STATE FARM FIRE v. Feminine Fashions, Inc.

509 So.2d 376 (1987)

STATE FARM FIRE AND CASUALTY COMPANY, Appellant,
v.
FEMININE FASHIONS, INC., Appellee.

No. 87-497.

District Court of Appeal of Florida, Third District.

June 30, 1987.

Ponzoli & Wassenberg and Ronald P. Ponzoli and Zorian Sperkacz, Miami, for appellant.

Roderick L. McGee, Coral Gables, Jeanne Heyward, Miami, for appellee.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

The order denying the appellant's motion to compel arbitration of the dispute over the amount of the loss sustained by the insured as the result of a fire is reversed. See U.S. Fire Insurance Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983). Although the insured, relying upon Hayes v. Allstate Insurance Co., 722 F.2d 1332 (7th Cir.1983), urges that the policy is ambiguous as to the right to arbitrate and thus must be construed against State Farm, we agree with Judge Posner's dissent in Hayes that the insurance contract there, as the one here, gives "either party an unambiguous right to demand appraisal." Id. at 1341 (Posner, J., dissenting). That right, not having been waived by State Farm through some inconsistent action on its part, should have been enforced by the lower court upon State Farm's motion to compel.

Reversed and remanded.