LIBERTY MUTUAL INSURANCE COMPANY, LIBERTY MUTUAL FIRE INSURANCE CO. v. JEFFREY H. WOLFSON ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LIBERTY MUTUAL INSURANCE COMPANY and
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Appellants,
v.
JEFFREY H. WOLFSON, et al.,
Appellees.
Nos. 4D18-3652 and 4D19-118
[June 24, 2020]
Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 16-
016026 (03).
Frances G. De La Guardia of Holland & Knight LLP, Miami, and Isabel
V. Alvarez of Law Offices of J. Christopher Norris, Miami, for appellants.
Alex P. Rosenthal and Amanda Jassem Jones of Rosenthal Law Group,
Weston, for appellee Wolfson.
GERBER, J.
The insurers appeal from the trial court’s final judgment following a
jury verdict awarding benefits to the insured under two underinsured
motorist (UM) policies. The insurers argue the trial court erred in three
respects: (1) by denying the insurers’ motion for directed verdict on the
insured’s claims for past wage loss and future lost earning capacity; (2) by
allowing various experts’ testimony into evidence; and (3) by denying the
insurers’ motion to set off from the jury verdict the amount of money which
the insured received from settlement agreements with two other carriers.
We conclude, without further discussion, the insurers’ first two
arguments lack merit, and thus we affirm the jury verdict in the insured’s
favor. However, the insurers’ third argument has merit. Therefore, we
reverse the final judgment, and remand for the trial court to enter an
amended final judgment which sets off from the jury verdict the amount
of money that the insured received from the two settlement agreements.
Procedural History
An underinsured motorist collided with the insured’s car, causing the
insured to suffer permanent injuries. The insured filed a claim under his
UM policies with the insurers. The insurers did not pay the claim.
The insured then sued the insurers for breach of contract. The insurers
stipulated the underinsured motorist was liable for the collision. At the
close of evidence, the trial court granted the insured’s motion for directed
verdict on causation. Thus, the sole issue for the jury was the amount of
the insured’s damages caused by the collision. The jury determined those
damages to be $810,000 for loss of earnings, $369,629 for medical
damages, and $400,000 for pain and suffering, for a total $1,579,629.00.
The insurers filed a motion to set off from the verdict the amount of any
settlements which duplicated any part of the verdict, and set the motion
for an evidentiary hearing. For the hearing, the insurers subpoenaed the
insured’s third UM carrier (Nationwide) and the underinsured motorist’s
liability carrier (AIG) to testify regarding any settlements which those two
carriers had reached with the insured.
At the evidentiary hearing, a Nationwide representative testified it had
settled the insured’s UM claim for injuries and lost earnings for $100,000.
The insurers also introduced into evidence a copy of the insured’s release
of Nationwide in exchange for the $100,000 payment. The release
provided, in pertinent part:
JEFFREY H. WOLFSON, his heirs, assigns, legal
representatives, successors and personal representatives,
hereinafter referred to as the Releasing Party, for and in
consideration of the total sum of ONE HUNDRED THOUSAND
and NO/100 DOLLARS ($100,000.00), receipt of which is
hereby acknowledged, have released … [Nationwide] … of and
from any and all claims, actions, causes of action, damages or
demands, both compensatory and punitive, in whatever name
or nature, in tort, in contract or by statute, in any manner
arisen, arising, or growing of whatever name or nature, past,
present, or future, which rise out of or were the result of [the
collision]. The parties acknowledge pending claims for UIM …
benefits against [the insurers], which in no way are
incorporated or contemplated in this Release and will remain
open.
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The insured did not dispute the $100,000 Nationwide UM benefits
duplicated the jury-determined UM benefits against the insurers.
However, the insured argued the insurers were not entitled to set off the
$100,000 Nationwide UM benefits from the verdict because no Florida
statute expressly authorizes one UM carrier to obtain a set-off for duplicate
benefits paid by another UM carrier.
No AIG representative appeared at the evidentiary hearing. However,
the insurers were able to introduce into evidence copies of correspondence
showing the insured requested the insurers to permit him to settle his
claim with AIG and waive their subrogation rights against AIG, and the
insurers agreed. See § 627.727(6)(a), Fla. Stat. (2018) (“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.”).
