4 Fla. L. Weekly Supp. 762a
Arbitration — Insurance — Personal injury protection — Insurer waived right to arbitrate dispute with medical services provider by filing answer, affirmative defenses, and demand for jury trial
BIOTRONIX LABORATORIES, INC. D/B/A ISO DATA DIAGNOSTICS, Appellant, vs. OAK CASUALTY INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-421AP. Opinion filed June 20, 1997. An Appeal from County Court, Leo A. Adderly, Judge, in and for Dade County. Counsel: Richard J. Rilling, for Appellant. Law Offices of Diana C. Matigian and Jeanne Heyward, for Appellee.
(Before MURRAY GOLDMAN, MARGARITA ESQUIROZ, and MICHAEL B. CHAVIES, JJ.)
(GOLDMAN, J.) Appellant appeals a judgment entered by the trial judge, granting Appellee’s motion for summary judgment and compelling arbitration. We reverse.
Appellant is a medical testing company which rendered services to Ms. Betty Martinez, an insured under a Personal Injury Protection policy issued by the Appellee. Ms. Martinez assigned her benefits under the PIP policy to the Appellant, which filed suit against Appellee to collect benefits due and owing under the policy.
Appellee filed an answer and affirmative defenses and a demand for jury trial. Subsequent to filing its answer, Appellee filed a Notice of Taking Deposition, then took the deposition of the Appellant’s corporate representative.
Over two months after filing its answer and affirmative defenses, Appellee filed a motion for summary judgment claiming that it was entitled to have the claim arbitrated under the insurance policy and § 627.736(5), Fla. Stat. (1995). The trial judge treated Appellee’s motion as a motion to compel arbitration and granted Appellee’s motion.
The insurance policy contains a provision for binding arbitration for any claims dispute involving medical benefits. Arbitration is favored under Florida law, and courts indulge every reasonable presumption to uphold proceedings resulting in an award. Fortune Ins. Co. v. U.S.A. Diagnostics, Inc., 684 So. 2d 208, 209 (Fla. 4th DCA 1996) (citation omitted). When considering motions to compel arbitration, the trial court’s role is limited to determining whether a valid written agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. Id.
A party can waive its right to arbitration if it takes action inconsistent with the use of arbitration to resolve the dispute. Phillips v. General Acc. Ins. Co. of America, 685 So. 2d 27, 29 (Fla. 3d DCA 1996). It is well settled that the filing of an answer is an act inconsistent with a subsequent demand to arbitrate, and acts as a waiver. See O’Flarity v. Trend Star Development, Inc. et al., 22 Fla. L. Weekly D780 (Fla. 4th DCA March 26, 1997); Phillips v. General Acc. Ins. Co. of America, 685 So. 2d 27 (Fla. 3d DCA 1996); Hardin Int’l, Inc. v. Firepak, Inc., 567 So. 2d 1019 (Fla. 3d DCA 1990); Lapidus v. Arlen Beach Condominium Ass’n, Inc., 394 So. 2d 1102 (Fla. 3d DCA 1981).
Appellee Oak Casualty’s actions in filing an answer, affirmative defenses and a demand for jury trial were clearly inconsistent with the use of arbitration to resolve the dispute, and waived Oak Casualty’s right to arbitration.
The trial court erred in granting Oak Casualty’s motion for summary judgment.
As a result, the judgment of the lower court is REVERSED AND REMANDED.
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