Most of the time, Personal Injury Protection (PIP) benefits are paid when a proper claim for them is made and then if a claim for Uninsured Motorist (UIM) benefits is made, the insurance company takes/gets an offset for the PIP benefits in any settlement that occurs. But what if the case is tried to a jury?
A case involving PIP and UIM benefits was tried to a jury in Jasper County and a Judgement was entered in favor of the insured. No offset was given for the PIP benefits that had been paid by the insurance company. How did this happen?
An appeal was taken to the Beaumont Court of Appeals and the case is styled, Allstate Fire And Casualty Insurance Company v. Andy Alfred.
Andy was injured in a head-on collision with a hit-and-run driver. Andy made a claim for benefits and Allstate paid $10,000 in PIP benefits. Andy then made a claim for UIM benefits which was not paid and the case went to trial. A jury verdict was returned in favor of Andy for $13,559.15 in damages. Allstate asked the Judge to give Allstate a credit on the judgment in the amount of the $10,000 already paid in PIP benefits. The Judge denied Allstate’s request and this appeal resulted.
During trial Allstate had offered no evidence on the issue of an offset, nor was the jury asked a question on the issue.
Allstate argued that the policy contained a “non-duplication of benefits clause” and thus, Allstate was entitled to the offset.
Andy argued Allstate waived its right to claim an offset for PIP payments by failing to offer any evidence of such payments at trial and by failing to obtain a jury finding on the issue.
Under Texas law, a claim for an offset is an affirmative defense. The party asserting an affirmative defense bears the burden to plead, prove, and secure findings on the defense. An affirmative defense is waived when no evidence is presented at trial and no request is made for a jury instruction on the affirmative defense. A party’s failure to request a jury instruction on an affirmative defense results in waiver of that ground unless the issue is conclusively established. An issue is conclusively established when the evidence is such that it leaves no room for ordinary minds to differ as to the conclusion to be drawn from it.
The record does not show that Allstate requested jury questions or instructions on its offset defense or that Allstate objected to the omission of such an instruction from the court’s charge. Accordingly, the court concluded that Allstate waived appellate review of its offset claim.