BEAUMONT COURT OF APPEALS: INSURER MUST PROVE PIP PAYMENTS AT TRIAL TO OBTAIN OFFSET

November 25, 2019

An auto insurer was recently subjected to double exposure for its prior payments because it waited until after the jury returned a verdict to put on evidence of the prior payments and the resulting offset it should have received. Allstate Fire and Casualty Ins. Co. v. Alfred, 09-18-00357-CV, 2019 WL 6205154 (Tex. App.—Beaumont Nov. 21, 2019, no pet. h.) (slip op.) involved a hit and run accident.  Allstate immediately paid Alfred his $10,000 Personal Injury Protection (PIP) benefit.

Alfred later sued Allstate for both Uninsured Motorist and PIP benefits.  In its answer, Allstate pleaded that it was entitled to an offset for its prior PIP payment, but did not actually put on evidence of the prior payments during trial or submit a jury question on its offset. The jury awarded $13,559, and Alfred moved for entry of judgment in that amount, arguing Allstate had waived its right to an offset because it had neither presented evidence nor submitted a jury question on that issue.  The court of appeals concluded Alfred was right: a claim for a credit or offset for prior payments is an affirmative defense which must be proven at trial and submitted to the jury – not left until the entry of judgment stage.