author: NESBITT, Senior Judge.

text:
    Darce CARLISLE, Appellant, v. CARNIVAL CORPORATION, et al., Appellees.
    No. 3D01-1518.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2003.
    Order Denying Rehearing and Granting Certification Feb. 4, 2004.

      Charles R. Lipcon, Miami, and David Pollack, for appellant.
    Kaye, Rose & Maltzman and Jeffrey B. Maltzman, and Darren W. Friedman, Holland & Knight LLP, and Rodolfo Sorondo, Jr. and Lenore C. Smith, Miami, for appel-lees.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

In March 1997, the Carlisle family embarked on a cruise aboard the Carnival cruise ship, the Ecstasy. During the cruise, 14 year old Elizabeth Carlisle felt ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship’s hospital by the ship’s physician, Dr. Mauro Neri. Over the course of several days Dr. Neri repeatedly advised the Carlisles that Elizabeth was suffering from the flu, assured them in response to their questions that it was not appendicitis, and provided antibiotics. Ultimately, the Car-lisle family decided to discontinue their cruise and returned home to Michigan where Elizabeth was diagnosed as having a ruptured appendix. Her appendix was removed, and as a result of the rupture and subsequent infection, Elizabeth was rendered sterile.

Her parents filed the instant suit against Carnival and Dr. Neri, alleging, inter alia, that the doctor had acted negligently in his treatment of Elizabeth and that Carnival should be held vicariously liable for such negligence under theories of agency and apparent agency, and that Carnival was negligent in the hiring of Dr. Neri. The trial court entered summary judgment in favor of Carnival and this appeal followed.

The contract between Dr. Neri (identified therein as “CONTRACTOR”) and Carnival (identified therein as “PURCHASER”), provided, in part:

CONTRACTOR agrees to provide services aboard vessel in the capacity of SHIP’S PHYSICIAN ... Said services shall consist of the providing of medical services and treatment to passengers and crew in accordance with PURCHASER’S Physician guidelines and shall be performed on a seven (7) day-per-week basis during regular and on-call vessel infirmary hours and for emergencies.

The contract further provides that Dr. Neri would receive a weekly salary as his sole source of income during the term of the Agreement, and that Carnival could dismiss Dr. Neri for “violations of the Ship’s Articles” or “failure to perform duties to the satisfaction of’ Carnival. Dr. Neri was issued a ship’s uniform and agreed his photograph, name and likeness could be used to promote and publicize Carnival’s vessels in any and all media. The record shows that Dr. Neri was considered by Carnival to be an officer of the ship. In a separate agreement Carnival agreed to indemnify Dr. Neri for up to $1 million with regard to claims brought against him arising out of any act or omission on his part while acting in the course of his duties as ship’s doctor, and Dr. Neri agreed that Carnival, or its insurer, would be permitted to take absolute control over the defense and handling of such claims.

The cruise ticket issued to the Carlisles provides, in part:

If the vessel carries a physician, nurse, masseuse, barber, hair dresser or manicurist, it is done solely for the convenience of the guest and any such person in dealing with the guest is not and shall not be considered in any respect whatsoever, as the employee, servant or agent of the carrier and the carrier shall not be liable for any act or omission of such person or those under his order or assisting him with respect to treatment, advice or care of any kind given to any guest.

Torts committed within maritime jurisdiction fall within the purview of maritime law. See Kermarec v. Compagnie Generole Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Klosters Rederi A/S d/b/a Norwegian Caribbean Lines, v. Cowden, 447 So.2d 1017 (Fla. 3d DCA 1984). See also Rand v. Hatch, 762 So.2d 1001 (Fla. 3d DCA 2000) (general maritime law applies to a claim for a ship’s doctor’s malpractice). Additionally, a cruise ship ticket is a maritime contract, governed by maritime law. See The Moses Taylor, 71 U.S. (4 Wall.) 411, 427, 18 L.Ed. 397 (1866); Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834 (9th Cir. 2002).

It is axiomatic under maritime law that a carrier owes a duty to its passengers to exercise reasonable care under the circumstances. See Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir.1988); Rindfleisch v. Carnival Cruise Lines, Inc., 498 So.2d 488 (Fla. 3d DCA 1986).

In arguing that this duty should not be a basis to impose vicarious liability upon a cruise line for the negligence of its ship’s physician in treating passengers Carnival relies upon the long line of decisions exemplified by Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir.1988), which held:

When a carrier undertakes to employ a doctor aboard ship for its passengers’ convenience, the carrier has a duty to employ a doctor who is competent and duly qualified. If the carrier breaches its duty, it is responsible for its own negligence. If the doctor is negligent in treating a passenger, however, that negligence will not be imputed to the carrier. E.g., The Korea Maru, 254 F. 397, 399 (9th Cir.1918); The Great Northern, 251 F. 826, 830-32 (9th Cir.1918); Di Bonaventure v. Home Lines, Inc., 536 F.Supp. 100, 103-04 (E.D.Penn.1982); Cimini v. Italia Crociere Int’l S.P.A., 1981 A.M.C. 2674, 2677 (S.D.N.Y.1981); Amdur v. Zim Israel Navigation Co., 310 F.Supp. 1033, 1042 (S.D.N.Y.1969); Branch v. Compagnie Generate Transatlantique, 11 F.Supp. 832 (S.D.N.Y. 1935); Churchill v. United Fruit Co., 294 F. 400, 402 (D.Mass.1923); The Napolitan Prince, 134 F. 159, 160 (E.D.N.Y.1904); O’Brien v. Cunard Steamship Co., 154 Mass. 272, 28 N.E. 266, 267 (1891); Laubheim v. De Koninglyke Neder Landsche Stoomboot Maatschappy, 107 N.Y. 228, 13 N.E. 781 (1887).

See also Cummiskey v. Chandris, 895 F.2d 107 (2d Cir.1990); Doe v. Celebrity Cruises, 145 F.Supp.2d 1337 (S.D.Fla.2001); Mascolo v. Costa Crociere, 726 F.Supp. 1285 (S.D.Fla.1989). The stated basis for the Barbetta line of authority is the lack of the cruise line’s ability to control the doctor-patient relationship and lack of expertise to control the doctor in his practice of medicine, in that “a ship is not a floating hospital.” Barbetta, 848 F.2d at 1368-1371.

The Carlisles argue that the Barbetta cases are based upon flawed and outmoded assumptions regarding the cruise ship industry and the provision of medical services to passengers, and urge that Nietes v. American President Lines, Ltd., 188 F.Supp. 219 (N.D.Cal.1959) is a better reasoned decision. In Nietes, the cruise line was held vicariously liable for the negligence of the ship’s doctor who was a member of the crew:

It is our opinion that, where a ship’s physician is in the regular employment of a ship, as a salaried member of the crew, subject to the ship’s discipline and the master’s orders, and presumably also under the general direction and supervision of the company’s chief surgeon through modern means of communication, he is, for the purposes of responde-at superior at least, in the nature of an employee or servant for whose negligent treatment of a passenger a shipowner may be held liable ...
While it has been stated that ‘there is no more distinct calling than that of the doctor,’ we are, nonetheless, persuaded to this conclusion by numerous cases which demonstrate the growing tendency to hold the doctor a servant in special circumstances, as where he is a resident physician on a hospital staff, or where he is a corporate employee performing medical services which accrue to the benefit of his employer
The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician. We appreciate the difficulty inherent in such an employment situation, but we think that the distinction no longer provides a realistic basis for the determination of liability in our modern, highly organized industrial society. Surely, the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician’s treatment of shipboard illness. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as members of the ship’s company, subject to the orders and commands of the master.
A carrier is under no duty to practice medicine ..., But, when a carrier undertakes the treatment of illness through medical services, provided by it aboard ship, it assumes the duty to treat carefully.
There is reason for imposing such liability, because the employment of a doctor aboard ship is a beneficial substitute for the shipowner’s otherwise more costly duty to sick passengers. Where the ship carries no ship’s physicians or nurses, the carrier is under a duty to provide such care and attention as is reasonable and practicable under the circumstances, and this has traditionally required the master to change course and put in at the nearest port, according to the gravity of the illness. This duty extends to both passengers and seamen whose lives may be threatened by illness on board ship. Any dereliction of the master in his duty to detour may be negligence for which the shipowner could be liable under the principle of respondeat superior. The shipowner, by providing a physician aboard ship, avoids his sometimes inconvenient and costly duty to change course for the benefit of an ailing passenger. This arrangement gives the shipowner competitive advantage in the maritime passenger industry over those sea-going carriers which have not provided the safety of on-board medical service.

181 F.Supp. at 220-221 (citations omitted). See also Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D.Fla.1993)(criticizing Barbetta and supporting the rationale of Nietes, while recognizing the viability of an apparent agency theory of recovery).

This issue has never been squarely addressed by this court or the Florida Supreme Court, and we, like many of the commentators, find Nietes to be the most persuasive precedent. See e.g., Norris, The Law of Maritime Personal Injuries, 4th Ed, § 3:10 (“In light of the modern trends with respect to tort liability, it is probable that the earlier cases holding that in passenger matters the shipowner’s duty is fulfilled by employing a duly qualified and competent surgeon and medical practitioner and is only liable for negligence in hiring him but not for treatment by him, will not be followed,” citing Judge Sweigert’s “excellent opinion” in Nietes.)] Beth-Ann Erlic Herschaft, Cruise Ship Medical Malpractice Cases: Must Admiralty Courts Steer by the Star of Stare Decisis?, 17 Nova L.Rev. 575 (1992); Michael J. Compagno, Malpractice on the Love Boat: Barbetta v. S/S Bermuda Star, 14 Tul. Mar. L.J. 381 (1990).

While Barbetta criticized Nietes as unrealistically presuming away the problem by assuming a ship’s doctor was under sufficient control via modern communication with a company’s chief surgeon, the Barbetta line of cases rests on even shakier fictions. Barbetta’s finding that the cruise line should not be held responsible is premised on the unrealistic suggestion that an ailing cruise passenger at sea has some meaningful opportunity to simply forego treatment by the ship’s doctor and demand that the captain fulfill his duty of care in some other fashion:

Second, as the Barbettas’ counsel acknowledged during oral argument, even though a ship’s doctor is provided for the passenger’s convenience, no passenger is required to use the doctor’s services; consequently, as counsel also conceded, a carrier must honor a passenger’s decision not to use the ship’s doctor and, when necessary, discharge its duty to provide aid in some other way.

