JIMMIE LEE WHITFIELD, APPELLANT,
v.
CENTURY INSURANCE COMPANY OF NEW YORK, A FOREIGN CORPORATION, APPELLEE
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In this insurance dispute, the appellant sought court appointment of a third arbitrator to resolve an uninsured motorist claim and requested attorney's fees and costs under Florida Statute § 627.428. The trial court appointed the third arbitrator but dismissed the complaint with prejudice, and the appellate court held this was error because the court cannot simultaneously dismiss a complaint and grant relief under it.
The trial court committed error by dismissing the complaint while granting relief under it, as a court can only act when a complaint is before it. The order was affirmed as to the appointment of the third arbitrator but reversed as to the dismissal of the complaint, and the case was remanded for the trial court to determine whether bringing the matter to court was reasonably necessary to pursue the insurance claim and to assess attorney's fees and costs accordingly.
[1] A court cannot simultaneously dismiss a complaint and grant relief based upon that same complaint.
[2] A trial court's order appointing a third arbitrator is affirmed when the underlying complaint is dismissed, but the dismissal itself is reversed.
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Join FLexlaw to unlock all legal intelligence“It is apparent that the court cannot in the same order dismiss the complaint and then grant relief under the complaint.”
Establishes the fundamental principle that a court cannot both dismiss a complaint and grant relief under it in the same order.
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Join FLexlaw to unlock all legal intelligenceOn May 9, 1970, the appellant was involved in an automobile accident with an uninsured motorist. Under his insurance policy with Century Insurance Com…
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The appellant filed a complaint on October 26, 1972 which alleged that he was involved in an automobile accident on May 9, 1970 with an uninsured motorist, and that in accordance with his contract of insur-*570anee the arbitration provision of his policy-had become activated. He further alleged that he and the appellee had appointed their arbitrators, but that the arbitrators were unable to agree upon an impartial third party. The complaint requested a declaration of the appellant’s rights and asked the court to appoint an impartial third arbitrator. In addition, the complaint asked for attorney’s fees and costs. Attached to the complaint as exhibits were the policy of insurance involved, copies of letters appointing appellant’s arbitrator on November 19, 1971 and appellee’s arbitrator on November 23, 1971, and a letter from the appellant’s arbitrator dated October 18, 1972 stating that the two arbitrators had been unable to agree upon a third. The appellee responded to the complaint with a motion to dismiss and a motion to appoint a third arbitrator. After hearing, the trial court entered the order appealed which appointed the impartial third arbitrator but dismissed the complaint with prejudice and ordered that the “[pjlaintiff shall take nothing by this action”.
On this appeal, the sole question presented is whether or not the court erred in failing to grant the plaintiff’s motion for costs and attorney’s fees. The basis for granting the claimed attorney’s fees is Fla.Stat. § 627.428, F.S.A.
We hold that the court committed error in sustaining the motion to dismiss the complaint and in failing to consider the appellant’s application for costs and attorney’s fees. It is apparent that the court cannot in the same order dismiss the complaint and then grant relief under the complaint. It is true that the court stated that it was granting the appellee’s motion for the appointment of a third arbitrator, but the court can only act where a complaint is before the court. In this instance, if the complaint is dismissed there is nothing before the court. Cf. Keith v. State Farm Mutual Automobile Insurance Company, Fla.App.1970, 240 So.2d 202.
Therefore the order appealed is affirmed in part and reversed in part. The order is affirmed as to the appointment of the impartial third arbitrator, but is reversed as to the dismissal of the complaint, and the cause is remanded with directions to the trial court to consider whether the appellant’s action in bringing the matter of the failure of the arbitrators to agree to the attention of the court was reasonably necessary under the circumstances in order to pursue his claim arising under his insurance policy. If the court finds that the action was reasonably necessary, it shall assess reasonable attorney’s fees pursuant to Fla.Stat. § 627.428, F.S.A. In any event, the court is to award costs to the plaintiff.
Affirmed in part, reversed in part, and remanded.
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Leaf v. State Farm Mut. Auto. Ins. Co., 544 So. 2d 1049 (Fla. 4th DCA 1989)…ird 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. 5…
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Nigaglioni v. Century Ins. Co. OF NEW York, 281 So. 2d 570 (Fla. 3d DCA 1973)…he action was reasonably necessary, it shall assess reasonable attorney’s fees pursuant to F.S. § [*572] 627.428 F.S.A. In any event, the court is to award costs to the plaintiff. See Whitfield v. Century Insurance Company of New York, Fla.App.1973, 281 So. 2d 569 (opinion filed July 17, 1973). Reversed and remanded with directions.…
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Latin Am. Prop. & Cas. Ins. Co. v. Anibal Pastor, 561 So. 2d 1302 (Fla. 3d DCA 1990)…te 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 procedure to be followed by the arbitrators. We recognize that ordinarily a trial court do…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Keith v. State Farm Mut. Auto. Ins. Co., 240 So. 2d 202 (Fla. 3d DCA 1970)