WILLIAMS v. ST. FARM MUT. AUTO. INS., 262 So.2d 220 (Fla.App. 2 Dist. 1972)

JAMES L. WILLIAMS, APPELLANT, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE.

No. 72-51.District Court of Appeal of Florida, Second District.
May 17, 1972.

Appeal from the Circuit Court for Pinellas County, Ben F. Overton, J.

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Michael B. Piper, St. Petersburg, and Carleton L. Weidemeyer, of Wightman, Rowe, Weidemeyer Federico, Clearwater, for appellant.

Kaleel Kaleel, St. Petersburg, for appellee.

MANN, Judge.

The trial judge properly dismissed an action against the appellant’s insurer asserting coverage under the uninsured motorist clause, where the insurer had, after commencement of the action, demanded arbitration.[1] The insured had not sought arbitration. The case differs from Liberty Mutual Fire Insurance Company v. Winfree, Fla.App.2d 1971, 252 So.2d 388, in that there a demand for arbitration had been made by the insured but was ignored by the insurance company. Consequently, those plaintiffs were justified in bringing an action where this plaintiff was not.

On cross-appeal, the insurance company correctly asserts that attorneys’ fees for plaintiff’s attorneys were improperly awarded. The insured did not prevail in the action so the statutory requirement was not met.[2]

Affirmed in part and reversed in part.

PIERCE, C.J., and HOBSON, J., concur.

[1] The contract provides: “If any person making claim under coverage U and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator.”

[2] Fla. Stat. 627.0127(1) (1969), F.S.A. provides: “Upon the rendition of a judgment or decree by any of the courts of this state against an insurer in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

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