author: RAMIREZ, J. COPE, J.

text:
    A. Glenn BRASWELL, Appellant, v. Renee BRASWELL, Appellee.
    Nos. 3D02-2853, 3D03-1615, 3D02-2993.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.

      Caruana and Lorenzen, and Albert Ca-ruana, Miami, for appellant.
    Elser, Foster-Morales & Kopco; and Greene & Smith, and Cynthia Greene, Miami, for appellee.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

We have for review two orders which found that a $75,000 per month default interest payment provision is in the nature of support and a cross-appeal claiming that a higher default interest is due than what the trial court awarded. We reverse the first and affirm the second.

In consolidated case numbers 3D02-2853 and 3D03-1615, A. Glenn Braswell, the former husband, appeals the trial court’s non-final order (the September 23, 2002 Order) which provides that a $75,000.00 per month default interest payment provision is in the nature of support, and thus enforceable by contempt. Mr. Braswell also appeals the trial court’s non-final order (the May 22, 2003 Order) which provides that $23 million in equitable distribution payments due to the former wife was also in the nature of support so that an injunction entered against Mr. Bras-well’s Miami Beach, Florida residence should remain in place.

Renee Braswell, the former wife, cross-appeals that portion of the trial court’s September 23, 2002 Order which determines that the $75,000.00 per month default interest payment to be paid to Mrs. Braswell was only in the amount of $300,000.00, rather than $600,000.00, as Mrs. Braswell contends. In addition, in case number 3D02-2993, Mrs. Braswell appeals an order dated July 30, 2002 and the related Amended Final Money Judgment, in which the trial court also determined that the $75,000.00 per month default interest payments due to Mrs. Braswell was in the amount of only $300,000.00.

I. PROCEDURAL HISTORY

A. Mediated Settlement Agreement

Mr. Braswell filed his petition for dissolution of marriage on August 3, 1999. The parties were married for eight years, and there was one minor child born of the marriage on January 21, 1998. At the time of the filing, Mr. Braswell was under federal grand jury investigation for criminal tax related issues. During the dissolution proceedings, Mr. Braswell invoked his Fifth Amendment right against self-incrimination. The trial court granted him the right to assert this privilege with respect to all financial information in the dissolution case. Thus, Mr. Braswell has not provided any financial information to Mrs. Braswell and to the trial court in this litigation.

On March 15, 2000, the parties entered into a hand-written Mediated Settlement Agreement where Mr. Braswell was to pay $42 million in installments to Mrs. Bras-well. Mr. Braswell was also to pay Mrs. Braswell $40,000 per month for alimony, until he paid her $23 million. Once Mr. Braswell paid $28 million to Mrs. Braswell, the $40,000 support payments to Mrs. Braswell would cease. The pertinent paragraphs of the Mediated Settlement Agreement provide the following:

4. From the date wife vacates the marital residence, until the wife has received 23 million dollars, the husband shall pay to the wife the sum of $40,000.00 per month nontaxable to the wife, nondeductible by the husband.
5. As the equitable distribution of the assets of the marriage and as full and final settlement of the issues in the case the parties agree to a total payment to the wife of $42 million as follows:
$500,000 on or before 8-17-00
$4.5 million on or before 5-1-00 $6 million on or before 7-15-00 $6 million on or before 9-15-00 $6 million on or before 9-15-01 $6 million on or before 9-15-02 $6 million on or before 9-15-03 $6 million on or before 9-16-04 ■
6. In the event of default in the payments described in 5 above as defined in this agreement the parties agree that there shall be default interest in the amount of 15% of the unpaid balance commencing 30 days from the date payment is due. The Husband has 5 additional months to cure default. In the event payment has not been made the wife has the right at her option to seek an equitable distribution of the marital assets valued as of the date of filing. The court shall be informed of the money the Wife has already received.
7.The parties further agree that in the event of default by the husband in the sums due to the wife in 5 above the wife may seek alimony from the husband and in no manner waives her right to seek support in the event of default.
9. Other than as specifically defined in ¶ s 3, 4 and 6, 7 wife waives her claim for alimony, permanent rehabilitative or lump sum now and forever.
13. The obligations undertaken pursuant to this agreement are non discharge-able in bankrupcy (sic) because they are in the nature of support. However the parties agree that the husband may discharge his obligations under ¶ 14 of this agreement.
20. The Husband shall receive the assets not distributed to the Wife in this agreement and not solely titled to her.

B. Arbitrator’s Interpretation and Clarification of Default Interest Provision

When disputes arose regarding the default interest provisions of the Settlement Agreement, the parties invoked the binding arbitration provisions of Paragraph 11 of the Agreement and sought an interpretation by the arbitrator regarding the meaning of the provisions of the Agreement concerning a default by Mr. Bras-well. On September 24, 2001, the arbitrator issued an Interpretation of Default Provisions of Mediated Settlement Agreement. The arbitrator concluded that in the event of default by Mr. Braswell, Mrs. Braswell “may at her option seek additional alimony (in addition to what she is receiving) ...” In November 2002, the arbitrator issued a second interpretation of the agreement, the Clarification of Default Provisions of Mediated Settlement Agreement, stating that Paragraph 7 permitted Mrs. Braswell to seek additional alimony in the event that she fails to receive her equitable distribution payments in a timely manner. The arbitrator also stated that Paragraph 7 of the agreement was intended to safeguard Mrs. Braswell’s income and to encourage Mr. Braswell’s compliance with the agreement.

C. September 23, 2002 Order

Following the execution of the Settlement Agreement, Mr. Braswell paid the first four equitable distribution payments, a total of $17 million, and conveyed the California property valued at $1 million, which Mrs. Braswell sold for $1.2 million. He then failed to make the fifth payment, the September 15, 2001, $6 million installment payment. Although Mr. Braswell missed a payment in September 2001, he has otherwise continued paying Mrs. Bras-well the $40,000 monthly payment for support he was required to make, and is now current on those payments. The Settlement Agreement stated that there was to be 15% interest and a thirty-day grace period. Mr. Braswell made only one default interest payment for $75,000.00 (15% of $6 million).

When Mr. Braswell failed to make the subsequent four default interest payments, Mrs. Braswell filed her Motion to Enforce the Parties’ Mediated Settlement Agreement Regarding Interest Payments. In March 2002, the trial court determined that Mr. Braswell’s obligation to pay Mrs. Braswell $40,000 per month until such time as she had been paid $23,000,000.00 was alimony for Mrs. Braswell, in the nature of support. Specifically, the trial court found in its March 22, 2002 Order that “the $40,000 payment is alimony for the support of the Former Wife and while the Agreement could have been drafted more clearly, the character of the payment is not ambiguous.” Mr. Braswell appealed this characterization of the $40,0000 per month payment, and this Court affirmed in Braswell v. Braswell, 836 So.2d 1061 (Fla. 3d DCA2003).

The trial court entered a Final Money Judgment on July 30, 2002, against Mr. Braswell for $6,600,000.00. This amount was based on Mr. Braswell’s failure to pay the $6,000,000.00 due to Mrs. Braswell on September 15, 2001, plus default interest at the rate of 15% ($75,000.00 per month) pursuant to Paragraph 6 of the agreement (which included eight months of default interest). One month after the entry of the Final Money Judgment, Mr. Braswell filed a motion for relief from money judgment, alleging that the terms of the mediated settlement agreement provided for a total of only five months of default interest and that at the end of the six month cure period, the default interest did not continue to accrue, and thus he owed only $300,000.00 in interest rather than $600,000.00. The trial court agreed and entered an amended final money judgment for $6,300,000.00. Mrs. Braswell cross-appeals this order.

Thereafter, the court entered its order concluding that the $75,000.00 per month in default interest payments was also in the nature of support such that Mr. Bras-well could be held in contempt if he did not pay the interest. Mr. Braswell appeals this ruling.

D. May 22, 2003 Order

In July 2002, Mrs. Braswell sought a temporary injunction against Mr. Braswell to prohibit his transfer or alienation of his assets. Mrs. Braswell made her request ore tenus at .a hearing before the trial court and then at the direction of the trial court, filed in September 2002 her Amended Verified Motion for Injunction. The trial court granted her motion, following a non-evidentiary hearing. Mr. Braswell filed a motion to dissolve and/or modify the injunction and in the alternative, a motion to increase the bond. The court dissolved the temporary injunction except as to Mr. Braswell’s condominium property at 1500 Ocean Drive, which he claimed was homestead property and thus exempt from creditors.

On April 24, 2003, the trial court held a non-evidentiary hearing on Mr. Braswell’s renewed motion to dissolve the injunction as it related to his condominium residence. ■The trial court ruled that the first $23 million of equitable distribution payments due to Mrs. Braswell were in the nature of support, such that an injunction could remain in place as to the property in order to secure payment of that obligation. The trial court denied the motion to dissolve the temporary injunction as to Mr. Bras-well’s alleged homestead property. The trial court did not increase the $100,000 injunction bond on the alleged homestead property which was purchased for $5.5 million, nor did it grant an evidentiary hearing regarding the amount of the bond.

II. DEFAULT INTEREST PROVISION.

Mr. Braswell first contends that the trial court erred in finding the $75,000.00 default interest provision for a missed equitable distribution installment payment to be for support, subject to enforcement by contempt and in finding the first $23 million of equitable distribution installment payments to be “in the nature of support.” We agree and conclude that under the facts presented here, the 15% default interest payment on the missed installment of the equitable distribution payments during the cure period in question is not in the nature of support, but is equitable distribution.

