Fladd v. Fortune Ins. Co.
| Decision Date | 10 August 1988 |
| Docket Number | No. 87-2222,87-2222 |
| Citation | 13 Fla. L. Weekly 1932,530 So.2d 388 |
| Parties | 13 Fla. L. Weekly 1932 Barbara J. Miller FLADD, Appellant, v. FORTUNE INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Arnold R. Ginsberg of Horton, Perse & Ginsberg and Associates & Bruce L. Scheiner, Miami, for appellant.
Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee.
On March 28, 1981, appellant was injured when a vehicle in which she was a passenger was involved in an automobile accident. Efren Buenrostro, the owner and operator of the vehicle, had an insurance policy on the vehicle with appellee.
On July 8, 1981, appellant presented appellee with a completed application for personal injury protection benefits (PIP). Appellant claimed she was an omnibus insured under Buenrostro's policy because she was a passenger in Buenrostro's automobile at the time of the accident, did not own an automobile with respect to which security was required under Florida law, and was not covered by any automobile insurance of her own.
On May 29, 1986, appellant filed a two-count complaint against appellee contending breach of contract for failure to pay PIP benefits to appellant for an injury sustained while appellant was a passenger in a vehicle insured by appellee and seeking a declaratory judgment that an $8,000.00 deductible in appellee's policy did not apply to appellant. Appellee filed a motion to dismiss appellant's complaint contending, among other points, that appellant's action was barred by the statute of limitations. The trial court dismissed appellant's complaint with prejudice holding that appellant's cause of action was barred by the five-year statute of limitations which began to run on the date of the accident alleged in the amended complaint. § 95.11(2)(b), Fla.Stat. (1981).
On appeal, appellant contends that the trial court erred in dismissing her complaint with prejudice because appellant timely filed her breach of contract action within five years of the accrual of the cause of action. Citing section 627.736(4)(b), Florida Statutes (1981), which provides: "Personal injury protection insurance benefits shall be overdue if not paid within thirty days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same ... ," appellant contends that an action to collect PIP benefits under a particular policy must be brought within five years of the contract breach, not within five years of the date of the accident. Appellant contends that the cause of action accrued and the statute of limitations began to run on August 9, 1981, the date upon which benefits under the policy became overdue. We disagree.
In State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982), the Florida Supreme Court held that a cause of action for an uninsured/underinsured motorist claim stems from the plaintiff's right of action against the tortfeasor and, thus, arises on the date of the accident. In Kilbreath, the appellant was injured in an automobile accident on June 11, 1972. He had four separate insurance policies with State Farm. On April 26, 1976, he requested arbitration of his claim. The request was denied on May 19, 1976. On May 16, 1980, appellant filed suit against State Farm seeking underinsured motorist benefits under the uninsured motorist coverage. The trial court dismissed appellant's action with prejudice holding that appellant's claim was barred by the statute of limitations.
The Fifth District Court of Appeal reversed the trial court and held that When an insurance policy requires arbitration of claims and another provision specifies that no action shall lie against the company unless there has been full compliance with all terms of the policy, arbitration or its waiver or denial by the company is a condition precedent to an action on the policy. See Hall v. Nationwide Mutual Insurance Co., 189 So.2d 224 (Fla. 4th DCA 1966); Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So.2d 911 (Fla. 3d DCA 1966). A statute of limitations on a contract action does not begin to run until an action can be brought on the contract, Briggs v. Fitzpatrick, 79 So.2d 848 (Fla.1955), and no action can be brought on a contract until all conditions precedent to recovery on the contract have occurred. Gilbert v. American Casualty Co. of Reading Pennsylvania, 219 So.2d 84 (Fla. 3d DCA), cert. denied, 225 So.2d 920 (Fla.1969). Therefore, the statute of limitations on a contract action does not begin to run until all conditions precedent to recovery under the contract have occurred. See Employers' Fire Insurance Co. v. Continental Insurance Co., 326 So.2d 177 (Fla.1976). Consequently, since an action on an insurance policy is a contract action, the statute of limitations on an action on the policy does not begin to run until arbitration has occurred or has been waived or denied by the insurance company.
Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So.2d 846, 847 (Fla. 5th DCA 1981).
Judge Sharp dissented from the majority's position. Citing Bocek v. Inter-Insurance Exchange of Chicago Motor Club, 175 Ind.App. 69, 369 N.E.2d 1093 (1977), she stated that the right of action against an insurance company for an uninsured/underinsured motorist claim stems from the plaintiff's right of action against the tortfeasor. Consequently, the statute of limitations begins to run on the date of the accident. She concluded that the majority's position "permits the five-year statute of limitations provision to be extended to a maximum of ten years at the will of the party against whom it is supposed to be running--an incongruous result." Id.
Agreeing with Judge Sharp's position, the Florida Supreme Court reversed the Fifth District Court of Appeal. The supreme court held:
The cause of action for an...
To continue reading
Request your trial
-
Green v. Selective Ins. Co. of America
...So.2d 632, 633 (Fla.1982); O'Neill v. Illinois Farmers Ins. Co., 381 N.W.2d 439, 441 (Minn.1986); see also Fladd v. Fortune Ins. Co., 530 So.2d 388, 390-91 (Fla.Dist.Ct.App.1988) (applying same rationale to claim for PIP benefits and concluding that cause of action arises at time of We disa......
-
Loewer v. New York Life Ins. Co.
...asserts that this date was the date of the insured's death. To support this proposition, the claimant cites to Fladd v. Fortune Insurance Company, 530 So.2d 388 (Fla.2d DCA 1988). In that case, the court held that when applied to an automobile passenger's action against the insurer for brea......
-
State Farm Mut. Auto. Ins. Co. v. Lee
...Insurance Co., 661 So.2d 1300 (Fla. 3d DCA 1995), which expressly and directly conflicts with the opinion in Fladd v. Fortune Insurance Co., 530 So.2d 388 (Fla. 2d DCA), review denied, 539 So.2d 475 (Fla.1988). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed b......
-
Levy v. Travelers Ins. Co.
...breach of the insurance contract. In opting for the date of accident as the critical date, appellees rely upon Fladd v. Fortune Insurance Company, 530 So.2d 388 (Fla.2d DCA 1988), wherein the Second District Court of Appeal held that the five-year statute of limitations applicable to an act......