6 Fla. L. Weekly Supp. 101b
Insurance — Personal injury protection — Arbitration — Dispute between insurer and medical service provider must be referred to arbitration unless parties have waived arbitration — Issue of waiver may be determined only by evidentiary hearing on motion to stay pending arbitration — Declaratory judgments — Count for declaratory relief seeking determination as to whether insurer may deny PIP benefits based solely upon paper review of insured’s medical records dismissed — In view of decision of circuit court sitting in its appellate capacity holding that denial decision could not be based solely on paper review, no uncertainty on issue exists in circuit
DR. LARRY LEGUNN, D.C., Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 98-4945 COCE 56. October 26, 1998. Robert W. Lee, Judge. Counsel: Harley N. Kane, Boca Raton, for Plaintiff. Jacqueline Emanuel, Ft. Lauderdale, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND TO COMPEL ARBITRATION
THIS CAUSE came before the Court on October 23, 1998 for hearing of the Defendant’s Motion to Dismiss and to Compel Arbitration, and the Court’s having reviewed the Motion and Court file; heard argument of counsel; reviewed the relevant case law, and been otherwise advised in the premises, rules as follows:
This is a PIP case. Plaintiff, a medical service provider, has brought suit against Allstate Insurance Company, a PIP insurer. Under Fla. Stat. sec. 627.736(5), the parties are required to submit the dispute to mandatory binding arbitration. This statute was upheld as constitutional in Orion Ins. Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3d DCA 1997). This decision was approved by the Fourth District Court of Appeal in Southeast Diagnostics Services v. State Farm Mutual Automobile Ins. Co., 697 So.2d 988 (Fla. 4th DCA 1997). Just a few weeks ago, however, the statute was struck down as unconstitutional by the Fifth District Court of Appeal in Delta Casualty Company v. Pinnacle Medical, Inc. 23 FLW D2233 (Fla. 5th DCA Oct. 2, 1998). One issue for the Court is whether the Delta Casualty decision binds this Court. After a careful review of all three opinions, this Court holds that it is bound to follow the Orion and Southeast Diagnostics decisions as controlling precedent in this district. Accordingly, the matter raised in Count I of the Complaint must be referred to arbitration unless the parties have waived arbitration. The Plaintiff has pointed out, and the Court agrees, that the issue of waiver may be determined only by a evidentiary hearing on a motion to stay pending arbitration. The Defendant has not filed such a motion. Accordingly, the Defendant’s Motion is DENIED as to Count I without prejudice to the Defendant’s filing the appropriate motion and setting it for evidentiary hearing. The parties are notified that Circuit Judge Miette Burnstein’s decision on this issue is binding in this Circuit, Allstate Insurance Company v. Southeast Diagnostics, Inc., Appellate Opinion, Case No. 98-2046 (Fla. 17th Cir. Ct. Aug. 11, 1998) (PIP insurer must request arbitration within 30 days of receiving request for payment).
As for Count II, the Court agrees that it should be dismissed. Plaintiff has brought this count for declaratory relief seeking a determination as to whether an insurer may deny PIP benefits based solely upon a “paper review” of the insured’s medical records, or whether the PIP insurer is rather required to conduct an independent medical examination of the insured before making the decision. An action for declaratory relief requires that there be some uncertainty as to particular rights. As concerns this issue, however, no uncertainty exists in this Circuit. A Circuit Judge sitting in his capacity as an appellate judge concluded that a PIP insurer could not base its denial decision on a “paper review” only. He ruled that an IME was required. Williamson v. Fortune Insurance Company, 4 Fla. L. Weekly Supp. 510 (17th Jud. Cir. 1996). As this case is a decision of the Circuit Court sitting in its appellate capacity, the County Courts of Broward are required to follow it. Accordingly, this Court follows Williamson, and grants the Motion to Dismiss as to Count II, finding that the Plaintiff has failed to state a cause of action as to this count. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion is DENIED as to Count I and GRANTED as to Count II.
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