Allstate Ins. Co. v. Rush

777 So. 2d 1027, 2000 WL 1873051
CourtDistrict Court of Appeal of Florida
DecidedDecember 27, 2000
Docket4D99-3004
StatusPublished
Cited by13 cases

This text of 777 So. 2d 1027 (Allstate Ins. Co. v. Rush) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Ins. Co. v. Rush, 777 So. 2d 1027, 2000 WL 1873051 (Fla. Ct. App. 2000).

Opinion

777 So.2d 1027 (2000)

ALLSTATE INSURANCE COMPANY, a foreign corporation doing business in the State of Florida, Appellant,
v.
Joe M. RUSH, Pamela Rush, and Maria A. Montenegro, Appellees.

No. 4D99-3004.

District Court of Appeal of Florida, Fourth District.

December 27, 2000.
Rehearing Denied February 27, 2001.

*1028 Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Thaddeus M. Hartmann of Dickstein, Reynolds & Woods, West Palm Beach, for appellant.

Richard J. Slinkman of Slinkman & Slinkman, P.A., and Bard D. Rockenbach of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellees.

PER CURIAM.

In this personal injury action, Joe and Pamela Rush settled with one of three tortfeasors for less than the tortfeasor's policy limits. They then obtained a favorable judgment against the remaining two uninsured tortfeasors and Allstate Insurance Company (Allstate), their own uninsured motorist (UM) carrier. The trial court refused to set off the first tortfeasor's policy limits from this latter verdict and entered judgment accordingly. Allstate appeals from this judgment. We hold the trial court erred by failing to set off a portion of the underinsured tortfeasor's policy limits from the total damages award and reverse.

Background

This case involved a multi-vehicle accident. The Rushes' automobile was forced to stop suddenly when a vehicle driven by Ms. Montenegro cut in front of them. Stopping suddenly caused the Rushes to get rear-ended by a vehicle driven by Mr. Aiello, who was then hit from behind by a vehicle driven by Ms. Buchholz. When Ms. Buchholz hit Mr. Aiello, Mr. Aiello's vehicle hit the Rushes' car for a second time.

The Rushes sued the above tortfeasors and Allstate, their own UM carrier,[1] since Mr. Aiello and Ms. Montenegro were both uninsured, as a result of injuries each sustained during the above accident. Prior to trial, the Rushes settled with Ms. Buchholz and her insurance carrier, GEICO, for $14,000, even though her policy limits were $100,000. The settlement did not allocate the monies between Mr. and Mrs. Rush. The Rushes did not obtain Allstate's permission *1029 to settle with GEICO for $14,000.[2] The Rushes then released GEICO and Ms. Buchholz from any future liability. They did not receive Allstate's permission to release these two parties.

Before trial, Mr. Rush voluntarily dismissed his personal injury claim. Allstate and the Rushes agreed to handle all collateral source issues after trial. After trial, the jury found Ms. Montenegro 55% negligent, Mr. Aiello 30% negligent, and Ms. Buchholz 15% negligent. It awarded Mrs. Rush $60,240.90, broken down as follows: $20,818.90 for past medical expenses; $17,500 for future medical expenses; $8,960 for past lost earnings; $4,200 for future earnings; $1,536 for past pain and suffering; and $7,200 for future pain and suffering.

Thereafter, Allstate filed a motion for a collateral source determination. It alleged that, under Florida Statutes, section 627.727(6)(c) (1993), it should receive a setoff of $100,000 (Ms. Buchholz's policy limits with GEICO) against the entire jury award. At the hearing that followed, Allstate also argued that the unauthorized settlement prejudiced its subrogation rights with respect to Ms. Buchholz because the Rushes executed a general release in her and GEICO's favor. The Rushes, relying on Florida Statutes, section 768.81 (1993), countered that had Ms. Buchholz remained a defendant in the trial, she would have been liable for only 15% of the noneconomic damages. As such, they posited that Allstate's argument, that the court should nevertheless set off the verdict by $100,000 and enter a judgment of $0, was absurd.

The trial court sided with the Rushes. It found that although the Rushes' settlement with Ms. Buchholz was obtained without Allstate's authority or consent, Allstate was not prejudiced because Buchholz's responsibility for Mrs. Rush's total damages was only 15%, an amount less than the settlement. The court explained,

I don't see that there is any prejudice... because it was a fourteen thousand dollar settlement, and this lady was only fifteen percent negligent, and when you run the figures on that with the settlement or with the jury verdict awards, it doesn't appear to me like there was any prejudice to Allstate....

It then granted Allstate a 15% set-off plus the $10,000 already paid in PIP benefits, for a total judgment to the Rushes of $42,682.66. The court held that Allstate was not entitled to a $14,000 set-off against Mrs. Rush's judgment because the settlement did not allocate the $14,000 amount between Mr. and Mrs. Rush's injuries. It then entered final judgment against Allstate, jointly and severally with the other tortfeasors,[3] for $42,682.66.

Merits

Allstate argues that because Mrs. Rush had available to her Ms. Buchholz's policy limits with GEICO of $100,000, and because her total damages were only $60,240.90, her UM coverage was not triggered. As this issue presents a question of law, see Lobry v. State Farm Mut. Auto. Ins. Co., 398 So.2d 877, 879 (Fla. 5th DCA 1981)(holding issues pertaining to insurance coverage are questions of law), our standard of review is de novo. Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999).

Allstate's appeal involves the interplay of the various provisions of section 627.727, which provides the following:

(1) ... The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any ... motor vehicle liability insurance coverage; ... or *1030 [from] 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....
* * * *
(3) For the purpose of this coverage, the term "uninsured motor vehicle" shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
* * * *
(b) Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages....
* * * *
(6)(a) If an injured person ... agrees to settle a claim with a liability insurer and its insured, and such settlement would not fully satisfy the claim for personal injuries ... so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage....
* * *
(c)

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Cite This Page — Counsel Stack

Bluebook (online)
777 So. 2d 1027, 2000 WL 1873051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-ins-co-v-rush-fladistctapp-2000.