Allied Professionals Insurance Co. v. Fitzpatrick

169 So. 3d 138, 2015 Fla. App. LEXIS 6746, 2015 WL 2078847
CourtDistrict Court of Appeal of Florida
DecidedMay 6, 2015
DocketNo. 4D13-3961
StatusPublished
Cited by15 cases

This text of 169 So. 3d 138 (Allied Professionals Insurance Co. v. Fitzpatrick) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allied Professionals Insurance Co. v. Fitzpatrick, 169 So. 3d 138, 2015 Fla. App. LEXIS 6746, 2015 WL 2078847 (Fla. Ct. App. 2015).

Opinion

GERBER, J.

A chiropractor’s insurer appeals from the circuit court’s order denying its motions to compel arbitration of the plaintiffs’ lawsuit against the chiropractor pursuant to the insurance policy’s arbitration provision. The insurer argues the court erred in denying the motions because, among other reasons, the arbitration provision specifically delegated the issue of arbitra-bility to the arbitrator. We agree with this argument and reverse for an order compelling the issue of arbitrability to the arbitrator.

Procedural History

The chiropractor’s insurance agent sold her the insurer’s policy. The policy had a $1,000,000 limit and contained an arbitration provision which stated, in pertinent part:

All disputes or claims involving the [insurer] shall be resolved by binding arbitration, whether such dispute or claim arises between the parties to this Policy, or between the [insurer] and any person or entity who is not a party to the Policy but is claiming rights either under the [140]*140Policy or against the [insurer]. This provision is intended to, and shall, encompass the widest possible scope of disputes or claims, including any issues a) with respect to any of the terms or provisions of this Policy, or b) with respect to the performance of any of the parties to the Policy, or c) with respect to any other issue or matter, whether in contract or tort, or in law or equity.... If the person or entity asserting the dispute or claim refuses to arbitrate, then any other party may, by notice as herein provided, require that the dispute be submitted to arbitration within fifteen (15) days. All procedures, methods, and rights with respect to the right to compel arbitration pursuant to this Article shall be governed by the Federal Arbitration Act. The arbitration shall occur in Orange County, California. The laws of the State of California shall apply to any substantive, evidentiary or discovery issues. Any questions as to arbitrability of any dispute or claim shall be decided by the arbitrator.

(emphasis added).

During the policy period, the plaintiffs filed a lawsuit against the chiropractor and the chiropractor’s employer. The lawsuit alleged that the chiropractor was liable for her negligent care of plaintiff Brian Fitzpatrick and that the chiropractor’s employer was vicariously liable for such negligent care. The lawsuit sought compensatory damages for plaintiff Brian Fitzpatrick and consortium damages for plaintiff Lai Fong Fitzpatrick. The chiropractor tendered the claim to the insurer.

Later, the plaintiffs and the chiropractor’s employer agreed to the entry of a final judgment by which the plaintiffs would recover $1,000,000 from the employer. After the circuit court entered that final judgment, the employer filed a cross-claim against the chiropractor for indemnification of the judgment.

The employer and the chiropractor then agreed to the entry of a final judgment by which the employer would recover $1,000,000 from the chiropractor.

After the circuit court entered that final judgment, the plaintiffs filed a motion to join the insurer as a party defendant to the plaintiffs’ action pursuant to section 627.4136, Florida Statutes (2011). Section 627.4136 states, in pertinent part:

(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
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(4) At the time a judgment is entered or a settlement is reached during the pen-dency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2)....

§ 627.4136, Fla. Stat. (2011).

The plaintiffs also filed a motion to amend their complaint to add, as another party defendant, the chiropractor’s insurance agent who obtained the policy for the chiropractor. The proposed amended complaint alleged that the agent negligently failed to obtain adequate coverage for the chiropractor, and that the plaintiffs were third-party beneficiaries of the coverage which the agent should have obtained.

The insurer objected to the joinder motion on several grounds, including that the plaintiffs, by claiming rights under the pol[141]*141icy against the insurer, became bound by the policy’s arbitration provision.

The circuit court entered an order granting the plaintiffs’ motion to join the insurer as a party defendant to the plaintiffs’ action pursuant to section 627.4136. However, in the order, the court added that it had not ruled on any defenses which the insurer may otherwise have, and had not made any determination concerning coverage for the final judgments. The court entered a separate order granting the plaintiffs’ motion to amend their complaint to add the chiropractor’s insurance agent as another party defendant.

The insurer then filed motions to compel the plaintiffs, the chiropractor, and the employer to arbitrate all coverage claims pursuant to the policy’s arbitration provision. The insurer argued the court should grant the motions because, among other reasons, the arbitration provision specifically delegated the issue of arbitrability to the arbitrator.

The plaintiffs opposed the motions to compel arbitration on three grounds: (1) because the plaintiffs and the chiropractor’s employer were not named in the policy, no valid agreement to arbitrate existed with the plaintiffs; (2) because the arbitration provision required the arbitration to occur in California under California law, the arbitration provision violated Florida public policy regulating insurance and was unenforceable; and (3) the chiropractor’s insurance agent “twisted” her into agreeing to the insurer’s policy by not giving her a pro forma copy of the contract to review and not disclosing to her the policy’s terms, including the need to arbitrate in California under California law.

The circuit court entered an order denying the insurer’s motions to compel arbitration. In the order, the court reasoned, in pertinent part:

The Court has determined that the arbitration clause was procured by a material omission or misrepresentation in the contract-making process, and ... the contract provision for compelling arbitration is contrary to Florida public policy because it requires arbitration under California law, thus precluding any enforcement by the insured or judgment holder of rights guaranteed under Florida law....
The Court further finds that the arbitration clause contained in the contract of insurance is severable from the remainder of the insurance contract and that [the insurer] has not waived its right to arbitrate or mandate arbitration by its conduct.

This appeal followed.

Analysis

The insurer argues the court erred in denying the motions to compel arbitration because, among other reasons, the arbitration provision specifically delegated the issue of arbitrability to the arbitrator.

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Bluebook (online)
169 So. 3d 138, 2015 Fla. App. LEXIS 6746, 2015 WL 2078847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allied-professionals-insurance-co-v-fitzpatrick-fladistctapp-2015.