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Washington Insurance Guaranty Association v. Mullins9/16/1991
tortfeasor who caused the insured's injury in this case would in no way benefit from the setoff. . . . We perceive no rational basis for applying the collateral source rule to this insurance contract where the parties by their contract have agreed to set off disability benefits against amounts payable under underinsured motorist coverage.
(Footnotes omitted.) Britton, 104 Wash. 2d at 529-30. Although this language seems to support WIGA's argument, Britton is distinguishable in that there the insured attempted to use the collateral source rule to override an express contractual setoff provision. The case before us does not involve any contractual setoff provision, nor, as discussed above, does the statute authorize any setoff for disability benefits. Further, unlike Britton, WIGA has stepped into the shoes of the wrongdoer's insurer. In Britton, the injured party was attempting to collect under his own policy. No wrongdoer was involved there at all. On this issue, Britton simply stands for the proposition that the collateral source rule does not preclude an insurer and an insured from negotiating a setoff agreement.
WIGA correctly states that one of the purposes of the Act is to place the claimant in the same position as he or she would have been had the liability insurer remained solvent. See McKinstry, 56 Wash. App. at 549. Therefore we ask and answer the rhetorical question: What is the result here had PacMar, Coluccio's liability insurance company, not become insolvent? The answer is that Mullins would have sued Coluccio and, under the collateral source rule, Coluccio could not have introduced evidence of Mullins' LEOFF benefits, nor could it have reduced any judgment by the amount of those benefits. Thus, disallowing a setoff here puts the parties in the same position had PacMar remained solvent. The trial court was correct in so holding.
In the appeal filed by Coluccio, it contends it is entitled to the protection from WIGA up to the $3 million limit of the now defunct policy, not only to the $300,000
statutory limit of WIGA's obligation. As noted above, the net result of that trial was a judgment for $41,683. Consequently, as counsel for Coluccio acknowledged, the issue is moot. We decline to address the issue.
"A case is moot if a court can no longer provide effective relief", In re Cross, 99 Wash. 2d 373, 376-77, 662 P.2d 828 (1983), and the issues it presents are "purely academic". State v. Turner, 98 Wash. 2d 731, 733, 658 P.2d 658 (1983).
Kuehn v. Renton Sch. Dist. 403, 103 Wash. 2d 594, 597, 694 P.2d 1078 (1985).
The decision of the trial court is affirmed.
Disposition
Holding that the fire fighter was entitled to recover on his claim and that no setoff should be made for disability payments to the fire fighter, the court affirms the judgment.
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