       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          SUSAN MATRISCIANI,
                               Appellant,

                                     v.

   GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY,
                        Appellee.

                               No. 4D19-406

                              [June 10, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lisa S. Small, Judge; L.T. Case No. 502015CA004706.

   Henry A. Seiden of Seiden Law, Delray Beach, for appellant.

  Charles M-P George of the Law Offices of Charles M-P George, Coral
Gables, and Harlan H. Gladstein, Plantation, for appellee.

KLINGENSMITH, J.

    This appeal arises from Susan Matrisciani’s lawsuit against her
insurance company following a car accident. Matrisciani challenges the
trial court’s rulings on several post-trial motions, including: the insurer’s
motions to reduce the jury verdict by setoff and remittitur, the insurer’s
motion for entitlement to attorney’s fees under a proposal for settlement,
and her motion to strike the insurer’s settlement proposal. We affirm in
part and reverse in part.

    Matrisciani was the front-seat passenger in a vehicle that was rear-
ended, causing her injuries. Thinking that the other driver’s insurance
policy would be inadequate to cover her medical expenses, she sued both
the driver and her own insurer, Garrison Property and Casualty Insurance
Company (“Garrison”), for benefits under a policy covering accidents with
uninsured or underinsured motorists (“UIM”). In addition, Matrisciani’s
policy also provided for $10,000 in personal injury protection benefits (“PIP
benefits”) and $1,000 in medical payments coverage (“Med-Pay benefits”).
Garrison paid Matrisciani both of these benefits for her accident. However,
Matrisciani’s policy did not allow her to receive duplicate payments and
allowed Garrison the right to recover any such payments from her.
    Shortly after Matrisciani instituted this suit, Garrison served a proposal
for settlement on her for $1,000. The terms of the proposal stated that if
accepted, the proposal would “resolve all claims of [Matrisciani], against
[Garrison], alleged in this lawsuit.” The proposal also stated that it was
“intended to terminate all claims, disputes, and obviate the need for
further intervention of judicial process,” and required Matrisciani to
“satisfy all relevant liens.” When the proposal for settlement was served,
Matrisciani had a $29,211.12 Medicare lien. Since Garrison had already
paid Matrisciani the PIP benefits and Med-Pay benefits for the medical
expenses she incurred after this accident, the terms of the policy required
her to pay back those amounts if she received a recovery from the other
driver.

   Just before trial, Matrisciani moved for partial summary judgment as
to the $19,461.31 in medical expenses she incurred from the accident.
The court granted her motion, and the parties stipulated that “[a]ny
collateral sources set offs will be determined post-verdict by the Court
without the need for the amount, or entitlement to same, to be proven
during trial.”

   The jury entered its verdict finding that the other driver was negligent
and awarded Matrisciani the following: $37,000 in past pain and suffering,
$7,000 in future medical expenses, and $48,000 in past medical expenses.
This totaled $92,000 in damages—$8,000 less than the other driver’s
$100,000 auto liability insurance policy limits. The next day, Garrison
moved for costs and attorney’s fees pursuant to their proposal for
settlement. Several weeks later, Garrison also moved for setoff and
remittitur seeking reduction to the jury’s verdict totaling $39,711.12.

   Matrisciani and the other driver subsequently announced that they had
reached a settlement agreement. Pursuant to this agreement, the trial
court entered a $111,461.31 judgment in favor of Matrisciani which
comprised of the $92,000 jury verdict plus the $19,461.31 awarded to
Matrisciani at summary judgment. Garrison had no knowledge of the
settlement and stated that they were not involved in the negotiations.

