KELLY, Judge.
State Farm Mutual Automobile Insurance Company appeals from a $100,000 judgment entered in favor of its insured, appellee Scott Siergiej, in an action seeking uninsured motorist coverage. The judgment equals the coverage limit on the uninsured motorist policy State Farm issued to Mr. Siergiej. The jury's verdict totaled $211,000. Before trial, State Farm waived its right to subrogation and consented to a settlement between Mr. Siergiej and the tortfeasor, a self-insured governmental agency, for $50,000 when $100,000 in coverage was available. If the self-insured governmental agency is treated the same way as a standard liability insurer, as State Farm argues it should be, State Farm is entitled to a credit of $100,000 against the verdict, which together with the other credits State Farm claims, will reduce the judgment to an amount less than $100,000. See § 627.727(6)(c), Fla. Stat. (2003). We conclude, however, that State Farm is only entitled to a credit for the actual settlement amount, $50,000. Accordingly, we affirm.
After being involved in a crash with a motorcycle operated by an employee of the Lee County Sheriff's Department, Mr. Siergiej sued the Lee County Sheriff's Department (the Sheriff) and State Farm, his uninsured motorist insurer, asserting two negligence claims against the Sheriff arising from the crash and seeking uninsured motorist benefits from State Farm. Mr. Siergiej eventually reached an agreement with the Sheriff to settle his claim for $50,000, which was less than the $100,000 in self-insured liability funds available from the Sheriff. Following the dictates of section 627.727(6), Mr. Siergiej obtained State Farm's permission to settle his claim against the Sheriff for less than the full amount of available self-insurance.
The litigation between Mr. Siergiej and State Farm continued, the primary dispute being the cause of the injuries to Mr. Siergiej's ankle and to a lesser extent the cause of the injuries to his back — liability was not at issue. At the conclusion of the three-day trial, the jury found that the accident had caused the injuries to both Mr. Siergiej's neck and his ankle and it returned a verdict awarding him $211,000. Subsequently, State Farm asked the court to determine what amounts should be credited against the verdict. Specifically, State Farm wanted credit for the $100,000 in self-insured liability funds available from the Sheriff, less $13,101 the Sheriff had paid for property damage, for a total of $86,899; $26,780 in medical expenses awarded for the neck injury Mr. Siergiej's workers' compensation carrier had paid; $20,000 awarded for past lost wages, which was less than the $44,930 in lost wages and disability benefits the workers' compensation carrier had paid; and $5000 in PIP benefits State Farm had paid under Mr. Siergiej's policy. Ultimately, the court, without explanation, denied State Farm's motion and entered a judgment in Mr. Siergiej's favor in the amount of $100,000, State Farm's policy limits.
On appeal State Farm argues that the trial court did not apply the proper credits and that had it done so the judgment would have been for $72,321.60. Of the possible credits to which State Farm claimed entitlement, the primary one at issue in this appeal is the credit for the
In support of this argument, State Farm points to section 627.727(6)(c), which provides that an underinsured motorist insurer is entitled to a credit against its insured's total damages in the amount of the underinsured motorist's liability policy in cases where it has given its insured permission to settle with the underinsured motorist in an amount that does not fully satisfy its insured's claim. Alternatively, State Farm points to section 627.727(1), which limits uninsured motorist coverage to amounts "over and above ... the benefits available" to the insured from the owner or operator of the uninsured motor vehicle. State Farm also relies on section 627.727(1) in support of its contention that it was entitled to credit for the amounts Mr. Siergiej received in workers' compensation and PIP benefits.
Mr. Siergiej counters that section 627.727(6)(c) is inapplicable in this case because it governs settlements with liability insurers, not self-insured entities such as the Sheriff and that, therefore, State Farm is not entitled to credit under that section. Mr. Siergiej at least tacitly concedes, however, that under section 627.727(1), State Farm is entitled to a credit for the $50,000 he received from the Sheriff. Finally, Mr. Siergiej contends that while section 627.727(1) does provide for credits for PIP and workers' compensation benefits, it does so only where the damages awarded by the jury duplicate those benefits. He contends State Farm did not prove that the amounts awarded by the jury duplicated the PIP and workers' compensation benefits he had received.
Section 627.727 regulates underinsured and uninsured motorist coverage. Subsection 627.727(6) outlines the procedure an injured insured must follow if he elects to settle with a liability insurer and its insured in an amount that does not fully satisfy his claim for personal injuries so as to create an underinsured motorist claim.
Mr. Siergiej points to Young v. Progressive Southeastern Insurance Co., 753 So.2d 80 (Fla.2000), and argues that because Young held that a self-insured motorist with a certificate of self-insurance with limits of liability lower than the damages sustained by the injured person is not an underinsured motorist as defined in section 627.727, subsection (6) is inapplicable; thus, State Farm is not entitled to a credit for the Sheriff's $100,000 in self-insurance. According to Young, as a self-insured, the Sheriff is considered to be "statutorily uninsured," not underinsured:
Id. at 84-85.
