7 Fla. L. Weekly Supp. 193a
Insurance — Personal injury protection — Arbitration — Complaint by medical provider for payment of PIP insurance benefits — Insurer’s amended motion to compel arbitration and dismiss complaint denied — Section 627.736(5), Florida Statutes, is unconstitutional based upon determination that section 627.736(5) arbitrarily requires medical providers who have accepted assignment of benefits to arbitrate claims disputes while insureds enjoy benefit of resolving claims disputes with insurers by way of civil litigation
DADE BROWARD MRI, LTD, d/b/a CENTRAL MAGNETIC IMAGING, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Dade County. Case No. 99-6497 SP (04). December 16, 1999. Reginald A. Richardson, Judge. Counsel: Kenneth J. Dorchak, for Plaintiff. Michael Merenstein, for Defendant.
AMENDED ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE having come before the Court on August 12, 1999 on the Defendant’s Amended Motion to Compel Arbitration and Motion to Dismiss the Complaint, and after hearing argument of counsel and being fully advised of the premises, it is hereby:
Plaintiff is a medical provider which has provided certain medical services to an individual for injuries resulting from an automobile accident. Said individual assigned to the Plaintiff benefits under a policy for personal injury protection benefits which policy was issued by the Defendant. The Plaintiff has filed a complaint against the Defendant seeking payment of the insurance benefits.
The Defendant has argued that this matter should be dismissed and the parties compelled to arbitration pursuant to Section 627.736(5), Florida Statutes. The Plaintiff has argued that Section 627.736(5), Florida Statutes, is unconstitutional based upon the ruling in the matter of Delta Casualty Company et al. v. Pinnacle Medical, Inc., et al., 721 So.2d 321 (Fla. 5th DCA 1988).
This Court has decided the follow the holding of the Fifth District Court of Appeal in Delta in holding that Section 627.736(5), Florida Statutes, is unconstitutional based upon this Court’s determination that Section 627.736(5), Florida Statutes, arbitrarily requires medical providers who have accepted assignment of benefits to arbitrate claims disputes while insured’s enjoy the benefit of resolving claims disputes with insurers by way of civil litigation.
A person who accepts a contractual right by way of an assignment stands in the shoes of the assignor. The rights of an assignee should not be diminished or enlarged simply by virtue of his status as an assignee. The arbitration mandate of Section 627.736(5), has the affect of changing the nature of the rights which has been assigned by the insured to the medical provider. It appears to this Court that the sole basis of altering the remedy is the fact that the person claiming the benefits is no longer the patient/insured but is now instead the medical provider.
The insured and the insurer have not contracted to arbitrate claims disputes. Therefore, when the assignment of the insured’s rights is made there is no rational basis for altering the assigned rights of the insured to require that the assignee arbitrate claims disputes.
In essence the medical provider and the insured are one and the same person. By accepting assignment of the insured’s rights, the medical provider has agreed only to assume the same rights which the insured held under the policy. If the insured is not required to arbitrate claims disputes then it follows that the insured’s assignee, whether the assignee be a medical provider or other person, should not be required to arbitrate claims disputes.
This Court distinguishes the case of Orion Insurance Company v. Magnetic Imaging Systems, 696 So.2d 475 (Fla. 3rd DCA 1997) for the reason that the Orion case did not consider the argument of whether or not Section 627.736(5), violated the due process provisions of Article I, Section 9, of the Florida Constitution.
ORDERED AND ADJUDGED that the Defendant’s Amended Motion to Compel Arbitration and Dismiss the Complaint is hereby DENIED.
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