Poliakoff v. National Emblem Ins. Co.
| Decision Date | 08 June 1971 |
| Docket Number | No. 70-925,70-925 |
| Citation | 249 So.2d 477 |
| Parties | Gary A. POLIAKOFF, Appellant, v. NATIONAL EMBLEM INSURANCE COMPANY, an Illinois corporation, Appellee. |
| Court | Florida District Court of Appeals |
Becker & Kimler, Miami, for appellant.
Adams, George, & Wood and David L. Willing, Miami, for appellee.
Before PEARSON, C. J., and CHARLES CARROLL and BARKDULL, JJ.
The appellant urges that the trial court erred in dismissing his complaint for damages upon a claim of fraudulent misrepresentation. The appellee urges that the complaint was properly dismissed because it showed upon its face that the action was barred by that portion of F.S. § 725.01, F.S.A., which provides:
'No action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.'
Thus it appears that we are faced with conflicting theories of the case. Appellant construes his action as one in tort for fraudulent misrepresentation. Appellees see the action as one upon an oral agreement. The complaint alleges: (1) The appellee, National Emblem, was doing business in Florida as an automobile insurance company; the appellee, Bryan, was the agent and employee of National Emblem. (2) The appellant made a disclosure to the appellees of his driving record and his wish to buy a 'non-cancellable' insurance policy. Appellees represented that they would sell him a 'non-cancellable' policy. Appellees' representation was knowingly made and false. (3) Appellant acted upon the false representation by purchasing a policy which was cancelled without stated reason within two months of the date of purchase.
The essential elements of fraud are: (1) a false statement of fact; (2) known by the defendant to be false at the time it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff. Finney v. Frost, Fla.App.1969, 228 So.2d 617; Abbate v. Nolan, Fla.App.1969, 228 So.2d 433; Tonkovich v. South Florida Citrus Industries, Inc., Fla.App.1966, 185 So.2d 710 (cause Fla.1967, 196 So.2d 438 and Fl...
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...from justifiable reliance. Entron, Inc. v. General Cablevision, 435 F.2d 995, 997 (5th Cir. 1970); Poliakoff v. National Emblem Insurance Co., 249 So.2d 477, 478 (Fla.Dist.Ct.App.), Cert. denied, 254 So.2d 790 (Fla.1971). The knowledge requirement is met by Henderson, Gaines, Blackburn, Kir......
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..." Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (5th Cir.1974), quoting Poliakoff v. National Emblem Insurance Company, 249 So.2d 477, 478 (Fla.App., 3d Dist.1971). The most substantial attack made by the appellant deals with the sufficiency of the evidence for one of these ......
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