6 Fla. L. Weekly Supp. 725b
Insurance — Personal injury protection — Where health care provider had insured sign one document that said it was not an assignment and simultaneouslysign a second document that said it was an assignment, the two documents canceled each other out, making both a nullity — Insurer’s motion to dismiss health care provider’s suit granted — Arbitration — Unilateral sending of arbitration package which contained an arbitration demand, named the plaintiff’s arbitrator, and included a discovery package and a proposed order setting arbitration did not constitute the commencement of arbitration proceeding for purposes of triggering section 627.736(5) — Arbitration proceeding does not effectively commence unless and until the insurer acknowledges the arbitration demand — Insurer’s payment of bill thereafter is not functional equivalent of a confession of judgment
OGD DIAGNOSTIC REHABILITATION SERVICES, INC. and U.S. HEALTH CENTER, INC., Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court of the 17th Judicial Circuit in and for Broward County. Case No. 98-19325 (53). August 13, 1999. William W. Herring, Judge. Counsel: Jacqueline G. Emanuel, Riley, Knoerr & Emanuel, Fort Lauderdale. Jana Ranieri Cortina.
ORDER ON MOTION TO DISMISS, ETC.
THIS CAUSE having come before this Court on Defendant’s, ALLSTATE INSURANCE COMPANY, Motion to Dismiss and Plaintiff’s Motion to Tax Attorney’s Fees and Costs, and the Court having heard argument, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Defendant’s Motion be, and the same is hereby: GRANTED, and Plaintiff’s motion is denied with Plaintiff’s petition being dismissed with prejudice. The Court further makes the following findings:
1. The legal effect of a healthcare provider on the same date having an insured sign one document that says all over it this is not an Assignment, and simultaneously having the insured sign a second document that says it is an Assignment of Benefits has the effect of canceling each other out and making both a nullity. The Plaintiff cannot take an inconsistent position to be covered both ways and “have their cake and eat it too”.
2. Alternatively, the Motion to Dismiss Plaintiff’s Petition to Tax Attorney’s Fees and Costs is granted in that the Court finds that an Arbitration proceeding did not effectively commence in this case. Unless and until the insurance company acknowledges the Arbitration Demand, it does not even have to name its arbitrator on the panel, but either verbally or in writing agrees to Arbitration, an Arbitration proceeding has not effectively commenced. This Court agrees with the reasoning of the Honorable Linda Singer-Stein’s opinion in the case of Comprehensive Health Center, Inc. v. State Farm Mutual Automobile Insurance Company, 6 F.L.W.Supp. 99, October 29, 1998.
3. The Court further finds that a unilateral sending of an Arbitration package which contains the Arbitration Demand, names the Plaintiff’s arbitrator, includes a discovery package and a proposed Order setting Arbitration, in one fell swoop, does not constitute the commencement of the Arbitration proceeding to trigger Florida Statute §627.736(5), and therefore the insurance company paying the bill thereafter does not constitute the functional equivalent of a confession of judgment. Defendant’s motion for § 57.105(1), F.S., attorney’s fees is denied.
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