CENTEX-RODGERS CONSTRUCTION COMPANY, A NEVADA CORPORATION, AND ARLINGTON ELECTRIC, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
GEORGE HERRERA, AND JOSEFA HERRERA, HIS WIFE, APPELLEES
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A jury awarded a plaintiff over $750,000 in a negligence case. The trial court upheld the verdict but reduced the award by a setoff for insurance payments. The appellate court affirmed the verdict but reversed the setoff, holding that section 768.76(1) does not permit reduction for collateral sources when an equitable subrogation right exists, and remanded for reconsideration of whether such a right was available.
The court affirmed the jury verdict but reversed the setoff. Section 768.76(1) does not require subrogation or reimbursement rights to be contractual; equitable rights qualify as well. An insurer has no common law right to subrogation for medical expenses unless the insured has been fully compensated for all damages. The case was remanded to determine whether the insurer had an equitable subrogation right.
[1] A trial court shall reduce a damages award by collateral source payments unless a subrogation or reimbursement right exists.
[2] A subrogation or reimbursement right for collateral source reduction need not be contractual; an equitable right suffices.
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Join FLexlaw to unlock all legal intelligence“the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists”
Statutory language establishing the collateral source rule and its exception for subrogation or reimbursement rights
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Join FLexlaw to unlock all legal intelligenceA jury awarded plaintiff damages exceeding $750,000 in a negligence case against defendants Centex-Rodgers Construction Company and Arlington Electric…
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FARMER, J.
A jury awarded plaintiff over $750,000 in damages in a negligence case. We affirm the trial court’s order letting the verdict against defendants stand. The trial judge also reduced the award, however, by a setoff under section 768.76(1) for sums paid under an insurance policy. We reverse the setoff.
Section 768.76(1) provides:
“In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.”
§ 768.76(1), Fla. Stat. (1999). Nothing in section 768.76 requires the subrogation or reimbursement right to be contractual rather than equitable. See Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d 123 (Fla. 5th DCA 1990). If a common law right to subrogation or reimbursement right exists, the trial court should not reduce the award.
An insurer has no common law right to subrogation for medical expenses the insured recovers unless the insured has been compensated for all of his or her damages. See Humana Health Plans v. Lawton, 675 So. 2d 1382 (Fla. 5th DCA 1996). Where full recovery has been made and the insured has been made whole, any payments to the insured exceeding the actual damages may be viewed as a double recovery, thus equitably entitling the insurer to subrogation against the insured’s recovery. 675 So. 2d at 1384; see also Magsipoc v. Larsen, 639 So. 2d 1038 (Fla. 5th DCA 1994).
Here the record is unclear whether the trial court considered an equitable right to subrogation. The issue remains whether plaintiff was made whole by the jury award, thus entitling the insurer to exercise its right of equitable subrogation. Accordingly, we reverse the setoff and remand for consideration whether the insurer has an equitable right of subrogation.
POLEN and HAZOURI, JJ., concur.
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Intervest Constr. OF JAX, Inc. v. Gen. Fid. Ins. Co., 133 So. 3d 494 (Fla. 2014)…s involving the “made whole doctrine” all deal with the insured’s primary right to recover before the insurance carrier. See, e.g., Monte de Oca v. State Farm Fire & Cas. Co., 897 So. 2d 471 (Fla. 3d DCA 2004); Centex-Rodgers Constr. Co. v. Herrera, 761 So. 2d 1215 (Fla. 4th DCA 2000); Humana Health Plans v. Lawton, 675 So. 2d 1382 (Fla. 5th DCA 1996). We have acknowledged the application of the made whole doctrine in Florida. See Ins. Co. of N. Am. v. Lexow, 602 So. 2d 528, 529-30 (Fla.1992) (“Using the commo…
Authorities Cited
- Humana Health Plans v. Lawton, 675 So. 2d 1382 (Fla. 5th DCA 1996)
- Edwards v. State, 568 So. 2d 123 (Fla. 5th DCA 1990)
- Lemuel B. Magsipoc v. Larsen, 639 So. 2d 1038 (Fla. 5th DCA 1994)