Florida law provides that the two types of awards usually arise from marital settlement agreements, support awards and equitable distribution awards. A support award can be enforced by contempt proceedings and incarceration. Equitable distribution awards or property division awards are debts which cannot be enforced by contempt proceedings or incarceration. See Hertrich v. Hertrich, 643 So.2d 115 (Fla. 5th DCA 1994); Filan v. Filan, 549 So.2d 1105 (Fla. 4th DCA 1989). The remedies available to enforce an equitable distribution or property division award are those available to creditors against debtors. See Veiga v. State, 561 So.2d 1335, 1336 (Fla. 5th DCA 1990).

In addition, marital settlement agreements should be construed and interpreted as other contracts. See Bacardi v. Bacardi 386 So.2d 1201, 1203 (Fla. 3d DCA 1980). Contract construction is a question of law if the language of the contract is clear and unambiguous. See Jaar v. University of Miami, 474 So.2d 239, 242 (Fla. 3d DCA 1985). Thus, the plain meaning of the language used by the parties in a contract should control. See Bingemann v. Bingemann, 551 So.2d 1228, 1231 (Fla. 1st DCA 1989).

Here, the parties’ Mediated Settlement Agreement is unclear and internally inconsistent. Paragraph four of the agreement calls for monthly payments of $40,000. In a prior appeal, we held that those payments constituted support. Braswell v. Braswell, 836 So.2d 1061 (Fla. Bd DCA 2003). In paragraph five of the Agreement, it states that the $42 million payable in $6 million installments to Mrs. Braswell is equitable distribution of the assets of the marriage. It provides for installment payments of a total of $42 million over a period of several years. The default interest payments should thus be deemed equitable distribution payments because interest on an equitable distribution installment payment is equitable distribution. If we determine that the character of the principal obligation is equitable distribution in nature, then the interest must also be regarded as equitable distribution. If the character of the principal obligation were support, then the interest would be support. Because the $6 million missed payment in question was part of the equitable distribution scheme, the 15% interest on that $6 million missed payment, which is $75,000.00, is also characterized as equitable distribution and cannot be enforced by contempt.

Mrs. Braswell argues that the equitable distribution payments of paragraph 5 should be characterized as alimony because, under the parties’ agreement, the monthly support payments terminate once she has received $23 million in equitable distribution payments. She contends that at least $23 million of the equitable distribution should be viewed as support. While there may be some logic to this argument by virtue of the termination of monthly support upon payment of the $23 million, we cannot agree that this converts what is otherwise equitable distribution into support.

Further support for our finding that the default interest provision is equitable distribution is the fact that in the Clarification issued by the arbitrator on November 19, 2001, the arbitrator described the provisions in paragraph 5 of the agreement to be equitable distribution payments. She also stated “paragraph 7 permits the wife to seek additional alimony from the husband in the event that she fails to timely receive her equitable distribution payments.” The arbitrator continued by stating that the cure period outlined in paragraph 6 “restricts the wife from revisiting the parties’ equitable distribution until the cure period has expired.”

With regard to what is in the nature of support, support generally means sustenance or nourishment. See Howell v. Howell, 207 So.2d 507, 510 (Fla. 2d DCA 1968). Support is a payment to provide for the need and necessities of life. Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). The purpose of support is to prevent a dependent party from “becoming a public charge or an object of charity.” Killian v. Lawson, 387 So.2d 960, 962 (Fla. 1980).

In determining whether a payment provision is for support or whether it is a property settlement payment, there are certain characteristics to consider. . For instance, according to section 61.14, Florida Statutes (2001), a support award is modifiable. See also Cambest v. Cambest, 367 So.2d 686, 687 (Fla. 3d DCA 1979). A property settlement provision, however, is non-modifiable, regardless of the parties’ financial positions, when the agreements are incorporated into the final judgments of dissolution of marriage. See Langer v. Langer, 463 So.2d 429 (Fla. 3d DCA 1985). Here, the default interest provision and equitable distribution provision are not subject to modification. In addition, the trial court stated that although it deemed the first $23 million to be in the nature of support for purposes of an injunction, it would not deem the payments “support” for purposes of modification.

Another characteristic to consider is that support is not dischargeable in bankruptcy, while obligations under a property settlement agreement may be dischargeable. See De Lapouyade v. De Lapouyade, 711 So.2d 1202 (Fla. 2d DCA 1998). Here, paragraph 13 of the parties’ Agreement states that all payments are not dischargeable in bankruptcy because “they are in the nature of support.” Mrs. Braswell contends that the default interest payments and paragraph 5 equitable distribution payments are support based upon this provision in paragraph 13. However, this court, as well as the Bankruptcy Court, looks to the substance of the underlying obligations and are not bound by the parties’ characterization. Paragraph 13 is not binding on this' court and does not convert the Paragraph 5 equitable distribution into support. See Huey v. Huey, 643 So.2d 1141, 1142-43 (Fla. 4th DCA 1994); In re: Carbia, 113 B.R. 761, 763 (Bankr.S.D.Fla.1990) (labeling a payment “alimo ny” in a settlement agreement is not determinative of the nature of such awards in concluding whether, in fact, it is alimony rather than property settlement; the fact that a state court has used or approved such language is not determinative, because federal law prevails in determining whether an obligation is alimony, support, or a property settlement); In re: Basile, 44 B.R. 221 (Bankr.M.D.Fla.1984) (under the United States Bankruptcy Code, federal law rather than state law should govern and be determinative as to whether obligation is in nature of alimony, and thus not dischargeable, or is in nature of support or property settlement; bankruptcy court now looks beyond labels placed upon obligation by state courts and considers all relevant facts and circumstances).

Furthermore, support ends upon the death of either party or the re-marriage of the payee. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Here, the equitable distribution payments and default interest payments in this case do not end upon the death of either party or upon the re-marriage of Mrs. Braswell. The paragraph 5 equitable distribution payments end in September 2004, and the paragraph 6 default interest payment ends after the cure-period expires.

Finally, support is not chargeable to the payor’s estate. See White v. White, 429 So.2d 730 (Fla. 1st DCA 1983). Here, the payment is chargeable to Mr. Bras-well’s estate.

It is undisputed that Mrs. Braswell received $17 million in cash and a California residence she sold for $1.2 million within six months of the date of the agreement. She later obtained a judgment in the amount of $6.3 million, and later obtained another money judgment for another $6 million. During this time, Mrs. Braswell received and continues to receive $40,000.00 per month in support. In addition, pursuant to paragraph 7 of the agreement, she has sought additional alimony. We conclude that the payments due Mrs. Braswell under paragraph 5 of the Agreement did not serve the purpose of true support and maintenance.

We also take into consideration the provision in paragraph 9 of the Agreement, whereby Mrs. Braswell expressly waived the right to contend that paragraph 5 payments were support. Paragraph 9 states:

Other than as specifically defined in paragraphs 3, 4, 6 and 7 the wife waives her claim for alimony, permanent rehabilitative or lump sum now and forever.

In McIntyre v. McIntyre, 824 So.2d 206 (Fla. 2d DCA 2002), the court stated that “[t]he test for determining when periodic payments constitute support or a methodology for division of property, seems to be whether the payor spouse’s payments are given in exchange for a reciprocal exchange of property interests from the recipient spouse.” Id. at 207. The Mediated Settlement Agreement in this case expressly states that as the equitable distribution of the assets of the marriage and as “full and final settlement of the issues in the case,” the parties agreed to the $42 million in payments to Mrs. Braswell. Paragraph 5 of the Agreement also references the transfer of the California property to the wife, lending further support to the conclusion that the parties did not intend the monthly payments to be alimony. See also Hughes v. Hughes, 558 So.2d 197 (Fla. 2d DCA 1989) (the court observed that a contractual provision is a property settlement where one party surrenders valuable property interests in consideration for the right to receive periodic payments; the court noted that the wife agreed to give up her interest in the husband’s property and that both parties agreed not to make claims for alimony against one another; these factors showed that the provision was a property settlement and not alimony).

Here, Mr. Braswell agreed to pay the $42 million in payments to Mrs. Braswell in exchange for property rights in other marital real estate and all alleged business interests. In her counter-petition for Dissolution of Marriage, Mrs. Braswell claimed that she was entitled to an equitable distribution of all of the marital assets. In exchange for all her interest in those assets, Mr. Braswell agreed to pay her $42 million over a set period of time. These payments are equitable distribution in exchange for Mrs. Braswell relinquishing her property rights in these assets. Simply because these equitable distribution payments are made over a certain period of time does not convert these payments into support payments. As such, we determine that Mrs. Braswell waived the right to contend that the payments due under paragraph 5 of the Agreement were in the nature of support.

In the event that Mr. Braswell failed to make any $6 million installment payment when due, the parties agreed that Mrs. Braswell had options after the six-month cure period expired and the default was not cured. First, she could seek a de novo equitable distribution of the marital assets valued as of the date of filing. Equitable distribution would then be recalculated. Second, Mrs. Braswell could opt to declare Mr. Braswell in default of the agreement and seek to enforce the agreement as a creditor of Mr. Braswell and seek additional alimony. Thus, if Mrs. Braswell chose not to seek a de novo equitable distribution and seek enforcement of a money judgment, under paragraph 7 of the agreement, she had another support remedy. She could seek additional alimony over and above the $40,000 per month she was already receiving, which is what Mrs. Bras-well did. Support is clearly already provided for in the agreement in the event of a default by Mr. Braswell.

