specially concurring:
I agree that appellate courts may not reevaluate the elements of an underlying PIP award when only the grant of attorney fees associated therewith has been appealed. However, I do not agree with the majority that the court of appeals misinterpreted the statutory framework. I write separately to make clear that I would decide this case on the basis of its appellate posture, and not on questions of statutory construction or legislative intent.
An action for recovery of PIP benefits is not cognizable absent an insurer’s actual failure to pay such benefits when they are due. Indeed, section 10^4-708(1), 3 C.R.S. (1998), requires such nonpayment before an action may be brought, providing that “[ijn the event that the insurer fails to pay such benefits when due, the person entitled to such benefits may bring an action in contract to recover the same.” (Emphasis added.)
It is only once an action has resulted in an award of past due benefits that consideration of an award of attorney fees pursuant to section 10-4-708(1.7)(e) becomes necessary. The formula for the appropriate award of fees is based on the degree to which the claimant was “successful” in the underlying proceeding. See id.
The actual entitlement to an award of such fees, however, rests on something more substantial. Attorney fees do not become the proper subject of an award under section 10-4-708(1.7)(c) of the statute unless and until the claimant obtains PIP benefits pursuant to section 10^4-708(1). As such, any attorney fees award in this context must logically be understood to rest, albeit indirectly, upon the insurers’ failure to timely pay benefits - the factual and legal predicate for the underlying action. See § 10-4-708(1), 3 C.R.S. (1998).
As the majority explains, the jury award of $22,000 in PIP benefits pursuant to interrogatories one through four is potentially inconsistent with the jurors’ findings, in other interrogatories, that the amounts were not past due. On appeal, however, Farmers raised the inconsistency only as it would affect the propriety of the resulting attorney fees. In my view, it is this incomplete appeal that requires reinstatement of the fee award entered by the trial court.
The court of appeals found that the basis for a successful PIP recovery action is that the insurer failed to pay benefits when due. See Adams v. Farmers Ins. Group, 958 P.2d 502, 504 (Colo.App.1997). The court of appeals went on to recognize that “[wjithout this predicate act [the failure to pay benefits when due], the statutory claim fails and, with it, the court’s authority to award fees to the insured under § 10-4-708(1.7)(c).” Id. As noted above, I agree in principle with this statement of the statutory framework. As a result, I do not endorse the majority’s conclusion today that the court of appeals’ erred in its interpretation of the statute. Inasmuch as proof that an insurer has failed to timely pay benefits is a prerequisite for the *805underlying action, it is also a prerequisite for the associated attorney fees.
In my view, the problem is not the construction of the statute, but the failure of the court of appeals to recognize that the appellate posture of this case prevented the proper analysis. I disagree, for example, with the court of appeals’ suggestion that the jury “squarely decided” that PIP benefits were not overdue. Adams, 958 P.2d at 504. One could only reach this conclusion by ignoring the fact that the jury did award $22,000 worth of PIP benefits. In defense of its decision to regard the answers to the “timely payment” interrogatories as the controlling aspect of the verdict, the court of appeals observed that the insureds had not raised the potential inconsistency on appeal. See id. at 505. However, the insureds were the successful plaintiffs in the trial court. They are not required to level arguments against their own judgment. It was Farmers - as the party against whom the PIP award was obtained - who had the responsibility of raising any potential infirmity in the underlying PIP judgment on appeal. Because it did not, I would hold that Farmers cannot now collaterally argue that a core finding necessary to sustain that judgment was lacking as it indirectly applied to the attorney fees award.
In sum, I agree that the court of appeals may not vacate the award of attorney fees in this case. However, unlike the majority, I do not believe that the court of appeals misinterpreted the statutory framework. ’ I am persuaded instead by the fact that the appellate courts have been prevented from properly evaluating the validity of the PIP award (and thus, the validity of the associated attorney fees) by the incomplete appeal brought by Farmers from the trial court. Accordingly, I join in the judgment of the majority but I do not join in its opinion inasmuch as it conflicts with my observations here.
Justice KOURLIS joins in this special concurrence.