Weinstein v. American Mut. Ins. Co. of Boston
| Decision Date | 21 November 1979 |
| Docket Number | No. 77-276,77-276 |
| Citation | 376 So.2d 1219 |
| Parties | David WEINSTEIN, Appellant, v. AMERICAN MUTUAL INSURANCE COMPANY OF BOSTON, etc., Appellee. |
| Court | Florida District Court of Appeals |
Mark C. Menser, Dewey A. F. Ries, Fort Lauderdale, for appellant.
David A. Graham, George E. Bunnell, of Huebner, Shaw & Bunnell, P. A., Fort Lauderdale, for appellee.
Appellant seeks review of a declaratory judgment which held that appellant, as an injured insured, must first seek and obtain payment, by settlement or after judgment, of all bodily injury liability insurance benefits from any alleged tortfeasor before he can compel arbitration under his own uninsured/underinsured motorists coverage. 1 In so holding the trial court stayed arbitration under the uninsured motorists provision of appellant's policy. The stay was based on the following policy provision:
The company shall not be obligated to make any payment because of bodily injury to which this insurance applies and which arises out of the ownership, maintenance or use of an underinsured highway vehicle until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.
We find that provision to be violative of the intent of the uninsured/underinsured statute, Section 627.727, Florida Statutes (1977). In Apodaca v. Old Security Casualty Insurance Company, 348 So.2d 677 (Fla. 3d DCA 1977), it was held that the injured plaintiff may compel arbitration with his carrier without first proceeding to judgment against the alleged tortfeasor where the tortfeasor's liability limits are less than the injured plaintiff's uninsured motorists coverage.
Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977), deals with the same point presented by the instant case, and holds arbitration should not be stayed. It is not of record here what the alleged tortfeasor's coverage may be, if in fact the alleged tortfeasor had coverage. That question, however, is not determinative of the main issue: whether appellant may compel arbitration. In Arrieta, supra, it was held the plaintiff was not required to file suit against the alleged tortfeasor before he could compel arbitration because the statute did not so require and the law favors arbitration. To require the injured plaintiff (the insured appellant) to first obtain payment of a judgment or settlement...
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