15 Fla. L. Weekly Supp. 1107b
Insurance — Personal injury protection — Complaint — Premature — Demand for mediation — Statute which provides that filing demand for mediation tolls requirements for filing suit for 60 days does not apply to PIP cases
SELECT MEDICAL CLINIC, INC., AS ASSIGNEE OF YOLETTE JEAN, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-2138 CC 24 (01). September 2, 2008. Darrin P. Gayles, Judge. Counsel: Richard Shuster, Shuster & Saben, LLC, Miami. Melanie Smith.
ORDER ON DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
THIS MATTER having come before the Court for hearing on August 11, 2008, on Defendant’s Motion for Judgment on the Pleadings, and the Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises,
It is hereby ORDERED and ADJUDGED as follows:
I. PROCEDURAL HISTORY
1. On November 28, 2007, the Plaintiff filed the subject lawsuit alleging that the Defendant breached a contract of insurance by failing to pay Personal Injury Protect (“PIP”) benefits for services rendered by the Plaintiff to Yolette Jean.
2. On June 9, 2008, the Defendant served its Motion for Judgment on the Pleadings which asserted that Plaintiff’s lawsuit was filed prematurely because the Plaintiff failed to engage in pre-suit mediation pursuant to F.S. 627.745 and paragraph 13 of the subject policy of insurance.
II. APPLICABLE STATUTE AND ISSUE OF LAW PRESENTED
3. The issue of law for this Court is whether a claim for no-fault benefits is subject to the pre-suit mediation requirements set forth in Florida Statute 627.745.
4. Florida Statute 627.745 provides as follows:
(1)(a) In any claim filed with an insurer for personal injury in an amount of $10,000 or less or any claim for property damage in any amount, arising out of the ownership, operation, use, or maintenance of a motor vehicle, either party may demand mediation of the claim prior to the institution of litigation.
(b) A request for mediation shall be filed with the department on a form approved by the department. The request for mediation shall state the reason for the request for mediation and the issues in dispute which are to be mediated. The filing of a request for mediation tolls the applicable time requirements for filing suit for a period of 60 days following the conclusion of the mediation process or the time prescribed in s. 95.11, whichever is later.
(c) The insurance policy must specify in detail the terms and conditions for mediation of a first-party claim.
(d) The mediation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed. Any party participating in a mediation must have the authority to make a binding decision. All parties must mediate in good faith.
(e) The department shall randomly select mediators. Each party may once reject the mediator selected, either originally or after the opposing side has exercised its option to reject a mediator.
(f) Costs of mediation shall be borne equally by both parties unless the mediator determines that one party has not mediated in good faith.
(g) Only one mediation may be requested for each claim, unless all parties agree to further mediation.
(2) Upon receipt of a request for mediation, the department shall refer the request to a mediator. The mediator shall notify the applicant and all interested parties, as identified by the applicant, and any other parties the mediator believes may have an interest in the mediation, of the date, time, and place of the mediation conference. The conference may be held by telephone, if feasible. The mediation conference shall be held within 45 days after the request for mediation.
III. DEFENDANT’S ARGUMENT
5. The Defendant contends that a claim for no-fault benefits is subject to the pre-suit mediation requirements of §627.745 if either party requests mediation before the filing of suit. The Defendant further contends that it made a proper request for mediation to the Florida Department of Financial Services, and attached such request to its answer thereby permitting the Court to issue judgment on the pleadings.
IV. PLAINTIFF’S ARGUMENT
6. The Plaintiff contends that §627.745 provides a mechanism for pre-suit mediation of third party tort claims for bodily injury and for property damage or for a first-party claim for uninsured motorist coverage. Plaintiff contends that §627.745 does not provide for pre-suit mediation of a first or third-party claim for no-fault benefits which is an action for breach of contract and is not a tort claim.
7. Plaintiff contends ad arguendo that if this Court found that a no-fault claim was subject to §627.745, the statute would only provide for extension of the statute of limitations and would not bar the filing of suit.