In sum, we conclude that the first $23 million of equitable distribution installment payments and the $75,000.00 default interest provision for a missed equitable distribution installment payment are not subject to enforcement by contempt because they are not in the nature of support. The purpose of the equitable distribution provision of paragraph 5 and the default interest provision of paragraph 6 was not support, as support was already provided for in the Agreement. The provision divided the marital property, and the default interest provision allowed Mr. Braswell a cure period. As such, the entire $42 million is equitable distribution. In light of the explicit language of the Mediated Settlement Agreement, the trial court erred in finding that the default interest provisions of the mediated settlement agreement and the first $28,000,000 due to Mrs.. Braswell were in the nature of support for Mrs. Braswell and thus enforceable by contempt.

III.SEPTEMBER 23, 2002 ORDER FINDING MR. BRASWELL IN CONTEMPT.

Mr. Braswell next contends that the trial court’s order does not recite facts and findings necessary for an enforceable contempt order. In light of our holding, this issue has become moot.

IV.MAY 22, 2003 ORDER REGARDING TEMPORARY INJUNCTION.

With respect to Mr. Braswell’s third issue on appeal, that the trial court erred as a matter of law and abused its discretion in refusing to dissolve the injunction as 'to homestead property, we find that the issue is moot. Mr. Braswell states in his Reply Brief that he is withdrawing his appeal regarding the trial court’s denial of his motion to dissolve the injunction as to his homestead property because the trial court held a five-day hearing on March 15-19, 2004, on the issue of homestead property and has entered an order on this issue.

V.SUFFICIENCY OF THE INJUNCTION BOND.

Turning next to Mr. Braswell’s fourth issue on appeal, he contends .that the amount- of the bond is legally and factually inadequate, and we agree. The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s costs and damages in the event the injunction is later determined to have been improvidently entered. See Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018 (Fla.1989). Here, the trial court’s order granting the temporary injunction provides for a $100,000.00 bond. The trial court received no evidence in fixing this amount and stated no basis for the amount. The Ocean Drive property was purchased for $5.5 million. As such, as a matter of law, we agree with Mr. Braswell that $100,000.00 is a legally insufficient bond to cover costs and damages. See Vargas v. Vargas, 771 So.2d 594 (Fla. 3d DCA 2000).

In this case, Mr. Braswell was •given no opportunity to present evidence on the appropriate amount of the bond. He requested an evidentiary hearing on the amount of the bond, however no hearing was granted. We conclude that the trial court was required to conduct an evidentiary hearing in order to determine the amount of the injunction bond and erred in not doing so. See SeaEscape, Ltd., Inc. v. Maximum Marketing Exposure, Inc., 568 So.2d 952 (Fla. 3d DCA 1990). As such, we reverse and remand the case with respect to this issue so that the trial court can conduct an evidentiary hearing regarding the amount of the bond.

VI.MRS. BRASWELL’S CROSS-APPEAL.

With regard to Mrs. Braswell’s cross-appeal, she contends that the trial court erred as a matter of law in its interpretation of the “default interest” provisions of the settlement agreement by finding that the default interest is only to be paid by Mr. Braswell for a period of five months. However, we agree with the trial court that the default interest was only to be paid by Mr. Braswell for a period of five months.

Paragraph 6 of the Mediated Settlement Agreement states the following:

6. In the event of default in the payments described in ¶ 5 above as defined in this agreement the parties agree that there shall be default interest in the amount of 15% of the unpaid balance commencing 30 days from the date payment is due. The husband has 5 additional months to cure default. In the event payment has not been made the wife has the right at her option to seek an equitable distribution of the marital assets valued as of the date of filing. The court shall be informed of the money the wife has already received.

Evidently, after the expiration of the five-month cure period, Mrs. Braswell had the option to void the agreement and seek an equitable distribution of the marital assets valued as of the date of filing or seek to enforce the settlement agreement. She sought to enforce the agreement by obtaining a judgment which began to accrue interest at the statutory rate.

The trial court entered a $6,000,000 judgment against Mr. Braswell. Default interest was payable to Mrs. Braswell only during the five-month cure period. After the cure period expired, Mrs. Braswell had legal recourse against Mr. Braswell, which was to enforce the Mediated Settlement Agreement or seek an equitable distribution. She chose to enforce the Mediated Settlement Agreement, and obtained a money judgment. There is no language in the Mediated Settlement Agreement about what the default interest rate would be after the five-month cure period expired.

As general rule, debt bears interest at contract rate only to date of final decree; after that date, the total indebtedness, including principal and interest, attorneys’ fees, and expenses adjudged by decree, bears interest at the statutory rate applicable to judgments and decrees generally. See Whitehurst v. Camp, 677 So.2d 1361, 1362 (Fla. 1st DCA 1996) (under doctrine of merger, cause of action on debt, together with damages recoverable thereon, merges into any judgment entered on cause of action, such that, upon entry, judgment does not bear interest as debt or as cause of action, but as judgment), review granted, 687 So.2d 1308, approved in part, 699 So.2d 679. The present case differs from the general rule, however because we interpret the parties’ agreement to provide for prejudgment interest at the default rate for only a five-month period. As such, the 15% interest rate the parties agreed to applied only during the five-month cure period. After this period expired and Mrs. Braswell obtained her money judgment, that judgment accrued interest at the statutory rate for that .period of time. See § 55.03, Fla. Stat. (2004) (for determination on how statutory interest rate is set in December of each year for the upcoming year). For the very same reasons previously stated in our discussion of Mrs. Braswell’s cross-appeal, we affirm the trial court’s order and Amended Final Money Judgment in case no. 3D02-2993.

VII. CONCLUSION.

In sum, we reverse and remand the September 23, 2002 Order so that the appropriate facts and findings can be made; and reverse on the bond issue and remand for the trial court to conduct an evidentia-ry hearing to determine the appropriate amount of the injunction bond. We further affirm Mrs. Braswell’s cross-appeal, the trial court’s “Order on Former Wife’s Third Amended Motion to Enforce the Parties’ Mediated Settlement Agreement Dated March 15, 2000 Regarding Interest Payments and for Contempt.” Finally, in case number 3D02-2993, we affirm the trial court’s “Order on Former Wife’s Motion to Amend Final Money Judgment, Order on Former Husband’s Motion for Relief from Final Money Judgment and Order Vacating Final Money Judgment dated July 30, 2002” and the related Amended Final Money Judgment.

Affirmed in part, reversed in part, and remanded.

FLETCHER, J., concurs.

COPE, J.

(concurring in part and dissenting in part).

I am in agreement with the majority opinion except for Part VI. Paragraph 6 of the Mediated Settlement Agreement provides for a default interest rate of 15% on the unpaid balance. See majority opinion at 1203. The contract allows Mr. Braswell five months to cure any default. Nowhere, however, does the agreement say that the default interest rate ends in five months.

“[A]s a general rule ... ‘the debt bears interest at the contract rate to the date of the final decree.’ ” Whitehurst v. Camp, 699 So.2d 679, 682 (Fla.1997) (citations omitted). The contract allowed Mr. Bras-well a period of five months to cure the default, but he did not do so. Mrs. Bras-well is entitled to default interest until the date of the judgment.

      . Mr. Braswell was indicted and arrested on January 13, 2003.

      . In addition to the $42 million and the $40,000.00 per month payments, Mr. Bras-well agreed to provide health insurance for the minor child, pay uncovered medical, dental and orthodontic expenses, pay for private school through high school, pay for the minor child's summer and extracurricular activities, pay for all the regular household and Mrs. Braswell’s expenses while she remained at the former marital home until December 31, 2000, immediately transfer to Mrs. Braswell a residence in California valued at $1 million, and pay Mrs. Braswell's attorneys’ fees and costs.

      . On February 8, 2002 she filed an Amended Motion; on July 19, 2002, she filed a Second Amended Motion; and on July 26, 2002, she filed a Third Amended Motion.

      . We further note that Mrs. Braswell’s and the minor child's support needs are addressed in other provisions of the Mediated Settlement Agreement.

      . We note that Mrs. Braswells appeal in case number 3D02-2993 involves this very same issue. In that case, Mrs. Braswell is also contending that the trial court erred as a matter of law in its interpretation of the default interest provisions of the settlement agreement in finding that default interest is only to be paid by the former husband for a period of five months.


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    Nathaniel PACKER, Appellant, v. ORANGE COUNTY SCHOOL BOARD, Appellee.
    No. 5D03-1213.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Tobe Lev of Egan, Lev & Siwiea, P.A., Orlando, for Appellant.
    James G. Brown of Ford & Harrison, LLP, Orlando, for Appellee.
   THOMPSON, J.

Nathaniel Packer appeals an order by the Orange County School Board (“school board”) terminating his employment. We reverse and remand with directions that the administrative law judge’s (“ALJ”) recommended order be adopted as the final agency order.

As a result of incidents with students, Packer, a physical education teacher, was issued a directive to report physical confrontations and to avoid the appearance of intimidation. After the directive was issued, the school board filed an administrative complaint against Packer alleging that he struck and/or shoved a student, R.S., without a lawful purpose and that Packer’s actions were sufficient to terminate Packer’s employment with the county. The incident occurred as R.S. tried to obtain more of the candy that Packer was passing out to his students.

After an administrative hearing, an ALJ issued an order recommending that the school board enter a final order finding Packer not guilty of the acts and omissions alleged in the administrative complaint and recommending that Packer be reinstated to his teaching position. The ALJ determined that the only evidence that Packer’s force was excessive was the testimony of a school board witness which was “inconsistent and less than credible and persuasive.” The ALJ found:

4. R.S. ignored Respondent’s [Packer’s] instructions and persisted in his attempt to take candy from Respondent. At that point, R.S. was a disruptive student. Respondent told R.S. to “back off,” but R.S. persisted. R.S. put his hands on Respondent’s hands and in the candy in an attempt to reach the candy. At the same time, a group of students rushed towards Respondent to receive candy. The group of students were also disruptive.
5. Respondent tried to separate himself from R.S. at the same time that Respondent backed away from the onrushing group of students. Respondent touched R.S. on the shoulder with an open hand and pushed R.S. away from Respondent. Respondent was neither angry nor agitated. The force that Respondent applied to R.S., caused R.S. to take a step or two backward into the adjacent lockers but did not injure R.S. or inflict pain on R.S. R.S. did not fall down.