The insurers then introduced into evidence a copy of the insured’s
settlement release of AIG. The AIG settlement release provided, in
pertinent part:
RELEASOR, for and in consideration of the total sum of FOUR
HUNDRED EIGHTY THOUSAND SIX HUNDRED SIXTY
SEVEN DOLLARS AND FIFTY CENTS ($480,667.50), and for
other good and valuable consideration paid to and for the
benefit of Jeffrey Wolfson, receipt of which is hereby
acknowledged, by these premises do hereby remise, release,
acquit, satisfy and forever discharge RELEASEES … from any
and all … claims (whether presently known or unknown) …
including parental and filial consortium claims … which
against said RELEASEE the RELEASOR now has, and which
the RELEASOR hereinafter can, shall, could or may have …
arising from, relating to, raised in, alleged in, or reasonably
inferable from the INCIDENT.
The AIG settlement release defined the terms “claims” and “releasor” as
follows:
“CLAIMS” herein refers to: all claims for legal damages and
equitable remedies by the “RELEASOR” … against the
“RELEASEE” … arising or inferable from the INCIDENT.
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“RELEASOR” herein refers to: Jeffrey Wolfson. RELEASOR
shall also refer to any and all representatives, heirs, agents,
executors, administrators, successors and/or assignees of
Jeffrey Wolfson, as well as any relative of Jeffrey Wolfson …
for legal damages or equitable remedies against the
“RELEASEES” ... that arises or that is inferable from the
INCIDENT.
The insured also testified at the evidentiary hearing. He said the AIG
settlement release’s sole purpose was to settle his wife’s unpled loss of
consortium claim, not his claim for his injuries and lost earnings. The
insured cited the AIG settlement release language providing it covered all
claims by him and “any relative” for “any and all types of actions …
including parental and filial consortium.” Thus, he testified the AIG
settlement benefits did not duplicate the jury-determined benefits against
the insurers.
The insurers moved for a continuance to make another attempt at
having an AIG representative appear at the hearing to rebut the insured’s
testimony. The trial court denied the motion.
The trial court then entered an order denying the insurers’ motion for
set off as to the AIG and Nationwide settlements. Regarding the AIG
settlement, the order stated, “The Court denies a set off in the amount of
$480,667.50 relating to the [AIG settlement release] and finds that the
entire settlement amount of $480,667.50 was intended to solely satisfy
[the insured’s wife’s] consortium claim, as evidenced by [the insured’s]
testimony corroborated by the Release of All Claims that he executed.”
Regarding the Nationwide settlement, the order stated, “The Court
similarly denies a set off in the amount of $100,000 relating to the
settlement with [Nationwide].”
The insurers filed a motion for rehearing in order to re-open the
evidentiary hearing. A successor judge denied that motion.
This Appeal
This appeal followed. The insurers cite the AIG settlement release’s
plain language to argue the trial court erred in finding the AIG settlement’s
purpose was to settle the insured’s wife’s unpled loss of consortium claim.
The insurers also argue the trial court erred in not setting off the
indisputably duplicated Nationwide UM benefits from the UM jury verdict
against the insurers.
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The insured responds the trial court properly relied on his testimony to
find the AIG settlement’s purpose was to settle his wife’s unpled loss of
consortium claim. The insured also argues the trial court correctly denied
setting off the Nationwide UM benefits from the UM jury verdict, because
no Florida statute expressly authorizes one UM carrier to obtain a set off
for duplicate benefits paid by another UM carrier.
Applying de novo review, we agree with the insurers’ arguments. See
Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So. 3d 565, 568 (Fla. 4th
DCA 2015) (“Whether the trial court awarded a proper set-off is a pure
question of law reviewed de novo, and no deference is given to the
judgment of the lower courts.”) (citation and internal quotation marks
omitted). We address each argument in turn.
1. The AIG Settlement
Our conclusion to set off the AIG settlement is based on the AIG
settlement release’s plain language. “Because a release is a contract, it
must be interpreted according to principles of contract law.” Berrios v.
Orlando Reg’l Healthcare Sys., 100 So. 3d 128, 130 (Fla. 5th DCA 2012).
“As with contracts generally, the language used in [a] release is the best
evidence of the parties’ intent. When that language is clear and
unambiguous, the courts cannot indulge in construction or interpretation
of its plain meaning.” Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 433 (Fla.
