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627.727(6)(b)] is that an insurer may not seek subrogation until after there has been a final resolution of the UM claim." Answer Brief of Respondent Angel Lucas at 9-10. This language is strangely almost identical to Metropolitan's initial brief to the Fifth District. Yet, Metropolitan, in its reply brief, states that "Florida Statute § 627.727(6)(b), contains no language prohibiting a UM carrier from seeking subrogation in a pending lawsuit." Metropolitan Casualty Insurance Company's Reply Brief at 4.





In short, the Fifth District ruled in favor of Metropolitan's legal position on whether it could file a third-party complaint against Lucas, but then Metropolitan has argued the opposite position to this Court. And "[t]he general rule is that a party cannot occupy inconsistent positions in the course of a litigation." Battles v. State, 919 So. 2d 621, 622 (Fla. 1st DCA 2006) (quoting McPhee v. State, 254 So.







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2d 406, 409 (Fla. 1st DCA 1971)). Indeed, "where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it is to the prejudice of the party who has acquiesced in the position taken by him." Id. (quoting McPhee, 254 So. 2d at 409-10 (quoting Fla. Jur.


Estoppel & Waiver § 51)). Given this general rule, I would reject Metropolitan's inconsistent position taken to invoke the Court's conflict jurisdiction and discharge this case.


II. NO CONFLICT JURISDICTION ON STATUTE OF LIMITATIONS



Additionally, I would discharge this case because I fail to see the conflict jurisdiction.

The majority opinion notes that this Court accepted jurisdiction based upon Metropolitan's alleged conflict between the Second District's opinion in Dominon and the Fifth District's underlying opinion in Metropolitan. However, the two district courts' decisions do not address the same question of law.


In Dominion, 754 So. 2d at 855-56, the Second District analyzed different types of subrogation claims (contractual, equitable, and statutory) and noted that the commencement of the statute of limitations period differs on the types of claims. Dominion argued that "[i]n situations governed by the statute, the period for filing a subrogation action would not commence until the uninsured motorist claim was resolved, thus permitting the subrogee to sue for enforcement of the







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tortfeasor's liability long after the limitations period for either a contractual or equitable subrogation action had expired." Dominion, 754 So. 2d at 856. The Second District described this as a third category of subrogation cases for purposes of the statutes of limitations, a category arising from the statutory language. Id. In reviewing the last sentence of section 627.727(6)(b), the Second District stated that "it does not impose the latter [final resolution of the UM claim] as a condition precedent to the former [seeking subrogation], nor employ language to the effect that no action for subrogation may be filed until then." Id.


The Second District concluded that Dominion's cause of action based on contractual subrogation rights was barred by the statute of limitations because it was filed more than four years after its subrogors' accident. Id. at 857. However, the Second District noted that count I of Dominion's complaint could be amended to allege a claim for equitable subrogation (that would have a different statute of limitations commencement date), so the case was remanded to give Dominion the opportunity for amendment. Id.


The issue of whether a third-party action could be brought by a UM carrier, addressed in Metropolitan, was not at issue at all in Dominion. See Fla. R. Civ. P.







1.180 (a) ("When [Third Party Practice] Available. At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the







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defendant for all or part of the plaintiff's claim against the defendant, and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim.") (emphasis added). And, in contrast to Dominion, no statute of limitations issue was addressed in Metropolitan.


Simply stated, Dominion addressed a statute of limitations issue, while Metropolitan addressed a third-party action issue. Compare Dominion, 754 So. 2d at 855 (addressing whether the trial court erred by "dismissing the action with prejudice, holding that the complaint on its face established that the statute of limitations on a subrogation claim expired before the filing of the complaint") with Metropolitan, 969 So. 2d at 407 (addressing whether "the trial court erred in finding that Metropolitan could bring a third-party action against Lucas").


Therefore, the two decisions do not expressly and directly conflict on the same question of law, and this Court does not have jurisdiction to review this case. See art. V, § 3(b)(3), Fla. Const. (explaining that this Court has discretionary jurisdiction to review a district court decision "that expressly and directly conflicts with a decision of another district court of appeal . . . on the same question of law"). Even if a conflict on the same question of law could be found somewhere in the four corners of the two decisions, the issues presented to the district courts were so different and raised in such different procedural postures that this Court should exercise its discretion to decline review.