The ALJ determined:

28. The written directive was issued on May 18, 1999, also prohibits Respondent from verbally intimidating a student. Respondent’s instruction for R.S. to “back off’ did not verbally intimidate R.S. R.S. ignored all verbal instructions from Respondent and persisted in his physical pursuit of candy leaving Respondent with little alternative but to physically separate from R.S.
44. Petitioner failed to show by a preponderance of the evidence that the force used by Respondent on November 14, 2001, was unreasonable and undertaken for an unlawful purpose. The force used by Respondent was reasonable under the circumstances and undertaken for the lawful purpose of maintaining order and protecting the physical safety of other students.

After the ALJ issued its recommendations, the school board drafted exceptions to the ALJ’s recommended order and modified Findings of Fact 4 and 5:

The school board has modified the ALJ’s Finding of Fact No. 4 to delete any finding that R.S. or the other students were disruptive. Neither Respondent nor anyone else testified that R.S. or the students were disruptive. The ALJ’s Finding of Fact in this regard is not supported by competent substantial evidence.
The School Board has modified the ALJ’s Finding of Fact No. 5 to delete the ALJ’s finding that R.S. was not injured’ or had pain inflicted upon him because it is not supported by competent substantial evidence and is directly contrary to R.S.’s testimony that it hurt. The School Board has made an additional finding that Respondent admitted that he was wrong for touching R.S. and that Respondent was not trying to hurt R.S. because Respondent testified to this fact.

Thereafter, the school board terminated Packer’s employment.

On appeal, Packer contends that the school board abused its discretion when it rejected the ALJ’s fact findings. We agree. An administrative agency may not reject a hearing officer’s findings, unless it first determines that they were not based on competent, substantial evidence, or that the proceedings before the hearing officer did not comply with the essential requirements of law. McMillan v. Broward County School Bd., 834 So.2d 903 (Fla. 4th DCA 2003); see also Gross v. Department of Health, 819 So.2d 997 (Fla. 5th DCA 2002). Furthermore, when determining whether to reject or modify the findings of fact in a recommended order, the agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret the evidence to fit its ultimate conclusions. Gross, 819 So.2d at 1001. “In summary, if there is competent substantial evidence to support the findings of fact in the record ... the agency may not reject them, substitute its findings, or make new findings.” Id.; see also Miles v. Nassau County School Bd., 824 So.2d 260 (Fla. 1st DCA 2002) (reversing order rejecting ALJ’s findings that no inappropriate touching occurred where ALJ stated a number of reasons for rejecting the allegations of the alleged victims and where finding was based on competent, substantial evidence).

In the instant case, several students who were witnesses to the incident testified at the administrative hearing, but provided inconsistent testimony. There was testimony that students were crowding Packer in a small locker area to receive candy and that R.S. persisted in attempting to take candy from Packer after Packer told R.S. that he could not have any more. E.S. testified that Packer pushed R.S. on the shoulder and that R.S. took a couple of steps back because he was in shock. L.P. testified that Packer moved his fist back about six inches and touched R.S.’s chest. L.P. stated that R.S. took a step backwards and did not appear to be in pain. E.M. testified that R.S. fell to the floor after Packer hit him. F.D. testified that R.S. was “fooling around” and that Packer just touched R.S. on his arm and told him to calm down.

Where reasonable people can differ about the facts, an agency is bound by the hearing officer’s reasonable inference based on the conflicting inferences arising from the evidence. Greseth v. Department of Health and Rehabilitative Services, 573 So.2d 1004, 1006-1007 (Fla. 4th DCA 1991). Tedder v. Florida Parole Com’n., 842 So.2d 1022 (Fla. 1st DCA 2003), is also instructive:

Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact.... It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.... If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.

Id. at 1025 (citing Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985)) (emphasis supplied).

The school board contends that it properly rejected the ALJ’s findings because they overrode the school board’s policies regarding its responsibility to ensure the safety of its students. The cases the school board cites are distinguishable because in those cases, the hearing officers actually found that there was bad conduct on the part of the employee, but determined that the employee was not subject to penalty. In those instances, the district courts held that policy determinations can govern the agencies’ decisions in rejecting or following the ALJ’s recommendations. See Goss v. District School Bd. of St. Johns, 601 So.2d 1232 (Fla. 5th DCA 1992) (affirming school board’s rejection of ALJ’s determination that the school bus driver, who had been provoked by students, was not guilty of misconduct where ALJ found that driver swerved 10 inches over center line in road while yelling at student on sidewalk); see also Purvis v. Marion County School Bd., 766 So.2d 492 (Fla. 5th DCA 2000) (affirming school board’s rejection of ALJ’s recommended penalty where the ALJ found that teacher had conducted himself inappropriately in public place, grabbed bar patron by face, resisted arrest, and testified falsely at trial); Johnson v. School Bd. of Dade County, Fla., 578 So.2d 387 (Fla. 3d DCA 1991) (affirming school board’s determination that teacher had been insubordinate where hearing officer found no insubordination but that teacher repeated conduct previously prohibited by superiors); Schrimsher v. School Bd. of Palm Beach County, 694 So.2d 856 (Fla. 4th DCA 1997) (affirming school board’s rejection of recommended penalty where it was undisputed that administrator accepted gifts from, and became personally involved with, persons with whom school board contracted); Winters v. Florida Bd. of Regents, 834 So.2d 243 (Fla. 2d DCA 2002) (affirming school board’s penalty where it was undisputed that employee had breached employment contract by providing false information on application).

In the instant case, the ALJ determined that Packer had little alternative but to separate from R.S. as he was being rushed by (candy-crazed) children. The directive issued to Packer by the school board prohibited:

Touching a student in a manner that serves no education or lawful purpose which may encourage the appearance or use of force.

The ALJ addressed the question whether Packer touched R.S. for a lawful purpose:

In absence of a showing of unreasonable forcé and unlawful purpose, the actions of the Respondent did not constitute misconduct in office, gross insubordination, willful neglect of duty, or conduct unbecoming. Respondent did not violate the terms of the collective bargaining agreement, and Petitioner does not have just cause within the meaning of Section 231.36(l)(a) to dismiss Respondent.

Although no witness used the term, “disruptive,” the situation in the locker room was clearly disruptive. Further, although Packer testified, “Like I said, I know I’m wrong for touching, but I wasn’t trying to like they say, I tried to hurt [R.S.],” Packer specifically testified that he did not hit R.S., and Packer did not admit that his conduct was inappropriate under the circumstances.

It was improper for the school board to reject the ALJ’s findings and credibility determinations because they are the prerogative of the hearing officer. The school board contends that, “Once an improper touching was established, the School Board could determine if its prior directives, reprimands and rules and regulations were violated,” but the ALJ made the contrary finding that there was no improper touching and that Packer touched R.S. for a lawful purpose. The ALJ’s findings were supported by competent, substantial evidence, and the ALJ findings were of a character not infused with overriding policy considerations as in for example, Goss. Therefore, we reverse and remand with instructions that the ALJ’s recommended order be adopted as the final agency order.

REVERSED and REMANDED with directions.

PALMER and MONACO, JJ., concur.


author: PALMER, J.

text:
    S.K. and S.K., Parents of R.K. Minor Victim, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1599.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Gregory W. Eisenmenger of Eisenmen-ger, Berry & Peters, P.A., and Scott L. Knox, Melbourne, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

S.K. and S.K., parents of R.K., appeal the trial court’s order denying their motion to set aside a “PAY agreement” entered into between the State and the juvenile offender who was charged with committing a lewd and lascivious molestation on R.K, and their motion to extend the terms of the protective order entered against the juvenile offender. Concluding that R.K’s parents lack standing to seek to set aside the PAY agreement or to modify the terms of the juvenile offender’s release, we affirm.

A probable cause affidavit was filed by the State indicating that N.S., a minor, committed a lewd and lascivious molestation upon R.K., the minor child of S.K. and S.K. A petition for delinquency was initially filed charging N.S. with committing a felony; however, an amended petition was later filed changing the offense to a misdemeanor battery pursuant to a plea agreement worked out between N.S. and the State.

When the matter proceeded before the trial court, R.K.’s parents received permission to address the trial court concerning the proposed plea agreement. The parents noted that the state attorney had consulted with them about the plea agreement but that the State entered into the plea agreement with N.S. without requiring the condition requested by the parents; to wit, that N.S. be prohibited from attending the same school as R.K. The State asked the court to accept the terms of the plea that had been negotiated, with the school issue to be determined by the court. The court accepted the plea but delayed sentencing. The court also prohibited N.S. from having any contact with R.K. or her immediate family.

At a subsequent hearing, over defense counsel’s objection, the trial court entered a temporary order requiring the immediate transfer of N.S. to another school, but continued the case to see whether an amenable solution could be worked out.

Subsequent to that hearing, the State and N.S. entered into a PAY agreement. The agreement required N.S. to complete a psychological evaluation and to begin any recommended treatment. N.S. was also prohibited from having any contact with the victim or her family, and from being on the campus of the school attended by the victim. The agreement was to stay in effect until the end of the current school year. In exchange, the State agreed to either nolle prosse or dismiss the battery petition upon N.S.’s successful completion of the PAY agreement.

