JOY BROWN, INDIVIDUALLY AND AS NEXT FRIEND AND PARENT OF ANDRE BROWN, A MINOR, APPELLANT,
v.
COLONIAL PENN INSURANCE COMPANY, A CORPORATION, APPELLEE
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Florida appellate court reversed summary judgment for insurance company denying uninsured motorist coverage because a material factual issue remained regarding whether the driver had the owner's permission to use the vehicle.
Summary judgment for the defendant insurance company was improper because a material issue of fact existed regarding whether the driver had the owner's permission to drive the vehicle.
[1] A party is not bound by an admission made in a preliminary pleading that is successfully attacked by the opponent, and therefore an assertion in an initial complaint that…
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Join FLexlaw to unlock all legal intelligenceA minor was injured as a passenger in a car; the insurance company denied uninsured motorist benefits claiming the driver lacked the owner's permissio…
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PER CURIAM.
The plaintiff in a personal injury action appeals a final summary judgment for the defendant, Colonial Penn Insurance Company, finding no coverage for uninsured motorist (UM) benefits. We reverse because a material issue of fact remains unresolved regarding whether the driver was using the car with the owner’s permission.
The plaintiffs motion for summary judgment was based on the assertion that, under the terms and conditions of the Colonial Penn policy, the car in which the injured minor was a passenger was not an insured car for purposes of UM coverage because the driver of the car did not have the owner’s permission to be driving the car. The record on appeal contains no evidence that the driver did not have the owner’s permission. The plaintiffs first complaint did contain that assertion, but the amended complaints did not. A party is not bound by an admission made in a preliminary pleading which is successfully attacked by the opponent, as in this case. Vann v. Hobbs, 197 So. 2d 43 (Fla. 2d DCA 1967). See also Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So. 2d 4 (Fla. 4th DCA 1980).
Since the record contains no affidavits, testimony, or other evidence regarding the pivotal issue of whether the driver had permission from the owner to drive the car, summary judgment was improper. Reversed and remanded for further proceedings.
DANAHY, A.C.J., and PARKER and FULMER, JJ., concur.
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Hernandez v. Cgi Windows & Doors, Inc., 347 So. 3d 113 (Fla. 3d DCA 2022)
Authorities Cited
- Vann v. Hobbs, 197 So. 2d 43 (Fla. 2d DCA 1967)
- William and Charlene Adams v. Merrill Lynch, 392 So. 2d 4 (Fla. 4th DCA 1980)