author: LEWIS, J. WELLS, J.,

text:
    Rolando VILLAZON, etc., Petitioner, v. PRUDENTIAL HEALTH CARE PLAN, INC., Respondent.
    No. SC01-1397.
    Supreme Court of Florida.
    March 27, 2003.

      James C. Blecke of Deutsch & Blum-berg, P.A., Miami, FL, for Petitioner.
    Steven M. Ziegler and Andres Gonzalez of the Law Offices of Steven M. Ziegler, P.A., Hollywood, FL, for Respondent.
    David J. Sales and Searcy Denney Sca-rola of Barnhart & Shipley, West Palm Beach, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.
    Louise H. McMurray of McIntosh, Saw-ran, Peltz & Cartaya, P.A., Miami, FL, for the Florida Association of Health Plans, Amicus Curiae.
    Joel L. Michaels, Barbara W. Mayers, and Robin J. Bowen of McDermott, Will & Emery, Washington, DC, for the American Association of Health Plans, Amicus Curiae.
   LEWIS, J.

We have for review Villazon v. Prudential Health Care Plan, Inc., 794 So.2d 625 (Fla. 3d DCA 2001), which expressly and directly conflicts with the decision in In re Estate of Frappier, 678 So.2d 884 (Fla. 4th DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

MATERIAL FACTS AND PROCEEDINGS BELOW

Petitioner Rolando Villazon, personal representative of the estate of his deceased wife, Susan Villazon, seeks review of the decision of the Third District Court of Appeal affirming the trial court’s summary judgment in favor of Prudential Health Care Plan, Inc., (PruCare) in Petitioner’s action against PruCare for the wrongful death of his wife. Through her employer, Susan Villazon became a member of PruCare, a health maintenance organization. After having a mouth ailment allegedly misdiagnosed or mistreated, Mrs. Villazon died as a result of an untreated cancerous tongue condition.

Villazon filed an action for wrongful death based on negligence against Mrs. Villazon’s primary care physician, Dr. Mel-vyn Sarnow, and against her health care provider, respondent PruCare. In Count VI of his amended complaint, Villazon alleged the basis for PruCare’s vicarious liability and breach of a nondelegable duty to be:

94. The Defendant, PRUDENTIAL HEALTH CARE PLAN, INC. is a health maintenance organization doing business in Dade County Florida as defined by and governed by Section 641.17 et seq., Florida Statutes; Chapter 4-31, Florida Administrative Code; 42 U.S.C. Section 300(e); and 42 C.F.R. Part 417.
95. SUSAN COHEN VILLAZON was a PRUDENTIAL HEALTH CARE PLAN, INC. subscriber under a health maintenance contract by which PRUDENTIAL HEALTH CARE PLAN, INC. agreed to provide SUSAN COHEN VILLAZON with comprehensive health care services.
96. By statute, rule, and contract, the Defendant, PRUDENTIAL HEALTH CARE PLAN, INC., had the non-dele-gable duty to provide SUSAN COHEN VILLAZON with quality health care including without limitation, in-patient hospital services, and medical, surgical, diagnostic, x-ray, laboratory, nursing, physical therapy, and pharmaceutical services.
97. The Defendant, PRUDENTIAL HEALTH CARE PLAN, INC., contracted with Melvyn Sarnow, D.O., Basi-lio Garcia-Sellek, D.O. and Harvey S. Satz, D.M.D., to provide SUSAN COHEN VILLAZON with health care services, and PRUDENTIAL HEALTH CARE PLAN, INC. is responsible for any and all negligence of Melvyn Sar-now, D.O., Basilio Garcia-Sellek, D.O. and Harvey S. Satz, D.M.D. in the rendering [or] failure to render health care to SUSAN COHEN VILLAZON, as more specifically set forth herein.
98. The Defendant, PRUDENTIAL HEALTH CARE PLAN, INC. as set forth herein breached its duty to provide quality health care to SUSAN COHEN VILLAZON, resulting in her death.
99. As a result of the acts and conduct of the Defendant, PRUDENTIAL HEALTH CARE PLAN, INC., by and through its agents, apparent agents, employees, SUSAN COHEN VILLAZON sustained injury and ultimately died on February 9,1997.

(Emphasis supplied.) As set forth in the Third District’s opinion:

Villazon argues that Prudential Health care controlled the referral process and required that authorization be obtained prior to the performance of diagnostic and therapeutic procedures. Prudential Health also required that the contracted physicians adhere to rules and seek approval for diagnostic tests. Physicians had to provide and arrange health care services through Prudential Health and refer subscribers to contracted providers. Villazon, however, does not allege that his wife was denied proper medical testing and referrals to specialists.

Villazon, 794 So.2d at 626.

PruCare filed a motion for summary judgment, asserting that the claims filed against it were preempted by section 514(a) of the Employee Retirement Income Security Act (ERISA), and that Vil-lazon could not prevail on those claims as a matter of state law. The trial court entered summary final judgment in favor of PruCare, holding that “ERISA governed the claims filed against [PruCare] because they related to the manner in which [Pru-Care] administered its health care plans, and further, that there were no issues of fact as to the theory of vicarious liability or any recognizable cause of action for breach of a non-delegable duty against [PruCare] under state law.” Villazon, 794 So.2d at 626-27. On appeal, the district court agreed. Id. at 627.

In addressing the state law issues, the Third District rejected Villazon’s position and reasoned that the medical providers were independent contractors because as an independent practice associated health maintenance organization (IPA HMO), PruCare entered into contracts with physicians who had their own independent practices and who agreed to provide covered services for a contracted rate. The district court highlighted that Dr. Sarnow was an independent contractor who had his own private practice and agreed to render services to PruCare subscribers pursuant to a Primary Care Physician Agreement, continuing his own independent practice after he entered into this agreement.

In rejecting Villazon’s argument that PruCare had assumed a nondelegable duty to render medical care to his wife in a nonnegligent manner when she purchased health care coverage from PruCare, the court noted that Villazon had not cited any support for this proposition. The court looked only to the contract between Pru-Care and the physicians and reasoned that it was the best evidence of the intent of the parties, and its meaning and legal effect were questions of law for determination by the court. It was important to the court below that the contractual provisions designated physicians as independent contractors, and the court found no evidence of control upon which to justify imposing responsibility on PruCare. Villazon, 794 So.2d at 627-28. In focusing solely on the one contract that attempted to designate physicians as independent contractors and also limiting its vision to the issue of actual control, the Third District’s decision is also in conflict with Nazworth v. Swire Florida, Inc., 486 So.2d 637 (Fla. 1st DCA 1986), which demonstrates that it is the right to control, not the actual control, that may be determinative.

ERISA PREEMPTION

As did the district courts in Villa-zon and Frappier, we begin our legal analysis by determining the threshold issue of ERISA preemption. Villazon correctly cites Frappier for the proposition that “[i]f a claim relates to the manner in which the ERISA plan is administered, ERISA preempts the claim.” Villazon, 794 So.2d at 627; see also Frappier, 678 So.2d at 887 (“Concerning the direct negligence, corporate liability and implied contract claims, we concur with the lower court’s decision that these allegations would be completely preempted because they present issues unequivocally related to the administration of the plan and are within the scope of section 502(a)(1)(B).”) (emphasis supplied).

However, Villazon directly conflicts with Frappier in its determination of whether a state law wrongful death claim by a deceased patient member’s estate against a health maintenance organization (HMO) based upon vicarious liability for asserted medical malpractice of its member physicians “relates to” administration of the ERISA plan and is therefore preempted. In Villazon, the district court below incorrectly concluded that it did. See Villazon, 794 So.2d at 627 (determining that Villazon’s claims “directly relate to the health plan as they arise from the denial of medical care and treatment benefits”). In Frappier, in contrast, the district court correctly determined that ERISA does not preempt such vicarious liability claims.

In Frappier, the decedent’s estate filed an action against Health Options, Inc., an HMO, and the two Health Options physicians who had provided medical care to Frappier, asserting that medical malpractice had occurred. The trial court had dismissed Frappier’s complaint with prejudice. Frappier, 678 So.2d at 885.

The appellate court remanded the case to the trial court to determine whether an ERISA plan ever existed, agreeing that “this threshold question must be resolved prior to addressing the issue of whether the dismissed counts are preemptable.” Id. Nevertheless, the district court was “compelled to address the merits of the trial court’s determination that the estate’s claims against Health Options are preempted by the federal ERISA statute.” Id. at 886. Nor was this exercise simply gratuitous, as reflected in the district court’s directive to the trial court, in remanding the case: “Upon an appropriate finding, the trial court may dismiss the estate’s direct negligence, corporate liability and implied contract claims for a lack of subject matter jurisdiction. However, in no event may the vicarious liability count be dismissed as the same does not ‘relate to’ an employee benefit plan.” Id. at 888 (emphasis supplied).

