Hall v. Nationwide Mut. Ins. Co.

• Decision Date: 18 July 1966
• Docket Number: No. 123,123
• Citation: 189 So.2d 224
• Parties: Sandra Lynn HALL, a minor, by her father, natural guardian and next friend, Darwin L. Hall, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 224

189 So.2d 224

Sandra Lynn HALL, a minor, by her father, natural guardian and next friend, Darwin L. Hall, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, an Ohio Corporation, Appellee.

No. 123.

District Court of Appeal of Florida, Fourth District.

July 18, 1966.

Rehearing Denied Sept. 1, 1966.

Clarence T. Johnson, Jr., of Miller, Cone, Owen, Wagner & Nugent, Rockledge, for appellant.

O. Douglas Wolfe, Jr., of Gurney, Gurney & Handley, Orlando, for appellee.

ANDREWS, Judge.

Plaintiff, Sandra Lynn Hall, a minor, by her father, natural guardian and next friend, Darwin L. Hall, appeals an order requiring arbitration of a claim under the uninsured motorist provisions of a public liability policy against the insurer, Nationwide Mutual Insurance Company.

Sandra Lynn Hall, a minor daughter of the insured, was injured while a passenger in an automobile owned by her father in an accident with an uninsured vehicle. The policy contains the standard uninsured motorist clause. In accordance with the provisions of the policy plaintiff demanded arbitration under the rules of the American Arbitration Association and submitted a filing fee of $50.00 in accordance with said rules for arbitration under the provisions of the Special Accident Claims Tribunal.

The American Arbitration Association advised that Nationwide was not a member of the Special Accident Claims Tribunal and that the matter would have to be administered under the Commercial Arbitration Rules which require a filing fee of $500.00. The American Arbitration Association invited Nationwide to become a member of its special tribunal which it declined to do. Later the American Arbitration Association agreed to reduce the filing fee to $250.00 and to defer the payment of $200.00 on account of the fee until the termination of the case.

Plaintiff took the position that this arrangement was unreasonable and that plaintiff could not afford to accept even a contingent liability for said additional filing fee and therefore brought this suit in the circuit court. Nationwide answered and moved for compulsory arbitration. The trial court entered its order granting the defendant's motion to compel arbitration.

We find no merit in plaintiff's argument that the agreement to arbitrate under the rules of the American Arbitration Association constituted a stipulation that the Florida Arbitration Law shall not apply to the arbitration. The parties have not stipulated that the Florida Arbitration Code, Ch. 57, Florida Statutes, F.S.A., shall not apply but merely agreed upon a method to be followed subject to the arbitration law as provided in F.S. § 57.13, F.S.A. ¹

The court is presented with the question of whether the defendant by its actions waived its right to arbitrate under the policy. It is the duty of both parties to an insurance contract which makes arbitration of the amount of loss a condition precedent to liability under the policy to make a good faith effort to carry out the agreement. There may be a waiver of an agreement to arbitrate even though it is a condition precedent to legal action. Mike Bradford & Co. v. Gulf States Steel Co., Fla.App.1966, 184 So.2d 911. The waiver of the right to arbitrate may be expressed in terms or be implied from the acts, omissions and conduct of a party. Hill v. Mercury Record Corporation, 1960, 26 Ill.App.2d 350, 168 N.E.2d 461; 5 Am.Jur.2d, Arbitration and Award § 51; 94 A.L.R. 499....