Plaintiff filed a complaint to recover no-fault insurance benefits. The trial court granted the defendants’ motions for summary judgment, pursuant to GCR 1963, 117.2(1). Plaintiff appeals as of right.
Plaintiff was employed by defendant Commercial Carriers, Inc. (hereinafter "defendant”), beginning in November 1971. During the course of his employment, he suffered several injuries, three of which occurred in March and July of 1975 and on February 11, 1980, for which he received workers’ compensation benefits paid by either defendant or defendant CNA Insurance Company (hereinafter "defendant CNA”). On July 28, 1980, plaintiff filed a complaint alleging that he suffered injuries during the course of his employment in September of 1975 and on February 11, 1980, for which he had received workers’ compensation benefits, that he *70 notified dеfendant that both injuries occurred during the loading and unloading of a motor vehicle, that defendant was a self-insurer for purposes of the no-fault insurance act, and that defendant "fаiled, refused and neglected” to pay benefits pursuant to § 3106(b) of the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. In addition to compensatory and exemplary damages, plaintiff sought 12% interest on any judgment, attorney fees, and $20 per day for services necessitated by his injuries, all pursuant to the no-fault insurance act.
Defendant answered on September 10, 1980, denying that it refused to pay plaintiff no-fault insurance benefits and denying that it had no reason in fact or law to refuse such benefits and also admitting that it was a self-insurer with respect to the alleged 1980 injury only. Defendant CNA, althоugh not a party at that time, filed an answer that same day, which substantially comported with that of defendant. However, the language of the second answer seems to imply that it applies only to defendant CNA. As an affirmative defense, defendant CNA claimed that the statute of limitations had run on the alleged 1975 injuries.
On January 27, 1981, defendant moved for summary judgment, pursuant to GCR 1963, 117.2(1). Defendant sрecifically challenged payment of work-loss benefits to plaintiff pursuant to MCL 500.3107; MSA 24.13107, claiming that such had been and continued to be paid as a result of the alleged 1980 injury. That same day, defendant filed a similar motion as to the alleged 1975 injuries, claiming that plaintiff’s claim was barred by the statute of limitations.
On February 23, 1981, plaintiff answered defendant’s motions for summary judgment and also *71 movеd, without citing the relevant court rule, for partial summary judgment as to defendant’s liability to pay no-fault insurance benefits and attorney fees.
On March 13, 1981, defendant CNA filed an affidavit in support оf a motion, presumably for summary judgment. Defendant CNA was the .workers’ compensation insurance and no-fault insurance carrier for defendant during 1975 and paid plaintiff’s workers’ compensation benefits from March 25, 1975, through September 25, 1976. Defendant CNA alleged that no claim for no-fault benefits was made by plaintiff prior to July 28, 1980, i.e., the date the complaint was filed. Another similar affidavit wаs filed March 20, 1981.
A hearing was held on all motions on March 16, 1981. On May 12, 1981, the trial court issued an opinion finding that defendant was paying no-fault benefits for the 1980 injury and, therefore, plaintiff was not entitled to аn attorney fee. The trial court also found that plaintiff was paid all sums due him under the law for his 1975 injuries, thereby refusing to give retroactive effect to the Supreme Court’s decision in
Mathis v Interstate Motor Freight System,
We find it unnecessary to address the question of the retroactive application of
Mathis.
Even if
Mathis
is so applied, any claim that plaintiff may have had for no-fault benefits arising out of his September, 1975, injuries is limited by MCL 500.3145(1); MSA 24.13145(1), which bars recovery
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of any personal protection benefits for any loss incurred more than one year before the date on which the action is commenced.
Aldrich v Auto-Owners Ins Co,
Regarding the trial court’s refusal to grant plaintiff’s request for attorney fees, we find that the trial court’s action is not supported by the record, and it appears that the trial court erred.
MCL 500.3148(1); MSA 24.13148(1) provides:
"An attorney is entitled to a reasonable fee for advising and representing a claimant in an actiоn for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits reсovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.”
*73 We note that the terms of this statute are mandatory, contingent only upon culpable conduct on the part of the insurer.
MCL 500.3142(2); MSA 24.13142(2) provides that personal protection benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of the loss sustained.
Where benefits are not paid within the statutory period, we think a rebuttable presumption оf unreasonable refusal or undue delay arises. It is then the burden of the insurer to explain and justify the refusal or delay. It then becomes the trial court’s duty to determine if the refusal or delay is unrеasonable. See
Wood v Detroit Automobile Inter-Ins Exchange,
Since the no-fault benefits arising out of the 1980 injury are now being paid, we arе presented with the question of whether the delay in commencement of the payments was unreasonable. We note that the trial court denied an award of a reasonablе attorney fee simply because payments had been made prior to the court’s ruling. This is not adequate grounds to deny relief under § 3148(1). It appears that a delay in payment of several months occurred. We are unimpressed by defendant’s claim that it needed time to "process” the claim. It appears that no adequate reason for the delay exists, but wе are unable to grant relief to plaintiff at this time because the record is inadequate in two respects.
First, it is not clear when defendant was given reasonable proof of the fact and of the amount of loss sustained for purposes of § 3142(2). Under the
*74
circumstances we arq unable to ascertain when, if ever, a claim was made for no-fault benefits prior tо the time the action was commenced (the complaint, filed July 28, 1980, contained such a claim). This is significant because of defendant’s dual status as self-insurer for both workers’ compensаtion and no-fault benefits and also because of a change in the law which occurred when the Michigan Supreme Court decided
Mathis, supra,
overruling
Mathis v Interstate Motor Freight System,
Our second reason for finding the record inadequate is that there is no basis on which to determine the amount of attorney fees to be awarded in the event that an unrеasonable delay is found. We *75 must leave this determination to the discretion of the trial court. A final comment is in order on the effect of the Mathis decision. We note that plaintiff asserts that he is entitled to "dual benefits”. It is true that under Mathis plaintiff is entitled to recover both workers’ compensation and no-fault benefits. Plaintiff is not, however, entitled to double recovery for the same loss. The Supreme Court’s decision in Mathis, supra, 186-187, makes it clear that the workers’ compensation benefits received must be set off against no-fault benefits otherwise due. We assume that such is being done in the instant case.
Aifirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.