1980). Similarly, “[w]hen the language of a release … is clear and
unambiguous[,] a court cannot entertain evidence contrary to its plain
meaning.” Sheen v. Lyon, 485 So. 2d 422, 424 (Fla. 1986).
Here, the AIG settlement release clearly and unambiguously states it
was only for the insured’s benefit. The release provided, in pertinent part:
RELEASOR, for and in consideration of the total sum of
FOUR HUNDRED EIGHTY THOUSAND SIX HUNDRED SIXTY
SEVEN DOLLARS AND FIFTY CENTS ($480,667.50), and for
other good and valuable consideration paid to and for the
benefit of Jeffrey Wolfson, receipt of which is hereby
acknowledged, by these premises do hereby remise, release,
acquit, satisfy and forever discharge RELEASEES … from any
and all … claims (whether presently known or unknown) …
including parental and filial consortium claims … which
against said RELEASEE the RELEASOR now has, and which
the RELEASOR hereinafter can, shall, could or may have …
arising from, relating to, raised in, alleged in, or reasonably
inferable from the INCIDENT.
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(emphasis added).
The release does not mention the insured’s wife, and the release’s
inclusion of “parental and filial consortium claims” is not related to any
unpled spousal loss of consortium claim as matter of law. A parental
consortium claim permits a child, including an adult child, to recover for
the loss of consortium arising from the wrongful death of a parent. Cruz
v. Broward Cty. Sch. Bd., 800 So. 2d 213, 218 (Fla. 2001) (Shaw, J.,
dissenting). A filial consortium claim permits a parent to recover for loss
of consortium arising from the wrongful death of a child, including an
adult child. Id. Neither of those claims is in any way related to a spousal
loss of consortium.
The release’s definition of “RELEASOR” as including “any relative of”
the insured also does not include a spousal loss of consortium claim.
Again, the release clearly and unambiguous states it was “for the benefit
of Jeffrey Wolfson.” When viewed in that context, the release’s definition
of “RELEASOR” simply refers to those persons, besides the insured, who
may release his claims on his behalf, not as persons who had pursued and
released their own claims. See Regions Bank v. Am. Leisure Resorts, Inc.,
239 So. 3d 764, 764 (Fla. 3d DCA 2018), citing Cahill v. Regan, 184
N.Y.S.2d 348, 354 (N.Y. 1959) (in construing the meaning and coverage of
a general release, the court must consider the controversy being settled
and the purpose for which the release was actually given), and Glassberg
v. Lee, 918 N.Y.S.2d 554, 555 (N.Y. 2011) (“While the meaning and scope
of a release are determined within the context of the controversy being
settled, a release cannot be read to cover matters which the parties did not
intend to dispose of, and unless it is shown that a specified matter was in
dispute at the time a purported release was given, it cannot be held to bar
the releasor’s rights as to that matter.”) (internal citations omitted).
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 when the AIG settlement
release failed to expressly apportion the proceeds between them. As our
supreme court held in Dionese v. City of West Palm Beach, 500 So. 2d 1347(Fla. 1987):
Both existing case law and fairness to the parties involved
require us to ignore a private unilateral apportionment of
settlement proceeds among plaintiffs, when the settlement
agreement itself fails to apportion the proceeds among the
plaintiffs.
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….
Private unilateral agreements by plaintiffs to divvy up the
proceeds of a general settlement agreement are contrary to all
concepts of fairness. Private unilateral agreements to
apportion settlement proceeds would often result in a windfall
recovery. …
The only proper method of ensuring against duplicate
recoveries in an undifferentiated lump sum settlement
situation is to set-off the total settlement funds against the
total jury award. If necessary, the settlement can then be
allocated proportionally against the jury verdict for each cause
of action tried, thus preserving the distinct nature of the
separate claims.
….
For the reasons expressed, we … hold that … an agreement
to apportion the proceeds of a settlement agreement must be
found on the face of the settlement agreement and agreed to
by all of the parties involved in the settlement.
Id. at 1348, 1350-51; see also Cornerstone, 163 So. 3d at 569 (“Where a
settlement is undifferentiated and general, the aggregate of the amount of
the settlement should be set off against the judgment.”); Alexander v.
Seaquest, Inc., 575 So. 2d 765, 765-66 (Fla. 4th DCA 1991) (where a
private and unilateral settlement apportionment occurred without notice,
“[t]he trial judge properly set-off the undifferentiated lump sum settlement
against the total jury award in order to ensure that appellant did not
recover twice for the same wrong”).