8. Plaintiff also contends that if the Court were to find that no-fault claims are subject to §627.745, then genuine issues of material fact would exist as to whether United properly and timely requested mediation and that such issues would require presentation of evidence by affidavit and would be appropriate for summary judgment rather than judgment on the pleadings.
V. CASE LAW AND OTHER MATERIALS REVIEWED BY THE COURT
9. The Defendant relies upon the dissent in the matter of Fidelity National Insurance Company v. Armando Perera, 2 Fla. L. Weekly Supp. 508b, (Fla. 11th Circuit-Appellate, Miami-Dade, 1994). Fidelity National was an interlocutory appeal brought by Fidelity National following the trial court’s denial of Fidelity’s motion to dismiss. In Fidelity National, the Court dismissed Fidelity’s appeal without hearing oral argument on the merits, upon a finding that the Court did not have jurisdiction to hear an interlocutory appeal from an order denying mediation of a claim. As such, the dissenting opinion regarding the substantive issue is merely dicta and is not binding on this Court. The Defendant also provided the Court two written Orders from other County Judges in this Circuit which referred to the dissent in Fidelity National.
10. The Plaintiff presented the Court with ruling of the Honorable Jane Fishman in the matter of Robert Hanopole, D.C., P.A., a/a/o Rosemarie Dixon v. United Automobile Insurance Company, Broward Case No.: 08-08501 COWE 81 [15 Fla. L. Weekly Supp. 946a], wherein the Court found “that Florida Statute 627.745 does not apply to an action for personal injury protection benefits.”
11. The Plaintiff also presented the Court the opinion of the Honorable Debra Moses Stephens in Gardens EFL Imaging Center a/a/o Fanny Munoz v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 736a, (Fla. 15th Judicial Circuit, County Court, Palm Beach, 2008). In Gardens, the Court found that “a claim for personal injury” as set forth in §627.745 refers to a tort for negligence.
12. Finally, Plaintiff’s counsel furnished the Court with a copy of a tri-fold brochure bearing the seal of the Florida Department of Financial Services entitled “Mediation Programs For Automobile and Personal Property Insurance Claims Disputes.” This brochure under the section entitled “Who is Eligible For This Program?” states:
Anyone filing a claim with an insurer for bodily injury in an amount of $10,000 or less, or filing a claim for property damage in any amount that arises from the ownership, operation, use or maintenance of a motor vehicle may demand mediation any time before filing suit. The insurance company may also demand mediation.
VI. RULING
13. As set forth above, §627.745 provides for mediation for personal injury claims in an amount of $10,000 or less or for a claim for property damage in any amount arising from the ownership, operation, use or maintenance of a motor vehicle. Importantly, §627.745 does not mention no-fault benefits or make reference to F.S. 627.736, Florida’s PIP statute. Further, §627.745 is not a part of the PIP statute, and there are no references to §627.745 or mandatory mediation within the PIP statute. If the legislature intended to provide for pre-suit mediation of PIP claims, it could have done so expressly within the PIP statute. Conversely, this Court construes the absence of any reference to no-fault or first-party claims for medical expenses and wage loss in §627.745 to be the legislature’s intent to exclude PIP from the ambit of §627.745.
14. The Court notes that while it is not bound by the Florida Department of Financial Services’ (FDFS) interpretation of §627.745, the construction of a statute by the administrative agency entrusted with its interpretation is accorded great and persuasive force. Bureau of Crimes Compensation v. Reynolds, 443 So.2d 501 (Fla. 3d DCA 1984). The agency’s interpretation will not be overturned unless it is clearly erroneous. Cohen v. School Board of Dade County, 450 So.2d 1238 (Fla. 3d DCA 1984). The FDFS is the agency responsible for handling requests for mediation made pursuant to §627.745. The FDFS’ use of the term “bodily injury” without reference to §627.736, Florida’s PIP statute, indicates that the FDFS has interpreted §627.745 to cover negligence claims in tort rather than breach of contract claims for no-fault benefits.
15. Based on the foregoing, the Court holds as a matter of law that claims for no-fault benefits are not subject to the pre-suit mediation provisions of F.S. 627.745.
16. The Defendant’s Motion for Judgment on the Pleadings is accordingly denied.
