CENTEX-RODGERS CONSTRUCTION COMPANY, A NEVADA CORPORATION AND ARLINGTON ELECTRIC, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
GEORGE HERRERA, M.D. AND JOSEFA HERRERA, HIS WIFE, APPELLEES
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The Fourth District Court of Appeal affirmed the trial court's denial of a collateral source set-off for disability insurance payments received by the plaintiff. The court held that disability payments are collateral source payments subject to a common law right of equitable subrogation, and that a plaintiff's negotiated settlement with the disability carrier waiving subrogation rights does not eliminate the collateral source character of those payments or benefit the tortfeasor defendants.
Defendants are not entitled to a collateral source set-off for disability insurance payments. The disability payments constitute collateral source payments subject to a common law right of equitable subrogation. The plaintiff's negotiated waiver of the disability carrier's subrogation lien does not destroy the collateral source character of the payments or allow the tortfeasor defendants to benefit from the plaintiff's settlement with the third party.
[1] A common law right of equitable subrogation exists for disability insurance payments made to a plaintiff for loss of income.
[2] A defendant is not entitled to a collateral source set-off for disability insurance payments when a common law right of equitable subrogation exists.
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“Pursuant to F.S. § 768.761, there existed a common law right of equitable subrogation for the disability insurance payments made to the Plaintiff for his loss of income. Accordingly, the Defendants are not entitled to a collateral source set-off for these payments.”
Establishes that disability insurance payments are protected from collateral source set-off under Florida law.
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Join FLexlaw to unlock all legal intelligenceGeorge Herrera received a jury award of $761,641.09 in a personal injury case. Herrera had also received disability insurance payments for loss of inc…
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SHAHOOD, J.
We adopt the order of the trial court denying the collateral source set-off which made the following findings of fact and conclusions of law:
1. That the jury award of $761,641.09 made the Plaintiff whole; 2. That a common law right of equitable subrogation existed for the disability-insurance policy payments made to the Plaintiff, George Herrera;
3. The Plaintiff has settled the common law equitable subrogation lien with the disability carrier and received a negotiated release of the aforesaid hen in exchange for a payment of $1,000.00 from the Plaintiff, George Herrera.
Based upon these findings of fact the Court determines that:
1. Pursuant to F.S. § 768.761, there existed a common law right of equitable subrogation for the disability insurance payments made to the Plaintiff for his loss of income. Accordingly, the Defendants are not entitled to a collateral source set-off for these payments. Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d 123 (Fla. 5th DCA 1990).
2. The disability carrier’s release or waiver of its common law right of equitable subrogation, pursuant to a negotiated settlement, does not destroy the character of the disability payments and they were collateral source payments for which a common law right of equitable subrogation existed. Sutton v. Ashcraft, 671 So. 2d 301 (Fla. 5th DCA 1996).
3. Section 768.76 of the Florida Statutes does not imbue a wrongful tortfeasor with the benefit of a plaintiffs settlement of a third party claim with a negotiated subrogation waiver. Bruner v. Caterpillar, 627 So. 2d 46 (Fla. 1st DCA 1993).
AFFIRMED.
WARNER and HAZOURI, JJ, concur. . See § 768.76 Fla. Stat. (1999).
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Domino's Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018)…does not destroy their character." Sutton, 671 So. 2d at 303. "[I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction." Id.; see Centex-Rodgers Constr. Co. v. Herrera, 816 So. 2d 1206, 1207 (Fla. 4th DCA 2002) (following Sutton, and noting that disability carrier's release or waiver of its subrogation rights, pursuant to negotiated [*229] settlement, does not destroy character of disability payments). In other words, Domino's can…
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Domino's Pizza v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018)…ir ---PAGE 25--- character.” Sutton, 671 So. 2d at 303. “[I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction.” Id.; see Centex-Rodgers Constr. Co. v. Herrera, 816 So. 2d 1206, 1207 (Fla. 4th DCA 2002) (following Sutton, and noting that disability carrier’s release or waiver of its subrogation rights, pursuant to negotiated settlement, does not destroy character of disability payments). In other words, Domino’s cannot…
Authorities Cited
- Edwards v. State, 568 So. 2d 123 (Fla. 5th DCA 1990)
- Sutton v. Ashcraft, 671 So. 2d 301 (Fla. 5th DCA 1996)
- Michael E. Bruner and wife v. Caterpillar, Inc., 627 So. 2d 46 (Fla. 1st DCA 1993)