USAA Casualty Insurance Co. v. McDermott

929 So. 2d 1114, 2006 Fla. App. LEXIS 7873, 2006 WL 1359640
CourtDistrict Court of Appeal of Florida
DecidedMay 19, 2006
DocketNo. 2D05-694
StatusPublished
Cited by4 cases

This text of 929 So. 2d 1114 (USAA Casualty Insurance Co. v. McDermott) 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
USAA Casualty Insurance Co. v. McDermott, 929 So. 2d 1114, 2006 Fla. App. LEXIS 7873, 2006 WL 1359640 (Fla. Ct. App. 2006).

Opinion

ALTENBERND, Judge.

USAA Casualty Insurance Company (USAA) appeals a final judgment awarding uninsured motorist benefits to its insureds, Steven and Pauline McDermott. The unusual facts of this case presented the trial [1116]*1116court with a challenging case to try by jury without undue prejudice to one side or the other. After a full review of the record, we conclude that the judgment should be affirmed. Although USAA presents a strong argument that it should be entitled, to a setoff for future medical and wage benefits that are very likely to be available for Mr., McDermott under workers’ compensation coverage, there is no express statutory entitlement to such a setoff and USAA has not attempted to establish such a right within its own insurance contract. We conclude that the general public policies announced in section 627.727, Florida Statutes (2002), do not authorize this court to give USAA a remedy that does not exist either in its contract or the statute regulating its contract. If a new law is required to permit such a set-off, it should be established by the legislature.

Mr. McDermott is a deputy sheriff. On November 2, 2002, he was on duty in a patrol car. He received a report concerning a home invasion and auto theft. He became involved in an automobile chase of the suspect, Christopher Cheatham. The chase lasted more than fifteen minutes and was videotaped by a sheriffs department helicopter. Ultimately, the chase ended when Mr. Cheatham’s car collided with Mr. McDermott’s patrol car. Mr. McDer-mott, who had been in prior accidents and had sustained prior back injuries, suffered injuries including injuries to his back.

Because Mr. McDermott was on duty, he was entitled to workers’ compensation coverage for this incident. He and his wife were also entitled to sue Mr. Cheat-ham, who was then a prisoner without insurance coverage, and to pursue an uninsured motorist claim against Mr. McDer-mott’s personal automobile insurer, USAA.

The claim against Mr. Cheatham was essentially a matter of undisputed liability. Moreover, Mr. Cheatham was a violent criminal involved in a police chase. When stopped, it was determined that Mr. Cheatham had a crack pipe and wanted to use his small remaining amount of cocaine before going to jail. The McDermotts did not sue Mr. Cheatham for punitive damages, but the case presented facts that might encourage a jury to award liberal damages against him and in favor of the McDermotts.

The McDermotts’ lawsuit named both Mr. Cheatham and USAA and included claims for both Mr. McDermott and his wife. By virtue of the McDermotts’ writ of habeas corpus ad testificandum, Mr. Cheatham appeared at trial in an orange prison jumpsuit. Although Mr. Cheatham initially contested the claim, he admitted liability during voir dire and did not further participate in the trial.

Prior to trial, USAA amended its answer to admit that Mr. Cheatham was negligent and to withdraw a defense of comparative negligence. It did, however, argue that Mr. McDermott’s injuries were not as severe as he claimed and that his medical conditions were actually the result of his prior accidents.

At the conclusion of the trial, the jury returned a total award of $681,303 for Mr. McDermott. Over $530,000 of this award was for future medical expenses and future lost wages. The jury awarded only $40,000 in future pain and suffering. The jury also awarded Mrs. McDermott $41,454. Following a reduction for setoffs, including workers’ compensation already recovered by Mr. McDermott, the trial court entered a total judgment of $644,100 jointly and severally against Mr. Cheat-ham and USAA in favor of the McDer-motts. The majority of this award involves future payments that are likely to be covered by workers’ compensation. USAA appealed the judgment.

[1117]*1117USAA raises three issues on appeal, two of which warrant discussion. First, USAA argues that the trial court should have bifurcated its trial from that of Mr. Cheatham and that it should have limited the testimony and evidence describing Mr. Cheatham’s criminal conduct. Prior to trial, the issues for jury determination between the McDermotts and Mr. Cheatham were identical to those between the McDermotts and USAA. It is difficult to see how the trial court abused its discretion in denying a bifurcation that would have required trying the same case twice merely because USAA did not want to share the defense of this case with a criminal. As a practical matter, Mr. Cheat-ham’s participation in this trial was very limited because of his decisions during voir dire. Thus, we conclude that the trial court did not err in denying a bifurcated trial.

The evidence of Mr. Cheatham’s criminal conduct is a more complicated issue. It seems unavoidable that the jury would need to understand that this case involved a police chase of a suspected criminal. Because USAA was contesting the issue of causation, some of the activity of Mr. McDermott on the videotape was relevant to his physical condition. It is doubtful that the jury needed to know about Mr. Cheatham’s crack pipe or his desire to use his final supply of cocaine prior to going to jail. On the other hand, liability was an admitted issue at this trial. The lawyers for both sides focused on the issue of damages. A review of the closing arguments does not suggest that the McDermotts sought or received punitive damages disguised as compensatory damages. Thus, to the extent that any irrelevant evidence was admitted over objection during this trial, we are unconvinced that it resulted in harmful error. See Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000) (citing Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992)) (stating the test for harmful error in a civil case is whether, “but for such error,” a different result may have been reached); see also § 59.041, Fla. Stat. (2002).

USAA’s second issue is probably a matter for which there could be a better rule of law. It has long been established that uninsured motorist coverage “shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law.” § 627.727(1). For those payments that a plaintiff has already received as workers’ compensation benefits, it is relatively easy to devise an adequate method to prevent a jury’s award from resulting in a judgment that duplicates payments made by the workers’ compensation insurer.

Providing an adequate method of setoff for future benefits, however, is a far more difficult task.1 In the related area of personal injury protection benefits, the supreme court has held that the setoff provided in section 627.736(3), Florida Statutes (1991),2 does not require a reduction from a verdict in an automobile negligence action for future PIP benefits that are payable to reimburse future lost income or future medical expenses. See [1118]*1118Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000). The court reached a similar result under section 768.76(1), Florida Statutes (1993), for future payments under voluntary medical payments coverage. Allstate Ins. Co. v. Rudnick, 761 So.2d 289 (Fla.2000). In Rudnick, the court expressly declined to reach the issue of whether there should be any setoff from amounts awarded for an uninsured motorist claim under the statute involved in this case, § 627.727(1), for future payments of PIP or medical payments coverage.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Special v. Baux
79 So. 3d 755 (District Court of Appeal of Florida, 2011)
Bingham v. Poswistilo
24 Pa. D. & C.5th 17 (Lackawanna County Court of Common Pleas, 2011)
Cook v. State
929 So. 2d 1114 (District Court of Appeal of Florida, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
929 So. 2d 1114, 2006 Fla. App. LEXIS 7873, 2006 WL 1359640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/usaa-casualty-insurance-co-v-mcdermott-fladistctapp-2006.