8 Fla. L. Weekly Supp. 271a
Insurance — Personal injury protection — Arbitration — Complaint by medical provider for payment of PIP insurance benefits — Statute which requires mandatory arbitration for all medical provider assignees of PIP benefits and which provides for prevailing party attorney’s fees has been held unconstitutional by Florida Supreme Court — Order compelling arbitration reversed and matter remanded for further proceedings
MTM DIAGNOSTIC INC., d/b/a FLORIDA PAIN CONTROL & TREATMENT CENTER, on behalf of CEDRIC EDOM, Appellant, vs. ATLANTIC INDEMNITY COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA198-73. Lower Court Case No. SCO98-3013. January 25, 2001. Appeal from the County Court for Orange County, Carolyn B. Freeman, Judge. Counsel: Elizabeth S. Conan, for Appellant. Kieran F. O’Connor, for Appellee.
(Before BAKER, ADAMS, and STRICKLAND, JJ.)
ORDER REVERSING AND REMANDINGCASE TO TRIAL COURT
(PER CURIAM.) MTM Diagnostic Inc., d/b/a Florida Pain Control & Treatment Center, on behalf of Cedric Edom, appeals from the lower court’s non-final order staying the case 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).
Cedric Edom was in an automobile accident on February 3, 1998. At the time of the accident, he was insured with Appellee, Atlantic Indemnity Company. Atlantic’s insurance policy provided Personal Injury Protection (“PIP”) coverage for Edom for bodily injuries Edom sustained in the accident. As a result of those injuries, Edom sought medical and remedial care from MTM, and executed a document entitled “Appointment as Agent-In-Fact with Power of Attorney” which directs that payments for medical expenses be paid directly from any insurance company to MTM.1 Edom thereafter incurred expenses for the medical and remedial care provided by MTM.
Edom furnished Atlantic with a PIP application, gave notice of the covered losses and made demands for No-Fault benefits, and allegedly performed all conditions precedent. Atlantic, however, declined to pay Edom’s medical bills. Consequently, MTM, on behalf of Edom, instituted a lawsuit against Atlantic.
In response to MTM’s Amended Complaint, Atlantic filed a Motion to Dismiss. The trial court subsequently entered an order staying the litigation and compelling the parties to proceed to arbitration. MTM now appeals.
On appeal, 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 upon the Fifth District Court of Appeal’s decision in Delta Cas. Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998). MTM argues, based upon Delta Casualty, that the order compelling arbitration should be reversed.
In response, Atlantic argues that MTM cannot benefit from the Delta Casualty decision because MTM failed to preserve the issue regarding the constitutionality of § 627.736(5), Florida Statutes, for appeal.
MTM contends in reply that it properly preserved the issue for appeal by including an argument regarding the constitutionality of § 627.736(5), Florida Statutes in its memorandum in opposition to Atlantic’s Motion to Dismiss.DISCUSSION
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), Fla. Stat.
After the trial court issued its ruling in this case, the Fifth District Court of Appeal declared said provision of § 627.736(5) unconstitutional, finding that it violates article I, section 21 and article I, section 9 of the Florida Constitution. See Delta Cas. Co., 721 So. 2d 321. The Delta Casualty decision then proceeded to the Florida Supreme Court for review. See Fla. R. App. P. 9.030(a)(1)(A)(ii).
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.
Since the Florida Supreme Court has declared the statutory provision which required binding arbitration unconstitutional, see Nationwide, 753 So. 2d 55, we conclude that the order staying the lower court proceedings and compelling the parties to proceed to arbitration should be reversed, and that this matter should be remanded for further proceedings.
Accordingly, it is hereby ORDERED and ADJUDGED that this matter is REVERSED and REMANDED for further proceedings. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000). (BAKER, ADAMS, and STRICKLAND, 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 interpreted as such shall be considered null and void from the beginning and remaining provision(s) of this instrument 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 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.
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