text:
    Kenneth W. PEACOCK, Appellant, v. Jill M. PEACOCK, Appellee.
    No. 4D03-1764.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.

      Meah Rothman Tell of Meah Rothman Tell, P.A., Fort Lauderdale, for appellant.
    Robert W. Sidweber and Denise L. Ven-timiglia of Robert W. Sidweber, P.A., Fort Lauderdale, for appellee.
   MAY, J.

The former husband appeals a final judgment of dissolution of marriage. He raises four issues; two have merit. Those issues concern the court’s failure to address all of the parties’ debts and identify which of them are marital and non-marital. We reverse and remand.

In the final judgment of dissolution, the trial court provided an equitable distribution scheme identifying the assets as marital or non-marital. However, when the court reached the distribution of liabilities, it overlooked several. It attributed a $2,700 debt to Ford Motor Credit to the former husband and the former wife’s student loan debt to her. The court failed to allocate another $24,000 in debts that were raised during the hearing.

The first step in distributing a marital couple’s liabilities in a dissolution action requires the trial court to identify them. The second step requires the court to designate them as either marital or non-marital. The third step is to equitably distribute them. Ice v. Ice, 842 So.2d 220 (Fla. 1st DCA 2003).

The general rule requires marital property to be distributed equally. Krafchuk v. Krafchuk, 804 So.2d 376 (Fla. 4th DCA 2001). Nevertheless, “there can be unequal distribution if justifications for disparity exist.” Id. at 380. When this occurs, however, the trial court must articulate the reason(s) justifying the disparity. See Feger v. Feger, 850 So.2d 611 (Fla. 2d DCA 2003).

By its silence, the final judgment effectively holds the former husband responsible for certain liabilities. For example, the trial court found $13,500.00 (after taxes) of the former husband’s Motorola 401(k) plan was a marital asset. It awarded the former wife 50% or $6,750.00 of those funds. However, the court failed to address the former husband’s tax liability in the amount of $9,826.00, incurred as a result of the 2002 distribution of the 40100-

Concerning the former husband’s Motorola Pension Plan, the trial court found the marital portion consisted of $10,260.00 (after taxes) and awarded the wife $5,130.00 as her equitable portion. However, as with the 401 (k), the court failed to address the tax liability of $2,568.00 for the pension plan distribution.

The final judgment also fails to address the husband’s claim to a credit for his portion of the payments on a $10,000 loan he obtained from his 401(k) to purchase the marital residence before the parties separated. It does not address the former husband’s lease of a 2001 Ford Expedition obtained in both parties’ names. Similarly ignored were a loan from the former husband’s mother, mortgage payments allegedly made by the former husband after the parties’ separation, bills for home improvements made after the separation, and credit card debt of $16,000.00. In its current form, the distribution of liabilities is inherently unequal. While the trial court may be able to justify the distribution resulting from its silence on these issues, it must articulate that justification.

In short, the judgment fails to comply with section 61.075, Florida Statutes (2003). Upon remand, the court must identify and re-examine the liabilities, and determine whether they are marital or non-marital. If the court determines the distribution should be unequal, then it must articulate its justification for that inequality. Feger, 850 So.2d at 615.

REVERSED and REMANDED.

POLEN and KLEIN, JJ., concur.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Albert DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2065.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Dunbar, convicted of robbery and battery, asserts that the dual conviction amounts to double jeopardy. We disagree and affirm.

In the criminal incident, Dunbar attempted to snatch the victim’s purse. The victim, however, grabbed her purse and refused to relinquish it. Dunbar responded by lifting the victim up and swinging her completely around while she continued to grip the purse. Ultimately, the victim was forced to release the purse, but not before she suffered from two broken fingers and the dislocation of another. Both the victim and a bystander identified Dunbar as the assailant.

Section 775.021(4)(b), Florida Statutes, directly addresses the issue of whether multiple convictions can arise from a single criminal act. The statute provides for a separate conviction and sentence for each criminal offense committed during a single criminal episode, so long as the separate offenses do not require the same elements of proof, the offenses are not degrees of the same offense, and one offense is not subsumed by another. § 775.021(4)(b), Fla. Stat. (2003). See State v. Smith, 547 So.2d 613, 616 (Fla.1989)(providing that statutory element test “shall be used” in determining whether offenses are the same or separate.) See also Gaber v. State, 684 So.2d 189, 190 (Fla.1996).

In Hamrick v. State, 648 So.2d 274, 275 (Fla. 4th DCA 1995), this court recognized that a defendant can be convicted of both robbery and battery. There, this court, citing Smith, looked exclusively at the statutory elements of both a robbery and battery, finding that a dual conviction did not “violate the constitutional provisions of double jeopardy ..., because each crime requires proof of an element that the other does not.” Id. at 276. Specifically, this court noted that, unlike battery, robbery required proof of “a taking or depriving of property.” Id. Also, while there must be an intentional touching to amount to a battery, the elements of robbery can be satisfied, even if no actual touching occurred, by placing the victim “in fear.” Id. In this case, we note the information charged that Dunbar committed the offense by the use of “force, violence, assault, or putting in fear.”

We have considered Harrison v. State, 755 So.2d 820 (Fla. 5th DCA 2000), but deem it distinguishable. In Harrison, a security guard witnessed the defendant shoplifting. Id. at 821. As the guard attempted to confront him when he left the store, the defendant shoved the guard and fled. Id. In that case, it was the physical contact with the security guard that elevated the crime of theft to robbery. Id. Therefore, the crime of battery became subsumed by the robbery charge. Id. The Harrison opinion, which distinguished Hamrick, was, by its terms, clearly limited to circumstances where the battery alone caused the theft to be elevated to robbery. Id. See Phillips v. State, 834 So.2d 272, 274 (Fla. 5th DCA 2002)(distinguishing Harrison and concluding that, because the charge of attempted robbery in that case was satisfied when the defendant placed the victim in fear, the crime of battery had not been subsumed).

We note that in State v. Reardon, 763 So.2d 418, 419 (Fla. 5th DCA 2000), where a defendant appealed his conviction for aggravated battery and first-degree burglary, the Fifth District concluded that there was no double jeopardy bar to the entry of convictions for both aggravated battery and burglary with a battery when the convictions arose out of the same incident where the aggravated battery and burglary with battery charges did not require the same statutory elements, nor were the offenses degrees of the same crime. Id. at 420-21. Further, neither crime was subsumed by the other. Id. at 420. The Reardon court expressly receded from its earlier opinion in Crawford v. State, 662 So.2d 1016 (Fla. 5th DCA 1995).

Therefore, the convictions and sentences are affirmed.

POLEN and SHAHOOD, JJ„ concur.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Charles SCOTT, Appellee.
    No. 2D03-2605.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

The State appeals from the downward departure sentence imposed on Charles Scott. The departure purportedly was based on cooperation by Scott and a need for restitution. Because there was no evidence to support the downward departure, we reverse.

