6 Fla. L. Weekly Supp. 99b
Attorney’s fees — Insurance — Personal injury protection — Health care providers not entitled to attorney’s fees where the only actions taken by counsel were letters to insurers advising them of overdue bill and demanding arbitration, to which insurers responded by paying bills
COMPREHENSIVE HEALTH CENTER, INC. (assignee of NERVA LAROSE), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. County Court for Miami-Dade County. General Jurisdiction Division. Case No. 98-2837 SP 23 (03). GRACIELA C. POZO, M.D., P.A. (ASSIGNEE OF MICHAEL SUAREZ), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. Case No. 98-2831 SP 23 (03). October 29, 1998. Linda Singer Stein, Judge.
ORDER OF DISMISSAL
These causes, having come before this Court on August 26, 1998 on Defendant’s Motions to Dismiss and Motions for Protective Orders and the Court having heard argument of Counsel, reviewed the applicable case law, Fla. Stat. § 627.736, Chapter 682 of the Florida Statutes, and the 1998 amendments to Fla. Stat. § 627.736 it is hereby ORDERED and ADJUDGED:
The genesis of the both of these actions is a claim for attorney’s fees pursuant to Fla. Stat. § 627.736. In both cases, Plaintiff’s Counsel, representing health care providers, sent letters to theDefendant advising them of an overdue bill and demanding arbitration in each case. Subsequent to the receipt of the letters, Defendant, realizing that the bills had not been paid, paid them. Thereafter, Plaintiffs filed separate actions in this Court claiming entitlement to an attorney’s fees as a “prevailing party” under both Chapter 682 and Fla. Stat. § 627.736. Defendant, in response thereto, filed identical Motions to Dismiss in each case, claiming that Plaintiff’s counsel is not entitled to a fee as there was never an arbitration held and ergo, never a prevailing party.
This Court finds that, based upon a review of the facts of this case, the PIP statute and the Arbitration Code, both contemplate that the parties at a minimum, take some affirmative steps to further the arbitration process. A review of the current statutes indicate nothing which implies or directs that there be attorney’s fees to an insured or health care provider simply for demanding arbitration when there has been nothing else done after that fact. In both of these cases, there was simply a letter sent and payment made. Nothing else was done. This Court finds nothing that indicates that a letter demanding Arbitration, by itself, triggers Attorney’s fees.
This Court finds the case of U.S.A.A. v. Romm, 1998 WL 130140 (Fla. 4th DCA 1998), while not directly on point, is certainly persuasive and appears to be the only appellate court ruling discussing “prevailing parties” in the context of a PIP case where there has not been an arbitration. Additionally, the 1998 amendments to the PIP statute, while not binding on this Court, certainly does seem to attempt to clarify exactly who prevailing parties are for purposes of PIP claims.
Plaintiff has argued that, pursuant to Wollard v. Lloyd, 439 So. 2d 217 (Fla. 1983), Defendant has effectively confessed judgment by paying the disputed benefits after the Plaintiff demanded arbitration. While this Court agrees with the rationale in Wollard, that case is distinguishable from and inapplicable to the instant case, as in Wollard litigation had been initiated via the filing of a Complaint. In the instant case no complaint has been filed and arbitration proceedings had not commenced.
Therefore, the Court having reviewed the facts of these particular cases, case law and statutes, it is hereby ordered that Defendant’s Motions to Dismiss in both cases be and same are hereby GRANTED. The Court further limits its ruling to the facts of these specific cases.
Defendant’s Motions for Protective Order be and same are hereby MOOT.
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