Volume 7

7 Fla. L. Weekly Supp. 766a

Arbitration — Insurance — Personal injury protection — Medical provider’s action against insurer — Statute requiring mandatory arbitration for all disputes between insurer and medical provider assignees and which requires a prevailing party standard to apply with regard to attorney’s fees is unconstitutional — Error to enter stay of litigation and compel parties to proceed to arbitration — Attorney’s fees — Third party who claims policy coverage by assignment from insured may recover prevailing party attorney’s fees under section 627.428 — In case at issue, assignee’s motion for appellate attorney’s fees is provisionally granted, subject to assignee ultimately prevailing in entire action below and subject to trial court determining that provider is entitled to attorney’s fees under section 627.428(1) — Provider, as prevailing party, entitled to have costs taxed in its favor if it timely files motion with lower tribunal within thirty days of issuance of mandate

7 Fla. L. Weekly Supp. 765a

Arbitration — Insurance — Personal injury protection — Medical provider’s action against insurer — Statute requiring mandatory arbitration for all disputes between insurer and medical provider assignees and which requires a prevailing party standard to apply with regard to attorney’s fees is unconstitutional — Error to enter stay of litigation and compel parties to proceed to arbitration — Attorney’s fees — Third party who claims policy coverage by assignment from insured may recover prevailing party attorney’s fees under section 627.428 — In case at issue, assignee’s motion for appellate attorney’s fees is provisionally granted, subject to assignee ultimately prevailing in entire action below and subject to trial court determining that provider is entitled to attorney’s fees under section 627.428(1) — Provider, as prevailing party, entitled to have costs taxed in its favor if it timely files motion with lower tribunal within thirty days of issuance of mandate

7 Fla. L. Weekly Supp. 390a

Insurance — Personal injury protection — Arbitration — No controversy remains to be determined by appellate court on issue of constitutionality of section 627.736(5) in view of Florida Supreme Court’s recent ruling — Insurer’s motion to compel arbitration was not frivolous because at time motion was made, there was conflict as to constitutionality of arbitration in PIP benefit cases — Insurer did not waive coverage defenses by moving to compel arbitration

7 Fla. L. Weekly Supp. 193a

Insurance — Personal injury protection — Arbitration — Complaint by medical provider for payment of PIP insurance benefits — Insurer’s amended motion to compel arbitration and dismiss complaint denied — Section 627.736(5), Florida Statutes, is unconstitutional based upon determination that section 627.736(5) arbitrarily requires medical providers who have accepted assignment of benefits to arbitrate claims disputes while insureds enjoy benefit of resolving claims disputes with insurers by way of civil litigation

7 Fla. L. Weekly Supp. 1a

Insurance — Personal injury protection — Arbitration — No abuse of discretion in finding that insured assigned PIP benefits to medical providers based upon evidence that insured signed form authorizing medical providers to file for and receive payment for medical benefits, that insured received services from providers but was not required to pay at time of service, that providers submitted forms to insurer for direct payment, and that all parties treated insured’s signature as an assignment up to the point a claim dispute arose — Once assignment is made and a claim dispute arises, assignment is irrevocable and insured no longer has standing to argue that no assignment occurred — Court rejects insured’s contention that the only method for assigning PIP benefits is a direct counter-signature on the actual invoice submitted to the insurer — Section 627.736(5) may be constitutionally applied to order arbitration of dispute between medical provider and insurer — Insurance policy language at issue provided separate and independent basis to enforce arbitration — Arbitrable issues — Trial court appropriately found that arbitrators should determine whether, under facts before them, the medical benefits at issue were causally related to either or both accidents and whether such medical services were reasonable and necessary

7 Fla. L. Weekly Supp. 729a

Insurance — Personal injury protection — Where medical provider filed demand for arbitration after insurer failed to pay charges within thirty days, and insurer tendered full payment of disputed benefits subsequent to receipt of demand for arbitration, medical provider is entitled to award of reasonable fees and costs arising out of arbitration — Question certified whether Florida Supreme court’s decision in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., which declared unconstitutional the arbitration provisions of section 627.736(5) applies retroactively to pending claims for statutory attorney’s fees and costs where medical provider/assignee demanded arbitration prior to Pinnacle and insurer tendered full payment of benefits together with statutory interest, also after Pinnacle

7 Fla. L. Weekly Supp. 62a

Arbitration — Attorney’s fees — Motion for summary judgment as to entitlement to attorney’s fees and costs on underlying arbitration proceeding granted where defendant agreed to settle disputed claim immediately after plaintiff demanded arbitration — Prevailing party definition of Section 627.736(b)(c)(1)-(3), Florida Statutes, does not apply when confession of judgment is made prior to arbitration award — Payment of claim is functional equivalent to confession of judgment or verdict in favor of plaintiff for purposes of awarding attorney’s fees

7 Fla. L. Weekly Supp. 473a

Insurance — Personal injury protection — Affirmative defenses — Material misrepresentation — Insured entitled to summary judgment on claim for PIP benefits because her failure to list her boyfriend who lived in her home on application for PIP insurance was not material misrepresentation — Because insured’s boyfriend, although he was resident of her household, was not a relative, did not drive her vehicle, had his own policy of insurance, was not involved in subject accident, and was not making claim against insurance company with respect to subject accident, misrepresentation by insured was not material either to the acceptance of risk or to hazard assumed by insurer — In order to have been material, misrepresentation would have had to have been related to risk or hazard assumed — Failure to list boyfriend on application could only serve to preclude coverage for claim by boyfriend under insured’s policy

7 Fla. L. Weekly Supp. 659a

Insurance — Automobile — Error to enter summary judgment in favor of insurer which provided comprehensive coverage for truck which was stolen from in front of insured’s home on ground that insured made material misrepresentation on policy application by failing to list name of niece who was licensed driver living at insured’s home — Record failed to reveal that omission of niece’s name from application was related to risk or hazard of truck being stolen, and no evidence was presented that theft arose out of niece’s use of vehicle — Whether or not insured falsely represented material facts that induced insurer to issue a policy, solely in reliance on those facts, presents questions of fact to be resolved by jury

7 Fla. L. Weekly Supp. 231a

Insurance — Appeals — Non-final order denying motion to strike insurer’s proposal for settlement made pursuant to rule 1.442 and section 768.79 — Section 768.79 applies to all civil actions for damages — Order does not create material harm irreparable by post-judgment appeal — Petition for review dismissed