concurring in part dissenting in part.
I respectfully concur in part and dissent in part. I would dismiss the case because Metropolitan has taken inconsistent positions and because the Fifth District Court of Appeal’s decision in Metropolitan Casualty Insurance Co. v. Tepper, 969 So.2d 403 (Fla. 5th DCA 2007), does not conflict with the Second District Court of Appeal’s decision in Dominion of Canada v. State Farm Fire & Casualty Co., 754 So.2d 852 (Fla. 2d DCA 2000). On the merits, if it were appropriate to review this case, 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), Florida Statutes (2004).
I. METROPOLITAN’S INCONSISTENT POSITIONS
Tepper, the injured plaintiff/insured brought an action against Lucas, the alleged tortfeasor (count I for negligence) and against Metropolitan (count II for UM benefits). Metropolitan, 969 So.2d at 404. After Metropolitan paid Tepper $25,000, the settlement offer by Lucas, and preserved its subrogation rights pursuant to section 627.727(6), Florida Statutes (2004), Lucas moved to dismiss Tepper’s claim without objection from Tepper. Id. at 405. Although Metropolitan made no claim of its own against Lucas, it objected to the trial court’s dismissal of Tepper’s claim against Lucas. Id.
The trial court granted Lucas’ motion to dismiss, stating that “[t]he court finds that if Lucas is to be a part of these proceedings based upon the present status of the case, it would have to be based upon a third party action brought by Metropolitan Casualty Insurance Company.” The trial court did not permit Metropolitan to require Tepper’s claim against Lucas to go forward when Tepper had no desire to do so and the policy language did not require it. The only remaining claim in the lawsuit was Tepper’s UM claim against Metropolitan. Accordingly, the trial court noted that under the “present status of the case,” if Metropolitan Casualty wanted to make Lucas “a part of these proceedings,” it would have to bring a third-party action. The trial court did not rule on the merits of a third-party action not yet brought— that would have been premature. It simply stated that “if’ Lucas was to be brought into this UM action, Metropolitan would need to initiate it through its own action rather than require Tepper to bring the claim. Metropolitan elected to not file a third-party claim under the trial court’s ruling and instead appealed Lucas’ dismissal. Accordingly, the third-party complaint was not brought, no legal defense to a third-party complaint under the statutory language of section 627.727(6)(b) was made, and the trial court never reached the merits of the meaning of section 627.727(6)(b).
On appeal to the Fifth District, Metropolitan made three arguments: (i) the trial court erred by looking beyond the four corners of the complaint when it granted *217Lucas’ motion to dismiss; (ii) the trial court’s order directly conflicts with the requirements of section 627.727(6)(b); and (iii) the trial court erred in granting the motion to dismiss because the policy language required Tepper to join Lucas as a defendant. Id. at 405-08. It is the second issue, the interpretation of section 627.727(6)(b), that is before this Court and the basis of alleged conflict jurisdiction.
As the majority recognizes, Metropolitan argued in the Fifth District that the trial court- erred by requiring it to bring a third-party action because the statute required its subrogation claim to be brought after the UM claim was concluded. Specifically, in its initial brief to the Fifth District, Metropolitan argued:
According to the clear language of [section 627.727(6)(b) ], METROPOLITAN’S subrogation claim, if any, necessarily arises after the conclusion of Tepper’s UM claim against METROPOLITAN, not during the pendency of the UM claim.
The Trial Court essentially ordered that LUCAS could be brought back into the proceedings below, only as a third party defendant in an action brought by METROPOLITAN. According to the statute, however, the insurer’s entitlement to a subrogation action against the tortfeasor and its insurer does not exist until after the UM claim is resolved. Thus, the statutory language refutes the Trial Court’s conclusion below that any further participation by LUCAS in the pending UM claim would be as a third party defendant in an action brought by METROPOLITAN. The clear and unambiguous terms of the statute specifically contemplate that an action by the insurer against the tortfeasor arises only after the completion of the insured’s UM claim against its insurer. Consequently, METROPOLITAN is not permitted under the statute to file a subrogation action or a third party action against LUCAS until TEPPER’s UM claim against METROPOLITAN is resolved.
Initial Brief of Metropolitan Casualty Insurance Company at 11-12, Metro. Cas. Ins. Co. v. Tepper, 969 So.2d 403 (Fla. 5th DCA 2007) (emphasis added).
Although the Fifth District concluded that the trial court did not err by dismissing Lucas, it agreed with Metropolitan that the trial court erred in finding Metropolitan could bring a third-party action against Lucas. Metropolitan, 969 So.2d at 407. Metropolitan sought review in this Court, asserting that the Fifth District’s opinion conflicted with the Second District’s opinion in Dominion. In its jurisdictional brief, Metropolitan noted that the Fifth District concluded it could file an action against Lucas only after the final resolution of Tepper’s underinsured motorist claim. Metropolitan Casualty Insurance Company’s Jurisdictional Brief at 3. Metropolitan then noted that the Second District in Dominion held that the statutory provision is permissive and “does not preclude the institution of a subrogation action until after the underinsured claim is resolved.” Id. No mention was made in Metropolitan’s jurisdictional brief or in its initial brief to this Court that the Fifth District’s opinion interpreted the statutory provision consistently with Metropolitan’s argument to that court.
On appeal before this Court, Metropolitan now argues that the Fifth District erred (i) by dismissing Lucas from Tep-per’s claims and (ii) by concluding that a third-party action against Lucas could not be filed because the subrogation claim must wait until after final resolution of the UM claim. This second argument, interpreting section 627.727(6)(b), is contrary to the argument Metropolitan made to the Fifth District. Lucas answers Met*218ropolitan’s initial brief by rejecting Metropolitan’s “contention that it should be permitted to file a subrogation claim against LUCAS prior to the final resolution of TEPPER’s UM claim.... The plain meaning of the emphasized text [from section 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.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 Dominion 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 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 *219would 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 hable to the defendant for all or part of the plaintiffs 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 plaintiffs 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.
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 215. 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 sub-rogation 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 Metropolitan was required to wait to bring a separate action against Lucas after final resolution of Tepper’s UM claim. Metropolitan, 969 *220So.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 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, 997 So.2d 1089, 1094 (Fla.2008) (“We conclude that if the Legislature had intended for section 440.20(ll)(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 [Legislature 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 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 DGA 2006) (“[Ijnsurance policies are deemed to incorporate applicable statutes, and conflicting policy provisions must give *221way”), 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).