Because no Florida case had yet addressed whether direct negligence or vicarious liability claims against an entity involved in an ERISA plan are preempted, the Fourth District found guidance from decisions rendered by federal courts. It first framed the inquiry pursuant to section 514(a) of ERISA:

The ERISA regulatory scheme was promulgated to entrench as exclusively a federal matter pension plan legislation. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The governing provision of ERISA relevant to this discussion is section 514(a) which provides that “this Chapter shall supersede any and all state laws insofar as they may now or hereafter ‘relate to’ any employee benefit plan.” 29 U.S.C. § 1144(a).
Properly phrased, the issue becomes whether Frappier’s claims against Health Options as delineated in counts III-VI of the complaint are to recover plan benefits due, or to enforce rights, or to clarify rights to benefits under the terms of the plan, as those concepts are detailed in section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). Although Pilot Life suggested an expansive interpretation of the triggering jurisdictional clause of the ERISA federal regulatory scheme, the United States Supreme Court in New York Blue Cross v. Travelers Ins., 514 U.S. 645, 1156 S.Ct. 1671, 131 L.Ed.2d 695 (1995), and several more recent lower federal court decisions caution against a literal reading of section 514(a) in determining whether preemption is appropriate. New York Blue Cross directs that in construing the “relate to” phrase of section 514(a), trial courts must analyze the objectives of the ERISA statute to resolve which state laws Congress contemplated would continue to survive the ambit of federal regulation. Id. at 656, 115 S.Ct. at 1677. In other words, statutory or common law claims actionable in state court that are periphery or remotely related to competing laws affecting ERISA should not be preempted to federal court. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1988).

Frappier, 678 So.2d at 886-87. In deciding that ERISA did not preempt Frappier’s vicarious liability claim, the district court made a key distinction between causes of action based upon an HMO having administratively withheld benefits from its member patient and those based upon the quality of HMO benefits actually provided:

In its appellate decision, the Dukes court drew the distinction between a lawsuit against an ERISA claiming the withholding of benefits and a claim initiated by Dukes which attacked the quality of benefits provided by the HMO. Id. at 357. As the court explained:
[T]he plaintiffs claims, even when construed as U.S. Healthcare suggests, merely attack the quality of the benefits they received: The plaintiffs here simply do not claim that the plans ' erroneously withheld benefits due. Nor do they ask the state courts to enforce their rights under the terms of their respective plans or to clarify their rights to future benefits. As a result, the plaintiffs’ claims fall outside of the scope of § 502(a)(1)(B) and these cases must be remanded to the state courts from which they were removed.
Id. at 356. Accordingly, Dukes considered and rejected the line of eases cited and relied upon by the lower court in determining that ERISA preempts the instant vicarious liability claim. We agree with the factual dichotomy expressed in Dukes that is critical for this analysis:
[Tjhere is no allegation here that the HMOs denied anyone any benefits that were due under the plan. Instead the plaintiffs here are attempting to hold the HMOs liable for their role as the arrangers of their decedents’ medical treatment.
Id. at 361.
Thus where, as here, an ERISA is implicated by a complaint for failing to provide, arrange for, or supervise qualified doctors to provide the actual medical treatment for plan participants, federal preemption is inappropriate. See Independence HMO, Inc. v. Smith, 733 F.Supp. 983, 987-89 (E.D.Pa.1990); Elsesser v. Hospital of the Philadelphia College of Osteopathic Medicine, 802 F.Supp. 1286, 1290-1291 (E.D.Pa.1992); Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186-87 (E.D.Pa.1994); Dearmas v. Av-Med, Inc., 865 F.Supp. 816 (S.D.Fla.1994); Paterno v. Albuerne, 855 F.Supp. 1263 (S.D.Fla.1994); Burke v. Smithkline Bio-Science Lab., 858 F.Supp. 1181 (M.D.Fla.1994); Rice v. Panchal, 65 F.3d 637 (7th Cir.1995); Pacificare of Oklahoma v. Burrage, 59 F.3d 151 (10th Cir.1995). Therefore, even if Health Options is an ERISA subject to federal preemption, we must conclude that the trial court erred in dismissing the vicarious liability count of the instant complaint.

Frappier, 678 So.2d at 887. We conclude that this ERISA preemption discussion is a correct interpretation as applied to state law causes of action against HMOs based upon allegations of direct and vicarious liability for negligence in the provision of medical services to member patients. See also In re U.S. Healthcare, Inc., 193 F.3d 151, 162-63 (3d Cir.1999) (claims against HMOs for vicarious liability based upon medical negligence of its physicians are not preempted by ERISA); Dukes, 57 F.3d at 356-58 (same); Rice v. Panchal, 65 F.3d 637, 645 (7th Cir.1995) (same); Paci ficare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 155 (10th Cir.1995) (same); Paterno v. Albuerne, 855 F.Supp. 1263, 1264 (S.D.Fla.1994) (same); Hinterlong, 241 Ill.Dec. at 870, 720 N.E.2d at 325 (same); Pappas v. Asbel, 564 Pa. 407, 768 A.2d 1089, 1095-96 (2001) (same), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002) (Pappas II).

A similar analysis was employed by the Pennsylvania Supreme Court in Pappas II upon remand from the United States Supreme Court. In Pappas v. Asbel, 555 Pa. 342, 724 A.2d 889 (1998) (Pappas I), the Pennsylvania Supreme Court had originally held that the plaintiffs claim for vicarious liability against the HMO was not preempted by ERISA. See id. at 893. Upon appeal to the United States Supreme Court, the case was remanded to the Pennsylvania Supreme Court for reconsideration in light of Pegram v. Herdrich, 530 U.S. 211, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). In applying the reasoning in Pe-gram, the Pappas II court again determined that the plaintiffs claim was not subject to conflict preemption under ERISA:

We now turn, as instructed by the Supreme Court, to a reconsideration of our decision in Pappas I in light of Pegram. ...
The Court [in Pegram ] ... held that Congress did not intend that any HMO be treated as an ERISA fiduciary to the extent that it makes mixed eligibility and treatment decisions acting through its physicians. Id. at 2155. [Note 4] Observing that under the common law of trusts, which is the source of ERISA’s fiduciary duties, fiduciary responsibility characteristically attaches to financial decisions about managing assets and property, the Court doubted that Congress would have ever thought of a mixed decision as fiduciary in nature. Id. at 2155-56. Because the defense of any HMO of a mixed decision would be that its physician acted for good medical reasons, the plausibility of which would require reference to traditional standards of reasonable medical practice in like circumstances, the Court was concerned that a decision to view a mixed decision as an act of ERISA fiduciary duty would “federalize malpractice litigation”. Id. at 2157-58. Lastly, the Court touched upon (but declined to resolve) the “puzzling issue of preemption” that would be raised by the imposition of ERISA’s fiduciary requirements upon an HMO physician making a pure treatment or mixed decision, in view of its holding in Travelers:
On its face, federal fiduciary law applying a malpractice standard would seem to be a prescription for preemption of state malpractice law, since the new ERISA cause of action would cover the same subject of a state-law malpractice claim.... To be sure, [:Travelers ] throws some cold water in the preemption theory; there, we held that, in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose. But in that case the convergence of state and federal law was not so clear as in the situation we are positing; the state-law standard had not been subsumed by the standard to be applied under ERISA. We could struggle with this problem, but first it is well to ask, again, what would be gained by opening the federal courthouse doors to a fiduciary malpractice claim....
Pegram, at 2158 (citations omitted).
[Note 4] The HMO in Pegram was owned by its physicians. U.S. Healthcare contracts with independent physicians to provide services. Pegram’s result was based on the nature of the HMO’s decision, not on the structure of the HMO making it. Pegram, 580 U.S. at 230-81, 120 S.Ct. at 2155. Further, the Supreme Court’s holding was all-inclusive as to HMOs. Id. Thus, the difference in organization between the HMO in Pegram and U.S. Healthcare is not relevant to this analysis.
While Travelers and Pegram deal with different aspects of ERISA, for our present purposes, they share common ground. Travelers instructs that ERISA does not preempt state law that regulates the provision of adequate medical treatment. Pegram instructs that an HMO’s mixed eligibility and treatment decision implicates a state law claim for medical malpractice, not an ERISA cause of action for fiduciary breach. Thus, if Haverford’s third party claim against U.S. Healthcare arose out of a mixed decision, it is, according to Pegram, subject to state medical malpractice law, which is what Haverford asserted. Moreover, under Travelers, it is not preempted by ERISA.
Not surprisingly, U.S. Healthcare argues that its decision about Pappas’ referral “constituted a quintessential ‘coverage’ determination”. We, however, disagree. In our view, the undisputed facts in this case, and the inferences drawn from them, establish the sort of mixed eligibility and treatment decision that Pegram discussed. Dr. Leibowitz, U.S. Healthcare’s physician, reviewed Pappas’ case, and rejected another medical doctor’s opinion based on his clinical judgment that Pappas needed to be referred to Jefferson for treatment of a medical emergency. Instead of referring Pappas to Jefferson, a non-HMO hospital, as Dr. Dickter recommended, Dr. Leibowitz referred Pappas to one of three other facilities for medical care. He did not, in the Supreme Court’s words, only make a “simple yes or no” decision as to whether Pappas’ condition was covered; it clearly was. Rather, Dr. Leibowitz also determined where and, under the circumstances, when Pappas’ epidermal abscess would be treated. His was a mixed eligibility and treatment decision, the adverse consequences of which, if any, are properly redressed, as Pegram teaches, through state medical malpractice law. This law as Travelers teaches, is not preempted by ERISA.

