6 Fla. L. Weekly Supp. 353b
Insurance — Personal injury protection — Arbitration — Dispute between health care provider and insurer — Section 627.736(5), Florida Statutes, validly and clearly compels arbitration — Motion to stay arbitration and vacate order compelling arbitration denied
DR. MARIA T. NODARSE, Plaintiff, v. FIDELITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 96-907 CC 05, Div. 6. February 24, 1999. Roger A. Silver, Judge.
FINAL ORDER DENYING PLAINTIFF’S MOTION TO STAY ARBITRATION and to VACATE ORDER COMPELLING ARBITRATION
THIS CAUSE having come before the Court on Plaintiff’s Motion to Stay Arbitration and to Vacate Order Compelling Arbitration and the Court having heard the argument of counsel, reviewed the memoranda of law, and being fully advised in the premises, the Court finds:
FINDINGS OF FACT
1. In 1990, § 627.736(5) Fla. Stat. was added to the Florida Insurance Code. The relevant disputed language is short and worth noting:
. . . . 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. . . .(Emphasis added).
2. The Florida Supreme Court in Roe v. Amica, 533 So. 2d 279 (Fla. 1988), noted that “arbitration is a favored means of dispute resolution” and consequently held that a policy allowing either party to reject at will an arbitration award in excess of a certain sum was not contrary to the Florida Arbitration Code or to public policy. See also, Fenster v. Makovsky, 67 So. 2d 427 (Fla. 1953 ) (arbitration is favored and disputes should be resolved in favor of arbitration).
3. Additionally, most authority (indeed, countless cases from other jurisdictions and the federal system) has consistently upheld arbitration and identify the procedure as consistent with a public policy of favoring alternative dispute resolution mechanisms while simultaneously conserving scarce judicial resources.
4. The Fifth District in Nationwide Mutual Fire Ins. Co. v. M&M Diagnostics, Inc., Case No. 97-1588 (Fla. 5th DCA 1998) held that Fla. Stat. § 627.736(5) violated the state’s public policy of discouraging insurance companies from taking advantage of their insureds and their medical providers by refusing legitimate claims. Consequently, the court found that arbitration in this context was not a reasonable alternative to litigating medical disputes and was therefore unconstitutional.
5. Similarly, in Delta Casualty Co., et al. v. Pinnacle Medical, Inc., et al., Case Nos. 97-1429, 97-1588, and 97-3093 (Fla. 5th DCA 10/2/98) [23 Fla. L. Weekly D2233] (en banc), the Fifth District held that Fla. Stat. § 627.736(5) violated the due process rights guaranteed to medical providers under Article I, § 9 of the Florida Constitution and also arbitrarily discriminated against them by subjecting them to a prevailing party test of attorney’s fee recovery while insureds enjoy the benefit of Fla Stat. §627.428(1).
6. However, in Orion Ins. v. Magnetic Imaging, 696 So. 2d 475 (Fla. 3d DCA 1997), the Third District, examining the language of Fla. Stat. § 627.736(5) quoted above, held that the parties’ arbitration was mandatory pursuant to the statute even if the contract itself failed to include the arbitration provision. See also, U.S. Security Ins. Co. v. Magnetic Imaging Systems, I, Ltd., 678 So. 2d 872, 873 (Fla. 3d DCA 1996) (“We find, however, that this arbitration provision should be read into the policy so that it complies with applicable Florida Law.”).
7. Consequently, the Orion court noted that Magnetic’s constitutionality challenge of the statute was without merit because: (A) Magnetic (similar to the instant Plaintiff) had failed to serve the Attorney General as required by Fla. Stat. § 86.091; (B) the mandatory arbitration provision does not bind the medical services provider until such time as it voluntarily agrees to accept an assignment of the benefits and then asserts a claim; and, (C) the no-fault regime provided medical services providers with the ability to collect the statutorily mandated PIP benefits via the assignment and hence created new rights which predated the state constitution.
CONCLUSIONS OF LAW
Despite the holdings in Nationwide Mutual Fire Ins. Co. v. M&M Diagnostics, Inc., Case No. 97-1588 (Fla. 5th DCA 1998), this Court is bound by and agrees with the decision in Orion Ins. v. Magnetic Imaging, 696 So. 2d 475 (Fla. 3d DCA 1997) which has implicitly upheld the validity of Fla. Stat. § 627.736(5).1 In other words, the statute “validly and clearly compels arbitration”2 in the instant case.
WHEREFORE it is hereby ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion to Stay Arbitration and to Vacate Order Compelling Arbitration is DENIED.
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1The Second District in Omni Ins. Co. v. Special Care Clinic, Inc., 708 So. 2d 314 (Fla. 2d DCA 1998) and the Fourth District in USAA Casualty Ins. Co. v. Romm, 712 So. 2d 405 (Fla. 4th DCA 1998) and Southeast Diagnostic Services v. State Farm Mut. Auto. Ins. Co., 697 So. 2d 988 (Fla. 4th DCA 1997) have both agreed with the Third District’s reasoning in Orion, supra.
2See, Orion, supra at 477.
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