UM Coverage is Over and Above PIP, Work Comp, and Disability Benefits
Under F.S. 627.727(1), 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 (“PIP”) benefits, disability benefits law…”
This means that the UM insurer will get a credit for any amounts paid or payable by PIP or workers compensation.
Example – UM Insurer Gets Credit for PIP Payments
A careless driver crashes into you in Florida. PIP pays $10,000 to the hospital for your medical bills.
The careless driver is driving an uninsured motor vehicle. You make a claim with a UM insurer for benefits.
In your claim for damages against the UM insurer, they don’t have to pay you the $10,000 in PIP that was paid.
UM Insurer Gets Setoff for Settlement with the Workers‘ Compensation Carrier
This isn’t my case. In Primo v. State Farm Mutual Automobile Insurance Company, Dist. Court, MD Florida 2014, William Primo sued his uninsured motorist insurer, State Farm.
Primo claimed that Carole Fudge, an underinsured motorist, was negligent in rear-ending Primo’s vehicle.
Primo was working when the crash happened. Primo received a $20,050 lump sum settlement for a general release with the workers’ compensation insurer.
During the lawsuit, State Farm offered Primo $40,000 to settle all of his claims against State Farm.
The court said that State Farm was entitled to a credit of $20,050 for the full workers’ compensation settlement. (State Farm was entitled to other credits as well.)
After the court calculated State Farm’s setoffs, Primo got a judgment of $16,221.80. Primo’s costs for the case were $9,503.48. Thus the final judgment was for $25,725.28.
Since that amount was less over 25% less than State Farm’s $40,000 proposal for settlement, State Farm was awarded attorney’s fees and costs incurred from the date of its offer of settlement, which were $46,795.38.
State Farm was awarded $21,070.10, which was the balance of State Farm’s fee awarded minus Primo’s judgment.
UM Insurer Gets Credit for Workers’ Compensation Payments
If workers’ compensation would’ve paid your bills or lost wages, UM wouldn’t owe you what workers comp paid.
UM Coverage is Excess Over Tortfeasor’s Liability Coverage
In Florida, uninsured motorist coverage is excess over the tortfeasor’s liability coverage and other benefits obtained from the owner or operator of the uninsured motor vehicle or any other person jointly or severally liable.
UM coverage is added to the bodily injury liability coverage, instead of subtracted.
Example – UM Coverage is Excess Over Tortfeasor’s Liability Coverage
Take the example above except assume that the careless driver (tortfeasor) has $10,000 in bodily injury (“BI”) liability insurance. Assume you have $10,000 in UM insurance.
If the value of your case is $20,000, then the BI insurer should pay you $10,000. The UM insurer would owe you $10,000.
This is because the $10,000 in UM insurance is added to the $10,000 in BI insurance, for purposes of available insurance.
Does an Uninsured Motorist Insurer Get a Setoff for a Workers’ Compensation Death Benefit?
Yes, if the workers comp death benefit is due and payable. Nat’l Union Fire Ins. Co. v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000).
In Blackmon, Richard Blackmon was driving a truck for his employer when he collided with a vehicle driven by Kenneth Jon Faass (Faass).
Mr. Blackmon died several days later as a result of his injuries. Faass did not have liability insurance.
Kay Blackmon, the deceased’s wife, sued National Union Fire Insurance Company of Pittsburgh (National), the uninsured motorist insurer of decedent’s employer. (National is a subsidiary of AIG.)
The jury found Faass negligent and totally at fault in the accident. The jury awarded Kay, as personal representative of the estate of Richard, $525,800 for loss of support and services and $418,500 for pain and suffering damages.
Pursuant to section 440.16(1)(b), Florida Statutes, Kay was entitled to $100,000 in workers’ compensation, the maximum death award at the time. (The max death award is now $150,000.)
Approximately $27,000 of such award had been paid to Kay at the time of the uninsured motorist insurance trial.
The appeals court said that the entire $100,000 death benefit must be set off, not just the portion of the workers’ compensation award that had already been paid.
This is because the entire $100,000 death benefit remained due and payable at the time of the verdict.
Thus, National gets to subtract the $100,000 death benefit from the verdict ($525,800 for loss of support and services and $418,500 for pain and suffering). National owed Kay the difference.
Out of State Policies May Not Be Excess Over Tortfeasor’s Liability Coverage
If you’re hurt in a car crash while visiting Florida, your out of state car insurance may require a setoff of liability coverage.
For example, many Georgia car insurance policies don’t have “add-on” UM coverage. If you have Georgia car insurance without add-on UM coverage and you’re hurt in a Florida car accident, UM gets a setoff for the amount of BI coverage available.
Thus, taking the earlier example, UM wouldn’t owe you anything since the available BI insurance is in the same amount as the UM coverage.
UM Policy With Setoff of Liability Coverage Isn’t Valid
Any Florida UM policy that requires a setoff of liability coverage against UM coverage is invalid.
Out of State Policies May Have a Valid Setoff
However, if you have an out of state policy, it may be valid if it requires a setoff of liability coverage. Thus, some people who are hurt in a motor vehicle accident in Florida while visiting from another state, may have UM insurance that is requires liability coverage to be setoff against UM.
No Credit for Future Medical or Wage Benefits Paid by Work Comp
A UM insurer isn’t entitled to a setoff for future medical and future wage benefits payable under workers’ compensation coverage. USAA Casualty Insurance Co. v. McDermott, 929 So.2d 1114 (Fla. 2d DCA 2006). This assumes it is a Florida car insurance policy.
Does UM for Out of State Visitor Hurt in Florida Get a Setoff?
It depends on the out of state UM law.
For example, assume that a Georgia resident is hurt in a Florida car accident. Assume he or she is entitled to Georgia UM insurance.
Georgia’s uninsured motorist law doesn’t say that you can’t recover future medical expenses payable under workers’ compensation. Mabry v. State Farm Mutual Automobile Insurance Company, Ga: Court of Appeals 2015. Thus, you can recover future medical expenses even if they are payable under workers’ compensation.
Example – No Credit for Future Medical or Wage Benefits Paid by Work Comp
Mr. McDermott is a sheriff. He was on duty in Florida. Mr. Cheatham’s car collided with Mr. McDermott’s patrol car. Mr. McDermott suffered injuries including injuries to his back.
McDermott was Entitled to Workers Compensation Benefits
Because Mr. McDermott was on duty, he was entitled to workers’ compensation coverage for this incident.
USAA admitted liability.
Jury Awarded $681,303 ($530,000 Was for Future Bills & Wages)
Following a reduction for setoffs, including workers’ compensation already recovered by Mr. McDermott, the trial court entered a total judgment of $644,100 against Mr. Cheatham and USAA.
USAA is NOT Entitled to Setoff for Future Bills and Future Lost Wages
USAA was not entitled to a setoff for the $530,000 that the jury awarded for future medical expenses and future lost wages.
Important Fact: At the time of the verdict, Mr. McDermott didn’t settle his workers’ compensation case, so there was no guarantee that he would receive or is entitled to receive benefits for future claims.
USAA is NOT Entitled to Setoff for Future PIP That Is Payable for Future Lost Income or Future Medical Expenses
USAA also was not entitled to a reduction from the verdict for future PIP benefits that are payable to reimburse future lost income or future medical expenses.
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