R.K.’s parents filed a motion requesting the trial court to set aside the PAY agreement, claiming that mandatory counseling should have been required and that the terms of the agreement violated section 948.08(2), of the Florida Statutes since the agreement constituted a pretrial intervention and diversion agreement but neither R.K. nor her representative gave consent to same. The parents also argued that the trial court’s failure to conduct a hearing on the issue of whether the PAY agreement should be accepted violated Article I, section 16(b) of the Florida Constitution , section 960.001(l)(a)5 of the Florida Statutes, and rule 8.075(b)(3) of the Florida Rules of Juvenile Procedure.

The State and N.S. responded by filing a stipulation and joint motion requesting that the trial court deny the parent’s “non-party motion” and to cancel a hearing scheduled by the parents. The State maintained that the PAY agreement was a pretrial decision vested solely within the state attorney’s discretion and, as such, was not subject to judicial review.

Upon review, the trial court entered an order denying the parents’ motion to set aside the PAY agreement. Citing to State v. C.C.B., 465 So.2d 1379, 1381 (Fla. 5th DCA 1985), the trial court concluded that it was without authority to direct the State to prosecute the case or to include specific conditions in the PAY agreement because, in juvenile delinquency proceeding as in adult criminal cases, the State makes the final determination whether to place a juvenile in a pre-trial intervention program and what conditions the PAY agreement should include. The court also held that since R.K.’s parents were not parties to the action, they lacked standing to assert a legal claim or to seek enforcement of a legal right through the motion.

R.K’s parents filed a separate motion seeking entry of an amended protective order. The motion requested the trial court to extend the existing zone of protection from one hundred feet around R.K’s home to include the road on which her home was located. Defense counsel argued the parents lacked standing to file this type of motion since it was in essence a motion to modify the conditions of N.S.’s release, which can only be filed by the state attorney’s office. The trial court agreed that the parents lacked standing and denied the motion. Because we agree with the trial court’s rulings, we affirm.

In juvenile proceedings, the state attorney is authorized to determine the manner of prosecution which is in the best interest of the public and the child. For example, a state attorney can file a petition for dependency or delinquency, or refer a child to a diversionary, pretrial intervention, arbitration or mediation program or to some other treatment or care program if such program commitment is voluntarily accepted by the child or the child’s parents or legal guardians. The state attorney can also decline to file any charges at all or to reinstate prosecution. See § 985.21(4)(d), Fla. Stat.(2001). See also State v. Green, 527 So.2d 941, 942 (Fla. 2d DCA 1988). Importantly, the decision to prosecute lies solely with the State, not with the victim of a-crime. State v. Wheeler, 745 So.2d 1094, 1095 (Fla. 4th DCA 1999); McArthur v. State, 597 So.2d 406 (Fla. 1st DCA 1992); State v. Bryant, 549 So.2d 1155 (Fla. 3d DCA 1989).

In Cleveland v. State, 417 So.2d 653 (Fla.1982), the Florida Supreme Court explained that since pretrial intervention is an alternative to prosecution, the decision to admit a defendant to pretrial intervention must remain in the prosecutor’s discretion not subject to judicial review. In addition, the Cleveland court indicated that the legislature did not provide for any type of judicial review when creating the pretrial intervention program.

Minors are allowed to enter agreements for a pretrial intervention pursuant to rule 8.075 of the Florida Rule of Juvenile Procedure. A.D.W. v. State, 777 So.2d 1101, 1104 (Fla. 2d DCA 2001). However, rule 8.075(b), makes no provisions for the victim or the victim’s parents to be involved in the submission of a treatment plan or in the decision to such a hearing and, in fact, a hearing can be waived by the parties and the supervising agency.

In the instant case, R.K’s parents were informed and were able to give their views to the prosecution regarding the PAY agreement. They complain because there was no hearing held on the PAY agreement and argue they should have been treated as parties and allowed to refuse to consent to a waiver of a hearing. However, the pertinent statute allows for others to waive a hearing in this particular circumstance and makes no mention of the victim or victim’s representatives; therefore, no error occurred.

The parents also contend that the instant PAY agreement should have been set aside because the state attorney did not obtain R.K.’s consent as required by section 948.08(2), Florida Statutes. However, such consent was not required. Section 948.08(1) states that the Department shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the circuit court. The trial court was correct in holding that the provision of section 948.08(2) were inapplicable since Chapter 948 only applies to defendants who are charged by information or indictment and the instant delinquency charges were filed by petition, not indictment or information.

Next, R.K’s parents maintain that the trial court erred by entering an order denying their motion to seek modification, amendment, or entry of a new protective order for lack of standing. This issue relates to the parents’ attempt to obtain a “protective order” related to the street where the family resides. They note that the state attorney is authorized to seek a protective order relating to a victim or witness pursuant to section 914.24(2), Florida Statutes, but argue that because the state attorney and N.S. filed a joint motion in opposition to the parents’ motion, a conflict of interest exists which precludes the state attorney from filing for a protective order in this case. The parents argue that they should have been permitted to seek the protective order provided for in section 914.24(2) in place of the state attorney. We again disagree. As the State correctly points out, the State could pursue a protective order in this case if it believed that one was necessary. However, the provisions in the PAY agreement were deemed adequate.

AFFIRMED.

SAWAYA, C.J., and ORFINGER, J., concur.

      . “PAY” is an acronym used to refer to prosecution alternatives for youth agreements.

      . Section 948.08(2) of the Florida Statutes provides:
      948.08. Pretrial intervention program

      (2) Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender. However, the defendant may not be released to the pretrial intervention program unless, after consultation with his or her attorney, he or she has voluntarily agreed to such program and has knowingly and intelligently waived his or her right to a speedy trial for the period of his or her diversion. The defendant or the defendant's immediate family may not personally contact the victim or the victim’s immediate family to acquire the victim's consent under this section.
      (Emphasis added).

      . Article I, section 16(b) of the Constitution of the State of Florida provides:
      § 16. Rights of accused and of victims

      (b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

      . Section 960.001(l)(a)5 of the Florida Statutes provides in relevant part:
      960.001. Guidelines for fair treatment of victims and witnesses in the criminal justice and juvenile justice systems

      [l](a) Information concerning services available to victims of adult and juvenile crime.—

      5.The right of a victim, who is not incarcerated, including the victim's parent or guardian if the victim is a minor, the lawful representative of the victim or of the victim’s parent or guardian if the victim is a minor, and the next of kin of a homicide victim, to be informed, to be present, and to be heard when relevant, at all crucial stages of a criminal or juvenile proceeding, to the extent that this right does not interfere with constitutional rights of the accused, as provided s. 16(b), Art. I of the State Constitution.

      . Rule 8.075(b), Florida Rules of Juvenile Procedure deals with plans of proposed treatment, training or conduct for children charged in delinquency cases. Such a plan must be in writing, agreed to, and signed in all cases by the state attorney, the child and, when represented, by the child’s counsel. Unless excused by the court, the parents or custodians of that child must also sign. After a hearing, which may be waived by stipulation of the parties and the supervising agency, the court may accept the plan and order compliance therewith or may reject it.

      . The State maintains that this appeal should be dismissed as moot because a nolle prosse has been entered in this case and therefore review is not appropriate, either by direct appeal or by petition of writ of certiorari. The State is technically correct because if this court were to conclude that error occurred below, there is no case or controversy remaining to remand to the trial court. In that regard, this court could not force the state attorney to reinstate the charges against N.S. because, in addition to a separation of powers problem, to do so would interfere with the constitutional rights of the accused. See Ford v. State, 829 So.2d 946 (Fla. 4th DCA 2002), rev. denied, 845 So.2d 889 (Fla.2003). However, we have decided to address the issues on the merits because this proceeding involves important legal issues which would escape appellate review if the case were deemed to be moot. See R.R. v. Portesy, 629 So.2d 1059 (Fla. 1st DCA 1994); C.L.B., v. Jones, 381 So.2d 1178 (Fla. 1st DCA 1980).

      . Section 914.24(2) of the Florida Statutes provides:
      914.24. Civil action to restrain harassment of a victim or witness

      (2)(a) A circuit court, upon motion of the state attorney, shall issue a protective order prohibiting the harassment of a victim or witness in a criminal case if the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a criminal case exists or that such order is necessary to prevent and restrain an offense under s.914.23.


author: |! KIMBALL, Justice.

text:
    Marolyn W. BRYANT v. UNITED SERVICES AUTOMOBILE ASSOCIATION and Robertnique W. Williams. Virginia McCray v. Geno Wesley Jenkins, Maurice Jenkins and Allstate Insurance Company.
    Nos. 2003-C-3491, 2004-C-0028.
    Supreme Court of Louisiana.
    Sept. 9, 2004.

      Nelson, Zentner, Sartor & Snellings, Thomas G. Zentner, Jr., Monroe, for Applicant.
    Street & Street, C. Daniel Street, for Respondent.
   |! KIMBALL, Justice.

These consolidated cases involve the narrow issue of whether La. R.S. 32:866, the “no pay, no play” law, applies to bar a portion of a named insured’s recovery of her own bodily injury and/or property damages when an excluded driver is involved in an accident while driving the named insured’s, vehicle. For the reasons that follow, we find that when an insurance policy affords no coverage when an excluded driver is operating a named insured’s vehicle, policy considerations dictate a conclusion that La. R.S. 32:866 applies to bar a portion of the named insured’s recovery when the |2excluded driver is involved in an accident while driving the named insured’s vehicle with the permission of the named insured.

