8 Fla. L. Weekly Supp. 135a
Insurance — Personal injury protection — Dispute between medical provider and insurer — Statute which requires mandatory arbitration for all medical provider assignees has been held unconstitutional by Florida Supreme Court — Error to enter order staying litigation and compelling parties to proceed to arbitration — Medical provider, as prevailing party, entitled to costs if it timely files motion with lower tribunal within thirty days of mandate — Provider’s motion for attorney’s fees provisionally granted, subject to provider ultimately prevailing in entire action below and subject to trial court’s determination that provider is entitled to attorney’s fees under section 627.428(1)
ADVANCED ORTHOPEDIC INSTITUTE, as assignee of JOYCE CRANE, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA198-72. Lower Court Case No. SCO98-3766. December 11, 2000. Appeal from the County Court for Orange County, Janis Mary Halker, Judge. Counsel: Jeffrey W. Albert, for Appellant. Dale T. Gobel, for Appellee.
(Before KIRKWOOD, MIHOK, and EVANS, JJ.)
ORDER REVERSING TRIAL COURT AND REMANDING FORFURTHER PROCEEDINGS AND ORDER ONMOTION FOR ATTORNEY’S FEES AND COSTS
(PER CURIAM.) Advanced Orthopedic Institute, as assignee of Joyce Crane (“Advanced Orthopedic”), appeals from the trial court’s non-final order staying the litigation between Advanced Orthopedic and State Farm Mutual Automobile Insurance Company (“State Farm”) and compelling the parties to proceed to arbitration. We have jurisdiction over this matter pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(B).
Joyce Crane was in an automobile accident on July 23, 1997. At the time of the accident, Crane was insured with Appellee, State Farm. State Farm provided Personal Injury Protection (“PIP”) coverage for Crane for bodily injuries Crane sustained in the accident. As a result of those injuries, Crane sought medical and remedial care from Advanced Orthopedic, and executed an assignment of benefits to Advanced Orthopedic. Crane thereafter incurred expenses for the medical and remedial care provided by Advanced Orthopedic.
Crane furnished State Farm with a PIP application, gave notice of the covered losses and made demands for No-Fault benefits, and allegedly performed all conditions precedent. State Farm, however, declined to pay Crane’s medical bills. Consequently, Advanced Orthopedic, on behalf of Crane, instituted an action against State Farm.
In response to Advanced Orthopedic’s Complaint, State Farm filed a Motion to Dismiss, or in the Alternative, Motion to Stay Judicial Proceedings and to Compel Arbitration/Motion to Transfer Venue. The trial court subsequently entered an order staying the litigation and compelling the parties to proceed to arbitration. Advanced Orthopedic now appeals.
On appeal, Advanced Orthopedic argues that the lower court erred in staying the action and compelling arbitration because arbitration is unconstitutional. Advanced Orthopedic contends, therefore, that the motion should have been denied. Advanced Orthopedic’s argument is based primarily on the Fifth District Court of Appeal’s decision in Delta Cas. Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998).1 Advanced Orthopedic argues, based upon Delta Casualty, that the order compelling arbitration should be reversed.
In response, State Farm argues that: (I) contract law dictates that the claims dispute between State Farm and Advanced Orthopedic must be resolved by arbitration; and (II) § 627.736(5), Florida Statutes, is constitutional. State Farm acknowledged the Delta Casualty ruling, but argued that this Court should follow the holding of Orion Ins. Co. v. Magnetic Imaging Systems, I, Ltd., 696 So. 2d 475 (Fla. 3d DCA 1997) instead of Delta Casualty. In Orion, the court held that § 627.736(5) 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. Orion, 696 So. 2d 475.
This controversy revolves around § 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 appellate briefs were filed in this case, the Florida Supreme Court resolved the issue regarding the constitutionality of § 627.736(5). 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 § 627.736(5), Florida Statutes (1997), 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 mandatory arbitration provision was deemed unconstitutional on the basis that it denies medical providers access to the courts, and therefore, violates article I, section 21 of the Florida Constitution. Id. at 59. Further, the Florida Supreme 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.
As indicated above, the central issue raised in this appeal is whether the trial court erred in staying the lower court action and compelling the parties to proceed to arbitration. Based upon Nationwide, 753 So. 2d 55, this matter is REVERSED and REMANDED for further proceedings.
ON MOTION FOR ATTORNEY’S FEES AND COSTS
Advanced Orthopedic filed a timely motion for attorney’s fees requesting attorney’s fees and costs pursuant to § 627.428, Florida Statutes.
Section 627.428, Florida Statutes, 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 (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.”
Since Advanced Orthopedic has prevailed in this appeal, Advanced Orthopedic’s Motion for Attorney’s Fees is provisionally granted, but subject to Advanced Orthopedic ultimately prevailing in the entire action below and subject to the trial court determining that Advanced Orthopedic is entitled to attorney’s fees under § 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 Advanced Orthopedic is the prevailing party, and finding no reason for ordering that costs not be taxed in favor of Advanced Orthopedic, the Court concludes that Advanced Orthopedic 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, Advanced Orthopedic Institute, as assignee of Joyce Crane, is PROVISIONALLY GRANTED subject to Advanced Orthopedic ultimately prevailing on the lower court action and subject to the trial court determining that Advanced Orthopedic is entitled to attorney’s fees pursuant to § 627.428, Florida Statutes.
It is FURTHER ORDERED that Advanced Orthopedic 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. (KIRKWOOD, MIHOK, and EVANS, JJ., concur.)
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1In Delta Casualty, 721 So. 2d 321, which was rendered after the trial court rendered its ruling in this matter, the Fifth District Court declared that the mandatory arbitration provision of § 627.736(5) 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 § 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.
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