   When ruling on Garrison’s post-trial reduction motions, the trial court
found that the evidence established Matrisciani’s past medical bills were
less than the $48,000 that the jury awarded. The court reduced
Matrisciani’s past medical expenses award ($57,858.85) by the amount
she was awarded at the summary judgment hearing ($19,461.31) for a new
total of $38,397.54. The court also determined that setoffs of $10,000 for
paid PIP benefits and $29,711.12 for “Medicare and/or contractual

                                      2
reductions” were also proper. With these reductions, the court ruled that
Matrisciani’s recoverable past medical expenses now equaled $18,147.73.
Adding this to the $7,000 and $37,000 the jury awarded for future medical
expenses and pain and suffering, respectively, the court entered an order
granting Garrison’s motions for remittitur and setoffs and adjusted the
total award to $62,147.73. Since this net award was under the negligent
driver’s $100,000 insurance policy limit, the court ruled that Garrison was
not liable for UIM benefits. This resulted in a judgment against Garrison
for $0. Pursuant to Garrison’s settlement proposal, the trial court entered
an order finding that Garrison was also entitled to attorney’s fees under
its proposal for settlement and awarded Garrison a total of $61,808.25 in
both fees and costs. This appeal followed.

   Appellate courts “review orders of remittitur for an abuse of discretion.”
Adams v. Saavedra, 65 So. 3d 1185, 1188 (Fla. 4th DCA 2011). If the trial
court finds that the amount awarded to a plaintiff is excessive, it may order
a remittitur. See § 768.74(2), Fla. Stat. (2017). In determining whether
an award is excessive, the court must consider, among other things,
“[w]hether the trier of fact took improper elements of damages into
account” and “[w]hether the amount awarded is supported by the
evidence.” § 768.74(5), Fla. Stat. (2017).

    There was no error in the court’s reduction of Matrisciani’s past medical
expenses from $48,000 to $38,397.54. The latter amount was the amount
of past medical expenses submitted to the jury for their deliberation. The
fact this award exceeded the amount of the bills in evidence showed that
the jury “took improper elements of damages” into account and that the
award was not “supported by the evidence.” § 768.74(5), Fla. Stat. As
such, the court properly used its discretion in granting Garrison’s motion
for remittitur as to those amounts. See Adams, 65 So. 3d at 1188.

   Section 768.76(1), Florida Statutes (2017), provides another avenue
besides remittitur for trial courts to reduce certain awards. That section
states:

      In any action to which this part applies in which liability is
      admitted or is determined by the trier of fact and in which
      damages are awarded to compensate the claimant for losses
      sustained, the court shall reduce the amount of such award
      by the total of all amounts which have been paid for the
      benefit of the claimant . . . from all collateral sources; however,
      there shall be no reduction for collateral sources for which a
      subrogation or reimbursement right exists.


                                      3
§ 768.76(1), Fla Stat. (2017). Post-trial reductions to a jury award made
pursuant to section 768.76(1) are termed setoffs. See Goble v. Frohman,
901 So. 2d 830, 832 (Fla. 2005). Orders reducing a verdict pursuant to a
setoff are reviewed de novo. Cornerstone SMR, Inc. v. Bank of Am., N.A.,
163 So. 3d 565, 568 (Fla. 4th DCA 2015) (stating that “[w]hether the trial
court awarded a proper set-off is a pure question of law”).

    PIP benefits that have been received by a claimant may be setoff from a
damage award after the verdict, because they are “collateral sources.” See
Geico Gen. Ins. Co. v. Cirillo-Meijer, 50 So. 3d 681, 683 (Fla. 4th DCA 2010)
(allowing UIM carrier a setoff for the PIP benefits it already paid to the
plaintiff); see also Aetna Cas. & Sur. Co. v. Langel, 587 So. 2d 1370, 1373
(Fla. 4th DCA 1991) (stating that PIP benefits are collateral sources which
may be setoff). Because contractual discounts off medical bills also “fit
within the statutory definition of collateral sources,” they too may be setoff
from a verdict. Goble, 901 So. 2d at 833. However, “benefits received
under Medicare . . . shall not be considered a collateral source” and they
are not subject to a setoff. See § 768.76(2)(b), Fla. Stat. (2017); see also
Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547, 551 (Fla. 4th DCA
2003) (“[C]ases interpreting section 768.76(1) appear not to allow a setoff
for this kind of Medicare benefits.”).

