Government Employees Ins. Co. v. Mirth
| Decision Date | 04 May 1976 |
| Docket Number | No. 75--790,75--790 |
| Citation | 333 So.2d 545 |
| Parties | GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Sheila MIRTH, Appellee. |
| Court | Florida District Court of Appeals |
Bradford, William, McKay, Kimbrell Hamann & Jennings and Bruce Stanley, Miami, for appellant.
Rossman & Baumberger, Miami, for appellee.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
This is an appeal by the plaintiff below from an adverse final judgment entered upon granting the defendant's motion for judgment on the pleadings, holding the plaintiff was not entitled to stay an arbitration, and ordering that the arbitration should proceed. The complaint filed by the appellant Government Employees Insurance Company, herein referred to as Geico, against Sheila Mirth, disclosed the facts set out below.
An automobile owned and driven by Gwendolyn Dixon, in which the defendant Sheila Mirth was a passenger, was involved in a collision with an automobile owned and driven by Annie J. Purcell. The accident was alleged to have been caused by negligence of Purcell.
The purcell automobile was insured under a policy issued by Gateway Insurance Company, herein referred to as Gateway. The Dixon automobile was insured under a policy issued by Geico, which included uninsured motorist coverage, with a provision for claims under that coverage to be submitted to arbitration. By the Geico policy's provisions relating to uninsured motorist coverage, a tort-feasor's insured automobile is an uninsured motor-vehicle if the insurer thereof becomes insolvent within one year after the date of the accident. 1 Mirth, claiming damages for personal injuries, was proceeding for arbitration under uninsured motorist coverage of Geico.
The complaint alleged that Gateway, the insurer of the Purcell automobile, was declared insolvent by a court in Pennsylvania on or about August 21, 1974 (approximately two years after the date of the accident, which occurred on September 19, 1972). Based on the theory that as a consequence thereof the Purcell automobile was not an uninsured motor vehicle, and that therefore there was no contract provision for arbitration of Mirth's claim for damages for personal injuries against (insured) Purcell, the plaintiff sought a temporary and permanent injunction to stay the arbitration, as authorized and provided for by § 682.03(4) Fla.Stat., F.S.A.
Additionally, the plaintiff alleged the action was one for declaratory judgment to determine the rights of the parties, and prayed therefor.
The defendant Mirth filed a motion to dismiss the complaint, and an answer in which she denied the allegation that Gateway had been declared insolvent on August 21, 1974. The answer made no averment as to whether or when Gateway became insolvent. The defendant also moved for judgment on the pleadings.
Upon hearing the defendant's motions, the court found there was no doubt as to the meaning of the insurance contract or as to the interpretation of the contract and decided the cause on the merits, by granting defendant's motion for judgment on the pleadings ( the motion to dismiss was moot), entering final judgment in favor of the defendant, and holding the plaintiff was not entitled to a stay and that the arbitration should proceed.
On this appeal therefrom by the plaintiff, it argues the court erred by granting judgment on the pleadings in favor of the defendant, holding plaintiff was not entitled to stay the arbitration, in face of the untried issue on which the right to stay the arbitration hinged.
The appellee argues that the judgment should be affirmed on the ground that an action for declaratory judgment will not lie for the 'determination of purely factual issues raising under a contract of insurance which is clear and unambiguous', citing Travelers Indemnity Co. v. Johnson, Fla.1969, 201 So.2d 705 (); Columbia Casualty Company v. Zimmerman, Fla.1952, 62 So.2d 338 (); Prudence Mutual Casualty Co. v. Humphreys, Fla.App.1969, 220 So.2d 381 (...
To continue reading
Request your trial
-
Paradise Plaza Condominium Ass'n, Inc. v. Reinsurance Corp. of New York
...Co. v. Drake, 396 So.2d 836 (Fla. 2d DCA 1981); Travelers Ins. Co. v. Lee, 358 So.2d 88 (Fla. 3d DCA 1978); Government Employees Ins. Co. v. Mirth, 333 So.2d 545 (Fla. 3d DCA 1976); Hayston v. Allstate Ins. Co., 290 So.2d 67 (Fla. 3d DCA 1974); American Fidelity Fire Ins. Co. v. Richardson,......
-
State Farm Fire and Cas. Co. v. Licea
...is judicial matter to be determined by court notwithstanding insurance policy provisions pertaining to arbitration); G.E.I. Co. v. Mirth, 333 So.2d 545 (Fla.3d DCA 1976) (under liability indemnity policy issues relating to merits of claim are triable at arbitration, but issue bearing on cov......
-
Langston v. Allstate Ins. Co.
...opinion on the question, nor should they have done so under Florida law, because that State has held in Government Employees Insurance Co. v. Mirth, 333 So.2d 545, 547 (Fla.3d DCA 1976) "Under a liability indemnity insurance policy providing uninsured motorists coverage, issues relating to ......
-
Government Employees Ins. Co. v. Burak
...Life Ins. Co., 277 So.2d 839, 842 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 204 (Fla.1974); compare Government Employees Ins. Co. v. Mirth, 333 So.2d 545 (Fla. 3d DCA 1976). The judgment under review, which embodies this conclusion, 2 is Affirmed. 1 This subsection has been renumbered as ......