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CARLEY, Chief Judge.
Action for damages. Whitfield Superior Court. Before Judge Temples.
Under OCGA 33-34-9 (b), an injured party is precluded from recovering his economic damages to the extent that he is eligible to receive no-fault benefits for those damages. Under OCGA 51-12-1 (b) the trior of fact is authorized, but not required, to reduce an award of damages by the amount of payments received by an injured party from collateral sources. Appellant urges that OCGA 51-12-1 (b) is inconsistent with OCGA 33-34-9 (b) and that the former provision has repealed the latter provision by implication. The specific contention is that, pretermitting OCGA 33-34-9 (b), an injured party is not precluded from recovering his economic damages unless and until the trior of fact elects under OCGA 51-12-1 (b) to reduce an award by the amount of no-fault benefits received for those economic damages. Since the jury's verdict in the instant case indicates that it did not elect to reduce its award of economic damages pursuant to OCGA 51-12-1 (b), appellant contends that the trial court had no authority to reduce the jury's award pursuant to OCGA 33-34-9 (b).
Contrary to appellant's contentions, OCGA 33-34-9 (b) and OCGA 51-12-1 (b) are not inconsistent. OCGA 33-34-9 (b) precludes the recovery of certain specific damages. Since those damages are not recoverable in a civil action, they are not otherwise subject to the mandate of OCGA 51-12-1 (b). The trior of fact has no discretion as to whether an award of damages will be reduced based upon the plaintiff's receipt of no-fault benefits for economic damages because the plaintiff is precluded from recovering those damages.
Rather than following this "approved" procedure, the decision apparently was made to try the instant case as if it were a non-no-fault tort action with an eventual write-off from the verdict of economic damages awarded by the jury, but not otherwise recoverable under OCGA 33-34-9 (b). "Obviously, when [such a] decision is made . . ., it is better practice to insure that the verdict that will be returned is in a form which will facilitate the write-off. [Cit.]" Levine v. Wyatt, supra at 634. The verdict form that was employed in the instant case would facilitate such a write-off, at least insofar as it required the jury to specify the amount of economic damages it had awarded and the extent to which it had already reduced that award by virtue of appellant's receipt of payment from collateral sources. The verdict form would not, however, facilitate a write-off of no-fault benefits insofar as it did not require the jury to specify the source of its reduction of an award of economic damages. Without some indication as to whether the jury's reduction of an award of economic damages was or was not based upon the receipt of no-fault benefits, the trial court could not know whether a post-verdict write-off would be warranted. The question would remain whether the jury's reduction was based upon the receipt of no-fault benefits, in which case no further write-off would be authorized, or was based upon the receipt of payment from some other collateral source, in which case no-fault benefits should be written off by the trial court. However, since it is clear that the jury in the instant case awarded appellant economic damages unreduced by receipt of payment from any collateral source whatsoever, the issue of whether a further write-off by the trial court would constitute a double reduction of non-recoverable economic damages does not arise. The jury made an unreduced award of all of appellant's economic damages and it follows that the trial court correctly wrote off $2,500 as the amount of appellant's economic damages which were non-recoverable under OCGA 33-34-9 (b).
James H. Phillips, for appellee.
William W. Keith III, for appellant.
DECIDED JUNE 25, 1990.
Sunday May 24 16:20 EDT

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