8 Fla. L. Weekly Supp. 219a
Insurance — Automobile — Loss of use expenses — Trial court erred in finding that insured could not recover loss of use expenses under policy that did not include loss of use provision as a matter of law where insurance contract provided that insurer had option to pay for loss in money, or to repair or replace damaged vehicle, but insurer did not pay or repair within reasonable time — Where delay in finding total destruction was caused by insurer, loss of use for unreasonable period of delay was compensable
OSCAR GALLO, Appellant, Cross-Appellee, v. FORTUNE INSURANCE COMPANY, et al., Appellee, Cross-Appellant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-182 AP. Opinion filed January 30, 2001. An Appeal from the County Court for Miami-Dade County, Florida, Marilyn Milian, Judge. Counsel: William O. Solms, Jr., Solms & Price, P.A., for appellant/cross-appellee. Sharon C. Degnan and Diane H. Tutt, Diane H. Tutt, P.A., for appellee/cross-appellant.
(BEFORE RICHARD YALE FEDER1, JENNIFER D. BAILEY, and JOEL H. BROWN, JJ.)
(PER CURIAM.) This cause arises from a claim for insurance benefits relating to an automobile accident which occurred in November of 1997. Appellee Fortune Insurance Co. (“Fortune”) denied coverage and Appellant Gallo filed suit in June of 1998. After the action was filed, appellee settled the claim by paying the value of the vehicle on the date of the accident plus interest from the time of the accident to date of payment, approximately eleven months. Issues at trial were whether or not the medical bills submitted by Gallo were reasonable and whether or not Gallo was entitled to receive loss of use expenses because of the delay in payment. After a non-jury trial, the court denied loss of use damages and found the sum of $3715 to be a reasonable, related and necessary amount for medical bills of plaintiff-Gallo. Appellant Gallo has filed this appeal because of the denial of the loss of use damages. Fortune has cross-appealed alleging that the trial court erred in finding that the medical bills of Gallo were reasonable, related and necessary. We reverse the trial court’s denial of loss of use damages.
The trial court found as a matter of law that Plaintiff Gallo could not recover damages for loss of use under his policy. It is true that the insurance policy did not include a provision for loss of use. Appellee Fortune alleges that because there was no provision for loss of use, there could be no recovery. Additionally, because the insurer paid prejudgment interest from the date of the accident to the date of settlement, it would be a double penalty to incur loss of use damages also based upon Maryland Cas. Co. v. Florida Produce Distributors, Inc., 498 So. 2d 284 (Fla. 4th DCA 1974). In that case the insurer did not elect to make repairs but was only contractually obligated to pay money. The delay in the payment of money required the payment of prejudgment interest and not also damages based upon loss of use.
Maryland Casualty is distinguishable, however, because in the present case, the insurer was not just contractually obligated to pay money. There was no determination made as to whether the vehicle was repairable until settlement was made. At that time or shortly before the settlement, it was determined that the vehicle was a total loss. Until that time, insurer also had an obligation to repair the vehicle. There was no disagreement as to a proper sum of money to be paid during the eleven months that Fortune denied coverage.
The cases cited by appellee regarding fair value of totally damaged vehicles are not applicable since there was no determination of this for eleven months. Loss of use is compensable for damage to property when the harm does not amount to total destruction. See, generally, Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968). Since the delay in finding total destruction was caused by the insurer, it is clear that any loss of use for the unreasonable period of delay would be compensable. See Badillo v. Hill, 570 So. 2d 1067 (Fla. 5th DCA 1990); 12 Couch on Insurance, Part VII(C), § 178:16 Loss of Use, Generally (3d ed.) Where the insurance contract provides, as the one in the present case, that in the event of loss, the insurer has the option to pay for the loss in money, or repair or replace the damaged vehicle, the insured is not entitled to recover for loss of use if the insurer pays in money or repairs the damage within a reasonable time. Travelers Indemnity Co. v. Parkman, 300 So. 2d 284 (Fla. 4th DCA 1974). In this case, the insurer did not pay or repair within a reasonable time, nor did the insurer elect to pay or repair within a reasonable time.
The trial court erred in finding as a matter of law that Gallo was not entitled to loss of use damages. Appellant testified that he had spent $1000 in rental charges during the eleven month period. This cause is remanded for the trial court to enter judgment to Gallo for loss of use damages in the amount of $1000.
As to the cross-appeal, this court finds that the trial court heard sufficient evidence to make the determination that medical damages in the amount $3715 were reasonable and necessary. This portion of the final judgment is affirmed.
Affirmed in part; reversed and remanded in part, in accordance with this opinion.
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1Judge Feder participated in oral argument and in this decision but retired prior to the publishing of the opinion.
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