6 Fla. L. Weekly Supp. 722b
Insurance — Personal injury protection — Arbitration award finding medical services were not necessary, resulting in decision in favor of insurer, is confirmed, and judgment entered for insurer — Attorney’s fees — Insurer’s motion for attorney’s fees denied — Question certified: Does the prevailing party standard for obtaining attorney’s fees in F.S. §627.736(5) violate Article I, Section 9, of the Florida Constitution?
HEALTH CARE FINANCIAL SERVICES, INC., (As Assignee of Traci Cooley), Plaintiff, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 97-7505 SC, Division H. February 17, 1999. James M. Barton, II, Judge. Counsel: Timothy Patrick, Tampa, for Plaintiff. Adam Brum, Tampa, for Defendant.
FINAL JUDGMENT AND CERTIFICATION
THIS CAUSE having come before the Court on February 2, 1999 on Defendant’s Motion for Rehearing on Court’s Order denying Defendant’s motion for attorney’s fees and/or Motion for Certification of question as a matter of great public importance, it is hereby ORDERED AND ADJUDGED:
FINDINGS OF FACT
1. Plaintiff, assignee of personal injury protection (PIP) insurance benefits, filed this action for past due bills for medical services.
2. Defendant moved to dismiss or compel arbitration, pursuant to F.S. §627.736(5).
3. The parties stipulated that the dispute should be submitted to binding arbitration.
4. At the conclusion of the arbitration held on June 16, 1998, the panel concluded that the medical services were not necessary, resulting in a decision in favor of defendant.
5. Defendant filed a timely motion to confirm arbitration award and motion to tax attorney’s fees and costs, pursuant to F.S. §627.736(5) which provides for an award of attorney’s fees to the prevailing party.
6. After the court entered its order confirming the arbitration award but denying the motion for attorney’s fees, defendant filed the instant motion for rehearing and for certification of question as a matter of great public importance.
CONCLUSIONS OF LAW
1. The arbitration award is confirmed and judgment is hereby entered in favor of NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Plaintiff shall take nothing by this action and shall go hence without day.
2. Nationwide’s Motion for Rehearing on its Motion for Attorney’s Fees is hereby DENIED. Delta Cas. Co. v. Pinnacle Medical, Inc., 721 So. 2d 321, 326 (Fla. 5th DCA 1998). In its en banc opinion, the Fifth District Court of Appeal found that the prevailing party standard for awarding attorney’s fees contained in F.S. §627.736(5) violates the due process clause (Article I, Section 9) of the Florida Constitution. The Delta decision specifically disagreed with the holdings in Omni Insurance Company v. Special Care Clinic, 708 So. 2d 314 (Fla. 2nd DCA 1998) and Orion Insurance Company v. Magnetic Imaging Systems, 696 So. 2d 475 (Fla. 3rd DCA 1997). The Delta decision is not in conflict with Omni or Orion regarding the issue of the prevailing party standard being unconstitutional, because that issue was never addressed in either Omni or Orion.
Were it not for the additional constitutional issue considered by the Delta court, the undersigned would be required to follow Orion. See, Chapman v. Pinellas County, 423 So. 2d 578 (Fla. 2nd DCA 1982). This Court must follow Delta and deny Defendant’s Motion for Attorney’s Fees even though the arbitration panel’s award confirmed that Defendant is the prevailing party.
Although the undersigned feels constrained to follow Delta, the Court must observe that the Delta court’s reasoning is inconsistent with that found in Omni. The Omni court implicitly found that the Legislature had a rational basis in treating insureds differently from health care providers, by upholding the requirement in F.S. 627.736(5) to submit disputes between insurers and health care provider assignees to binding, mandatory arbitration. That difference in treatment is particularly appropriate when applied to the issue of attorney’s fees, where the Legislature apparently found that the one-way attorney’s fees provision in F.S. 627.428, designed for the protection of insureds, would not apply to health care provider assignees who are generally better able to obtain legal representation than their patients.
3. The Defendant NATIONWIDE MUTUAL FIRE INSURANCE COMPANY shall recover from Plaintiff HEALTH CARE FINANCIAL SERVICES, INC., (As Assignee of Traci Cooley) costs in the amount of $800.00 for all of which let execution issue and said sum shall draw interest at the rate of 10% per annum.
CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE
This Court GRANTS Nationwide’s Motion to Certify the Question regarding the constitutionality of the prevailing party attorney’s fees provision in F.S. 627.736(5) as one of great public importance pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A), and hereby certifies the following question for direct review by the Second District Court of Appeal:
Does the prevailing party standard for obtaining attorney’s fees in F.S. §627.736(5) violate Article I, Section 9, of the Florida Constitution?
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