Pappas II, 768 A.2d at 1093-96 (some footnotes omitted).

The Second Circuit’s recent interpretation of the United States Supreme Court’s decision in Pegram also has application here. In Cicio v. Does, 321 F.3d 83 (2d Cir.2003), the circuit court held that “a state law malpractice action, if based on a ‘mixed eligibility and treatment decision,’ is not subject to ERISA preemption when that state law cause of action challenges an allegedly flawed medical judgment as applied to a specific patient’s symptoms.” Id. at 102. The court’s decision correctly recognizes that HMO plan administration is often inextricably intertwined with treatment decisions, and that ERISA does not preempt viable state law causes of action arising from such decisions. The Cicio decision is consistent with and reflective of the current state of the law in Florida.

Here, Villazon bases his vicarious liability claim against PruCare on allegations that agents or apparent agents of PruCare made negligent treatment decisions in caring for Mrs. Villazon. As the Pappas II court correctly observed, “Travelers instructs that ERISA does not preempt state law that regulates the provision of adequate medical treatment.” Pappas II, 768 A.2d at 1095; see also Frappier, 678 So.2d at 886 (recognizing that the United States Supreme Court in Travelers and “several more recent lower federal court decisions caution against a literal reading of section 514(a) in determining whether preemption is appropriate”).

Therefore, applying the analysis employed in Frappier and Pappas II, we conclude that Villazon’s complaint for vicarious liability — which was clearly based upon allegations of negligent failure to provide adequate medical treatment for his wife’s cancer — is not subject to ERISA conflict preemption. See also Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 958 F.Supp. 1137, 1150 & n. 46 (E.D.Va.1997) (citing Pacificare, 59 F.3d at 155) (“We agree with the district court that reference to the plan to resolve the agency issue does not implicate the concerns of ERISA preemption.”); Jackson v. Roseman, 878 F.Supp. 820, 826 (D.Md.1995) (“As for a determination of an HMO’s vicarious liability, the court correctly opined that reference to the plan, if any, will be necessary only for proving matters of agency, not for wrongful plan administration or of the withholding of promised benefits.”); Haas v. Group Health Plan, Inc., 875 F.Supp. 544, 549 (S.D.Ill.1994) (“The mere fact that a claim requires examination of a plan to resolve a contractual issue does not alone justify preemption.”); Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186 (E.D.Pa.1994) (“That one may refer to the contents of a plan to adduce evidence that it held out a particular person as its employee or agent to help sustain a cause of action does not implicate the concerns underlying the ERISA preemption provision.”). Accordingly, we approve the preemption analysis in Frappier, and quash the decision in Villazon to the extent of inconsistency with our opinion here.

VICARIOUS LIABILITY

Turning now to the state law issue, there are multiple different theories upon which vicarious liability was sought to be imposed: a nondelegable duty under the HMO Act; common law actual agency; and common law apparent agency. We agree with the district court’s rejection of Villazon’s argument that PruCare “assumed a non-delegable duty to render medical care to his wife in a non-negligent manner when she purchased health care coverage from Prudential Health.” Villazon, 794 So.2d at 628. Villazon argues that such nondelegable duty arises under the “Health Maintenance Organization Act,” sections 641.17-641.3923, Florida Statutes (2000) (the “Act”). The Act does not specifically provide a private right of action for damages based upon an alleged violation of its requirements. Cf. Greene v. Well Care HMO, Inc., 778 So.2d 1037, 1040 (Fla. 4th DCA 2001) (holding that the Act, which provides for attorney’s fees “[i]n any civil action brought to enforce the terms and conditions of a health maintenance organization contract” does not provide for attorney’s fees in a civil action based upon a bad faith breach of contract claim). There are other regulatory statutes in which the legislature has specifically created a private right of action. In the nursing home statute, for example, the legislature created a nursing home resident’s “right to receive adequate and appropriate health care,” see § 400.022(1)(Z), Fla. Stat. (1997), and a concomitant private right of action for deprivation of a resident’s statutory rights. See § 400.023(1), Fla. Stat. (1997); Somberg v. Florida Convalescent Ctrs., Inc., 779 So.2d 667, 668 (Fla. 3d DCA 2001), approved, 840 So.2d 998 (Fla.2003). Absent such expression of intent, a private right of action is not implied. Cf. Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla.1994) (“In general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability.”) (quoting Moyant v. Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA 1990)).

This does not, however, preclude the right to bring a common law negligence claim based upon the same allegations. See Greene, 778 So.2d at 1042 (holding that the plaintiffs should be “given the opportunity to amend the complaint and try to state a cause of action on these common law claims” based upon Well Care’s alleged negligent failure to authorize medically necessary services “before the court rules that [no such cause of action] exists in relation to Well Care”). Further, contrary to the district court’s decision below, we conclude that here, at the summary judgment level, it has not been conclusively established that there are no genuine issues of material fact with regard to the motion for summary judgment concerning Villazon’s common law negligence claim based upon allegations that Mrs. Villazon’s treating physicians were agents or apparent agents of Pru-Care. Cf. Lewis v. Central Okla. Med. Group, Inc., 998 P.2d 202, 205-06 (Okla.Ct.App.1999) (holding that the disputed agency issue must be determined by the trier of fact where the plaintiff had produced sufficient evidence of agency to defeat the defendant HMO’s summary judgment motion, even though the HMO’s certificate of group health coverage expressly provided that the decedent’s physicians were independent contractors).

The existence of an agency relationship is normally one for the trier of fact to decide. See Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 494 (Fla.1983). In reviewing a judgment entered pursuant to a motion for summary judgment, reasonable inferences should be resolved against the movant. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); Wills v. Sears, Roebuck & Co., 351 So.2d 29, 32 (Fla.1977). “[A] judgment should not be rendered in such proceedings unless the facts are so crystallized that nothing remains but questions of law.” Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957).

Here, in affirming the trial court’s summary final judgment in favor of Pru-Care on the issue of agency, the district court concluded that all medical providers were independent contractors simply because as an IPA HMO, PruCare entered into contracts with physicians who had their own independent practices and who agreed to provide covered services for a contracted rate. The district court concluded that because the contractual provisions designated the physicians as independent contractors and that there was no evidence that PruCare exercised actual control over the medical judgments and decisions made in the care and treatment of Villazon’s wife, summary judgment was appropriate. Villazon, 794 So.2d at 627-28. Although the district court’s view was that there was no evidence that PruCare exercised actual control over Dr. SarnowA medical judgments in this case, that, alone, is not the proper test.

When one considers an action based on actual agency, it is the right to control, rather than actual control, that may be determinative. See Nazworth v. Swire Fla., Inc., 486 So.2d 637, 638 (Fla. 1st DCA 1986) (“The standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. More particularly, it is the right of control, and not actual control, which determines the relationship between the parties.”).