Scott pleaded guilty to the third-degree felony charge of obtaining property in return for a worthless check in violation of section 832.05, Florida Statutes (2001). Scott had issued the worthless check to his bankruptcy attorney. The sentence computation on Scott’s Criminal Punishment Code seoresheet reflected 56.9 total sentence points with a resulting lowest permissible prison sentence of 21,675 months. Over the stated objection of the State that the sentence was an impermissible downward departure, Scott was sentenced to twenty-four months’ probation and directed to make restitution in the amount of $890 for the dishonored check.

A downward departure sentence — i.e., a sentence less severe than the lowest permissible sentence shown on the Criminal Punishment Code seoresheet — “is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2001); see also § 921.00265(1). The trial court stated on the record that the mitigating circumstances justifying the downward departure were that the need for payment of restitution outweighed the need for a prison sentence and that Scott cooperated with the State to resolve another offense. See § 921.0026(2)(e), (l). Scott pleaded guilty only after the court stated, “I’m going to go ahead and depart on this.” Before sentencing Scott, the court stated concerning Scott: “He understands the maximum sentence he can receive. He understands the actual sentence I’m going to give him.”

On appeal, the State correctly contends — and Scott concedes — that the downward departure sentence of probation with restitution must be reversed. Reversal is required because no evidence of any kind was adduced at the sentencing hearing to support the downward departure. Section 921.002(l)(f) provides that “[t]he level of proof necessary to establish facts that support a departure from the lowest permissible sentence [under the Criminal Punishment Code] is a preponderance of the evidence.” Of course, where no evidence is submitted to support the departure sentence, the statutory standard is not met. See State v. Amodeo, 750 So.2d 664, 666 (Fla. 5th DCA 1999) (holding that record “utterly fail[ed] to support the reasons given for the departure sentence” where “[n]o testimony was given under oath by anyone”); State v. Bleckinger, 746 So.2d 553, 556 (Fla. 5th DCA 1999) (holding that since no evidence was adduced at the sentencing hearing the court could not find that cooperation by the defendant warranted a downward departure); see also State v. Braley, 832 So.2d 255, 256 (Fla. 2d DCA 2002); State v. Petringelo, 762 So.2d 965, 966 (Fla. 2d DCA 2000); State v. Owens, 848 So.2d 1199, 1202 (Fla. 1st DCA 2003); State v. Quintanal, 791 So.2d 23, 24 (Fla. 3d DCA 2001); State v. Schillaci, 767 So.2d 598, 600 (Fla. 4th DCA 2000); State v. Silver, 723 So.2d 381, 382, 383 (Fla. 4th DCA 1998).

Scott correctly argues that on remand he should be permitted to withdraw his plea since the plea was induced by the trial court’s statement that the court was ordering a downward departure sentence of twenty-four months’ probation and restitution. In reversing downward departure sentences as unsupported by sufficient grounds or evidence, this court repeatedly has ordered that a defendant be permitted to withdraw a plea induced by the sentencing court’s statement that the court would impose the downward departure sentence. See Braley, 832 So.2d at 256; State v. Teal, 831 So.2d 1254, 1256 (Fla. 2d DCA 2002); State v. Nicolosi, 830 So.2d 281, 282 (Fla. 2d DCA 2002); State v. Rosa, 774 So.2d 730, 731 (Fla. 2d DCA 2000); State v. Knopp, 765 So.2d 164, 165 (Fla. 2d DCA 2000); Petringelo, 762 So.2d at 966.

Accordingly, the sentence of twenty-four months’ probation with restitution is reversed and the matter remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and DAVIS, JJ., concur.


author: PLEUS, J.

text:
    James LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2561.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Lewis appeals his convictions for first degree premeditated murder and robbery with a deadly weapon. His sole argument is that the trial court erred in denying his motion for mistrial and a curative instruction after the prosecutor stated in closing argument that it was Lewis “that chose to bring us here today and force you to listen to this testimony.... ” We find the trial court correctly found that the prosecutor’s comment was an invited response and affirm.

Lewis was charged with first degree premeditated murder and robbery with a deadly weapon. During closing arguments in the guilt phase of the trial, defense counsel stated:

Now, we all know the seriousness. That is why we are here. The State wants to execute, wants to kill James Lewis. Or they want him carried out of prison in a box after having served life without any possibility of parole.

Later, during the State’s closing argument, the prosecutor stated:

The Defense has the gall to get up there and say the State of Florida wants Mr. Proko to die — I am sorry Mr. Lewis — I will get to Mr. Proko in a second. Or the State wants Mr. Lewis to come out of prison in a box, and that’s not true. The State would prefer that we were not here at all.
It’s Mr. Lewis that chose to bring us here and force you to listen to this testimony and decide whether or not—

At this point, defense counsel interrupted and moved for a mistrial, arguing that the State was improperly commenting on Lewis’ exercise of his right to a jury trial. The judge denied his motion, after which defense counsel asked for a curative instruction. The judge denied this request as well, stating:

I think [the prosecutor] is entitled to explain his actions. This all goes hand-in-hand with a number of scenarios that [defense counsel] gave to that jury.
... He can certainly explain to the jury what brought the State here. He can certainly do that, and I think that is what he is doing now.

Defense counsel continued to argue the point, stating that what the prosecutor was essentially saying was, “Folks, you have to sit here and listen to this crap ... because Mr. Lewis chose to commit a murder. He doesn’t have the right to a jury trial, you should punish him for making you sit through this.” The judge rejected this argument, stating:

That is your interpretation of that, and I disagree with that. Because I am here and I am observing the demeanor of all of the lawyers and I am hearing the tone of voice and I have also heard all of the evidence. And I don’t get that inference.

Lewis argues that the trial court erred in denying his motion for mistrial because the prosecutor improperly commented on his right to jury trial. In support of this argument, he cites two cases finding reversible error for a prosecutor’s improper comments on a defendant’s right to remain silent or failure to testify. See State v. Kinchen, 490 So.2d 21 (Fla.1985) and Varona v. State, 674 So.2d 823 (Fla. 4th DCA 1996).

The State argues that the prosecutor’s statement was not an improper comment on the right to jury trial, but instead an “invited response” to the defense’s closing argument. Alternatively, the State argues that the error was harmless.

Clearly, it is improper to comment on a defendant’s right to a jury trial. See Bell v. State, 723 So.2d 896 (Fla. 2d DCA 1998). In Bell, the appellate court found that the trial court erred in overruling an objection to the prosecutor’s comment that the “only one reason we’re here” was because the defendant had a right to a jury trial. Id. at 897.

