At first blush, the Appellate Division, Fourth Department’s holding in Huther v. Sickler appears unfair and a windfall to the defendant.  Although the reasoning is counter-intuitive, the Court’s holding is absolutely correct.

The plaintiff in this matter recovered approximately $4,500 from her No-Fault carrier, although she claimed that her lost wages and medical expenses were much more.  The plaintiff then commenced an action against the tortfeasor and, ultimately, was awarded a jury verdict of approximately $76,000.  The defendant argued that the jury award should be reduced by $50,000, the amount of basic economic loss  she could have received under the Insurance Law and applicable No-Fault regulations.  The plaintiff claimed that the set-off should be reduced only by $4,500.

The Court agreed with the defendant, concluding that the prohibition of recovering basic economic loss against the tortfeasor is absolute.

The case makes for an interesting result that, no doubt, will have some crying an inequity has befallen upon the plaintiff.