7 Fla. L. Weekly Supp. 390a
Insurance — Personal injury protection — Arbitration — No controversy remains to be determined by appellate court on issue of constitutionality of section 627.736(5) in view of Florida Supreme Court’s recent ruling — Insurer’s motion to compel arbitration was not frivolous because at time motion was made, there was conflict as to constitutionality of arbitration in PIP benefit cases — Insurer did not waive coverage defenses by moving to compel arbitration
BEAUVIL ST. JEAN, Plaintiff/Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Appellate Case No. 99-12173 CACE (21). County Court Case No. 97-16684 COCE (51). March 29, 2000. Miette K. Burnstein, Judge. Counsel: Jacqueline G. Emanuel, Riley, Knoerr & Emanuel, Ft. Lauderdale. Daniel R. Maier. Harley N. Kane.
OPINION
THIS CAUSE having come before this Appellate Court on Appellant’s BEAUVIL ST. JEAN (Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics), Appeal of a Non-Final Order entered by the Trial Court on 6/11/99, granting Appellee’s, ALLSTATE INSURANCE COMPANY, Motion to Dismiss and Compel Arbitration, and the Court having heard argument, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:
1. The parties herein stipulate that the Order on Appeal was not an agreed Order and that the correct party Appellant is Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics, not Beauvil St. Jean.
2. Based upon Allstate Insurance Company’s stipulation to withdraw its Demand for Arbitration as a result of the Florida Supreme Court’s recent ruling in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., 25 F.L.W. S72 (Feb. 3, 2000), there is no controversy to be determined by this Appellate Court on the issue of the constitutionality of Florida Statute §627.736(5) , whereby this case will be remanded to the Trial Court for further proceedings.
3. Appellant argues that notwithstanding Appellee’s, Allstate Insurance Company, stipulation to withdraw its Motion to Compel Arbitration, that by initially moving to compel Arbitration, Allstate Insurance Company has waived any coverage defenses it may have. This Court finds that Appellant, Beauvil St. Jean (Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics), is incorrect and based upon the legal argument presented by both parties, Appellee, Allstate Insurance Company, has not waived its coverage defenses by demanding Arbitration. This Court further finds that the decisions in J.J.F. of Palm Beach, Inc. v . State Firm Fire & Casualty Company, 634 So.2d 1089 (Fla. 4th DCA 1994); State Farm Fire & Casualty Company v. Licea, 685 So.2d 1285 (Fla. 1996); Harco National Insurance Company v. Robles, 685 So.2d 1288 (Fla. 1996); Rosemurgy v. State Farm Fire & Casualty Company, 685 So.2d 1289 (Fla. 1996); Paradise Plaza Condominium Association, Inc. v. The Reinsurance Corporation of New York, 685 So.2d 937 (Fla. 3rd DCA 1996); and Florida Select Insurance Company v. Keelean, 727 So.2d 1131 (Fla. 2nd DCA 1999) are persuasive and support Appellee’s, A1lstate Insurance Company, position on this issue. An insurer does not waive any coverage defenses by asserting its right to seek Arbitration. In the instant case, the patient, Beauvil St. Jean, received medical services from Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics as a result of a motor vehicle accident which occurred on 6/6/97. Mr. St. Jean was a pedestrian who was struck by a motor vehicle insured by Appellee, Allstate Insurance Company. A question of fact exists as to whether Mr. St. Jean resided with a resident relative who owned a motor vehicle which was required to be insured pursuant to the laws of the State of Florida and thereby whether or not his claim fell within the policy provisions of Allstate’s policy with their insured, a non-party herein. These issues were appropriate fact issues to be determined by Arbitration. State Farm Fire & Casualty Company v. Licea, supra, J.J.F. of Palm Beach, Inc. v. State Farm Fire & Casualty Company, supra, and Florida Select Insurance Company v. Keelean, supra.
4. This Court finds that in the first instance, the Appellee’s, Allstate Insurance Company, Motion to Compel Arbitration was not frivolous in that at the time it was done, there was a conflict in the District Courts of Appeal as to the constitutionality of Arbitration in personal injury protection benefit cases.
5. This Court further agrees with the Florida Select Insurance Company decision that the Licea holding clearly implies that an insurance company can both demand an appraisal (Arbitration) under the policy and assert certain defenses. As in Florida Select, Allstate herein raised arbitratable issues and this Court finds that as a matter of law, Allstate did not waive coverage defenses by moving to compel Arbitration.
6. The Court further notes that the Third Amended Complaint filed by Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics does not raise a coverage issue but rather alleges that an insurance policy was in full force and effect and that it afforded coverage to Beauvil St. Jean. Based upon the record presented, Appellant, Beauvil St. Jean (Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics) has failed to meet its burden to support its contention that Appellee, Allstate Insurance Company, waived its coverage defenses by demanding the Arbitration at issue. The Court further notes that the Trial Court’s Order on Appeal specifically stated that the Civil action remained pending the conclusion of Arbitration, which was appropriate.
7. Appellant’s, Beauvil St. Jean (Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics) reliance upon Rosemurgy v. State Farm Fire & Casualty Company, supra and Scottsdale Insurance Company v. DeSalvo, 666 So.2d 944 (1st DCA 1995), is misplaced. The Supreme Court in Rosemurgy v. State Farm Fire & Casualty Company, 685 So.2d 1289 (Fla. 1996), specifically held that the decisions in the underlying matter of Rosemurgy v. State Farm Fire & Casualty Company, and Scottsdale Insurance Company v. DeSalvo, were upheld only to the extent that they were consistent with the Supreme Court’s holding in Licea. It should be noted that to the extent the District Court of Appeal’s decision in Rosemurgy and the decision in Scottsdale Insurance Company v. DeSalvo held that the insurer waived coverage defenses by demanding Arbitration, those decisions were overruled by the Florida Supreme Court. Scottsdale Insurance Company v. DeSalvo held that the insurer could not demand appraisal while at the same time denying coverage. The District Court of Appeal decision is Rosemurgy aligned themselves with the reasoning expressed by the First District in Scottsdale Insurance Company v. DeSalvo. Therefore, the Supreme Court decision in Rosemurgy specifically disapproves the Fourth District Court of Appeal decision in Rosemurgy and the First District Court of Appeal decision in Scottsdale to the extent they are inconsistent with Licea.
8. Because Appellee, Allstate Insurance Company, has withdrawn its Demand for Arbitration, this case will be remanded to the Trial Court for further proceedings. For the reasons discussed, this Court further holds that Allstate Insurance Company did not waive its coverage defenses by demanding Arbitration. Therefore, all disputed issues of fact and coverage will be determined by the Trial Court below.
9. Appellant’s Motion for Attorney’s fees is granted only upon the condition that Appellant ultimately prevails on the lower proceedings and only on the issue as to the constitutionality of the Arbitration clause which is the only prevailing issue in this Appeal.
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