SOUTHEASTERN TITLE AND INSURANCE COMPANY, APPELLANT,
v.
PATRICIA ANN CURTIS, A MINOR, BY HER MOTHER AND NEXT FRIEND, ESTHER BROWN, AND ESTHER BROWN, INDIVIDUALLY, APPELLEES
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An insurance company appealed the denial of its motion to dismiss a complaint arising from an uninsured motorist insurance policy containing an arbitration clause. The court held it lacked appellate jurisdiction because the lower court order was an interlocutory order denying a motion to dismiss, not an order denying an application to compel arbitration under the Florida Arbitration Code, and therefore affirmed that such orders are generally not appealable.
The court held that the order appealed was not an order denying an application to compel arbitration under § 57.29(1)(a), and therefore the court lacked jurisdiction to hear an appeal from this interlocutory order. The defendant had not made a proper application to compel arbitration as required by statute; instead, it sought dismissal through a motion to dismiss. The arbitration defense should have been raised in the answer rather than through a motion to dismiss.
“There is nothing in this record to indicate that the appellant-insurance company has made an application to the court for an order directing the parties to proceed with arbitration in accordance with the contract. If the defendant wishes to arbitrate, it should initiate action in this direction.”
Establishes that the defendant failed to follow the proper statutory procedure for compelling arbitration and must use the correct mechanism rather than a motion to dismiss.
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a complaint at law on an insurance policy with uninsured motorist coverage that included an arbitration provision. The insurance comp…
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We are presented with an appeal from an order denying a motion to dismiss a complaint at law. The appellant apparently recognizes that there is no provision for appeal from interlocutory orders at law except those relating to venue and jurisdiction over the person (Rule 4.2, Florida Appellate Rules, 31 F.S.A.), but urges that the provisions of § 57.29(1) (a) permit an appeal in this instance. Chapter 57 of the Florida Statutes (the Florida Arbitration Code), F.S.A. establishes the right of, and procedure for, arbitration and authorizes appeals from certain orders not otherwise appeal-*856able.1 See State ex rel. Gaines Construction Co. v. Tillman Pearson, Fla.1963, 154 So.2d 833.
The plaintiffs in the instant case filed a complaint at law upon a policy of insurance containing protection against an uninsured motorist. The portion of the policy providing this coverage contained a provision for arbitration. The policy was made an exhibit of the complaint.
The defendant-insurance company made its motion to dismiss the complaint upon the sole ground that “The contract attached to plaintiffs original complaint provides that all claims brought for damages under Part IV, Protection Against Uninsured Motorists, shall be settled by arbitration in accordance with the rules of the American Arbitration Association”. The motion concluded with the request that the court dismiss the amended complaint and require the plaintiff to exhaust her remedies in arbitration. It would appear that the defendant construed the order denying the motion to dismiss as an order denying an application to compel arbitration under § 57.12 of the Florida Statutes,, and this appeal followed.
We think that the order appealed is not an order denying an application to compel arbitration; and that since it is not, this Court lacks jurisdiction to consider the appeal from an interlocutory order at common law. There is nothing in this record to indicate that the appellant-insurance company has made an application to the court for an order directing the parties to proceed with arbitration in accordance with the contract. If the defendant wishes to arbitrate, it should initiate action in this direction.
The complaint at law in this case is such that it states a cause of action unless the plaintiff is barred from prosecuting it because of the defense that arbitration is a prerequisite to an action on the contract. If this be true, the defense is one which should be presented in the answer. [See Florida Rule of Civil Procedure 1.11(b), 30 F.S.A.] Fletcher v. Williams, Fla.App. 1963, 153 So.2d 759.
Accordingly, the appeal is dismissed.
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SUN Ins. Off., Ltd. v. Phillips, 230 So. 2d 17 (Fla. 2d DCA 1970)…F.S.A. The order denying the “motion to dismiss and to compel arbitration” is appealable under Section 682.20 in spite of coupling with the motion to compel arbitration a motion to dismiss. Southeastern Title & Insurance Co. v. Curtis, Fla.App.1963, 155 So. 2d 855, apparently involved a motion less artfully drawn. We express no opinion on the wisdom of that decision. We do not deal here with a case in which coverage is denied, as in Cruger v. Allstate Insurance Co., Fla.App.1964, 162 So. 2d 690, and American…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fletcher v. Williams, 153 So. 2d 759 (Fla. 1st DCA 1963)
- State of Fla. ex rel. Gaines Constr. Co. v. Tillman Pearson, 154 So. 2d 833 (Fla. 1963)