Dierdre Levesque, et al. v. Government Employees Insurance Company

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-1 1644
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-14005-KAM

DEIRDRE LEVESQUE,

Plaintiff - Appellant,
TIMOTHY LEVESQUE,

Plaintiff - Appellant,

versus

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 28, 2020)
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Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
On August 2, 2011, Deirdre Levesque walked into the parking lot in front of
her place of employment to assist a client. Tragically, Levesque was severely
injured when a vehicle backed up without realizing that she was there, pinning her
against a car door. At the time of the accident, Levesque and her spouse Timothy
possessed non-stacking uninsured motorist coverage from GEICO for $100,000
per person and $300,000 per occurrence. GEICO initially did not pay the
Levesques under the policy. The Levesques responded by filing a lawsuit in state
court.
GEICO confessed judgment in the initial suit. This appeal addresses the
Levesques’ follow-on bad faith lawsuit against GEICO after judgment was entered
against GEICO in the initial suit. The jury found in this case that GEICO acted in
bad faith and awarded $317,200 in damages to the Levesques. But the district
court entered judgment in favor of GEICO after finding that various set offs of
benefits already received reduced the damages amount to $0. In response, the
Levesques filed a motion to alter the judgment arguing two points. First, the
couple asserted that under a pretrial stipulation, the district court was required to
calculate the amount of attorneys’ fees that the Levesques paid in their initial suit
as a component of damages in this second suit. The Levesques also argued the
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district court erred in setting off the payments received by other insurance
companies and workers’ compensation against the damages award. The district
court denied the motion, and the Levesques now appeal. We affirm the district
court’s set off of the workers’ compensation package against the Levesques’
economic damages and the other insurance amounts against their non-economic
damages. But we reverse the district court’s conclusion that it should not
determine the appropriate amount of attorneys’ fees from the initial suit. We
remand for further proceedings.
I.
Deirdre Levesque was grievously injured during her accident in the parking
lot; her injuries included a fractured clavicle, a fractured scapula, a fractured and
rotated sternum, a punctured lung, and fractured ribs. She contacted GEICO
following the accident and indicated that she would likely make a claim on her
uninsured motorist policy. But GEICO delayed its full investigation into the exact
scope of Levesque’s medical injuries. Instead, it spent the next several months
primarily focused on Levesque’s ability to recover from other sources. For
example,
Progressive Insurance Co., the at-fault liability carrier, paid Levesque its
$100,000 policy limits within days of her accident. And because Levesque was on
the job at the time of the accident, she received medical and wage benefits from
her employer’s insurance carrier. Finally, GMAC Insurance Co., another
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insurance carrier, potentially owed Levesque money due to its coverage on one of
the cars involved in the accident. GEICO and GMAC went back and forth for
several months over whether GMAC was going to pay $100,000 under its policy
(due to GMAC’s internal deliberations about whether or not the terms of its policy
extended to the accident in question). When GMAC finally did pay, GEICO
immediately wrote to Levesque stating that “it appears that you have been fairly
compensated” and asking Levesque to “advise if you are seeking uninsured
motorist coverage from GEICO.” The Levesques’ reaction was to hire counsel.
At this point, it’s worth setting out some principles of Florida law. In
general,
a plaintiff who prevails against an insurer in a lawsuit for uninsured
motorist benefits is prohibited from recovering an award of attorneys’ fees. See
Fla. Stat. § 627.248 (generally providing for recovery of attorneys’ fees); Fla. Stat.
§ 627.727(8) (generally limiting the award of fees pursuant to § 627.248 in cases
for uninsured motorist benefits). But if the plaintiff believes that the insurance
company acted in bad faith, she may file a separate lawsuit. See Fla. Stat.
§ 624.155. In that second suit, the available damages include attorneys’ fees
incurred during the first lawsuit. See Fla. Stat. § 627.727(10) (the “damages
recoverable from an uninsured motorist carrier in a bad faith action include the
total amount of the claimant’s damages, including . . . reasonable attorney’s fees
and costs”). And a successful plaintiff in the second, bad faith lawsuit may be
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entitled to attorneys’ fees incurred during that second suit; under Florida Statutes
§ 627.248, those attorneys’ fees are awarded by the court, rather than considered as
a component of damages.
With that background, the parties’ dispute in this case comes into sharper
focus. The Levesques began by fil ing a lawsuit seeking to require GEICO to
tender its policy. GEICO eventually offered to tender the policy if Levesque
released any bad faith claim; Levesque refused.
GEICO decided to “confess judgment” for its $100,000 policy limits, which
under applicable precedent at the time had the effect of mooting the initial case.
See Safeco Ins. Co. of Illinois v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013)
(“Fridman I”), quashed, 185 So. 3d 1214 (Fla. 2016) (“Fridman II”). The court
therefore entered judgment in favor of the Levesques for the $100,000 policy limit.
The Levesques proceeded to file their claim alleging that GEICO had acted
in bad faith. As mentioned, the first case was mooted out under a Florida
precedent—one that was in effect only briefly until it was quashed by the Florida
Supreme Court three years later—holding that a claim for uninsured motorist
benefits was mooted by the insurance company’s offer of the policy limits.
See
Fridman I, 117 So. 3d at 19. Mooting the Levesque’s initial case meant that the
amount of the Levesques’ damages was never determined by the jury, as it would
have been if the case had been allowed to go forward after GEICO paid on the
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policy. As a result, the subsequent bad faith suit required trying the amount of
damages stemming from the accident, rather than merely taking the number that
had been determined in the initial suit (as would occur under current law). See
Fridman II, 185 So. 3d at 1222–27 (holding that the plaintiff “is entitled to a jury
determination of the amount of damages in the UM action” that is then binding in
the bad faith case, so long as sufficient appellate process was afforded).