As can be seen from decisions such as Stoll v. Noel, 694 So.2d 701 (Fla.1997), independent contractors may indeed become agents depending on the totality of the circumstances. The degree of control retained or exercised may certainly be determined by a single contract or, as in Stoll, by reference to multiple writings, policies, or procedures that may be operative in addition to an underlying contract. See id. at 703. While an evaluation of a single contract may be a question of law to be determined by the court, when there are multiple relationships along with multiple practices and procedures to be evaluated, and the totality of the evidence is susceptible to multiple inferences and interpretations, the existence and scope of an agency relationship are generally questions of fact.

It is not uncommon for parties to include conclusory statements in documents with regard to the independence of the relationship of the parties. This may occur even when other contractual provisions and the totality of the circumstances reflect otherwise. Such a situation has caused this Court to reason:

While the obvious purpose to be accomplished by this document was to evince an independent contractor status, such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other.

Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966); see also Parker v. Domino’s Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993) (holding that the nature and extent of the relationship of parties with regard to agency presents a question of fact and is not controlled by descriptive labels employed by the parties); Nazworth, 486 So.2d at 638 (recognizing that the use of descriptive labels in a contract is not determinative of the actual legal relationship between parties). The physician’s contractual independent contractor status does not alone preclude a finding of agency.

Here, the record evidence reflects significant indicia of PruCare’s right to control the means by which medical services were rendered by Member Physicians to Member Patients. The facts peculiar to each case must govern the ultimate disposition. While physicians of the past in the traditional pattern of American life may have constituted distinct independent entities and independent centers of occupation and profession, that model has been dramatically altered through the HMO concept in a significant manner which a legal system cannot simply ignore. The thought of visiting a private and independent office of a totally independent physician may now be one more of history and cultural conditioning than current reality. The economic structures alone may so impact the relationships that the prism through which we consider and evaluate issues of control must be honed for this current reality.

On deposition, the PruCare representative, Dominick Messano, testified regarding PruCare’s relationship with the HMO network physicians. Consistent with the Certificate of Coverage, Messano indicated that PruCare determines which providers are part of the HMO network, and that HMO patient members are required to use HMO network physicians. Significantly, the Certificate of Coverage contains provisions which demonstrate PruCare’s right to control important aspects of patient care provided by the HMO.

In Part I (explaining the scope of Group Health Care Coverage), the Certificate provides that PruCare “will arrange or provide for benefits for the Eligible Services and Supplies” set forth in the Certificate of Coverage. All Eligible Services and Supplies must be furnished by a Primary Care Physician, another Participating Health Care Provider authorized by a Primary Care Physician, or a Non-Participating Health Care Provider authorized by a Primary Care Physician. “In addition, certain services and supplies” (such as infertility services or counseling services upon the death of a terminally ill covered person) “must be authorized by the Medical Director to be eligible.”

Further, the definitions section contains these operative provisions:

(1) Covered Persons may be referred to Consulting Physicians only if “referred for care in writing by a Participating Physician,” and only if such “services have been approved, in advance, by the Medical Director and confirmed in 'writing by the Medical Director.”
(2) A “Medical Director” is defined as a “Physician who is a consultant retained by PruCare to coordinate and supervise the delivery of health care services for Covered Persons through Participating Physicians and Participating Health Care Providers.”
(3) A “Participating Health Care Provider” is defined as a “Physician, Hospital or other provider of medical services or supplies which is licensed or certified in the state in which it is located and which has agreed with PruCare, directly or indirectly, to arrange or provide for furnishing services and supplies for medical care and treatment to Covered Persons.”
(4) A “Primary Care Physician” is defined as a “Physician who is a Participating Health Care Provider and who is chosen by a Covered Person to have the responsibility for” providing medical services and initiating referrals to other participating health care providers.
(5) “Specialty Care Physicians” are defined as participating health care providers who provide “certain specialty medical care to Covered Persons upon referral by a Primary Care Physician, as approved by the Medical Director.”

Indeed, while on the one hand, the Certificate of Coverage contains a disclaimer which states that participating hospitals and physicians have an independent contractor relationship with PruCare, on the other hand, it reflects PruCare’s recognition of potential liability for its part in “mak[ing] arrangements for furnishing supplies and services to Covered Persons.” This is evidenced by inclusion of a provision that “[n]either the Contract Holder nor any Covered Person under the Group Contract will be liable for any acts or omissions of PruCare, its agents or employees, or any Hospital, Physician or other health care provider with which Pru-Care, its agents or employees” makes such arrangements.

These contractual provisions, along with the contractual provisions between the HMO and the physicians, and the totality of the circumstances operating within the current reality of the interaction within the decision-making process, create genuine issues of material fact sufficient to withstand a motion for summary judgment with respect to the question of whether PruCare can be held vicariously liable for the alleged medical negligence of its member physicians when providing service pursuant to the PruCare health plan under theories of actual agency. PruCare has not conclusively demonstrated the absence of genuine issues of material fact.

As for the cause of action based on apparent agency, however, it must be remembered that apparent authority exists “only where the principal creates the appearance of an agency relationship.” Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So.2d 775, 777 (Fla. 3d DCA 1986). Therefore, as to the claim of apparent agency, because this issue has not been fully addressed, on remand the trial court should have the opportunity to reevaluate whether under an apparent agency theory there are genuine issues of material fact.

Accordingly, we quash the decision in Villazon to the extent of inconsistency with this opinion, and remand to the district court for further proceedings in accordance herewith.

It is so ordered.

ANSTEAD, C.J., PARIENTE and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur.

WELLS, J., concurs in part and dissents in part with an opinion.

WELLS, J.,

concurring in part and dissenting in part.

I concur with the majority on all issues except I dissent from the quashing of the district court’s summary judgment on the issue of agency. I find that the majority decision’s finding of a factual basis for agency on a “right to control” theory is not in accord with the record, which demonstrates that the physician was an independent practitioner. I believe this Court should not interfere with and frustrate what this business arrangement was clearly intended to be, which was an independent physician-health care benefit administrator arrangement. I would approve the decision of the district court on this issue.

      . Villazon also raised negligence claims against Mrs. Villazon's other treating physicians, Dr. Harvey S. Satz and Dr. Basilio Garcia-Selleck. The actions against these doctors were settled.

      . Pub.L. No. 93-406, 88 Stat. 832 (1974) (codified as amended at 29 U.S.C. §§ 1001-1461 (2000)).

      . Indeed, in Hinterlong v. Baldwin, 308 Ill.App.3d 441, 241 Ill.Dec. 860, 720 N.E.2d 315 (1999), the Illinois appellate court, in addressing the same issue raised here as one of first impression under Illinois law, correctly cited (among other cases) Frappier, 678 So.2d at 887, for the proposition that, based upon the United States Supreme Court's decision in New York Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), a state law medical malpractice claim against an HMO based upon vicarious liability did not “relate to” an employee benefit plan and thus was not preempted. See Hinterlong, 241 Ill.Dec. 860, 720 N.E.2d at 322.

      . The district court in Frappier concluded that, "even if Health Options is an ERISA subject to federal preemption,” the trial court had "erred in dismissing the vicarious liability count of the instant complaint.” In so doing, it rejected "outright as a distinction without substance Appellee's argument that Frappier's drafting of Count II employs language suggesting a theory of ‘apparent agency' as opposed to 'vicarious liability.’ A review of the foregoing discussed cases indicates these phrases are used interchangeably and at most, present a mere semantic rather than a legal distinction.” Frappier, 678 So.2d at 887 & n. 1.

      . Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir.1995).

      . Oddly, even though the Pegram decision predated the district court’s decision in Villa-zon, the Third District did not mention Pe-gram in its opinion.

      . As the Third District observed:
      In his complaint, Villazon specifically alleged that Prudential Health breached a non-delegable duty to provide comprehensive health care, and was vicariously liable for the negligence of its contracted health care providers. Villazon argues that Prudential Health care controlled the referral process and required that authorization be obtained prior to the performance of diagnostic and therapeutic procedures. Prudential Health also required that the contracted physicians adhere to rules and seek approval for diagnostic tests. Physicians had to provide and arrange health care services through Prudential Health and refer subscribers to contracted providers. Villazon, however, does not allege that his wife was denied proper medical testing and referrals to specialists.

        Villazon, 794 So.2d at 626.

      . In DeBuono v. NYSA-ILA Medical & Clinical Services Fund, 520 U.S. 806, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), the United States Supreme Court observed that, in its earlier cases, it had "noted that the literal text of § 514(a) is 'clearly expansive,’ ” id. at 813, 117 S.Ct. 1747 (citing Travelers, 514 U.S. at 655, 115 S.Ct. 1671), and cautioned against too broad a reading of the "relate to” clause. See id. at 812-13 & n. 7, 117 S.Ct. 1747 (citing California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., 519 U.S. 316, 335, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)) (Scalia, J., concurring) (“[A]pplying the 'relate to' provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.”).

