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On April 3, 2013, the 4th DCA ruled in Forest v. Sutherland, 38 Fla. L. Weekly D742A (Fla. 4th DCA April 3, 2013) that a post-trial collateral source setoff is to be offset by the premium paid by the plaintiff to secure PIP benefits. The 4th DCA's decision followed that of the 5th DCA in McKenna v. Carlson, 771 So. 2d 555 (Fla. 5th DCA 2000) and quoted the collateral source statute, § 768.76(1), Fla. Stat. (1999).

This bodily injury action arose out of an automobile accident. The jury returned a total verdict for plaintiff in the amount of $9,737 (an award of the plaintiff's past medical expenses). Defendant filed a post-trial motion for collateral source setoff in the amount of the $10,000 in PIP benefits paid to plaintiff.

The trial court granted defendant's motion and reduced the verdict by the $10,000 in PIP benefits, then entered a final judgment on behalf of the defendant. Plaintiff subsequently filed a motion to vacate the final judgment but that motion was denied by the trial court.

On appeal, the 4th DCA reversed and remanded to the lower court to determine the amount paid by plaintiff to obtain PIP coverage. That amount was then to be offset against the $10,000 collateral source setoff.

This summary was prepared by Susan R. Fuller of our firm.

Susan Fuller



38 Fla. L. Weekly D742a


Torts -- Automobile accident -- Damages -- Setoff -- Collateral source payments -- Trial court erred in failing to offset collateral source reduction by amount of premiums paid by plaintiff in obtaining personal injury protection coverage

BRANDON FOREST, Appellant, v. ASHLEY MICHELLE SUTHERLAND, Appellee. 4th District. Case No. 4D12-1048. L.T. Case No. 10-36011 CACE 08. April 3, 2013. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge. Counsel: Tiffany Eisenberg of Bernheim & Dolinsky, LLC, Fort Lauderdale, for appellant. Michael J. Neimand, Office of General Counsel, United Automobile Insurance Company, Miami, for appellee.

(Polen, J.) We reverse the final judgment in favor of the defendant because we find error in the trial court's failure to offset any collateral source reduction by the amount of premiums paid by the plaintiff in obtaining PIP coverage. Although we reverse on this issue, we are not persuaded by the other arguments on appeal.

The plaintiff was injured in a car accident and sued the defendant in a negligence action. The defendant was determined to be liable, and the jury awarded $9,737.00 for past medical expenses. There were no other damages awarded.

The defendant filed a motion for collateral source setoff for PIP benefits paid or payable. This motion argued that any award for past medical expenses should be reduced by $10,000 for PIP benefits paid or payable. The trial court agreed and entered a final judgment in favor of the defendant, which stated: “the Court having reduced the verdict by collateral source PIP payments paid or payable, be it ordered and adjudged that Plaintiff shall take nothing by this action and that Defendant . . . shall go hence without day.” Thereafter, the plaintiff filed a motion to vacate the final judgment. At the hearing on the motion to vacate, the plaintiff admitted that “PIP paid out $10,000.” The plaintiff also argued that the set-off should be reduced by the amount of premiums paid by the plaintiff to obtain PIP coverage. The trial court denied the plaintiff's motion to vacate, and this appeal followed.

Section 768.76(1) provides that any collateral source reduction of damages

shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant's immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

§ 768.76(1), Fla. Stat. (1999). When an award of damages is reduced according to the amount of PIP benefits paid to the plaintiff, section 768.76(1) “allow[s] a reduction from the setoffs for the plaintiff's cost of obtaining PIP coverage . . . .” McKenna v. Carlson, 771 So. 2d 555, 558 (Fla. 5th DCA 2000).

We remand this case to the lower court because the court failed to consider reducing the collateral source set-off by the amount paid by the plaintiff in obtaining those collateral source benefits. On remand, and in accordance with McKenna and section 768.76, Florida Statutes, the lower court shall determine the amount paid by the plaintiff in obtaining PIP coverage. That amount shall then be used to offset against any reduction in damages awarded to the plaintiff based on PIP benefits paid as a result of his injury. Accordingly, we reverse and remand this case for further proceedings.

Reversed and Remanded. (Damoorgian and Levine, JJ., concur.)

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