Facts and Procedural History

Marolyn W. Bryant

On October 26, 2002, Justin Bryant was driving a 1990 Ford Mustang owned by his mother, Marolyn Bryant, on Highway 167 in Jonesboro, Louisiana, when Robert-nique Williams ran a red light and collided with his vehicle. At the time of the accident, Williams was covered by an automobile liability insurance policy issued by United Services Automobile Association (“USAA”). The Mustang owned by Maro-lyn Bryant was insured by Direct General Insurance Company (“DGIC”). The Bryant policy expressly excluded seventeen-year-old Justin, who was a resident of Marolyn Bryant’s household, from coverage.

On January 10, 2003, Marolyn Bryant (“plaintiff’) filed a petition for damages against Williams and USAA (“defendants”), alleging that Williams’s negligence was the sole and legal cause of the accident and that she suffered property damage as a result of the accident. Specifically, plaintiff alleged that her automobile was rendered a total loss and that she was therefore entitled to recover $5,000, or the value of her vehicle, together with damages for loss of use of the vehicle from defendants. In answer to plaintiffs petition, defendants denied the allegations contained in the petition and asserted the provisions of La. R.S. 32:866, the “no pay, no play” statute, as an affirmative defense. Defendants contended that the statute applied to bar plaintiffs recovery because plaintiffs son was uninsured due to the fact that he was an excluded driver under plaintiffs policy at the time of the accident.

Plaintiff then filed a Motion for Summary Judgement on Insurance Coverage seeking a judgment as a matter of law that defendants could not deny coverage on the | «basis of La. R.S. 32:866. Plaintiff argued that the statute, which seeks to punish an owner or operator who fails to maintain compulsory motor vehicle liability security, did not apply because she did, in fact, maintain automobile liability coverage in compliance with the compulsory motor vehicle liability security law. Attached to plaintiffs motion was her affidavit and a certified copy of the insurance policy containing the named driver exclusion. Defendants opposed the motion, contending that the “no pay, no play” law applies to situations in which an excluded driver was operating the vehicle at the time of the accident.

The district court granted plaintiffs motion for summary judgment, holding that defendants could not deny coverage on the basis of La. R.S. 32:866. In its written reasons for judgment, the district court, relying on the case of A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 01-0810 (La. App. 1 Cir. 5/10/02), 818 So.2d 867, explained that plaintiff “would not be excluded from collecting on her insurance policy because this was not an ‘uninsured’ vehicle for the purposes of L[a]. Revised Statutes 32:866.... ” After expressly determining there was no just reason for delay in accordance with La. C.C.P. art. 1915(B)(1), the district court designated the judgment as final.

On appeal, the court of appeal affirmed the judgment of the district court. Bryant v. United Servs. Auto. Ass’n, 37,926 (La.App. 2 Cir. 12/10/03), 862 So.2d 446. The court of appeal found that La. R.S. 32:866 clearly and unambiguously bars owners from recovering the first $10,000 of property damage if they failed to own or Rmaintain compulsory motor vehicle liability security. The court noted, however, that there is a split among various courts of appeal regarding whether the “no pay, no play” law applies to bar an insured owner from recovering his or her own damages when an excluded driver is operating the vehicle at the time of the accident. Citing A.K. Dumin, supra, the court concluded that because La. R.S. 32:900 specifically allows an insured to exclude a child who is a resident of the same household, the fact that plaintiff specifically excluded her son from coverage under her policy did not alter her compliance with the compulsory motor vehicle liability security law. Therefore, the court of appeal concluded, because plaintiff had an automobile insurance policy on the vehicle at the time of the accident, she is entitled to recover property damages without any deduction under the “no pay, no play” law.

Virginia McCray

On September 16, 2000, Stacy McCray was driving a 1986 Chrysler Fifth Avenue owned by his wife, Virginia McCray, on Interstate 10 in Jefferson Parish when the vehicle he was driving was struck from behind by a vehicle being driven by Geno Jenkins. Virginia McCray was a guest passenger in the Chrysler Fifth Avenue. The vehicle being driven by Geno Jenkins was owned by Maurice Jenkins and insured by a policy of motor vehicle liability insurance issued by Allstate Insurance Company (“Allstate”). The vehicle owned by Virginia McCray was insured by Young American Insurance Company (“YAIC”). The McCray policy expressly excluded Stacy McCray from all coverage provided by the policy.

On May 31, 2001, Virginia McCray (“plaintiff’) filed a petition for damages against Geno Jenkins, Maurice Jenkins, and Allstate (“defendants”), alleging that Geno Jenkins’s negligence was the cause of the accident and that she suffered bodily injury, loss of earnings, and property damage as a result of the accident. Plaintiff further |fialleged that the negligence of Geno Jenkins could be imputed to Maurice Jenkins as he entrusted a dangerous instrumentality to the care and control of an individual who he knew or should have known to be a careless and reckless driver. In answer to plaintiffs petition, defendants denied the allegations contained in the petition and asserted the applicability of the “no pay, no play” statute.

Subsequently, defendants filed a motion for summary judgment seeking judgment as a matter of law that La. R.S. 32:866 applies to prohibit plaintiff from recovering the first $10,000 of her claim. Defendants contended that because the driver of plaintiffs vehicle was excluded from coverage under her policy, there was no insurance coverage in full force and effect on plaintiffs vehicle. Consequently, defendants argued, plaintiff is barred from recovering a portion of her damages pursuant to the “no pay, no play” statute. Plaintiff opposed the motion, arguing that although her husband is precluded from recovering his damages, she is entitled to full redress for her damages because her vehicle was insured as required by law.

After a hearing on the matter, the district court denied defendants’ motion for summary judgment, stating that because plaintiff had insurance on the vehicle, she had complied with the law. The matter was tried on December 3, 2002. In lieu of live testimony, the parties submitted to the district court a joint stipulation of facts and a number of exhibits. Included in the stipulation were the facts that Geno Jenkins was solely at fault for the accident, that the written agreement providing for the exclusion of Stacy McCray was in full force and effect on the date of the accident, that the agreement excluded any insurance coverage under the YAIC policy to Stacy McCray for use or operation of the Chrysler Fifth Avenue involved in the accident, that Stacy McCray’s driver’s license had been suspended since 1991, and that plaintiff had given her husband permission to operate the vehicle on the date of the accident. Certain | Ritems of damage were included in the stipulation. On December 23, 2002, the district court rendered judgment in favor of plaintiff for a total amount of $14,890.65, together with interest and costs, finding that the “no pay, no play” statute does not apply in this case.

On appeal, a five-judge panel of the court of appeal reversed the district court’s ruling that La. R.S. 82:866 is inapplicable to this case. In reaching its decision, the court of appeal rejected the reasoning of the A.K. Dumin court, choosing instead to follow the court of appeal’s holding in Lantier v. State Farm Mut. Auto. Ins. Co., 02-0301 (La.App. 3 Cir. 10/2/02), 827 So.2d 597, writ denied, 02-2628 (La.12/13/02), 831 So.2d 991. The court of appeal found that the “no pay, no play” statute applies to this case because plaintiff did not have liability coverage for her vehicle when she allowed Stacy McCray to drive it. The court of appeal noted that the purpose of the “no pay, no play” law is to discourage the operation of uninsured vehicles and that while La. R.S. 32:900(L) permits an insurer and an insured to specifically exclude the named insured’s spouse from coverage, the statute does not permit the insured to allow an excluded spouse to operate the vehicle. The court of appeal therefore found that La. R.S. 32:866 applies, reversed the judgment of the district court on this issue, and amended plaintiffs award accordingly.

In two separate writ applications, Williams and USAA and Virginia McCray sought review of the judgments of the courts of appeal described above. This court granted certiorari and consolidated the matters. Bryant v. United Servs. Auto. Ass’n, 03-3491 (La.3/19/04), 869 So.2d 834 and McCray v. Jenkins, 04-0028 (La.3/19/04), 869 So.2d 835. We granted certiorari primarily to resolve a split among the circuit courts of appeal on the narrow issue of whether La. R.S. 32:866 applies to bar a specified portion of a named insured’s recovery when an excluded driver is involved |7in an accident while driving the named insured’s vehicle.

Discussion

The Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:851 through La. R.S. 32:1043, sets forth a mandatory, comprehensive scheme to protect the public from damage caused by motor vehicles. Adams v. Thomas, 98-2003, pp. 3-4 (La.4/13/99), 729 So.2d 1041, 1043; Simms v. Butler, 97-0416, p. 2 (La.12/2/97), 702 So.2d 686, 687. The law requires that the owner of every motor vehicle registered in this state, with limited exception, obtain proof of security prior to registration, renewal of registration, application for an inspection certifícate, and/or application for a driver’s license.. La. R.S. 32:861(A)(1) and (2); La. R.S. 32:862(C) and (D). See also Adams at p. 4, 729 So.2d at 1043; Simms at p. 2, 702 So.2d at 687. An owner may satisfy this requirement by obtaining an automobile liability policy with specified liability limits as defined by statute. La. R.S. 32:861(A)(1).

The statutory scheme provided by the Louisiana Motor Vehicle Safety Responsibility Law is intended to attach financial protection to the vehicle rather than to the operator. Marcus v. Hanover Ins. Co., 98-2040, p. 3 (La.6/4/99), 740 So.2d 603, 605; Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991). Accordingly, La. R.S. 32:900 provides that an owner’s policy of liability insurance shall designate all covered vehicles and “shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle.... ”

In 1992, however, the legislature created an exception and provided that an insurer and an insured may agree in writing to exclude from coverage any named person who is a resident of the same household as the named insured. Specifically, [sthis exception, found in La. R.S. 32:900(L), currently provides in pertinent part:

(1) Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term “named insured” means the applicant for the policy of insurance issued by the insurer.