Barbetta, 848 F.2d at 1372. A cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment .from the ship’s doctor. The underlying basis in Barbetta and its progeny for the idea that the passenger has some choice, in the matter, and that the cruise line lacks control because it cannot interfere in the doctor-patient relationship, is the following statement regarding ill passengers from O’Brien v. Cunará S.S. Co., 154 Mass. 272, 28 N.E. 266 (Mass.1891):

They may employ the ship’s surgeon, or some other physician or surgeon who happens to be on board, or they .may treat themselves if they are sick, or may go without treatment if they prefer ...

154 Mass, at 276, 28 N.E. 266. Noticeably absent from this list is the option of demanding that the captain fulfill the duty of reasonable care “in some other way,” likely because that concept was no more realistic in 1891 than it is today. Barbetta, it appears, employed this fiction to ameliorate the harshness of the rule it espoused.

The fallacy of the notion that the acutely ill passenger at sea has sifted through a series of options and ultimately chosen to use the ship’s doctor underscores the fiction of the familiar incantation that the physician is on board merely for the “convenience of the passenger.” In reality, as has been recognized, the ends of the cruise line are, at the very least, equally served by being able to fulfill its duty to ill or injured passengers without necessarily being required to disrupt the voyage or incur great expense to evacuate the patient every time a medical situation arises. See Nietes, 188 F.Supp. at 221; Fairley, 1998 AMC at 1639; Herschaft, supra, at 593; Compagno, supra, at 389-90. While the presence of an onboard physician is not required by law, the practical realities of the competitive cruise industry, and the reasonably anticipated risks of taking a small city of people to sea for days at a time, all but dictate a doctor’s presence. There is also undoubtedly a benefit derived by the cruise line in being able both to market the availability of a doctor and to more cost effectively address its duty to its passengers.

Barbetta’s conclusion that there is a “lack of control” over the doctor-patient relationship is based on the fiction that the passenger freely chose the doctor and on the concept that the doctor’s work is not the business of the cruise line. 848 F.2d at 1368. The treatment of cruise passengers by the ship’s doctor, however, is not alien to maritime pursuits. Indeed, in Rand v. Hatch, 762 So.2d 1001 (Fla. 3d DCA 2000), in concluding that general maritime law applies to a claim for a ship’s doctor’s malpractice, we held that such treatment “bears a significant relationship to traditional maritime activity,” stating:

In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 543, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the United States Supreme Court established that in considering whether a particular tort bears a significant relationship to traditional maritime activity to satisfy the nexus test, courts should consider whether the incident giving rise to the suit is likely to disrupt maritime activity and whether it is substantially related to traditional maritime activity to justify application of general maritime law. See Sisson v. Ruby, 497 U.S. 358, 365, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)(discussing these considerations). In this case, Dr. Rand and Nurse Jackson were brought on-board a commercial vessel which sailed on navigable waters by the shipowner in order to render medical attention to both crew members and passengers when such attention was needed. Sick and injured crew and passengers, either left untreated or inadequately treated, are certainly likely to disrupt maritime activity, such as the successful navigation of a commercial vessel. (Emphasis added).

Maritime law embraces the principles of agency. See Cactus Pipe & Supply Co., Inc. V. M/V Montmartre, 756 F.2d 1103, 1111 (5th Cir.1985); West India Industries, Inc. v. Vance & Sons AMC-Jeep, 671 F.2d 1384, 1387 (5th Cir.1982). These principles include that there is no inherent conflict between a physician’s contractual independent contractor status and a finding of agency where the totality of the circumstances warrant, See Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 854 (Fla.2003); Restatement (Second) of Agency § 14N cmt. a (1958), and that a conclusory statement of independent contractor status in a contract document is not necessarily controlling. Villazon, 843 So.2d at 853. See also Smith v. Commodore Cruise Line, Ltd., 124 F.Supp.2d 150, 157 (S.D.N.Y.2000)(ship’s doctor was cruise line’s -agent, whose knowledge of personal .injuries he treated is imputed to the cruise line).

The record indicates a certain amount of control over the doctor’s medical services in that- the cruise line provides the medical supplies, selects the nurses, sets the hours of operation of the infirmary, and provides a policy and procedures manual for the operation of the infirmary. When considering a claim based on agency, it is the right of control, not actual control, that may be determinative. Villazon, 843 So.2d at 853. Here, in addition to being an officer of the ship and subject to the ship’s articles, Dr. Neri’s duties were to provide “medical services and treatment to passengers and crew in accordance with PURCHASER’S Physician guidelines” and he was subject to dismissal for “failure to perform duties to the satisfaction of’ Carnival.

More significantly, because it is foreseeable that some cruise passengers at sea will develop medical problems and the only realistic alternative for such an ill or injured passenger is treatment by the ship’s doctor provided by the cruise line, there is an element of control over the doctor-patient relationship which Barbetta failed to recognize. We reject the holding of the Barbetta line of cases and hold that the cruise line’s duty to exercise reasonable care under the circumstances extends to the actions of the ship’s doctor placed on board by the cruise line. We accordingly hold that, regardless of. the contractual status ascribed to the doctor, for purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor is an agent of the cruise line whose negligence should be imputed to the cruise line.

In imposing such vicarious liability, we note that, on any- given cruise, the cruise line is already held vicariously liable for the negligence of the same ship’s doctor in the treatment of hundreds of people — the crew — under the maritime duty to provide maintenance and cure. See De Zon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065. 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065 (1943); De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th Cir.1986); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2d Cir.1971); Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir.1968). Thus, in the case of a seaman, a ship owner is liable for the negligence of the ship’s doctor regardless of the degree to which the doctor’s medical activities, or the doctor-patient relationship, can be controlled by the ship owner.

As for the exculpatory language contained in the passenger ticket, 46 App. U.S.C.A. § 183c invalidates certain purported disclaimers of liability:

It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such oimer, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury ... All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect.

See Carlisle v. Ulysses Line, Ltd., 475 So.2d 248 (Fla. 3d DCA 1985)(exeulpatory clause attempting to relieve cruise line from liability for negligence of its servants would be unlawful under 46 U.S.C § 183c). See also Fairley, 1993 AMC at 1641, n. 7 (citing 46 App. U.S.C.A. § 183c for the proposition that cruise line’s disclaimer of liability for physician’s negligence did not, as a matter of law, preclude apparent authority claim). To the extent the cruise ticket seeks to limit Carnival’s liability for the negligence of its agent, it is invalid.

A cruise ship is a city afloat with hundreds of temporary citizens, some of whom are passengers and some of whom are the employees and agents of the cruise line who comprise the ship’s crew, each of whom, within their particular sphere, owe a duty of reasonable care to the passengers. The cruise line’s duty of reasonable care under the circumstances includes the duty of the ship’s doctor to adhere to the standard of care of a reasonable ship’s doctor under the circumstances.

On the basis of the foregoing we reverse the summary judgment on the issue of vicarious liability and remand this matter for further proceedings consistent herewith.

On Motion for Rehearing and Certification

PER CURIAM.

We certify that we have passed on a question of great public importance:

WHETHER A CRUISE LINE IS VICARIOUSLY LIABLE FOR THE MEDICAL MALPRACTICE OF THE SHIPBOARD DOCTOR, COMMITTED ON A SHIP’S PASSENGER?

The motion for rehearing is denied.

      . Barbetta also misreads Nietes as assuming:
      [T]hat by hiring any doctor to sail with the vessel, the carrier discharges that duty ... Given that the Nietes court wrongly assumed that without respondeat superior liability, a carrier could escape legal responsibility simply by providing any doctor for its passengers, we reject that court’s analysis of why vicarious liability is necessary.

        Barbetta, 848 F.2d at 1372. Nietes, however, made no such assumption and, in fact, specifically recognized the duty to use due care in the hiring of á competent physician and the cause of action for a ship owner’s breach of that duty. 188 F.Supp. at 221. Contrary to the implication of Barbetta, the duty to use due care in hiring does not obviate the duty to exercise reasonable care toward a passenger during a voyage.

      . In Rand we cited Barbetta for the proposition that general maritime law is applicable to a claim of medical malpractice in navigable waters and, in dicta, we noted the holding of Barbetta. We were not called upon there to address the underlying vicarious liability issue.

      . The record does not reflect the contents of the "Purchaser's Physician guidelines” referred to, although Carnival’s director of medical credentialing, Dr. Diskin, testified Carnival did not provide ship’s doctors with a manual as to specific medical procedures. He testified the policy and procedures manual for the operation of the infirmary was not geared toward the doctor, but more to the nurses who "essentially run the infirmary on •a day-to-day basis.” He further testified that he had assisted ship's doctors in determining whether certain'new medications were appropriate for the ship's infirmary, and that a practice existed whereby land based doctors or hospitals under contract with Carnival to treat Carnival's crew members would maintain a telephone "hot line” to consult with ships' physicians when needed.

      . Where a cruise passenger’s medical negligence claim is limited to the ship's doctor individually, the passenger is effectively faced with having to engage in a game of personal jurisdiction and service of process roulette, with the ability to proceed against the doctor depending on various factors such as contacts with the state, whether medical treatment was provided in Florida waters or at sea, and the practical realities of effectuating service of process. See, e.g., Rana v. Flynn, 823 So.2d 302 (Fla. 3d DCA 2002)(personal jurisdiction present where treatment in Florida waters and there were multiple contacts with state); Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000)(no personal jurisdiction over non-resident ship’s doctor with insufficient Florida contacts); Rossa v. Sills, 493 So.2d 1137 (Fla. 4th DCA 1986)(sufficient contacts to support personal jurisdiction). Two years after this matter was filed the Carlisles had not been able to serve process on Dr. Neri.

