Fla. Supreme Ct. Rejects Offset from Jury Award for $4M Paid to Settle Bad Faith Claims

By Jim Sams | November 3, 2023

Randy Willoughby’s lawyers turned a $10,000 uninsured motorist policy into a $4 million bad-faith settlement with his auto insurer. Then they won a $30 million jury verdict against the co-owner of the truck that crashed into him.

Now, Willoughby’s counsel is hoping to collect on that judgment through a bad-faith action against the truck owner’s insurance company, even though the policy it issued had a $100,000 limit.

That case hasn’t been resolved, but the Florida Supreme Court boosted the potential payoff in a ruling on Thursday. The court held in a 6-0 decision that Florida’s collateral source rule does not allow the owners of the car that caused the crash to use the $4 million settlement to offset a portion of the $30 million jury verdict.

The Supreme Court said insurer payouts in bad faith actions resemble penalties more than insurance “benefits” and cannot be treated as a collateral source under Section 768.76(1). That is the statute that allows insurance benefits to be reduced to prevent “double recovery” by claimants.

The 2nd District Court of Appeal said when it heard the case that Section 768.041(2), which deals with releases or covenants not to sue for damages, would have allowed an offset, but the defendant didn’t raise that argument at trial. The Supreme Court said in its ruling Thursday that it agreed the defendant could not raise new arguments on appeal.

Brent Steinberg

Plaintiff’s attorney Brent Steinberg, whose Swope, Rodante law firm in Tampa has represented Willoughby from the start, said the Supreme Court decision was handed down exactly 11 years after the crash that put his client in a coma for a month and caused a debilitating brain injury from which he is yet to fully recover.

“We are very pleased that our client is one step closer to putting this matter behind him and that the court reached the right ruling and exercised judicial restrain in refusing to address extraneous issues,” Steinberg said.

Willoughby was a passenger in his girlfriend’s Ford Mustang on Nov. 2, 2012 when a Chevrolet Silverado driven by Eddie Ellison ran a stop sign and crashed into the car as it drove through an intersection in Thonotosassa, a Tampa suburb.

Willoughby filed a claim against his parent’s auto insurer, 21st Century Centennial Insurance Co., but the carrier refused to pay. Steinberg said the insurer refused to believe that Willoughby resided at his parent’s house at the time of the accident, so did not accept that their son was insured by the policy. Steinberg said it is true that Willoughby spent much of time at his girlfriend’s house (actually a mobile home owned by her parents), but he was at least a dual resident of his parents’ home.

After two years of legal wrangling, 21st Century recognized its exposure and agreed to settle Willoughby’s bad faith lawsuit for $4 million.

Willoughby also sued Eddie Ellison and his wife Alberta, co-owner of the truck. Government Employees Insurance Co. agreed to pay the $100,000 policy limit to relieve Eddie Ellison of liability for the crash, but did not separately settle a claim against Alberta. Steinberg and his colleagues filed a bad faith lawsuit against GEICO on Willoughby’s behalf that was removed to the US District Court for the Middle District of Florida.

A jury returned a $30,101,599 verdict in Willoughby’s lawsuit against Alberta Ellison. She filed a post-trial motion seeking an offset for the $4 million settlement Willoughby had reached with his own insurer. The trial court, the 2nd District Court of Appeal and on Thursday the Supreme Court each refused to allow the offset.

The Supreme Court refused to say whether it would have reached a different conclusion if Ellison’s lawyers had argued a different statute applies.

“A trial court called upon to apply sections 768.041(2) and 768.76 would quickly see that each statute presents distinct issues of interpretation,” the opinion says. “If Ellison wanted the trial court to consider a setoff under both statutes, she had the obligation to present both issues to the trial court.”

The decision allows Steinberg to turn his attention to the bad faith lawsuit against GEICO. According to the complaint, Willoughby was willing to settle the claim in 2015, but not for the $100,000 that the insurer offered. Steinberg said the Ellison’s policy had a $100,000 per-occurrence limit, but also had a provision that required it to pay “taxable costs” such as expert witness fees.

“We will settle for less, but we need some kind of offer from GEICO to acknowledge it owes something more than $100,000,” Willoughby’s lawyer said in a March 2015 email to defense counsel, according to the lawsuit. “GEICO can even start by offering $100,000 plus $200 if it wants — just please get them to offer something so we can get this settled!”

GEICO refused to budge from its offer, the complaint says.

Steinberg refused to comment further on the lawsuit.

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