The sole purpose for the exclusion in La. R.S. 32:900(L) is premium reduction. Williams v. Watson, 01-0495, p. 7 (La.10/16/01), 798 So.2d 55, 59. As we recognized in Joseph v. Dickerson, 99-1046, p. 9 (La.1/19/00), 754 So.2d 912, 917, the purpose of the exclusion “is to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by the excluded driver.”

The Motor Vehicle Safety Responsibility Law also provides various consequences for an owner’s failure to comply with the state’s compulsory automobile liability insurance law. See e.g. La. R.S. 32:863(A)(1) (providing for revocation of the vehicle’s registration and cancellation or impoundment of the vehicle’s license plate); La. R.S. 32:864 (providing criminal sanctions for false declarations); La. R.S. 32:865 (providing criminal sanctions for operating a motor vehicle not covered by security). One of these consequences is found in La. R.S. 32:866, popularly known as the “no pay, no play” law. This law states, in pertinent 19part:

A. (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
* # * *
B. Each person who is involved in an accident in which the other motor vehicle was not covered by compulsory motor vehicle liability security and who is found to be liable for damages to the owner or operator of the other motor vehicle may assert as an affirmative defense the limitation of recovery provisions of Subsection A of this Section. * * * *
E. Nothing in this Section shall preclude a passenger in a vehicle from asserting a claim to recover damages for injury, death, or loss which he occasioned, in whole or in part, by the negligence of another person arising out of the operation or use of a motor vehicle. This Subsection shall not apply to a passenger who is also the owner of the uninsured motor vehicle involved in the accident.

Thus, an owner or operator of a motor vehicle that is involved in an accident who fails to own or maintain compulsory motor vehicle liability security is prohibited from recovering his or her first $10,000 of bodily injury and his or her first $10,000 of property damage based on any cause or right of action arising out of the motor vehicle accident.

This statute was enacted by Act No. 1476 of 1997, the Omnibus Premium Reduction Act of 1997. The title of the Act states that it is designed “to reduce otherwise recoverable damages for failure to maintain liability insurance coverage” and “to require the reduction in automobile liability insurance rates.” Accordingly, in Section 1 of the Omnibus Premium Reduction Act of 1997, the legislature expressed Imtwo broad purposes of the Act: (1) “to achieve a significant reduction in the premium rate of motor vehicle insurance” and (2) “to encourage all persons who own or operate motor vehicles on the public streets and highways of this state to comply with the Motor Vehicle Safety Responsibility Law.” Thus, the beneficiaries of Act 1476 are the insured citizens and the insurers of the state. Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 10 (La.4/23/98), 711 So.2d 675, 682.

As detailed in the previous section, the narrow issue presented by these cases is whether the “no pay, no play” law applies to bar a portion of a named insured’s recovery of her own bodily injury and/or property damages when an excluded driver is involved in an accident while driving the named insured’s vehicle. The resolution of this issue requires a determination of the scope of La. R.S. 32:866 and a balancing of the competing policies underlying La. R.S. 32:866 and La. R.S. 32:900(L).

The courts of appeal that have considered this issue differ in their opinions as to its proper resolution. As explained above, the second circuit held in Marolyn Bryant’s case that she was entitled to recover the total value of her vehicle with no deduction under the “no pay, no play” law because she “did in fact maintain an automobile insurance policy on the vehicle at the time of this accident.” Bryant v. United Sens. Auto. Ass’n, 37,926, p. 3 (La.App. 2 Cir. 12/10/03), 862 So.2d 446, 447. In so holding, the second circuit explicitly agreed with the decision reached by the first circuit in A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 01-0810 (La.App. 1 Cir. 5/10/02), 818 So.2d 867. In A.K Dumin, the first circuit held that La. R.S. 32:866 does not apply to bar an owner’s recovery when she suffers property damage as a result of her vehicle being involved in an accident while being operated by an excluded driver. The first circuit reasoned that the insured is specifically allowed to exclude a spouse under the Louisiana Motor Vehicle Safety Responsibility Law. The first circuit Infound that the fact that the owner had specifically excluded her husband, who was operating her vehicle at the time of the accident, did not change the fact that she had obtained a liability policy in conformity with the compulsory motor vehicle liability security law.

In contrast to the first and second circuits, the fifth circuit in the Virginia McCray case held that the “no pay, no play” applies to partially bar an owner’s recovery when the vehicle is involved in an accident while being driven by an excluded driver. The fifth circuit reasoned that Virginia McCray did not have liability coverage on her vehicle when it was being driven by Stacy McCray with her permission. In reaching this decision, the fifth circuit disagreed with the A.K. Dumin decision and, instead, followed the holding of the third circuit in Lantier v. State Farm Mut. Auto. Ins. Co., 02-0301 (La.App. 3 Cir. 10/2/02), 827 So.2d 597, unit denied, 02-2628 (La.12/13/02), 831 So.2d 991. In Lan-tier, the third circuit relied on policy considerations to hold that the provisions of La. R.S. 32:866 apply to partially bar the recovery of an owner in a situation similar to that of Virginia McCray. The third circuit, rejecting the holding of A.K. Dur-nin, stated that it could not “agree with an interpretation of the statute that allows a party to recover their damages when they have excluded a person from coverage on their policy and then allowed that person to operate the vehicle.” Lantier, 02-0301 at p. 2, 827 So.2d at 598.

After thoroughly considering the positions of each party, the conflicting decisions of the courts of appeal, the relevant statutory provisions, and the underlying public policies of our state, we conclude that La. R.S. 32:866 applies to partially bar the recoveries of plaintiffs in the instant cases if the excluded drivers were operating plaintiffs’ vehicles with their permission.

The “no pay, no play” law bars a portion of an owner’s recovery “based on any 112cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.” La. R.S. 32:866(A)(1). This court has previously construed the term “occasioned by” as it is used in Act 1476 to mean “suffered by.” Progressive Sec. Ins. Co., 97-2985 at p. 14, 711 So.2d at 684. The term “owner” as used in this provision is statutorily defined as “[ejvery person who holds the legal title to a motor vehicle.... ” La. R.S. 32:851(8). The term “operator,” in turn, is statutorily defined as “[ejvery person who is in actual physical control of a motor vehicle.” La. R.S. 32:851(7). The parties do not contend that the excluded drivers, as operators of plaintiffs’ vehicles, are entitled to recover the first $10,000 of their bodily injury and/or property damages. La. R.S. 32:866 clearly applies to partially bar any recovery sought by these operators who failed to own or maintain compulsory motor vehicle liability security. The question we must resolve, however, is whether plaintiffs, as the owners of motor vehicles involved in accidents, failed to “own or maintain” compulsory motor vehicle liability security when they suffered damages based on a cause of action arising out of a motor vehicle accident that occurred when their vehicles were being operated by drivers they had specifically excluded pursuant to La. R.S. 32:900(L).

Because the statute utilizes the. disjunctive “or,” an owner’s recovery is partially barred under the terms of La. R.S. 32:866 unless he both owns and maintains the required liability security at the time the vehicle is involved in the accident. Plaintiffs clearly “owned” compulsory motor vehicle liability security when the excluded drivers were involved in the accidents. However, in order to determine whether they “maintained.” the required security at the, time of the accident, we must examine the policies owned by plaintiffs to determine the coverage afforded when a driver 113specifically excluded pursuant to La. R.S. 32:900(L) is operating the vehicle. An insurance policy is a contract that constitutes the law between the parties. Marcus, 98-2040 at p. ■ 4, 740 So.2d at 606; Pareti v. Sentry Indent. Co., 536 So.2d 417, 420 (La.1988).

The Bryant policy contains a “Designated Driver Exclusion Endorsement” that states:

In consideration of the premium charged for the policy to which this endorsement applies, it is hereby understood and agreed that any insurance afforded by this policy shall not apply or accrue with respect to any claim arising from accidents which occur when any vehicle described in the declarations of the policy or any other vehicle to which the terms of the policy are extended is being used or operated, either with or without permission, by the following excluded members of the insured’s household: Justin Bryant son.

The endorsement was signed by Marolyn Bryant on June 15, 2002. Pursuant to the terms of the policy, then, any insurance coverage that would ordinarily apply to cover Marolyn Bryant’s Ford Mustang vehicle did not “apply or accrue” when Justin was operating the vehicle. As explained above, the exclusion allowed by La. R.S. 32:900(L) represents an exception to the general policy decision to attach insurance protection to a vehicle rather than to an operator. Had Justin been at fault in causing the accident, Marolyn Bryant’s insurance coverage would not have been available to an injured third party. Likewise, any property damage claim that Marolyn Bryant would have otherwise been able to make against her own coverage would not have been available had Justin been at fault in causing an accident while driving her vehicle. Because no insurance coverage was afforded by Marolyn Bryant’s policy for any claim arising out of accidents that occurred when Justin was driving Marolyn Bryant’s vehicle, we must conclude that she failed to maintain compulsory motor vehicle liability security at the time of the accident at issue.

h ¿Virginia McCray’s policy was not introduced into the record. However, the parties stipulated that Stacy McCray was operating Virginia McCray’s Chrysler Fifth Avenue vehicle with her permission at the time of the accident. The parties further stipulated that the McCray policy contained a written named driver exclusion, which was in full force and effect on the date of the accident, whereby any and all coverage provided by the policy excluded Stacy McCray’s use or operation of the vehicle involved in the accident. The various stipulations regarding the named driver exclusion lead us to conclude that, like the Bryant policy, the McCray policy provided no coverage when Stacy McCray was operating Virginia’s McCray’s vehicle. We therefore find that Virginia McCray failed to maintain compulsory motor vehicle liability security when Stacy McCray was operating the vehicle involved in the accident at issue.

