7 Fla. L. Weekly Supp. 239i
NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 435b
Insurance — Personal injury protection — Arbitration — Dispute between insurer and medical providers to whom insured had assigned rights under policy — Revocation of assignment — Where insured had assigned rights under policy to medical providers, but providers authorized revocation of the assignments by signing revocations, and where revocations were received prior to notification of a claims dispute, section 682.02 of Florida Arbitration Code, which provides that written agreement to arbitrate is irrevocable, does not apply
FORTUNE INSURANCE COMPANY, Appellant, vs. RALPH LUGO, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case No. 99-047 AP. Lower Case No. 98-00967 CC (01). Revised Opinion filed January 19, 2000. An Appeal from the County Court for Miami-Dade County. Jose M. Rodriguez, Judge. Counsel: Diane Tutt, for appellant. Eric Shapiro, for appellee.
[Original Opinion at 6 Fla. L. Weekly Supp. 753e]
(Before STUART M. SIMONS, DAVID L. TOBIN and ROSA I. RODRIGUEZ, JJ.)
(SIMONS, J.) Appellant, FORTUNE INSURANCE COMPANY (“Fortune”), filed a Motion to Recall Mandate and Motion for Clarification of the per curiam opinion filed by this Court on August 25, 1999. Because the caption “Per Curiam Affirmed” conflicts with the language contained in the opinion itself, the Court grants the Motion for Clarification, vacates Opinion of August 25, 1999 and substitutes the following revised opinion.1
Section 682.02, Fla. Stat. (1998) of the Florida Arbitration Code provides in part that:
Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof … Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy… (emphasis added)
Id. While this section states that an arbitration agreement is irrevocable, the Court finds that the Florida Arbitration Code does not become applicable until there has been a demand for arbitration.2
In the case of State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), the Court held that “[b]ecause an unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” (emphasis added) Ray, 556 So. 2d 813. In the case at bar, the assignees, the medical providers, authorized Lugo’s revocation of the assignments by signing the revocations of assignment. Further, because these revocations were received prior to notification of a claims dispute, the Court finds that the provisions of §682.02, Fla. Stat. (1999) are inapplicable and the revocations are valid.3 Accordingly, the decision of the trial court is AFFIRMED. (RODRIGUEZ, J. concurs; TOBIN, J. dissents with opinion.)
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(TOBIN, J., dissenting.) I respectfully dissent. In this appeal, the Appellant (“Fortune”) challenges the lower court’s denial of a Motion to Strike. The lower court’s Order denied the Appellant the right to arbitration as to certain personal injury protection (“PIP”) claims. The Appellee assigned his personal injury protection benefits to his medical care providers who agreed to accept the assignment. Due to this assignment of personal injury protection benefits, the Appellee had no standing to bring suit, as any cause of action he might have against this Appellant was assigned to his medical care providers. Accordingly, the exclusive remedy is binding arbitration by the medical care providers pursuant to the provisions of Chapter 682 of the Florida Statutes (Florida Arbitration Code).4
While mutual revocations of assignments authorized by the assignment itself, and/or the subject insurance policies, have been recognized, that is not the case here. In the case at bar, the revocations of assignment were invalid due to the fact that they were executed after the Appellee had notice of the Appellant’s intent to arbitrate with the medical providers. Further, the purported revocations were invalid because they were signed only by the medical providers, the assignees. There was never a revocation by the assignor. Accordingly, the unilateral revocations of assignment should be held invalid and the decision of the trial court reversed.
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1While the Motion to Recall Mandate and Motion for Clarification was filed beyond the fifteen day time period prescribed in Fla. R. App. P. 9.330, apparently neither appellate counsel, nor trial counsel received the August 25, 1999 opinion until September when it was first received attached to the mandate. Accordingly, because the remainder of the Motion to Recall Mandate and Motion for Clarification is in conformance with the requirements of Fla. R. App. P. 9.330, the Court exercises its discretion to hear the Motion to Recall Mandate and Motion for Clarification and treats such Motion as a Motion for clarification seeking to recall the Court’s mandate.
2Section 627.736, Fla. Stat. (1995) mandates that disputes between PIP insurers and medical providers who accept assignment of benefits, are to be resolved by binding arbitration. Orion Insurance Co. v. Magnetic Imaging Systems, Inc., 696 So. 2d 475, 476-77 (Fla. 3rd DCA 1997). However, while not directly addressing the issue of whether the revocation of an assignment of personal injury protection benefits prior to a claims dispute between the provider and the insurer would void the requirement of binding arbitration of such disputes, the case of State Farm Mutual Auto Insurance Co. v. Gonnella, 677 So. 2d 1355, 1356 (Fla. 5th DCA 1996) signals that the right to arbitrate does not vest immediately upon signing the assignment. See Gonnella, 677 So. 2d at 1356 (the right to arbitration vests, at the latest, upon the insurer’s demand for arbitration); see also Security National Insurance Co. v. Leiva, 5 Fla. L. Weekly Supp. 207 (11th Cir. Ct. December 5, 1997) (also indicating that the right to arbitrate does not immediately vest).
3See Poke v. Allstate Indemnity Company, 5 Fla. L. Weekly Supp. 643 (9th Cir. Ct. June 8, 1998) and Dooley v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 520 (12th Cir. Ct. March 31, 1998) (recognizing the validity of mutual revocations of assignments).
4Once made, an assignment of the insured’s interest in personal injury protection benefits to a medical provider is irrevocable. See Section 682.02, Fla. Stat. (1995); Rittman v. Allstate Insurance Co., 727 So. 2d 391, 394 (Fla. 1st DCA 1999); State Farm Automobile Insurance Company v. Gonnella, 677 So. 2d 1355, 1356-57 (Fla. 5th DCA 1995); State Farm Fire & Casualty Co. v. Ray, 556 So. 2d 811, 813 (Fla. 5th DCA 1990).
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