Bunting v. Regional Transp. Dist., 95CA0642

• Decision Date: 16 May 1996
• Docket Number: No. 95CA0642,95CA0642
• Parties: Ivory BUNTING, Plaintiff-Appellee, v. REGIONAL TRANSPORTATION DISTRICT, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 924

919 P.2d 924

Ivory BUNTING, Plaintiff-Appellee, v. REGIONAL TRANSPORTATION DISTRICT, Defendant-Appellant.

No. 95CA0642.

Colorado Court of Appeals Div. III.

May 16, 1996.

Wilson & Associates, P.C., William J. Crichton, III, Denver, for Plaintiff-Appellee.

Roger C. Kane, Denver, for Defendant-Appellant.

Opinion by Judge ROY.

In this action to recover personal injury protection (PIP) benefits, defendant, Regional Transportation District (RTD), appeals the trial court's judgment awarding plaintiff, Ivory Bunting, $13,500 in attorney fees. We reverse and remand for further proceedings.

Plaintiff was injured when an RTD bus in which he was riding was struck by a car. As a result of this accident, plaintiff was transported to a local hospital where he was examined and treated. RTD paid for the cost of this treatment.

Approximately three months after the accident, plaintiff began chiropractic therapy and sought reimbursement for this therapy from RTD. Initially, RTD authorized payment for several of plaintiff's treatments and sent a check to the chiropractor. However, for unexplained reasons, that check was not cashed.

Later, RTD requested that plaintiff submit to an independent medical examination (IME) so that it could verify that the chiropractic treatments were reasonable and necessary and related to the accident. Plaintiff refused, contending that RTD had no legal basis upon which to require him to do so.

Eventually, however, plaintiff submitted to an IME performed by a physician selected by RTD. Based on the IME report, RTD refused to pay for plaintiff's chiropractic treatments and requested that he undergo another IME with a different doctor.

Plaintiff then brought this action seeking to recover the cost of the chiropractic therapy plus attorney fees and costs. After a bench trial, the court issued an oral ruling determining that plaintiff's symptoms were causally related to the accident and that the chiropractic treatments were reasonable and necessary expenses. Accordingly, it ruled that RTD was liable for $2,584.70 in PIP benefits, the full amount sought by plaintiff. The court also determined that, pursuant to § 10-4-708(1.7)(c), C.R.S. (1994 Repl.Vol. 4A), plaintiff was entitled to 100% of his reasonable and necessary attorney fees. Thereafter, it entered a written judgment pursuant to C.R.C.P. 58(a) incorporating its oral findings.

RTD then filed a motion to amend the judgment with regard to the trial court's ruling on plaintiff's entitlement to attorney fees. Because it did not act upon RTD's motion within 60 days, the trial court entered a ruling concluding that it was without jurisdiction to consider the motion. The parties stipulated as to the amount of attorney's fees and the court then entered a written judgment in favor of plaintiff awarding him $2,584.70 in PIP benefits and $13,500 in attorney fees.

I.

At the outset, we reject plaintiff's contention that this appeal is moot because of the parties' stipulation concerning attorney fees and costs. From our review of the stipulation, it is readily apparent that it was conditioned on the trial court's complete denial of RTD's motion to amend the judgment. Moreover, the stipulation dealt only with the amount of attorney fees the trial court could award and not whether attorney fees were awardable in the first instance. Thus, we conclude that the stipulation did not constitute a waiver of RTD's right to appeal plaintiff's entitlement to attorney fees. Accordingly, we also reject plaintiff's contention that he should be awarded his appellate attorney fees pursuant to § 13-17-102, C.R.S. (1987 Repl.Vol. 6A).

II.

RTD contends that the trial court erred in determining that plaintiff was entitled to all of his reasonable and necessary attorney fees pursuant to § 10-4-708(1.7)(c). Under the circumstances presented here, we conclude that further proceedings are necessary.

A.

The General Assembly enacted the Colorado Auto Accident Reparations Act (the No-Fault Act), § 10-4-701, et seq., C.R.S. (1994 Repl.Vol. 4A), "to avoid inadequate compensation to victims of automobile accidents...." Section 10-4-702, C.R.S. (1994 Repl.Vol. 4A); see Meyer v. State Farm Mutual Automobile Insurance Co., 689 P.2d 585 (Colo.1984). To facilitate this goal, the No-Fault Act mandates prompt payment of all reasonable and necessary expenses for chiropractic services performed within five years after the accident. Sections 10-4-706(1)(b) and 10-4-708, C.R.S. (1994 Repl.Vol. 4A). The No-Fault Act also requires that the insurer must promptly pay any compensable expense.

At the time pertinent here, § 10-4-708(1), C.R.S. (1994 Repl.Vol. 4A) provided in pertinent part:

Benefits for any period are overdue if not paid within thirty days after the insurer receives reasonable proof of the fact and amount of expenses incurred during that period .... If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within thirty days after such proof is received by the insurer. Any part or all of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within thirty days after such proof is received by the insurer. (emphasis added)

Thus, under this provision, if the insurer fails to pay PIP benefits when due, the claimant may bring an action in contract to recover the unpaid benefits. The claimant, if successful, may recover attorney fees under § 10-4-708(1.7)(c).

Section 10-4-708(1.7)(c) provides in pertinent part:

In determining the amount of attorney fees, if any, to be awarded to the insured the arbitrator or court shall consider the following:

(I) The award of attorney fees to the insured shall be in direct proportion to the degree by which the insured was successful in the proceeding. The determination of the degree of the insured's success shall be based upon a comparison of the amount of benefits set forth in the notice of amount of benefits claimed and the amount of benefits recovered in the proceeding. The percentage resulting from this comparison shall be the degree by which the insured was successful. (emphasis added)

Here, with regard to plaintiff's claim for PIP benefits, the trial court stated that the issue of the reasonableness and necessity of plaintiff's chiropractic treatments "can, in reality, be resolved only at this time." After determining that the treatments were, in fact, reasonable and necessary and causally related to the accident, the court noted: "I do not believe that I could hold the defendant responsible for [not] having come to this conclusion earlier."

The trial court...