5D00-3064 State Farm Auto v. Warren

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-3064

Case Date: 01/28/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

STATE FARM MUTUAL AUTOMOBILE INSURANCE, Appellant, v. Case No. 5D00-3064 DAN RAY WARREN, ET AL., Appellees. / Opinion filed February 1, 2002 9.160 Appeal from the County Court for Volusia County, Michael McDermott, Judge. Karen A. Barnett, Deborah L. Appel of Barnett & Associates, P.A., Tampa, for Appellant. Larry Mark Polsky, Daytona Beach, for Appellees. PETERSON, J. State Farm Mutual Automobile Insurance Co. (State Farm), appeals a final judgment awarded to Dan Ray Warren, State Farm's insured, and Dr. Jack Rotstein, M.D., Warren's physician. The county court entered the judgment after holding section 627.736(5)(b), Florida Statutes (1999), unconstitutional as violative of Dr. Rotstein's rights to equal protection, due process and access to the courts.1

The county court certified this case to be of "great public importance thereby invoking the discretionary jurisdiction of this court." Fla. R. App. P. 9.030(b)(4).

1

Section 627.736(5)(b)2 provides that "the insurer is not required to pay [for] charges for treatment or services rendered more than 30 days before the postmark date of the statement [of charges] . . . ." The statute also provides that, "[t]he injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of this provider's failure to comply with this paragraph." Warren was injured in a motor vehicle accident on March 22, 1999 and received treatment from Dr. Jack Rotstein on May 27, June 16, and July 6, 1999. Dr. Rotstein, failed to submit statements for his medical services to State Farm until August 9, 1999, more than thirty days after the services were rendered. Because the statements were statutorily delinquent, State Farm denied payment to Dr. Rotstein. Although Warren incurred no liability for the treatments because he enjoyed immunity under the statute for Dr. Rotstein's tardy statements, he initiated an action for non-payment against State Farm and eventually joined Dr. Rotstein as a party plaintiff. The county court agreed with Dr. Rotstein's allegations that the thirty-day billing requirement of section 627.736(5)(b) is an "irrational legal hoop" and should be declared unconstitutional. The court found that "it [the statute] denies equal protection under the Florida Constitution to health care providers such as Dr. Rotstein by differentiating his bills from hospital and ambulance bills," that the statute "is not reasonably related to a legitimate legislative object [sic]", "violates the due process provisions of the Florida Constitution," and that it "denies medical providers who are not hospitals and ambulance companies access to

2

The full text of the statute is set forth in the addendum to this opinion. 2

the courts." The court then entered judgment for $1,640.25 plus interest to Dr. Rotstein and awarded attorney's fees and costs in the amount of $12,699.26 pursuant to section 627.736(8), Florida Statutes (1999). State Farm urges that we dismiss the appeal because the Florida Attorney General was not joined in this action as required by section 86.091, Florida Statutes (1999), when the constitutionality of a statute is challenged. However, State Farm raises the non-joinder for the first time on this appeal and invited the county court to determine constitutionality in its joint pre-trial statement. Because State Farm requested that the trial court determine the issue of the statute's constitutionality and ignored the requirement at the trial level, we find it has waived the right to challenge the non-joinder. Additionally, we have ignored the requirement since we find the statute to be constitutionally valid. It is well established that when the constitutionality of a statute is at issue, courts must find the statute valid if there is any reasonable basis for doing so. See generally 10 Fla. Jur. 2d Constitutional Law

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