Summary
disagreeing with the dissenting judge's view that a third-party defendant which timely raised its right to arbitration and subsequently participated in discovery related to the merits while the arbitration issue was pending did not waive its right to arbitration
Summary of this case from Green Tree Servicing v. McLeodOpinion
No. 89-2444.
April 4, 1990.
Appeal of a non-final order from the Circuit Court for Palm Beach County; Jack H. Cook, Judge.
Douglas R. Bell of Law Office of Bell Bell, Fort Lauderdale, for appellant.
Timothy P. McCarthy of Merola, McCarthy Cox, P.A., Palm Beach Gardens, for appellee-Miller-American Industries, Inc.
We affirm the trial court's order denying appellant's motion to dismiss appellee's third-party complaint which found that appellant waived its right to arbitration. However, we do so without prejudice to appellant's filing of another motion to dismiss based upon the grounds left unresolved by the trial court's order.
HERSEY, C.J., and GLICKSTEIN, J., concur.
ANSTEAD, J., dissents with opinion.
Because the appellant raised the arbitration issue at the earliest opportunity I would uphold the right to arbitration despite appellant's subsequent request for discovery. Florida public policy now strongly favors arbitration, and I think this policy should prevail. In addition, I see no real conflict between first raising one's right to arbitration and then conducting discovery while the arbitration issue is pending. I fail to see how inquiring about the factual bases for a claim is somehow inconsistent with the assertion that the claim should be resolved by arbitration.