      . As a result of our ruling it is unnecessary to address the issues raised with regard to apparent agency. We find no error in that portion of the summary judgment on the claim of negligent hiring. See Barbetta, 848 F.2d at 1373-74.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark A. DIENSTAG, Appellant, v. Karen R. DIENSTAG, Appellee.
    Nos. 3D02-1387, 3D02-1808.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Rehearing Denied Jan. 21, 2004.
    Andrew C. Barnard, Miami, for appellant.
    Addicott & Addicott, and Michael Addi-cott, Hollywood, for appellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Mark A. Dienstag appeals from a final judgment in which the trial court awarded alimony to his wife, appellee Karen R. Dienstag. The wife cross-appeals the grant of ultimate authority to decide issues relating to the child’s medical well being to the husband. The wife also appeals her attorney’s fees award. We reverse the alimony award because it is contrary to the express words of the parties’ pre-nuptial agreement and affirm the final judgment in all other respects.

The parties married on February 18, 1993. One child was born of the parties’ marriage on June 14, 1997. The parties separated on January 25, 2001. Prior to the parties’ marriage to one another, they lived together for approximately two years. On the same day on which the parties married, they entered into a prenuptial agreement. The agreement contains a provision in which the parties agree to waive all alimony. The provision states:

Both Karen and Mark waive all rights to rehabilitative lump sum, temporary or permanent alimony of any kind in nature with the following exceptions.
a) If Karen becomes permanently disabled and Mark seeks a divorce.
b) If Karen has children and has not worked for a substantial period of time in order to raise the children a reasonable period of rehabilitative alimony may be paid for a period of time not exceeding 3 years.
c) If Mark seeks a divorce from Karen after she is fifty years of age and Karen has not worked for at least two preceding years.
d) Said alimony as.may be awarded by the court shall take into account the distribution of assets and the proximity of Mark’s retirement but in no event shall the alimony payments exceed on a year to year basis 35% of Mark’s disposable income including any income received from inheritance.

The agreement also contains a provision that addresses the husband’s financial situation.

On February 1, 2001, the husband fled his petition for dissolution of marriage in which he sought specific enforcement of the provisions of the pre-nuptial agreement and to be designated the primary residential parent. The wife also sought primary residential custody of the child with sole responsibility over health and educational issues until the child reached junior high school, otherwise for shared parental responsibility, and an award of temporary, permanent, rehabilitative alimony and/or “bridge the gap” alimony.

The trial court entered a final judgment of dissolution of marriage on December 24, 2001. The final judgment awarded the parties shared parental responsibility, designated the wife as primary residential parent, granted the husband ultimate authority on issues relating to the child’s well-being, and ordered the husband to pay “bridge the gap” alimony in the amount of $1,000 per month for twenty-four months. The court also found that the wife had a need for the payment of attorney’s fees and the husband had an ability to pay.

The wife subsequently moved for attorney’s fees, costs and to adjudicate a charging lien. On April 15, 2002, the trial court awarded some of the wife’s attorney’s fees because of the husband’s “continued tactics of engaging in vexatious litigation,” but did not award her attorney’s fees for litigating the charging lien.

Pre-nuptial agreements are valid and can constitute a legal waiver of a party’s right to alimony. See Belcher v. Belcher, 271 So.2d 7, 9 (Fla.1972). Florida courts have consistently upheld waivers of alimony provided that the waivers are stated in express terms. See Cunningham v. Cunningham, 499 So.2d 880, 882 (Fla. 1st DCA 1986). The wife need not have full knowledge of the husband’s worth prior to signing the document. See § 732.702(2) Fla. Stat. (2003); Estate of Roberts v. Roberts, 388 So.2d 216, 217 (Fla.1980). Even so, the former wife in this case was informed as to the husband’s financial status because the agreement states the husband’s assets and liabilities. The parties also lived together for at least two years prior to their marriage.

The wife alleges that “bridge the gap” alimony was correctly awarded because it fell within exception d) of the agreement. However, section d) is more of a limitation of the other three sections rather than an exception. Section d) limits the alimony to be awarded under exceptions a), b) and c) to “35% of the husband’s disposable income including any income received from inheritance.” An interpretation of the contract as a whole concludes that section d) cannot possibly be a fourth exception which would open a closed door and allow the trial court to award the wife a sum of money under the name of “bridge the gap” alimony. To hold otherwise usurps the clear intention of the parties at the time in which they ¡entered into the agreement, and imposes a modification on the agreement not contemplated by the parties.

Although section 61.08, Florida Statutes (1997), grants the trial court the power to award the wife alimony in dissolution proceedings, it does “not exist to displace nuptial agreements; rather the statutes exist to set the principles when there is no agreement.” Hannon v. Hannon, 740 So.2d 1181, 1187 (Fla. 4th DCA 1999). Whether the terms of the agreement are fair is of no consequence providing that the wife entered into the contract freely and voluntarily. See Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962). During the trial, the wife did not contest the validity of the agreement nor did she allege that she lacked an understanding of the agreement prior to signing it. Thus, there is no reason whatsoever to revoke a valid pre-nuptial agreement.

We further find no abuse of discretion in the trial court’s award to the husband of the ultimate authority to decide the medical issues of the child. Therefore, we reverse the award of alimony and remand the case for further proceedings consistent with this opinion, and affirm the final judgment in all other respects.

Reversed in part and affirmed in part.


author: GREEN, J.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. Angelo JULIANO, Appellee.
    No. 98-267.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.

      Vemis & Bowling of the Florida Keys, P.A. and Dirk M. Smits, for appellant.
    Keyfetz, Asnis & Srebnick, P.A. and L. Barry Keyfetz, and Bradley D. Asnis, Miami, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   ON MOTION FOR REHEARING

GREEN, J.

We deny the motion for rehearing, but withdraw our opinion dated September 11, 2002, and substitute the following in its stead.

Pursuant to the Florida Supreme Court’s mandate in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001) (“Juliano III”), we must resolve the issues of whether culpable negligence is the proper standard of negligence under section 440.11(1), Florida Statutes (1997) ; and whether the trial court 5 erred in denying the Florida Department of Transportation’s (“DOT”) motion for summary judgment and/or directed verdict — thereby disallowing DOT’S workers’ compensation immunity defense. We conclude that under the Workers’ .Compensation Law, DOT cannot be held liable in this case because there is an absence-of evidence on which a jury could have found that DOT was culpably or criminally negligent. Accordingly, we reverse the judgment under review.

This is the third appearance of this ease before this court. Initially, DOT took an interlocutory appeal of the denial of its motion for summary judgment. DOT maintained that it was immune from suit because the “unrelated works” exception in the Workers’ Compensation Law was inapplicable since Juliano had failed to identify any specific DOT employee as negligent in this case. Juliano responded that he was not required to identify the negligent “fellow employee” pursuant to Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla.1995), and even if he was required to do so, his response to DOT’S summary judgment motion which named two specific supervisors as negligent co-workers rendered the appeal moot. We per curiam affirmed the appeal with a citation to Holmes. See Fla. Dep’t of Transp. v. Juliano, 664 So.2d 77 (Fla. 3d DCA 1995) (“Juliano I”),

Upon remand, DOT filed a second motion for summary judgment, this time as-séfting that an employee could not sue a supervisor under the “unrelated works” exception unless the employee could prove that the supervisor’s conduct rose to a level of culpable negligence. This motion was denied by the trial court as a mere relitigation of the first motion for summary judgment. The case proceeded to jury trial and a verdict was entered for Juliano.

DOT appealed the verdict and final judgment arguing, among other things, that the trial court erred in denying its second motion for summary judgment. We held that DOT was foreclosed from relitigating the workers’ compensation immunity defense based upon the doctrine of res judicata. See Juliano II, supra.

Upon review, our supreme court determined that this court “erred as a matter of law when it relied on the doctrine of res judicata to preclude DOT from raising any aspect of its workers’ compensation defense on remand after the first appeal.” Juliano III, 801 So.2d at 108. The court pointed out that:

Neither DOT’s first summary judgment motion, the trial court’s order denying the summary judgment motion, nor the issues raised or briefed by the parties on the first appeal addressed the appropriate standard of negligence applicable to supervisory employees who are sued under the “unrelated works” exception. The issue regarding the appropriate standard of negligence was not before the Third District when it affirmed the trial court’s order denying summary judgment. Therefore, the matter of the appropriate standard of negligence was neither necessarily nor implicitly decided in the first interlocutory appeal.

Id. (citation and footnote omitted). The supreme court quashed Juliano II and remanded with instructions that we address the merits of the issue of whether Juliano was required to plead and prove culpable negligence, as opposed to simple negligence, against a supervisory employee engaged in “unrelated works” pursuant to section 440.11(1). See id. at 108 n. 7.

It is in response to this mandate that we now conclude that the higher standard of culpable negligence is the applicable standard. Thus, because the pleadings and record evidence established, at best, simple negligence, we find that the trial court erred in failing to grant DOT’s second motion for summary judgment and/or a directed verdict on its workers’ compensation immunity defense.

Under the Workers’ Compensation Law, “workers’ compensation is the exclusive remedy available to an injured employee as to any negligence on the part of that employee’s employer.” Eller v. Shova, 630 So.2d 537, 539 (Fla.1993). Thus, employers are immune from suits brought by their employees unless an employer “exhibit[s] a deliberate intent to injure or engage in conduct which is substantially certain to result in [the employee’s] injury or death.” Fisher v. Shenandoah Gen. Constr, Co., 498 So.2d 882, 883 (Fla.1986). Historically, however, co-employees, including supervisors, officers, and executives of the employer, have not shared this same right to immunity.

Before 1978, an injured employee had the right to sue a co-employee for negligence in the workplace. See Frantz v. McBee Co., 77 So.2d 796, 800 (Fla.1955) (holding that a co-employee is a ‘third party tort-feasor’ within the Workmen’s Compensation Act, and that an employee whose negligence resulted in the death of a fellow employee could be held responsible). Corporate officers, however, were held to be immune from suit when they were carrying out an employer’s duty to provide employees with a safe place to work, but could be sued as co-employees when they committed an affirmative act of negligence within the scope of their duties. See West v. Jessop, 339 So.2d 1136, 1137 (Fla. 2d DCA 1976) (holding that a corporate officer who negligently injures another employee through an affirmative act should be held personally responsible for his actions).

