IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

ANGELO ALVES M.D., P.A.

          Appellant,

Appeal No. 00-4429 CI – 88B

v.

WINDSOR INSURANCE CO.

         Appellee.

______________________________/

Opinion filed _______________.

Appeal from a decision of the

Pinellas County Court

County Judge Karl Grube

Alan Watson, Esq.
Attorney for appellant

Ann O’Hern, Esq.
Attorney for appellee

ORDER AND OPINON

      THIS MATTER is before the Court on the appellant’s appeal from a decision of the Pinellas County Court to dismiss the appellant’s case because of lack of prosecution. After reviewing the briefs and record, this Court reverses the decision of the trial court.

       The appellant brought an action against an insurance company seeking payment for medical services provided. The insurance company sought arbitration and the parties stipulated to abate the case and submit the matter to binding arbitration. The County Court entered an order reflecting the stipulation. Over a year passed and the court sent the appellant a notice of intent to dismiss, asking it why the case should not be dismissed for lack of prosecution. The appellant responded with a less than satisfactory response. The trial court found it not to be good cause why the case should not be dismissed. The trial judge understandably dismissed the action because he believed Tarken v. State of Florida, Dept. of Transportation, 629 So.2d 258 (Fla. 3d DCA 1993), compelled that result.

     This Court must disagree with the trial judge’s interpretation and application of Tarken. In explaining its interpretation and application of the Tarken decision, the court in Juliano v. Allstate Ins. Co., 766 So.2d 254 (Fla.4th DCA 2000), wrote that:

In Tarken, the defendant obtained an order staying the second-filed personal injury case until such time as the plaintiff paid an outstanding cost judgment from the first voluntarily dismissed case. After the stay was entered and after more than a year elapsed without record activity, the defendant moved to dismiss the case. The third district affirmed the trial court’s dismissal for lack of prosecution. The court noted the important policy consideration underlying Rule 1.420(e) for prompt resolution of litigation and expressed concern about permitting the plaintiff to extend the one-year period “when the progress of her case was completely within her own control.” (emphasis added). The court then distinguished its case from Tarken by noting that no one party had exclusive control over the stayed action. Similarly, in the case at bar no one party had exclusive control over the abated matter. Either party could have initiated the arbitration and eliminated the stay. In contrast, in Tarken only the plaintiff could end the stay. Therefore, dismissal was not compelled by Tarken. Accordingly, it is

       ORDERED that the order of dismissal is reversed and this matter is remanded to the trial court for a reconsideration of the matter in light of this opinion.

        DONE AND ORDERED in Chambers at St.Petersburg, Pinellas County, Florida this _____ day of March, 2001.

__________________________
David A. Demers

Circuit Judge, Appellate Division

 

cc:    Judge Grube

        Alan Watson, Esq.

        Ann O’Hern, Esq.