Set Offs Will Set You Off

FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 26
CASES FROM THE WEEK JULY 3, 2020

TRIAL COURT ERRED IN DENYING INSURER’S MOTION TO SET OFF PRIOR SETTLEMENTS FROM VERDICT AGAINST UM CARRIER.

Liberty Mutual v. Wolfson, 45 Fla. L Weekly D1508 (Fla. 4^th DCA June 24, 2020):

A man suffered significant injuries in an accident with an underinsured motorist. Several policies covered the accident, but he ended up at trial against two UM carriers that would not pay the claim.

The jury reached a verdict of $1,579,629.00. The insurers filed a motion to set off the amount of the almost $600,000 in settlements. They argued that the settlements duplicated parts of the verdict, and set the motion for an evidentiary hearing.

The insurers subpoenaed the insured’s third UM carrier, Nationwide, as well as the underinsured motorist’s liability carrier, AIG, to testify regarding the settlements which those carriers had reached with the insured.

The plaintiff did not dispute that the Nationwide UM benefits did duplicate the UM benefits against the other insurers, but argued that the insurers were not entitled to a set-off because no Florida statute expressly authorizes one UM carrier to obtain a set-off for duplicate benefits paid by another UM carrier.

The Fourth District rejected that argument, based on §627.727(1) which requires motor vehicle liability insurance policies to provide uninsured or underinsured motorist coverage. The court found that the reference to work comp, pip benefits, and disability benefits in the statute, coupled with the statute’s use of the phrase “or similar law,” could be construed to mean that benefits under a UM policy also could not duplicate benefits paid to an insured under another UM policy. The court relied on the doctrine of noscitur a sociis (a word is known by the company it keeps). That analysis led the court to find that Nationwide’s $100,000 UM benefits also “could not duplicate” the benefits under the insurer’s two UM policies, and granted a set-off.

As to the AIG settlement (for over $480,000), the court found it applied to the insured only. The court found the release unambiguously applied only to the release of the plaintiff’s claims and did not apply to other claimant’s claims. The court stated that even if the insured and his wife had privately agreed to unilaterally apportion the AIG settlement among themselves, the trial court was bound to ignore such a private unilateral apportionment because the AIG settlement release failed to expressly apportion the proceeds between them. Where a settlement is undifferentiated in general, the aggregate of the amount of the settlement should be set off against the judgment.

While the court rejected the insurers’ other arguments, as to the set-off, it ruled that the trial court should enter an amended final judgment reducing the jury’s verdict by the amounts paid in those two settlements.

RECORD SUPPORTED ORDER STRIKING THE DEFENDANTS’ PLEADINGS BASED ON REPEATED AND FLAGRANT FAILURES TO RESPOND TO DISCOVERY AND OTHER SANCTIONABLE MISCONDUCT—COURT NOT REQUIRED TO PROVIDE WRITTEN KOZEL FINDINGS FOR STRIKING PLEADINGS WHEN THE BEHAVIOR IS ATTRIBUTABLE TO A PARTY (KOZEL FINDINGS APPLY TO COUNSEL FOR A PARTY)

Phillips v. Mitchell’s Lawn Maintenance Corp., 45 Fla, Weekly D1527 (Fla. 3^rd DCA June 24, 2020):

In this case, while the court did not detail the party’s dilatory misconduct, it did find that the record amply supported the order striking defendants’ pleadings. The court noted that the record demonstrated repeated, flagrant and intentional failures to respond to discovery and appear for deposition (which included a court order requiring one of the defendants to appear for deposition), as well as other dilatory and sanctionable misconduct.

It was also not necessary for the trial court to provide written findings pursuant to Kozel before striking pleadings as a sanction. Kozel applies to misconduct by counsel and not—as in this case—where the entirety of the misconduct is attributable to a party.

ORDER DENYING DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT IS A NON-FINAL, NON-APPEALABLE ORDER WHEN THE ORDER DOES NOT DETERMINE AS A MATTER OF LAW THAT A SETTLEMENT AGREEMENT EVER EXISTED.

Powell. v. Woodard, 45 Fla. L Weekly D1540 (Fla. 1^st DCA June 24, 2020):

The trial court held a lengthy and detailed hearing on the motion to enforce a settlement agreement, scrutinizing the evidence and assessing the legal arguments. The court’s two-page order denying relief stated that the record showed an extraordinary and tortured pre-suit history leading to the conclusion that the parties did not reach a mutual assent on the material essential terms of any purported settlement agreement. The trial judge denied the defendants’ motion to enforce. The appellate court admonished, however, that he needed to find as a matter of law that a settlement agreement never existed, to trigger Rule 9.130(a)(3)(C)(ix). Without such a finding, the court lacked jurisdiction to review the ruling.

TRIAL COURT ERRED IN DENYING MOTION FOR COSTS PURSUANT TO §57.041 WITHOUT HOLDING AN EVIDENTIARY HEARING.

Goodman Distribution, Inc. v. Williams, 45 Fla. L Weekly D1557 (Fla. 1^st DCA June 29, 2020):