However, we agree with the trial court and the State that the comment was an invited response to the defense’s closing argument. As the State notes, in Rivera v. State, 840 So.2d 284, 286-87 (Fla. 5th DCA 2003), this Court stated:

“In order to determine whether improper remarks constitute reversible error, they should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” [quoting McArthur v. State, 801 So.2d 1037 (Fla. 5th DCA 2001)] (citing Brooks v. State, 762 So.2d 879 (Fla.2000); Cochran v. State, 711 So.2d 1159 (Fla. 4th DCA 1998)). Thus, a comment standing alone may be viewed as inappropriate, but when considered within the context of the entire closing argument and the record, it may be a fair comment.

In Dufour v. State, 495 So.2d 154 (Fla.1986), the supreme court found that the prosecutor’s argument that “ ‘[y]ou haven’t ... heard any evidence that [the defendant] had any legal papers” in his jail cell “merely rebutted” the defense’s argument that a witness had access to and could have based his testimony on the defendant’s legal papers. Id. at 160. The court held this comment constituted an “invited response” and consequently, the trial court acted properly in denying the motion for mistrial. Id. at 161.

The same is true in the instant case. Defense counsel argued that the reason they were in court was because the State wanted to kill Lewis or see him carried out of prison in a box. The State responded by specifically identifying the defense assertions and then explaining that the reason they were in court was because Mr. Lewis, not the State, “chose to bring us here and force you to listen to this testimony.” Consequently, the trial court properly found that this was an invited response. Dufour, Rivera.

AFFIRMED.

SAWAYA, C.J., and PETERSON, J., concur.


author: MONACO, J.

text:
    Francis B. FORCE, etc., et al., Appellant, v. FORD MOTOR COMPANY and Mazda Motor Corporation, Appellee.
    No. 5D03-1897.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.

      Kevin S. Cannon of Clayton & McCul-loh, Maitland, and Joel S. Perwin of Joel S. Perwin, P.A., Miami, for appellant.
    Wendy F. Lumish, Jeffrey A. Cohen and Cristina Alonso of Carlton Fields, P.A., Miami, for appellees.
   MONACO, J.

This is a product-liability case based on an alleged design defect. Francis B. Force, the plenary guardian of the person and property of Mark Francis Force, an incapacitated person, appeals from a final judgment in favor of the appellees, Ford Motor Company and Mazda Motor Corporation. The judgment was rendered by the trial court upon the return of a jury verdict of no liability with respect to a strict liability count that involved an automobile seat restraint system. The seatbelt shoulder restraint on Mark Force’s vehicle had purportedly failed during a violent collision. The issue presented to us concerns specifically whether under the circumstances of this case the jury should have been instructed on the consumer-expectation test, as requested by Mr. Force. Because we find that Mr. Force was entitled to have the jury consider his case of this theory, we reverse.

The basic facts are not in serious dispute. Mark Force was operating his Ford Escort when he collided head-on with another vehicle that crossed into his lane while trying to pass. At the time of the collision Mr. Force was wearing his seat-belt and shoulder harness in the manner intended. He sustained a severe head injury as a result.

Mr. Force alleged in his complaint a count for strict liability on the theory that the seatbelt and shoulder restraint system did not lock properly at the time of the impact. More specifically, he asserted that because the lap belt locked as intended, he received no injuries to the lower part of his body. He claimed,, however, that the retractor on the shoulder restraint failed to operate properly, that too much of the seat belt unspooled, creating excessive slack in the shoulder restraint, and that his head was seriously injured as a result.

The case proceeded to trial only on the strict liability count. At the charge conference Mr. Force proposed that standard jury instruction BL 5, which is based on section 402A of the Restatement (Second) of Torts, be given to the jury verbatim. That instruction, as it applies to the facts of this case, reads as follows:

A product is defective if by reason of its design the product is in .a condition unreasonably dangerous to the user and the product is expected to and does reach the user without substantial change affecting that condition.
A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] [or] [the risk of danger in the design outweighs the benefits].

The first parenthetical of the second paragraph is known as the consumer-expectation test. The second parenthetical is called the risk-utility test. Mr. Force argued that he was entitled to submit his case to the jury on both theories. Ford and Mazda disagreed.

Ford and Mazda agreed that the second parenthetical proposed by Mr. Force-the risk-utility test-should be part of the jury charge. They argued with respect to the first parenthetical, however, that the consumer-expectation test is either not recognized in Florida, or, alternatively, that it is not applicable to complex design cases such as the seatbelt dispute in the present case. They asked, therefore, that the case be submitted to the jury only on the risk-utility theory. Their reformulation of the risk-utility test, and the instruction eventually given by the trial court, read:

A product is unreasonably dangerous when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the failure to use a safer alternative design renders the product unreasonably dangerous.

The jury returned a zero verdict. This appeal ensued. Mr. Force seeks reversal because the trial court did not instruct the jury on the consumer-expectation test as expressed in PL-5.

In general terms, trial courts are granted broad discretion to formulate jury instructions, and a decision not to give an instruction requested by one of the parties will not be reversed unless the error complained of resulted in a miscarriage of justice, or unless the “failure to give the instruction was reasonably calculated to confuse or mislead the jury.” Hart v. Stern, 824 So.2d 927, 929 (Fla. 5th DCA 2002), review denied, 842 So.2d 847 (Fla. 2003); see also Reyka v. Halifax Hosp. Dist., 657 So.2d 967 (Fla. 5th DCA 1995). The party who asserts instructional error of this kind must show that: (1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly. See Foreline Sec. Corp. v. Scott, 871 So.2d 906 (Fla. 5th DCA 2004); Hart; Reyka; Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), review denied, 531 So.2d 1354 (Fla.1988).

With these precepts in mind, we consider the instruction on the consumer-expectation test requested by Mr. Force. In order to do so, we break this matter into two sub-issues. First, we will consider whether Florida recognizes and embraces the consumer-expectation test for design defects under any circumstances. If so, we will next explore whether Florida courts are to apply the consumer-expectation test to the seatbelt in question.

A. Does Florida Recognize the Consumer-Expectation Test For Design Defects?

In the byzantine world of products liability, there are three basic families of defects that may be the subject of strict product liability: manufacturing defects, design defects, and failures to warn. See E. Wertheimer, Calabresi’s Razor: A Short Cut To Responsibility, 28 Stetson L.Rev. 105, 113 (1998). The present case concerns whether the seatbelt restraint system was defectively designed. Under the consumer-expectation theory a product is defectively designed if the plaintiff is able to demonstrate that the product did not perform as safely as an ordinary consumer would expect when used in the intended or reasonably foreseeable manner. See Fremaint v. Ford Motor Co., 258 F.Supp.2d 24, 29 (D.P.R.2003). Essentially, this test relies on deductive reasoning to conclude that the product is defective. Under the risk-utility theory a product is defectively designed if the plaintiff proves that the design of the product proximately caused the plaintiffs injuries and the defendant fails to prove that on balance, the benefits of the design outweigh the risk of danger inherent in the design. Id. Both parties agree that the risk-utility standard (or, as it sometimes called, the risk-benefit standard), is applicable to the present dispute.