      . Section 641.28, Florida Statutes (2002), provides:
      Civil remedy.' — In any civil action brought to enforce the terms and conditions of a health maintenance organization contract, the prevailing party is entitled to recover reasonable attorney's fees and court costs. This section shall not be construed to authorize a civil action against the department, its employees, or the Insurance Commissioner or against the Agency for Health Care Administration, its employees, or the director of the agency.

      . As stated by this Court in Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990), "Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent. Restatement (Second) of Agency •§ 1 (1957).” Id. at 424 n. 5.

      . In a different context, it has been observed that professionals may serve in some capacities as independent contractors, and in others (when subject to a right of control) as employees. As reflected in the Restatement:
      ''[independent contractor” is a term which is antithetical to the word "servant”, although not to the word "agent”. In fact, most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors as the term is used in the Restatement of this Subject, since they are contractors but, although employed to per- . form services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agents. They are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience. Some of them also fall within the category of trustee, as in the case of a selling agent who has been given title to the subject matter. Colloquial use of the term excludes independent contractor from the category of agent as a similar use excludes trustees, but in both cases there is an agency if in the transaction which they undertake they act for the benefit of another and subject to his control.
      Restatement (Second) of Agency § 14N cmt. a (1958).

      . We express no opinion regarding the ultimate disposition of this case, or whether there will ultimately be sufficient proof of vicarious liability in this matter. Our holding is restricted to a determination that ERISA does not preempt Villazon s vicarious liability claim, and that sufficient record evidence has been adduced to withstand the defendant HMO's motion for summary judgment with respect to the claim of vicarious liability.


source: Caselaw Access Project

author:
PER CURIAM. PARIENTE, J.,
      WELLS, J.,

license: Public Domain

text:
    Roger Stewart HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. SC00-1598.
    Supreme Court of Florida.
    March 27, 2003.

      James E. Taylor, Jr., Orlando, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

We have on appeal the judgment and sentence of the trial court finding Roger Stewart Harris guilty of first-degree murder and imposing the death penalty. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Harris’s conviction but vacate his sentence of death and remand for a new penalty phase proceeding.

FACTS AND PROCEDURAL HISTORY

On Monday, December 7, 1998, the body of Donna Harris was discovered in her van which had been parked in a truck stop parking lot for several days. An autopsy revealed the cause of death to be a wound to the back of the head. Roger Harris (Harris), the victim’s husband, had reported her missing on Friday, December 4, 1998. Harris quickly became a suspect in his wife’s murder, and on January 22, 1999, was indicted for first-degree murder and conspiracy to eommit first-degree murder.

The evidence presented at trial revealed the following facts: In late June 1998, Jennifer Palmer moved in with Roger and Donna Harris to care for the Harrises’ two children. On July 3, 1998, Donna moved out of the house with the children apparently because Harris and Palmer had developed a sexual relationship. After the July 4 weekend, Donna returned home and ordered Palmer to leave. Palmer moved in with the Harrises’ neighbors but continued to care for the Harris children for a little over a month. During this time, Harris and Palmer continued their sexual relationship. When Donna discovered that Harris and Palmer had continued their sexual relationship, Palmer was fired. At this point, Harris told Palmer he was going to leave his wife, and Harris and Palmer agreed to be married.

In mid-October, Harris told Palmer he decided not to divorce Donna because she had threatened to take their children to Kentucky so that he would never see them again. However, Harris and Palmer resumed their relationship after one week and continued to discuss marriage. In order to marry Palmer without divorcing Donna and risk losing his children, Harris told Palmer that he planned to kill Donna.

On December 2, 1998, Harris and Palmer discussed killing Donna. Palmer worked her shift at a local bar and after work called the Harris home two or three times but no one answered. Harris later called the bar and told Palmer, “I did it. I am washing my hands and I need you here.” Palmer went to Harris’s home and observed him cleaning some items for about fifteen minutes and disposing of several items into a black garbage bag. Harris placed the black garbage bag into Palmer’s car and told her to throw it away. Harris also gave Palmer a white bag and instructed her to throw its contents into the water. Harris told Palmer the white bag contained a gun he made by welding pieces together. Palmer then left the Harris house in her car and pursuant to Harris’s instructions, waited for him to pass her at the end of the road. Harris was driving his wife’s van.

Palmer followed Harris to a truck stop, but she parked and waited at a nearby gas station. Palmer then moved her car to a nearby restaurant, and ten to fifteen minutes later Harris walked up to Palmer’s car. As they drove towards Harris’s home, Harris undressed and instructed Palmer to throw away his clothes. Harris told Palmer he was going to call the police the next day and report Donna missing. After dropping Harris off at home, Palmer dumped the items given to her by Harris at various locations in Columbia County. Palmer was arrested on December 7, 1998, and indicted for accessory after the fact to first-degree murder and conspiracy to commit first-degree murder. Palmer pled guilty to both charges and pursuant to the plea agreed to testify truthfully concerning her knowledge of Donna Harris’s death.

On April 27, 2000, a jury found Harris guilty as charged. After penalty proceedings, the jury returned a recommendation of death by a vote of seven to five. Following the Spencer hearing on June 9, 2000, the trial court sentenced Harris to death on June 23, 2000, finding two aggravating circumstances, and considering three statutory mitigators and sixteen nonstatutory mitigators.

Harris raises nine issues on appeal: (1) whether the trial court erred in allowing the State to introduce prior consistent statements; (2) whether the trial court erred in allowing the State’s firearm expert to display a plastic replica of the murder weapon; (3) whether the trial court erred in admitting inflammatory photographs; (4) whether the trial court erred in finding the murder was committed for pecuniary gain; (5) whether the trial court erred in finding the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification; (6) whether the imposition of the death penalty in this case is proportionate; (7) whether the jury was misled as to the significance of its verdict; (8) whether Harris’s death sentence is constitutional in light of the jury’s seven-to-five vote; and (9) whether Florida’s death penalty statute violates the Florida and federal constitutions.

GUILT PHASE

Admission of Prior Consistent Statements

First, Harris argues the trial court erred in admitting Palmer’s prior consistent statements through the testimony of her friend, Shannon Harding. Harding testified over defense objection to statements Palmer made about her relationship with Harris and the plan to kill Harris’s wife. On the issue of prior consistent statements, we recently said:

It is well established that prior consistent statements are generally not admissible to bolster a witness’s testimony at trial. See Chandler v. State, 702 So.2d 186, 197 (Fla.1997). In order to be admissible, prior consistent statements, like any other hearsay statements, must qualify under a hearsay exception. See id. Otherwise, prior consistent statements can be admitted as nonhearsay “if the following conditions are met: the person who made the prior consistent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to ‘rebut an express or implied charge ... of improper influence, motive, or recent fabrication.’ ” Id. at 197-98; see also § 90.801(2)(b), Fla. Stat. (1995).

Bradley v. State, 787 So.2d 732, 743 (Fla.), cert. denied, 534 U.S. 1048, 122 S.Ct. 632, 151 L.Ed.2d 552 (2001). Thus prior consistent statements can be admitted as non-hearsay if two conditions are met. First, the person who made the prior consistent statement must testify at trial and be subject to cross-examination concerning the statement. This condition was met in this case because Palmer testified at trial and was subject to cross-examination. Second, and the point of disagreement between Harris and the State is that the statement must be offered to rebut an express or implied charge of improper influence, motive, or recent fabrication. The State argues that because Palmer admitted on cross-examination she was motivated to testify against Harris because she desired a favorable sentence, defense counsel “opened the door” to her prior consistent statements. We agree with the State.

During cross-examination, defense counsel questioned Palmer about the circumstances surrounding her trial testimony, asking, “And you understand or feel that you might could help your cause by helping the state prosecute Roger, do you not,” to which Palmer responded, “Yes, sir.” Defense counsel also asked, “Is it not true that you feel like in your mind the better job you do testifying, the better deal you will get when it comes time to be sentenced, when the number of years is determined,” to which Palmer responded, “Yes, sir.” Defense counsel’s line of questioning was an attempt to show that Palmer was motivated to testify against Harris because she desired to obtain a favorable sentence from the State, and thus was sufficient to create an inference of improper motive to fabricate. See Foster v. State, 778 So.2d 906, 916 (Fla.2000); Rodriguez v. State, 609 So.2d 493, 500 (Fla.1992).

