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Nationwide Mutual Insurance Co. v. Gerlich6/10/1998
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 95-CI-11743
Honorable Andy Mireles, Judge Presiding
Opinion by: Alma L. Lopez, Justice
Dissenting Opinion by: Karen Angelini, Justice joined by Paul W. Green and Sarah B. Duncan, Justices
AFFIRMED
Nationwide Mutual Insurance Company ("Nationwide") appeals from a judgment rendered in favor of Catherine Gerlich ("Gerlich") in a breach of contract action. In its sole point of error, Nationwide contends that the evidence is legally insufficient to support the trial court's finding that Nationwide was not entitled to offset the amount paid Gerlich under the personal injury protection ("PIP") provision of her policy against the amount to be paid to her under the uninsured/underinsured motorists ("UM") provision of that policy. We affirm the trial court's judgment.
Factual and Procedural History
On March 22, 1995, Gerlich suffered physical injuries when the car she was driving was hit by a car driven by an uninsured motorist. At the time of the collision, Gerlich was covered by a Nationwide personal automobile liability policy that included PIP and UM coverage provisions. The policy also included a limitation of liability clause which stated:
In order to avoid insurance benefits payments in excess of actual damages sustained, subject only to the limits set out in the Declarations and other applicable provisions of this coverage, we will pay all covered damages not paid or payable under any workers' compensation law, disability benefits law, any similar law, auto medical expense coverage or Personal Injury Protection Coverage.
In April of 1995, Nationwide paid Gerlich $2,208.72 in PIP benefits. Subsequently, Gerlich settled her claim with Nationwide under the UM coverage provision for $3,500. Relying on the limitation of liability clause, Nationwide asserted that it was entitled to a credit against the settlement amount for the PIP benefits it previously paid to Gerlich, and Nationwide tendered to Gerlich a check for $1,291.28. Gerlich sued Nationwide for breach of contract, and the case was tried before the bench on stipulated facts. The trial court held that Nationwide was not entitled to a credit for the PIP benefits.
Argument and Authorities
In order for Nationwide to be entitled to an offset for the PIP benefits, Nationwide had the burden of demonstrating that a failure to allow the offset would result in a double recovery. See Bergmann v. Sentry Ins., 422 So.2d 972, 973 (Fla. Dist. Ct. App. 1982). We find that Nationwide failed to meet this burden.
The stipulated facts were signed by counsel for both parties. The parties stipulated that they reached a settlement under the UM coverage for the total amount of $3,500. The parties never stipulated that the actual damages suffered by Gerlich as a result of the accident amounted to $3,500.
In its brief, Nationwide states: "the actual damages sustained by Gerlich in the present case, as referenced in the stipulated facts and stated in the final judgment, were $3,500," citing the stipulated facts and the trial court's judgment. That is a correct statement. The trial court found that Gerlich sustained $3,500 in damages as a result of Nationwide's breach of contract, which was the amount of the parties' settlement under the UM coverage that Nationwide refused to pay. However, the trial court did not find that Gerlich sustained $3,500 in actual damages as a result of the accident. In fact, the trial court could not have made such a finding because no evidence regarding the damages Gerlich sustained was even p
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