
    Leroy WILSON, Appellant, v. PRUDENCE MUTUAL CASUALTY COMPANY, Appellee.
    No. 35482.
    Supreme Court of Florida.
    April 5, 1967.
    
      Linet, Schwartz & Klein, North Miami Beach, for appellant.
    Hawkesworth & Kay and Richard L. Wasscnberg, Miami, for appellee.
   PER CURIAM.

This direct appeal brings for review an •order of the Circuit Court holding constitutional Florida Statute § 57.22, F.S.A. and denying relief against adverse award in an arbitration proceeding.

A car driven by Carol Roberson and owned by David Lee Calvin was involved in an intersection accident with another automobile operated by Leroy Wilson. At the time of the accident Wilson had an automobile insurance policy with Prudence Mutual Casualty Company, under which he was afforded uninsured motorist protection, but which provided for arbitration of any •disputed claim under the uninsured motorist protection clause to be in accordance with the rules of the American Arbitration Association. His policy further provided that judgment under the award rendered by the arbitrator could be entered in any court having jurisdiction and that either party would consider itself bound by any award made by the arbitrator.

Wilson, through his attorney, filed a demand for arbitration with the American Arbitration Association, claiming injuries as a result of the intersection accident. An .arbitrator was selected, to which no objection was made, a hearing held, and the matter brought on for final disposition before the arbitrator. The arbitrator rendered his award disallowing the claim of Wilson, and timely thereafter Wilson filed a petition in the Circuit Court requesting the court to vacate the arbitrator’s award, but did not sufficiently allege any of the grounds for judicial intervention provided in Florida Statute § 57.22, F.S.A. His petition being denied, Wilson then contended that the statute is unconstitutional in that it does not provide for a method of appellate review and in effect says it deprives him of his right to appeal under Article V, Section 5(3) of the Florida Constitution, F. S.A. • The trial court upheld the constitutionality of Florida Statute § 57.22, F.S.A., denied Wilson’s petition, and entered judgment on the award. In this posture, we have for review the constitutionality vel non of Florida Statute § 57.22, F.S.A., and the contention of Wilson that he is entitled to a judicial review and that the arbitration award should be vacated and set aside primarily on the contention that the arbitrator committed errors of law and fact.

We have heard argument of counsel and carefully reviewed the briefs, and it is our opinion, and we hold that the trial court was eminently correct in upholding Florida Statute § 57.22, F.S.A. against the attack made on it by Wilson. We have examined the other question presented by the appellant and find the decision of the lower court likewise without error.

A discussion of arbitration appears in Cassara v. Wofford, Fla., 55 So.2d 102, in which appears this significant language :—

“As to the other matters alleged by the lessee as grounds for setting aside the award, it is provided by Section 57.07, Florida Statutes, F.S.A., that ‘An award of any arbitration duly appointed, made pursuant to the said submission, shall be set aside by the court only on the ground of fraud, corruption, gross negligence or misbehavior of one or more arbitrators or umpire who may have signed the award, or of evident mistake acknowledged by the arbitrators or umpire.’ Thus, the award of arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts; if the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment, and —however disappointing it may be — the parties must abide by it. As stated in Johnson v. Korn, Tex.Civ.App., 117 S.W.2d 514, 519, citing Payne v. Metz, 14 Tex. 56: ‘The Court should interpose in this class of cases with great caution; and never, except in a case of urgent necessity, to prevent the consummation of a fraud, or some great and manifest wrong and injustice. It is not every error or mistake of law or fact, which will warrant the setting aside of an award. If it were, there would be but few awards made which would stand the test of judicial investigation; for they are most frequently made by men not learned in the law, nor skilled in judicial proceedings. And if they could be questioned on slight grounds or for trivial errors, there would be few which would not become the subjects of judicial investigation; for the cases will be rare indeed, in which the award, however equitable and just, will prove perfectly satisfactory to all parties.’ ”

The decision of the lower court being without error, the judgment is affirmed.

THORNAL, C. J., and THOMAS, DREW, O’CONNELL and CALDWELL, J J., concur.

ROBERTS, J., dissents with Opinion.

ERVIN, J., dissents with Opinion.

ROBERTS, Justice

(dissenting).

This direct appeal brings for review an order of the Circuit Court holding constitutional Florida Statute § 57.22, F.S.A. and denying relief against adverse award in an arbitration proceeding.

A car driven by Carol Roberson and owned by David Lee Calvin was involved in an intersection accident with another automobile operated by Leroy Wilson. At the time of the accident Wilson had an automobile insurance policy with Prudence Mutual Casualty Company, under which he was afforded uninsured motorist protection, but which provided for arbitration of any disputed claim under the uninsured motorist protection clause to be in accordance with the rules of the American Arbitration Association. His policy further provided that judgment under the award rendered by the arbitrator could be entered in any court having jurisdiction and that either party would consider itself bound by any award made by the arbitrator.

Wilson, through his attorney, filed a demand for arbitration with the American Arbitration Association, claiming injuries as a result of the intersection accident. An arbitrator was selected, to which no objection was made, a hearing held, and the matter brought on for final disposition before the arbitrator. The arbitrator rendered his award disallowing the claim of Wilson, and timely thereafter Wilson filed a petition in the Circuit Court requesting the court to vacate the arbitrator’s award. His petition being denied, Wilson then contended that Florida Statute § 57.22, F.S.A. is unconstitutional in that it does not provide for a method of appellate review and in effect says it deprives him of his right to appeal under Article V, Section 5(3) of the Florida Constitution, F.S.A. The trial court upheld the constitutionality of Florida Statute § 57.22, F.S.A., denied Wilson’s petition, and entered judgment on the award. In this posture, we have for review the constitutionality vel non of Florida Statute § 57.22, F.S.A., and the contention of Wilson that he is entitled to a judicial review and that the arbitration award should be vacated and set aside on the contention made in his petition.

