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]

CORRECTED OPINION

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 rearended, 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”). 
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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 
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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 

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, 
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there shall be no reduction for collateral sources for which a 

subrogation or reimbursement right exists.

§ 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 
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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 

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: 
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“(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 

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 
7

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 

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 
8

time it was made, the offeror had a reasonable basis to 

conclude that its exposure was nominal.” “The offer need not 

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 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 
9

Co. v. Lauderdale Sand & Fill, Inc., 813 So. 2d 1013, 1015 (Fla. 4th DCA 

2002). Assuming the recalculated judgment meets the threshold amount 

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.