2. The Nationwide Settlement
The trial court also erred in concluding the insurers’ request to set off
the Nationwide settlement was “similarly denied,” which we must presume
refers to the trial court’s reasoning for not setting off the AIG settlement.
Like the AIG settlement release, the Nationwide settlement release clearly
and unambiguously states it was only for the insured’s benefit. The
Nationwide settlement release does not mention the insured’s wife, and its
definition of “Releasing Party” as including “his heirs, assigns, legal
representatives, successors and personal representatives” is not a
reference to, or inclusion of, a spousal loss of consortium claim.
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If the trial court inadvertently used the word “similarly” when referring
to its denial of the Nationwide settlement set-off, the trial court’s denial
still was error. The only argument upon which the insured relies in
seeking to affirm the trial court’s denial of the $100,000 Nationwide UM
benefits set-off is that no Florida statute expressly authorizes one UM
carrier to obtain a set-off for duplicate benefits paid by another UM carrier.
That argument lacks merit. Section 627.727(1), Florida Statutes
(2018), requiring motor vehicle liability insurance policies issued in this
state to also provide uninsured and underinsured motor vehicle coverage,
states, in pertinent part:
The coverage described under this section 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; under any automobile medical expense coverage; under
any motor vehicle liability insurance coverage; or from the
owner or operator of the uninsured motor vehicle or 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.
§ 627.727(1), Fla. Stat. (2018) (emphasis added).
Although section 627.727(1) does not define “similar law” or expressly
refer to “any uninsured or underinsured motorist law” as it does for other
types of insurance laws, we consider “similar law” to encompass section
627.727 itself, because section 627.727 is a legislatively-enacted coverage,
just as “workers’ compensation law, personal injury protection benefits,
and disability benefits law” are legislatively-enacted coverages. See Nehme
v. Smithkline Beecham Clinical Labs., Inc., 863 So. 2d 201, 205 (Fla. 2003)
(“Under the doctrine of noscitur a sociis (a word is known by the company
it keeps), one examines the other words used within a string of concepts
to derive the legislature’s overall intent.”). Thus, pursuant to section
627.727, we conclude benefits provided under a UM policy cannot
duplicate benefits already paid to an insured under another UM policy.
Applying that conclusion here, the $100,000 Nationwide UM benefits
cannot duplicate the benefits under the insurers’ two UM policies. Put
another way, because the insured has not disputed the $100,000
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Nationwide UM benefits duplicated the jury-determined UM benefits
against the insurers, the $100,000 Nationwide UM benefits must be set off
from the jury verdict.
Our conclusion is consistent with our decision in Aetna Casualty &
Surety Co. v. Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991). There, Langel
was injured by two uninsured motorists in two nearly simultaneous
accidents. Id. at 1372. Fortunately for Langel, he was covered by two
Aetna policies – a $300,000 UM policy issued to his mother-in-law, and a
$100,000 UM policy issued to him. Id. at 1371-72. Langel made a claim
against both policies to cover his damages. Id. at 1372. Aetna paid Langel
the full $100,000 under his UM policy. Id. Aetna then brought an action
to determine whether it owed any further damages to Langel under his
mother-in-law’s $300,000 UM policy. Id. at 1371-72.
At trial, the Langel argued, and Aetna conceded, he was entitled to
$46,000 in past medical expenses and $299,000 in future rehabilitation
expenses, a total of $345,000. Id. at 1373. The main dispute involved the
amount of the Langel’s future medical expenses, lost earnings and
intangibles. Id. The jury returned a non-itemized verdict of $450,000 in
damages, which was $105,000 more than the $345,000 in damages
stipulated to the jury. Id. The jury also found Langel’s comparative fault
was 10%, thus reducing the jury verdict to $405,000. Id. at 1372.
The trial court then determined Aetna was entitled to set off from the
$405,000 jury verdict the $100,000 which Aetna paid Langel under his
UM policy. Id. As a result, the trial court entered a $305,000 net judgment
in Langel’s favor against Aetna under his mother-in-law’s UM policy. Id.Langel appealed the $100,000 set-off. Id. We affirmed, reasoning:
[A] UM settlement amount may … be set off if it duplicates
damages otherwise awarded. Section 627.727(1), Fla. Stat.
