8 Fla. L. Weekly Supp. 141a
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 granting insurer’s motion to dismiss 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)
ORLANDO CHIROPRACTIC GROUP, on behalf of MARGARET PATTERSON, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA198-19. Lower Ct. Case No. SC098-480. October 16, 2000. Appeal from the County Court for Orange County, Thomas R. Kirkland, Judge. Counsel: Jeffrey W. Albert, for Appellant. No appearance for Appellee.
(Before TURNER, MACKINNON, and SPRINKEL, JJ.)
ORDER REVERSING TRIAL COURT AND REMANDING FORFURTHER PROCEEDINGS AND ORDER ONMOTION FOR ATTORNEY’S FEES AND COSTS
(PER CURIAM.) Appellant, Orlando Chiropractic Group, on behalf of Margaret Patterson, (“Orlando Chiropractic”), appeals from the trial court’s order granting State Farm Mutual Automobile Insurance Company’s (“State Farm”) Motion to Dismiss and dismissing the case. We have jurisdiction over this matter. See Fla. R. App. P. 9.130. We dispense with oral argument, see Fla. R. App. P. 9.320, and reverse and remand for further proceedings.
Margaret Patterson was in an automobile accident on September 30, 1996. At the time of the accident, Patterson was insured with State Farm. State Farm provided Personal Injury Protection (hereinafter “PIP”) coverage for Patterson for bodily injuries Patterson sustained in the accident. As a result of those injuries, Patterson sought medical, rehabilitative, nursing, and remedial care from Orlando Chiropractic, 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 Orlando Chiropractic.1 Patterson thereafter incurred expenses for the care provided by Orlando Chiropractic.
Patterson furnished State Farm with an executed application for No-Fault benefits, together with medical authorizations. Additionally, Patterson alleges that she gave notice of the covered losses and made demands for No-Fault benefits for “reasonable, necessary and related medical, rehabilitative, and remedial treatment.” Further, Patterson asserts that she performed all conditions precedent. State Farm, however, declined to make payment of Patterson’s No-Fault Benefits. Consequently, Orlando Chiropractic, on behalf of Patterson, instituted an action for damages for No-Fault Benefits.
In response to Orlando Chiropractic’s Complaint, State Farm filed a Motion for More Definite Statement, and thereafter, a Motion to Dismiss and a Demand for Arbitration. In its Motion to Dismiss, Orlando Chiropractic argued that arbitration of the dispute was required under section 627.736(5), Florida Statutes, and the provisions of the insurance contract between Patterson and State Farm which was entered into pursuant to section 627.736(5), Florida Statutes. The trial court granted the motion to dismiss in all respects, thereby compelling the parties to arbitration.2 Orlando Chiropractic now appeals.
Appellant raises several arguments on appeal. This Court concludes, however, that Appellant’s contention that section 627.736(5), Florida Statutes violates public policy is dispositive and accordingly, we address only that issue herein.
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. (1997).
After the trial court issued its ruling in this case, the Fifth District Court of Appeal declared said provision of section 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. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998). 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 section 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.
Based upon the Florida Supreme Court’s ruling that section 627.736(5), Florida Statutes (1997) is unconstitutional, this matter is reversed and remanded for further proceedings.
ON MOTION FOR ATTORNEY’S FEES AND COSTS
Orlando Chiropractic requests that it be awarded costs and attorney’s fees pursuant to Florida Rule of Appellate Procedure 9.400 and section 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.” (emphasis added). Orlando Chiropractic obviously is not the contracting insured, the insured’s estate, or a specifically named policy beneficiary. The issue of whether Orlando Chiropractic is an “assignee” under section 627.428(1), Florida Statutes was not specifically addressed by the trial court in the order on appeal, therefore, we are unclear as to whether such a finding was made by the trial court.
Since Orlando Chiropractic has prevailed in this appeal, Orlando Chiropractic’s Motion for Attorney’s Fees is provisionally granted, but subject to Orlando Chiropractic ultimately prevailing in the entire action below and subject to the trial court determining that Orlando Chiropractic is entitled to attorney’s fees under section 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 Orlando Chiropractic is the prevailing party, and finding no reason for ordering that costs not be taxed in favor of Orlando Chiropractic, the Court concludes that Orlando Chiropractic 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, Orlando Chiropractic Group, on behalf of Margaret Patterson, is PROVISIONALLY GRANTED subject to Orlando Chiropractic ultimately prevailing on the lower court action and subject to the trial court determining that Orlando Chiropractic is entitled to attorney’s fees pursuant to section 627.428, Florida Statutes.
It is FURTHER ORDERED that Orlando Chiropractic 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. (TURNER, MACKINNON, and SPRINKEL, 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 be 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 that 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.
2The order dismissing the case does not specify the precise grounds upon which it is based.
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