In 1978, however, the legislature extended the immunity given to employers to co-employees unless the co-employee acted with gross negligence or a higher degree of misconduct. Soon after, the question of whether this amendment eliminated the immunity of corporate officers or supervisors arose. Two cases considered this issue and arrived at conflicting conclusions. See Kaplan v. Cir. Ct. of 10th Jud. Cir. for Polk County, 495 So.2d 231, 233 (Fla. 2d DCA 1986) (holding that corporate officers are not employees, rather they are employers entitled to immunity under section 440.11(1)); Sullivan v. Streeter, 485 So.2d 893, 895 (Fla. 4th DCA 1986) (finding that corporate officers are employees and liable for gross negligence in failing to provide safe workplace). Both cases were certified to the Florida Supreme Court for resolution. The court in Streeter v. Sullivan, 509 So.2d 268, 271 (Fla.1987), held that section 440.11(1) imposed liability on all employees, including corporate officers, executives, and supervisors, who act with gross negligence toward their fellow employees.

In response to Streeter, the 1988 legislature again amended section 440.11(1) to provide for, in the Florida Supreme Court’s words,

heightened immunity to policymaking types of employees by raising the degree of negligence necessary to maintain a civil tort action against such employees from gross negligence to culpable negligence when those employees are engaged in managerial or policymaking decisions.

Eller, 630 So.2d at 541 (Fla.1993). See also Subileau v. S. Forming, Inc., 664 So.2d 11, 12 (Fla. 3d DCA 1995) (“The new language [of section 440.11(1) ] provides that both employers and those in a managerial capacity are immune from suit for on-the-job injuries sustained by employees, unless the employer or manager’s conduct amounts to criminal conduct punishable by more than 60 days imprisonment under the applicable criminal statute.”)- Specifically, the 1988 amendment to section 440.11(1) provides in relevant part that:

The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his duties acts in a managerial or policy-making capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed exceeds 60 days imprisonment as set forth in s. 775.082.

§ 440.11(1), Fla. Stat. (Supp.1988). Thus, pursuant tó the plain language of this amendment, a supervisor is immune from suit unless it can be shown that the supervisor’s negligence was tantamount to culpable negligence. See Emergency One, Inc. v. Keffer, 652 So.2d 1233, 1235 (Fla. 1st DCA 1995).

Juliano, however, argues that the heightened standard of negligence for officers or supervisors was not intended to apply to those supervisors who were involved with the employee in an “unrelated work.” We disagree. The unrelated works exception to workers’ compensation immunity permits an employee to file suit in simple negligence against fellow employees who “are assigned primarily to unrelated works.” This exception is to be narrowly construed. See Fitzgerald v. S. Broward Hosp. Dist., 840 So.2d 460, 462 (Fla. 4th DCA 2003) (stating that “[a]n expansive construction [of the ‘unrelated works’ doctrine] would obliterate the legislative intent that the system operate at ‘a reasonable cost’ to the employer.”). Moreover, the plain language of section 440.11(1), applies to all managerial personnel, whether or not involved in unrelated works. We find that the heightened standard of negligence given to managerial personnel is unrestricted and evinces a clear intent that supervisors acting in any managerial capacity be held to a culpable negligence standard.

Juliano neither pled nor proved that DOT’S supervisors acted with culpable negligence. The evidence adduced during the trial below merely showed that the DOT supervisors were aware of the poor condition of the floor and that there were plans for its repair or replacement. Though perhaps more could, and should, have been done to remedy the hazardous condition before Juliano was injured, there was simply no evidence to show that the delay in repair was the result of .culpable negligence. Thus, DOT was entitled to summary judgment or a directed verdict on its workers’ compensation immunity defense. We therefore reverse the judgment under review with directions that judgment be entered in favor of DOT.

Reversed and remanded with directions.

      . Specifically, the statute provides that:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law1 or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow employee, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of. the employee. The same immunities from-liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is. acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is.operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment. The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082. The immunity from liability provided in this subsection extends to county governments with respect to employees of county constitutional officers whose offices are funded by the board of county commissioners.

      . The underlying facts of this case were set forth in Florida Department of Transportation v. Juliano, 744 So.2d 477 (Fla. 3d DCA 1999) ("Juliano II").

      . An affirmative act of negligence "means an independent act of negligence committed by the supervisor [or officer] in breach of a duty to exercise ordinary care which he owed to the injured employee.” Dessert v. Elec. Mut. Liab. Ins. Co., 392 So.2d 340, 343 (Fla. 5th DCA 1981).

      . This principle was later extended to supervisors who were not corporate officers. See, e.g., Cliffin v. Fla., Dep’t of Health & Rehab. Servs., 458 So.2d 29 (Fla. 1st DCA 1984); Albert v. Salemi, 431 So.2d 345 (Fla. 2d DCA 1983); Dessert, 392 So.2d at 342.

      . Specifically, the amendment provided:
      The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.
      § 440.11(1), Fla. Stat. (1979).

      . Specifically, the court stated that section 440.11 was "an unambiguous statement of the legislature’s desire to impose liability on all employees who act with gross negligence with respect to their fellow employees....” Streeter v. Sullivan, 509 So.2d at 270.

      . "Culpable negligence has been defined through case law as 'reckless indifference' or ‘grossly careless disregard' of human life. Gross negligence, on the other hand, is defined as an act or omission that a reasonable, prudent person would know is likely to result in injury to another.” Eller v. Shova, 630 So.2d at 541 n. 3 (citations omitted).

      . We note that the supreme court is currently reviewing the legislative intent behind the unrelated works exception. See Taylor v. Sch. Bd. of Brevard County, 790 So.2d 1156 (Fla. 5th DCA 2001); review granted, 819 So.2d 140 (Fla.2002); Sanchez v. Dade County Sch. Bd., 784 So.2d 1172 (Fla. 3d DCA 2001), review granted, 819 So.2d 139 (Fla.2002). Neither of these cases, however, involves managerial or supervisory personnel.

      . The legislative intent behind the 1988 amendment was to decrease an employer’s liability expenses by distinguishing regular employees from managerial personnel. Eller, 630 So.2d at 541.


author: FULMER, Judge.

text:
    Victor LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1817.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.
    James Marion Moorman, Public Defender, and Judith Ellis, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Victor Lambert appeals his convictions for sale and possession of cocaine, which resulted in concurrent ten-year prison sentences. He argues that the trial court erred when it denied his midtrial request to discharge his attorneys and proceed pro se. We affirm because the request to proceed pro se was untimely.

After the State rested its case, the trial court discussed with Lambert his right to testify on his own behalf. The court then took a brief recess for Lambert to discuss the issue with his counsel. When the court reconvened, Lambert told the judge that he was not happy with his attorney. The judge advised Lambert that if he discharged his counsel he would have to represent himself, and Lambert answered that he would like to be pro se and try the case himself. The trial court ultimately denied Lambert’s request.

On appeal, Lambert argues that he was deprived of his right to self-representation. He asserts that the trial court was obligated to conduct a Faretta hearing to determine whether he was waiving his right to counsel knowingly and voluntarily. Once that was established, Lambert should have been allowed to proceed pro se. The State contends that Lambert’s midtrial request was properly denied because it was untimely. The State relies on federal cases holding that the right to self-representation may be waived if not asserted before trial.

The Eleventh Circuit has held that a defendant’s request for self-representation is untimely per se if it is made after a jury is empaneled. United States v. Young, 287 F.3d 1352 (11th Cir.2002). Although Eleventh Circuit case law is not binding precedent on this court, it is persuasive. State v. Dwyer, 332 So.2d 333, 335 (Fla.1976). Other courts have declined to adopt a per se rule. See, e.g., United States v. Kosmel, 272 F.3d 501, 506 (7th Cir.2001) (holding that once trial begins, court retains discretion to deny right of self-representation after balancing interest of the defendant against the potential disruption of the proceedings); United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986) (holding that after trial begins, the right of self-representation is subject to the trial court’s discretion, which requires balancing test).

In this case, we need not decide whether the denial of a request for self-representation based on the right having been untimely asserted should be governed by a per se rule or an abuse of discretion standard because using either standard here produces the same result. Lambert’s request was made at a time in the trial when there was a clear potential for disruption of the proceedings. Thus, the denial of the request was not an abuse of discretion.

Affirmed.

DAVIS and CANADY, JJ., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Stella RYLANDER, Appellant, v. Benny TESCHOUVA, Appellee.
    No. 3D02-3487.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Rehearing Denied Jan. 23, 2004.
    Arthur J. Morburger, Miami, for appellant.
    Horan, Horan & Wallace, and R. Bruce Wallace (Key West), for appellee.
    Before LEVY, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Dugan v. Haige, 54 So.2d 201 (Fla.1951); Horatio Enter., Inc. v. Rabin, 614 So.2d 555 (Fla. 3d DCA 1993); Tallahassee Mall, Inc. v. Rogers, 352 So.2d 1272 (Fla. 1st DCA 1977).


author: HAZOURI, J.

text:
    Leon J. ABRAM, M.D. and Leon J. Abram, M.D., P.A., Appellants, v. Anthony WOLICKI, Appellee.
    No. 4D02-3041.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Marc T. Millian, Scott H. Michaud, Rose Marie Antonacci-Pollock and Stacey L. Silverman of Michaud, Buschmann, Mittel-mark, Millian, Blitz, Warren & Coel P.A., Boca Raton, for appellants.
    A. Clark Cone of The Cone Law Firm, West Palm Beach, for appellee.
   HAZOURI, J.

Leon J. Abram, M.D. and Leon J. Abram, M.D., P.A., (collectively “Abram”) appeal from the trial court’s sua sponte order granting Anthony Wolicki a new trial. We reverse.