Hams claims, however, that Palmer was angry with Harris for failing to leave his wife, and because this motive existed before the statements were made to Harding, Palmer’s prior consistent statements are inadmissible.

Palmer admitted on cross-examination that she felt sad and upset when Harris stated he was not leaving his wife. However, on direct examination Palmer testified Harris decided not to divorce his wife because he was afraid of losing his children, not because he no longer wished to marry Palmer. There is no indication in the record that Harris attempted a reconciliation with his wife or that Palmer believed Harris was ending their relationship to be with his wife. Harris and Palmer’s plan was to kill Donna so that Harris could keep his children and marry Palmer. Therefore, we find no merit to Harris’s argument that Palmer’s motive to testify falsely existed before the statements were made to Harding.

Because Palmer’s statements were made to Harding before Palmer’s arrest, and therefore prior to the existence of a motive to fabricate, they were properly admitted. See, e.g., Anderson v. State, 574 So.2d 87, 92-93 (Fla.1991) (finding prior consistent statement admissible when defendant attempted to impeach witness by suggesting she fabricated her testimony after negotiating a favorable plea, because prior consistent statement was made before the plea agreement).

Admission of Plastic Replica of Murder Weapon

Next, Harris argues the trial court erred in allowing the State’s firearm expert to display a plastic replica of the murder weapon. David Williams, an expert in firearms and tool mark identification, identified the following evidence: a six-inch piece of pipe with threads on both ends, a copper fitting, a piece of copper tubing with what appeared to be a cartridge casing inside, a spring, what appeared to be a primer, a bolt with a finishing nail punch, a pair of vice-grip pliers, a number of .357 magnum cartridges (illustrative of all other cartridges received), another piece of pipe, a brass connector, and a bolt that had been sharpened to a point on one end. Williams testified that he laid out these components in a manner in which they could have been assembled to build a weapon and photographed the assemblage. From the photograph Williams explained to the jury how the components could be assembled into a weapon. The State then showed Williams a plastic replica of the photographed assemblage and asked Williams if the replica accurately depicted the manner in which the components could have been assembled. Williams agreed that the replica was a possible combination of the components he examined, but admitted he did not have all the components and it was possible that additional items were placed on the weapon. Williams also identified a section of the victim’s skull he had received from the medical examiner, and demonstrated to the jury how the plastic replica fit into a hole in the skull section.

Harris claims the plastic replica was erroneously admitted as demonstrative evidence because the State failed to establish any information about the weapon. The record does not support Harris’s claim. Harris told Palmer the white bag he wanted her to dispose of contained a gun he had made by welding pieces together. There was expert testimony identifying the recovered components and explaining how the components could have been assembled to build a weapon. There was also expert testimony linking the weapon to the hole in the victim’s skull. As we explained in Alston v. Shiver, 105 So.2d 785, 791 (Fla.1958):

Demonstrative evidence is admissible only when it is relevant to the issues in the case. Such evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved. For this reason it is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.
The person offering such evidence should be required to give a good reason for its acceptance into evidence, and this is particularly true if the object be not the original, but only a replica or a facsimile.

The trial court did not abuse its discretion in allowing the State to display the plastic replica because it met the requirements as outlined in Alston. See, e.g., Heath v. State, 648 So.2d 660, 664 (Fla.1994) (stating that rulings on evidentiary matters generally are within the sound discretion of the trial court).

The jury had previously seen the components laid out and assembled in Williams’ photograph; the replica was simply a physical representation of the assembled components to enable the jury to better understand the weapon. Moreover, the trial court instructed the jury on the replica and its display was relatively short. The replica was the same size as the component exhibits and was a reasonably exact reproduction of the assembled weapon in Williams’ photograph. See Brown v. State, 550 So.2d 527, 528 (Fla. 1st DCA 1989) (“The demonstrative exhibits which the state used during the victim’s testimony ... in order to depict the knife before it was broken and the extent of the victim’s stab wounds, were sufficiently accurate replicas to be allowable within the trial court’s discretion.”); Wade v. State, 204 So.2d 235, 238-39 (Fla. 2d DCA 1967) (finding that trial court did not err by admitting demonstrative evidence when it was relevant to the issues in the case and when it was a reasonably exact replica of the object involved); Robinson v. State, 145 So.2d 561, 562 (Fla. 3d DCA 1962) (concluding that scale model of the death weapon did not mislead or confuse the jury and was appropriately identified by the state’s expert witness). Finally, the probative value of the replica outweighed any prejudicial effect because the replica was used to explain the manner in which the components could have been combined to build a weapon and the manner in which the weapon was consistent with the victim’s head injury. See § 90.403, Fla. Stat. (2000).

Admission of Inflammatory Photographs and Videotape

Harris argues as his final guilt phase issue that ,the trial court erred in admitting irrelevant inflammatory photographs of the murder victim and a videotape of the crime scene.

We have consistently held that the initial test for determining the admissibility of photographic evidence is relevance, not necessity. See Mansfield v. State, 758 So.2d 636 (Fla.2000). Photo-, graphs are admissible if “they assist the medical examiner in explaining to the jury the nature and manner in which the wounds were inflicted.” Bush v. State, 461 So.2d 936, 939 (Fla.1985). Moreover, photographs are admissible “to show the manner of death, location of wounds, and the identity of the victim.” Larkins v. State, 655 So.2d 95, 98 (Fla.1995). On the other hand, trial courts must be cautious in not permitting unduly prejudicial or particularly inflammatory photographs before the jury. However, a trial court’s decision to admit photographic evidence will not be disturbed absent an abuse of discretion. See Mansfield, 758 So.2d at 648.

Brooks v. State, 787 So.2d 765, 781 (Fla.2001). The mere fact that photographs may be gruesome does not necessarily' mean they are inadmissible. The admission of such photographs is within the trial court’s discretion and will only be reversed when an abuse of discretion has been demonstrated. See Rose v. State, 787 So.2d 786 (Fla.2001), cert. denied, 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed.2d 252 (2002).

In this case, the State introduced several photographs of the victim’s body as well as a short videotape of the van where the body was discovered. Harris objects to this evidence as inflammatory.

Photographs 2 and 6

The medical examiner, Dr. Floro, identified State’s exhibits 2 and 6 as photographs of the victim’s head and skull. The defense objected to photographs 2 and 6 because maggots are visible in both photographs. The trial court overruled the objection, finding the photographs necessary to show the cause and manner of death. Dr. Floro testified that the victim had a wound to the back of the head. Dr. Floro then used photograph 2 to explain the external nature of the wound, describing the shape and size of the wound, and photograph 6 to describe the path of the object that entered the victim’s head. We find both photographs relevant to Dr. Flo-ro’s expert testimony as to the cause of death and therefore admissible. See Rose v. State, 787 So.2d 786, 794-95 (Fla.2001) (finding that autopsy photos, even when difficult to view, are admissible to the extent they fairly and accurately establish a material fact and are not unduly prejudicial); Larkins v. State, 655 So.2d 95 (Fla.1995); Bush v. State, 461 So.2d 936 (Fla.1984).

The videotape and photographs 63, 6k, 65, and 68

The videotape is approximately eight minutes long and was shot from outside the van in the truck stop parking lot. Defense counsel objected to the admission of the videotape, arguing that it was gruesome and that its prejudicial impact outweighed its probative value. The prosecutor noted the most gruesome portions of the videotape had been redacted, and argued that the videotape showed the position of the victim inside the van and the victim’s clothes, both important to the jury’s understanding of how the murder occurred. The trial judge cleared the courtroom, viewed the videotape, and then allowed the videotape to be shown to the jury. Photographs 63, 64, and 65 show the victim’s body inside the van from three different points of view, while 68 is a view of the cargo area of the van. In both the videotape and the photographs, the victim’s body is seen in a state of decomposition. However, we find both the videotape and the photographs relevant to establish the manner in which the murder was committed and to assist the deputy sheriff who described the crime scene to the jury. See Pope v. State, 679 So.2d 710, 713-14 (Fla.1996) (finding that photos of the bloody bathroom where the stabbing occurred and the victim’s bloody clothes were relevant to establish the manner in which the murder was committed and to assist the crime scene technician in explaining the condition of the crime scene when the police arrived). Because the videotape and photographs were relevant to issues being considered by the jury, the trial court did not abuse its discretion in admitting these items of evidence.

