10 Fla. L. Weekly Supp. 789b
Insurance — Personal injury protection — Exhaustion of benefits on subsequent claims — Error to enter summary judgment in favor of insurer where, although insured cannot recover any more benefits, she may be entitled to statutory damages, including attorney’s fees
CARLYNE SANDERS, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 00-2570 (02). June 5, 2003. Victor Tobin, Judge. Counsel: Harley Kane, Boca Raton. Chris Boyar, Hollywood. Steven R. Woods, Fort Lauderdale.
ORDER
THIS CAUSE comes before this Court upon the Appellant’s, Carlyne Sanders, Appeal of a Final Summary Judgment [7 Fla. L. Weekly Supp. 289a]. This Court having read the Brief, the Answer Brief, the Reply Brief, having reviewed the case file and being otherwise fully advised hereby finds that:
The Appellant, Carlyne Sanders, was injured in an automobile accident and brought suit against the Appellee for personal injury protection and medical expense benefits. Appellant sought medical treatment from a chiropractor and after an independent evaluation, Appellee received a report that future chiropractic case was not reasonable or necessary as related to the subject accident. Appellee informed the Appellant that it would no longer give consideration to chiropractic care. Appellant filed suit. At that time benefits were not exhausted. Subsequently, Appellant’s benefits were exhausted with additional medical bills. The trial court entered a summary judgment in favor of the Appellee on January 14, 2000. The trial court held that the Plaintiff had received the “full benefit of the bargain” since the funds were exhausted and that the Plaintiff could not be entitled to statutory interest because the Appellee had obtained a timely report from an appropriate physician pursuant to Fla. Stat. Sec. 627.736(7) and therefore was not responsible for payment. The matter was timely appealed on February 9, 2000.
The issue is whether State Farm can render a lawsuit moot by exhaustion of insurance benefits on unrelated claims which were received and paid after the law suit was filed. The granting of summary judgment was improper because the claim for statutory damages, including attorney’s fees, was still available to the insured. Although the insured cannot recover any more benefits, she may be able to prove that at the time the suit was filed the insurer was in violation of the statute and therefore she would be entitled to the statutory damages — including attorney’s fees. See Ruby Randel v. Allstate Insurance Company, 7 Fla. L. Weekly Supp. 301a (Fla. 6th Jud. Cir. 1996); Crooks v. State Farm Mutual Automobile Insurance Company, 659 So. 2d 1266 (Fla. 3d DCA 1995).
It is hereby:
ORDERED AND ADJUDGED that the Final Summary Judgment is REVERSED AND REMANDED.
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