At the time that jury instruction PL-5 was adopted in 1983, the Committee Notes reflect uncertainty with respect to whether either or both of the consumer-expectation and risk-utility tests should be given, because the Florida Supreme Court had not specifically addressed the issue. As a result, the Committee defined “unreasonably dangerous” under both tests, but put brackets around each definition, and included the following comment:

Absent more definitive authority in Florida, the committee recommends neither test to the exclusion of the other and expresses no opinion about whether the two charges should be given alternatively or together. PL 5 provides language suitable for either standard, or both determined by the trial court to be appropriate.

Fla. Std. Jury Instr. (Civil Cases) PL 5, Note on use, cmt 5. The Supreme Court commented on the instruction in similar fashion at the time it was adopted, saying that: “[W]e emphasize that we are not deciding any question of law or correctness or applicability of the charge in any particular case. This is the responsibility of the trial judge and will depend on further development of the law on a case by case basis.” See In Re Standard Jury Instr., 435 So.2d 782, 783 (Fla.1983). Since then, as Ford and Mazda candidly acknowledge, the question has remained washed in uncertainty. A number of cases, however, are guideposts.

Light v. Weldarc Co., Inc., 569 So.2d 1302 (Fla. 5th DCA 1990), was a product liability suit involving a pair of safety glasses that did not prevent a sliver of metal discharged from a power punch press from breaking through an eyepiece and partially blinding the plaintiff. The specific issue addressed by this court in that case was whether summary judgment for the manufacturer was properly entered. In discussing the strict liability count of the complaint, however, this court, citing section 402A of the Restatement (Second) of Torts, noted that, “The issue to be resolved is whether the product, at the time it left the seller’s hands, is in a condition not contemplated by the consumer, which condition is unreasonably dangerous to the consumer.” Thus, while the case did not turn on this point, it appears that this court recognized the applicability of the consumer-expectation test.

Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), another summary judgment case, is also helpful. In the final analysis, the court there concluded that the flaw being considered was a manufacturing defect, and not a design defect, and that the consumer-expectation test was applicable in determining liability. It did note in dicta, however, that while the consumer-expectation standard is adequate to identify unintended manufactured defects, it is “more difficult to apply” to design defect cases. Id. at 1145. Nonetheless, the court did recognize that the consumer-expectation standard is applicable to some design defect cases.

A Florida case called to our attention by Ford and Mazda is Scheman-Gonzalez v. Saber Manufacturing Co., 816 So.2d 1133 (Fla. 4th DCA 2002). That case primarily considered the duty to warn, and is, thus, of limited utility in the consideration of the present design controversy. In the course of the opinion, however, the Fourth District Court found section 2(b) of the Restatement (Third) of Torts: Product Liability (1998), to be “instructive.” The current Restatement iteration of the test to be applied says essentially that a product is defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design,” and the failure to adopt the alternative design “renders the product not reasonably safe.” This, of course, was the instruction that was requested by Ford and Mazda, and was eventually given by the trial court. Nevertheless, the Restatement (Third) position has not been adopted by any appellate court in Florida.

The final Florida case suggested by the parties is Radiation Technology, Inc. v. Ware Construction Co., 445 So.2d 329 (Fla. 1983). Once again, however, that case is of limited benefit to our analysis. Because the focus of the Radiation Technology court was on the meaning of the term “inherently dangerous,” it does not directly address whether the consumer-expectation standard is to be used in Florida. The Supreme Court did, nevertheless, reference and use in its analysis section 402A of the Restatement (Second) of Torts, which includes the consumer-expectation standard.

One federal case interpreting Florida law on this issue is somewhat more pointed. Edic v. Century Products Co., 364 F.3d 1276 (11th Cir.2004), concerned a products liability suit brought by the parents of a child who sustained injuries after allegedly being ejected from a child restraint seat during a collision. In considering the issue of “normal use,” the United States Court of Appeals for the Eleventh Circuit noted that:

[T]he normal use requirement from Cas-sisi is based on the consumer-expectations test from the Restatement of Torts (Second), which asks whether ‘the ordinary consumer’s expectations [are] frustrated by the product’s failure to perform under the circumstances in which it failed.’ ... This, in turn, is generally a question of fact for the jury.

Edic, 364 F.3d at 1284.

In summary, the only cases that appear to address the consumer-expectation standard with any directness are Cas-sisi, Light, and Edic. In each instance, the applicability of the standard in Florida appears to be confirmed, at least for some products that are subject to strict liability considerations. While there has been criticism of the standard, it appears from a review of the authorities that most states use some form of the consumer-expectation test when considering product liability claims. See, e.g., Linda A. Sharp, Annotation, Products Liability: Consumer Expectations Test, 73 A.L.R. 5th 75 (2004). Indeed, Ford and Mazda have essentially agreed during the course of this appeal that the consumer-expectation test is one of the independent standards to be applied in at least some Florida products liability cases. We agree, as well, and so hold. Ford and Mazda take the position, however, that this standard is not appropriate in considering the alleged failure of seatbelts because of the complex nature of the device. We consider that next.

B. Does The Consumer-Expectation Standard Apply to Allegedly Defective Seatbelt Designs?

Ford and Mazda argue with some force that the consumer-expectation test cannot be applied to design defect claims involving complex products, in general, and seatbelts in particular. Their argument is summed up by the following passage from the appellees’ answer brief:

Perhaps the most significant problem with the consumer-expectations test is that an ordinary consumer of a complex product like an automobile “simply has ‘no idea’ how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards.” Soule v. General Motors, 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298, 308 (1994). Indeed, “a complex product, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumers’ reasonable minimum assumptions about safe performance.” Id. at 308.

Mr. Force, on the other hand, argues that there is no merit to Ford and Mazda’s contention that seatbelts are too complex to justify the use of the consumer-expectation test. We think there is some logic to the point made by Ford and Mazda. Some products may, in fact, be too complex for an ordinary consumer to have any expectations concerning their proper operation. Seatbelts seem to be one of those products on the cusp.

We have found no case in Florida that addresses the subject of the application of the consumer-expectation test to seatbelts with particularity, nor has any been pointed out to us by the parties. Authorities from outside the state, however, do offer guidance.

Ford and Mazda lean heavily on Fremaint v. Ford Motor Co., 258 F.Supp.2d 24 (D.P.R.2003), which specifically involved a purportedly defective seatbelt. Although Puerto Rico recognizes both the risk-utility and the consumer-expectation tests, the federal district court there found that the consumer-expectation test was not applicable to cases having to do with claims of defects in the design of an automobile. From the automobile in general, the court interpolated to seatbelts in particular, and said that “Ordinary consumers are ill-equipped to decide what minimum safety to expect from seatbelts once a vehicle is involved in an accident, as manufacturers cannot warranty against all foreseeable injuries caused inside properly working vehicles.” Id. at 30. See also Pruitt v. General Motors Corp., 72 Cal.App.4th 1480, 86 Cal.Rptr.2d 4 (1999) (deployment of an air bag); Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62 (1st Cir.2002)(deployment of an air bag).