This appeal arises from a medical malpractice case filed by Wolicki against Abram in which Wolicki alleged that Abram deviated from the accepted standard of care in performing a cervical fusion. The issue of liability was hotly contested. After a week-long jury trial, the jury returned a verdict finding that Abram was not negligent. The verdict was rendered on April 15, 2002. On April 25, 2002, Wolicki filed a timely motion for new trial and the hearing was scheduled for May 24, 2002. In the interim, on April 29, 2002, the trial court entered a final judgment in Abram’s favor.

After hearing argument on the motion for new trial, the trial court entered an order on June 11, 2002, denying Wolicki’s motion for new trial. Thereafter, on June 20, 2002, Wolicki filed a motion for rehearing regarding his motion for new trial. Abram filed a response in opposition to Wolicki’s motion for rehearing arguing that the motion for rehearing was unauthorized. On July 2, 2002, the trial court entered an order denying Wolicki’s motion for rehearing regarding his motion for a new trial; however, the trial court withdrew the previous order denying the motion for new trial, and substituted a new order granting Wolicki’s motion for new trial. Abram argues that under the Florida Rules of Civil Procedure, Wolicki was not authorized to file a motion for rehearing on the denial of his motion for new trial and that the trial court could not sua sponte vacate the order denying the motion for new trial and enter an order granting it. We agree.

Florida Rule of Civil Procedure 1.530 provides for motions for new trial or motions for rehearing. There is no authorization for motions for rehearing on motions for new trials. See Fiber Crete Homes, Inc. v. Div. of Admin., 315 So.2d 492 (Fla. 4th DCA 1975). In Fiber Crete, the Department of Transportation had instituted a suit for eminent domain against Fiber Crete. A final judgment was rendered in favor of Fiber Crete, and within ten days the Department filed a motion for new trial. The trial court denied the motion. Within ten days of that order, the Department filed-a motion for a “limited rehearing of new trial motion” calling the trial court’s attention to a case decided several months before, which affected the decision. The trial court denied the motion for rehearing but proceeded sua sponte under Florida Rule of Civil Procedure 1.540(b) to amend the order denying the motion for new trial by granting it.

In Fiber Crete, this court held:

The trial court correctly recognized that it had no authority to entertain or consider a subsequently filed motion or petition for rehearing directed to a denial of a new trial. DePadro v. Moore, Fla.App.1968, 215 So.2d 27; Volumes in Value, Inc. v. Buy Mail International, Inc., Fla.App.1965, 177 So.2d 511. Simply stated, there is no provision in the rules of ciyil procedure for a rehearing of a denial of a motion for a new trial and rehearing. The trial court, therefore, appropriately denied plaintiffs motions “for limited rehearing”.

Id. at 493. Thus the trial court in the instant case was correct in denying Wol-icki’s motion for rehearing regarding his motion for new trial.

This court then held with respect to the trial court’s reversing itself and granting the new trial:

However, the court then proceeded on its own motion to grant a new trial under Rule 1.540(b) predicating its action on the authority of In re Estate of Weymer, Fla.App.1967, 199 So.2d 495. While the Weymer case stands for the proposition that a court may act of its own motion under Rule 1.540(b); nevertheless, the court can do so only for those reasons and under such circumstances as set forth in the rule ... In essence, however, the trial judge sought to utilize Rule 1.540(b) to correct what he perceived to be a “mistaken view of the law”.
Rule 1.540 was intended to provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error....
It appears that the trial court’s sua sponte order (after its denial of rehearing) wás an effort on its part to grant relief from a final judgment because of what the trial court perceived to be a judicial error as distinguished from “mistake, inadvertence, surprise or excusable neglect”. To sanction such a modification and utilization of Rule 1.540(b) would not only be contrary to the purpose of that rule but, additionally, would adversely affect the concept of “finality” of any judgment or order.

Id. at 493-94 (citations and footnotes omitted).

In State Farm Mutual Automobile Insurance Co. v. Miller, 688 So.2d 935 (Fla. 4th DCA 1997), this court reviewed a case where the motion for new trial was denied and the same day the Fourth District issued an opinion on a case which affected a legal decision of the trial court during trial. The party who made the motion for new trial then filed a motion for rehearing on the denial of the motion for new trial. The trial court granted the motion for rehearing and ordered a new trial citing the new case. The nonmoving party appealed. This court in reversing the trial court, relied on cases that previously held: “The motion for rehearing of the order denying the motion for new trial was not authorized by our rules, and the trial court was thus without authority to consider it.” Id.; see also Fiber Crete, 315 So.2d at 492; Huffman v. Little, 341 So.2d 268 (Fla. 2d DCA 1977); Volumes in Value, Inc. v. Buy Mail Int’l, Inc., 177 So.2d 511 (Fla. 3d DCA 1965).

More recently, in ACA Brandon, Inc. v. Hooyman, 823 So.2d 874 (Fla. 2d DCA 2002), appellant appealed the trial court’s order granting appellees a new trial pursuant to a supplemental and amended motion for new trial after the trial court had initially denied the motion for new trial. The district court reversed because the Florida Rules of Civil Procedure do not provide for supplemental motions for new trial or for motions for rehearing of orders denying motions for new trial.

Based upon the foregoing, the trial court in the instant case was without authority to withdraw its prior order and enter an order granting a new trial. Therefore, the order was a nullity and we direct the trial court to reinstate the final judgment in favor of Abram. We also find no error in the trial court’s denial of Wolicki’s motion for new trial.

REVERSED.

STONE and KLEIN, JJ., concur.


text:
    RIVER CITY WHOLESALE FLORIST, LTD.; Charles E. Bill; and Everflora Chicago, Inc., Appellant, v. EQUIFLOR CORPORATION, Appellee.
    Nos. 3D02-3463, 3D02-3390.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Rehearing Denied Jan. 23, 2004.
    Genovese, Joblove & Battista, P.A., Peter W. Bellas, Miami, and Jose M. Ferrer, Hialeah, for appellant.
    Levin & Stone and Stuart I. Levin, Miami, for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   PER CURIAM.

This is an appeal from an order denying the appellants’ motion to enforce a stipulation for settlement which was executed by the attorneys but not by the parties. Generally speaking, a party seeking to enforce such an agreement has the burden of establishing assent by the opposing party. See Nehleber v. Anzalone, 345 So.2d 822, 822 (Fla. 4th DCA 1977)(“A party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party.”); Cross-Aero Corp. v. Cross-Aero Serv. Corp., 326 So.2d 249, 250 (Fla. 3d DCA 1976); Goff v. Indian Lake Estates, Inc., 178 So.2d 910, 912 (Fla. 2d DCA 1965). See also Lechuga v. Flanigan’s Enters., Inc., 533 So.2d 856, 857. (Fla. 3d DCA 1988)(“The employment of an attorney does not ... give the attorney authority to compromise the client’s cause of action or settle the client’s claim[.]”). Here, the trial court determined that appellants failed to meet this burden. Because the record supports, by competent substantial evidence, this factual determination, we must affirm.

Affirmed.


author: WHATLEY, Judge.

text:
    Mark WEINTRAUB, Appellant/Cross-Appellee, v. Lynne WEINTRAUB, Appellee/Cross-Appellant.
    No. 2D03-154.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    Rehearing Denied Jan. 30, 2004.

      Larry R. Chulock of Harrison, Hen-drickson & Kirkland, P.A., Bradenton, for Appellant.
    Angela D. Flaherty of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, Sarasota, for Appellee.
   WHATLEY, Judge.

The husband, Mark Weintraub, appeals a final judgment dissolving his marriage to Lynne Weintraub, the wife, arguing that the trial court erred in awarding permanent periodic alimony and rehabilitative alimony. The wife cross-appeals the trial court’s valuation of the husband’s business. We affirm without discussion the award of permanent alimony in the amount of $3084 per month and the trial court’s valuation of the husband’s business in the sum of $42,500. We reverse the rehabilitative alimony award of $4584 per month.

The husband is a physician who earned $270,000 in 2002. The wife has a bachelor’s degree in biology and a master’s degree in genetics. The wife worked periodically as a genetics counselor during the parties’ seventeen-year marriage. The wife last worked in the genetics field in 1996. The trial court found that the wife’s maximum first year earning potential would be $40,000 in the field of genetics. It further found that, assuming the wife immediately became employed in the genetics field, in four years her imputed amount would be $55,000.

The wife testified that she left the field of genetics in 1996, and she no longer wanted to pursue a career in genetics. The wife testified that she wanted to start a small business in the field of fine chocolates and gourmet desserts. The wife had no prior'experienee in running such a business and provided no evidence regarding the income that such a business would generate. In fact, she testified that her involvement to date in the potential business was on a “casual basis,” and she had no idea regarding how much money she would be able to make in the chocolate business.

The trial court awarded the wife rehabilitative alimony for a period of four years “in order to get the business off the ground, or failing that to return to her former profession.” This award of alimony is improper because the wife failed to present evidence of a rehabilitative plan supporting such an award. See Bryan v. Bryan, 765 So.2d 829, 831 (Fla. 1st DCA 2000) (holding that rehabilitative alimony cannot be awarded absent a rehabilitative plan). The purpose of rehabilitative alimony is to permit a spouse to obtain a skill, education, or rehabilitation in order to establish the capacity for self-support. Campbell v. Campbell, 685 So.2d 61, 62 (Fla. 1st DCA 1996); Brock v. Brock, 682 So.2d 682, 683 (Fla. 5th DCA 1996). The party seeking rehabilitative alimony must present detailed evidence regarding the cost of “the education, the prospects of subsequent employment, and the time it will take the receiving spouse to reach an appropriate income level.” Campbell, 685 So.2d at 62.

In the present case, there was no testimony regarding the time it would take the wife to reach an appropriate income level. Both the wife and the wife’s vocational expert testified that there was no way to determine how much money the business would make in a specific time frame. Further, the wife’s business partner testified that she had no specific expectations regarding when the business will make money and that they had not prepared any income projections for the business. Therefore, as there was no specific evidence supporting a valid rehabilitation plan for the wife, the award of rehabilitative alimony must be reversed.

