STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
FANNY NAPOLI AND EDWARD NAPOLI ET AL., APPELLEES
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State Farm sought reversal of an uninsured motorist coverage arbitration award and the trial court's partial set-off ruling. The appellate court reversed, holding that State Farm was entitled to a full $25,000 set-off against the uninsured motorist coverage equal to the amount paid by the tortfeasor's insurance carrier, consistent with Florida statutory law and binding precedent.
State Farm was entitled to a full $25,000 set-off equal to the gross amount paid by the tortfeasor's insurer under Florida Statutes Section 627.727(1), requiring reversal of the trial court's partial set-off ruling. The awards of attorneys' fees and interest were vacated and remanded for recalculation consistent with the full set-off.
[1] An uninsured motorist carrier is entitled to a set-off equal to the full amount paid by the tortfeasor's liability insurer, not the net amount received by the injured pol…
[2] A trial court errs in reducing an uninsured motorist carrier's set-off by the amount of the policyholder's attorneys' fees and costs of collection.
Previewing 2 of 4 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“Section 627.727(1), Florida Statutes (1975), intended that the coverage of the tortfeasor be considered as a complete set-off equal to the full amount paid.”
Establishes the legal standard for set-off in uninsured motorist claims under Florida law
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Join FLexlaw to unlock all legal intelligenceFanny and Edward Napoli were injured in an automobile accident with a tortfeasor insured by Central National Insurance Company with $25,000 coverage. …
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BERANEK, Judge.
Appellant, State Farm Mutual Automobile Insurance Company, seeks reversal of an uninsured motorist coverage award. We reverse. Appellee, a State Farm policyholder, was injured in an automobile accident with a tortfeasor who had coverage of $25,000 with Central National Insurance Company. Appellee had uninsured motorists protection coverage under two State Farm policies. These two policies provided uninsured motorists coverage of $50,000. A ruling to this effect was previously appealed to this Court by State Farm and affirmed. State Farm Mutual Automobile Insurance Company v. Napoli, 340 So. 2d 935 (Fla. 4th DCA 1976).
Pursuant to an order by the trial court arbitration occurred on the uninsured motorists claim. The arbitration award set damages at $68,500. The appellee accepted $25,000 from the tortfeasor’s insurance carrier and pursued her uninsured motorist coverage against her own carrier. State Farm offered $25,000 in satisfaction of the uninsured motorist claim and appellee rejected this payment asserting a right to $50,000 in coverage.
Eventually, State Farm moved to modify the arbitration award contending that it was entitled to a full $25,000 set-off equal to the amount paid by Central National. Appellee moved to confirm the award, or, by equitable distribution, to determine State Farm’s claimed set-off. The trial court determined that State Farm was not entitled to a full $25,000 set-off but was instead entitled to set-off the Central National payment of $25,000 less appellee’s attorneys’ fees and costs of collection. In doing so the trial court erred. Dewberry v. Auto-Owners Insurance Company, 363 So. 2d 1077 (Fla.1978), specifically holds that Section 627.727(1), Florida Statutes (1975), intended that 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 tortfeasor’s carrier, rather than in the net amount received by the injured policyholder. We consider Hall v. Liberty Mutual Insurance Company, supra, to be disposi-tive.
The trial court also awarded attorneys’ fees and interest to appellee. Both of these awards are attacked on appeal and in view of our reversal on the set-off issues, we find it necessary to also vacate these awards and remand for further consideration. In doing so, we note that interest was properly computed from the date of the arbitration award despite the fact that it was computed on an incorrect amount. Southeast Title Insurance Company v. Austin, 202 So. 2d 179 (Fla.1967).
As to the award of attorneys’ fees, appellant claims the total award of $27,800 was excessive. The litigation herein has gone on for many years and involves a prior appeal and numerous hard-fought legal issues. In reversing the attorneys’ fee award we do not determine same to have been excessive but find it necessary to remand in view of our conclusion requiring a $25,000 set-off under the rationale of Dewberry v. Auto Owners Insurance Company, supra.
The judgment below is hereby reversed and the cause is remanded to the trial court for further proceedings in which the trial court should require a set-off of $25,000 and recompute interest and attorneys’ fees.
REVERSED AND REMANDED WITH DIRECTIONS.
DOWNEY, C. J., and GLICKSTEIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bruno v. Travelers Ins. Co., 386 So. 2d 251 (Fla. 3d DCA 1980)…ly received all of his assessed damages from the tortfeasor. See Jones 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 S…
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Jacques Lobry v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 877 (Fla. 5th DCA 1981)…sured motorist claim to arbitration, the courts have not recognized this principle 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 moto…
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Fireman's Fund Ins. Co. v. Marion and Jule Robinson, 399 So. 2d 452 (Fla. 4th DCA 1981)…t. Accordingly, we affirm the final judgment in all respects except the allowance of attorney’s fees to the Robinsons as an equitable distribution. We reverse the equitable distribution award on authority of State Farm Mut. Auto. Ins. Co. v. Napoli, 380 So. 2d 1325 (Fla. 4th DCA 1980). AFFIRMED IN PART and REVERSED IN PART. LETTS, C. J., and DOWNEY and MOORE, JJ., concur.…
Previewing 3 of 4 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)
- State Farm Mut. Auto. Ins. v. Fanny Napoli and Edward Napoli, 340 So. 2d 935 (Fla. 4th DCA 1976)
- Aubry v. Larson, 368 So. 2d 1289 (Fla. 1979)
- Jones v. Travelers Indem. Co. OF R.I., 368 So. 2d 1289 (Fla. 1979)
- Se. Title & Ins. Co. v. Austin, 202 So. 2d 179 (Fla. 1967)
- Lanny Hall v. Liberty Mut. INS. Co., 376 So. 2d 1183 (Fla. 1st DCA 1979)