author: KLEIN, J. FARMER, J., PER CURIAM.

text:
    FLORIDA MUNICIPAL INSURANCE TRUST, Appellant, v. VILLAGE OF GOLF, a municipal corporation, Appellee.
    No. 4D01-4892.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Order Denying Rehearing and Certifying Question Aug. 6, 2003.

      Michael T. Burke of Johnson, Anselmo, Murdoch, Burke & George, Fort Lauder-dale, for appellant.
    Kenneth G. Spillias, Kevin S. Hennessy and Eric Ash of Lewis Longman & Walker, PA., West Palm Beach, for appellee.
   KLEIN, J.

The primary issue we address in this appeal is whether an insurer, when the policy excludes coverage, can be estopped to deny coverage if it negligently investigates a claim before suit is filed, and the insured is prejudiced. The jury found appellant insurer was estopped from denying coverage, but the insurer argues that a verdict should have been directed in its favor. We conclude that estoppel can apply here, but reverse for a new trial because of an erroneous jury instruction.

The claim against the insured was that chlorine gas leaking from its water treatment plant damaged claimant’s pepper crop. The claimant, a neighboring farmer, notified the insured of the claim six days after the gas leak, and the insured immediately informed the insurer. Within a few days the insurer retained counsel and a field adjuster to investigate. The insurers settled several small claims of parties other than this claimant.

Three months later the claimant notified the adjuster of crop damage which he attributed to the chlorine, and the adjuster, who was not experienced in evaluating crop damage, visited the farm and took photographs.

About ten months after the leak the claimant’s attorney sent a letter claiming $1,600,000 in crop damage and, three months after that, filed suit. The insured promptly forwarded the letter as well as the complaint to the insurer. Two weeks later, the insurer notified the insured that there was no coverage because of the pollution exclusion contained in the comprehensive general liability policy. The insured then retained its own counsel and ultimately settled with the claimant for $237,500.

The insured then brought this suit against the insurer, claiming coverage, or in the alternative that it was prejudiced by the insurer’s inadequate investigation, which estopped the insurer from denying coverage. The jury found no coverage under the policy, but did find estoppel, awarding the insured the amount of the settlement, as well as attorney’s fees and litigation costs incurred in defending the claim.

The insured relies on the theory of es-toppel which this court first recognized in Florida in Cigarette Racing Team, Inc. v. Parliament Insurance Co., 395 So.2d 1238, 1239-40 (Fla. 4th DCA 1981), in which we explained:

The issue on appeal is whether this case is controlled by the general rule that insurance coverage cannot be extended by waiver or estoppel or the exception to the rule that, when an insurance company assumes the defense of an action with knowledge of the lack of coverage, it may be estopped to raise the coverage defense. Admittedly, the general rule is that the doctrines of waiver and estoppel will not operate to create coverage in an insurance policy where none originally existed. Six L’s Packing v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla. 4th DCA 1972), cert. discharged, 276 So.2d 37 (Fla.1973). There is an exception to the rule, however, which provides that “when an insurance company assumes the defense of an action, with knowledge, actual or presumed, of facts which would have permitted it to deny coverage, it may be estopped from subsequently raising the defense of non-coverage.” City of Carter Lake v. Aetna Casualty and Surety Co., 604 F.2d 1052, 1059 (8th Cir.1979). Accord, Pacific Indemnity Co. v. Acel Delivery Service, Inc., 485 F.2d 1169 (5th Cir.1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1974); Fidelity and Casualty Company of New York v. Riley, 380 F.2d 153 (5th Cir.1967); Insurance Company of North America v. National Steel Service Center, Inc., 391 F.Supp. 512 (N.D.W.Va.1975), aff'd, 529 F.2d 515 (4th Cir.1976). See also: 7C J. Appleman, Insurance Law and Practice, s 4692 (1979).

Cigarette Racing Team was approved by our supreme court in Doe for Doe v. Allstate Ins. Co., 653 So.2d 371 (Fla.1995). The court observed in Doe:

[T]he holding in Cigarette Racing Team properly takes into account the import of an insurer’s obligation to defend within a policy of liability insurance. This obligation has long been recognized by this Court. In fulfilling its promissory obligation to defend, the insurer employs counsel for the insured, performs the pretrial investigation, and controls the insured’s defense after a suit is filed on a claim. The insurer also makes decisions as to when and when not to offer or accept settlement of the claim.... This obligation amounts to a fiduciary duty requiring the exercise of good faith....
Thus, when the insurer undertakes the defense of a claim on behalf of one claiming to be an insured, we have recognized substantial duties on the part of both the insurer and the insured. If an insurer erroneously begins to carry out these duties, and the insured, as required, relies upon the insurer to the insured’s detriment, then the insurer should not be able to deny the coverage which it earlier acknowledged. However, we clearly state that the insured must demonstrate that the insurer’s assumption of the insured’s defense has prejudiced the insured. It is the fact that the insured has been prejudiced which estops the insurer from denying the indemnity obligation of the insurance policy, (citations omitted).

