FLOYD MICHAEL KILBREATH, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE
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The dissenting judge would hold that the cause of action on an insurance contract accrues at the time of the accident, not after arbitration or refusal to arbitrate.
[1] Arbitration or its waiver or denial by the company is a condition precedent to an action on an insurance policy when the policy requires arbitration and specifies no acti…
[2] A statute of limitations on a contract action does not begin to run until an action can be brought on the contract.
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Join FLexlaw to unlock all legal intelligenceThis case involves a dissent from a majority opinion regarding an insurance contract claim. The dissent argues the statute of limitations should have …
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COWART, Judge.
When an insurance policy requires arbitration of claims and another provision specifies that no action shall lie against the company unless there has been full compliance with all terms of the policy, arbitration or its waiver or denial by the company is a condition precedent to an action on the policy. See Hall v. Nationwide Mutual Insurance Co., 189 So. 2d 224 (Fla. 4th DCA 1966); Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So. 2d 911 (Fla.3d DCA 1966). A statute of limitations on a contract action does not begin to run until an action can be brought on the contract, Briggs v. Fitzpatrick, 79 So. 2d 848 (Fla.1955), and no action can be brought on a contract until all conditions precedent to recovery on the contract have occurred. Gilbert v. American Casualty Co. of Reading, Pennsylvania, 219 So. 2d 84 (Fla.3d DCA), cert. denied, 225 So. 2d 920 (Fla.1969). Therefore, the statute of limitations on a contract action does not begin to run until all conditions precedent to recovery under the contract have occurred. See Employers’ Fire Insurance Co. v. Continental Insurance Co., 326 So. 2d 177 (Fla.1976). Consequently, since an action on an insurance policy is a contract action, the statute of limitations on an action on the policy does not begin to run until arbitration has occurred or has been waived or denied by the insurance company.1
The order dismissing the complaint as barred by the statute of limitations, as computed from the accident rather than from the denial of arbitration, is REVERSED and the cause is remanded for further proceedings.
FRANK D. UPCHURCH, Jr., J., concurs.
SHARP, J., dissents with opinion.
. We read Mendlein v. U. S. Fidelity and Guaranty Co., 277 So. 2d 538 (Fla.3d DCA 1973), to hold only that where arbitration is required it must be demanded within a reasonable time, a time fixed by analogy to the statute of limitation, and that where Mrs. Mendlein had not demanded arbitration within the five year period of limitations applicable to a cause of action on the policy, she had not acted within a reasonable time.
SHARP, Judge,
dissenting.
I disagree with the majority that the cause of action on this insurance contract does not accrue until after arbitration is had, or after the insurer refuses to arbitrate. This situation is distinguishable from a “no action” provision 1 in an insurance contract and from a cause of action based on a derivative claim.2 In an action against an insurance company for “underin-sured” or “uninsured” motorist coverage the right of action stems from the plaintiff’s right of action against the tortfeasor and the statute of limitations should begin to run on the date of the accident. See Bocek v. Inter Ins. Exchange of Chicago Motor Club, 369 N.E. 2d 1093 (Ind.App. 1977). The majority opinion permits the five year statute of limitations provision3 to be extended to a maximum of ten years at the will of the party against whom it is supposed to be running — an incongruous result.
Further, I cannot read Mendlein v. U. S. Fidelity & Guaranty Co., 277 So. 2d 538 (Fla.3d DCA 1973) as permitting the filing of this action — almost eight years after the accident occurred. The Mendlein court ruled:
We hold the same Rule [§ 95.11(3) — 5 year statute of limitations] applicable not only to a parties’ right to sue, but a parties’ right to arbitration pursuant to an insurance contract as in the instant case. (Emphasis supplied)
277 So. 2d at 539.
Consistent with Mendlein I would affirm the lower court’s dismissal of this case be cause it is barred by the statute of limitations.
. Gilbert v. American Casualty Co. of Reading, Pa., 219 So. 2d 84 (Fla.3d DCA), cert. denied, 225 So. 2d 920 (Fla.1969).
. Clemons v. Flagler Hospital, Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980).
. § 95.11(3), Fla.Stat. (1979).
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State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So. 2d 632 (Fla. 1982)…EHRLICH, Justice. We have for review the decision of the District Court of Appeal, Fifth District, in Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So. 2d 846 (Fla. 5th DCA 1981), which expressly and directly conflicts with Mendlein v. United States Fidelity & Guaranty Co., 277 So. 2d 538 (Fla. 3d DCA 1973). We have jurisdiction.1 The determinative issue in Kilbreath is whether, in an action under an uni…
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Cent. Nat'l Bank OF Miami v. Cent. Bancorp., Inc., 411 So. 2d 358 (Fla. 3d DCA 1982)…r specific performance of a contract be brought within one year. Consistent with Florida law, this means that the statute of limitations begins to run on the date the contract is breached. Cf. Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So. 2d 846 (Fla. 5th DCA 1981); Airport Sign Corp. v. Dade County, 400 So. 2d 828 (Fla. 3d DCA 1981). Here, appellant did apply for a name change prior to the sixth-month period. When this name change was denied by the Comptroller in January of 1978, appellant…
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Woodall v. Travelers Indem. Co., 699 So. 2d 1361 (Fla. 1997)…on an insurance policy is a contract action, the statute of limitations on an action on the policy does not begin to run until arbitration has occurred or has been waived or denied by the insurance company. Kilbreath v. State Farm Mut. Auto. Ins., 401 So. 2d 846, 847 (Fla. 5th DCA 1981), quashed, 419 So. 2d 632 (Fla.1982). The majority opinion is patently incorrect when it states in footnote 5 thereof: We reject the Woodalls’ contention that underinsured motorist coverage is more analogous to PIP coverage…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So. 2d 911 (Fla. 3d DCA 1966)
- Emp'rs' Fire Ins. Co. v. Cont'l Ins. Co., 326 So. 2d 177 (Fla. 1976)
- Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980)
- Hall v. Nationwide Mut. Ins. Co., 189 So. 2d 224 (Fla. 4th DCA 1966)
- Briggs v. Fitzpatrick, 79 So. 2d 848 (Fla. 1955)
- Mendlein v. United States Fid. & Guar. Co., 277 So. 2d 538 (Fla. 3d DCA 1973)
- Larry Gilbert in Bankr. of Juv. World, Inc. v. Am. Cas. Co. of Reading, 219 So. 2d 84 (Fla. 3d DCA 1969)
- Degennaro v. Miller Trailers, Inc., 225 So. 2d 920 (Fla. 1969)
- Sharps v. Sharps, 225 So. 2d 920 (Fla. 1969)