Photograph 103

Photograph 103 documents the victim’s skull with the murder weapon inserted into the hole in the skull. Williams, the firearms and tool mark identification expert, used the photograph to explain that the reconstructed weapon fit the hole in the skull. Defense counsel objected to photograph 103 as cumulative. We find this photograph relevant to understanding the way the weapon caused the wound in the victim’s skull. See Larkins, 655 So.2d at 98. “Relevant evidence which is not so shocking as to outweigh its probative value is admissible.” Pope, 679 So.2d at 714. Accordingly, we find the trial court did not abuse its discretion in admitting the photographs and videotape. See Gorby v. State, 630 So.2d 544, 547 (Fla.1993) (finding that trial court did not abuse its discretion in admitting numerous photographs as well as a videotape of the crime scene where the trial court conscientiously considered all of the photos and rejected those it found to be too prejudicial or cumulative).

PENALTY PHASE

Pecuniary Gain Aggravator

Harris claims the trial court erred in instructing the jury that the murder was committed for pecuniary gain and in finding that the murder was committed for pecuniary gain. We agree. In order to establish the aggravating factor of pecuniary gain, the State must prove beyond a reasonable doubt that the murder was motivated, at least in part, by a desire to obtain money, property, or other financial gain. See Rogers v. State, 783 So.2d 980, 993 (Fla.2001); Finney v. State, 660 So.2d 674, 680 (Fla.1995); Clark v. State, 609 So.2d 513, 515 (Fla.1992). In reviewing aggravating factors, it is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt — that is the trial court’s job. See Willacy v. State, 696 So.2d 693, 695 (Fla.1997). Rather, this Court’s task on appeal is to review the record to determine whether the trial court applied the correct rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supports its finding. See id.

After a review of the record, we conclude the pecuniary gain aggravator is not supported by competent, substantial evidence in this case. To support this aggravating factor, the trial court found that Harris was trying to transfer property owned jointly to his name alone, that he was the beneficiary of life insurance policies on his wife, that he emptied his wife’s checking account four days after the murder, that the contents of the wife’s purse had been dumped on the floor of the van, and that Harris did not want to pay child support. The five factors relied on by the trial court to support the pecuniary gain aggravator are purely circumstantial, and although an aggravating factor may be supported entirely by circumstantial evidence, “the circumstantial evidence must be inconsistent with any reasonable hypothesis which might negate the aggravating factor.” Hildwin v. State, 727 So.2d 193, 194 (Fla.1998).

These pieces of circumstantial evidence, however, are not inconsistent with a reasonable hypothesis that negates the aggravating factor. For example, the fact that the defendant was the beneficiary of his wife’s life insurance policy is not suspect in and of itself. Any number of husbands and wives name each other as beneficiaries on their life insurance policies. Additionally, the fact that the contents of the wife’s purse was dumped on the floor of the van would fit into a theory that someone else killed and robbed the victim. Moreover, there was evidence that money ($20) was among the contents of the purse. But most importantly, there is absolutely no evidence to support the trial court’s conclusion that the defendant did not want to pay child support.

The State’s theory of the case, and a majority of Palmer’s testimony, centered around the fact that Harris wanted to divorce his wife to be with Palmer, but because Harris’s wife threatened to take the children if Harris sought a divorce, Harris decided to kill her instead. The record supports this as the motive for the murder and simply does not support the pecuniary gain as a motive for this murder. It cannot be said that the facts relied on demonstrate beyond a reasonable doubt that the murder was motivated, even in part, by pecuniary gain. The trial court relied on the fact that Harris was the beneficiary of his wife’s life insurance policies, yet the State failed to produce documentation for any policies in effect at the time of the victim’s death. The trial court also found that Harris did not want a divorce because his wife would gain custody of the children and he would have to pay child support. Again, the State presented no evidence to show that potential child support payments played a role in Harris’s decision to kill his wife.

The instant case is unlike Walker v. State, 707 So.2d 300 (Fla.1997), where the defendant confessed he and the victim were arguing about a child support award before he killed her. In Walker, we found the pecuniary gain aggravator established beyond a reasonable doubt because the defendant’s pecuniary motive of avoiding child support permeated the case. Id. at 317; see also Thomas v. State, 693 So.2d 951 (Fla.1997) (upholding the pecuniary gain aggravator where the defendant planned the kidnapping and murder of his wife to avoid paying his part of a settlement agreement in their pending divorce). Here, the theme that permeated the case is that the defendant wanted to marry Palmer but did not want to lose custody of his children. Accordingly, we conclude the trial court erred in instructing the jury that the murder was committed for pecuniary gain and in finding and weighing the pecuniary gain aggravator.

Cold, Calculated, and Premeditated Aggravator

Next, Harris claims the trial court erred in concluding the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification (CCP). In order to establish the CCP aggravator, the evidence must show:

[T]hat the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.

Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted). We find competent, substantial evidence in the record to support the trial court’s finding of this aggravator.

Harris argues the trial court erred in finding the CCP aggravator because the murder was not cold and calculated. Harris claims he “exploded” one night because of his obsession with the potential loss of his children and because he was in love with another woman and wanted out of his loveless marriage. “[T]he ‘cold’ element generally has been found wanting only for ‘heated’ murders of passion, in which the loss of emotional control is evident from the facts.... ” Walls v. State, 641 So.2d 381, 387-88 (Fla.1994). Contrary to Harris’s claim, the record shows that Harris’s actions with respect to his wife’s murder were calm and deliberate. There was no evidence of a domestic dispute, and no evidence that Harris lost control in a “heated murder of passion.” The victim was shot once in the back of the head, “which is by its very nature cold,” and there was no evidence of resistance or provocation on the victim’s part. Fennie v. State, 648 So.2d 95, 99 (Fla.1994) (upholding cold prong of CCP where victim was shot in the back of the head).

Furthermore, the events leading to Donna Harris’s murder support the elements of a calculated plan and heightened premeditation. The evidence showed that Harris planned his wife’s murder for a period of weeks. For example, Harris constructed a weapon, asked Palmer to time herself on a route similar to that used on the night of the murder, chose the time and place of the murder, planned where to leave the van after the murder, and planned how to dispose of the evidence with Palmer’s help.

Lastly, Harris argues his fear of losing his children was a pretense of moral or legal justification. Supplementing this fear, Harris argues, is the fact that he did not see his daughter from a previous marriage for three years after the couple separated. Harris’s fears do not demonstrate a pretense of moral or legal justification. As the trial court logically stated in its sentencing order:

The Defendant’s stated reason of not wanting to lose his children is highly suspect in light of the testimony regarding his multiple plans to kill his wife so that he could be with his girlfriend. If the Defendant had had any real concern for his children, he would have considered the impact that losing their mother at such young ages would have on them. The only concern of the Defendant that has been demonstrated by the record in this case is his concern for himself and his personal desires.

In other words, the trial court found that Harris’s claim of fear of losing his children did not negate the cold and calculated nature of this murder. See Banda v. State, 536 So.2d 221, 225 (Fla.1988) (defining a pretense of moral or legal justification as any “claim of justification or excuse that, though insufficient to reduce the degree of homicide, nevertheless rebuts the otherwise cold and calculating nature of the homicide”).

Because there is competent, substantial evidence in the record supporting the finding that the murder was cold, calculated, and premeditated without any pretense of moral or legal justification, we find the trial court did not err in finding the CCP aggravator.

Trial Court’s Treatment of Mitigating Evidence

Harris also challenges the trial court’s treatment of the mitigation in this case. We find no merit in the arguments concerning the weight the trial court gave to the statutory mitigator of lack of significant history of criminal activity. The weight assigned to a mitigating circumstance is within the trial court’s discretion, and Harris has failed to demonstrate an abuse of that discretion. See Rogers v. State, 783 So.2d 980 (Fla.2001). Likewise, we find no error in the trial court’s failure to find separate mitigating circumstances based on Harris’s alleged family conflict and his ability to form loving relationships because these factors were used to support other mitigators that were found and considered.

We do, however, find merit in Harris’s argument that the trial court failed to consider all of the evidence presented in support of the mitigating circumstance of extreme mental or emotional disturbance. In its discussion of this miti-gator in the sentencing order, the trial court noted that Harris was deemed unfit for continued military service in the United State Air Force based on a diagnosis of anxiety disorder and depression, that Harris’s mother testified she and her father have unstable mental histories, and that she suffers from anxiety attacks and panic disorder. It is well settled that the decision as to whether a mitigating circumstance has been established is within the trial court’s discretion. See, e.g., Foster v. State, 679 So.2d 747, 755 (Fla.1996). However, the trial court must consider all of the evidence presented in support of the mitigator. See Provenzano v. State, 497 So.2d 1177, 1184 (Fla.1986).

