GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLANT/CROSS APPELLEE,
v.
GREGORY BREWTON AND KAREN BREWTON, HIS WIFE, APPELLEES/CROSS APPELLANTS

Fla. 4th DCA | 1989-03-01
No. 87-2748
DOWNEY and ANSTEAD, JJ., concur.
538 So. 2d 1375 Florida District Court of Appeal, Fourth District (1989) Caution
Cited by 31 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that an insured is not considered a prevailing party entitled to costs and attorney's fees in an uninsured/underinsured motorist (UM) claim against their own carrier if the damages awarded do not exceed the tortfeasor's liability coverage, thus not activating the UM coverage.


Headnotes

[1] Uninsured/underinsured motorist coverage is excess coverage and pays over and above the tortfeasor's liability coverage when that coverage is inadequate to fully compensa…

[2] Uninsured/underinsured motorist coverage is not reduced by a setoff against other available coverages, including liability insurance.

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

Facts & Procedural History

An insured, Gregory Brewton, received $10,000 from the tortfeasor's insurer and then sued his own UM carrier, GEICO. A jury awarded Brewton $7,500 in …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HERSEY, Chief Judge.

HERSEY, Chief Judge.

Appellant, Government Employees Insurance Company (GEICO), appeals an order of the trial court taxing costs against it. Appellees, Gregory and Karen Brewton (Brewton), cross appeal the trial court’s order granting GEICO’s Motion for Setoff.

Injured in an automobile accident, Gregory Brewton accepted $10,000.00, the policy limits, from the tortfeasor’s insurance company. He then filed suit for uninsured/underinsured motorist coverage against his own carrier, GEICO. The latter filed an answer denying all allegations and asserting affirmative defenses including setoff. A jury returned a verdict awarding Brewton $7,500.00 in damages. The trial court entered judgment for that amount, permitted GEICO to set off the prior recovery of $10,000.00 and awarded Brewton costs as the prevailing party.

GEICO argues that Brewton cannot be the prevailing party because application of the setoff effectively eliminates any recovery, or, in the alternative, that the balance of the prior recovery of $10,000.00 after reduction for damages of $7,500.00 should also be available, as a setoff against the cost judgment.

The key issue in this case turns on interpretation of section 627.727(1), Florida Statutes (1985), which provides in part:

The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance.

We have previously construed this statute in Shelby Mutual Insurance Company v. Smith, 527 So. 2d 830 (Fla. 4th DCA 1988), where we held that all UM coverage is to be excess coverage and that it pays over and above the tortfeasor’s liability coverage should said coverage be inadequate to fully, compensate the injured insured. We follow that construction here.

We therefore reject appellee Brew-ton’s interpretation that the statute effectively bars any setoff where there is an initial recovery from the tortfeasor followed by a claim for UM coverage. Our understanding of the theory upon which the statutory scheme is based is perhaps best illustrated by use of a hypothetical.

Suppose the tortfeasor has liability insurance coverage of $10,000.00 and the accident victim has $10,000.00 in UM coverage. By varying the amount of actual damages (or verdict or judgment) the mechanics of the application of the statute can be demonstrated. If damages are $5,000.00 (or anything less than $10,000.00), recovery from the tortfeasor’s liability insurance carrier fully compensates the victim. UM coverage is not at all implicated because, under these assumed facts, the tortfeasor is not an uninsured or underinsured motorist. If damages are $15,000.00, then, because UM coverage is “over and above” all other sources available for payment of the damages, by definition here the $10,000.00 in liability coverage, the tortfeasor was underinsured by $5,000.00 and that amount is recoverable by the victim against his own UM carrier. The difficulty with interpretation and therefore application of the statute is created by its last sentence which refers to setoff. We take that provision to mean simply that the UM coverage of $10,000.00 (in our example) is not to be reduced by the $10,000.00 available liability insurance; thus there is available to the victim $10,-000.00 in liability plus $10,000.00 in UM coverage. Any damage award up to $20,-000.00 would therefore be fully compensable by the two coverages. On the other hand, the victim is not entitled to be compensated twice for his damage award, regardless of coverage, and appellees, Brew-ton, may only recover (which they have already done by their settlement of $10,-000.00) the amount of the damage award.

Further, appellees were entitled to bring this action for their damages which resulted in a damages award of $7,500.00. Since this is below the threshold established by their actual recovery of $10,000.00, their UM insurance was not implicated — that coverage was never triggered by the necessary operative circumstance: a loss exceeding amounts available from other sources to fully compensate them for their damages. The question is whether they could or should be considered as the prevailing party in a suit against their own carrier where UM coverage is not activated by an amount of damages exceeding the thresh-hold. An affirmative finding on this question is necessary to support the award in their favor for costs and attorney’s fees.

On the facts of this case the intuitive thrust parallels .logic in support of a holding that only an award which activates the UM coverage would qualify appellees as prevailing parties. Any lesser award totally favors the UM carrier who thus fits the traditional concept of “prevailing party.” Thus an award of $10,001.00 or greater would be required before appellees could be viewed as “prevailing” over their UM carrier. We therefore reverse as to the appeal and affirm as to the cross appeal.

AFFIRMED IN PART AND REVERSED IN PART.

DOWNEY and ANSTEAD, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (16 total)

  • Neff v. Prop. & Cas. Ins. Co. OF Hartford, 133 So. 3d 530 (Fla. 2d DCA 2013)
    …8)); see Moher, 734 So. 2d at 1088 (“UM coverage is excess coverage and ‘pays over and above the tortfeasor’s liability coverage should said coverage be inadequate to fully compensate the injured insured.’ ” (quoting Gov’t Emps. Ins. Co. v. Brewton, 538 So. 2d 1375, 1376 (Fla. 4th DCA 1989)); Meadows v. Progressive Cas. Ins. Co., 601 So. 2d 1285, 1286 (Fla. 5th DCA 1992) (noting that UM “coverage is over and above and does not duplicate the benefits available to the insured”)). Judgment affirmed. ALTENBERND…
  • State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997)
    …of judgment, that amount could not have been used as a setoff against the $30,000 verdict in favor of Marko and against Mayer. See State Farm Mut. Auto. Ins. Co. v. Ferro, 581 So. 2d 605 (Fla. 2d DCA 1991); Government Employees Ins. Co. v. Brewton, 538 So. 2d 1375 (Fla. 4th DCA 1989). Having determined that the offer of judgment made by State Farm to Marko was not applicable because the statute applied to net awards, the trial court did not discuss the issue of good faith as provided for in section 768.79(7)…
  • AETNA Cas. & Sur. Co. v. Edward Langel & Joan Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991)
    …the prior appeal which expressly remanded for a hearing on “collateral source benefits”. Nevertheless, an UM settlement amount may still be set off if it duplicates damages otherwise awarded. Section 627.727(1), Fla.Stat. (1989); Geico v. Brewton, 538 So. 2d 1375 (Fla. 4th DCA 1989). But the burden is on the UM carrier to demonstrate that the settlement to whatever extent constituted a duplication of the amount awarded by the jury. Bergmann v. Sentry Insurance, 422 So. 2d 972 (Fla. 4th DCA 1982). Here, the…

Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw