In Hale v. Geico General Insurance Company, Caryn Bellus and Ben Carter obtained an affirmance of a final judgment for Geico in an underinsured motorist case where the tortfeasor’s liability limits exceeded the insured’s damages. After the accident, the insured initially pursued a claim under the tortfeasor’s policy, but later abandoned it and made a claim under his UM policy with Geico. Geico denied that the tortfeasor was an underinsured motorist and asserted that the insured’s damages were within the tortfeasor’s policy limits of $25,000. After trial, the jury awarded the insured a total of $17,000 in damages, and the trial court entered final judgment for the insured. In a post-trial motion, Geico moved to setoff the verdict by the tortfeasor’s policy limits, and to amend the final judgment in Geico’s favor because the tortfeasor’s limits exceeded the insured’s damages.

The trial court granted the motion and entered final judgment for Geico. On appeal, the insured argued Geico waived the setoff by not adequately pleading it as an affirmative defense, and that Geico failed to demonstrate the tortfeasor’s policy limits were “available” to him. The First DCA rejected both arguments, holding that Florida’s UM statute, Section 627.727, entitles a UM insurer to a credit against total damages in the amount of the tortfeasor’s liability policy, but does not require the insurer to plead the setoff as an affirmative defense. Thus, Geico did not waive its setoff entitlement, which was properly asserted in a post-trial motion. And, because the insurer is entitled to the setoff regardless of whether the full amount of the tortfeasor’s liability limits have been paid to the insured, the trial court properly amended the final judgment in favor of Geico. View the full opinion here.