In addition, barring extraordinary circumstances, which are not present in this case, a spouse may not receive rehabilitative alimony by abandoning the field in which he or she has been trained and starting a speculative business venture. That is exactly what the wife sought to do in this case. In Blanchard v. Blanchard, 793 So.2d 989, 991-2 (Fla. 2d DCA 2001), the court in addressing this issue stated:

In truth, the husband is trying to receive rehabilitative alimony, disguised as bridge-the-gap alimony, to assist him in a risky, new business venture when he already has considerable experience and skill in another field. An award of rehabilitative alimony, however, generally requires a rehabilitative plan that will result in an increase in the party’s income.

See Sutton v. Hart, 746 So.2d 1175, 1176 (Fla. 3d DCA 1999) (“[The wife’s] simple aspiration to acquire training in an additional field is insufficient for an award of rehabilitative alimony from her former spouse.”). Here, the wife is clearly free to enter into such a small business venture, but the husband is not responsible for rehabilitative alimony in connection therewith.

Finally, there was testimony that the wife would need a period of time in which to prepare to reenter the genetics field. Accordingly, consideration upon remand should be given to a bridge-the-gap alimony award for that transition if the wife elects to reenter that field. See Vanbrussel v. Vanbrussel, 710 So.2d 170 (Fla. 1st DCA 1998).

Accordingly, we affirm the trial court’s award of permanent periodic alimony and the valuation of the husband’s business. We reverse the award of rehabilitative alimony to the wife and remand for consideration of a bridge-the-gap alimony award.

Affirmed in part, reversed in part, and remanded.

COVINGTON, J., and THREADGILL, EDWARD F., Senior Judge, concur.

      . No children were born of the marriage.


author: WELLS, Judge.

text:
    CARROLL & ASSOCIATES, P.A., Appellant, v. Rafael GALINDO, etc., et al., Appellees.
    Nos. 3D03-916, 3D03-1345.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing Denied Jan. 23, 2004.

      Linda L. Carroll, Miami, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer and Norman S. Segall, Miami, for appellees.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   ON REHEARING

WELLS, Judge.

We have for consolidated review Carroll & Associates, P.A.’s appeal from a final summary judgment of foreclosure in favor of Rafael and Nelly Galindo and Carroll’s motion for rehearing in Carroll’s earlier appeal from an order granting summary final judgment on Carroll’s cross-complaint against the Galindos. For the following reasons, we deny rehearing in Case Number 3D02-1345 regarding . the summary judgment on Carroll’s .cross-complaint, substituting this opinion for our earlier opinion in that matter, and reverse the final summary judgment of foreclosure which is the subject of Case Number 3D03-916.

I

Facts Relevant to Both Appeals

In 1995, Philip Feigenblatt acquired a fee simple interest in a condominium located in Bal Harbor, Florida. He subsequently conveyed a life estate interest in this condominium to his mother, Flora Rojas Parks, retaining the remainder interest for himself. In early 1998, Carroll obtained a $9,381- final judgment against Feigenblatt for unpaid legal fees. That judgment was recorded in the property records of Miami-Dade County on May 28, 1998.

Less than a month later, on June 17, 1998, the Galindos entered into an agreement to lease Feigenblatt’s and Parks’ Bal Harbor condominium until June 16, 1999 (or, if extended, until June 2000) with an option to purchase upon the Galindos’ sale of another unit in the building. That agreement accorded exclusive occupancy of the Feigenblati/Parks condominium to the Galindos in exchange for the Galindos’ agreement to - pay, among other things, Feigenblatt’s and Parks’ mortgage payments to EMC Mortgage Company. The Galindos also agreed to “satisfy the outstanding mortgage with EMC” upon closing, of the sale.

The Galindos thereafter timely exercised the option to purchase the unit paying $25,000 (as required by the parties’ agreement) to Feigenblatt and Parks. But before a closing could take place, Carroll acted to protect its interest in the property by foreclosing its recorded judgment lien against Feigenblatt’s remainder interest. A writ of execution was issued and a notice of levy recorded against the condominium. In addition, a notice of Sheriffs sale of Feigenblatt’s remainder interest in the condominium was advertised, served on Feigenblatt and provided to the Galindos. Feigenblatt and the Galindos unsuccessfully sought court intervention to cancel the public sale of Feigenblatt’s remainder interest, and on February 10, 1999, with the Galindos’ attorney present, the Sheriff conducted a public auction of Feigenblatt’s remainder interest in the condominium. The Galindos’ attorney did not bid on then-behalf, and Carroll, the highest bidder, purchased Feigenblatt’s remainder interest for $4,500 and received a Sheriffs deed conveying the remainder interest to it.

The Galindos continued to live in the condominium following the Sheriffs sale and made monthly mortgage payments to EMC as agreed until April 1999 when they ceased making payments.

In September 1999, Independent National Mortgage Corporation, claiming to be the holder of a note secured by a mortgage on this property, brought suit to foreclose the mortgage. Feigenblatt, Parks, the Galindos, and Carroll were joined as defendants in the foreclosure action as having some right, title or interest in the property.

One month later, the Galindos brought a separate suit against Feigenblatt, Parks, and Sally Sawh, their prior attorney, seeking (1) title to Parks’ life estate via specific performance of the Feigenblatt/Parks agreement; (2) damages against Feigen-blatt and Parks for the diminished value of the condominium sale contract (due to Carroll’s ownership of the remainder interest); and (3) damages against Sawh for failing to bid on Feigenblatt’s remainder interest at the Sheriffs sale. In that action, the Galindos expressly elected to be bound by their agreement with Feigen-blatt and Parks, and although they had failed to make monthly mortgage payments as agreed and had been joined as defendants in an action to foreclosure that mortgage, they affirmatively alleged that they had “fully performed all that was to be done on their part [under the agreement]” and stood “ready, willing and able to do any and all further things which ... may be required of them.”

In the meantime, the Galindos asked the court in the mortgage foreclosure action to permit them, “as contract purchasers and tenants of the [Feigenhlatt/Parks] property,” to redeem the mortgage and to enter an order subrogating them to the mortgagr ee’s rights in the foreclosure action. Carroll objected. In late February 2000, while this request was pending, the Galin-dos obtained the “payoff figures” for, and paid off, the loan secured by the Independent National mortgage — the loan the Ga-lindos had obligated themselves to pay in their agreement with Feigenblatt and Parks. Two months later, the trial court granted the Galindos’ motion for redemption effectively ordering satisfaction of the loan.

Three months later, and almost six months after the Galindos’ had paid-off the loan, Independent National executed an assignment of the Feigenblatt note and mortgage to the Galindos. Based on this assignment, the Galindos obtained leave to “realign” the parties in the Independent National foreclosure suit to substitute themselves as plaintiffs. ' Alleging that Feigenblatt had failed to pay the note and mortgage after April 1999, an obligation that they had agreed to pay in a contract that they were seeking to enforce in another court, the Galindos sought to foreclose.

On January 17, 2002, the Galindos obtained a judgment against Parks in the suit against Feigenblatt, Parks, and Sawh, granting specific performance of the Feigenblatt/Parks agreement. Parks was ordered to deliver a warranty deed conveying her life estate interest in the condominium to the Galindos.. Less than two weeks later, the Galindos moved for summary judgment on Carroll’s cross-claims against them in the foreclosure action. That cross-claim sought to determine ownership and possessory rights in the condominium and to hold the Galindos liable for “unpaid” mortgage payments, assessments and expenses while they were in possession of the condominium.

Using their recently acquired judgment in the specific performance action, the Ga-lindos argued entitlement to both possession of, and title to, a life estate in the property. They also represented that all payments were current on the condominium. Their motion for summary judgment on Carroll’s cross-claim was granted with the trial court finding that: (1) Carroll succeeded to Feigenblatt’s remainder interest in the condominium when it purchased that interest at the Sheriffs foreclosure sale; (2) the Galindos held a life estate interest in the condominium; and (3) the Galindos had redeemed the mortgage that was the subject of the foreclosure suit and were current on all condominium expenses. The trial court also found that as a consequence of the Galin-dos’ actions in paying $25,000 to purchase a life estate, in redeeming the mortgage, and in paying all expenses related to the condominium, they had acquired a superior “equitable” right to title in the condominium. Consequently, Carroll's claims for declaratory judgment, to quiet title, and for damages were dismissed with prejudice, and Carroll was ordered to “execute a special warranty deed [conveying its remainder interest in the condominium] in favor of the Galindos,” upon the Galindos’ payment of $4,500 to Carroll. Carroll appealed from this judgment.

While that appeal was pending, the Ga-lindos moved for and were granted a final judgment of foreclosure. Carroll has appealed the foreclosure judgment as well, and we have, on rehearing, consolidated the earlier cross-claim appeal with the foreclosure appeal.

We affirm that portion of the summary judgment on Carroll’s cross-claim dismissing Carroll’s request to declare the Galin-dos to have no legal or possessory rights in the condominium and to order them to pay damages. However, we reverse that portion of the summary judgment ordering Carroll to convey its remainder interest to the Galindos. We also reverse the foreclosure judgment and remand for dismissal of that action.

II

The Summary Judgment on Carroll’s Cross-Claims

Because the unrebutted record (as well as counsel’s representations at oral argument) shows that the Galindos hold a life estate interest in the condominium and have redeemed or satisfied the outstanding first mortgage and assumed responsibility for, and have paid, all assessments, taxes and expenses related to the condominium, that portion of the summary judgment dismissing Counts I through IV of Carroll’s cross-claim against the Galindos, is affirmed.

There is, however, no support for that portion of the trial court’s order obligating Carroll to convey its remainder interest to the Galindos. The pleadings do not suggest any basis on which Carroll’s deed may be nullified or on which Carroll may be obligated to transfer its interest. There also is no evidence to support such an order. “Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice.” In re Estate of Hatcher, 439 So.2d 977, 980 (Fla. 3d DCA 1983)(footnote omitted); see also McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999)(holding that “when an award of relief is not sought by the pleadings, it is reversible error to grant such relief”); Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban American Nat’l Found., 667 So.2d 490, 491 (Fla. 3d DCA 1996)(finding the lower court was without jurisdiction in a summary judgment order to, sua sponte, incorporate additional findings and directives “which were never presented to the court as issues in any party’s pleadings, evidence or argument on the motion for summary judgment”).

