6 Fla. L. Weekly Supp. 398b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 480d
Attorney’s fees — Insurance — Personal injury protection — Trial court should not have awarded attorney’s fees for time spent filing or pursuing provider’s suit against insurer in view of statutory requirement that parties submit to binding arbitration — Costs — Expert witness fee should not have been awarded where time required for preparation and testifying was not burdensome
FORTUNE INSURANCE COMPANY, Appellant, vs. PRACTICE MANAGEMENT SERVICES, INC., Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 98-194AP. Opinion filed February 26, 1999. An appeal from County Court for Miami-Dade County, Florida, Beth Bloom, Judge. Counsel: Dianne Tutt, for appellant. Pedro Cofino and Michael Gongora, for appellee.
(Before RICHARD MARGOLIUS, BARBARA S. LEVENSON, and ROBERTO PINEIRO, JJ.)
(BARBARA S. LEVENSON, J.) Appellant, Fortune Insurance Company (Hereinafter Fortune) appeals the award of attorneys’ fees as awarded by the court below. This court reverses the court below and finds that appellees, Practice Management Services (Hereinafter Practice) are entitled to fees for only four hours of legal work. No fee for the expert witness is warranted.
Practice accepted assignment of PIP benefits for medical services rendered to an insured of Fortune. Practice filed suit against Fortune to obtain payments for medical services they had rendered. Practice sought $6,000 in benefits.
Under Section 627.736 (5) (c), Fl. Stat. (1998), the PIP statute, requires assignees of PIP benefits for medical services to resolve disputes with insurance carriers through binding arbitration. Consequently, the case was dismissed below and the parties agreed to arbitrate.
Prior to the commencement of the arbitration hearing the parties agreed to a settlement and Fortune paid Practice $784.
Following the settlement, Practice sought attorneys’ fees for the time spent drafting the complaint and for time spent pursuing the case in the county court as well as the time spent preparing for arbitration. Fortune agreed that attorneys fees were appropriate for time spent once the case was sent to arbitration through the settlement of the claim.
Since the lawsuit had been dismissed, the trial court was without jurisdiction to hear this dispute over attorneys’ fees. Fortune agreed to set aside the dismissal so that Practice did not have to refile this case. The dismissal was vacated and a hearing was held regarding the award of fees.
The court below awarded Practice attorneys’ fees for all time spent on this case including time spent drafting the complaint, and filing the original suit. Practice was also awarded costs for an expert witness who testified at the hearing regarding the award of fees. The full award was $2,462.50, plus costs of $188 and expert witness fee of $600.
Practice also argues on appeal that the PIP statute is unconstitutional. This issue was not addressed below, so it cannot be addressed on appeal. However, the mandatory arbitration provision has been upheld in this jurisdiction. Orion Insurance Company v. Magnetic Imaging Systems, 696 So. 2d 475 (Fla. 3d DCA 1997). The Supreme Court has not addressed any conflict between the District Courts of Appeal. Further, the statute does not deprive a patient from filing a lawsuit. It mandates arbitration between third party providers and insurance companies.
Practice’s county court action was improperly filed. The PIP statute requires that these parties submit to binding arbitration. The intent of the statute was to reduce unnecessary suits and congestion in the court system. Consequently, the court below should not have awarded fees for time spent filing or pursuing the original suit.
Additionally, an expert witness fee should not have been awarded where the time required for preparation and testifying is not burdensome. United States Fidelity v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992). For all of the above reasons, the findings below are reversed and this court awards attorney fees of $800, for four hours of work to prepare for arbitration, at $200 per hour and those costs which do not include the expert witness fee. (RICHARD MARGOLIUS AND ROBERTO PINEIRO, JJ., Concur.)
* * *
