JOHN HENRY POLLOCK, AS ADMINISTRATOR OF THE ESTATE OF JOSEPH DANIELS, APPELLANT,
v.
RESERVE INSURANCE COMPANY, AN ILLINOIS CORPORATION, ET AL., APPELLEES
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The court held that the insurance company's denial of coverage constituted a waiver of its right to compel arbitration.
[1] An insurance company's denial of coverage can constitute a waiver of its right to compel arbitration under an insurance policy.
[2] A trial court errs in dismissing a complaint with prejudice when it compels arbitration; the proper procedure is to stay the action.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued an uninsured motorist and their own insurance carrier under the uninsured motorist provisions of their policy after the decedent's deat…
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This is an appeal by plaintiff from an order compelling arbitration and dismissing the amended complaint, without prejudice. The suit was for the recovery of damages for the wrongful death of plaintiff’s decedent brought against an uninsured motorist and plaintiff’s insurance carrier under the uninsured motorist provisions of plaintiff’s policy. Plaintiff alleged that demand was made upon the defendant insurance company to determine and pay the damages resulting from the negligence of the uninsured motorist and that the company had refused.
The related case dealing with the criminal prosecution of one of the defendants here was before this court in McKissack v. State, Fla.App.1971, 243 So.2d 14.
The defendant insurance company moved to dismiss, or to compel arbitration pursuant to a provision of the insurance policy. The court ordered arbitration and also dismissed the complaint, without prejudice. Plaintiff petitioned for rehearing and it was denied. It is from these orders that plaintiff has appealed.
Appellant contends that the trial court erred in the entry of the orders appealed because it was made to appear in the complaint that the defendant insurance company had denied coverage, thus waiving its right to arbitrate.
Appellee argues that the insurance company’s denial of coverage i;was not before the trial court since it was not sufficiently alleged. We can not agree with this contention.
*329We find that it was made to appear in the trial that there had been a denial of coverage by the insurance company which was sufficient to waive its right to arbitration.1
In American Southern Insurance Company v. Daniel, Fla.App.1967, 198 So.2d 850, at 853, the court said:
“ . . . [I]n this case, the appellant denied coverage by letter and the appel-lee was thereby forced to resort to court action .... it would appear to us that the letter of denial of coverage was sufficient to constitute a waiver of the insurance company’s right to arbitration,
Since we must reverse the orders appealed on the grounds stated above, we shall not discuss the other grounds presented by appellant for reversal. Namely, where the court compels arbitration the court action should be stayed and not dismissed, and that after suit has been filed an agreement to arbitrate cannot oust the court’s jurisdiction.
Reversed and remanded for further proceedings.
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First Am. Title Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 695 So. 2d 475 (Fla. 3d DCA 1997)…h DCA 1986), rev. denied, 508 So. 2d 13 (Fla.1987); Steil v. Florida Physicians’ Ins. Reciprocal, 448 So. 2d 589 (Fla. 2d DCA 1984); Infante, Etc. v. Preferred Risk Mutual Ins. Co., 364 So. 2d 874 (Fla. 3d DCA 1978); and Pollock v. Reserve Ins. Co., 258 So. 2d 328 (Fla. 3d DCA 1972), the appellants contend that they were relieved of their obligation of cooperation under the policy provisions when National initially denied coverage for the three claims. We disagree. We note initially under Florida law that an…
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Paradise Plaza Condo. Ass'n, Inc. v. The Reinsurance Corp. of N.Y., 685 So. 2d 937 (Fla. 3d DCA 1996)…dale also relics on New Amsterdam Casualty Co. v. I.II. Blackshear, Inc., 116 Fla. 289, 156 So. 695 (1934), for the reverse proposition that a company which has denied coverage is not then entitled to appraisal. See also Pollock v. Reserve Ins. Co., 258 So. 2d 328 (Fla. 3d DCA 1972); American Southern Ins. Co. v. Daniel, 198 So. 2d 850 (Fla. 1st DCA 1967). Not only is this issue entirely different from the one before us, New Amsterdam is decisively distinguishable because, unlike Hanover and this case, it did…
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Reserve Ins. Co. v. Pollock, 270 So. 2d 469 (Fla. 3d DCA 1972)…e court below then ordered arbitration and a dismissal of the complaint without prejudice. Plaintiff’s petition for rehearing was denied and he took an appeal to this court. The subsequent opinion, Pollock v. Reserve Insurance Company, Fla.App.1972, 258 So. 2d 328, reversed the lower court and remanded the case for further proceedings on the basis that the insurance company waived its right to arbitration. Following compliance by the lower court with that opinion, plaintiff moved for a partial summary judgmen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. S. Ins. Co. v. Daniel, 198 So. 2d 850 (Fla. 1st DCA 1967)
- McKISSACK v. State, 243 So. 2d 14 (Fla. 3d DCA 1971)