UNITED STATES FIDELITY AND GUARANTY COMPANY, A MARYLAND CORPORATION, APPELLANT,
v.
CORINE WILLIAMS, JOINED BY HER HUSBAND, ZELL WILLIAMS, APPELLEES
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An insurance carrier appeals a jury verdict finding it liable under an uninsured motorist policy provision. The appellate court affirmed the judgment, holding that the trial court properly allowed the jury to determine liability despite the arbitration clause and properly awarded attorney's fees.
The court affirmed the judgment on all grounds. The trial court properly allowed the jury to determine liability because the question of coverage was put in issue by the defendant's answer. The arbitration defense was properly stricken because the carrier had not actually requested arbitration. Attorney's fees were properly awarded under Florida statute because the carrier had originally denied both coverage and liability.
“There was no error in the trial court proceeding to permit the jury to determine the issue of liability and damages, even though the carrier conceded "coverage" at the time of the pre-trial conference.”
Establishes that the jury properly determined liability despite the concession of coverage, because coverage was put in issue by the defendant's answer.
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Join FLexlaw to unlock all legal intelligenceUnited States Fidelity and Guaranty Company issued an insurance policy to Corine Williams that included uninsured motorist coverage. The insurer initi…
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The appellant insurance carrier, defendant in the trial court, seeks review of an adverse final judgment, subsequent to a jury verdict, finding it liable to its policy holder under the provisions relative to uninsured motorists. The appellant has preserved for review the propriety of the trial court entertaining the action, without the submission of the matter to arbitration in accordance with the terms of the policy, and the awarding of attorney’s fees.
We find no error in the action of the trial court and hereby affirm the final judgment. This is so because the question of “coverage” was put in issue by the answer to the complaint. There was no error in the trial court proceeding to permit the jury to determine the issue of liability and damages, even though the carrier conceded “coverage” at the time of the pre-trial conference. See: Cruger v. Allstate Insurance Company, Fla.App.1964, 162 So.2d 690; Zeagler v. Commercial Union Insurance Co. of N. Y., Fla.App.1964, 166 So.2d 616.
No error is found in the trial court’s striking the affirmative defense of failure to submit to arbitration when the carrier had not, in fact, requested arbitration. The appellant relies heavily on the opinion found in Bohlman v. Allstate Insurance Co., Fla. App.1965, 171 So.2d 23. It is apparent that the cited case is not applicable to the facts here under consideration. In the Bohlman v. Allstate Insurance Co. case, supra, the parties actually submitted to arbitration and, subsequent to the award, one of the parties attempted to void same contrary to the provisions of Ch. 57, Fla.Stat., F.S.A. The question of the validity of Ch. 57, Fla.Stat. was not before the court in the case of Bohlman v. Allstate Insurance Co., supra, and has not been preserved in this case for review, and this opinion and decision is not to be considered as passing upon the validity of Ch. 57, Fla.Stat., F.S.A.
No error is found in the awarding of attorney’s fees. The carrier originally denied both coverage and liability, and it was within the province of the trial court to permit an award of fees pursuant to statute. See: § 627.0127, Fla.Stat., F.S.A.
Therefore, for the reasons stated above, the final judgment here under review is hereby affirmed.
Affirmed.
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Am. S. Ins. Co. v. Daniel, 198 So. 2d 850 (Fla. 1st DCA 1967)…and CARROLL, DONALD K., J., concur. . Netherlands Insurance Company v. Moore, 190 So. 2d 191 (Fla.App.1st, 1966). . Cruger v. Allstate Insurance Company, 162 So. 2d 690 (Fla.App.3d, 1964). . United States Fidelity & Guaranty Company v. Williams, 177 So. 2d 47 (Fla.App. 3d 1965).…
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Damsel v. State Farm Mut. Auto. Ins. Co., 186 So. 2d 825 (Fla. 2d DCA 1966)…expressed by the trial judge, because we feel the issue framed by the-complaint was basically one of “coverage”' and therefore not encompassed by the arbitration clause. E. g., United States Fidelity and Guaranty Company v. Williams, Fla.. App.1965, 177 So. 2d 47; Zeagler v. Commercial Union Insurance Co., Fla.App.1964, 166 So. 2d 616; and Cruger v. Allstate Insurance Co., Fla.App.1964, 162 So. 2d 690. Nevertheless, there does exist a theory un [*827] •der which we can affirm, and it is the settled practice…
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Travelers Indem. Co. v. Pender, 264 So. 2d 878 (Fla. 1st DCA 1972)…Neither party has asked for arbitration”. Under these facts the insurance company is not in a position to now assert any right of arbitration or nonliability for attorney’s fees for plaintiff. United States Fidelity and Guaranty Company v. Williams, 177 So. 2d 47 (3 Fla.App.1965). The other points asserted by appellant have been carefully considered and found to be without merit. The judgment appealed is affirmed. RAWLS, Acting C. J., and JOHNSON and WIGGINTON, JJ., concur.…
Authorities Cited
- Cruger v. Allstate Ins. Co., 162 So. 2d 690 (Fla. 3d DCA 1964)
- Zeagler v. Commercial Union Ins. Co. OF NEW York, 166 So. 2d 616 (Fla. 3d DCA 1964)
- Bohlmann v. Allstate Ins. Co., 171 So. 2d 23 (Fla. 2d DCA 1965)