To allow a court to rule on a matter without proper pleadings and notice is violative of a party’s due process rights. See Epic Metals Corp. v. Samari Lake East Condo. Ass’n, Inc., 547 So.2d 198, 199 (Fla. 3d DCA 1989)(“[a] trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing”); Robinson v. Malik, 135 So.2d 445 (Fla. 8d DCA 1961)(a final judgment that “goes beyond the issues framed in the pleadings and beyond the proof adduced” is a “clear departure from the requirements of due process of law”).

Accordingly, that portion of the summary judgment confirming that the Galin-dos hold a life estate in the condominium, are current in all payments related to it, and dismissing counts I through IV of Carroll’s cross-claim is affirmed. That portion of the summary judgment requiring Carroll to execute a special warranty deed transferring its remainder interest in the condominium to the Galindos upon the payment of $4,500 plus interest is reversed and remanded with instructions to enter judgment declaring Carroll to be the owner of, and quieting title in Carroll to, a remainder interest in the condominium.

Ill

The Summary Judgment on the Galindos’ Foreclosure Claim

The Galindos claim that they did not satisfy the Independent National mortgage when they paid it off or “redeemed it,” but that they purchased the mortgage from Independent National and, as assignees under a written assignment, are entitled to foreclose that mortgage which encumbers both their life estate and Carroll’s remainder. We disagree.

We first note that the Galindos’ suggestion that they did not have to satisfy this mortgage but had the right to purchase it “just as anyone else in the world could have done,” is suspect in light of the Galin-dos’ affirmative representations in the specific performance action that they had “fully performed all that was to be done on their part [under the agreement with Feig-enblatt and Parks].” That agreement obligated the Galindos to “satisfy” the mortgage, not to take title to an interest in Feigenblatt’s and Parks’ property while becoming their secured creditor.

Even if the Galindos “had the right to purchase this mortgage position, just as anyone else in the would could have,” as they state, they still could not foreclose it. They cannot foreclose against the life estate since they already have title to it, and the Galindos as life tenants cannot foreclose to the prejudice of the remainder estate.

The relationship of a life tenant to a remainderman is that of a trustee or quasi-trustee, not that of strangers. See Chapman v. Chapman, 526 So.2d 131, 135 (Fla. 3d DCA 1988)(noting that “[t]he duty owed by life tenants to remaindermen is comparable to that of a trustee or quasi-trustee”); Wagner v. Moseley, 104 So.2d 86, 90 (Fla. 2d DCA 1958). Thus, as a general rule, a life tenant cannot acquire, either directly or indirectly through an intermediary, title or an interest, claim or encumbrance for the life tenant’s exclusive use against a remainderman. See Chapman, 526 So.2d at 135 (holding that “the life tenant cannot injure the property to the detriment of the remaindermen”); Wagner, 104 So.2d at 90; Thomas v. First Nat’l Bank of Chicago, 134 Ill.App.3d 192, 89 Ill.Dec. 8, 479 N.E.2d 1014, 1029 (1985)(noting that life tenants have the duty to prevent waste and not to manipulate title so as to defeat the remainder-man’s interest in the property); Matter of Miller’s Estate, 225 Kan. 655, 594 P.2d 167, 170 (1979)(noting that a life tenant has a duty to act honorably and in good faith with respect to the remainderman). In this regard, it has been stated:

While a life tenant may be a purchaser at a sale to satisfy an encumbrance, neither the life tenant nor one claiming under him, who allows the property to be sold for taxes or the satisfaction of an encumbrance, or the interest thereon, can acquire a title adverse to the re-mainderman or reversioner by purchasing at the sale himself, or through an intermediary, or by obtaining a conveyance of the title acquired by another purchaser at such sale. Such a transaction amounts simply to a payment or redemption and results in a restoration of the rights of the remainderman, as well as of the life tenant, the life tenant thereby reacquiring his life estate, but no more.

31 C.J.S. Estates § 33 (2003)(footnotes omitted); see also Wagner, 104 So.2d at 90 (finding that “a life tenant cannot acquire an outstanding title, interest, claim, or encumbrance for his own exclusive use against a remainderman ... but it will be deemed as having been acquired for the benefit of the life tenant and the remain-derman”); Scotch v. Hurst, 437 So.2d 497, 501 (Ala.1983)(finding that “a life tenant who redeems property after a foreclosure sale redeems for the benefit of the remain-dermen as well as for herself’).

The Galindos cannot, therefore, acquire title to the remainder estate at a foreclosure sale. Nor can they force Carroll, upon peril of losing title to the remainder interest, to pay them at a foreclosure sale, the outstanding principal balance of the first mortgage, as well as accrued taxes, default interest, and costs, expenses and attorney’s fees incurred as a consequence of the Galindos’ failure to keep the Independent National mortgage current (all without credit for the fair rental value of the condominium while the Galindos have lived there “rent-free” for the past four and one-half years).

This is especially so since the Galindos, who caused the mortgage they now hold as assignees to go into default in the first instance, appear to have less than clean hands. See Limner v. Country Pines Condo. Ass’n, Inc., 709 So.2d 154 (Fla. 4th DCA 1998)(confirming that the unclean hands doctrine applies to the equitable remedy of foreclosure); Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995)(holding that a “foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable”); Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995)(stating that unclean hands is a valid equitable defense to a foreclosure action); Sponder v. Equity Capital Co., 248 So.2d 251, 252 (Fla. 3d DCA 1971)(finding that a junior mortgagee with unclean hands should be denied the equitable relief of foreclosure).

Accordingly, the final judgment of foreclosure is reversed and the cause remanded with instructions that the foreclosure action be dismissed.

      . These actions were prosecuted by and against the Galindos individually and as trustees of the Rafael and Nelly Galindo Revocable Inter Vivos Trust.

      . On this appeal,’the parties do not dispute that this was the mortgage ‘referred to in the FeigenblattyFarks-Galindo agreement as the EMC mortgage.

      . The total ’ amount paid was $225,184.22: $193,482.22- in principal, $20,090.32 in interest, and the balance for late charges, taxes, costs and fees.


author: ARAMONY, SUSAN J., Associate Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, authorized to do business in Florida, Appellant, v. Gregg A. TIPPETT, Michael J. Hummel, and Agata Januszczak, Appellees.
    No. 4D02-3783.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Rehearing Denied Feb. 9, 2004.

      Kara Berard Rockenbach of Gaunt, Pratt, Radford & Methe, P.A., West Palm Beach, and Sachs, Sax & Klein, P.A., Boca Raton, for appellant.
    Peter G. Herman of Tripp, Scott, Fort Lauderdale, for appellee Agata Januszc-zak.
    Gordon R. Leech and Farrah C. Fugett-Mullen, John P. Wiederhold of Wiederhold & Moses, P.A., and L. Donnie Murrell of L.D. Murrell, P.A., West Palm Beach, for appellees.
   ARAMONY, SUSAN J., Associate Judge.

State Farm Fire and Casualty Company (State Farm) appeals the final judgment entered in favor of Defendants/Appellees, Gregg Tippett (Tippett) and Michael Hum-mel (Hummel), the insureds in a declaratory relief action. The trial court found that State Farm had a duty to defend and indemnify the insureds in a civil suit brought against them by Defendant/Appel-lee Agata Januszczak (A.J.) for negligence and sexual assault and battery. State Farm contends that no insurance coverage existed for the willful acts of Tippett and Hummel under the exclusionary language in the insurance policy. Tippetts and Hummels position is that State Farm had a duty to defend them based upon allegations in the Sixth Amended Complaint, wherein A.J. alleges the insureds did not intend or expect, or act willfully and maliciously, to cause her injury. A.J. also maintains that the allegations in the underlying complaint fall within the scope of the policy’s coverage and State Farm has a duty to defend. We find the trial court erred in denying State Farms motion for summary judgment, and reverse and remand for entry of summary judgment in favor of State Farm. We need not address the other issues.

We first note that the allegations in A.J.s Sixth Amended Complaint control the issue of whether State Farm has a duty to defend. It is well-established that an amended pleading supersedes an earlier pleading unless it expresses an intent to preserve portions of the earlier pleading. State Farm v. Higgins, 788 So.2d 992, 995 (Fla. 4th DCA 2001) (citing Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 815 (Fla. 1st DCA 1985)); Fo rum v. Boca Burger, Inc., 788 So.2d 1055, 1059 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla. Mar.22, 2002). AJ.’s Sixth Amended Complaint did not expressly state an intent to preserve portions of the previously filed Fifth Amended Complaint. Thus, the allegations in the Sixth Amended Complaint determine State Farms duty to defend.

In the underlying case A.J. brought a civil action for damages against Tippett and Hummel, alleging that she was a patron of a Boca Raton nightclub when she was drugged without her knowledge with GHB (Gamma Hydroxybutyric Acid), became incapacitated, and was caused to engage, without her consent, in sexual activities with Tippett and Hummel in the parking lot of the nightclub. A.J. incorporated these general allegations into subsequent negligence and sexual assault and battery counts against the insureds, Tip-pett and Hummel. In the negligence counts, A.J. alleged that Tippett touched her breasts, digitally penetrated her vagina, and/or engaged in vaginal sexual inters course and/or oral sex. A.J. further alleged as follows:

A.J. was under the influence of GHB, that had been placed in her drink by Tippett or a third party. Tippett knew or should have known that A.J. was incapacitated.
A.J. was conscious but was unaware of what was occurring and, therefore, was unable to give her permission or consent to Tippett to engage in the aforesaid sexual activities.
Tippett, allegedly unaware of A.J.’s condition and being under the belief that his actions were with the permission and consent of A. J. may neither have expected nor intended from his standpoint, that his participation in the aforementioned activities would result in harm, bodily injury, or damage to A.J.

In the sexual assault and battery count against Tippett, A.J. alleged that he sexually assaulted and offensively touched her by spiking her drink- with GHB, without her permission or consent, which put her into a drug induced stupor, rendering her incoherent and otherwise physically and mentally incapacitated.. She.further alleges that while she was incapacitated Tippett dragged her, without her permission or consent, to a vehicle in the parking lot of the .club, where he intended to and did strike her and sexually assault her by touching her breasts, digitally penetrating her vagina, and/or engaging in vaginal sexual intercourse and/or oral sex, that he intended to cause actual apprehension of imminent physical harm to her and did cause actual physical harm to her.

