7 Fla. L. Weekly Supp. 765a
Arbitration — Insurance — Personal injury protection — Medical provider’s action against insurer — Statute requiring mandatory arbitration for all disputes between insurer and medical provider assignees and which requires a prevailing party standard to apply with regard to attorney’s fees is unconstitutional — Error to enter stay of litigation and compel parties to proceed to arbitration — Attorney’s fees — Third party who claims policy coverage by assignment from insured may recover prevailing party attorney’s fees under section 627.428 — In case at issue, assignee’s motion for appellate attorney’s fees is provisionally granted, subject to assignee ultimately prevailing in entire action below and subject to trial court determining that provider is entitled to attorney’s fees under section 627.428(1) — Provider, as prevailing party, entitled to have costs taxed in its favor if it timely files motion with lower tribunal within thirty days of issuance of mandate
MTM DIAGNOSTIC, INC. d/b/a FLORIDA PAIN CONTROL & TREATMENT CENTER, on behalf of JACQUES ESTIMPHILE, Appellant, v. SUPERIOR INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Appellate Case No. CVA198-69. Lower Ct. Case No. SCO98-4201. August 29, 2000. Appeal from the County Court for Orange County. Carolyn B. Freeman, Judge. Counsel: Jeffrey W. Albert, Winter Park, for Appellant. Sylvia A. Grunor, Orlando, for Appellee.
(Before WHITE, GRIDLEY, and COHEN, JJ.)
ORDER REVERSING TRIAL COURT AND REMANDING FOR FURTHER PROCEEDINGS AND ORDER ON MOTION FOR ATTORNEY’S FEES AND COSTS
(PER CURIAM.) Appellant, MTM Diagnostic, Inc., d/b/a Florida Pain Control & Treatment Center, on behalf of Jacques Estimphile (hereinafter “MTM”), appeals from the trial court’s non-final order staying the litigation and compelling the parties to proceed to arbitration. We have jurisdiction over this matter. See Fla. R. App. P. 9.130. We dispense with oral argument, see Fla. R. App. P. 9.320, and reverse and remand for further proceedings.
Jacques Estimphile was in an automobile accident on March 2, 1998. At the time of the accident, Estimphile was insured with Appellee, Superior Insurance Company (hereinafter “Superior”). Superior provided Personal Injury Protection (hereinafter “PIP”) coverage for Estimphile for bodily injuries Estimphile sustained in the accident. As a result of those injuries, Estimphile sought medical and remedial care from MTM, and executed a document entitled “Appointment as Agent-In-Fact with Power of Attorney” which directs that payment for medical expenses be paid directly from any insurance company to MTM.1 Estimphile thereafter incurred expenses for the medical and remedial care provided by MTM.
Estimphile furnished Superior with a PIP application, gave notice of the covered losses and made demands for No-Fault benefits, and performed all conditions precedent. Superior, however, declined to pay Estimphile’s medical bills. Consequently, MTM, on behalf of Estimphile, instituted an action for breach of contract.
In response to MTM’s Complaint, Superior filed a Motion to Dismiss Complaint, arguing that arbitration of the claim was required. The trial court entered an order staying the litigation and compelling the parties to proceed to arbitration. MTM now appeals.
MTM argues that the lower court erred in staying this action and compelling arbitration because arbitration is unconstitutional. MTM contends, therefore, that the motion should have been denied. MTM’s argument is based primarily on the Fifth District Court of Appeal’s decision in Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998).2 MTM argues, based upon Delta Casualty, that the order compelling arbitration should be reversed.
In response, Superior argues that arbitration is not unconstitutional, and thus, that the motion was properly granted. Superior relies in part on the Third District Court of Appeal’s opinion in Orion Ins. Co. v. Magnetic Imaging Systems, I, Ltd., 696 So. 2d 475 (Fla. 3d DCA 1997) in support of its argument.3
As indicated above, this controversy revolves around section 627.736(5), Florida Statutes. Section 627.736(5), a portion of Florida’s Motor Vehicle No-Fault Law, requires that any charges for medical services provided to a person covered by PIP be reasonable and allows for an insurer to pay benefits directly to those individuals or entities providing the services. Section 627.736(5) contains a provision for mandatory binding arbitration of certain claims disputes. That provision provides in pertinent part:
Every insurer shall include a provision in its policy for personal injury protection benefits for binding arbitration of any claims dispute involving medical benefits arising between the insurer and any person providing medical services or supplies if that person has agreed to accept assignment of personal injury protection benefits. The provision shall specify that the provisions of chapter 682 relating to arbitration shall apply. The prevailing party shall be entitled to attorney’s fees and costs.
§627.736(5)(c), Fla. Stat. (1995).
