NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D1587a
30 Fla. L. Weekly D147b
Insurance — Uninsured motorist — Setoff — Unless otherwise stipulated, issue of setoff for personal injury protection benefits must be submitted to trier of fact — Verdict which found permanent injury but awarded no damages for pain and suffering was inadequate as a matter of law — New trial required
NAOMI KATZ, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 4th District. Case No. 4D03-2755. Opinion filed January 5, 2005. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David Krathen, Judge; L.T. Case No. 02-4283 18. Counsel: Millard C. Glancy of Law Offices of Millard C. Glancy, Coral Springs, for appellant. Richard A. Sherman, Sr., of Law Offices of Richard A. Sherman, P.A., and David R. Strong of Law Offices of Leonard C. Bishop, Fort Lauderdale, for appellee.
(BRYAN, BEN L., JR., Associate Judge.) Naomi Katz sued her insurer Allstate Insurance Company (Allstate) for injuries and damages incurred as a result of an automobile accident with an uninsured motorist. Count I was for payment of PIP benefits. Count II was for uninsured motorist coverage benefits. Allstate asserted a right of setoff as to Count II. Katz had settled with the tortfeasor for $10,000 and had received $3,798.37 in PIP damages. This exceeded the $12,169.37 the jury awarded on Count I for past medical expenses. The jury found there was a permanent injury but awarded nothing for pain and suffering.
There are two issues on appeal. The first is whether the trial court erred in setting off the settlement amount against the economic damages awarded by the jury where the settlement did not differentiate between economic and noneconomic damages. The second is whether a verdict which finds a permanent injury but awards no damages for pain and suffering is inadequate as a matter of law.
The second district, in Allstate Insurance Co. v. Campbell, 842 So. 2d 1031 (Fla. 2d DCA 2003), addressed the second issue argued by appellant. In Campbell, as the result of injuries sustained in an automobile accident, the jury awarded past and future economic damages to both plaintiffs and found that both of them suffered permanent injuries. The jury did not award either plaintiff any past or future noneconomic damages. On appeal the second district held with respect to past noneconomic damages:
Since the jury found that the Campbells suffered injuries that required treatment by medical care providers as evidenced by the award of past medical costs, the jury’s failure to award even nominal past noneconomic damages was not supported by the weight of the evidence and must be reversed.
Id. at 1034-35. For the same reason, this case is reversed and remanded for a new trial on past noneconomic damages.
As to the first issue regarding setoff, it is now clear that unless otherwise stipulated the issue of PIP setoff must be submitted to the trier of fact. Caruso v. Baumle, 880 So. 2d 540 (Fla. 2004). In this case it was not. Upon retrial it shall be with proper instructions and a responsive verdict form.
REVERSED AND REMANDED. (STONE and WARNER, JJ., concur.)
