7 Fla. L. Weekly Supp. 803a
Insurance — Personal injury protection — In accordance with denial of insurer’s motion for summary judgment based on non-compliance with Section 627.736(5)(b), grant of plaintiffs’ summary judgment motion, and court’s holding that Section 627.736(5)(b) is unconstitutional as violative of plaintiffs’ rights of due process, equal protection, and access to courts, insurer shall pay to insured and healthcare provider amount of billed charges for medical treatment rendered for injuries insured sustained in motor vehicle accident, interest, and reasonable attorney’s fees
Reversed and remanded at 27 Fla. L. Weekly D321a
District Court opinion approved at 30 Fla. L. Weekly S197b
DAN RAY WARREN, and JACK ROTSTEIN, M.D., Plaintiffs, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 99-33401 COCI. September 18, 2000. Michael McDermott, Judge. Counsel: Roberts J. Bradford, Jr., Daytona Beach. Larry M. Polsky, Daytona Beach.
FINAL JUDGMENT
THIS CAUSE having come before the Court for non-jury trial, and the Court having heard the testimony of the witnesses and received the tangible evidence, and having heard the stipulations and arguments of counsel and being otherwise fully advised, the court hereby finds:
A. Plaintiff, Dan Ray Warren (“Warren”) was involved in a motor vehicle accident on March 22, 1999. Plaintiff, Jack Rotstein, M.D. (Rotstein), rendered medical treatment to Warren for injuries sustained in that accident. At the time of the accident, Warren was covered under a policy of insurance issued by Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), which provided for, inter alia, personal injury protection benefits.
B. Rotstein did not provide State Farm with a timely Notice of Initiation of Treatment. The treatment rendered was not provided at a hospital-owned facility and the charges therefore were not billed through a hospital.
C. Rotstein submitted the charges to State Farm postmarked more than thirty days beyond the last date of service being billed. State Farm denied payment of these charges based on Rotstein’s non-compliance with Fla. Stat. Section 627.736(5)(b).
D. The charges incurred by Warren for treatment rendered by Rotstein were reasonable charges for necessary medical treatment of injuries related to the subject accident of March 22, 1999.
E. State Farm presented no evidence that the subject charges were not reasonable, necessary, and related to the subject automobile accident and informed the court that it could not do so as its defense rested entirely upon Fla. Stat. Section 627.736(5)(b) (requiring non-hospital billed medical charges to be submitted within thirty (30) days of the date of service being billed). That statute does not require any reasonable proof that the charges are not reasonable, necessary, or related.
F. State Farm’s only evidence at trial was the stipulation of facts previously filed by the Parties in support of their respective Motions for Summary Judgment.
In an Order dated June 20, 2000 State Farm’s Motion for Summary Judgment based on non-compliance with Section 627.736(5)(b) was denied, and Plaintiffs’ Motion for Summary Judgment was granted, with the Court holding that said Section is unconstitutional as violative of the Plaintiffs’ rights of due process, equal protection, and access to courts.
It is therefore,
ORDERED AND ADJUDGED:
1. Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall pay to Plaintiffs, DAN RAY WARREN and JACK ROTSTEIN, M.D., the sum of $1,640.25 in No Fault benefits, for which let execution issue.
2. State Farm shall further pay to Warren and Rotstein the sum of $134.08 in interest, for which sum let execution issue.
3. Warren and Rotstein are entitled to reasonable attorney fees pursuant to Fla. Stat. Section 627.736(8) and Section 627.428 and taxable costs.
4. This court determines that Plaintiffs’ counsel reasonably expended 40 hours in the prosecution of this case. Further, based on the criteria as delineated in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), including but not limited to the novelty and complexity of the issues and the skills, reputation and experience of the attorney, Plaintiffs’ counsel is reasonably compensated at $250.00 per hour in this case.
5. The court finds that the fee contract entered into in this case by Dan Ray Warren, Jack Rotstein, M.D., and Larry M. Polsky, Esq. was not a contingency fee agreement and, therefore, no contingency fee risk multiplier is appropriate.
6. Taxable costs are found to be $199.26.
7. State Farm shall pay Warren and Rotstein the sum of $12,699.26 in reasonable attorney fees and costs, for which sum let execution issue.
At the request of the Plaintiffs, Warren and Rotstein, and pursuant to F.R.App.P. 9.030(4)(A), this court hereby certifies the appeal of the Final Judgment herein and the following question to the Fifth District Court of Appeal as a matter of great public importance:
Does Fla. Statutes Section 627.736(5)(b) violate the due process, equal access to courts, and/or equal protection rights of health care providers that are not hospitals or ambulance companies?
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