STATE FARM FIRE AND CASUALTY COMPANY, APPELLANT,
v.
GARY A. KAPLAN, D.D.S., APPELLEE
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A party waives their contractual right to arbitration by actively participating in a lawsuit or taking actions inconsistent with that right.
An insured sued his insurer for underinsured motorist benefits and later sought to compel arbitration after trial proceedings, including voir dire, ha…
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LEHAN, Judge.
This is a suit by plaintiff insured against his insurer for underinsured motorist benefits. The insurer appeals from the trial court’s order granting plaintiff’s motion to abate and stay the suit pending arbitration. In other words, the insurer appeals the order which required arbitration. The motion was filed after trial proceedings in the suit had commenced through beginning voir dire questioning of prospective jurors. We reverse.
Plaintiffs right to arbitration matured in February 1991. The trial proceedings did not commence until June 1991. Meanwhile, there had been substantial preparation for trial, discovery, rulings on motions in li-mine, and a pretrial conference, as well as, as noted above, beginning voir dire of jurors. Also, in March 1991, plaintiff dismissed his suit to compel arbitration.
Under these circumstances plaintiff waived arbitration. “A party’s contractual right to arbitration may be waived by active participation in a lawsuit or by taking action inconsistent with that right.... A showing of prejudice [to the other party] is not required if waiver is based upon inconsistent acts.” Finn v. Prudential-Bache Securities, Inc., 523 So. 2d 617, 618, 619-20 (Fla. 4th DCA 1988).
Reversed and remanded for proceedings consistent herewith.
RYDER, A.C.J., and DANAHY, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bared & Co., Inc. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1 (Fla. 2d DCA 1992)…ing of prejudice [to the other party] is not required if waiver is based upon inconsistent acts.” Finn v. Prudential-Bache Securities, Inc., 523 So. 2d 617, 618, 619-20 [*3] (Fla. 4th DCA 1988), as quoted in State Farm Fire & Casualty Co. v. Kaplan, 596 So. 2d 101 (Fla. 2d DCA 1992). SMCI and National Fire originally answered appellants’ cross-claim without demanding arbitration and thus waived any right to arbitration. See Hansen v. Dean Witter Reynolds, Inc., 408 So. 2d 658 (Fla. 3d DCA 1981); King v. Thomp…
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Donald & Co. Sec., Inc. v. Mid-Florida Cmty. Servs., Inc., 620 So. 2d 192 (Fla. 2d DCA 1993)…that right. Klosters Rederi A/S v. Arison Shipping Company, 280 So. 2d 678, 681 (Fla.1973); Bared and Company, Inc. v. Specialty Maintenance and Construction, Inc., 610 So. 2d 1, 2 (Fla. 2d DCA 1992); State Farm Fire and Casualty Company v. Kaplan, 596 So. 2d 101 (Fla. 2d DCA 1992); Rosen, 534 So. 2d at 1186; Finn v. Prudential-Bache Securities, Inc., 523 So. 2d 617, 618 (Fla. 4th DCA); rev. denied, 531 So. 2d 1354, cert. denied, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 262 (1988). In ruling that it is not…
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Strominger v. AmSOUTH Bank, 991 So. 2d 1030 (Fla. 2d DCA 2008)…o arbitration was [*1034] waived.” This case involves only the third issue — whether AmSouth Bank waived its right to arbitrate. A party can waive its right to arbitrate by “active participation” in litigation. State Farm Fire & Cas. Co. v. Kaplan, 596 So. 2d 101 (Fla. 2d DCA 1992) (quoting Finn v. Prudential-Bache Sec., Inc., 523 So. 2d 617, 618, 619-20 (Fla. 4th DCA 1988)). Waiver by active participation does not require proof of prejudice; it merely requires activity that constitutes or implies a voluntar…
Authorities Cited
- Finn v. Prudential-Bache Sec., Inc., 523 So. 2d 617 (Fla. 4th DCA 1988)