As the bad faith suit progressed, the parties entered into a pretrial stipulation.
As relevant here, that stipulation listed the “total amount of damages sustained by
Deirdre Levesque and Timothy Levesque as a direct and proximate result of the
collision” as a fact to be proven at trial. In contrast, it marked as an issue of law
for decision by the court the “amount of any attorney’s fees and costs reasonably
incurred by the Levesques” (as well as any “post trial set offs that may apply to
any judgment obtained by the Levesques”) .
At trial, the jury found that GEICO had acted with bad faith. The jury
awarded damages to Ms. Levesque arising from the accident, including $50,000
for past pain and suffering, $200,000 for future pain and suffering, $10,000 for
future medical expenses, and $50,000 in past lost earnings—totaling $60,000 in
economic damages and $250,000 in non-economic damages. The jury also
awarded her husband $7,200 for loss of consortium. The total amount of damages
awarded by the jury was therefore $317,200.
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GEICO filed a Motion to Determine Set Off Against Jury Verdict pursuant
to Florida Statutes §§ 627.727(1) and 768.76(1). In particular, GEICO requested
that the verdict be offset by $100,000 in bodily injury benefits from Progressive,
$100,000 in uninsured motorist benefits from GMAC, $10,000 in personal injury
protection benefits from GEICO, and $183,000 in workers’ compensation benefits
received via settlement. GEICO indicated that the workers’ compensation and
personal injury protection amounts should offset the $60,000 the jury had awarded
for economic damages, while the other amounts should apply against the $257,200
remaining.
The district court, using a different calculation than the one suggested by
GEICO, concluded that those set offs reduced the verdict to $0, and thus entered
judgment in favor of GEICO. The Levesques filed a motion to alter or amend the
judgment, arguing that the district court still needed to determine the amount of
attorneys’ fees they were entitled to from the previous lawsuit. That decision, the
Levesques said, had been reserved to the court under the parties’ pretrial
stipulation. GEICO responded that because attorneys’ fees in the underlying suit
counted as damages, they needed to have been submitted to the jury—and that the
Levesques’ failure to put evidence before the jury on that point did not give the
district court the authority to determine them now on its own. The district court
again agreed with GEICO and denied the motion. The Levesques now appeal,
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arguing (1) that the district court abused its discretion by ruling that the pretrial
stipulation did not provide for the court to determine damages from the previous
suit and (2) that the court erred in applying the workers’ compensation set offs
against economic damages.
II.
We review the district court’s interpretation of a pretrial order for an abuse
of discretion. Pulliam v. Tallapoosa Cty. Jail, 185 F.3d 1182, 1185 (11th Cir.
1999). As part of that review, we afford “great deference to the trial judge’s
interpretation and enforcement of pretrial stipulations.” W. Peninsular Title Co. v.
Palm Beach Cty., 41 F.3d 1490, 1493 (11th Cir. 1995). The district court’s ruling
that a party is entitled to a set off on damages due to state law is reviewed de novo.
See McMahan v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002); see also Adams v.
Toyota Motor Corp., 867 F.3d 903, 921 (8th Cir. 2017).
III.
While we are mindful of the deference that we owe to the district court’s
interpretation of pretrial stipulations, we first reverse the district court’s conclusion
that the underlying damages from the Levesques’ prior suit against GEICO were
an issue of fact left to the jury. The district court stated in its order denying post-
judgment relief that the “reference in the Pretrial Stipulation to ‘the amount of any
attorney’s fees and costs reasonably incurred by the Levesques’ as the last item
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listed for the Court’s resolution is reasonably read to apply only to those attorney’s
fees and costs incurred in this action if available.” We do not see it that way. To
begin, the phrase “attorney’s fees and costs” is at least ambiguous as to whether it
broadly refers to the attorneys’ fees at issue from both lawsuits or more narrowly
as to only the fees at issue in the current suit. Still, were that the only language
before us, we likely would not reverse, in large part due to the deference we afford
the district court in interpreting pretrial stipulations.
We reverse, however, because the broader reading is the only way to provide
reasonable effect to the portion of the parties’ pretrial stipulation that left for
factual resolution the “total amount of damages sustained by Deirdre Levesque and
Timothy Levesque as a direct and proximate result of the collision.” In concluding
otherwise, the district court zeroed in on the phrase “total amount of damages”—
but those words are modified by the phrase “as a direct and proximate result of the
collision.” Under the stipulation’s plain language, then, those damages awardable
under the statute that were not proximately and directly caused by the collision
were not included as an issue of fact to be resolved by the jury. As the Levesques
note, any attorneys’ fees incurred while bringing the initial suit were proximately
caused not by the collision, but by GEICO’s decision not to immediately pay the
Levesques under the terms of the policy. Cf. U.S. Commodity Futures Trading
Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1329 (11th Cir. 2018) (citation
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omitted) (the directness requirement for proximate cause at common law “usually
does not exist ‘beyond the first step’ in a causal chain”); Ruiz v. Tenet Hialeah
Healthsystem, Inc., 260 So. 3d 977, 982 (Fla. 2018) (citation omitted) (proximate
cause is only found where “the alleged tortfeasor ‘substantially caused the specific
injury that actually occurred’”). Because the attorneys’ fees in the initial suit could
not reasonably be interpreted as resulting proximately and directly from the
collision, and the stipulation explicitly stated that the court would decide
reasonable attorneys’ fees as a matter of law, we conclude that the district court
abused its discretion by failing to interpret the stipulation to include the
determination by the court of reasonable attorneys’ fees from the initial action.
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On the other hand, we affirm the district court’s treatment of the set offs
applicable to the damages verdict. Under Florida law, GEICO was entitled to a
credit against the Levesques’ damages to the extent the jury’s award duplicated the
benefits available to the Levesques from workers’ compensation or personal injury
protection. State Farm Mut. Auto. Ins. Co. v. Siergiej, 116 So. 3d 523, 528 (Fla.