Doe, 653 So.2d at 373-74.

In the present case the insured, in order to demonstrate estoppel, presented the testimony of Richard Batterson, an expert in the handling and adjusting of claims. Batterson reviewed the pleadings in the claimant’s lawsuit, depositions, the insurer’s claims manual, various correspondence and the code' of ethics for adjusters. Bat-terson opined that the insurer did not properly handle the claim against the insured. He testified that insurer investigated and settled several small claims arising from the chlorine gas leak without issuing a reservation of rights letter which, he added, is the first thing the insurer should have done. Batterson further stated that without a reservation of rights the insured receives a false sense of security: the insured infers that coverage exists, that someone is settling its claims, and that it has protection. A reservation of rights also informs the insured of a potential disclaimer of coverage, affording it the opportunity to investigate the case on its own, hire its own lawyers, and obtain its own experts. Here, Batterson contended, insured did nothing because it felt it was protected under the insurance policy.

Batterson also stated that the adjuster should not have merely relied on the claimant’s representations, but should instead have investigated, taken recorded statements, and called in experts if needed, particularly where the adjuster is uncertain of damage causation. Here, the adjuster lacked experience with the type of claim at issue and should have retained an expert to analyze the crop.

Although Batterson admitted that no coverage existed under the policy because of the pollution exclusion, he gave the opinion that without a reservation of rights, carrier relinquished its right to exclude coverage.

The insurer argues that estoppel under Doe can apply only to conduct occurring after the insurer undertakes the defense of a lawsuit and that in this case all of the conduct alleged to constitute estoppel occurred prior to suit having been filed. We do not agree because we find nothing in Doe, or any other cases cited, which limits estoppel to conduct occurring after suit is filed.

As our supreme court explained in Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174 (Fla.1992):

[W]hen an insured has surrendered all control over the handling of a claim to the insurer, the insurer assumes “a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.” The insurer has the duty to investigate the facts and give fair consideration to the claims pending.

Id. at 176 (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)).

The undertaking of a defense includes both investigating the accident as well as defending the lawsuit. An investigation which negligently fails to preserve crucial evidence can be far more damaging to the ability of an insured to defend a claim than anything which occurs after suit is filed.

In the present case the insured presented evidence showing that when the insurer investigated, it was negligent in failing to determine if the crops were damaged by the chlorine leak. When, thirteen months later, the insurer first denied coverage, it was too late for the insured to do a proper investigation which could have put it in a stronger position to demonstrate that there was no causal relationship. The court did not, accordingly, err in submitting estoppel to the jury.

We do agree with the insurer, however, that the trial court erred in instructing the jury on section 627.426(2)(a), Florida Statutes (1995) which provides:

A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless within thirty days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery.

The “coverage defense” contemplated by this statute “means a defense to coverage that otherwise exists.” AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998, 1000 (Fla.1989). This statute does not, as AIU makes clear, apply where, as in this case, there is “a complete lack of coverage for the loss sustained.” Id. State Farm Mut. Auto. Ins. Co. v. Hinestrosa, 614 So.2d 633 (Fla. 4th DCA 1993)(section 627.426(2)(a) does not apply where there is no coverage under policy).

Instructing the jury on this statute was tantamount to telling the jury it had to return a verdict for the insured, because it was undisputed that the insurer had not complied with the statute. Accordingly, we cannot agree with the insured that the instruction was harmless.

The insurer also argues that it could be liable for a settlement of the claim only up to the $100,000 limit provided in our waiver of sovereign immunity statute, section 768.28. The insurer recognizes, however, that the claimant could receive compensation in excess of $100,000 through a claims bill. If the claimant were successful in having the legislature pass a claims bill, it would be paid with funds of the insured, not general revenue. See e.g., Bonvento v. Bd. of Pub. Instruction, 194 So.2d 605 (Fla.1967). We do not accordingly agree with the insurer’s argument that the insured’s liability for this claim was as a matter of law limited to $100,000.

We have considered the other issues raised by the insurer and find them to be without merit. We therefore reverse and remand for a new trial on count III of the complaint, which alleged estoppel.

