4 Fla. L. Weekly Supp. 172a
Attorney’s fees — Insurance — Personal injury protection — Arbitration — Policy provision’s definition of “prevailing party” for purposes of entitlement to attorney’s fees arising from arbitration proceeding is void as against public policy and unenforceable as matter of law
FLORIDA DIAGNOSTIC INSTITUTE, INC. (as Assignee of Ulysses Alexander), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Insurance Company authorized to do business in Florida, Defendant. In the County Court of the 13th Judicial Circuit in and for Hillsborough County, Civil Division, Division K. Case No. 95-5262 SC. January 17, 1996. Charlotte W. Anderson, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court for hearing on Friday, December 15, 1995, to hear Defendant’s Motion For Summary Judgment in the above styled cause and the Court having heard the arguments of counsels thereon and being otherwise fully advised as to the premises of said motion, it is therefore,
ORDERED AND ADJUDGED the Court DENIES Defendant’s Motion For Summary Judgment. The Defendant’s Motion For Summary Judgment asked the Court to accept, adopt and enforce the Defendant’s definition “prevailing party” for the purposes of governing any entitlement of an award of attorney’s fees arising from an arbitration proceeding brought pursuant to Section 627.736(5), Florida Statutes (1995). The policy provisions asserted by the Defendant (Section 2 of the policy) specifically define a “prevailing party” as follows:
The health care provider is the “prevailing party” if the arbitrator awards at least the full amount of the claim asserted by the health care provider at arbitration.
We are the “prevailing party” if the arbitrator awards no more than the amount offered to be paid by us at arbitration.
If the amount of the award is less than the amount of the claim asserted by the health care provider at arbitration, yet more than the amount offered to be paid by us at arbitration, there is no prevailing party.
The precise issue before the Court is whether or not the above-cited insurance policy provisions are illegal as being violative of public policy. The Court finds that the above policy provisions relied on by the Defendant are void as against public policy and unenforceable as a matter of law. The Court’s rationale in making this decision relies on the authority of Stewart v. Sterns & Culver Lumber Co., 48 So. 19, 25 (Fla. 1908); Wechsler v. Novak, 26 So.2d 884, 887 (Fla. 1946) (it is the long-standing rule in Florida that a contract or agreement that violates the principles of public policy designed for the public welfare is illegal); Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969) (the Florida Supreme Court has indicated that insurance policy provisions which “collide” with the public interest will not be enforced. An insurer may not unreasonably circumscribe its potential liability); Danis Industries Corporation v. Ground Improvement Techniques, Inc., et al., 645 So.2d 420, (Fla. 1994) (a prevailing insured is one who obtains a Judgment in its favor and against an insurer in an amount which is greater than any offer of settlement previously tendered by the insured); United Services Automobile Association v. Smith, 527 So.2d 281 (1 DCA 1988); and American Indemnity Company v. Comeau, 419 So.2d 670 (5 DCA 1982) (to the extent that any insurance policy provision attempts to limit or subtract from statutory coverage, such provision is void).
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