Mendlein v. U.S. Fidelity & Guaranty Co.

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Mendlein v. U.S. Fidelity & Guaranty Co., 277 So.2d 538 (Fla. App. 1973)
• Decision Date: 15 May 1973
• Docket Number: No. 72--1374,72--1374
• Parties: Robert MENDLEIN and Eleanor Mendlein, Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.

Page 538

277 So.2d 538

Robert MENDLEIN and Eleanor Mendlein, Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.

No. 72--1374.

District Court of Appeal of Florida, Third District.

May 15, 1973.

Fuller, Brumer, Moss, Cohen & Rodgers, and Burt E. Redlus, Miami, for appellants.

Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, and Stephen A. Stieglitz, Miami, for appellee.

Before PEARSON, CHARLES A. CARROLL and HAVERFIELD, JJ.

PER CURIAM.

Defendant-appellants seek review of a final summary judgment in favor of plaintiff-appellee.

On March 16, 1967, as a result of an automobile-pedestrian accident with one Mary Delancy, Eleanor Mendlein suffered personal injuries and subsequently filed suit against Mrs. Delancy. After repeated attempts to serve Mrs. Delancy, it was determined finally that she was no longer within the court's jurisdiction and was uninsured at the time of the accident. Thereafter, on May 10, 1972 Mrs. Mendlein and her husband filed a demand for arbitration ¹ with their insurance company, U.S. Fidelity and Guaranty Company, the appellee. Fidelity then filed an action for a declaratory decree seeking to determine the status of its uninsured motorist coverage under the appellants' (Mr. and Mrs. Mendlein) insurance policy. Plaintiff-appellee, Fidelity, contended that the 5 year statute of limitation had run, thus barring the claim under the uninsured motorist coverage and moved for summary judgment. The lower court granted the motion and this appeal ensued.

Appellants contend that the lower court erred in finding as a matter of law that the cause of action for an uninsured motorist claim arises on the date of an accident with an uninsured motorist, rather than on the date the conditions precedent contained in the insuring agreement are complied with.

Having found no Florida case exactly on point, we looked to other jurisdictions and discovered that the New York court in the case of In re Motor Vehicle Accident Indemnification Corporation, 40 Misc.2d 970, 244 N.Y.S.2d 154 (1963) was confronted with the same problem. The court held that New York's six year statute of limitation relating to contract actions was applicable in determining the time for serving a demand for arbitration and the tortious act of the third party give rise to the rights under the contract. In other words, the statute of limitation begins to run as of the date of the accident and a demand for arbitration, absent in the insurance contract a time limitation for instituting arbitration proceedings, must be made within the applicable statutory period. See also Application of Travelers Indemnity Company, 226 N.Y.S.2d 16 (Sup.1962); Schleif v. Hardware Dealer's Mutual Fire Insurance, 218 Tenn. 489, 404 S.W.2d 490 (1966); Price v. State Farm Mutual Automobile Company, 486 S.W.2d 721 (Tenn.1972). We adopt this view.

Turning to the case sub judice, the 5 year statute of limitation, F.S. § 95.11(3) F.S.A., which all parties agreed upon, is the applicable Statute. See Hartford Accident & Indemnity Company v. Mason, Fla.App.1968, 210 So.2d 474. Appellant, Mrs. Mendlein was injured on March 16, 1967 and as of that date her rights arose under the contract. It follows then that appellants' ...