    We agree with Garrison that the trial court did not err in granting a
setoff of the PIP benefits. See Cirillo-Meijer, 50 So. 3d at 683. However, we
also agree with Matrisciani that the trial court failed to credit her for the
premiums she paid on the PIP coverage before doing so. In its order, the
trial court simply stated that Matrisciani was not entitled to a credit for
the past premium payments she made without further explanation. This
was error. As Matrisciani rightly contends, “section 768.76(1) ‘allow[s] a
reduction from the setoffs for the plaintiff’s cost of obtaining PIP
coverage[.]’” Forest v. Sutherland, 110 So. 3d 525, 526 (Fla. 4th DCA 2013)
(quoting McKenna v. Carlson, 771 So. 2d 555, 558 (Fla. 5th DCA 2000)).
Therefore, the court should have also awarded Matrisciani a credit for the
premium payments made on her PIP policy.

   Matrisciani also claims error in the court’s order reducing the verdict
another $29,717.12 pursuant to “Contractual Reductions and Medicare
Disallowances.” Garrison sought these reductions because Matrisciani
was a Medicare recipient and Medicare covered most of her medical bills.
As such, they claimed that her jury verdict should be reduced to reflect
the amount she actually paid, or was still responsible for paying, and not
the full total of the Medicare payments. See Thyssenkrupp, 868 So. 2d at
551. We agree with Matrisciani on this point as well. In Thysenkrupp,
this court allowed the defendant “to have the past medical expenses

                                      4
awarded by the jury reduced—to the extent such amounts are actually
included in the past medical expenses awarded—by the difference between
the amounts charged by a provider and the amounts actually paid that
provider by Medicare.” Id. This court reasoned: “When a provider charges
for medical service or products and later accepts a lesser sum in full
satisfaction by Medicare, the original charge becomes irrelevant because
it does not tend to prove that the claimant has suffered any loss by reason
of the charge.” Id. Other cases have also held that it is error to permit a
plaintiff to introduce into evidence (and to request from the jury) the gross
amount of medical bills rather than the lesser amount actually paid as a
governmental or charitable benefit in full settlement of those bills. See
Boyd v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1240 (Fla. 4th DCA 2005);
Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d DCA
2004); Miami–Dade Cty. v. Laureiro, 894 So. 2d 268, 269 (Fla. 3d DCA
2004).

   But on rehearing in Thyssenkrupp, this court clarified that the issue
regarding the reduction of Medicare benefits was solely an evidentiary
issue for trial, and that post-trial setoffs for Medicare benefits were not
authorized. See Thyssenkrupp, 868 So. 2d at 551 (“If this were only an
issue of setoff, we might agree with plaintiff's motion for rehearing that
some cases interpreting section 768.76(1) appear not to allow a setoff for
this kind of Medicare benefits.”). If Medicare payments should not be
reduced post-trial by way of setoff, reducing them from the verdict
pursuant to a remittitur would subvert the purpose of the setoff
restriction. If Garrison sought to prevent the Medicare reductions from
being included within the calculation of the verdict, the proper method of
doing so was to raise its objection to this evidence during trial. See id.; cf.
Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1087 (Fla. 1st DCA
2010) (“[A]ppellee was entitled to introduce into evidence (and to request
from the jury) the gross amount of her medical bills, rather than the lesser
amount paid by appellee’s private health insurer in full settlement of the
medical bills.”).

   Matrisciani also challenges the trial court’s ruling enforcing Garrison’s
proposal for settlement. “The eligibility to receive attorney’s fees and costs
pursuant to section 768.79 and [Florida Rule of Civil Procedure] 1.442 is
reviewed de novo.” Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015).

    A party invokes the eligibility to receive attorney’s fees under the
proposal for settlement statute when the following requirements are met:
“(1) when [that] party has served a demand or offer for judgment, and (2)
that party has recovered a judgment at least 25 percent more or less than
the demand or offer.” Schmidt v. Fortner, 629 So. 2d 1036, 1040 (Fla. 4th

