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Florida Fourth DCA rules that Florida UM statute prohibiting “duplication” of benefits to an insured from other specified sources includes other UM policies; defendant UM insurer was entitled to set off for payment to insured from another UM carrier

On June 24, 2020, in Liberty Mutual Insurance Company v. Wolfson, No. 4D18-3652, the Florida Fourth DCA reversed a trial court’s final judgment for the plaintiff in a underinsured motorist (UM) case based on the trial court’s erroneous refusal to set-off from the jury verdict against Liberty Mutual the amount of money that its insured received from settlement agreements with the liability insurer and another UM carrier, Nationwide. The trial court had determined that the liability settlement should not be set off based on the testimony of the insured that the $480,667.50 liability settlement was entirely intended to compensate his spouse for her loss of consortium claim, allegedly corroborated by language in the release that he signed that includes a release of consortium claims. The trial court came to a similar conclusion regarding the Nationwide settlement. The Fourth DCA rejected the trial court’s determination regarding both set offs, noting that the plain language of the first paragraph of the liability release indicates that the consideration was being paid “to and for the benefit of” the plaintiff and that similar language was in the Nationwide release. The plaintiff additionally argued that the $100,000 Nationwide settlement did not qualify for a set aside because no Florida statute expressly authorizes one UM carrier to obtain a set off for duplicate benefits paid by another UM carrier. The Fourth DCA concluded that the statement in Fla. Stat. § 627,727(1) that UM coverage shall be over and above but not duplicate benefits available to an insured “under any workers’ compensation law, personal injury protection benefits, disability benefits law or similar law”, was sufficient to encompass benefits paid under another UM policy.