(1989). But the burden is on the UM carrier to demonstrate
that the settlement to whatever extent constituted a
duplication of the amount awarded by the jury.
….
[T]here is every indication – and no reason to believe
otherwise – that the amount awarded by the jury was the total
amount of damages suffered by [Langel] in the two accidents
and that the amount awarded over and above the stipulated
amounts included intangibles as well as the disputed future
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special damages. This conclusion is bolstered by the jury’s
expressed inability to apportion the damages, the necessary
implication being that the award covered both accidents.
Clearly, the damages finally awarded by the jury included
the damages contemplated by the $100,000 settlement. The
“common sense” of the matter demonstrates duplication. It
therefore would be inequitable to deny a set-off for the
settlement and, as to this, the trial court was correct.
Id. at 1373 (internal citations omitted).
As in Langel, the instant case also involves multiple UM policies – the
Nationwide UM policy which settled for $100,000, and the insurers’ two
UM policies which went to trial here. The insured has not disputed the
$100,000 Nationwide UM benefits duplicated the jury-determined UM
benefits against the insurers. Thus, pursuant to section 627.727(1), the
$100,000 Nationwide UM benefits must be set off from the jury verdict.
The insured’s brief distinguishes Langel from the instant case on the
basis that, “in Langel the insurer that sought and obtained the set-off (i.e.,
Aetna) was the same insurer that had paid the settlement monies to the
plaintiff (i.e. Aetna). Further, unlike the instant case, Langel involved two
separate accidents.” However, the insured’s brief does not attempt to
ascribe any significance to those factual distinctions. We do not see any
significance to those factual distinctions either.
In the alternative, the insured argues, “Langel was wrongly decided and
this Court should recede from Langel.” The insured argues we should
instead follow our sister court’s holding in State Farm Mutual Auto
Insurance Co. v. Vega, 753 So. 2d 738 (Fla. 3d DCA 2000). However, the
insured’s reliance on Vega is misplaced.
In Vega, the plaintiff was insured for UM benefits by State Farm. Id. at
739. The plaintiff also was insured for health care benefits by Guardian,
through his private employer. Id. After the plaintiff was injured by an
underinsured motorist, the plaintiff received health care benefits from
Guardian, and sued State Farm for UM benefits. Id. at 739-40. The case
proceeded to trial, where a jury determined the plaintiff’s damages,
including medical expenses. Id. at 740. State Farm moved to set off from
the verdict Guardian’s payment of the plaintiff’s medical expenses. Id.
State Farm argued Guardian’s health care benefits qualified under section
627.727(1) as benefits which are “available to an insured under any
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workers’ compensation law, personal injury protection benefits, disability
benefits law, or similar law.” Id. The trial court denied that set-off. Id.
The third district affirmed, reasoning in pertinent part: “Guardian’s
group health insurance benefits were payable pursuant to its private
contract with [the plaintiff] and not payable pursuant to any legislatively
enacted ‘similar law’ as contemplated by section 627.727(1) of the
uninsured motorist statute.” Id.
Unlike the Guardian health care benefits paid to the plaintiff pursuant
to a private contract in Vega, the $100,000 Nationwide UM benefits were
payable pursuant to a legislatively-enacted “similar law,” that is, section
627.727 itself. Thus, as in Langel, we see nothing in section 627.727
which permits one payment of UM benefits under that statute to duplicate
another payment of UM benefits under that statute. And because the
insured here has not disputed the $100,000 Nationwide UM benefits
duplicated the jury-determined UM benefits, section 627.727(1) mandates
the $100,000 Nationwide UM benefits be set off from the jury verdict.
Conclusion
Based on the foregoing, we affirm the jury verdict determining the
insured’s damages to be $810,000 for loss of earnings, $369,629 for
medical damages, and $400,000 for pain and suffering, for a total
$1,579,629.00.
However, we reverse the trial court’s denial of the insurers’ motion for
set off, and thus reverse the trial court’s final judgment. We remand for
the trial court to: (1) enter an order granting the insurers’ motion to set off
from the $1,579,629.00 jury verdict the $480,667.50 AIG settlement and
the $100,000 Nationwide settlement, and (2) enter an amended final
judgment of $998,961.50 in the insured’s favor.
Affirmed in part, reversed in part, and remanded with instructions.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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