We have previously suggested that a bright line rule has yet to emerge when Florida courts consider the third prong of the Seifert test, waiver of arbitration. Thus, taking action other than filing a Motion to Compel Arbitration is not recommended for defendants (likewise, plaintiffs should be aware of any arbitration rights before filing suit). That said, two intermediate appellate courts have recently ruled that filing an Answer, raising arbitration as an affirmative defense, is not waiver by a defendant; that said, we maintain our concerns that this is not a "best practice" since filing an Answer exists in nearly all cases where a Florida court has found that the defendant waived arbitration.

As indicated, we previously reported that the Second District found that an Answer with an affirmative defense of arbitration was not waiver, even where the Answer requested a jury trial. We're concerned about the reasoning of this case, or that it might be distinguished, and recommend AGAINST relying on this opinion as grounds to file such pleadings.

More recently, in Jerry T. Lynch v. Solid Waste Haulers Florida LLC and Payroll Management Inc., the First District (Clark, Benton and Lewis) held that a motion to dismiss filed by one defendant, and an answer with an arbitration affirmative defense filed by the second defendant, is not waiver.

That said, defendants who inadvertantly filed responsive pleadings and then realized they had arbitration rights likely want to grab onto these life rafts from the First and Second DCA's.