After the trial court issued its ruling in the lower court case and after the appellate briefs in this matter were filed, the Florida Supreme Court resolved this issue. In Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000), the Florida Supreme Court affirmed the Fifth District Court’s decision in Delta Casualty and held that the portion of section 627.736(5), Florida Statutes (1995), which requires mandatory arbitration for all medical provider assignees and which requires a prevailing party standard to apply with regard to attorney’s fees is unconstitutional. Specifically, the Florida Supreme Court declared that the mandatory arbitration provision is unconstitutional because it denies medical providers access to the courts, and therefore, violates article I, section 21 of the Florida Constitution. Id. at 59. Further, the court declared that the prevailing party attorney fees provision is unconstitutional because it violates medical providers’ due process rights, and therefore, violates article I, section 9 of the Florida Constitution. Id. at 59.
In light of the Florida Supreme Court’s opinion on this issue in Nationwide, 753 So. 2d 55, it is hereby ORDERED that this matter is REVERSED and REMANDED for further proceedings.
ON MOTION FOR ATTORNEY’S FEES AND COSTS
MTM requests that it be awarded costs and attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400 and section 627.428, Florida Statutes. Superior has filed an Objection to Appellant’s Motion for Attorney’s Fees, arguing that MTM is not entitled to attorney’s fees under section 627.428, regardless of the outcome of the appeal.
Section 627.428 provides in pertinent part:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
§627.428(1), Fla. Stat. In Roberts v. Carter, 350 So. 2d 78, 79 (Fla. 1977), the Florida Supreme Court held that “an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” (emphasis added).
MTM obviously is not the contracting insured, the insured’s estate, or a specifically named policy beneficiary. The issue of whether MTM is an “assignee” under section 627.428(1), Florida Statutes was not at issue in this appeal. Accordingly, since MTM has prevailed in this non-final appeal, MTM’s Motion for Attorney’s Fees is provisionally granted, but subject to MTM ultimately prevailing in the entire action below and subject to the trial court determining that MTM is entitled to attorney’s fees under section 627.428(1), Florida Statutes.
With regard to the motion for costs, Florida Rule of Appellate Procedure 9.400(a) provides that “[c]osts shall be taxed in favor of the prevailing party unless the court orders otherwise.” Rule 9.400(a) further provides that “[c]osts shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.” Fla. R. App. P. 9.400(a). Since MTM is the prevailing party, and finding no reason for ordering that costs not be taxed in favor of MTM, the Court concludes that MTM is entitled to have costs taxed in its favor if it timely files a motion with the lower tribunal within thirty days of issuance of the mandate in this matter. See Fla. R. App. P. 9.400.
Based upon the foregoing, it is hereby ORDERED and ADJUDGED that this matter is REVERSED and REMANDED for further proceedings.
It is FURTHER ORDERED that the Motion for Attorney’s Fees filed by Appellant, MTM Diagnostic, Inc., d/b/a Florida Pain Control & Treatment Center, on behalf of Jacques Estimphile, is PROVISIONALLY GRANTED subject to MTM ultimately prevailing on the lower court action and subject to the trial court determining that MTM is entitled to attorney’s fees pursuant to section 627.428, Florida Statutes.
It is FURTHER ORDERED that MTM is entitled to have costs taxed in its favor if it files a proper motion with the lower tribunal within thirty days of issuance of the mandate in this matter. (WHITE, GRIDLEY, and COHEN, JJ., concur.)
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1Said document specifically provides in part:
This instrument is not intended to operate as an assignment as that term is used in Florida Statutes §627.736 and any provision(s) of this instrument that may be interpreted as such shall be severed from said provision(s) and will remain in full force, effect, and operation. Insofar as it is the express intent of the parties that this document or any part thereof shall not constitute an assignment, in the event that this document or any part thereof is interpreted as an assignment, the parties hereto agree that the medical provider did not voluntarily enter into any part of this agreement which is construed as an assignment.
…
I hereby revoke, rescind and withdraw any and all assignments heretofore executed in favor of the above medical care provider.
2In Delta Casualty, 721 So. 2d 321, the Fifth District Court declared that the mandatory arbitration provision of section 627.736(5), Florida Statutes (1995) is unconstitutional because it denies medical providers access to the courts, and therefore, violates article I, section 21 of the Florida Constitution. Id. Further, the Fifth District declared that the prevailing party attorney fees provision of section 627.736(5) is unconstitutional because it violates medical providers’ due process rights, and therefore, violates article I, section 9 of the Florida Constitution. Id. The opinion in Delta Casualty was rendered after the trial court issued the order that is the subject of this appeal.
3In Orion, the Third District Court held that section 627.736(5), Florida Statutes does not deny access to the courts because the statutory arbitration provisions do not come into play until medical providers voluntarily accept assignments of benefits and attempt to assert claims under the no-fault statute. Id.
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