State Farm counters Mr. Siergiej's argument in the only way it can — it has urged us to find that Young does not control in this case because the issue in Young was the validity of a policy exclusion that excluded self-insured vehicles from the definition of uninsured or underinsured motor vehicles. Notwithstanding the fact that the issue in Young was different, we believe Young compels the conclusion that subsection (6), which pertains to underinsured motorist claims where the injured party has agreed to settle with a liability insurer, is inapplicable in this case because according to Young, the Sheriff as a self-insured is neither an underinsured
As additional support for its argument that subsection (6) should be read to include self-insured motorists, State Farm points to the fact that Mr. Siergiej invoked the settlement procedure set forth in that subsection, treating the Sheriff as though it was a liability insurer and seeking State Farm's approval before accepting a settlement. In turn, State Farm consented to the settlement, thereby waiving its subrogation rights. That the parties treated the statute as though it applied is not a basis for us to ignore Young. While it may seem unfair that Mr. Siergiej, having benefited from relying on subsection (6),
In the alternative, State Farm argues that under subsection (1) it should receive a credit for the full amount of the Sheriff's self-insurance. It also relies on subsection (1) as the basis for its claim that it is entitled to a credit for the PIP and workers' compensation benefits Mr. Siergiej received. Subsection (1) states that the coverage provided for in section 627.727 is to cover the difference, if any, between the benefits available to the insured from other sources and the damages the insured has sustained, up to the limits of the policy:
Thus, the statute gives State Farm a credit against Mr. Siergiej's damages to the extent the jury's award duplicates the benefits available to Mr. Siergiej from workers' compensation, PIP, or the Sheriff. See State Farm Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999).
With respect to the benefits he received through PIP or workers' compensation, Mr. Siergiej contends that State Farm was not entitled to a credit because it did not establish that the damages awarded by the jury for lost wages and past and future medical expenses duplicated those benefits. We find no merit to that contention. Accordingly, we conclude that State Farm was entitled to credits for those amounts.
Whether State Farm is entitled to a credit for the full amount of the Sheriff's self-insurance presents a more interesting question. State Farm is clearly entitled to credit for the $50,000 Mr. Siergiej received from the Sheriff. In the trial court, Mr. Siergiej acknowledged that State Farm was entitled to this credit, and on appeal, while not expressly conceding the point, he has not argued otherwise. Whether State Farm is entitled to credit for the remaining self-insurance coverage requires us to consider the meaning of "benefits available" as used in subsection (1).
In United Services Automobile Ass'n v. Phillips, 740 So.2d 1205, 1208-09 (Fla. 2d DCA 1999), this court discussed the meaning of the phrase "benefits available" in section 627.727(1) and stated that "benefits available" equated to a "legally enforceable right to recover which arises upon the occurrence resulting in the insured's injury." In Phillips, the injured party had settled with the tortfeasor, a government entity, for $100,000, which was the retained limit on its policy of liability insurance that provided for up to $2 million in coverage for amounts exceeding the retained limit of $100,000. USAA sought credit for the entire $2.1 million claiming it
Unlike subsection (6), which entitles an insurer to credit for the full amount of the underinsured motorist's liability policy, whether or not the full amount has been paid to its insured, subsection (1) provides that uninsured motorist coverage "shall not duplicate" benefits available to the insured from other sources. Courts have consistently construed this language to require that the benefits not only be "available" but also that the damages awarded by the jury duplicate the available benefits. See, e.g., Hartford Accident & Indem. Co. v. Lackore, 408 So.2d 1040 (Fla. 1982); Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978); Vecchio, 744 So.2d at 571; Aetna Cas. & Sur. Co. v. Langel, 587 So.2d 1370 (Fla. 4th DCA 1991); Allstate Ins. Co. v. Morales, 533 So.2d 952 (Fla. 5th DCA 1988); Centennial Ins. Co. v. Fulton, 532 So.2d 1329 (Fla. 3d DCA 1988); Bergmann v. Sentry Ins., 422 So.2d 972 (Fla. 4th DCA 1982).
In conclusion, we agree with State Farm that it is entitled to credit against Mr. Siergiej's damages for the $26,780 in medical expenses and $20,000 in past lost wages paid by workers' compensation, the $5000 in PIP benefits, and the $50,000 settlement from the Sheriff. Under section 627.727(1), Mr. Siergiej is entitled to recover the difference between the amount of those benefits and his total damages of $211,000, up to the $100,000 limits of his State Farm policy. When the total amount of benefits available to Mr. Siergiej is subtracted from the total damages awarded by the jury, $109,000 remains, $100,000 of which he is entitled to under his uninsured motorist policy. Because the judgment entered by the trial court was for $100,000, the amount of Mr. Siergiej's policy limits, we affirm the final judgment.
Affirmed.
ALTENBERND and DAVIS, JJ., Concur.