In this case the trial court did not consider all of the evidence presented in support of the statutory mitigator of extreme mental or emotional disturbance because the sentencing order failed to address any of the evidence presented at the Spencer hearing. At this hearing, Harris presented uncontroverted evidence that he had a familial pattern of mental illness, that he had suffered a traumatic head injury as a teenager, and that he had symptoms of possible manic depression with mood swings in 1995. He also presented evidence that he was diagnosed with bipolar II disorder and was prescribed Depakote in 1996, and that sixty days before his wife’s death, he had a psychiatric consultation. The trial court erred in failing to consider this additional mental health evidence in making its determination concerning the extreme mental or emotional disturbance mitigator. As we said in Campbell v. State, 571 So.2d 415, 419-20 (Fla.1990):

[T]he sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature.... The court next must weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight. To be sustained, the trial court’s final decision, in the weighing process must be supported by “sufficient competent evidence in the record.”

See also Reese v. State, 694 So.2d 678 (Fla.1997). Moreover, as Harris correctly argues, the trial court should have, at the very least, evaluated this evidence in the context of a nonstatutory mental mitigator. See Stewart v. State, 620 So.2d 177 (Fla.1993).

As has been discussed above, the trial court in this case erred in instructing the jury that it could consider the pecuniary gain aggravating factor and in finding that the pecuniary gain aggravator was proven beyond a reasonable doubt. The only valid aggravator remaining is that the murder was cold, calculated, and premeditated. In addition to finding an aggravating circumstance that was not proven beyond a reasonable doubt, the trial court failed to evaluate all of the evidence submitted by the defendant in support of his claim that the murder was committed while he was under extreme mental or emotional disturbance. Under the circumstances of this case, it cannot be said that these errors had no effect on the jury’s recommendation of death or on the trial court’s sentencing decision. The jury recommended death by the narrowest of margins, seven to five. Only one more vote was needed for a life recommendation. The scales might have been tipped in favor of life had the jury not been instructed on the aggravating circumstance of pecuniary gain. Thus, it cannot be said that the jury’s consideration of the pecuniary gain aggravator was harmless beyond a reasonable doubt.

Additionally, when a trial court erroneously includes in its sentencing evaluation an aggravating circumstance that has not been proven beyond a reasonable doubt and fails to consider and properly evaluate mitigating evidence, this Court is deprived of the tools to meaningfully review the sentence imposed or to undertake a proportionality review. See, e.g., Woodel v. State, 804 So.2d 316, 327 (Fla.2001) (vacating the sentence of death and remanding because the trial court failed to evaluate the mitigating circumstances in the sentencing order); Ford v. State, 802 So.2d 1121, 1134-35 (Fla.2001) (outlining the trial court’s obligation to evaluate mitigating evidence), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). Because we cannot say that the consideration by the jury and the trial judge of this aggravating factor was harmless beyond a reasonable doubt, we reverse the sentence imposed in this case and remand for a new penalty phase proceeding. See Crook v. State, 813 So.2d 68 (Fla.2002); Rhodes v. State, 547 So.2d 1201 (Fla.1989).

Because the defendant is entitled to a new penalty phase proceeding, we do not address Harris’s remaining penalty phase issues.

CONCLUSION

Based on the foregoing, we affirm Harris’s conviction for first-degree murder. However, we vacate his sentence of death and remand this case to the trial court for a new penalty phase proceeding.

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, and QUINCE, JJ„ and SHAW and HARDING, Senior Justices, concur.

PARIENTE, J., concurs with an opinion.

WELLS, J., concurs in part and dissents in part with an opinion.

PARIENTE, J.,

concurring.

I concur in the majority’s decision to reverse and remand for a new penalty phase. I agree that the error in instructing the jury on a pecuniary gain aggravator that is unsupported by the evidence cannot be deemed harmless as to either the advisory sentence or the imposition of the death penalty. The jury was instructed on only two aggravators and this Court has now determined that there was insufficient evidence to support the pecuniary gain aggravator. In light of the seven-to-five advisory sentence of death, the existence of only one valid remaining aggravating factor, and the lack of any significant prior criminal history, it cannot be stated that any error in submitting the pecuniary gain aggravator to the jury for its consideration was harmless beyond a reasonable doubt. Just as we cannot state beyond a reasonable doubt that the trial judge would have imposed a sentence of death without the invalid aggravator, we cannot state beyond a reasonable doubt that the jury would have recommended the death penalty without consideration of the pecuniary gain aggravator.

Any harmless error analysis as to the possible effect on the jury’s recommendation is even more critical in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which the United States Supreme Court stated that it is the jury as trier of fact that must find the existence of any aggravating circumstance that qualifies the defendant for the death penalty. The seven-to-five death recommendation by a jury instructed on one valid and one invalid aggravating circumstance makes it entirely possible that Harris was sentenced to death without a majority of his jury finding that one valid aggravating circumstance existed.

Finally, even if we were not reversing because of the pecuniary gain aggravator, in my view the death recommendation in this case by a bare majority of the jurors raises constitutional concerns in light of Ring. See generally Bottoson v. Moore, 833 So.2d 693, 709-710 (Fla.2002) (Anstead, C.J., concurring in result only); id. at 717 (Shaw, J., concurring in result only); id. at 722 (Pariente, J., concurring in result only).

WELLS, J.,

concurring in part and dissenting in part.

I concur in affirming the conviction of guilt. I dissent from reversing the sentence. Any error on the part of the trial judge in respect to pecuniary gain is harmless beyond a reasonable doubt. See Green v. State, 641 So.2d 391 (Fla.1994).

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . (1) The capital felony was committed for pecuniary gain (moderate weight); and (2) the murder was cold, calculated and premeditated, without any pretense of legal or moral justification (substantial weight). The trial court considered a third aggravator, the murder was committed during the unlawful discharge of a destructive device, but found that this factor did not exist.

      . (1) No significant history of prior criminal activity (given moderate weight); (2) extreme mental or emotional disturbance (found not to exist); and (3) extreme duress or the substantial domination of another person (found not to exist).

      . (1) Harris was a loving son to his mother (given very little weight); (2) Harris was a loving brother to his sister (given very little weight); (3) Harris provided financial and emotional assistance to his sister (given little weight); (4) Harris acted as a surrogate father for his niece (given little weight); (5) Harris did good deeds for others (given very little weight); (6) Harris’s work record (given little weight); (7) Harris’s ability to work under supervision and adverse conditions (given little weight); (8) Harris’s ability to form caring and loving relationships (given no weight); (9) Harris exhibited appropriate cordial behavior at trial (given little weight); (10) Harris was a loving father (the court found this was not a mitigating factor and did not consider it as such); (11) Harris did not flee after the crime (the court found this was not a mitigating factor and did not consider it as such); (12) Harris had a sweet and loving character (the court found this was not a mitigating factor and did not consider it as such); (13) Harris was a good material provider for his family (given little weight); (14) history of conflict within the family (the court found this mitigating factor did not exist and did not consider it as such); (15) Harris’s military record (given little weight); and (16) Harris was decorated during his military service (given little weight).

      . This evidence was retrieved, with Palmer's assistance, from various locations in Columbia County.

      . The trial court's instruction on the plastic replica is as follows:
      Members of the jury, an item is about to be shown to you. It is not evidence in this case. It should not be considered as evidence. It is merely a demonstrative aid which you can consider in weighing and evaluating the positive and direct evidence which you have received. You may display the aid.


author: PER CURIAM.

text:
    Joseph CEPHAS, Petitioner, v. Mark J. LETZTER, M.D., et al., Respondents.
    No. SC01-374.
    Supreme Court of Florida.
    March 27, 2003.
    Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, FL; and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Per-win, P.A., Miami, FL, for Petitioner.
    Michael D. Burt of Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., West Palm Beach, FL; and Mark Hicks and Dinah S. Stein of Hicks, Anderson & Kneale, P.A., Miami, FL, for Respondents.
    Jeff Tomberg, J.D., P.A., Boynton Beach, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.
   PER CURIAM.

We originally accepted jurisdiction to review Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA 2001), pursuant to article V, section 3(b)(4), of the Florida Constitution. After further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, this case is hereby dismissed.

It is so ordered.

WELLS and CANTERO, JJ., and SHAW and HARDING, Senior Justices, concur.

ANSTEAD, C.J., and LEWIS and QUINCE, JJ., dissent.