18 Fla. L. Weekly Supp. 1168a
Online Reference: FLWSUPP 1811BART
Insurance — Personal injury protection — Arbitration — Where parties did not request trial de novo within deadline for such request, trial court must enter judgment in accordance with arbitrator’s decision — Five-day mailing period is not applicable to filing of requests for trial de novo where arbitrator served decision by fax — Decision clearly reflects that arbitrator considered parties’ arguments and evidence
CENTRAL PALM BEACH PHYSICIANS & URGENT CARE CENTER (a/a/o Elwira Bartnikowska), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-1218 COCE (53). August 24, 2011. Robert W. Lee, Judge. Counsel: Tara L. Kopp, Palm Beach Gardens, for Plaintiff. Michael A. Rosenberg, Deerfield Beach, for Defendant.
FINAL JUDGMENT ON ARBITRATOR’S DECISION IN FAVOR OF PLAINTIFF
THIS CAUSE came before the Court for consideration of the notice of filing Arbitration Award filed by the Arbitrator Rose-Ann Flynn, and the Court’s having reviewed the docket, the entire Court file, and the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
This case was submitted to mandatory arbitration. The arbitrator served her decision by fax on July 20, 2011. Under Rule 1.820(h), Fla. R. Civ. P., a motion for trial de novo must be “made” within 20 days of the “service” of the arbitrator’s decision. Under Florida law, “a party has the right to move for a trial within twenty days after service of the arbitrator’s decision. If no motion for trial is timely served, then the trial court must enforce the decision of the arbitrator and has no discretion to do otherwise” (emphasis added). Bacon Family Partners, L.P. v. Apollo Condominium Ass’n, 852 So.2d 882, 888 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1795a]. See also Johnson v. Levine, 736 So.2d 1235, 1238 n.3 (Fla. 4th DCA 1999); Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992). The Court lacks discretion to deny entry of a judgment in accordance with the arbitrator’s decision when the parties fail to timely request a trial de novo or otherwise fail to dispose of the case of record within the de novo deadline.
The parties’ request for trial de novo was required to be filed no later than August 9, 2011. (A five-day mailing period is not added because the arbitrator served her decision by fax.) See Federated Financial Corp. of America v. Cohen, 14 Fla. L. Weekly Supp. 981b (Broward Cty. Ct. 2007); Rule 1.090(e). Neither party filed a timely request. Indeed, the Plaintiff filed notice that it was accepting the arbitrator’s award, while the Defendant filed an untimely Motion for New Trial on August 10, 2011. As a result, the Court is required to enter judgment in accordance with the Arbitrator’s decision. See Gossett & Gossett, P.A. v. Fleming, 10 Fla. L. Weekly Supp. 839b (Broward Cty. Ct. 2003). Accordingly, the Court has this day unsealed the Arbitrator’s decision.1
In her decision, the arbitrator notes that the Defendant argues that the seminal Kingsway case should not apply because the State Farm PIP policy at issue contained endorsement 6910.3 which was not addressed in the Kingsway decision. In pertinent part, the endorsement reads as follows:
To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the provider, reimbursement levels in the community and various federal and state medical fee schedules applicable to the automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment or supply.
The arbitrator further noted that the language of this endorsement, like that in the Kingsway policy, does not make reference to the permissive payment methodology of the Florida PIP law. Moreover, the endorsement does nothing other than give the insurer a “broad laundry list of factors” that the insurer may consider in determining reasonableness. The arbitrator concluded that this is insufficient to put the insured on notice that State Farm has selected the payment methodology in question. In the Court’s view, the Arbitration Decision clearly reflects that the arbitrator appropriately considered the parties’ arguments, as well as their submitted evidence. Rule 1.820(c).
As a result, it is hereby ADJUDGED THAT:
The Plaintiff shall recover from the Defendant, STATE FARM MUTUAL AUTOMOBILE COMPANY, the sum of $168.30, which sum shall hereafter bear interest at the rate of 6% per annum. The Plaintiff is also entitled to an award of prejudgment interest, attorney’s fees and costs, which the Court reserves jurisdiction to determine.
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1The Court notes that the Plaintiff improperly included a copy of the Arbitrator Decision as an attachment to the Plaintiff’s Notice of Acceptance of Arbitration Award. While the Court agrees with the Defendant that this is improper, the Court finds that while perhaps sanctionable, it does not effect the validity of the arbitration award.