A. J. alleges identical negligence and sexual assault and battery counts against Hummel.

In determining whether a duty to defend exists, the trial court is confined to the allegations in the complaint. Higgins, 788 So.2d at 995 (citing State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1077 n. 3 (Fla.1998) and Nat’l Union Fire Ins. Co. v. Lenox Liquors, Inc., 358 So.2d 533, 536 (Fla.1977)). The trial court is restricted, to the allegations set forth in the complaint, regardless of what the insured or others say actually happened. Marr Invs., Inc. v. Greco, 621 So.2d 447, 449 (Fla. 4th DCA 1993). Moreover, the insurer, has a duty to defend even if the facts alleged are false or the legal theories unsound. Higgins, 788 So.2d at 996.

In the case at bar, the State Farm Homeowners Insurance Policy provides personal liability coverage for bodily injury caused by an “occurrence.” Occurrence is defined in the policy as an accident which results in bodily injury. However, the policy specifically excludes coverage for bodily injury which is expected or intended, or willful and malicious.

The term “accident” is not defined in the policy. However, the Florida Supreme Court has held that the term “accidental,” as used in an insurance policy, means unexpected or unintended. Dimmitt Chevrolet, Inc. v. Southeastern Fid. Ins. Corp., 636 So.2d 700, 704 (Fla.1993) (citing Hartford Accident & Indem. Co. v. U.S. Fid. & Guar. Co., 962 F.2d 1484 (10th Cir.1992)). The court has further held that the term accident, when not defined in a liability policy, encompasses not only “accidental events” but also injuries or damages neither expected nor intended from the standpoint of the insured. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998).

Exclusionary clauses in liability insurance policies are always strictly construed. Westmoreland v. Lumbermens Mut. Cas. Co., 704 So.2d 176, 179 (Fla. 4th DCA 1997) (citing Demshar v. AAACon Auto Transp., Inc., 337 So.2d 963, 965 (Fla.1976)). Whether injuries or damages were expected or intended by the insured is a question of fact in some cases, or a matter of law in other cases, where the insured’s actions were so inherently dangerous or harmful that injury was sure to follow. CTC Dev. Corp., 720 So.2d at 1076 (citing Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989)).

In Landis v. Allstate Insurance Co., 546 So.2d 1051 (Fla.1989), the parents of children who were sexually molested at a licensed childcare facility brought an action alleging gross negligence and intentional harm against the day-care owners, who were convicted of criminal sexual battery of the children left in their care. The owners operated the childcare facility in their home, which was covered by a homeowners policy that excluded coverage for bodily injury intentionally caused by the insured. The Florida Supreme Court found that no coverage existed under the intentional acts exclusion in the policy. Landis, 546 So.2d at 1052 (approving the Third District’s opinion in Landis v. Allstate Ins. Co., 516 So.2d 305 (Fla. 3d DCA 1987), which affirmed the trial court’s entry of summary judgment in favor of the insurance company). The court rejected the argument that the intentional acts exclusion did not apply if the insureds did not have the specific intent to cause the harm. It reasoned that, “To state a child molester intends anything but harm and long-term emotional anguish to the child defies logic.” Id. at 1053.

Indeed Florida courts have consistently denied insurance coverage for intentional sexual acts on children. See Consol. Am. Ins. Co., Inc. v. Henderson, 590 So.2d 1050 (Fla. 3d DCA 1991) (reversing trial court’s finding of coverage under homeowner’s insurance policy for sexual abuse committed by his son upon plaintiff when she was a child, finding the sexual conduct an “intentional act” under the intentional act exclusion in the policy); Insurance Co. of N. Am. v. Querns, 562 So.2d 365 (Fla. 2d DCA 1990) (finding a teacher’s molestation of a school girl an intentional act excluded from coverage); McCullough v. Cent. Fla. YMCA 523 So.2d 1208 (Fla. 5th DCA 1988) (finding molestation of children by an employee of the YMCA an intentional act and excluded from coverage).

Similarly, in Lindheimer v. St. Paul Fire & Marine Insurance Co., 643 So.2d 636 (Fla. 3d DCA 1994), the Third District held that a dentist’s sexual assault on a patient after administering valium for a periodontal treatment was not covered under the terms of his professional liability policy. The courts have also excluded coverage for sexual harassment; the intent to harm the victim is inferred, as in sexual abuse cases. State Farm Fire & Cas. Co. v. Compupay, Inc., 654 So.2d 944, 947 (Fla. 3d DCA 1995).

While the Florida courts have yet to address whether insurance coverage exists for the negligent rape or sexual assault of an adult, other jurisdictions have declined to allow such coverage. See Belsom v. Bravo, 658 So.2d 1304, 1306 (La.App. 5th Cir.1995) (extending principle of inferred intent to acts of sexual assault regardless of age); Commercial Union Ins. Co. v. Sky, Inc., 810 F.Supp. 249, 253 (W.D.Ark.1992) (granting insurer’s motion for summary judgment finding no duty to defend insured in sexual harassment case; “it strains the imagination to speculate how a pattern of sexual overtures and touching can be ‘accidental’ ”); Alber v. Farm Bureau Mut. Ins. Co. of Mich., 441 Mich. 886, 492 N.W.2d 246 (1992) (finding sexual intercourse between insured and mildly retarded plaintiff not an “occurrence” within coverage of insured’s homeowners policy); Merced Mut. Ins. Co. v. Mendez, 213 Cal.App.3d 41, 261 Cal.Rptr. 273 (1989) (holding that acceptance of construction of the term “accident” under a homeowner’s insurance policy to include forced oral copulation or assault with intent to commit forcible oral copulation would “strain credulity”); Altena v. United Fire & Cas. Co., 422 N.W.2d 485 (Iowa 1988) (holding that homeowner insurance coverage is precluded by nonconsensual sexual acts); Allstate Ins. Co. v. S.F., 518 N.W.2d 37 (Minn.1994) (holding that as a matter of law claims of nonconsensual sexual assault and battery invoke the intentional injury exclusion); New York Underwriters Ins. Co. v. Doty, 58 Wash.App. 546, 794 P.2d 521 (1990) (precluding coverage for sexual assault and rape under intentional exclusion portion of homeowner’s insurance policies).

A liability insurance carrier must defend the insured only when the initial pleadings fairly bring the case within the scope of coverage. Pioneer Nat’l Title Ins. Co. v. Fourth Commerce Props. Corp., 487 So.2d 1051, 1054 (Fla.1986). However, if the pleadings show the applicability of a policy exclusion, the insurer has no duty to defend. Reliance Ins. Co. v. Royal Motorcar Corp., 534 So.2d 922, 923 (Fla. 4th DCA 1988). Thus, wording alone in a pleading does not create a duty to defend, regardless of its artfulness. See Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579, 582 (Fla. 4th DCA 2000) (holding that use of “buzz words” in a complaint will not trigger coverage when cause of action is for a non-covered act). The allegations within the complaint must state a cause of action that seeks recovery for the type of damages covered by the insurance policy in question. Grissom v. Commercial Union Ins. Co., 610 So.2d 1299, 1306-07 (Fla. 1st DCA 1992); accord Hunzinger Constr. Corp. v. Quarles & Brady Gen. P’ship, 735 So.2d 589 (Fla. 4th DCA 1999). The right to an early resolution of a coverage issue should turn on the merits — on whether a policy exclusion applies and not on creative pleading. Higgins, 788 So.2d at 1005.

A.J.’s novel pleading in her Sixth Amended Complaint will not be permitted to circumvent an insurance policy exclusion. A.J. alleges she was drugged without her knowledge with GHB, a drug with known dangerous side effects including extreme lethargy, memory loss, and, in some cases, loss of consciousness and respiratory distress. She further alleges she became incapacitated and was caused to engage without her consent in sexual acts in the parking lot of a nightclub in the early morning hours. A.J.’s allegation that Tippett and Hummel knew or should have known she was incapacitated by a drug placed in her drink by Tippet, Hummel, or a third party, but may neither have expected nor intended the resultant harm, bodily injury, or damage, is unreasonable and illogical.

As the Supreme Court of Florida held in Landis, the specific intent to commit harm is not required by the intentional acts exclusion in a homeowners policy, as “some form of harm inheres in and inevitably flows from the proscribed behavior.” 546 So.2d at 1053 (quoting Zordan ex rel. Zordan v. Page, 500 So.2d 608, 614 (Fla. 2d DCA 1986) (Frank, J., dissenting)).

Florida courts have unequivocally held that no insurance coverage exists for child molestation. The policy in this case does not provide insurance coverage for “negligent rape” or sexual assault of an incapacitated adult. Furthermore, public policy dictates against insuring for losses from intentional or criminal acts. If such insurance were available, the financial burden of the loss would shift from the wrongdoer to the insurer. Hrynkiw v. Allstate Floridian Ins. Co., 844 So.2d 739, 742 (Fla. 5th DCA 2003). We now hold that no coverage exists for the allegations in this case based upon the language found in the policy’s exclusion.

Accordingly, this court reverses the trial court’s entry of final judgment for the insureds, and remands for entry of summary final judgment in favor of State Farm.

WARNER and MAY, JJ., concur.

      . Pursuant to the "Personal Liability" section of the State Farm Homeowners Insurance Policy:
      If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:
      1. Pay up to our limit of liability for the damages for which the insured is legally liable; and
      2. Provide a defense at our expense by counsel of our choice ...
      Pursuant to the "Exclusions” section of the policy, coverage does not apply to the following:
      a. bodily injury or property damage:
      (1) which is either expected or intended by an insured; or
      (2) to any person or property which is the result of willful and malicious acts of the insured.
      The policy's definitions of bodily injury and occurrence are as follows:
      “Bodily injury” means physical injury, sickness, or disease to a person....
      "Occurrence”... means an accident, including exposure to conditions, which results in bodily injury or property damage.