Appeal from Superior Court of Pierce County. Docket No: 93-2-03382-1. Date filed: 10/07/94. Judge signing: Hon. Terry D. Sebring.
Authored by J. Dean Morgan. Concurring: Elaine M. Houghton, John E. Turner
The opinion of the court was delivered by: Morgan
MORGAN, J. -- In this personal injury action, the plaintiffs recovered a jury verdict for $8,653. The defendant then sought an offset for pre-trial PIP payments in the amount of $7,753. The trial court entered judgment on the jury's verdict, but also granted the requested offset. The plaintiffs now appeal the order granting the offset. We reverse that order due to defendant's failure to carry her burden of proof.
On May 14, 1992, Jeffrey Maziarski, Jr., a minor, was struck by a car while riding his bicycle. The car was driven by Edna Bair.
At the time of the accident, Bair was insured by the Hartford Insurance Company. Her policy provided both liability coverage and Personal Injury Protection coverage.
As a result of the accident, Maziarski incurred medical bills in the amount of $7,753. Hartford paid this amount under Bair's PIP coverage before any determination of fault had been made.
On April 9, 1993, Maziarski and his parents, Jeffrey Maziarski, Sr. and Guyda Maziarski, sued Bair for negligence. Bair's answer did not allege an offset for Hartford's PIP payments. It did, however, allege contributory negligence and other affirmative defenses.
Before trial, Bair asked the trial court for an order barring the plaintiff "from mentioning anything about payment of medical expenses." *fn1 The trial court granted the order.
The case went to trial in September 1994. Neither party mentioned Hartford's PIP payments. Using a special verdict form, the jury apportioned fault 28% to Bair and 72% to Maziarski. It awarded damages of $30,903, which included the $7,753 in medical bills paid by Hartford before trial. Its ultimate verdict was for $8,653 (28% of $30,903).
On October 5, 1994, Bair proposed, for the first time, that the trial court subtract Hartford's PIP payments from the amount of the verdict. At a hearing held on Friday, October 7, 1994, Maziarski's counsel began by stating to the court, "I just received a new version of [opposing counsel's] proposed judgment Wednesday, and it purports to do a number of things which I'm not sure the Court is in a position to address at this point in time." *fn2 Maziarski's counsel, however, did not move for a continuance. Instead, he handed up his own proposed judgment, and the hearing proceeded as scheduled.
During the hearing, the parties and the court discussed whether the matter of an offset should have been determined by the jury. The court stated, "I don't see how we could have asked the jury to do that. . . . Obviously, it interjects insurance into [the case], and I . . . can't really envision trying to do that." *fn3
During the hearing, the parties and the court briefly discussed whether Bair's insurance policy should be produced. Counsel for Maziarski stated that if it was not produced, "We're just going to be back here on a motion for reconsideration with the policy." The court answered, "If you want to come back and reconsider, I'll listen again." *fn4 No one moved for reconsideration, and no one has ever put the policy in the record. *fn5 It is undisputed, however, that the policy called for liability coverage in an amount exceeding the jury's verdict, and for PIP coverage in an amount exceeding the medical bills paid by Hartford before trial.
During the hearing, Maziarski argued that Bair was not entitled to an offset or, if she was, that she was entitled to offset no more than the medical bills awarded by the jury (28% of $7,753, or $2,171). Bair argued she was entitled to offset all of Maziarski's medical bills ($7,753). Adopting Bair's position, the trial court reduced the verdict ($8,653) by the total amount of ...