WALTER LUPTON, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES OF THE STATE OF FLORIDA AS ASSIGNEE AND SUBROGEE OF THE RIGHTS OF SHARON SMITH, APPELLEE
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The appellate court affirmed the dismissal of a tenant's permissive counterclaim against a county, which had been brought by the county's subrogee insurer, on the grounds of equitable estoppel due to the county's inconsistent position in prior litigation.
The appellate court affirmed the dismissal of the tenant's counterclaim against the county, finding that the county's prior inconsistent position in a federal declaratory judgment action estopped it from pursuing the subrogated claim.
An insurer, subrogated to a county's rights after paying a claim for a fire at a leased warehouse, sued the tenant for negligence. The tenant filed a …
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MOORE, Judge.
Defendant appeals a final judgment in a paternity action which, inter alia, determined him to be the father of a child born to Sharon Smith. He contends that the evidence was insufficient to support a finding of paternity. We reverse.
The Department of Health and Rehabilitative Services brought this action as assignee and subrogee of the rights of Sharon Smith. During trial, Ms. Smith admitted having intercourse with another man, in addition to the appellant, during the medically recognized period when conception could have occurred. No evidence was adduced by the Department which eliminated the other man as the father, nor which pinpointed appellant as the father. Rather, the court was left to speculate which of the two men was the father of the child, which it may not do. Yarmark v. Strickland, 193 So. 2d 212 (Fla. 3rd DCA 1966), cert. denied 201 So. 2d 559 (Fla.1967). Compare Roe v. Macy, 363 So. 2d 616 (Fla. 1st DCA 1978). Accordingly, the final judgment is reversed.
DOWNEY, C. J., and LETTS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Yarmark v. Strickland, 193 So. 2d 212 (Fla. 3d DCA 1966)
- ROE v. Macy, 363 So. 2d 616 (Fla. 1st DCA 1978)
- In re Est. of W. E. Mahaffey, 201 So. 2d 559 (Fla. 1967)
- Mach. Trading Corp. of Fla. v. Nicholas, 201 So. 2d 559 (Fla. 1967)