A larger number of courts that have considered the issue, however, suggest that the consumer-expectation test applies fully to seatbelt failures. In Cunningham v. Mitsubishi Motors Corp., Slip Op. C-3-88-582, 1993 WL 1367436 (S.D.Ohio 1993), for example, the court concluded that the consumer-expectation test was the proper standard to be used in judging seatbelt failures because:

Although the manner in which the seat belt in question operated may have been new, seat belts generally are familiar products for which consumers’ expectations of safety have had an opportunity to develop, and the function which they were designed to perform is well known.

Id. at page 3. The Supreme Court of Alaska, in holding that the trial court did not err in permitting a jury to find that an automobile seat restraint system was defective using the consumer-expectation test, concluded that:

When a seat belt, designed to be an instrument of protection, becomes an instrument of life-threatening injury, a consumer is justified in concluding that it did not perform as safely as promised. A seat belt is a familiar product whose basic function is well understood by the general population.

General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1221 (Alaska 1998). Similarly, the Supreme Court of Tennessee said that, “We are unwilling to accept the defendant’s argument that ordinary consumers cannot form expectations about the safety and performance of seat belts.” Jackson v. General Motors, 60 S.W.3d 800, 804 (Tenn.2001). See also Hisrich, v. Volvo Cars of N. Am., Inc., 226 F.3d 445 (6th Cir.2000) (air bags); Fisher v. Ford Motor Co., 13 F.Supp.2d 631 (N.D.Ohio 1998), aff'd, 224 F.3d 570 (6th Cir.2000) (air bags); Bresnahan v. Chrysler Corp., 32 Cal.App.4th 1559, 38 Cal.Rptr.2d 446 (1995) (air bags).

We conclude that there may indeed be products that are too complex for a logical application of the consumer-expectation standard. We leave the definition of those products to be sorted out by trial courts. With respect to seatbelts, however, we believe that the cases finding that they may be tested by the consumer-expectation standard are better reasoned and more persuasive. Accordingly, inasmuch as the jury instruction requested by Mr. Force accurately stated the applicable law, and the evidence supported the giving of the instruction, and the instruction was necessary to resolve the issues properly, we hold that Mr. Force was entitled to submit his case to the jury on both the risk-utility test and the consumer-expectation test, and, therefore, reverse and remand for a new trial.

REVERSED and REMANDED.

PLEUS and SILVERNAIL, JJ., Associate Judge, concur.

      . The instruction was based on the Restate-merit (Third) of Torts.

      . Two other cases of limited applicability are Zimmer, Inc. v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA), review denied, 786 So.2d 1193 (Fla.2000), which concerned the two-issue rule, and Sanchez v. Hussey Seating Co., 698 So.2d 1326 (Fla. 1st DCA 1997), which concerned a manufacturer’s liability to by-standers. In both cases the consumer-expectation instruction was given to the jury by the trial court, but no analysis of the correctness of the instruction per se was provided.

      . See, e.g., Mary J. Davis, Design Defect Liability: In Search of a Standard of Responsibility, 39 Wayne L.Rev. 1217, 1237 (1993); Henderson & Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L.Rev. 867 (1998).


author: PETERSON, J.

text:
    Montgomery Scott MORGAN, Appellant/Cross-Appellee, v. Chris S. BEEKIE, Appellee/Cross-Appellant.
    No. 5D02-3787.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    David C. Knapp of Rogers, Coleman, Pendas & Knapp, P.A., Orlando, and Michael A. Romano of Michael A. Romano, P.A., Orlando, for Appellant/Cross-Appel-lee.

      D. Paul McCaskill, Orlando, for Appel-lee/Cross-Appellant.
   PETERSON, J.

Montgomery Scott Morgan appeals a final judgment rendered in favor of Chris S. Beekie, the plaintiff in a negligence action for personal injuries received in an automobile accident. We affirm the judgment, but reverse the denial of Beekie’s request for attorney’s fees.

Beekie’s motion for attorney’s fees was made pursuant to his proposals for settlement under Florida Rule of Civil Procedure 1.442 and section 768.79, -Florida Statutes (1997). On June 18, 1999, Beekie served his first proposal to settle “all claims” for $250,000. On October 11,1999, Beekie served his second proposal to settle “all claims” for $400,000. Neither proposal was accepted.

On May 26, 2001, Morgan made his own proposals to settle Beekie’s property damage claims which were accepted on June 20, 2001, and a final order dismissing those claims was entered on November 2, 2001.

On June 29, 2001, Beekie served his third and last proposal for settlement for $200,000, conditioned upon Morgan providing proof demonstrating the ability to pay that amount. The proposal did not state for which claims the demand was made and was served after Beekie had accepted Morgan’s proposal for settlement of the property damage claims, but was served before Beekie executed releases for those claims.

The final judgment awarded to Beekie was twenty-five percent greater than any of Beekie’s proposals for settlement.

In regard to the final proposal for settlement, the request for fees was denied because it included the ambiguous condition that proof was required demonstrating an ability to pay the amount demanded. We agree with the trial court that the last proposal cannot be a basis for an award of attorney’s fees because it was both ambiguous and failed to make it clear that it was solely for personal injuries when the settlement of the property damage claim had not yet been fully consummated. See, e.g., Nichols v. State Farm Mut., 851 So.2d 742 (Fla. 5th DCA 2003) (recognizing that terms and conditions of a proposal for settlement should be devoid of ambiguity, patent or latent), rev. granted, 03-01653 (Fla. Sept. 11, 2003).

In regard to Beekie’s first two proposals for settlement, the trial court denied Beek-ie’s motion for attorney’s fees on the premise, that Beekie had not obtained a judgment for “all claims” as had been demanded because the property damage claims were settled prior to the final judgment. ■ We disagree with the trial court that the first two proposals are invalid and unenforceable. At the time the proposals were made, all claims were- outstanding and it was not until later that the property damages claims were settled and removed from the issues remaining to be litigated. Morgan urges that because the first two proposals were not a mirror of the final judgment, those proposals could not be the basis for an award of cost and attorney’s fees. We find nothing in the statute or rules that requires a proposal to be a mirror of the final judgment.

We reverse the order denying an award of costs and attorney’s fees pursuant to section 768.79 and rule 1.442, and remand for determination of the amount awarda-ble.

REVERSED AND REMANDED.

ORFINGER and TORPY, JJ., concur.


author: CALOGERO, Chief Justice,

text:
    In re Sarah E. BLEICHNER.
    No. 2004-OB-0902.
    Supreme Court of Louisiana.
    May 14, 2004.
    CALOGERO, C.J., concurs with reasons.
   CALOGERO, Chief Justice,

concurs.

