7 Fla. L. Weekly Supp. 777b
Insurance — Personal injury protection — No error in denying insurer’s motion to abate and compel arbitration of actions filed by medical provider as attorney in fact for insureds — If authorization form executed by insured were limited power of attorney, arbitration is not required under statute or policy — If authorization is found to be assignment, statutory provision requiring arbitration between insurers and medical services providers when medical service providers receive assignment of benefits has been held unconstitutional — Insurer’s argument regarding impairment of obligation of contract fails because unconstitutional statutory provision specifically directed that all PIP insurance policies include mandatory arbitration provision, and insurer admitted that contractual provision was placed in its policy only after the statutory provision so directed it to be placed
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIAGNOSTIC NEUROLOGY GROUP, INC., as attorney-in-fact for KISH MUNJAL, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Appellate Case No. CVA196-58. County Ct. Case No. CO95-11681. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIAGNOSTIC NEUROLOGY GROUP, INC., as attorney-in-fact for SABITREE MUNJAL, Appellee. County Ct. Case No. CO95-11677. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIAGNOSTIC NEUROLOGY GROUP, INC., as attorney-in-fact for SEAN HARTMAN, Appellee. County Ct. Case No. CO95-11676. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIAGNOSTIC NEUROLOGY GROUP, INC., as attorney-in-fact for KRISTINA DEMOND, Appellee. County Ct. Case No. CO95-11683. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DIAGNOSTIC NEUROLOGY GROUP, INC., as attorney-in-fact for LORETTA CASTNER, Appellee. County Ct. Case No. CO95-3550. August 15, 2000. Appeal from the County Court for Orange County, Stephen Carter and Frederick J. Lauten, Judges.Counsel: Patrick C. Howell, Drage, de Beaubien, Knight, Simmons, Manzaris & Neal, Orlando, for appellant. Charles R. Steinberg, Ameri & Theriac, P.A., Cocoa, for appellees.
(Before GRIDLEY, ADAMS, and BRONSON, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) The appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), filed these appeals requesting that this Court review various non-final orders entered by the county court in five personal injury protection (“PIP”) cases. In particular, the appellee, Diagnostic Neurology Group, Inc. (“Diagnostic”), filed the suits below as attorney in fact for Kish Munjal, Sabitree Munjal, Sean Hartman, Kristina Demond, and Loretta Castner (“the insureds”) after performing diagnostic testing on each of them for alleged injuries each received in various motor vehicle accidents during 1995 and after State Farm disputed coverage for the costs associated with some of those tests.1 This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(B), dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320, and affirms the trial court orders on review.
These actions were consolidated on appeal2 because at the time of the motor vehicle accidents at issue, all the insureds had policies of insurance with State Farm which provided PIP benefits. Each of those insurance policies included a provision requiring arbitration of disputed claims presented by medical service providers who accepted assignments of personal injury protection benefits.3 Finally, all of the insureds had executed an identical document entitled “PATIENT AUTHORIZATION FOR MEDICAL PROVIDERS TO RECOVER INSURANCE BENEFITS” (“the Authorization”) for the purpose of allowing Diagnostic to recover the insureds’ insurance benefits directly from State Farm. In the cases below, State Farm filed Motions to Abate and Compel Arbitration on the basis of the above, contending it was entitled to arbitration of these disputes. In each of the cases, the courts below found differently.
Overall, this case involves § 627.736(5), Florida Statutes, which states, in pertinent part,
[e]very insurer shall include a provision in its policy for binding arbitration of any claim 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.
On appeal, State Farm asserts that the Authorization is an assignment which would require arbitration under §627.736(5). In addition, State Farm argues that the statutory provision is constitutional, but even if it were unconstitutional, the fact that the policies of insurance at issue included a provision with essentially the same requirements as the statute would also require arbitration between the parties because to hold otherwise would unconstitutionally impair contractual obligations. Diagnostic counters that the statutory provision is unconstitutional. However, regardless, Diagnostic argues that the Authorization is a limited power of attorney which did not require arbitration under the statute.
Since the trial court decisions in the cases below and the submission of briefs to this Court, the Florida Supreme Court issued an opinion finding §627.736(5) unconstitutional. In Nationwide Mutual Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000), the Florida Supreme Court concluded that the mandatory arbitration provision of §627.736(5) violated the right of medical providers to access to courts provided under article I, section 21 of the Florida Constitution.
This Court finds that in light of the Florida Supreme Court’s opinion in Nationwide Mutual, it does not matter whether the Authorization is a limited power of attorney or an assignment. If the Authorization is found to be a limited power of attorney, arbitration is not required under the statute or policy. If the Authorization is found to be an assignment, the statutory provision requiring arbitration between the insurers and medical service providers when the medical service providers received an assignment of benefits from the insureds has been held unconstitutional.
State Farm’s argument regarding the impairment of obligation of contract also fails because the statutory provision found unconstitutional specifically directed that all PIP insurance policies include the provision for arbitration at issue. In fact, State Farm’s initial brief in Kish Munjal’s case, filed separately before the cases were consolidated, admitted that the contractual provision was placed in the State Farm policy only after the statutory provision so directed it to be placed. See State Farm Mutual Automobile Insurance Company v. Diagnostic Neurology Group, Inc., as attorney-in-fact for Kish Munjal, CVA196-58, initial brief filed 11/4/96, pg. 7. Further, in Nationwide Mutual, the Florida Supreme Court acknowledged that insurance policies include this language, stating
[t]he limited standard of review and the high degree of conclusiveness attached to other arbitration awards is permitted because the parties have, by agreement, substituted a tribunal of their own choosing for the forum provided by law. See Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327 (Fla. 1989). In the instant case, there is no voluntary agreement to arbitrate between medical providers and PIP insurers. Medical providers are forced to arbitrate by terms in an agreement entered into between an insured and an insurer, to which the assignor-insured is not subject.
Nationwide Mutual, 753 So. 2d at 58, n. 4 [emphasis added]. Nevertheless, the court found the arbitration requirement unenforceable.
Based upon the foregoing, the trial courts’ orders denying State Farm’s Motions to Abate and Compel Arbitration are AFFIRMED. This case is REMANDED for further proceedings in accordance with this opinion. The Clerk of the Court shall place a certified copy of this order in the official court files of cases CVA196-60, CVA196-64; CVA196-65, and CVA196-66. (GRIDLEY, ADAMS, and BRONSON, JJ., concur.)
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1While Diagnostic filed a notice of cross-appeal and an amended notice of cross-appeal, the cross-appeal was dismissed by this Court on December 12, 1997.
2This Court ordered these separate appeals consolidated on March 3, 1997, and ordered that all documents be filed under CVA196-58 on July 14, 1997.
3The policy provision at issue states
[a]ny claim dispute involving medical benefits under this section of the policy between us and a medical services or supplies provider who has agreed to accept assignment of personal injury protection benefits shall be decided by arbitration upon written request of either party.
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