5 Fla. L. Weekly Supp. 413a
Arbitration — Insurance — Personal injury protection — Insurer waived right to compel arbitration by actively litigating claim for benefits allegedly due under policy, by answering complaint, asserting affirmative defenses, and engaging in discovery
LINO DIAZ, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court of the 20th Judicial Circuit in and for Collier County. Case No. 97-0963-CC-11-BCW. February 13, 1998. Brenda C. Wilson, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS AND MOTION TO COMPEL ARBITRATION
THIS CAUSE is before the Court on Defendant’s ALLSTATE INDEMNITY COMPANY, Motion to Dismiss and Motion to Compel Arbitration. The motions were heard by the Court on Monday, December 8th, 1997. The Court will first outline the procedural and factual background and then refer to the determinative law.
On July 2nd, 1997, Lino Diaz filed suit claiming Allstate did not make payment of all of the No-Fault benefits due under his policy within 30 days as required by Florida Statute 627.736. Allstate answered the complaint on August 15th, 1997 and asserted affirmative defenses averring, inter alia, that charges for medical services rendered were not reasonable, medical treatment rendered was not medically necessary and that benefits were suspended pursuant to an independent medical report by a physician stating Mr. Diaz’s treatment was not reasonable, related or necessary. Also on August 15th, 1997, Allstate propounded interrogatories to Mr. Diaz and requested production of medical bills and lost wages. On August 19th, 1997, Allstate noticed Mr. Diaz for deposition. On August 21st, 1997, dispatched a Subpoena Duces Tecum Without Deposition to the medical records custodian of Mr. Diaz’s treating chiropractic physician. The subpoena was served on August 22nd, 1997. Mr. Diaz complied with Allstate’s request for production, and the treating chiropractic physician’s office complied with the Subpoena Duces Tecum.
On August 21st, 1997, Allstate submitted a Motion to Dismiss and a Motion to Compel Arbitration. The motions took the position that 627.736(5) required mandatory arbitration of the case. A response to the motion to dismiss and to compel arbitration was filed on behalf of Mr. Diaz, asserting that 1) Allstate’s request for relief would violate the Plaintiff’s right to access the courts under the Florida Constitution, Article I, Section 21, 2) Allstate had waived any right to arbitrate by actively litigating the matter. The response to the motion to dismiss and to compel arbitration was supported by a memorandum of law.
The Court does not need to address the issue of denial of access to the courts under the Florida Constitution. The Second District has addressed the issue of waiver of the right to arbitrate clearly and concisely in Bared & Co. v. Specialty Maintenance & Construction, 610 So.2d 1 (Fla. 2nd DCA 1992). In the Bared case one of the parties moved to amend and demand arbitration only two weeks after the initial answer and it was deemed to have waived arbitration. The Court stated:
“A party’s contractual right to arbitrate may be waived by active participation in lawsuit or by taking action inconsistent with that right . . . a showing of prejudice (to the other party) is not required if the waiver is based upon inconsistent acts.
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One who intentionally relinquishes a known right cannot, without consent of his adversary, reclaim it, for it is well settled that a waiver once made is irrevocable, even in the absence of consideration, or any change in position of the party in whose favor the waiver operates. And once a right is waived the waiver cannot be withdrawn without the consent of the other party even if subsequent events prove the right waived to have been more valuable than it was anticipated.”
The holding in Bared is also consistent with Bonner v. R.C.C. Associates, Inc., 679 So.2d 794 (Fla. 3rd DCA 1996) (there was a waiver of arbitration by the filing of a complaint without the simultaneous requesting a stay and order compelling arbitration) and Preferred Mut. Ins. Co. v. Matrix Const. Co., 662 So.2d 432 (Fla. 3rd DCA 1995) (defendant waived the right to arbitrate by seeking benefits of discovery rules prior to filing a Motion to Arbitrate).
Defendant presented for review the case of State Farm Mut. Auto. Ins. v. Gonnella, 677 So.2d 1355 (Fla. 5th DCA 1996). In Pinnacle Medical Inc. v. Security National Ins. Co., Circuit Court, Broward County Case No.: 96-5547(54), 4 Fla. Law Weekly Supp. 571, the Gonnella case was found to be distinguishable, because arbitration had been commenced between the provider and the insurer before the insured tried to rescind assignment and filed the lawsuit. This Court finds Judge Pratt’s reasoning to be persuasive and notes that Gonnella did not involve an issue of waiver. It is accordingly,
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss and Motion to Compel Arbitration being the same is hereby denied.
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