5 Fla. L. Weekly Supp. 551b
Attorney’s fees — Insurance — Arbitration — Assignment of benefits to medical care provider was irrevocable once arbitration was demanded — Insurer owed provider payment at time provider demanded arbitration, and insured could not defeat provider’s request for payment by apportioning benefits — Demand for arbitration followed by payment is equivalent of filing lawsuit and being paid prior to judgment — Arbitration statute awarding attorney’s fees to prevailing party supports decision to award attorney’s fees in this case — Counsel for plaintiff/medical care provider entitled to fees and costs
MANUEL GONZALEZ-PEREZ, M.D., P.A. (ALMEIDA), Plaintiff, vs. AMERICAN INTERNATIONAL INSURANCE COMPANY Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CO 97-6801, DIV. 70. March 9, 1998. Frederick J. Lauten, Judge. Counsel: Marc R. Williams, for Plaintiff.
ORDER
THIS CASE comes before the Court on Plaintiff’s Motion for Summary Judgment on Entitled to Attorney’s fees and Defendant’s Motion for Summary Judgment. The Court having heard argument on December 9 at 10:30 a.m., reviewed the pleadings and the court file and having been advised by counsel in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. The court finds the following undisputed material facts:
There was an irrevocable Assignment of Benefit from Donald Almeida to Dr. Gonzalez-Perez. Under State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990) this Assignment gave Dr. Gonzalez-Perez the right to demand payment from American International Insurance Company for medical care that Dr. Gonzalez-Perez provided to Donald Almeida. The Assignment was irrevocable once arbitration was demanded. Legally, American International Insurance Company owed Dr. Gonzalez-Perez payment at the time when Dr. Gonzalez-Perez demanded arbitration. Legally, Donald Almeida could not defeat Dr. Gonzalez-Perez’ request for payment by apportioning benefits. Donald Almeida had no contractual power to say that American International should not pay Dr. Gonzalez-Perez.
2. The Court finds that under the holding of Wollard, the demand for arbitration followed by payment is the equivalent of filing a lawsuit and being paid prior to judgment. In Wollard, the Florida Supreme Court found that the attorney’s fee provision of section 627.428, Florida Statutes, applied. This court finds that Wollard reasoning applies to a demand for arbitration followed by payment.
3. The Court finds that the statutory language of the arbitration statute which awards attorney fees to a prevailing party also supports the court’s decision to award attorney’s fees in this case.
4. The Court does not find the decision of Crotts v. Bankers and Shippers Insurance Company of New York, 476 So.2d 1357 (Fla. 2d DCA 1985) persuasive because the insured is not the Plaintiff before the court in the case sub judice. Rather, in this case, the medical care provider, Dr. Gonzalez-Perez is the Plaintiff. This is a distinguishing fact which precludes the application of Crotts to this case.
5. Based upon State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990) the Court finds that counsel for the Plaintiff is entitled to attorney’s fees and costs in this matter. Accordingly, Plaintiff’s Motion for Summary Judgment on Entitlement to Attorney’s Fees is hereby GRANTED and Defendant’s Motion for Summary Judgment is hereby DENIED.
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