                                      5
DCA 1993). To meet the first requirement, the offer for judgment must be
legally sufficient. See Fla. R. Civ. P. 1.422(c); § 768.79(2), Fla. Stat. (2017).
Here, Garrison’s proposal was legally sufficient because it contained all
the relevant elements as required by rule 1.442. Further, the terms of the
proposal were sufficiently clear and definite to allow Matrisciani “to make
an informed decision without needing clarification.” See Am. Home
Assurance Co. v. D’Agostino, 211 So. 3d 63, 66 (Fla. 4th DCA 2017)
(quoting State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079
(Fla. 2006)). Ultimately, “[p]roposals for settlement are intended to end
judicial labor, not create more.” Nichols, 932 So. 2d at 1079 (quoting Lucas
v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002)). Accordingly, courts
are discouraged from “nit-pick[ing]” proposals for settlement to search for
ambiguity. Carey–All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla.
2d DCA 2008) (citing Nichols, 932 So. 2d at 1079).

    As for Matrisciani’s assertion that Garrison’s proposal for settlement
was ambiguous, the standard of review in determining whether a proposal
for settlement is ambiguous is de novo. See Nationwide Mut. Fire Ins. Co.
v. Pollinger, 42 So. 3d 890, 891 (Fla. 4th DCA 2010).

   Matrisciani claims that the proposal was ambiguous because it
required her to “satisfy all relevant liens” but did not specify which liens
she needed to satisfy. However, it is clear that the Medicare lien was the
only “relevant lien” that needed to be satisfied under the proposal since no
other payor had asserted a claim of lien at the time the proposal was
served. She relies on Saenz v. Campos, 967 So. 2d 1114, 1117 (Fla. 4th
DCA 2007), to support her claim that the proposal’s language that it would
“resolve all claims” against Garrison also made the proposal ambiguous
because it could have been interpreted to include her claims against the
other driver. However, Matrisciani’s argument has no merit because our
case is distinguishable from Saenz. Unlike the plaintiff in Saenz,
Matrisciani only had one pending lawsuit in which the negligent driver and
Garrison were co-defendants. See id. at 1115. The other driver and
Garrison both had separate counsel and had operated independently of
each other up to that point. The fact that the other driver was not even
mentioned in the proposal should have given Matrisciani the indication
that the proposal had nothing to do with that driver and would not have
terminated that part of her lawsuit. Thus, we cannot foresee how the
phrase “resolve all claims” in paragraph 7 in conjunction with paragraph
9’s provision stating that the proposal was “intended to terminate all
claims, disputes, and obviate the need for further intervention of judicial
process” created any uncertainty or would have affected Matrisciani’s
decision on whether to accept the proposal. The fact that no other possible
claims could have existed between the parties either within or outside of

                                       6
this action also distinguishes this case from other cases which have found
proposals for settlement to be deficient where the proposals may have
extinguished other pending unrelated claims. See, e.g., Nichols, 932 So.
2d at 1079 (“At the time of the offer, [the plaintiff] not only had a pending
PIP claim against [the defendant], but also a UM claim arising from the
same accident and of greater value.”); Palm Beach Polo Holdings, Inc. v. Vill.
of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA 2005) (“[T]he offer was
legally deficient because plaintiff's acceptance could have extinguished
other pending unrelated claims.”).

   Additionally, when evaluating whether Garrison met the threshold
amount for an award of attorney’s fees under section 768.79(6), the trial
court did not err in considering the judgment obtained against Garrison
rather than the judgment obtained through negotiation with the negligent
driver. Because a UIM carrier’s settlement offer should be viewed in
relation to the plaintiff’s potential recovery over the tortfeasor’s insurance
limits, see Allstate Ins. Co. v. Silow, 714 So. 2d 647, 650 (Fla. 4th DCA
1998), if Matrisciani’s judgment recovered against the other driver is
within that tortfeasor’s liability limits, the UIM carrier has no liability and
is entitled to a $0 judgment in their favor. See Allstate Ins. Co. v.
Staszower, 61 So. 3d 1245, 1246 (Fla. 4th DCA 2011). Thus, any
settlement offer made by a UIM carrier in such a case will be greater than
the plaintiff’s recovery. See id.

