MICHAEL KING, PETITIONER,
v.
THOMPSON & MCKINNON, AUCHINCLOSS KOHLMEYER, INC., A DELAWARE CORPORATION, RESPONDENT
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The court held that filing an answer to a cross-claim without demanding arbitration constitutes a waiver of the right to compel arbitration.
[1] A party waives its right to compel arbitration by filing an answer to a cross-claim without demanding arbitration.
[2] Filing an answer to a cross-claim constitutes a repudiation of an arbitration clause and an abandonment of the right to arbitration.
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Join FLexlaw to unlock all legal intelligencePetitioner filed a cross-claim against respondent, who answered and filed a reciprocal cross-claim. Respondent later moved to compel arbitration, whic…
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LETTS, Judge.
Petitioner seeks review of an order granting respondent’s motion to compel arbitration and stay proceedings. It is his position that the trial court erred in requiring submission of his cross-claim to arbitration because the respondent waived its rights to compel arbitration by filing an answer to the cross-claim. We agree. Cer-tiorari is granted and the order quashed.
According to the record, petitioner filed a cross-claim against respondent on December 16, 1975. This cross-claim was answered by respondent and a reciprocal cross-claim filed against petitioner on January 12, 1976. Subsequently, petitioner filed a notice to produce documents in the possession of respondent and submitted extensive interrogatories, both of which were objected to by respondent. On October 5, 1976, respondent filed a motion to compel arbitration and stay proceedings which was granted by the trial court.
Repudiation of an arbitration clause by a defendant, in the form of an answer to the complaint without demand for arbitration constitutes an abandonment of the right to arbitration and consent to submission of the controversy to the courts. Gettles v. Commercial Bank at Winter Park, 276 So. 2d 837 (Fla. 4 DCA 1973); Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla.1973).
In Ojus Industries, Inc. v. Mann, 221 So. 2d 780 (Fla. 3 DCA 1969), the court stated:
Waiver in this connection does not depend on timing of the motion to compel arbitration (where not unreasonably delayed), but rather on the prior taking of an inconsistent position by the party moving therefor. Thus, where a plaintiff, in disregard of his right to arbitration, files suit for determination of the controversy, he will be held to have waived his right to compel arbitration thereof. The same will apply to a defendant who by counterclaim submits the matter, which was to be arbitrated, to the court for determination. Id. at 782.
CERTIORARI GRANTED AND ORDER QUASHED.
ALDERMAN, C. J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (30 total)
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VIC Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980)…Levine and Associates Chartered v. Van Deree, 334 So. 2d 287 (Fla. 2d DCA 1976) and the Fourth District in Lumbermen’s Mutual Casualty Company v. Beaver, 355 So. 2d 441 (Fla. 4th DCA 1978) and King v. Thompson & McKinnon Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977). The respondents filed a complaint alleging fraud and deceit by petitioners, Vic Potamkin Chevrolet, Inc., Jim Smith and Walter Ritter, as its agents and employees, arising out of the purchase and sale of a 1979 Chevrolet Corvet…
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Lapidus v. Arlen Beach Condo. Ass'n, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981)…son Shipping Company, 280 So. 2d 678 (Fla.1973); Ojus Industries, Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969). Filing an answer without asserting the right for arbitration acts as waiver, King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977); as does initiating legal action without seeking arbitration, Seville Condominium v. Clearwater Development Corp., 340 So. 2d 1243 (Fla. 2d DCA 1976) and counterclaiming without raising the issue of arbitration, Mike Bradford & C…
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Marine Env't P'rs, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003)…o. 2d 1297 (Fla. 4th DCA 1997); Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So. 2d 1, 3 (Fla. 2d DCA 1992); Riverfront Props., Ltd. v. Factor, 460 So. 2d 948, 952 (Fla. 2d DCA 1984); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So. 2d 1235 (Fla. 4th DCA 1977). The defendants’ answer in this case did not raise the right to arbitrate. It thus worked a waiver of that right. There is a split among Florida courts as to whether prejudice must also be shown to establish a waiver of the righ…
Previewing 3 of 30 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973)
- Ojus Indus., Inc. v. Mann, 221 So. 2d 780 (Fla. 3d DCA 1969)
- Gettles v. Commercial Bank AT Winter Park, 276 So. 2d 837 (Fla. 4th DCA 1973)