6 Fla. L. Weekly Supp. 573b
Arbitration — Insurance — Personal injury protection — Statute mandating binding arbitration of disputes between medical providers and insurers is unconstitutional as a denial of medical provider’s due process rights — Statute does not violate right of access to courts
DR. LARRY LEGUNN, D.C., PA, Plaintiff, vs. UNION AMERICAN INSURANCE COMPANY, Defendant. County Court of the 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. MS 97-19807 RB. May 12, 1999. Nancy Perez, Judge.
ORDER
THIS MATTER was heard on March 15, 1999 on Plaintiff’s Motion to Stay Arbitration and vacate Order Compelling Arbitration with both sides well represented.
In Southeast Diagnostic Services v. State Farm Mutual Automobile Insurance Co., 697 So.2d 988 (Fla. 4th DCA 1997) [authorized by Judge Farmer] the Court found arbitration could be compelled under the policy specifically finding agreement with the holding in Orion Insurance Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3rd DCA 1997). The Orion court found a provider was a third party beneficiary of a contract and therefore bound by the arbitration provision. In its finding the Orion court addressed the access to courts issue (Article I, section 21 Fla. Const.). Therefore, this court finds that it is bound to hold that F S. 627.736(5) does not violate the Plaintiff’s access to court.
However, in footnote three of Fortune Insurance Co. v. Everglades Diagnostics, Inc., 721 So.2d 384 (Fla 4th DCA 1998)1 Judge Farmer raised the claim that the constitutional question of the validity of the arbitration provisions has not been raised or addressed and cites to Delta Casualty Company v. Pinnacle Medical, Inc., 721 So.2d 321 (Fla. 5th DCA 1998). In Delta, the Fifth DCA held that 627.736(5) violated the medical provider’s due process rights protected by Article I, section 9 of the Florida Constitution. The Delta court struck down the arbitration provision of F.S. 627.736(5) as facially unconstitutional. This due process argument was not addressed by either Southeast Diagnostic Services, supra or Orion, supra. This due process argument was also not raised by this Plaintiff at the time of the original motion to compel arbitration. Usually, when a question is not timely raised it is deemed waived. However, the Plaintiff cites Bell v. State, 585 So.2d 1125 (Fla. 2nd DCA 1991) which indicates that a party can raise a facially unconstitutional argument at any time. Waiver or estoppel does not apply where a statute has been declared unconstitutional “on its face”. Id. The application of a facially unconstitutional statute is fundamental error that may be raised at any time, including in a motion for post conviction relief. Id. Such fundamental error may not be waived when it involves the right to due process of law. The right to due process of law should not be lightly denied on the basis of waiver or estoppel. Metropolitan Dade County v. Florida Processing Company, 218 So.2d 495 (Fla. 3rd DCA 1969).
In the absence of interdistrict conflict, district court decisions bind all Florida courts. Pardo v. State, 596 So.2d 665 (Fla. 1992); Weiman v. McHaffie, 470 So.2d 682, 684 (Fla. 1985); Omni Ins. Co. v. Special Care Clinic, Inc., 708 So.2d 314 (Fla. 2nd DCA 1998); Allstate Insurance Co. v. Mazorra, 599 So.2d 739 (Fla. 3rd DCA 1992). To deny the relief would give effect to a statute that the higher court has declared facially unconstitutional. The Statute must be deemed void ab initio. State ex rel. Nuveen v. Greer, 102 So. 739 (Fla. 1924); Bell v. State, 585 So.2d 1125 (Fla. 2nd DCA 1991). Giving it effect is fundamental error. Trushin v. State, 425 So.2d 1126 (Fla. 1982); Potts v. State, 526 So.2d 104 (Fla. 4th DCA 1987), approved, 526 So.2d 63 (Fla.) cert. denied, 488 U S. 870, 109 S. Ct. 178, 102 L.Ed. 2d 147 (1988).
Because the Fifth District Court of Appeal has declared the statute “facially unconstitutional” as a denial of the medical provider’s due process rights and no other district has addressed the due process issue, this court is bound to follow Delta on the due process issue. Therefore, this court grants the Plaintiff’s motion to vacate the prior order compelling arbitration. The Court finds that it is bound to grant the relief as the court must follow the ruling of the Fifth District Court of Appeals in Delta Casualty Insurance Co. v. Pinnacle Medical, Inc., 721 So.2d 321 (Fla. 5th DCA 1998), the only Florida District court of appeals to have considered the constitutional validity of F.S. 627.736(5) under Article I Section 9 of the Florida Constitution. Therefore it is
ORDERED AND ADJUDGED that Plaintiff’s Motion to Stay Arbitration and Vacate Order Compelling Arbitration is Granted.
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1Comment also raised in Allstate Insurance Co. v. Gulf Diagnostics, Inc., et al., 24 FLW D286 (Fla. 4th Dist. 1/27/99).
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