Florida Farm Bureau Cas. Ins. Co., 355 So. 2d 149 (Fla. 1st DCA 1978). See also Gaines v. Industrial Fire & Cas. Ins. Co., 378 So. 2d 100 (Fla. 3d DCA 1979); Florida Farm Bureau Cas. Co. v. Andrews, 369 So. 2d 346 (Fla. 4th DCA 1978), cert. denied, 381 So. 2d 764 and 766 (Fla.1980); Aetna Cas. & Sur. Co. v. Ilmonen, 360 So. 2d 1271 (Fla. 3d DCA 1978). In Carter, the court held Chapte…
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Riley W. MacKoul v. The Fid. & Cas. Co. OF NEW York, 402 So. 2d 1259 (Fla. 1st DCA 1981)…alty Insurance Co., 319 So. 2d 152 (Fla.2d DCA 1975), the court reached the same conclusion, based on similar facts, as to the limits of uninsured motorist coverage afforded by the policy. See also Gaines v. Industrial Fire & Casualty Insurance Co., 378 So. 2d 100 (Fla.3d DCA 1979). The limits of liability under the policy are not affected by the number of causes of action that might accrue from the bodily injury of a single person. The trial judge correctly found that the policy was unambiguous and that it…
Authorities Cited
- Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla. 1978)
- AETNA Cas. & Sur. Co. v. Ilmonen, 360 So. 2d 1271 (Fla. 3d DCA 1978)
- Biondino v. S. Farm Bureau Cas. Ins. Co., 319 So. 2d 152 (Fla. 2d DCA 1975)
- Masters v. Latona Lester, 366 So. 2d 471 (Fla. 1st DCA 1979)