2 Fla. L. Weekly Supp. 508b
Appeals — Court does not have jurisdiction to hear interlocutory appeal from order denying mediation of a PIP claim
FIDELITY NATIONAL INSURANCE COMPANY, Appellant, vs. ARMANDO PERERA, Appellee. 11th Judicial Circuit, Appellate Division. Case No. 93-340AP. Opinion filed October 07, 1994. An Appeal from County Court for Dade County, Harvey L. Goldstein, Judge. Counsel: Jorge De La Osa, for appellant. Carlos A. Lopez, Virginia M. Best, Adolfo Z. Aguila-Rojas for appellee.
(Before PAUL SIEGEL, JUDITH L. KREEGER and MICHAEL B. CHAVIES, JJ.)
(PAUL SIEGEL, J.) This appeal is dismissed because the Court does not have jurisdiction to hear an interlocutory appeal from an order denying mediation of a claim. Fla. R. App. P. 9.130. The Court decided the Appellee’s motion to dismiss on the date oral argument was set on the merits and announced the decision immediately prior to the commencement of oral argument. The parties fully briefed the case and prepared for oral argument. Appellee’s motion for attorney’s fees is granted under Fla. Stat. sections 627.736 and 627.428 for all of the work done in connection with the appeal, and is not limited to the preparation of the motion to dismiss. The Appellee’s motion for sanctions is denied.
DISMISSED. (MICHAEL B. CHAVIES, J., concurs. JUDITH L. KREEGER, J., dissents with written opinion.)
— — — —
Appellant filed an appeal from an interlocutory order denying a motion to dismiss or to compel mediation pursuant to Florida Statute 627.745. Appellee had filed a claim with Appellant-insurer for P.I.P. benefits. Appellant sent to Appellee a written request to mediate, alleging that the bills submitted were not reasonable or necessary. Appellee declined to attend mediation and instead filed a lawsuit in County Court.
While an appeal from an interlocutory order is not the correct avenue of review, I would treat this as a petition for certiorari, for reasons stated below. An appellate court is not charged to deny relief simply because a party has sought the wrong remedy. See Yon v. Fleming, 595 So. 2d 573 (Fla. 4th DCA 1992), review denied 599 So. 2d 1281; University of Miami v. Klein, 603 So. 2d 651 (Fla. 3d DCA 1992), review denied 603 So. 2d 651.
Florida Statute 627.745(1)(a) states “[i]n 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.” One of the stated purposes of this statute is to avoid unnecessary litigation.
The purpose of mediation is to provide an alternative mechanism for the resolution of civil disputes leading to disposition before trial of many civil cases. The result is savings in time and costs to the litigants and to the Court, but without sacrificing the quality of justice to be rendered or the right of the litigants to a full trial in the event of an impasse following mediation. Mediation is “an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision making authority rests with the parties.” Avril v. Civilmar, 605 So. 2d 988, 989 (Fla. 4th DCA 1992).
The Florida Supreme Court addressed the issue of mandatory mediation in Carter v. Sparkman, 335 So. 2d 802 (Fla. 1976). The statute involved in Carter involved mediation of medical malpractice suits as a prerequisite to filing suit.
“The statutes involved here deal with matters related directly to public health and obviously have for their purpose an effort to have the parties mediate claims for malpractice thereby reducing the cost of medical malpractice insurance and ultimately medical expenses. Even though the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance, we do not deem it sufficient to void the medical malpractice law.”
Carter, at 806. Similarly, presuit mediation which is mandatory upon request of a party has been engrafted into the automotive insurance statute, no doubt to help reduce the cost of automobile insurance.
Failure to comply with presuit mediation was held to be grounds for dismissal in Riccobono v. Cordis Corp., 341 So. 2d 805 (Fla. 3d DCA 1977). Mandatory language (“demand”) is used in F.S. 627.745(1)(a) to command submission of one’s claim to a mediation panel prior to filing a lawsuit if a request for mediation is made. Hence mediation is mandatory under this statute, not optional, once requested. See Herrera v. Doctor’s Hospital, 360 So. 2d 1092 (Fla. 3d DCA 1978); Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson, 327 So. 2d 883 (Fla. 3d DCA 1976).
The request for mediation does not toll the 30-day period in which an insurer has to reject a claim pursuant to §627.736, Fla. Stat.; rather it tolls the time period for the running of the statute of limitations. This being the case, Dunmore v. Interstate Fire Insurance Company, 301 So. 2d 502 (Fla. 1st DCA 1974), does not apply.
“Although courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guarantee of access, there may be reasonable restrictions prescribed by law.” Carter, at 805. See also Herrera, at 1095. The Florida Supreme Court has held that mandatory mediation prior to initiating litigation is a reasonable restriction and §627.745, Fla. Stat., tolls the statute of limitations.
Therefore, I would consider appellant’s request as seeking a writ of certiorari. To require the full disposition of the lawsuit totally emasculates the very purpose of the statute. I would grant the writ of certiorari and dismiss the complaint for failure to mediate.
* * *
