Brown v. Colonial Penn Insurance Co.

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.