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My concern about this Court exercising jurisdiction despite a lack of conflict is amplified by the fact that the majority fails to confine its decision to the record and arguments in this case. No argument has been presented to the trial court, the Fifth District, or this Court relating to the statute of limitations. Yet, the majority "expressly hold[s] that the statute of limitations for the bringing of a UM subrogation action--which cannot be brought until `final resolution of the underinsured motorist claim'--begins to run from the time of the final resolution of the UM claim." Majority op. at 12. Respectfully, the majority opinion's holding goes well beyond anything at issue here. When the statute of limitations begins to run in this case has never been an issue, so it was not briefed. Yet, the Court has decided a very significant legal issue without a factual basis (Metropolitan has not yet asserted a subrogation claim at all--will it be contractual, equitable, statutory, or some variation?) or any legal argument by the parties. The Court should exercise more judicial restraint and not reach a statute of limitations issue not before it. This is simply not the case for this Court to disapprove of the Second District's holding in Dominion regarding statutes of limitations.


Moreover, in Metropolitan, the Fifth District did not hold that the statutory language imposes a condition precedent. It simply held that the language prohibited Metropolitan from filing a third-party action against Lucas and that







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Metropolitan was required to wait to bring a separate action against Lucas after final resolution of Tepper's UM claim. Metropolitan, 969 So. 2d at 407. Thus, neither Dominion nor Metropolitan held that the statutory language imposed a condition precedent as the majority has ruled.


III. MEANING OF SECTION 627.727(6)(b)



On the merits, I believe that the majority utilizes an improper plain meaning analysis to determine that resolution of a UM claim is a condition precedent to bringing a subrogation claim.





As the Second District accurately observed in Dominion, the Florida Legislature uses more plain language than what exists here when it wishes to impose a condition precedent. Dominion, 754 So. 2d at 856-57 (noting that the statute does not impose final resolution as a condition precedent or employ language that no action for subrogation may be filed until then, listing examples).


Importantly, the Legislature expressly utilizes "condition precedent" language throughout the Insurance Code, but it is conspicuously missing in section




627.727(6)(b). See e.g., § 624.155(3)(a), Fla. Stat. (2008) ("As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days' written notice of the violation."); § 627.4136(1), Fla. Stat. (2008) ("It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an







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insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy."); §




634.3284(3), Fla. Stat. (2008) ("As a condition precedent to bringing an action under this section, the department and the insurer shall be given written notice of the violation."). Even without using the exact phrase "condition precedent," the statute does not state that the subrogation claim can be brought "only" upon final resolution of the UM claim. See Sanders v. City of Orlando, 33 Fla. L. Weekly S707, S709 (Fla. Sept. 25, 2008) ("We conclude that if the Legislature had intended for section 440.20(11)(c) to constitute an explicit exception, it would have been explicit. . . ."). Accordingly, I do not agree that the Florida Legislature used plain language to create a condition precedent. See Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So. 2d 64, 67 (Fla. 1980) ("If the [L]egislature had meant for the special injury rule to be preserved in the area of environmental protection, it could easily have said so.").


With section 627.727(6)(b), the Legislature stops short of making final resolution of the UM claim a substantive condition precedent to filing a subrogation claim. In this case, I agree that the statutory language would prohibit Metropolitan from bringing a third-party action because the UM policy does not provide otherwise. However, the absence of condition precedent language in







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section 627.727(6)(b) leaves open the possibility that contractual language could alter the timing of when a subrogation claim could be brought. See generally Bodden v. State Farm Mut. Auto. Ins. Co., 195 F.App'x 858 (11th Cir. 2006) (reviewing a UM policy requiring the insured to file a lawsuit against both the tortfeasor and UM carrier and to secure a judgment in that action). Reading a condition precedent requirement into the statute improperly eliminates the opportunity for parties to contractually modify the timing of a subrogation action to be consistent with when a third-party action is available pursuant to Florida Rule of Civil Procedure 1.180. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So. 2d 823, 832 (Fla. 1st DCA 2006) ("[I]nsurance policies are deemed to incorporate applicable statutes, and conflicting policy provisions must give way."), quashed on other grounds, 967 So. 2d 815 (Fla. 2007).


IV. CONCLUSION


Because Metropolitan assumes inconsistent positions and because there is no express and direct conflict, I would dismiss on the basis that jurisdiction was improvidently granted. Moreover, the statute of limitations issue should not be addressed because it is beyond the scope of this case. On the merits, if it were appropriate to exercise jurisdiction, I would agree with the result of the majority's opinion to the extent it approves the Metropolitan decision, but would disagree that a condition precedent is required by a plain reading of section 627.727(6)(b).







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Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions



Fifth District - Case No. 5D06-3713


(Flagler County)


Michael M. Bell and Mary Grace Dyleski of Bell, Roper & Kohlmyer, P.A., Orlando, Florida, for Petitioner


No Appearance



for Respondent, Robert Tepper


Charles W. Hall and Mark D. Tinker of Banker Lopez Gassler, P.A., St.


Petersburg, Florida, and Charles Chobee Ebbets of Ebbets, Armstrong & Traster, Daytona Beach, Florida,


for Respondent, Angel M. Lucas
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