4 Fla. L. Weekly Supp. 571a
Arbitration — Insurance — Personal injury protection — Statute requiring insurers to include within each PIP policy a provision offering arbitration as an option for dispute resolution does not require mandatory binding arbitration of all disputes between medical providers and insurers — Binding arbitration not required absent an agreement between medical provider and insurer in which they specifically contract for arbitration of dispute or an assignment in which medical provider has made specific reference to statute and its arbitration option, thus evidencing an intent to arbitrate
PINNACLE MEDICAL, INC. d/b/a ISO Data Diagnostics, Plaintiff, v. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit, Broward County. Case No. COCE 96-5547 (54). October 7, 1996. Linda R. Pratt, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court on defendant, Security National Insurance Company’s, Motion To Dismiss. This court is required to interpret Florida Statute 627.736(5), in particular, whether the statute requires a medical provider to submit to binding arbitration when a claims dispute arises between it and the insurer, and the provider has accepted an assignment of Personal Injury Protection (PIP) benefits. At first blush, it may appear that binding arbitration is mandated. However, upon closer examination the Court concludes that binding arbitration is not required absent (1) an agreement between the medical provider and the insurer in which they specifically contract for arbitration of a dispute or 2) an assignment in which the medical provider has made specific reference to Section 627.736(5) and its arbitration option, thus evidencing an intent to arbitrate.
Florida Statute 627.736(5) states in pertinent part:
Every insurer shall include a provision in its policy for personal injury protection benefits for binding arbitration of any claims dispute involving medical benefits arising between the insurer and any person providing medical services or supplies if that person has agreed to accept assignment of personal injury protection benefits. The provision shall specify that the provision of chapter 682 relating to arbitration shall apply. The prevailing party shall be entitled to attorney’s fees and costs.
The Florida Arbitration Code, section 682.02, calls for an agreement between the parties subject to arbitration:
Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. (emphasis added)
It must be noted that the Fourth District Court of Appeal has yet to interpret the breadth of Florida Statute 627.736(5). Further, there is no legislative history to explain how this provision came to be added to the statute. The Court is cognizant of the Fifth DCA’s decision in State Farm Mutual Insurance Company v. Gonnella, 21 Fla. Law Weekly D1799 (Fla. 5th DCA 1996) which defendant cites as authority requiring arbitration in this case. The Gonnella case is distinguishable, however, because arbitration had commenced between the provider and the insurer before the insured tried to rescind the assignment and filed the lawsuit. The court noted that that fact distinguished the case from Advanced Orthopedic Institute v. Bankers Insurance, 3 Fla. Law Weekly Supp. 673 (13th Cir. June 30, 1995), in which the medical provider challenged the arbitration provision as it does here. The court’s actual holding in Gonnella was that the insured could not revoke an assignment of benefits and regain the right to sue once the insurer has demanded arbitration. It did not comment on the correctness of the Advanced Orthopedic decision, other than to note its different fact pattern.
The recent opinion of the Third District Court of Appeal in U.S. Security Insurance Company v. Magnetic Imaging Systems I, Ltd., 21 Fla. Law Weekly D1852 (Fla. 3d DCA 1996) also is cited as authority that arbitration is mandated by the statute. However, the Third DCA was not specifically asked to decide whether arbitration is mandated by Florida Statute 627.736(5), which is the precise question before this Court. In U.S. Security the court considered whether as a matter of law the arbitration provision of the statute must be read into a PIP insurance policy issued after the effective date of the statute and whether late payment of interest disputes are arbitrable under the statute. A review of the motion for rehearing in the case indicates that the Third DCA was not presented directly with the issue of whether the statutory language mandates arbitration. However, that precise issue was presented to the county court in Palm Beach County in Physicians Diagnostic and Rehab, Inc. d/b/a Doctor’s Testing v. State Farm Mutual Insurance Co., Case No. MS96-6537RF (opinion dated August 28, 1996). This court finds Judge Blanc’s reasoning in that case to be persuasive.
The legislature clearly mandates that insurers place a provision in their PIP policies allowing for binding arbitration. However, this court agrees with Judge Blanc that it is unclear whether Florida Statute 627.736(5) requires that all claims disputes be sent to binding arbitration. This Court finds that the reasonable interpretation of Florida Statute 627.726(5) is that the statute mandates only that a provision offering arbitration is necessary, not that arbitration is the sole method of resolving claims disputes. Only after the medical provider has agreed or otherwise shown an intent to accept the PIP policy arbitration option is binding arbitration required.
In the case at bar, the plaintiff medical provider, Pinnacle Medical, Inc. has not agreed or shown any intent to be bound to arbitration. Thus, it cannot be forced to arbitrate. It is accordingly,
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is denied.
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