Netherlands Ins. Co. v. Moore

• Decision Date: 22 September 1966
• Docket Number: No. G--111,G--111
• Citation: 190 So.2d 191,24 A.L.R.3d 1316
• Parties: The NETHERLANDS INSURANCE COMPANY, Appellant, v. Elsie E. MOORE, Appellee.
• Court: Florida District Court of Appeals

Page 191

190 So.2d 191

24 A.L.R.3d 1316

The NETHERLANDS INSURANCE COMPANY, Appellant, v. Elsie E. MOORE, Appellee.

No. G--111.

District Court of Appeal of Florida, First District.

Sept. 22, 1966.

Larry G. Smith, of Isler & Welch, Panama City, for appellant.

Davenport, Johnston, Harris & Urquhart, Panama City, and Truett & Watkins, Tallahassee, for appellee.

WIGGINTON, Acting Chief Judge.

This appeal is from an interlocutory order entered in an action at law by which the trial court denied appellant's application for an order directing appellee to proceed with aribitration in accordance with the provisions of the uninsured motorist clause contained in the automobile liability insurance policy on which this suit was brought. Appellant contends that it was entitled to the order for which application was made, and the trial court erred in rendering its order of denial.

Appellant, an insurance company qualified to do business in Florida, issued to appellee's deceased husband an automobile liability insurance policy which extends coverage for damages suffered by the insured and resulting from the negligence of an uninsured motorist. The pertinent parts of the insurance policy sued upon are as follows:

'PART IV--PROTECTION AGAINST UNINSURED MOTORISTS.

Coverage J--Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

'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 this Part, 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 Part.'

Appellee's husband died as a result of injuries sustained by him when the insured vehicle in which he was traveling was struck by a motor vehicle operated by an allegedly uninsured motorist. Appellee, as the dependent widow of the deceased insured, instituted this common-law action on the insurance contract to recover the damages sustained by her as the result of the death of her husband by the allegedly negligent act of an uninsured motorist. She prays for judgment in the full face amount of the insurance policy, plus attorneys fees and court costs.

Upon being served with notice of the suit, appellant timely filed its written application to the court setting forth the arbitration clause contained in the insurance policy sued upon, and praying for an order directing the parties to proceed with arbitration in accordance with the provisions thereof and as authorized by the Florida Arbitration Code. ¹ After hearing the trial court entered its order denying appellant's application for an order of arbitration. There is no contention by either party that any issue exists as to the making of the agreement or provision to arbitrate. This appeal from that order is taken pursuant to the applicable provision of the Florida Arbitra-Code relating to appeals. ²

Appellee seeks to support the correctness of the order appealed by inviting attention to that part of the arbitration clause quoted above and contained in the insurance policy sued upon which provides that arbitration shall be 'in accordance with the rules of the American Arbitration Association.' It is appellee's position that since the parties agreed to arbitration in accordance with the rules of the American Arbitration Association, that by a process of deductive reasoning it must be held that they inferentially rejected any agreement to arbitrate under the Florida Arbitration Code, Sections 57.10--57.31, F.S.A. Appellee therefore reasons that this being so, the trial court correctly denied appellant's application to compel arbitration under the Florida Arbitration Code. With this contention we cannot agree.

The case of Bohlmann v. Allstate Insurance Company ³ involved an automobile liability insurance policy containing an uninsured motorist clause similar in all material respects to the one contained in the insurance policy sued upon in this case. In Bohlmann, the provision of the policy with respect to arbitration was likewise similar in all material respects to the one here considered. The question involved was whether the terms of the insurance policy constituted a binding agreement between the parties to arbitrate any dispute which might arise between them under the uninsured motorist clause, and whether the type of arbitration contemplated by the agreement was as at common law, or was statutory in accordance with the provisions of the Florida Arbitration Code. Even though that insurance policy likewise contained a provision that the arbitration should be conducted in accordance with the rules of the American Arbitration Association, the Second District Court of Appeal nevertheless held that the agreement contemplated that the arbitration provided therein was statutory and would be conducted in accordance with the provisions of the Florida Arbitration Code, Sections 57.10--57.31, F.S.A. We agree with the conclusion reached by the Second District Court of Appeal in the Bohlmann case, and similarly hold that the terms and provisions of the insurance policy sued upon in this case require that upon the election of either party, arbitration must be resorted to as a means of settling any dispute under the uninsured motorist clause of the policy, and that the proceedings shall be in accordance with the provisions of the Florida Arbitration Code. It is noted that the various sections of this code permit the parties, by agreement, to employ different rules of procedure than those set forth in the code. The provisions of the statute confer upon contracting parties the right to enter into an arbitration agreement which will be binding and enforceable, and set out the procedure to be followed in the arbitration proceeding unless different rules of procedure are agreed upon. An agreement to employ rules of procedure different from those provided in the Code does not constitute a stipulation that the remaining provisions of the Code itself shall not apply to the arbitration as referred to in Section 57.11 thereof.

Appellee has sought to inject into this case an additional reason why the order appealed should be affirmed. The complaint filed by her contains the allegation that: '(T)he plaintiff has complied with all the applicable requirements of the said policy, but that the defendant has failed and refused to pay her the benefits to which she is entitled under Part VI of said policy.' At the hearing on appellant's application for an order compelling arbitration, appellee was permitted to amend the above-quoted paragraph of her complaint by adding thereto an allegation to the effect that 'the defendant denies that its policy covers a loss for wrongful death such as this.' Appellee argues that the amended allegation added to her complaint creates an issue with respect to the extent of coverage afforded by the insurance policy which may only be determined in a judicial proceeding by a...