STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
HARRY WRIGHT AND MARIE WRIGHT, HIS WIFE, APPELLEES
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State Farm appeals a judgment enforcing an arbitration award for uninsured motorist coverage, claiming it was entitled to deduct workers' compensation payments. The court affirmed the judgment as to Harry Wright, holding that the arbitration award clearly specified amounts exclusive of set-offs, but modified the judgment to eliminate recovery by Marie Wright.
The court held that State Farm was not entitled to deduct workers' compensation payments because the arbitration award clearly stated the amounts to be recovered exclusive of any set-offs. The court affirmed judgment in favor of Harry Wright but reversed as to Marie Wright, finding no evidence to support her recovery.
[1] An arbitration award explicitly stating recovery exclusive of lost wages and medical payments prevents an insurer from deducting subsequent workmen's compensation payment…
[2] The testimony of arbitrators may be admitted to clarify the intent of an arbitration award, particularly when requested by an attorney for one of the parties.
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Join FLexlaw to unlock all legal intelligence“The judgment confirming arbitration award was correct, because the award clearly stated the amount to be recovered exclusive of any set-offs.”
Establishes the core holding that the award language precluded any deductions by the insurer.
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Join FLexlaw to unlock all legal intelligenceHarry Wright filed a claim against State Farm following a collision with an uninsured motorist. An arbitration award granted Wright $15,000 in compens…
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PER CURIAM.
State Farm Mutual Automobile Insurance Company appeals from a final judgment in favor of the plaintiffs in the principal sum of $4,003.92, after an action to enforce an arbitration award in which State Farm contended it had a right to deduct workmen’s compensation payments from the award.
Following a collision with an uninsured motorist, Harry Wright filed a claim against State Farm. The claim was submitted to arbitration, which resulted in an award for Harry Wright. The arbitration award read as follows:
4c ' 4c 4c 4c 4c 4c
“1. That the claimant is entitled to recover of and from the carrier, State Farm Mutual Insurance Company, the following sums:
a. The sum of $15,000.00 representing compensatory damages exclusive of lost wages and medical payments.
b. The sum of $1,150.80 representing lost wages.
c. The sum of $2,701.65 representing award for medical payments.”
* * * * *
[This breakdown was pursuant to a request of State Farm’s trial counsel.]
After the award, State Farm made a deduction for a subsequent workmen’s compensation “washout” payment, and paid $10,-996.08 as the total award.
Thereafter, suit was filed by Wright claiming $4,004.08, which was the differ ence between the amount paid by State Farm and the award of $15,000.00. State Farm filed a motion to compel recusal of Mr. Stack and his firm as counsel for Harry Wright and Marie Wright, which was denied. It was alleged that Mr. Stack would be called as a witness at trial. At the trial, over objection, the arbitrators were permitted to testify. On June 24, 1976, final judgment was entered in favor of Harry Wright and Marie Wright in the principal sum of $4,003.92. In effect, the final judgment denied State Farm’s right to deduct the workmen’s compensation payments1 made to Mr. Wright after the arbitration award. This was the “washout” settlement.
We affirm as to Harry Wright, but find no evidence to support the judgment in favor of Marie Wright which error has been conceded by the appellee.
The judgment confirming arbitration award was correct, because the award clearly stated the amount to be recovered exclusive of any set-offs. The arbitrators’ testimony confirmed this intent and the insurer’s attorney specifically requested that the award be divided, so deductions could be made and the proper amount payable determined. Arsenault v. Thomas, 104 So. 2d 120 (Fla. 3rd D.C.A. 1958); Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3rd D.C.A. 1972); Werner v. Safeco Insurance Company of America, 323 So. 2d 645 (Fla. 3rd D.C.A. 1975); 2 Fla.Jur., Appeals, § 313. The judgment of the trial court does not require reversal, because there has been no showing of any prejudice by denial of motion to compel recusal of attorney; his testimony was not necessary nor on a material issue.2 City of Miami v. Florida Power & Light Company, 180 So. 2d 344 (Fla. 3rd D.C.A.1965); Wallace v. Rashkow, 270 So. 2d 743 (Fla. 3rd D.C.A. 1972). The trial court did err in not dismissing Marie Wright, and the judgment under review will be modified by this opinion to eliminate her recovery.
Affirmed as modified.
. The nature of workmen’s compensation washout recovery is a recovery for diminished earning capacity or lost wages, as a result of permanent injury plus the cost of future medical payments. See: In Re Lupola, 293 So. 2d 354 (Fla. 1974). Therefore, there was no real need to take testimony because the items recovered in the washout settlement represented, in effect, the excluded items in “b” and “c” of the award.
. Inasmuch as Mr. Stack, plaintiffs’ counsel, was called as a witness for the defense, we find no error in the trial court’s denial of the appellant’s motion to recuse Mr. Stack and his firm. In Beavers v. Conner, 258 So. 2d 330 (Fla. 3rd D.C.A. 1972), we find the following:
* * * * * *
“ * * * As to the defense calling counsel-in-chief to testify as an adverse witness, we do not find any error in this regard because to do so would be to permit defense counsel to force a disassociation between counsel and client, which the courts do not approve. Phillips v. Liberty Mutual Insurance Company, 43 Del.Ch. 436, 235 A. 2d 835; Galarowicz v. Ward, 119 Utah 611, 230 P. 2d 576; Opin. 64-39, Selected Opinions of the Professional Ethics Committee, The Florida Bar 1959-1967. Cf. Hill v. Douglass, Fla.App.1971, 248 So. 2d 182, 183.”
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State ex rel. Gordon G. Oldham, Jr. v. The Honorable Ernest C. Aulls, Jr., 408 So. 2d 587 (Fla. 5th DCA 1981)…in another context that this may not necessarily follow where offices of a public agency are separated by distance and disparate responsibilities. Babb v. Edwards, 400 So. 2d 1239 (Fla. 5th DCA 1981). . See State Farm Mut. Auto. Ins. Co. v. Wright, 348 So. 2d 1198, 1199 n.2 (Fla. 3d DCA 1977). . This opinion should not be construed as absolving a state attorney from personal responsibility for adherence to the Code of Professional Responsibility.…
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Arcara v. Philip M. Warren, P.A., 574 So. 2d 325 (Fla. 4th DCA 1991)…s not an essential witness in this case. See Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 23 (Fla. 3d DCA 1987); Ray v. Stuckey, 491 So. 2d 1211 (Fla. 1st DCA 1986); State Farm Mutual Automobile Insurance Company v. Wright, 348 So. 2d 1198 (Fla. 3d DCA 1977). Moreover, the rule requiring a lawyer to withdraw when he expects to be a witness in a case “was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.” Cazares v. Church Of S…
Authorities Cited
- Lesperance v. Lesperance, 257 So. 2d 66 (Fla. 3d DCA 1971)
- Wallace v. Rashkow, 270 So. 2d 743 (Fla. 3d DCA 1972)
- Victor Hotel Owners, Inc. v. Sperling, 104 So. 2d 120 (Fla. 3d DCA 1958)
- Arsenault v. Thomas, 104 So. 2d 120 (Fla. 3d DCA 1958)
- Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)
- Werner v. Safeco Ins. Co. of Am., 323 So. 2d 645 (Fla. 4th DCA 1975)
- Hill v. Douglass, 248 So. 2d 182 (Fla. 1st DCA 1971)
- In re Lupola v. Lindsley Lumber Co., 293 So. 2d 354 (Fla. 1974)
- City OF Miami v. Fla. Power & Light Co., 180 So. 2d 344 (Fla. 3d DCA 1965)