I concur in the majority’s decision to deny the petition, because my contrary opinion expressed in dissent in In re: Bourke, 02-1468 (La.6/14/02), 819 So.2d 1020, citing to In re: Appert, 444 So.2d 1208 (La.1984), and In re: Application of Respondek, 442 So.2d 435 (La.1983), has not borne fruit, and today’s decision follows the recently decided cases on this issue.


author: | JOHNSON, J. 1t VICTORY, J.,

text:
    Jody C. DEAN v. SOUTHMARK CONSTRUCTION and Louisiana Workers’ Compensation Corporation.
    No. 2003-C-1051.
    Supreme Court of Louisiana.
    July 6, 2004.

      Law Office of Paul R. Matzen, Paul R. Matzen, Baton Rouge, Counsel for Applicant.
    Juge, Napolitano, Guilbeau, Ruli & Frie-man, Robert J. May, Johnson, Stiltner & Rahman, Jefferey J. Warrens, Baton Rouge, Maria Antoinette Finley, Counsel for Respondent.
   | JOHNSON, J.

We granted certiorari of plaintiffs writ application to determine whether the Court of Appeal erred in its determination that the instant parties did not have a statutory employer-employee relationship, and reversed the Office of Workers’ Compensation’s judgment in favor of benefits for the plaintiff. For the following reasons, we conclude that SouthMark Construction waived its defense that it was not Dean’s statutory employer. Further, the court misapplied the manifest error-clearly wrong standard of review appropriate in workers compensation cases. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10 (citing Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710). Accordingly, we reverse the Court of Appeal’s decision, and we reinstate the ruling of the Office of Workers’ Compensation.

| .FACTS AND PROCEDURAL HISTORY

In October of 1999, Bobby G. Markle (“Markle”), a subcontractor, hired Jody C. Dean (“Dean”) to work for him as a carpenter forming up the foundation for several houses being built by SouthMark, the general contractor, in the Kensington Estates subdivision. Dean did not have a vehicle, therefore Markle agreed to provide him with transportation and to pay him from 7:00 a.m. to 3:30 p.m., even in situations where Markle was late picking Dean up.

On the morning of November 19, 1999, Markle was driving Dean to the South-Mark construction site where the two planned to finish building the form for the-slab foundation. Upon entering the subdivision where the job site was located, Mar-kle passed the intended site and proceeded to another site one-eighth of a mile away where Markle’s uncle, Marvin Graham, was building another house. This was not a SouthMark job site. Dean testified that Markle did not explain to him why they were stopping at Graham’s site, but he knew that Graham had a tool trailer, and he believed that they were going to the site to borrow from Graham a maul, a tool similar to a sledgehammer, which they needed to complete the work on the South-Mark foundation.

Upon their arrival, Markle exited the truck, and Dean did also. Dean was standing near the fire warming himself at the construction site, when one of the laborers working on the house under construction either dropped or threw a hammer down from the roof. Dean was struck on the head; the blow knocked him unconscious and fractured his skull.

After the accident, Dean filed a claim with the Office of Workers’ Compensation (the “OWC”) against SouthMark and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), alleging he was |,.entitled to benefits because he was in the course and scope of his employment as a statutory employee of SouthMark when he was injured. SouthMark disputed the claim, citing the September 21, 1999, Subcontractor Base Agreement it entered into with Mar-kle as precluding Dean from recovering workers’ compensation benefits.

The Subcontractor Base Agreement provided:

“Subcontractor shall furnish all labor, materials, permit(s), tools, equipment, and any other items necessary for the completion of work on Subcontractor bid form, plans and specifications, and purchase orders, which will be issued by the Contractor from time to time in accordance with the terms and conditions of this agreement.”

The Agreement also included an indemnification clause which protected SouthMark

“against all loss, harm, damages, causes of action, claims or liabilities rising out of or related to work performed or to be performed by Subcontractor, its employees agents, representatives, subcontractors, including but not limited to injuries to persons and to property or either of them and including all court costs and attorney’s fees incurred by Contractor.”

In addition, the Agreement designated Markle as

“solely responsible for payment of all income, withholding, social security, unemployment and other taxes imposed by the state or federal law in connection with wages it pays or persons it employs. Subcontractor shall also obtain and pay for all required licences and permits, shall comply with all requirements of city, county, state and federal ordinances, laws and regulations, including occupational, safety and health acts.”

Relying on the Subcontractor Base Agreement, SouthMark asserted that La. R.S. 28:1061 mandates that a statutory employment relationship is not created in the absence of a written agreement recognizing the principal as a statutory employer.

In his case in chief Dean introduced the deposition testimony of SouthMark’s vice-president and accountant, Renee Wallace, to prove he was covered by SouthMark’s workers’ compensation carrier, the LWCC. Wallace testified that 14SouthMark was aware that Markle did not have workers’ compensation insurance. During her deposition, Ms. Wallace testified that the LWCC assessed twenty-nine dollars ($29) for every one hundred dollars ($100) SouthMark paid to an uninsured framing subcontractor. In response, Ms. Wallace deducted the $29 insurance premiums from each $100 owed to Markle. Jody Dean testified that Markle withheld one hundred ($100) from each employees’ weekly paychecks, alleging “that he had workers’ comp through SouthMark.” SouthMark argued that it did not have a workers’ compensation policy for Markle, as its policy only covered SouthMark’s liability.

The workers’ compensation hearing officer disagreed with SouthMark’s contentions and awarded Dean workers’ compensation benefits. In her oral reasons for judgment, the hearing officer concluded that although Dean was not injured at the SouthMark job site; SouthMark owed compensation because Dean was on an errand in furtherance of SouthMark’s trade or business.

The court of appeal reversed the hearing officer’s compensation award, finding that Dean was not “performing work which is part of the principal’s trade, business, or occupation” because he was not at the SouthMark job site at the time the accident occurred. Further, the court of appeal found that SouthMark was not a party to the transportation agreement between Markle and Dean. Finally, the appellate court found that borrowing a tool from another job site was not an integral part of SouthMark’s business, especially considering that Markle was required by the Subcontractor Base Agreement to furnish all necessary tools and equipment. Dean applied for rehearing in the First Circuit Court of Appeal, which denied his application. Subsequently, Dean | ¿timely sought a writ of certiorari from this Court to review the First Circuit’s reversal of his workers’ compensation award, which this Court granted.

DISCUSSION

I.

As a preliminary matter, despite SouthMark’s arguments in brief and during oral arguments, the only issue properly before this Court is whether Dean was executing work which was “a part of the trade, business, or occupation” of South-Mark when the accident occurred. South-Mark has presented arguments before this Court that there was no statutory employment relationship between itself and Dean, as defined by La. R.S. 23:1061(A)(2) and (3). This Court cannot adjudicate the merits of SouthMark’s assertions because SouthMark failed to raise the issue of Dean’s statutory employee status on appeal.

