7 Fla. L. Weekly Supp. 301a
Insurance — Personal injury protection — Error to grant summary judgment on action to collect medical bills after medical benefits under policy were exhausted, because claim for statutory damages, including attorney’s fees, was still available to insured — Although insured cannot recover any more benefits, she may be able to prove that at time suit was filed insurer was in violation of statute and therefore would be entitled to statutory damages, including attorney’s fees
RUBY RANDEL, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Appeal Case No. 95-1043 CI-88B. Inst. # 96-081456. Opinion filed March 25, 1996. Appeal from a decision of the Pinellas County Court, County Judge Carrere. Counsel: Joshua Stanford Morse, for appellant. Anthony Parrino, for appellee.
ORDER AND OPINION
THIS MATTER is before the court on Ruby Randel’s appeal from an order of the Pinellas County Court granting a motion for summary judgment against her. After reviewing the briefs and record this court reverses the decision of the trial court.
The insured was injured in an auto accident and submitted medical bills to her insurer. The insurer reduced the bills and paid a portion of them. Pursuant to Florida Statute 627.736(4)(b) the insured sued the insurer alleging that it did not fully pay the bills within the statutory time limit. During the pendency of this litigation the PIP benefits and medical benefits were exhausted because the insured submitted other medical bills which the insurer paid. Since the benefits under the policy were exhausted, the trial court granted summary judgment in favor of the insured on the grounds that the action was moot.
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 Crooks v. State Farm Mutual Automobile Insurance Company, 659 So. 2d 1266 (Fla. 3d DCA 1995) — a case decided after the trial court’s decision.
THEREFORE, IT IS ORDERED that the order granting the motion for summary judgment is reversed and this case is remanded for action consistent with this opinion.
IT IS FURTHER ORDERED that the appellant’s Motion for Attorney’s Fees is contingently granted. If on remand the insured obtains a verdict that the withholding of payment was unreasonable then she would be able to obtain her attorney’s fees — including the reasonable cost of the appellate fees incurred as a result of these appellate proceedings. The trial court shall determine the amount, if any, of such fees.
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