CONSORTIUM FOR DIAGNOSTICS, INC., APPELLANT,
v.
CIGNA INSURANCE COMPANY, APPELLEE
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Consortium for Diagnostics appealed a trial court's order compelling arbitration of a class action suit against Cigna for unpaid statutory interest on personal injury protection claims. The appellate court reversed based on the Florida Supreme Court's recent declaration that the mandatory arbitration provision in section 627.736(5) was unconstitutional, violating medical providers' right of access to courts.
The court reversed the order compelling arbitration, holding that Consortium did not waive its right to benefit from the Supreme Court's intervening declaration of unconstitutionality because the order was interlocutory and subject to reconsideration. Since the legislature lacked authority to enact the mandatory arbitration provision, the lower court's order compelling arbitration cannot stand.
[1] A mandatory arbitration provision in a statute that violates a medical provider's right of access to courts under the Florida Constitution is unconstitutional.
[2] A party does not waive the right to challenge the constitutionality of a statute when the controlling law changes during the pendency of an appeal from an interlocutory o…
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Join FLexlaw to unlock all legal intelligence“the order compelling arbitration in this case was an interlocutory ruling, subject to reconsideration by the trial court at any time prior to entry of a final order in this cause”
Establishes why the waiver argument failed; interlocutory orders can be reconsidered and are treated differently from final judgments for waiver purposes.
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Join FLexlaw to unlock all legal intelligenceConsortium brought a class action suit against Cigna for failure to pay statutory interest due upon late payment of personal injury protection (PIP) c…
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PER CURIAM.
Consortium for Diagnostics, Inc. (“Consortium”), appeals from the lower court’s non-final order granting a motion to dismiss of Cigna Insurance Company, n/k/a ACE American Insurance Company (“Cig-na”), and staying the proceedings pending completion of arbitration mandated by section 627.736(5), Florida Statutes (1995). Based upon the authority of Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla.2000), which declared the arbitration clause of section 627.736(5) unconstitutional, we reverse.
Consortium brought a class action suit against Cigna for failure to pay statutory interest due upon late payment of personal injury protection (PIP) claims. Cigna responded to the complaint by filing a motion to dismiss, which it subsequently amended to allege that this case should be arbitrated. The trial court granted Cig-na’s motion and ordered the case stayed pending arbitration. During the pendency of this appeal, the Supreme Court of Florida declared the mandatory arbitration provision of section 627.736(5) unconstitutional, finding that it violated the medical providers’ right of access to courts provided under article I, section 21 of the Florida Constitution. Pinnacle Medical, 753 So. 2d at 57.
Cigna maintains that Consortium waived its right to challenge the constitutionality of section 627.736(5) by failing to raise this matter below. Relying upon Smith v. State, 598 So. 2d 1063 (Fla.1992), and Clay v. Prudential Insurance Co. of America, 670 So. 2d 1153 (Fla. 4th DCA 1996), Cigna argues that to benefit from the change in the law while the case is pending on appeal, Consortium must first have raised its objection at the trial level. However, both Smith and Clay concerned a party’s failure to preserve an issue in the trial court prior to entry of a final judgment that preceded a subsequent change in the law. By contrast, the order compelling arbitration in this case was an interlocutory ruling, subject to reconsideration by the trial court at any time prior to entry of a final order in this cause. See Andrews v. McGowan, 739 So. 2d 132, 135 (Fla. 5th DCA 1999); Tavormina v. Timmeny, 561 So. 2d 681, 684 (Fla. 3d DCA 1990); Bettez v. City of Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987).
As the Florida Supreme Court has now held that the legislature was without authority to enact section 627.736(5) and abolish the medical provider’s right of access to courts, the lower court’s non-final order compelling Consortium to participate in arbitration pursuant to this section cannot stand. See Magnetic Imaging Sys. I, Ltd. v. Auto-Owners Ins. Co., 775 So. 2d 348 (Fla. 3d DCA 2000)(granting certiorari and quashing orders denying motions for reconsideration of orders compelling arbitration pursuant to section 627.736(5)). As we find this issue dispositive, we do not reach Consortium’s remaining points on appeal. Accordingly, we reverse the order under review and remand this matter to the trial court for further proceedings.
Reversed and remanded.
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Sardinas v. Claridania Lagares, 805 So. 2d 1024 (Fla. 3d DCA 2001)…witness under Elkins v. Syken, 672 So. 2d 517 (Fla.1996) where the trial court did not first find the witness in contempt or in violation of “an appropriate court order”) (emphasis added); see also Consortium for Diagnostics, Inc. v. Cigna Ins. Co., 781 So. 2d 1128 (Fla. 3d DCA 2001) (holding that an interlocutory ruling is subject to reconsideration at any time prior to entry of a final ruling). Petition denied. GREEN, J., concurs. . The petition is devoted almost entirely to the merits of the underlying o…
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State v. Benny Chesnut, 894 So. 2d 276 (Fla. 1st DCA 2005)…hat the prerequisites for retroactivity apply to civil as well as criminal cases, including requirement that the issue be raised in lower tribunal and that case be either pending or not yet final); Consortium for Diagnostics, Inc. v. Cigna Ins. Co., 781 So. 2d 1128 (Fla. 3d DCA 2001) (applying preservation requirement of retroactivity in civil case); Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So. 2d 1170 (Fla. 3d DCA 1997) (same); see also Int’l Studio Apt. Assoc., Inc v. Lockwood, 421 So. 2d 1119 (Fla. 4…
Authorities Cited
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So. 2d 55 (Fla. 2000)
- Bettez v. The City OF Miami, 510 So. 2d 1242 (Fla. 3d DCA 1987)
- Clay v. The Prudential Ins. Co. OF Am., 670 So. 2d 1153 (Fla. 4th DCA 1996)
- Andrews v. McGOWAN, 739 So. 2d 132 (Fla. 5th DCA 1999)
- Tavormina v. Timmeny, 561 So. 2d 681 (Fla. 3d DCA 1990)
- Magnetic Imaging Sys. I, Ltd. v. Auto-Owners Ins. Co., 775 So. 2d 348 (Fla. 3d DCA 2000)