In its appeal to the First Circuit, South-Mark assigned only one error: “The trial court was manifestly erroneous in finding that Jody C. Dean was injured by an accident in the course and scope of his employment as a statutory employee of South-Mark Construction on November 19, 1999.” Although by mentioning “statutory employee” this assignment is broad enough to have allowed briefing of the two-contract theory of statutory employment, SouthMark did not brief this issue. SouthMark’s entire argument was based on the portion of LSA-R.S. 23:1061 that states “[wjork shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” LSA-R.S. 23:1061(A)(1). The “Argument” section of SouthMark’s brief to the first circuit consists of citing one ease, May v. Sisters of Charity of the Incarnate Word, 26,490 (La.App. 2 Cir. 3/1/95), 651 So.2d 375, writ denied, 95-0804 (La.5/5/95), 654 So.2d 329, for the proposition that an employee traveling to work is not in the course and scope of employment and SouthMark’s own analysis of distinctions between being in the course and scope of employment with the direct employer and doing work essential to generate the principal’s goods. SouthMark cites no authority for the conclusions it draws concerning these distinctions.

The Court of Appeal apparently thought SouthMark’s argument was convincing, for the lower court’s opinion mirrors South-Mark’s argument concerning course and scope. Thus, SouthMark was successful in getting the OWC hearing officer’s ruling reversed on the issue of course and scope. Neither the OWC hearing officer nor the appellate court mentions the two-contract theory.

Apparently, it was only after this Court granted Dean’s writ application that SouthMark revived its original argument: that the evidence did not support the two-contract theory and SouthMark was therefore not a statutory employer. This belated argument, apparently prompted by SouthMark’s concern that the Court of Appeal’s opinion was in jeopardy, cannot be considered. We cannot consider contentions raised for the first time in this Court which were not pleaded or raised in the court below and which the lower courts have not addressed. Boudreaux v. State, Dept. of Transp. and Dev., 01-1329, p. 2 (La.2/26/02), 815 So.2d 7, 9. As SouthMark failed to urge the two-contract issue in its assignments of error to the Court of Appeal, this Court cannot address the issue now, as it has been waived. See Reaux v. City of New Orleans, 01-1585 (La.App. 4 Civ., 2002), 815 So.2d 191, 197-98.

-J~I.

In worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Civ. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Civ. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Civ. 5/12/99), 734 So.2d 874).

At the time Dean was injured, he was being transported to his work site in a vehicle driven by his direct employer, Bob Markie. Markle decided to drive to another construction site to retrieve a maul to complete the foundation work at the SouthMark site. Dean had not yet arrived at the SouthMark construction site on the morning of the injury, and had not commenced performing the work for which he was hired. Normally, injuries sustained by an employee while traveling to and fromJ~work are not considered to have occurred within the course and scope of employment, and thus, are not compensa-ble under the Workers' Compensation Act. McLin v. Industrial Specialty Contractors, 02-1539, (La.2003), 851 So.2d 1135, 1140 (citing Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975)); W. Malone & H. Johnson, supra at § 168. This rule, often called the "going-and-coming rule," is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves work to return home until he resumes his work. McLin, 851 So.2d at 1140 (citing Phipps v. Bruno Const., 00-0480 (La.App. 3 Civ. 11/2/00), 773 So.2d 826 (citations omitted)).

The going-and coming rule is, however, subject to various exceptions, including situations where an employer has involved himself in the transportation of the employee as an incident to the employment agreement, either through furnishing a vehicle or payment of expenses, or where wages are paid for time spent in traveling. Scott v. Smith, (La.App. 2 Civ., 1998), 714 So.2d 7, 11. In Scott v. Smith, the plaintiff was seriously injured in a car accident while he and his co-workers were traveling back to his employer's workshop after finishing a job at a nearby plant. Scott, 714 So.2d at 8. The employees were riding in a truck furnished by his employer and driven by his crew leader. Upon returning to his employer's workshop, Scott's work day did not end at the plant, but instead ended when he "unprep[ped]" the truck. The Second Circuit Court of Appeals found that Scott had been injured during the "course of employment" because he was traveling in a company vehicle driven by a co-worker. Id. at 12. Further, at the time of the accident, the plaintiff was still under the supervision and control of his employer, as he was required to perform more work-related tasks upon his return |ato the workshop. Id. Finally, the lower court found that this travel was in furtherance of his employer’s business interest. Id.

Similarly, in Sims v. Browning Ferris Industries, Inc, the decedent, a temporary worker, was employed as a “hopper”, an individual who rode on the outside rear of garbage trucks picking up and depositing garbage in the rear of the truck. Sims v. Browning Ferris Industries, Inc., (La.App. 5 Cir.1993) 613 So.2d 702. On the date of his injury, the decedent was dropped off at his home to take medicine with the agreement that his co-worker return to pick him up in order to “clock out.” Sims, 613 So.2d at 703. While the truck was backing up, Sims tripped and was fatally injured by the truck. Id. Despite Sims’ status as a statutory employee, the Fifth Circuit Court of Appeal found that his personal errand during work hours did not preclude the application of workers’ compensation coverage, as “the risk of falling while doing his job was completely related to and arises out of his employment while he was still ‘on the clock.’ ” Id. at 704. See also Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, 515-16.

With regard to the instant case, Dean testified that Markle arranged to transport him to and from work, and further, that Markle paid him his hourly wage from 7:00 a.m. to 3:30 p.m. every day, irrespective of whether he was at home, at the South-Mark job site, or traveling to or from the SouthMark job site in Markle’s vehicle. Therefore, he was considered “on the clock” at the time his injury occurred. These facts are analogous to the Scott case, where this Court found that workers’ compensation benefits were appropriate where an employee was compensated for his travel. In addition, similar to the facts present in Scott and Sims, Dean was injured while under the supervision and control of his employer, and he was expected to perform work-related tasks after the deviation had [^concluded. Further, just as Sims was injured by falling off of the garbage truck during the performance of his duties, Dean was struck on the head with a hammer thrown off of a roof at a construction site, which is clearly the manner of injury contemplated by workers’ compensation legislation, which concerns itself with insuring employees against injuries associated with the risks of employment. In addition, Dean testified before the OWC that he believed that Markle had driven to Graham’s construction site for the purpose of retrieving a maul, which was a specific mission entered into to complete the job at the SouthMark site. For these reasons, the workers’ compensation hearing officer’s determination that Dean’s injury occurred in the “course and scope” of his employment for SouthMark, as well as her subsequent award of damages, was not clearly wrong.

DECREE

For the above and foregoing reasons, the judgment of the court of appeal is reversed and the judgment of the Office of Workers’ Compensation is reinstated.

REVERSED AND REMANDED.

1t VICTORY, J.,

dissenting.