   Similarly, there was no error in the court finding that Garrison’s
proposal was made in good faith. Our standard of review for whether a
proposal for settlement was made in good faith is abuse of discretion. See
Sharaby v. KLV Gems Co., 45 So. 3d 560, 563 (Fla. 4th DCA 2010); see
also § 768.79(7)(a), Fla. Stat. (2017) (“[T]he court may, in its discretion,
determine that [a proposal] was not made in good faith.”) (emphasis
added)); Fla. R. Civ. P. 1.442(h)(1) (same). “The offeree bears the burden of
proving the offeror’s proposal was not made in good faith.” Sharaby, 45
So. 3d at 563 (quoting Liggett Grp. Inc. v. Davis, 975 So. 2d 1281, 1285
(Fla. 4th DCA 2005)). Offers are not suspect merely because they are
nominal.” State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So. 2d 1263,
1264 (Fla. 4th DCA 2006). As we stated in Sharkey:

      Offers, nominal or otherwise, must bear a reasonable
      relationship to the amount of damages or a realistic
      assessment of liability. “The rule is that a minimal offer can
      be made in good faith if the evidence demonstrates that, at the
      time it was made, the offeror had a reasonable basis to
      conclude that its exposure was nominal.” “The offer need not


                                      7
      equate with the total amount of damages that might be at
      issue.”

Id. (citations omitted).

    In addressing whether the trial court abused its discretion by finding
that Garrison’s nominal proposal for settlement was not was made in good
faith, we must consider whether Garrison “had a reasonable basis at the
time of the offer to conclude that [its] exposure was nominal.” Fox v.
McCaw Cellular Commc’ns of Fla., Inc., 745 So. 2d 330, 333 (Fla. 4th DCA
1998); see also Dep’t of Highway Safety & Motor Vehicles, Fla. Highway
Patrol v. Weinstein, 747 So. 2d 1019, 1021 (Fla. 3d DCA 1999) (reversing
the trial court’s denial of attorney’s fees, which were sought under section
768.79, where the record conclusively demonstrated that, at the time the
nominal proposal for settlement was made, the offeror had a reasonable
basis to conclude that its exposure was nominal). Further, we recognize
that good faith is “determined by the subjective motivations and beliefs of
the pertinent actor.” Weinstein, 747 So. 2d at 1021.

    We find that Garrison’s proposal bore a reasonable relationship to the
amount of damages and a realistic assessment of its liability. Here, the
record reflects that Garrison made its proposal for settlement following
almost two years of litigation and extensive discovery. They understood
the amount of medical bills previously incurred, and the extent of
Matrisciani’s injuries, to assess her pain and suffering and future medical
needs in light of the policy limits available from the negligent driver. Thus,
the record conclusively demonstrates that Garrison “had a reasonable
basis at the time of the offer to conclude that [its] exposure [as to its UIM
coverage] was nominal.” Fox, 745 So. 2d at 333. Therefore, we agree with
the trial court that Garrison’s $1,000 proposal was made in good faith.
See Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348, 354-
55 (Fla. 4th DCA 2010) (finding that a $500 proposal was made in good
faith); Mount Vernon Fire Ins. Co. v. New Moon Mgmt., Inc., 239 So. 3d 183
(Fla. 3d DCA 2018) (finding that a $1,000 proposal for settlement was
made in good faith).

    For these reasons, we reverse the judgment entered and remand for the
trial court to address the issues of setoff and remittitur in accordance with
this opinion. In doing so, we can make no determination whether
Garrison’s proposal met the threshold amount to trigger entitlement to
attorney’s fees until a net judgment against Garrison is recalculated after
considering all legally authorized reductions. See Fla. Gas Transmission
Co. v. Lauderdale Sand & Fill, Inc., 813 So. 2d 1013, 1015 (Fla. 4th DCA
2002). Assuming the recalculated judgment meets the threshold amount

                                      8
under section 768.79, the court may then revisit its order on entitlement
as well as its award of attorney’s fees to Garrison, making any
modifications it deems appropriate. Unless specifically addressed herein,
we find all other issues raised by Matrisciani to be without merit.

   Affirmed in part, reversed in part and remanded.

CIKLIN, J., and LEVENSON, JEFFREY R., Associate Judge, concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




                                    9