LEVIN, STEVEN J., Associate Judge, concur.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

In spite of an insurance policy expressly excluding coverage for the claim sued on, the majority concludes that the carrier is estopped from denying coverage as a matter of law. Because the majority’s decision is contrary to the Florida Supreme Court decisions against creating insurance coverage by estoppel, I dissent.

At the beginning, it is appropriate to observe that this controversy does not involve an unsophisticated consumer buying, say, essential medical, automobile or homeowners insurance. Rather than an individual, the insured here is a municipal corporation. As a municipality, this city either employs experts on insurance or has access to them. Moreover, this particular city has a long affiliation with this particular insurance carrier, having purchased annual comprehensive general liability (CGL) policies from it for a number of years. This long relationship between insured and carrier was presumably profitable to both, but it is not likely to survive this decision.

The specific coverage at issue — a claim for damages from “pollution” as a result of the emission of a toxic substance — is one that seems to be generally excluded from CGL policies in Florida, probably because the carrier charges an additional premium for this kind of coverage. See Deni & Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998) (holding that CGL insurance policies’ pollution exclusions sufficiently barred coverage for claims arising from ammonia spilled from blueprint machine in office building and from an insecticide sprayed on bystanders). Rather than encouraging an insured in the position of this city— those who regularly use toxic chemicals— to have coverage for toxic emissions harming people and property, today’s decision may tempt other cities and corporations to forego paying the additional premium in the hope that they too can coax the coverage out of the judiciary.

The court’s largesse in giving coverage to an insured, who elected not to pay for it, is unusually misplaced in this case. The issue turns on the carrier’s conduct — long before any lawsuits were filed — in attempting to assist its insured by adjusting prospective claims after the escape of chlorine gas from the city’s water treatment plant. Even though coverage for the occurrence was clearly and unequivocally excluded by the CGL policy, the carrier foreswore “reserving its rights” and proceeded to assist its insured in dealing with its residents and citizens whose property or persons had been exposed to the emission.

In fact, the carrier even paid a number of claims, each small in amount, adding up to about $20,000. Doubtless, this was not simply the charitable bent of a beatific insurance carrier. Doubtless, the carrier wished its long relationship with the city to continue and thought that by assisting in the adjustment of small claims arising from the exposure, it could generate even longer lasting goodwill and further prolong what had been a profitable relationship. And doubtless, too, the city knew exactly what the carrier was doing and was not misled into believing that the policy was being effectually rewritten by the carrier’s solicitude.

The carrier’s initial handling of the prospective claim that ultimately did lead to a lawsuit against the insured is essentially this. Six days after the gas leak, the claimant, a grower of peppers, notified the insured of a potential claim for damages to its crops as a result of the chlorine exposure. In a conversation with the adjustor, claimant was not sure yet whether any crops had been actually damaged from the exposure. No amount of dollar loss was stated or discussed in this initial exchange. The carrier was not led to understand that the value of lost peppers was any greater than the other small claims carrier agreed to pay. In fact it was some ten months after the emission before the pepper grower specified for the first time that it would claim damages of $1.6 million. When the grower finally filed suit several months after that, the carrier promptly disclaimed coverage and a defense.

It needs to be said that the precise aspect of the carrier’s conduct said to result in the estoppel is both benign and understandable. For in its attempted adjustment of these small claims, the carrier is accused of not incurring the expense of hiring professionals familiar with this kind of toxic emission, and of not acquiring and assembling the full extent of evidence that would reveal or refute any damage caused by the emission. That is to say, a carrier who had not agreed to cover a claim, is accused of failing to act like a carrier who had agreed to cover the claim.

Notice what is not said. No one has accused the carrier of agreeing to preserve evidence which it then lost or destroyed. The carrier is not charged with spoliation of evidence. On the contrary, a carrier who was being a good citizen with its insured, by gratuitously paying several small claims that were clearly not covered by the policy, is accused of not making the substantial expenditures for the kind of investigation that would have been expected if there were coverage and there was a likelihood of litigation asserting some large claims. This is a curious basis on which to create insurance coverage by estoppel.

The insured’s claim of estoppel is based almost entirely on expert testimony. Its expert testified that shortly after the emission occurred and before any suits were filed the carrier should have: (1) determined coverage; (2) issued a reservation of rights letter; (8) refused to pay any claims without a reservation of rights; (4) hired an expert on plant biology and their reactions to toxic emissions; and (5) investigated and verified the statements of the pepper grower. The expert thought that without a reservation of rights letter an insured develops a false sense of security and comes to believe that coverage excluded by the policy nevertheless exists (presumably in spite of the clear policy language excluding coverage). Although he conceded that the pollution exclusion eliminated coverage for the chlorine emissions, he contended nevertheless that the carrier ultimately relinquished its right to exclude coverage by omitting to assert a “reservation of rights.”

