RESERVE INSURANCE COMPANY, AN ILLINOIS CORPORATION, ET AL., APPELLANTS,
v.
WILLIE H. POLLOCK, AS ADMINISTRATOR OF THE ESTATE OF JOSEPH DANIELS, APPELLEE
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The court held that the insurance company admitted its liability under the policy by moving for arbitration and is estopped from taking an inconsistent position.
Plaintiff, as administrator of an estate, sought uninsured motorist coverage under a policy issued by defendant insurance company after a fatal collis…
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This is an interlocutory appeal taken by defendant-appellant, Reserve Insurance Company, to review an adverse partial summary judgment on liability granted by the lower court.
Plaintiff-appellee, Willie H. Pollock, is the administrator of the estate of Joseph Daniels who died as a result of a collision with an uninsured automobile. Seeking to collect damages under the uninsured motorist provision of his insurance policy, plaintiff filed a lawsuit against his insurance carrier, Reserve Insurance Company, and the uninsured motorist.
Defendant insurance company moved to dismiss plaintiff’s complaint or to compel arbitration pursuant to the insurance policy. The court below then ordered arbitration and a dismissal of the complaint without prejudice. Plaintiff’s petition for rehearing was denied and he took an appeal to this court. The subsequent opinion, Pollock v. Reserve Insurance Company, Fla.App.1972, 258 So.2d 328, reversed the lower court and remanded the case for further proceedings on the basis that the insurance company waived its right to arbitration. Following compliance by the lower court with that opinion, plaintiff moved for a partial summary judgment as to the insurance company’s liability. The motion was granted and this appeal ensued.
As a matter of law defendant insurance company admitted coverage under the policy by the filing of its application for arbitration. Volkswagen Insurance Company v. Taylor, Fla.App.1967, 201 So.2d 624; Netherlands Insurance Company v. Moore, Fla.App.1966, 190 So.2d 191. We hold that defendant-appellant admitted its liability under the policy when it moved for arbitration, and it is estopped from taking an inconsistent position on this subsequent appeal. Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 148 So. 544 (1933).
The judgment of the trial court should be affirmed, and it is so ordered.
Affirmed.
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Aristonico Infante v. Preferred Risk Mut. Ins. Co., 364 So. 2d 874 (Fla. 3d DCA 1978)…sence denied uninsured motorist coverage, it cannot rely upon the In-fantes’ settlement with Lumbermen’s to avoid coverage. Cf. Government Employees Insurance Co. v. Whitaker, 218 So. 2d 198 (Fla. 1st DCA 1969); Reserve Insurance Company v. Pollock, 270 So. 2d 469 (Fla. 3d DCA 1972); and Liberty Mutual Insurance Company v. Flitman, 234 So. 2d 390 (Fla. 3d DCA 1970). Accordingly, the judgment enjoining arbitration is reversed. Reversed. . which includes underinsured motorist protection…
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Harper v. Toler, 884 So. 2d 1124 (Fla. 2d DCA 2004)…were disputed issues of material fact which precluded summary judgment. It is true that a party may not ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal. See Reserve Ins. Co. v. Pollock, 270 So. 2d 469, 469 (Fla. 3d DCA 1972) (holding that defendant-appellant which “admitted its liability” under insurance policy was “es-topped from taking an inconsistent position” on appeal). But the mere fact that Harper moved for summary judgment and [*1136] the…
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Tech. Packaging, Inc. v. Hanchett, 992 So. 2d 309 (Fla. 2d DCA 2008)…osition here.”); Ramming Real Estate Co. v. United States, 122 F. 2d 892, 894 (8th Cir.1941) (“It is well settled that the theory upon which the case was tried in the court below must be adhered to on appeal.”); see also Reserve Ins. Co. v. Pollock, 270 So. 2d 469, 469 (Fla. 3d DCA 1972) (“We hold that defendant-appellant admitted its liability under the policy when it moved for arbitration, and it is estopped from taking an inconsistent position on this subsequent appeal.”). Our point is that there may well…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Beach Co. v. Palm Beach Ests., 110 Fla. 77 (Fla. 1933)
- The Netherlands Ins. Co. v. Moore, 190 So. 2d 191 (Fla. 1st DCA 1966)
- Volkswagen Ins. Co. v. Taylor, 201 So. 2d 624 (Fla. 1st DCA 1967)
- Pollock v. Reserve Ins. Co., 258 So. 2d 328 (Fla. 3d DCA 1972)