We have heard argument of counsel and carefully reviewed the briefs, and it is our opinion, and we hold, that the trial court was eminently correct in upholding Florida Statute § 57.22, F.S.A. against the attack made on it by Wilson.

We then reach the question of whether or not a showing has been made for relief under Florida Statute § 57.22, F.S.A. The answer to that question is not so easy.

Florida Statute § 57.22, F.S.A., among other things, provides:

“Vacating an award.
“(1) Upon application of a party, the court shall vacate an award when: * * *
“(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party; * * *”

In support of appellant’s petition for relief under the statute he tenders an affidavit by Bruce S. Schwartz in the following language:

“BEFORE ME, the undersigned authority, personally appeared BRUCE S. SCHWARTZ who, after being duly sworn, on oath deposes and states:
“1. That I am an attorney duly licensed to practice law in the State of Florida and am, in fact, engaged in such activity.
“2. That I was the attorney who handled the case of LEROY WILSON v. PRUDENCE MUTUAL CASUALTY COMPANY, Arbitration Case # MIA-AC-264-65, and represented the claimant, LEROY WILSON, at all times in this proceeding.
“3. That I prepared and presented the claimant’s case before the Arbitrator, THOMAS J. SCHULTE, ESQ.
“4. That prior to the appointment of this Arbitrator, the PRUDENCE MUTUAL CASUALTY COMPANY, through its attorneys, HAWKES-WORTH and KAY, had offered in settlement of this uninsured motorist claim the sum of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS. That subsequent to the appointment of this particular arbitrator, this offer of settlement was withdrawn.
“5. That at the time of Final Argument, after all the evidence had been presented to the Arbitrator, the Arbitrator stated to both counsel that he did not want to hear argument in regard to liability inasmuch as he had already decided that the claimant, LEROY WILSON, was free of any negligence and that his injuries had been caused by the negligent operation of the automobile of the uninsured driver.
“6. That subsequent to the Arbitrator’s award, your Deponent had occasion to discuss this case with the Arbitrator on the telephone and, at that time, he indicated to your Deponent that his decision was based on his finding that the claimant was not negligent and that the uninsured motorist was negligent cmd was the cause of the accident but that the claimant had suffered no injuries from this automobile accident.
“7. That the claimant presented testimony in the form of exhibits and in the form of testimony from Dr. Von D. Mi-zell as to the damages sustained as a proximate result of this collision. That Dr. Mizell testified that the claimant had sustained a permanent partial disability as a result of the injuries sustained by the claimant in this collision.
“8. That the only evidence presented were the bill of Dr. Von D. Mizell and the Broward General Hospital.
“9. That there was no independent examination by another doctor, and that there was no basis in law or fact for the Arbitrator’s decision.”

(Emphasis supplied.)

Our attention is also directed to an itemized bill from Broward General Hospital in the amount of $358.20, and another from North Broward Hospital District of $25.30, and the sworn statement of other expenses, with the grand total of $878.50. It is difficult to reconcile the existence of these hills with the statement of the arbitrator alleged under oath as follows:

“6. That subsequent to the Arbitrator’s Award, your Deponent had occasion to discuss this case with the Arbitrator on the telephone, and, at that time, he indicated to your Deponent that his decision was based on his finding that the claimant was not negligent and that the uninsured motorist zuas negligent and was the cause of the accident hut that the claimant had suffered no injuries from this automobile accident.’1

(Emphasis supplied.)

The affiant, Bruce S. Schwartz is an attorney at law in good standing in the State of Florida and therefore an officer of the court, and we can not treat lightly his sworn statement concerning the announcement by the arbitrator. Therefore, it is our opinion, and we hold, that the petition, buttressed by the affidavit above mentioned, made a proper showing under Florida Statute § 57.22(1) (b), F.S.A. that would require the trial court to inquire into the impartiality vel non of an arbitrator who had been appointed as a neutral.

I would reverse the cause and remand it with directions that the trial court reinstate the petition for vacation filed by the appellant and determine whether or not the arbitrator was neutral and impartial in the performance of his duties.

ERVIN, Justice

(dissenting) :

I think it is contrary to public policy that the general public, in the purchase of policies of automobile liability insurance containing uninsured motorist coverage, should be expected to agree to be relegated to an arbitrator of the American Arbitration Association to determine the validity of their claims against uninsured motorists to the exclusion of judicial review.

Uninsured motorist coverage in our state is of statutory origin. See F.S. Section 627.0851, F.S.A. Thousands of policies are sold due to the provisions of said statute. The arbitration clause in the “fine print” of the policy here considered reads:

“6. ARBITRATION. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.”

Despite F.S. Chapter 57, F.S.A., the arbitration statute, it is unrealistic for automobile liability insurance policies to provide by blanket form provisions that insureds agree in advance to arbitrate their claims against uninsured motorists. There is simply too much opportunity of overreaching in such arbitrations, as, for example, appears in the alleged facts in this case recited in Mr. Justice Roberts’ dissent. Uninsured motorist insurance protection, recognized by our laws as highly essential to all motorists, should not be made less certain of realization through such insurance policy “arbitration” form clauses which operate to minimize for insureds the usual rights of citizens to judicial review of their claims. Nothing is intended in the foregoing expressed views to cast doubt upon the validity or desirability of arbitration agreements which are deliberately and with clear “meeting of the minds” of the parties expressly entered into.  