6 Fla. L. Weekly Supp. 680a
Arbitration — Insurance — Trial court properly ruled that insurer was not entitled to arbitrate dispute with medical provider where suit was brought by provider as insured’s attorney-in-fact, not as assignee — Authorization form signed and executed by insured created an attorney-in-fact relationship between provider and insured and expressly excluded the intent to create an assignment — Even if an assignment were created by authorization document, binding provider to arbitration is violation of due process — Attorney’s fees — Provider’s motion for attorney’s fees and costs for time spent defending appeal granted — Amount to be determined by trial court on remand
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. SCHWEITZ CHIROPRACTIC GROUP, P.A. (As Attorney-in-Fact for Douglas Smith), Appellee. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 97-9055, Division “B”. July 27, 1999. Manuel Menendez, Jr., Judge. Appeal from County Court in and for Hillsborough County; James M. Barton, II, County Judge. Counsel: Timothy A. Patrick and Meena M. Lopez, Patrick and Lopez, Tampa, for Appellant. David J. LoNigro, Oxendine & Oxendine, for Appellee.
OPINION AFFIRMING ORDER OF COUNTY COURT
THIS CAUSE comes before the court on appeal from an Order entered by the County Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The issue raised on appeal is whether State Farm Insurance Company’s (STATE FARM’s) Motion to Compel Arbitration should have been granted based on section 627.736, Florida Statutes. The lower court ruled that STATE FARM was not entitled to arbitrate the dispute as the requirements of section 627.736, Florida Statutes, were not met. STATE FARM argues that it did, in fact, meet the requirements set forth in the statute and, therefore, it is entitled to arbitration. The court having reviewed the briefs and considered the written arguments of counsel hereby AFFIRMS the ruling of the county court.
The relevant facts concerning the determination of the issue remain uncontested. Douglas Smith was insured by STATE FARM when he was involved in a motor vehicle accident. Mr. Smith sustained various injuries as a result of the accident and sought medical treatment with SCHWEITZ, his primary treating physician. Despite the accident being an event covered by the policy, STATE FARM failed to pay for the medical treatment.
As a patient with SCHWEITZ, Mr. Smith signed and executed a document entitled “PATIENT AUTHORIZATION FOR MEDICAL PROVIDER TO RECOVER INSURANCE BENEFITS” (AUTHORIZATION DOCUMENT). The authorization document allegedly gave SCHWEITZ standing to sue for Mr. Smith as his “special attorney-in-fact and agent . . . .” If any insurance company obligated to make payments to the insured for the fees charged by SCHWEITZ following the rendering of medical services fails to make such payments in accordance with SCHWEITZ Standard Fee Schedule and Payment Terms, Mr. Smith has appointed SCHWEITZ as attorney-in-fact pursuant to the authorization and limited power of attorney to select an attorney to bring an action against the insurance company so that SCHWEITZ may receive payment. SCHWEITZ may also opt to bring such action in its own name and is authorized to settle any action brought pursuant to the authorization. The portion of the authorization document relevant to the issue states specifically that “[n]o assignment of any medical benefits nor assignment of any provision of any insurance policy contract is make (sic) to any of the above medical providers with respect to technical or professional services rendered by them or fees due them without reference to my medical treatment.”
SCHWEITZ filed a lawsuit as attorney-in-fact for Mr. Smith under the authority of the authorization document to collect the fees. On August 6, 1997, STATE FARM filed an Amended Motion to Compel Arbitration. STATE FARM’s Amended Motion to Compel Arbitration was heard on November 10, 1997, and denied on November 13, 1997.
This claim was brought pursuant to section 627.736(5), Florida Statutes, which reads in pertinent part that
[e]very 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). The provision shall specify that the provisions of chapter 682 relating to arbitration shall apply.
The lower court stated that the authorization document created an attorney-in-fact relationship between SCHWEITZ and Mr. Smith. Additionally, the court held that the document expressly excluded the intent to create an assignment. The court cited State Farm & Cas. Ins. Co. v. Ray, 556 So. 2d 811, 812 (Fla. 5th DCA 1990) in support of their holding that the authorization was not an assignment because it did not transfer property or some right of the insured to SCHWEITZ. This court finds that the lower court did not err in denying STATE FARM’s Motion to Compel Arbitration.
STATE FARM argues that SCHWEITZ received benefit when it accepted direct payment of the medical fees. STATE FARM cites State Farm Mut. Ins. Co. v. Gonnella, 677 So. 2d 1355 (Fla. 5th DCA 1996) in support of their argument that once SCHWEITZ accepted an assignment of the benefit, it was bound to arbitrate any dispute arising out of the agreement. Prior to the filing of the briefs by counsel, Gonnella was disagreed with by Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998). The Fifth District Court of Appeal held in Delta Casualty that the portion of section 627.736(5) which requires a contest between a medical provider-assignee and an insurer to be resolved by arbitration is a violation of due process. See id. at 323. Therefore, even if an assignment was created by the authorization document, though the court finds that it expressly was not, the court follows the holding in Delta Casualty and finds that to bind SCHWEITZ to arbitration is a violation of due process.
As to the issue of attorney’s fees, Section 627.428(1), Florida Statutes, states that
[u]pon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
In accordance with this statute, the court grants SCHWEITZ Motion for Attorney’s Fees and Costs for the time spent defending this appeal and remands to the lower court to determine the amount of attorney’s fees and costs. Accordingly, it is
ORDERED AND ADJUDGED that the county court’s ruling is AFFIRMED, and this case is REMANDED to determine the amount of attorney’s fees and costs.
Criminal law — Battery — Claim that evidence was insufficient to support
* * *
