KATHLEEN LEAF, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE
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Kathleen Leaf sought to compel arbitration of an insurance claim against State Farm, and a jury found State Farm had consented to arbitration. The court reversed the trial court's striking of Leaf's attorney's fees claim, holding that section 627.428 authorized fees because State Farm's failure to respond to Leaf's arbitrator selection made litigation reasonably necessary.
Leaf is entitled to attorney's fees under section 627.428 because State Farm's failure to respond to her arbitrator selection made it reasonably necessary for her to pursue litigation to resolve the insurance claim. The case falls within Florida's Arbitration Code (chapter 682), not the uninsured motorist coverage provisions, and the jury's verdict implicitly established that State Farm wrongfully caused Leaf to litigate.
[1] An action to compel arbitration of an insurance claim falls within the parameters of Florida's Arbitration Code, chapter 682, rather than provisions governing uninsured m…
[2] Attorney's fees may be awarded in an action to compel arbitration pursuant to section 627.428, Florida Statutes, when the insurer wrongfully causes the insured to resort…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the purpose of section 627.428, Florida Statutes is 'to penalize a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier's power to do so.'”
Establishes the statutory purpose underlying the attorney's fees provision and the standard for awarding fees.
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Join FLexlaw to unlock all legal intelligenceLeaf filed a petition to compel arbitration against State Farm regarding uninsured motorists coverage benefits. State Farm denied having agreed to arb…
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PER CURIAM.
Appellant, Kathleen Leaf, filed a petition to compel arbitration against appellee State Farm, which filed an answer, alleging that it had not agreed to arbitration pursuant to the terms of the insurance policy. The issue of whether State Farm had agreed to arbitration was tried before a jury, which returned a verdict finding that State Farm had consented to arbitration of the claim in question.
State Farm filed a motion to strike Leaf’s claim for attorney’s fees on the ground that there was no statutory or contractual basis for the claim for attorney’s fees. The motion was granted. A motion for a rehearing of the court’s striking of Leaf’s motion for attorney’s fees was denied. Thereafter, the trial court entered a final judgment granting Leaf’s petition to compel arbitration but striking Leaf’s claim for attorney’s fees.
We disagree with State Farm’s contention that section 627.727(8) governs in the instant case. In our view that statutory section specifically deals with disputes involving whether the uninsured motorists coverage insurer is liable for insurance benefits given the facts of a particular claim. The pleadings filed in the instant case clearly show that Leaf’s action against State Farm did not constitute a request for payment of uninsured motorists coverage benefits but rather a demand that the determination of the amount of such benefits be arbitrated rather than litigated. We perceive this to be a case falling within the parameters of chapter 682, The Arbitration Code, of the Florida Statutes and not the uninsured motorist coverage provision of chapter 627. Leaf’s pleadings and oral argument establish that while chapter 682 provided the remedy, section 627.428 justified the attorney’s fee. We agree.
Although this court in State Farm Mutual Automobile Insurance Co. v. Anderson, 332 So. 2d 623 (Fla. 4th DCA 1976), cert. denied, 345 So. 2d 428 (Fla.1977), did not specifically adopt the Third District Court of Appeal’s “reasonably necessary to pursue the insurance claim” standard, set forth in Nigaglioni v. Century Insurance Company of New York, 281 So. 2d 570 (Fla. 3d DCA 1973) and Whitfield v. Century Insurance Company of New York, 281 So. 2d 569 (Fla. 3d DCA 1973), for the awarding of attorney’s fees pursuant to section 627.428 in actions to compel arbitration, such a standard comports with the purpose of said statute. In Employees Insurance Company v. Battaglia, 503 So. 2d 358, 360 (Fla. 5th DCA 1987), it was held that the purpose of section 627.428, Florida Statutes is “to penalize a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier’s power to do so.” (Citations omitted.)
A review of the record discloses that State Farm’s failure to respond to Leaf’s letter advising it of her selection of an arbitrator could be deemed to have wrongfully caused Leaf to resort to litigation to resolve a conflict which was reasonably within State Farm’s power to resolve. The jury’s decision in favor of Leaf impliedly determines that State Farm’s claims representative’s failure to respond to Leaf’s communication regarding her selection of an arbitrator made it reasonably necessary for Leaf to pursue through litigation her insurance claim for benefits. We reverse and remand for the determination of a reasonable attorney’s fees award.
GLICKSTEIN, GUNTHER, JJ., and ROBINSON, STEVEN D„ Associate Judge, concur.
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Ins. Co. OF N. Am. v. Clausson P. Lexow, 602 So. 2d 528 (Fla. 1992)…nforce their insurance contracts. Wilder v. Wright, 278 So. 2d 1 (Fla.1973); Feller v. Equitable Life Assurance Soc’y, 57 So. 2d 581 (Fla.1952); Fewox v. McMerit Constr. Co., 556 So. 2d 419 (Fla. 2d DCA 1989); Leaf v. State Farm Mut. Auto. Ins. Co., 544 So. 2d 1049 (Fla. 4th DCA 1989). We are persuaded that the lawsuit involved in this case falls within the scope of this rationale. In the instant case, the resolution of the dispute over who was entitled to the fund paid by the third-party tortfeasor ultimatel…
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Ins. Co. OF N. Am. v. Acousti Eng'g Co. OF Fla., 549 So. 2d 790 (Fla. 5th DCA 1989)…lished pursuant to arbitration rather than through a judicial determination. Zac Smith & Company, Inc. v. Moonspinner Condominium Association, Inc., 534 So. 2d 739 (Fla. 1st DCA 1988). See also Leaf v. State Farm Mutual Automobile Insurance Company, 544 So. 2d 1049 (Fla. 4th DCA 1989); Fitzgerald & Company, Inc. v. Roberts Electrical Contractors, Inc., 533 So. 2d 789 (Fla. 1st DCA 1988). Accordingly, the order of the trial court is affirmed. AFFIRMED. COBB and SHARP, JJ., concur.…
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Latin Am. Prop. & Cas. Ins. Co. v. Anibal Pastor, 561 So. 2d 1302 (Fla. 3d DCA 1990)…eneficiary’s attorney prosecuting the suit in which the recovery is had. Since the statute is clear on the issue of attorney’s fees, we reverse the order denying attorney’s fees to Pastor. See Leaf v. State Farm Mutual Automobile Insurance Company, 544 So. 2d 1049 (Fla. 4th DCA 1989); Whitfield v. Century Insurance Company of New York, 281 So. 2d 569 (Fla. 3d DCA 1973). Pastor filed a motion to establish a special protocol for arbitration. The protocol motion was granted and the trial court delineated the pr…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Farm Mut. Auto. Ins. Co. v. Anderson, 332 So. 2d 623 (Fla. 4th DCA 1976)
- Gov't Emps. Ins. Co. v. Battaglia, 503 So. 2d 358 (Fla. 5th DCA 1987)
- Whitfield v. Century Ins. Co. OF NEW York, 281 So. 2d 569 (Fla. 3d DCA 1973)
- Nigaglioni v. Century Ins. Co. OF NEW York, 281 So. 2d 570 (Fla. 3d DCA 1973)