Under this court’s disposition, what carrier faced with the same circumstance will now do anything to assist an insured similarly situated? Insurance carriers for cities and counties, and large corporations as well, will now tell their insured instead that there is no coverage, and therefore no assistance and no help, and that they will have to fend for themselves. Is this the kind of world the majority really wants to create? I daresay such a world conflicts with the one envisioned by the supreme court in its cases carefully limiting the circumstances on which insurance coverage can be created by estoppel.

In Florida, the rule is that waiver or estoppel cannot create or extend coverage. Doe v. Allstate Ins. Co., 653 So.2d 371, 373 (Fla.1995); AIU Ins. Co. v. Block Marina Inv., Inc., 544 So.2d 998 (Fla.1989); Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla.1987); Six L’s Packing Co. v. Fla. Farm Bureau Mut. Ins. Co., 268 So.2d 560, 563 (Fla. 4th DCA 1972), adopted, 276 So.2d 37 (Fla.1973). The insured argues, however, that the Claims Administration Statute (CAS) created a duty to defend the claimant’s lawsuit against the insured and that the violation of that duty resulted in an extension of coverage to the claim in suit. The insured places particular emphasis on the following CAS provision:

“A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless within thirty days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery....”

The insured entirely misunderstands the domain of the CAS, which has been authoritatively construed by the supreme court.

In fact, the same argument under the CAS was raised and rejected in AIU Insurance. There, the court held that the term “coverage defense” as used in the CAS does not refer to a clear exclusion from coverage or the utter failure of the policy to cover the claim in any sense. As the AIU Insurance court explained:

“construing the term ‘coverage defense’ to include a disclaimer of liability based on an express coverage exclusion has the effect of rewriting an insurance policy when the [CAS] is not complied with, thus placing upon the insurer a financial burden which it specifically declined to accept. Such a construction presents grave constitutional questions, the impairment of contracts and the taking of property without due process of law. Therefore, we hold that the term ‘coverage defense,’ as used in the [CAS], means a defense to coverage that otherwise exists. We do not construe the term to include a disclaimer of liability based on a complete lack of coverage for the loss sustained. Under this construction, for example, if the insurer fails to comply with the requirements of the statute, it may not declare a forfeiture of coverage which otherwise exists based on a breach of a condition of the policy. However, its failure to comply with the requirements of the statute will not bar an insurer from disclaiming liability where a policy or endorsement has expired or where the coverage sought is expressly excluded, or otherwise unavailable under the policy or under existing law.” [e.s.]

544 So.2d at 1000. Thus, as Judge Gunther also recognized for this court in Country Manors Ass’n v. Master Antenna Systems, Inc., 534 So.2d 1187, 1195 (Fla. 4th DCA 1988), “[a]n insurer does not assert a ‘coverage defense’ where there was no coverage in the first place.”

The AIU Insurance court also addressed whether its construction of the CAS was in conflict with its previous decision in Crown Life, one of the cases principally relied on by the insured and the majority. In Crown Life, the court was asked by certified question: “May the theory of equitable estoppel be utilized to prevent an insurance company from denying coverage?” In its initial short response, the court said: “For the reasons set forth below, we answer the certified question in the affirmative to the limited extent expressed herein.” [e.s.] 517 So.2d at 661.

In explaining its answer, the Crown Life court first began with the same general rule: namely, that “estoppel may be used defensively to prevent a forfeiture of insurance coverage, but not affirmatively to create or extend coverage.” 517 So.2d at 661. The court then recognized an exception to the general rule that:

“the doctrine of promissory estoppel, a qualified form of equitable estoppel ... applies to representations relating to a future act of the promisor rather than to an existing fact.”

517 So.2d at 661-62. The Crown Life’ court stressed, however, this is a limited exception that:

“only applies where to refuse to enforce a promise, even though not supported by consideration, ‘would be virtually to sanction the perpetration of fraud or would result in other injustice.’ ”

517 So.2d at 662. In applying the exception to the case then under review, however, the Crown Life court determined that the claimant had failed to prove even this limited estoppel by clear and convincing evidence and reversed the district court.

More recently, in Doe, the court discussed another limited exception to the rule that coverage will not be added by estoppel. This exception involves conduct by a carrier who has provided a defense of its insured after a claimant has brought suit for damages and the carrier has thereupon assumed control of the defense, even though the claim was excluded from or not covered by the policy. In approving this “negligent defense” exception, the court made clear that it is based on the carrier’s assumption of sole control of the defense of a disputed claim which results in prejudice to the insured in the defense of the suit.

