Opinion
No. 85-2626.
June 3, 1987. Rehearing Denied July 29, 1987.
Appeal from the Circuit Court, Broward County, Robert C. Scott, J.
William Carcioppolo of Pyszka, Kessler, Massey, Weldon, Catri, Holton and Douberley, P.A., Fort Lauderdale, for appellant.
Victor Tobin and Evelyn Merchant of Simons, Simons Tobin, Fort Lauderdale, for appellee.
This is an appeal from an order granting Susan August's, appellee's, Petition for Appointment of a Defense Arbitrator. This order is appealable. Florida Rules of Appellate Procedure 9.030(b)(1)(B). Lumbermens Mutual Casualty Company (Lumbermen) appeals. We affirm.
The underlying dispositive issue is a determination of where the cause of action arose.
On February 17, 1979, August was involved in an automobile accident with an uninsured motorist in Florida. August lived with Ruth C. Quint in Newton Center, Massachusetts, and both women are residents of Massachusetts.
Prior to the accident, Quint had contracted for and received a standard Massachusetts' automobile liability insurance policy from Lumbermen in Massachusetts. This policy provided mandatory uninsured motorist coverage.
Five years later, on February 9, 1984, August filed a suit against Lumbermen seeking uninsured motorist benefits under Quint's Massachusetts' policy. Lumbermen filed a motion to dismiss, asserting that Massachusetts' statute of limitations barred this claim. This motion was denied.
Lumbermen filed an answer on July 2, 1984. In addition, asserting its statute of limitations argument, Lumbermen filed a motion for summary judgment, motion for rehearing and a second motion for summary judgment. All of these motions were denied.
It is critical to note that the Massachusetts' statute of limitations is three years, while the Florida limitation is five years. Thus, the case would be barred if the cause of action arose in Massachusetts, but not barred, if it arose in Florida.
For an uninsured motorist claim, a cause of action accrues, and the statute of limitations begins to run, on the date of the accident, rather than on the date of compliance with the conditions precedent contained in the insuring agreement. State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla. 1982). Florida law does not distinguish between when a cause of action accrues and when a cause of action arises. Meehan v. Celotex Corp., 466 So.2d 1100 (Fla. 3d DCA 1985). Thus, in the instant case, the cause of action arose in Florida, where the accident occurred, and Florida's five-year statute of limitations applies. Accordingly, we find that the trial court was correct in denying Lumbermen's motion to dismiss and in granting August's Petition for Appointment of a Defense Arbitrator.
AFFIRMED.
WEBSTER, PETER D., Associate Judge, concurs.
LETTS, J., concurs specially with opinion.
I concur specially in order that I can restate how I arrive at my conclusion in a manner which my inadequate mind can grasp. Both parties agree that this cause of action arises out of contract rather than tort, otherwise the five year statute of limitations, which all parties concede is applicable if Florida law applies, would not control the outcome.
In this regard, it is irrefutable that the statute of limitations began to run on the date of the accident on which date the cause of action also "accrued." State Farm v. Kilbreath. The case of Meehan v. Celotex teaches that where the cause of action "accrues" and where it "arises" are synonymous. Accordingly, the cause of action arose in Florida.
As I understand the "borrowing statute" [section 95.10, Florida Statutes (1979)], we would only apply the Massachusetts statute of limitations if the cause of action "arose" outside of Florida.
Accordingly, since the borrowing statute does not apply, the Florida statute of limitations, where the cause of action arose, controls. Thus, the action is not barred.