41
Fla. L. Weekly D1998aTop of Form

Torts
— Automobile accident — Damages — Setoff — Personal injury protection
benefits — Where jury determined that of the total amount of past medical
expenses plaintiff claimed, only a portion were caused by the accident, common
sense analysis leads to conclusion that $10,000 paid by PIP insurer for claims
related to the accident in question was duplicated in the jury award — Trial
court erred in failing to award setoff in full amount of PIP benefits paid

KRISTAL
LYNN CARPENTER, Appellant/Cross-Appellee, v. MILDRED FRANCES CHAVEZ,
Appellee/Cross-Appellant. 2nd District. Case No. 2D14-6010. Opinion filed
August 31, 2016. Appeal from the Circuit Court for Pasco County; David Seth
Walker, Senior Judge, and Linda H. Babb, Judge. Counsel: Charles W. Hall, Mark
D. Tinker, and DeeAnn J. Petika of Banker Lopez Gassler P.A., St. Petersburg,
for Appellant/Cross-Appellee. Tatiana Boohoff of Boohoff Law, P.A., Brandon,
for Appellee/Cross-Appellant.

(SILBERMAN,
Judge.) Kristal Lynn Carpenter appeals a final judgment in favor of Mildred
Frances Chavez in Chavez’s suit for personal injuries that arose from an
automobile accident. Carpenter raises an issue regarding the setoff of personal
injury protection (PIP) benefits. On cross-appeal, Chavez asserts that the
trial court erred in denying her challenges for cause during voir dire, and we
affirm on the cross-appeal without discussion. On the main appeal, we reverse
the final judgment and remand for the full PIP benefits of $10,000 to be set
off from the jury’s verdict.

In
this personal injury action, Chavez claimed that she incurred $203,723.86 in
past medical expenses as a result of the automobile accident she had with
Carpenter. The jury heard evidence that Chavez had a preexisting condition of
four disc herniations in her neck. The jury awarded Chavez $47,840 for her past
medical expenses that were caused by the accident with Carpenter. The jury
found that Chavez had not sustained a permanent injury as a result of this
accident and awarded no future damages.

It
is undisputed that Chavez received the full $10,000 of PIP payments for medical
expenses related to the accident. As the parties agreed, the trial court
conducted a posttrial hearing to determine the PIP setoff. Chavez argued that
because the jury did not award the full amount of medical expenses claimed and
it could not be determined for which bills the jury made its award, the defense
could not demonstrate any duplication of benefits. Thus, Chavez argued that the
PIP setoff should not apply.

Carpenter
argued that a setoff of the full $10,000 was appropriate under the “common
sense” approach, see Aetna Cas. & Sur. Co. v. Langel, 587 So.
2d 1370, 1373 (Fla. 4th DCA 1991), because the elements of damages the jury
awarded are the same type of damages that the PIP policy would pay. The trial
court entered an order providing for a setoff of only $2000 of the $10,000 PIP
payment because the jury award was about twenty percent of the medical expenses
that were claimed at trial. Subsequently, the trial court entered a
final judgment that included the $2000 setoff of the PIP benefit. On appeal,
Carpenter contends that Chavez received an $8000 windfall that requires this
court to reverse the final judgment.1

Section
627.736(3), Florida Statutes (2014), governs an insured’s rights to recover
special damages in tort actions. The statute provides that “[a]n injured party
who is entitled to bring suit under the provisions of ss. 627.730-627.7405, or
his or her legal representative, shall have no right to recover any damages for
which personal injury protection benefits are paid or payable.” § 627.736(3); see
also Norman v. Farrow, 880 So. 2d 557, 560 (Fla. 2004) (“[S]ection
627.736(3) dictates that an insured plaintiff has ‘no right to recover’ damages
paid or payable by PIP benefits.”). The setoff of PIP benefits paid serves the
purpose of avoiding a duplication of benefits. Pate v. Renfroe, 715 So.
2d 1094, 1099 (Fla. 1st DCA 1998); see also McKenna v. Carlson,
771 So. 2d 555, 558 (Fla. 5th DCA 2000) (stating that the purpose of a PIP
setoff is to prevent a plaintiff from receiving a double recovery). The party
seeking a setoff has the burden to prove that a duplication of benefits has
occurred. Pate, 715 So. 2d at 1099.

In Langel,
587 So. 2d at 1373, the Fourth District used a “common sense” approach, citing Centennial
Insurance Co. v. Fulton, 532 So. 2d 1329 (Fla. 3d DCA 1988), to determine
that the PIP benefits paid were duplicated by the damages that the jury
awarded. Edward Langel was involved in two related accidents, and the jury was
unable to apportion the damages between the accidents. 587 So. 2d at 1372. The
Langels claimed $46,000 in past medical expenses and $299,000 in future
rehabilitation expenses, and the insurer conceded those amounts. Id. at
1373. At issue were future medical expenses, lost earnings, and intangible
damages. The jury returned a general verdict of $450,000 in damages. The Langel
court stated that “[t]he total jury award logically must have included the most
basic elements of damages such as those for which PIP and medpay are payable in
the first place.” Id. The Langel court determined that the trial
court should have set off as collateral sources the $30,000 in PIP and medpay
benefits. Id.

Here,
Chavez exhausted her $10,000 of PIP benefits that arose from the accident with
Carpenter. For an insured to be entitled to PIP benefits, the medical expenses
must be related to the accident in question, reasonable, and necessary. See
Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031, 1034 (Fla. 2d DCA
2001); Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA
1998); see also State Farm Mut. Auto. Ins. Co. v. Rhodes &
Anderson, D.C., P.A., 18 So. 3d 1059, 1064 (Fla. 2d DCA 2008) (recognizing
that a PIP claim can be “denied because the claim was unrelated, medically
unnecessary, or unreasonable”). Therefore, the $10,000 in medical expenses that
PIP benefits paid had to be for medical expenses caused by the accident.

The
jury determined that of the $203,723.86 in past medical expenses that Chavez claimed,
only $47,840 were caused by the accident. Thus, the jury determined that
the amount of expenses over the $47,840 were not caused by the accident. The
balance of Chavez’s claimed medical expenses that the jury determined were not
caused by the accident, under a common sense analysis, were not paid for by
Chavez’s PIP benefits. Similarly, under a common sense analysis, the $10,000
paid for PIP benefits was duplicated in the $47,840 that the jury awarded as
past medical expenses caused by the accident.

Therefore,
we reverse the final judgment and the order on Chavez’s motion to determine
setoffs and remand for the trial court to order the full PIP benefits paid of
$10,000 to be set off from the jury’s verdict of $47,840.

Affirmed
as to cross-appeal; reversed and remanded as to main appeal. (CRENSHAW and
BLACK, JJ., Concur.)

__________________

1Carpenter
asserted that the correct amount for the PIP setoff is a significant issue
because the triggering of proposals for settlement depend upon the appropriate
judgment amount.