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GEICO suggests that this result is inappropriate because it means that the district court
will evaluate attorneys’ fees from a suit that did not occur before it. Many of the same reasons
for having courts determine attorneys’ fees still apply, however. For example, judges “ are better
equipped than juries to make computations based on details about billing practices, including
rates and hours charged on a particular case”—whether or not the fees stemmed from the trial the
jury was witnessing. McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1316 (2d Cir. 1993). We
therefore find no inherent absurdity in the parties deciding to have the court determine those fees
as a matter of law. Nor, as GEICO would have it, is there a Seventh Amendment issue; parties
may always stipulate to have damages determined by the court.
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Dist. Ct. App. 2013) (discussing Fla. Stat. § 627.727(1)). The Levesques now
argue that GEICO should not have received credit in this case because it did not
prove that the $10,000 in personal injury protection benefits and $183,000
workers’ compensation settlement were actually duplicative of the jury’s award of
$10,000 for future medical expenses and $50,000 in past lost earnings. In
particular, the Levesques claim that because the $183,000 workers’ compensation
settlement was “undifferentiated” among claims for “medical benefits,” “monetary
compensation benefits and impairment benefits, including penalties and interest,”
and attorneys’ fees and costs, it cannot be applied against the economic losses at
issue.
The district court was correct that under Florida law the workers’
compensation and personal injury protection amounts are fairly set off against the
economic damages at issue. As GEICO points out, evidence before the court
included checks issued to Deirdre Levesque stating that they were issued for
Temporary Total Disability, recoverable as a component of workers’ co mpensation
as per Florida Statutes § 440.15(2). That evidence sufficed for the district court to
apply the set off. Cf. Primo v. State Farm Mut. Auto. Ins. Co., No. 3:13-CV-64-J-
32MCR, 2014 WL 6769344, at *2 (M.D. Fla. Dec. 1, 2014) (finding that the
workers’ compensation benefits paid were “plainly” covered by jury award for past
medical expenses even when the exact bills at issue were not specified). But even
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assuming arguendo that there is any doubt on that point, the Levesques failed to
make this precise argument before the district court when arguing against the set
offs. We therefore follow our ordinary practice of declining to consider an issue
raised for the first time on appeal. See Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
Finally, the Levesques argue that the district court erred in explaining that
the entire jury verdict could be set off even without considering GEICO’s payment
of $100,000 in the initial suit. Assuming that the $183,000 workers’ compensation
settlement may only be set off against the $60,000 in economic damages, then the
Levesques’ math is correct: the $257,200 in non-economic damages are only
reduced to $57,200 after setting off the $100,000 in bodily injury benefits from
Progressive and $100,000 in uninsured motorist benefits from GMAC. But
GEICO’s initial tender is appropriately set off against the non-economic
damages—reducing the damages available to $0. Additionally, it appears that the
district court included its comment merely for emphasis, not as its substantive
ruling. In either case, we may affirm “on any ground that finds support in the
record.” Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844
(11th Cir. 2008). We affirm the district court on this point and conclude that, on
the basis of the damages before the court at that time, the set offs appropriately
reduced the amount awardable to the Levesques to $0. As previously mentioned,
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however, we now reverse the district court’s ruling on the pretrial stipulation and
hold that the district court must determine the amount of any reasonable attorneys’
fees the Levesques incurred in their initial suit. We therefore vacate the district
court’s entry of judgment in favor of GEICO (and the subsequent cost judgment)
and remand for further proceedings consistent with this opinion.

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