7 Fla. L. Weekly Supp. 729a
Insurance — Personal injury protection — Where medical provider filed demand for arbitration after insurer failed to pay charges within thirty days, and insurer tendered full payment of disputed benefits subsequent to receipt of demand for arbitration, medical provider is entitled to award of reasonable fees and costs arising out of arbitration — Question certified whether Florida Supreme court’s decision in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., which declared unconstitutional the arbitration provisions of section 627.736(5) applies retroactively to pending claims for statutory attorney’s fees and costs where medical provider/assignee demanded arbitration prior to Pinnacle and insurer tendered full payment of benefits together with statutory interest, also after Pinnacle
CENTRAL MAGNETIC IMAGING, LTD., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Dade County. Case No. 99-17748 SP 23 (01). August 24, 2000. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, for Plaintiff. Marc Buschman, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on May 22, 2000 on the Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment, regarding the complaint filed in this cause which seeks an award of statutory attorney’s fees pursuant to Section 627.736(5), Florida Statutes, and after hearing argument of counsel and being fully advised of the premises, it is hereby:
ORDERED AND ADJUDGED that: the Court finds that on 7/11/95 the Plaintiff rendered medical services to Ardelio Dominguez and in return the Plaintiff received an assignment of Personal Injury Protection benefits pursuant to a policy of insurance issued by the Defendant; since the charges were not paid within 30 days the Plaintiff made a demand for arbitration upon the Defendant which demand was received by Defendant on August 28, 1998; the Defendant, subsequent to receipt of the demand for arbitration, tendered full payment of the disputed Personal Injury Protection benefits to the Plaintiff but refused to pay the Plaintiff’s attorney’s fees and costs arising out of arbitration. As a result the Plaintiff filed the instant case seeking an award of reasonable attorney’s fees and costs.
As a result of the Court’s findings and there being no disputed issue of material fact, the Court finds that the Plaintiff is entitled as a matter of law to an award of attorney’s fees and costs. See Central Magnetic Imaging v. State Farm, 745 So.2d 405 (Fla. 3rd DCA 1999).
The Court finds that the case of Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., [25 Fla. L. Weekly S72] 2000 WL 123971 (Fla. 2000), should not be retroactively applied to the facts of this case to deprive the Plaintiff of its vested right to an award of reasonable attorney’s fees as the prevailing party at arbitration. See Florida Forest and Park Service v. Strickland, 18 So.2d 251 (Fla. 1944). The Plaintiff was entitled to rely upon the Third District Court of Appeal’s Ruling in Orion Insurance Company v. Magnetic Imaging Systems, 696 So.2d 475 (Fla. 3rd DCA 1997) which specifically held that the arbitration provisions of Section 627.736(5), Florida Statutes, were constitutional. During the course of the events in this matter Orion was the controlling law in this District and the parties were required to act in conformity therewith. In reliance on Orion the Plaintiff served its demand of arbitration on the Defendant and upon the Defendant’s payment on November 12, 1998 the Plaintiff became the prevailing party at arbitration and was therefore entitled to an award of reasonable attorney’s fees and costs pursuant to Section 627.736(5), Florida Statutes (1997).
Accordingly, the Plaintiff’s Motion for Summary Judgment is GRANTED.
The Court reserves jurisdiction for purposes of determining the amount of costs and attorney’s fees to be awarded to Plaintiff.
Pursuant to Rule 9.030(b)(4)(A) and Rule 9.160(c), Florida Rules of Appellate Procedure, the Court hereby certifies the following question to the Third District Court of Appeal as one of great public importance:
Does the Supreme Court’s decision in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., 2000 WL 123971 (Fla. 2000) [25 Fla. L. Weekly S72], which declared unconstitutional the arbitration provisions of Section 627.736(5), Florida Statutes, apply retroactively to pending claims for statutory attorney’s fees and costs where a medical provider, who has received a valid assignment of PIP insurance benefits, prior to Pinnacle, demanded arbitration pursuant to Section 627.736(5), Florida Statutes, and, also prior to Pinnacle, the insurer, after receipt of the demand for arbitration tendered full payment of the benefits together with statutory interest?
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