American Southern Ins. Co. v. Daniel

• Decision Date: 18 May 1967
• Docket Number: No. I--43,I--43
• Citation: 198 So.2d 850
• Parties: AMERICAN SOUTHERN INSURANCE COMPANY, Appellant, v. John I. DANIEL, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 850

198 So.2d 850

AMERICAN SOUTHERN INSURANCE COMPANY, Appellant, v. John I. DANIEL, Jr., Appellee.

No. I--43.

District Court of Appeal of Florida, First District.

May 18, 1967.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

Fredric G. Levin, Pensacola, for appellee.

JOHNSON, Judge.

This is an appeal from a final judgment awarding damages and attorney's fee to the insured, appellee herein, in an action at law under the uninsured motorist provision of an automobile liability policy.

The policy is question contained this provision:

'ARBITRATION: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under the Uninsured Motorist Coverage, then upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this paragraph.'

'EXCLUSIONS: This policy does not apply: Under the Medical Expense Coverage,

'(m) to bodily injuries sustained by the named insured or a relative while occupying an automobile owned by or furnished or available for the regular use of either the named insured or any resident of the same household, other than an automobile which qualifies as an 'owned autobobile' as defined herein.'

After the accident on May 6, 1965, counsel for the insured wrote the insurer a letter on September 10, 1965, in which it was pointed out that the insured had discussed the matter of coverage with the insurer's agent, and that he wanted to know whether or not coverage was available under said policy. In answer to this letter, the insurer denied coverage under the policy. Thereafter the appellee insured, filed his complaint in the Court of Record of Escambia County, Florida, for a declaratory decree establishing coverage and that after coverage had been decreed, that a jury be empanelled to try the issues of liability and damages and to award attorney's fee.

To this complaint, the appellant filed its answer admitting coverage, and in the same instrument made a motion to compel arbitration pursuant to the provisions of section 57.12, Florida Statutes, F.S.A. This motion was denied and the case proceeded to trial, resulting in verdict and judgment in favor of the appellee. Attorney's fee was agreed upon and awarded by the court. It is from this judgment this appeal is made.

Appellant's contention on appeal, as raised in point one of its brief, is whether or not the letter of the insurance company denying coverage waived the company's right to have the issue of damages determined by arbitration.

From a reading of the letter of the appellee to the appellant, it appears that the appellee requested the answer to one question only, namely, Did the insurance company recognize coverage or not? and if coverage was admitted, a demand would be made. The reply to said letter, after agiving a brief reason for the insurance company's conclusion, stated that under the circumstances so stated, the company had no recourse except to deny coverage. Thereafter this declaratory action was filed, as pointed out, supra.

The appellant, inter alia, urges that the case sub judice, comes within the interpretation and application of the law as stated by this court in Netherlands Insurance Company v. Moore, ¹ wherein suit at law was filed by the widow of the deceased insured under the uninsured motorists provision of an automobile policy. This provision was the usual standard provision as appears in most such policies and practically identical with the instant case. The insurance company as soon as served with notice of the suit, filed a motion to require arbitration. The motion was denied and appeal entered to this Court thereon as authorized by F.S. § 57.29(1)(a), F.S.A. This court distinguished The Netherlands Insurance Company case from Cruger v. Allstate Insurance Company ² and thereby tacitly agreed with the holding in the Cruger case, and said that the agreement to arbitrate was clear as to liability and damages, and that while in no event could the issue of coverage under the policy be considered in the arbitration proceedings, the attempt of the plaintiff to inject that issue into the case as a means of depriving appellant of the right...