8 Fla. L. Weekly Supp. 330a
Insurance — Personal injury protection — Arbitration — Trial court correctly denied motion to dismiss and compel arbitration under contractual arbitration clause which was clearly based on unconstitutional statutory provision
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, vs. NU-BEST DIAGNOSTICS LABORATORY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 99-31. February __, 2001. Appeal from the County Court for Orange County, Carolyn B. Freeman, Judge. Counsel: Tracy Raffles Gunn, for Appellant. Thomas Andrew Player, for Appellee.
(Before RUSSELL, KIRKWOOD, GRIDLEY, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.)This is an appeal by Defendant/Appellant, Nationwide Mutual Fire Insurance Company of the trial court’s order denying its Motion to Dismiss and Compel Arbitration. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). After consideration of the record on appeal and parties’ briefs, this Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320 and affirms the trial court’s order.
Nationwide is the insurer of Jason Clark. The insurance contract required arbitration of any claims dispute involving a medical provider who has accepted an assignment of benefits. Nu-Best Diagnostics, a medical provider, accepted an assignment of benefits from Clark. Nu-Best Diagnostics then sued Nationwide for payment. Nationwide moved to dismiss the complaint and compel arbitration based on the contractual arbitration clause. On March 31, 1999, the trial court denied Nationwide’s motion. The instant appeal followed.
The issues for consideration by this Court on appeal are whether arbitration should have been ordered in this case due to the contract language alone; notwithstanding the alleged unconstitutionality of § 627.736(5), Florida Statutes; and, whether the statute is constitutional. Regarding the constitutionality of § 627.736(5), the Florida Supreme Court granted review of Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998), rev. granted sub nom, Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 732 So. 2d 328 (Fla. 1999). On February 3, 2000, the Court affirmed and held that the mandatory arbitration provision of § 627.736(5), Florida Statutes, is unconstitutional, finding that “the provision violates the right of medical providers to access to courts provided under article I, section 21 of the Florida Constitution.” Nationwide Mut. Fire Ins. Co. v. Pinnacle Med. Inc., 753 So. 2d 55, 57 (Fla. 2000). Accordingly, there is no arguable issue regarding the constitutionality of the statute.
Regarding issue 1, although the Court in Delta did not specifically invalidate all contract provisions which provide for mandatory arbitration, a reasonable interpretation of its opinion would invalidate provisions which were clearly based on § 627.736(5), as in the instant case. Therefore, the trial court correctly denied Nationwide’s motion based on the contract provision.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s order denying Nationwide’s Motion to Dismiss and Compel Arbitration is AFFIRMED.
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