8 Fla. L. Weekly Supp. 140a
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 — Trial court erred in dismissing complaint 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)
MTM DIAGNOSTIC, INC. d/b/a FLORIDA PAIN CONTROL & TREATMENT CENTER, as assignee of GERRY THREAT, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA198-33. Lower Ct. Case No. SCO97-7394. December 7, 2000. Appeal from the County Court for Orange County, Carolyn B. Freeman, Judge. Counsel: Mark D. Barth, for Appellant. J. Hood Roberts, for Appellee.
(Before BAKER, ADAMS, and STRICKLAND, JJ.)
ORDER REVERSING TRIAL COURT AND REMANDING FORFURTHER PROCEEDINGS AND ORDER ONMOTION FOR ATTORNEY’S FEES AND COSTS
(PER CURIAM.) Appellant, MTM Diagnostic, Inc., d/b/a Florida Pain Control & Treatment Center, as assignee of Gerry Threat (hereinafter “MTM”), appeals from the trial court’s order dismissing its Complaint and compelling the parties to proceed to arbitration. We have jurisdiction over this matter. See Fla. R. App. P. 9.030(c)(1)(A). We dispense with oral argument, see Fla. R. App. P. 9.320, and reverse and remand for further proceedings.
Gerry Threat was in an automobile accident on May 11, 1995. At the time of the accident, Threat was insured with Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”). State Farm provided Personal Injury Protection (“PIP”) coverage for Threat for bodily injuries Threat sustained in the accident. As a result of those injuries, Threat sought treatment from MTM, and executed an assignment of benefits assigning his rights, title, and interest under his PIP policy to MTM for treatment related to said automobile accident. Threat thereafter incurred expenses for the treatment provided by MTM.
Threat furnished State Farm with an application for no-fault benefits, an assignment of benefits, and medical authorizations. Additionally, Threat gave notice of the covered losses and made demands for No-Fault benefits, and performed all conditions precedent. State Farm, however, declined to pay Threat’s medical bills. Consequently, MTM, on behalf of Threat, instituted an action for damages for no-fault benefits.
In response to MTM’s Complaint, State Farm filed a Motion to Compel Arbitration and a Motion to Dismiss. In its Motion to Dismiss as well as in its Motion to Compel Arbitration, State Farm argued that the terms of the PIP policy and the provisions of § 627.736(5), Florida Statutes, require that the case go to binding arbitration. The trial court entered an order granting the Motion to Dismiss and the Motion to Compel, and dismissing the case but reserving jurisdiction to enforce the arbitration agreement and to ensure compliance with the Florida Statutes regarding arbitration. MTM appeals from that order.
On appeal, MTM argues: (I) the trial court erred in dismissing the case with prejudice because § 627.736(5), Florida Statutes, and § 682.03, Florida Statutes, state that when an action is sent to arbitration, it must be stayed and not dismissed; (II) the court erred in compelling the case to arbitration, as the arbitration clause, § 627.736(5), Florida Statutes, violates public policy; and (III) the court erred in compelling arbitration, where Appellee failed to file and serve an application pursuant to § 682.17, Florida Statutes.
In response, State Farm argues: (I) the trial court correctly dismissed the case while reserving jurisdiction to enforce the arbitration agreement; (II) MTM cannot argue for the first time on appeal that § 627.736(5), Florida Statutes is unconstitutional and violates public policy; and (III) State Farm did not need to serve notice in a manner provided by law for the service of a summons.
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 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 § 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 the constitutionality of § 627.736(5) 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 § 627.428, Florida Statutes.
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.”
Since MTM has prevailed in this 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 § 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 Gerry Threat, 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 § 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. (BAKER, ADAMS and STRICKLAND, JJ., concur.)
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