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Pate v. Renfroe8/13/1998
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.
Robert E. Pate, the plaintiff below in a personal injury action arising out of an automobile accident, appeals a final judgment in favor of defendant Michael David Renfroe. The five issues raised on appeal are: (1) whether comments in defense counsel's closing argument, to which no objections were made, constituted fundamental error justifying reversal for a new trial; (2) whether the trial court abused its discretion in denying Pate's motion for new trial or additur because, Pate asserts, the jury's verdict that he suffered no permanent injury causally connected to the automobile accident was against the manifest weight of the evidence; (3) whether the trial court erred in giving a jury instruction requested by defendant which was based upon section 316.122, Florida Statutes (1995); (4) whether the trial court abused its discretion in denying Pate's motion for new trial or additur because, Pate asserts, the jury's verdict that he was fifteen percent comparatively negligent was against the manifest weight of the evidence; and (5) whether the trial court erred in reducing the jury verdict in favor of Pate by $10,000 as a set-off for PIP benefits. We affirm on the first four issues, but we reverse the set-off for PIP because no such benefits have been paid or are payable as required by the set-off statute.
The automobile accident occurred on March 1, 1995, when Renfroe ran a red light, striking Pate's vehicle. Pate was making a left turn on a green arrow. The impact caused Pate's vehicle to turn on its side and spin around 360 degrees. Pate's right knee struck the ignition key with force. Pate filed a complaint alleging that Renfroe was negligent and that Pate had suffered permanent injuries as a result of the accident which had caused him to incur medical expenses, lost wages, lost earning capacity, loss of enjoyment of life, pain and suffering. By the date of the verdict, as a result of this accident, Pate had received workers' compensation benefits for lost wages in the amount of approximately $29,000 and medical expenses in the amount of $11,391.29. Pate has neither claimed nor received any PIP benefits. Renfroe's answer asserted numerous affirmative defenses, including a defense that Pate's negligence caused or contributed to the accident.
Prior to trial Renfroe made two offers of judgment to Pate in the amount of $25,000, the limit of Renfroe's insurance policy. Pate rejected both offers. The jury ultimately returned a verdict finding that Pate had suffered damages for lost wages and past medical bills in the amount of $20,000, but also found Pate fifteen percent comparatively negligent. The jury found that Pate had suffered no permanent injury as a result of this accident and no future damages were awarded. Reducing the jury's damage award of $20,000 by fifteen percent to account for Pate's comparative negligence, the verdict in favor of Pate was $17,000. The trial court relied upon the verdict of $17,000 in determining that the verdict was more than twenty-five percent less than the offers of judgment, making Pate liable for Renfroe's costs and attorney's fees pursuant to section 768.79, Florida Statutes (1995). Renfroe filed a motion for sanctions pursuant to section 768.79, and a separate motion for a PIP set-off, asking the court to reduce the jury verdict in favor of Pate by $10,000, the amount of Pate's PIP coverage. The trial court determined that Pate was liable for fees and costs under the offer of judgment statute and granted Renfroe's motion for a $10,000 set-off for PIP benefits purs
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