In the instant case, it is clear that Stacy McCray was operating Virginia McCray’s vehicle with her permission. It is unclear from the record, however, whether Justin Bryant was operating Marolyn Bryant’s vehicle with her permission. Consequently, in order to properly dispose of the cases before us, we must determine whether the granting of permission, or lack thereof, by a named insured to an excluded driver to operate a covered vehicle makes a difference in the applicability of La. R.S. 32:866 to a particular case.

As evidenced by Act 1476, the legislature enacted the “no pay, no play” law to reduce the premiums charged for motor vehicle insurance and to discourage the ownership and operation of uninsured motor vehicles. The legislature, however, also enacted a provision that allows a named insured to specifically exclude coverage when a named driver is operating an otherwise covered vehicle. The purpose of this law was to give the insured the option of paying a reduced premium in exchange for insurance |1sthat affords no coverage while a vehicle is being operated by the excluded driver. The policies underlying the two provisions thus conflict somewhat. We find they are best reconciled by limiting the application of La. R.S. 32:866 to situations in which a named insured has given permission to operate a covered vehicle to a driver validly excluded pursuant to La. R.S. 32:90(L), and then seeks to recover his or her own damages when the excluded driver is involved in an accident. While our law permits a named insured to exclude a driver from coverage under his or her policy, it clearly does not envision the named insured giving permission to an excluded driver to operate his or her vehicle. By applying the provisions of the “no pay, no play” law to a situation in which the named insured has given an excluded driver permission to operate his or her vehicle, owners are discouraged from allowing an excluded driver on the public highways and streets. While a named insured who has given permission to an excluded driver to operate his or her vehicle may not be liable to an injured third party under a theory of negligent entrustment, see Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912, the provisions of the “no pay, no play” law apply to partially bar the named insured’s own recovery in light of the fact that the named insured thwarted the law by receiving a reduced premium and then permitting his or her car to be operated by an excluded driver. It would serve no valid purpose, however, to apply the provisions of the “no pay, no play” law to a situation in which the excluded driver operated the vehicle without the permission of the named insured. In such a situation, the named insured has not thwarted the law by receiving a reduced premium in exchange for excluding a driver and then permitting that excluded driver to operate the vehicle in contravention of the Motor Vehicle Safety Responsibility Law. Additionally, it would be absurd to contend that a named insured should not be allowed to recover a portion of his or her damages pursuant to the provisions of La. [1fiR.S. 32:866 in a situation where the vehicle was stolen and then involved in an accident, perhaps an accident that was not caused by the fault of the thief. This view is supported by the provisions of La. R.S. 32:865, which impose criminal sanctions on an owner who allows the operation of a motor vehicle that is not covered by proper security. The terms of the statute, however, do not apply when the vehicle is 117operated without the permission of the owner. Additionally, the legislative committee that considered the enactment of the bill that eventually added La. R.S. 32:900(L) specifically declined to amend La. R.S. 32:900(B)(2) to limit required coverage to validly licensed drivers because it was concerned about the situation in which a young child accidentally caused a vehicle to move and cause damage. See Minutes of Meeting, House Insurance Committee, May 13, 1992. In light of the policies served by La. R.S. 32:866, we find it would be absurd to apply the “no pay, no play” law to partially reduce an owner’s recovery for damages arising out of the operation of his or her vehicle by an excluded driver who is involved in an accident when the owner did not | isgive the excluded driver permission to operate the vehicle.

For the reasons explained above, we therefore hold that when an insurance policy affords no coverage for an excluded driver’s operation of the named insured’s vehicle, La. R.S. 32:866 applies to bar a specified portion of the named insured’s recovery of bodily injury and/or property damages when the excluded driver is involved in an accident while driving the named insured’s vehicle with the permission of the named insured. This holding comports with the legislative policy to discourage vehicles without proper security from operating on our public highways, roads and streets, and to benefit the insured citizens and insurers of the state.

The record is unclear as to whether Justin Bryant had permission to operate Marolyn Bryant’s vehicle at the time of the accident. Therefore, there remains a genuine issue of material fact such that the summary judgment granted in favor of plaintiff by the district court and affirmed by the court of appeal must be reversed. The case will be remanded to the district court for it to conduct further proceedings consistent with this opinion.

In Virginia McCray’s case, the parties stipulated that plaintiff had given permission for the excluded driver to operate her vehicle at the time of the accident. Unlike Marolyn Bryant, Virginia McCray was a passenger in the vehicle at the time of the accident. Subsection (E) of La. R.S. 32:866 addresses the claims of passengers' and provides:

Nothing in this Section shall preclude a passenger in a vehicle from asserting a claim to recover damages for injury, death, or loss which he occasioned, in whole or in part, by the negligence of another person arising out of the operation or use of a motor vehicle. This Subsection shall not apply to a passenger who is also the owner of the uninsured motor vehicle involved in the accident.

Because Virginia McCray failed to maintain compulsory motor vehicle liability security |1flwhen she allowed Stacy McCray to operate her vehicle, the vehicle was in effect uninsured under the terms of her policy at the time of the accident. Subsection (E) therefore affords her no relief from the application of the “no pay, no play” law. We find, therefore, that the court of appeal was correct in its conclusion that the provisions of La. R.S. 32:866 apply to bar a portion of her recovery. Additionally, we find no error in the court of appeal’s conclusion that La. R.S. 32:866(A)(1) bars Virginia McCray from recovering the first $10,000 of her bodily injury claim and the first $10,000 of her property damage claim. Accordingly, we affirm the court of appeal judgment reducing her award from $14,890.65 to $2,878.10. Because Allstate did not file a writ application, we will not address its contention, made in brief, that the court of appeal erred in awarding Virginia McCray lost wages in the amount of $728.00 and in finding that “[l]ost wages are not part of an award for property damage.” This determination by the appellate court is now final. See e.g. State ex rel. J.M., 02-2089 (La.1/28/03), 837 So.2d 1247; Doerr v. Mobil Oil Corp., 00-0947 (La.3/16/01), 782 So.2d 573 (on rehearing); Williams v. City of Baton Rouge, 98-1981 (La.4/13/99), 731 So.2d 240.

Decree

For the foregoing reasons, we reverse the judgments of the lower courts granting summary judgment in favor of plaintiff, Marolyn Bryant. The Bryant case is remanded to the district court with instructions for it to conduct further proceedings consistent with this opinion. The judgment of the court of appeal in the McCray case is affirmed.

03-C-3491: Reversed and Remanded.

04-C-0028: Affirmed.

      . La. C.C.P. art. 1915(B)(1) provides:
      B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

      . This law is so named because it provides that "if a motorist fails to pay for liability coverage to protect others, he cannot ‘play’ in the legal system, at least to the collection of his first $10,000 damages.” Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 3 (La.4/23/98), 711 So.2d 675, 679.

      . La. R.S. 32:865 provides:
      A. Any person knowingly operating a motor vehicle and any owner allowing a motor vehicle to be operated, when such motor vehicle is not covered by the security required under R.S. 32:861 shall, upon conviction, be fined not more than five hundred dollars.
      B. (1) If the vehicle is in any manner involved in an accident within this state, when such motor vehicle is not covered by the security required under R.S. 32:861, the owner thereof shall, upon conviction, be fined not more than five hundred dollars, shall, have the registration of the vehicle revoked for a period of sixty days, and shall have his driving privileges suspended for a period of sixty days.
      (2) Notwithstanding Paragraph (1) of this Subsection and except as provided in Paragraph (3) of this Subsection, any person operating a motor vehicle when that person knows the vehicle is not covered by the security required under R.S. 32:861, and any owner allowing a motor vehicle to be operated which is in any way involved in an accident within this state in which any person is killed or injured or in which damage to the property of any one person in excess of five hundred dollars is sustained, when such motor vehicle is not covered by the security required under R.S. 32:861, the owner thereof knows or has been notified by the department of the absence of the required security, and at least thirty days has elapsed after such knowledge has been acquired or notification received by the owner, shall, upon conviction, be fined not less than one thousand dollars, nor more than ten thousand dollars, shall have the registration of his vehicle revoked for a period of twelve months, shall have his driving privileges suspended for a period of twelve months, and shall be required to perform not less than forty hours nor more than two hundred hours of community service. After deposit in the Bond Security and Redemption Fund, an amount equal to all fines collected under the provisions of this Paragraph shall be credited to the Crime Victims Reparations Fund, R.S. 46:1816.
      (3) The criminal sanction provisions of Paragraph (2) of this Subsection, shall not apply:
      (a) To the operator or the owner of a' motor vehicle involved in an accident wherein no injury or damage was caused to the person or property of any one other than such operator or owner or the immediate family members of such operator or owner.
      (b) To the owner of a motor vehicle if at the time of the accident the vehicle was being operated without his permission, express or implied, or was parked by a person who had been operating such motor vehicle without such permission.
      (c) To the operator or the owner of a motor vehicle involved in a collision with another vehicle, in which the operator of the other vehicle is found guilty of or pleads guilty to a charge of operating a vehicle while intoxicated, negligent injuring, vehicular negligent injuring, vehicular homicide, or negligent homicide.
      (4) Any such owner or operator described in Paragraph (1) or (2) of this Subsection shall be able to use the procedures described in R.S. 32:415.1 to obtain a temporary driver’s license, registration, and plate, upon showing undue economic or personal hardship that would result from the suspension of his driving privileges.