6 Fla. L. Weekly Supp. 328d
Insurance — Arbitration — Insurer waived right to demand arbitration by litigating over two years before making arbitration demand
WILLIAM and DORIS EMERICH, Appellants, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (sic: STATE FARM FIRE AND CASUALTY COMPANY), Appellee. 19th Judicial Circuit in and for St. Lucie County, Appellate Division. Circuit Case No. 97-293-CA-25. L.T. No. 94-3162-CC-20. Date decision filed December 19, 1997. Appeal from County Court, St. Lucie County, Judge Dan Vaugn. Counsel: George H. Muller, Ft. Pierce, for Appellants. Gregory J. Donoghue, Rockledge, for Appellee.
(PER CURIAM.) We reverse the order of the trial court below which granted Appellee STATE FARM’s motion to compel arbitration and which dismissed the lower court proceedings. The record shows that STATE FARM did not move to compel arbitration until after two and one half years had passed in litigation. During that two and one half years, STATE FARM filed initial motions to dismiss on grounds other than its right to arbitrate the dispute, as well as filing additional motions, and STATE FARM participated in discovery. STATE FARM took all this action before it raised for the first time in the trial proceedings the issue of arbitration and moved to compel arbitration and dismiss the lawsuit filed. We find that Appellee STATE FARM waived its right to demand arbitration by litigating two and one half years prior to finally making its demand for arbitration in a third motion to dismiss. Breckenridge v. Farber, 640 So. 2d 208 (Fla. 4th DCA 1994). We also find that this issue was not precluded from appellate review, as Appellee argues, because the memorandum of law submitted by Appellants to the trial court below in opposition to the Appellee’s motion to compel arbitration and dismiss the lawsuit briefly raised this waiver argument regarding Appellee’s failure to timely demand arbitration.
Since we reverse on the issue of waiver of the right to arbitrate, we do not reach the other points raised by Appellants in this appeal.
Appellants filed a motion for attorney’s fees under Fla. Stat. 59.46. As Appellants have prevailed in this appeal, we grant Appellants’ motion for attorney’s fees and remand to the trial court for a hearing to determine the amount of attorney’s fees to award.
The trial court’s order dismissing the case and compelling arbitration is REVERSED and the case REMANDED for further lower court proceedings in accordance with this decision. (BRYAN, SMITH, and HERSHEY, Acting Circuit Judge, JJ., concur.)
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