First District Affirms Trial Court Order Granting Underinsured Motorist Insurer’s Motion to Set-Off Damages Awarded to Insured by a Tortfeasor’s Liability Policy Limits

After being involved in a motor vehicle accident with Marquisha Thurman, the appellant pursued, then abandoned a claim against Thurman, who had a liability policy with a $25,000 per person limit. After abandoning his claim against Thurman, the appellant pursued an underinsured motorist claim with the appellee, when denied the claim, arguing that Thurman was not an underinsured motorist and that the appellant’s damages could be covered under Thurman’s liability coverage. At trial, the jury found that Thurman was the legal cause of loss, injury or damage to the appellant and awarded him $17,000 in damages. 

Following the trial, the appellee filed a motion to set off verdict, a motion to amend final judgment, and a motion for attorney’s fees and costs. The trial court granted all three motions and amended the final judgment in favor of the appellee, finding that because Thurman’s bodily injury liability limits of $25,000 was available to the appellant at the time of the accident, the appellee was entitled to a set-off. 

On appeal, the appellant argued that the appellee waived its entitlement to a set off by not pleading it as an affirmative defense and that it failed to demonstrate that the funds from Thurman’s liability policy were available to the appellant. In analyzing the first argument, the First District found that the appellee did not waive its entitlement to a set-off as there is no requirement in Section 627.727 that a set-off be pled as an affirmative defense. As to the second argument, in analyzing section 627.727(6) and the Second DCA decision in State Farm Mut. Auto. Ins. Co. v. Siergiej, 116 So. 3d 523, 529 (Fla. 2d DCA 2013), the First District ruled that the statute treats the funds from Thurman’s policy as available to the appellant, even if they had not actually been paid to him and, therefore, the appellee was not required to prove that these funds were “available” to him. 

The ruling in this case appears to both clarify the statutory mechanism for an underinsured motorist set-off and also seems to imply that a statutory defense need not be pled as an affirmative defense if the statute in question does not specifically require the defense be pled. It is this second interpretation that, perhaps, has the furthest reaching implications, as not being required to plead a statutory defense would serve to make all statutory defenses available at any point in a suit. The development of this specific theory is something that all carriers should either watch for or seek to develop in a suit where an available defense may have not been pled and an amendment cannot be obtained. 

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