Judge Mark W. Klingensmith of Fourth District Court Of Appeal. Courtesy photo.

Florida's Fourth District Court of Appeal ruled Wednesday on a lawsuit against an insurance company, which resulted in a plaintiff's award that shrank to nothing — plus attorney fees for the defense.

After plaintiff and front-seat passenger Susan Matrisciani was injured in a rear-end crash, she sued her insurer Garrison Property & Casualty Insurance Co. and an allegedly negligent driver in Palm Beach Circuit Court under a policy covering underinsured motorists.

Matrisciani appealed an order disregarding a $111,461 judgment and finding her liable for $61,000 in attorney fees. But the Fourth DCA sided with Garrison Property & Casualty Insurance Co., pointing to a $1,000 settlement proposal it made about two years into the litigation.

At trial, jurors awarded Matrisciani $92,000 in damages. Coupled with a more than $19,000 summary judgment for medical bills, the final amount totaled $111,461, according to Wednesday's ruling.

But things went downhill from there as the insurance company moved for attorney fees under its proposal for settlement and sought to reduce the verdict.

Dwindling

First, post-trial motions revealed that the plaintiff's medical bills were lower than the jury estimated, so the court reduced those by $19,400.

And then the court also approved $39,000 in setoffs for personal injury protection, or PIP, benefits that Garrison had already paid out and for reductions Medicare had provided. This brought the plaintiff's jury award down to $62,147.

Once the award fell below the negligent driver's $100,000 insurance policy limit, the trial court found Garrison wasn't liable for underinsured benefits — resulting in a $0 judgment against the company.

And because Garrison had offered to settle, the court found it could recover $61,808 in attorney fees and costs.

The Fourth DCA took no issue with the reduced jury award, finding, "The fact this award exceeded the amount of the bills in evidence showed that the jury 'took improper elements of damages' into account, and that the award was not 'supported by the evidence.' "

The appellate panel also found Palm Beach Circuit Judge Lisa Small was right to account for the PIP benefits money Matrisciani had already received. But it ruled the plaintiff should have been credited for policy premiums she had paid.

Fourth DCA Judge Mark Klingensmith wrote the ruling, with Fourth DCA Judge Cory Ciklin and Broward Circuit Judge Jeffrey Levenson, sitting by designation.

The appeals court sided with Matrisciani on her Medicare payments, pointing to a prior Fourth DCA decision that found such reductions can't be decided after the fact.

" If Garrison sought to prevent the Medicare reductions from being included within the calculation of the verdict, the proper method of doing so was to raise its objection to this evidence during trial," the opinion said.

But the appellate panel batted away claims from the plaintiff that the settlement offer was ambiguous because it said Matrisciani had to "satisfy all relevant liens" without specifically mentioning the $29,211 medical lien against her. The plaintiff also argued the proposal didn't explain whether it would "resolve all claims" against Garrison or the negligent driver as well.

"It is clear that the Medicare lien was the only 'relevant lien; that needed to be satisfied under the proposal since no other payor had asserted a claim of lien at the time the proposal was served," the opinion said. "The fact that the other driver was not even mentioned in the proposal should have given Matrisciani the indication that the proposal had nothing to do with that driver and would not have terminated that part of her lawsuit."

And although Garrison's $1,000 settlement proposal was small, the court concluded it was made in good faith.

"Here, the record reflects that Garrison made its proposal for settlement following almost two years of litigation and extensive discovery," the opinion said. "They understood the amount of medical bills previously incurred, and the extent of Matrisciani's injuries, to assess her pain and suffering and future medical needs in light of the policy limits available from the negligent driver."

The opinion ordered the trial court to take another look at setoffs to decide on a final amount. And if that amount is within the threshold needed to trigger attorney fees, the plaintiff will be on the hook.

Matrisciani's lawyer Henry A. Seiden of Seiden Law in Delray Beach and counsel to Garrison, Charles M-P George of the Law Offices of Charles M-P George in Coral Gables and Harlan H. Gladstein in Plantation did not immediately respond to a request for comment.

Read the ruling:

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