ANGEL L. NIGAGLIONI, APPELLANT,
v.
CENTURY INSURANCE COMPANY OF NEW YORK, A FOREIGN CORPORATION, APPELLEE
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Plaintiff-appellant sought appointment of a third impartial arbitrator in an uninsured motorist insurance dispute after the two initially appointed arbitrators could not agree. The trial court dismissed the complaint with prejudice, but the appellate court reversed, holding that the complaint should have been treated as a motion under Florida Statute § 682.17 and that the court failed to consider the appellant's request for attorney's fees and costs.
The appellate court held that the complaint was sufficient to meet the requirements of F.S. § 682.17 and should have been considered as a motion under that section. The court also held that the trial court erred in failing to consider the appellant's application for costs and attorney's fees. The complaint was improperly dismissed and should have been heard on its merits.
[1] A complaint seeking the appointment of a third impartial arbitrator under an uninsured motorist provision should be considered a motion under F.S. …
[2] A trial court errs by dismissing a complaint that seeks the appointment of a third impartial arbitrator.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although the complaint in the case sub judice prayed for a declaration of rights and an award of attorney's fees and costs in addition to the appointment of a third impartial arbitrator, we find that same was sufficient to meet the requirements of F.S. § 682.17 F.S.A., and should have been considered as a motion under said section.”
Establishes that the complaint met statutory requirements and should have been treated as a motion under F.S. § 682.17, not dismissed outright.
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Join FLexlaw to unlock all legal intelligenceOn May 18, 1971, plaintiff Nigaglioni was injured in an automobile accident caused by a hit-and-run driver. He notified his insurance carrier, Century…
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Plaintiff-appellant appeals an order dismissing his complaint with prejudice.
On May 18, 1971 the plaintiff was involved in an automobile accident with a hit-and-run driver. He notified his automobile liability insurance carrier, the defendant Century Insurance Company of New York, and thereby activated the uninsured motorist provision of the contract. In accordance therewith, the plaintiff appointed an arbitrator and the defendant appointed an arbitrator. However, the two arbitrators were unable to agree upon the selection of a third impartial arbitrator. Subsequently, plaintiff-appellant filed a complaint requesting a declaration of the appellant’s rights, the appointment of an impartial third arbitrator, and an award of attorney’s fees and costs. The defendant-appellee filed a motion to appoint an arbitrator and to dismiss the complaint, and subsequently the trial judge dismissed the complaint with prejudice.
Appellant contends that the trial court committed error in dismissing the complaint which sought to have a third impartial arbitrator appointed. We are in agreement.
Although the complaint in the case sub judice prayed for a declaration of rights and an award of attorney’s fees and costs in addition to the appointment of a third impartial arbitrator, we find that same was sufficient to meet the requirements of F.S. § 682.17 F.S.A., and should have been considered as a motion under said section. See Keith v. State Farm Mutual Automobile Insurance Company, Fla.App.1970, 240 So.2d 202.
In addition, we hold that the court below committed error in failing to consider the appellant’s application for costs and attorney’s fees.
Therefore, the order under review be and the same is hereby reversed with directions to grant the plaintiff a hearing on his complaint, considering it to be a motion filed pursuant to F.S. § 682.17 F.S.A., and to further consider whether the appellant’s action in bringing the matter of the failure of 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 F.S. § *572627.428 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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ZAC Smith & Co., Inc. v. Moonspinner Condo. Ass'n, Inc., 534 So. 2d 739 (Fla. 1st DCA 1988)…08). . Glen Johnson, Inc. involved a claim for attorney fees sought in an action on a surety bond. . See Carter v. State Farm Mutual Automobile Insurance Company, 224 So. 2d 802 (Fla. 1st DCA 1969); Nigaglioni v. Century Insurance Co. of New York, 281 So. 2d 570 (Fla. 3d DCA 1973). . U.S. Fidelity & Guaranty Company v. State Farm Mutual Automobile Insurance Company, 369 So. 2d 410 (Fla. 3d DCA 1979); State Farm Mutual Automobile Insurance Company v. Anderson, 332 So. 2d 623 (Fla. 4th DCA 1976), cert. den.,…
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Leaf v. State Farm Mut. Auto. Ins. Co., 544 So. 2d 1049 (Fla. 4th DCA 1989)…4th DCA 1976), cert. denied, 345 So. 2d 428 (Fla.1977), did not specifically adopt the Third 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…
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Fitzgerald & Co., Inc. v. Roberts Elec. Contractors, Inc., 533 So. 2d 789 (Fla. 1st DCA 1988)…a subcontractor was established pursuant to arbitration rather than through a judicial determination. See Carter v. State Farm Mutual Automobile Insurance Company, 224 So. 2d 802 (Fla. 1st DCA 1969); Nigaglioni v. Century Insurance Co. of New York, 281 So. 2d 570 (Fla. 3d DCA 1973). In summary, in the instant case payment was made to the subcontractor Roberts at the eleventh hour, and only after Roberts incurred attorney’s fees and costs in filing suit. Roberts received a favorable decision from the arbitra…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitfield v. Century Ins. Co. OF NEW York, 281 So. 2d 569 (Fla. 3d DCA 1973)
- Keith v. State Farm Mut. Auto. Ins. Co., 240 So. 2d 202 (Fla. 3d DCA 1970)