I dissent from the majority opinion because, in my view, (1) SouthMark did not waive its argument that it was not Dean’s statutory employer under the requirements La. R.S. 23:1061(A)(2) and (3), as SouthMark sufficiently raised the issue in the lower courts; and (2) the “course and scope” test of La. R.S. 23:1031 applies only to direct employers, not statutory employers, and is therefore inapplicable to the facts of this case.

I disagree with the majority’s refusal to decide the central issue in this case, i.e., whether SouthMark was Dean’s statutory employer under La. R.S. 23:1061(A)(2) and (3), because “SouthMark failed to raise the issue of Dean’s statutory employee status on appeal.” Maj. Op. at p. 116. The assignment of error cited by the majority to support of this position states flat out that the “trial court was manifestly erroneous in finding that Jody C. Dean was injured by an accident in the course and scope of his employment as a statutory employee of SouthMark Construction on November 19, 1999.” Maj. Op. at 116 (emphasis added). In my view, this was sufficient to raise the issue of Dean’s statutory employer status under the applicable law.

The statutory law is clear in the statutory employment area, and we are obligated to apply the correct law applicable to statutory employers, regardless of what the parties may have argued in the lower courts. The 1997 amendments to La. R.S. | ¡>23:1061 set forth two specific circumstances under which a statutory employer will be liable for workers’ compensation benefits to a statutory employee. The first is the “two-contract” theory under La. R.S. 23:1061(A)(2), under which (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters a subcontract for all or part of the work performed. No argument was made that the above factors were present in this case to establish that SouthMark was Dean’s statutory employer, as there simply was no contract entered into by South-Mark with any entity other than the employee’s immediate employer.

The second basis for finding a statutory employer-employee relationship is found in La. R.S. 23:1061(A)(3). By virtue of the 1997 amendments, except in cases under the “two-contract” theory, a statutory employer-employee relationship will be found to exist under La. R.S. 23:1061(A)(3) only when: (1) the work is part of the principal’s trade, business, or occupation, which in turn is defined as work which is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services and (2) there is a written contract between the principal (i.e., SouthMark) and the contractor (i.e., Markle) which recognizes the principal as a statutory employer. Johnson, Louisiana Civil Law Treatise, Vol. 1L Workers’ Compensation Law and Practice, 4th Ed., 2002, Sec. 363, p. 170. The 1997 amendments clearly state that such a relationship under La. R.S. 23:1061(A)(3) “shall not exist ... unless there is a written contract ... which recognizes the principal as a statutory employer.” “If the contract does not contain a statement of the existence of such a relationship it cannot be found to exist.” Johnson, supra at Sec. 126, p. 252. This section clearly requires a written contract which recognizes the principal 13as a statutory employer, which did not exist in this case. Therefore, I would affirm the judgment of the court of appeal based on the plaintiffs failure to meet the requirements of La. R.S. 23:1061(A)(2) and (3).

However, even assuming that this issue in not before us because defendant failed to raise the issue on appeal, whether Dean was injured in the course and scope of his employment is not the relevant determinative factor in this case. The remaining issue to be litigated would be whether the work is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services, not whether, as the majority has framed the issue, whether Dean was acting in the “course and scope” of his statutory employment with SouthMark when the accident occurred.

As the court of appeal correctly recognized, the liability of a statutory employer is not as broad as that of a direct employer. The direct payroll employee of the principal is governed by La. R.S. 23:1035, which requires him to demonstrate that he is performing services “arising out of and incidental to his employment ... in the course of his employer’s trade, business or occupation.” H. Alston Johnson, III, Louisiana Civil Law Treatise, Vol. IS, Workers’ Compensation Law and Practice, 4th Ed., 2002, Sec. 126, p. 254 (citing La. R.S. 23:1035(A)). On the other hand, in order to assert a compensation claim against an alleged principal, the employee of a contractor must demonstrate that he was executing work which was “a part” of the trade, business or occupation of the principal as it is defined after the 1997 amendments. Id.

I/The cases cited by the majority in support of the holding that Dean’s accident occurred in the course and scope of his employment are not applicable to this case. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507 and Scott v. Smith, 30,330 (La.App. 2 Cir.1998), 714 So.2d 7 involved direct employees under La. R.S. 23:1035, not statutory employees. Sims v. Browning Ferris Industries, Inc., 613 So.2d 702 (La.App. 5 Cir.1993) involved a statutory employee, but was decided before the 1997 amendments to La. R.S. 23:1061, which changed the test to provide that “work shall be considered part of the principal’s trade, business or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Indeed, were we deciding today whether Dean was in the course and scope with Markle, his direct employer, R.S. 23:1031 would be applicable, and a finding that Dean was in the course and scope of his employment while on his way to work for Dean might not be manifestly erroneous. However, where the issue is whether LWCC is liable for workers’ compensation benefits as Dean’s statutory employer, the course and scope test applicable to direct employers never even comes into play.

For all of the above reasons, I respectfully dissent.

WEIMER, J., dissents for reasons assigned by VICTORY, J.

      . Dean v. SouthMark Construction, 02-0028 (La.App. 1 Cir. 12/20/02), 837 So.2d 659

      . Id. (reh'g denied 3/10/03).

      . Dean v. SouthMark Construction, 03-1051 (La.6/6/03), 845 So.2d 1075

      . I note, however, that this assignment of error incorrectly posits the additional argument as whether "Dean was injured in the course and scope of his employment," when, as discussed herein, the "course and scope” test is inapplicable in the statutory employment situation.

      . The 1997 amendments to La. R.S. 23:1061 provided some very important additions to the statutory employer determination. First, the amendments elaborated on the meaning of what was considered a part of the trade, business, or occupation of the alleged principal. Second, they established a rebuttable presumption of the existence of a statutory employer relationship, actually using the term “statutory employer” for the first time in the Act. Johnson, supra at Sec. 122, p. 226. Act 315 of 1997 provided that "work shall be considered part of the principal's trade, business or occupation if it is an integral part of or essential to the ability of the principal to generate that individual's principal's goods, products, or services.” The amendments further provided that, except in the "two-contract” situation under La. R.S. 23:1061(A)(2), a "statutory employer relationship shall not exist ... unless there is a written contract between the principal and the contractor which ... recognizes the principal as a statutory employer.” When there is such a written contractual recognition of the relationship, there is then a "rebuttable presumption” of such a relationship which may be overcome "only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Id.

      . The reason for allowing a more liberal attitude for imposing liability on a direct employer is clear. The direct employer has the discretion to direct his employees in the work to be performed, and when the employee is injured doing work which he was ordered to perform or which arises out of or is incidental to this work, compensation for him is not only the primary, but is the only remedy against his employer. Id. On the other hand, the principal should not ordinarily be subjected to the compensation claims of his contractor or subcontractor's employee's, those claims should rest with the direct employer. La. R.S. 23:1061 serves as a secondary protection for the injured worker, rather than a the primary remedy, and should only be invoked when the principal seeks to avoid his compensation obligation by farming out part of his own normal operations to a contractor. Id.