This specific prejudice, the court Doe explained, is tied to the fiduciary nature of an insurance carrier’s defense of an insured in a lawsuit. The Doe court explained:

“In fulfilling its promissory obligation to defend, the insurer employs counsel for the insured, performs the pretrial investigation, and controls the insured’s defense after a suit is filed on a claim. ... This obligation amounts to a fiduciary duty requiring the exercise of good faith. The insured has the reciprocal obligation to allow the insurer to control the defense and to cooperate with the insurer.” [e.s., c.o.]

658 So.2d at 373-74. The Doe court added:

“Thus, when the insurer undertakes the defense of a claim on behalf of one claiming to be an insured, we have recognized substantial duties on the part of both the insurer and the insured. If an insurer erroneously begins to carry out these duties, and the insured, as required, relies upon the insurer to the insured’s detriment, then the insurer should not be able to deny the coverage which it earlier acknowledged. However, we clearly state that the insured must demonstrate that the insurer’s assumption of the insured’s defense has prejudiced the insured. It is the fact that the insured has been prejudiced which estops the insurer from denying the indemnity obligation of the insurance policy.” [e.s.]

653 So.2d at 374. The court emphasized that AIU Insurance and Crown Life are consistent with both Cigarette Racing Team and Doe. In other words, none of them change the basic thrust and broad application of the general rule of no coverage by estoppel.

Doe also cited Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174, 176 (Fla.1992), and Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). Shuster involves a bad faith claim by a physician against his medical malpractice carrier for settling and paying three claims made against him by his patients. Although he claimed that the carrier should not have settled these claims without first consulting him, the court concluded that the policy language gave the carrier “the discretion to settle cases for amounts within the policy limits, regardless of whether the claim is frivolous or not.” 591 So.2d at 177. Shuster does not support the majority’s conclusion. Boston Old Colony is but a mere expression of the possibility of the same exception without being applied to the case at hand.

In other words, the general rule of no insurance coverage by waiver or estoppel is broadly applied. Under the supreme court decisions, the exception must be narrowly employed and only to correct a manifest injustice arising from the carrier’s conduct that is either fraudulent in nature or perpetrates a substantial injustice on the insured. As the careful limitation on the exception suggests, the fear is that giving any estoppel a wide sweep would allow a broad rule with constitutional uncertainties to be supplanted by what is strictly intended to be a rare and limited remedy.

No one suggests that the fraud exception of Crown Life is even remotely applicable here. That leaves only the “negligent defense” exception discussed at length in Doe. The highlighted words I have quoted from that opinion betray the essential truth that its exception cannot come into play until there is a suit by a claimant against the insured. If in that circumstance, a carrier whose policy has clearly excluded the claim nevertheless assumes the defense of the claim to the prejudice of the insured, that carrier will not be heard to assert the exclusion.

But that exception has no application here because the carrier never assumed any defense of the insured. Within 15 days after the insured sent suit papers to the carrier, it denied both coverage and a defense of the pepper grower’s lawsuit. The Doe exception requires a real live civil action on the claim against the insured. See Smith v. Gen. Acc. Ins. Co. of Amer., 641 So.2d 123, 124 (Fla. 4th DCA 1994) (“The duty to defend is determined solely by the allegations in the complaint against the insured, not by the insured’s defenses.”).

Without a lawsuit on a claim making specific allegations against an insured that can be measured against the policy coverage, a claim is merely inchoate, a future event waiting to happen. There is no compulsion on the insured to pay an inchoate claim — no legal mechanism to force the insured to assume any obligation on it— until there is a lawsuit that might result in a judgment against the insured.

The majority seems to worry that the Doe exception might be abused by carriers if it should be limited only to the defense of suits brought against the insured. They seem to fear that presuit conduct by a carrier might nevertheless prejudice an insured. I can think of one circumstance where their fears have some validity. If the insured acquires evidence that might support the insured in any suit brought by a claimant, and entrusts that evidence to the carrier who then loses or destroys it, the insured ought to have some remedy from the carrier. I agree. And the remedy already recognized by the law is an action for spoliation of evidence. In this case, however, the record does not support the conclusion that the carrier lost or failed to preserve evidence entrusted to the carrier before any action on the claim was filed against the insured. In fact, the case below was tried not on the theory that the carrier lost evidence but on the theory that it was negligent in failing to investigate and acquire any.

The majority hold that the CAS has no application when the issue is estoppel to assert the absence of coverage. But the essential thrust of the CAS is precisely to address the circumstances when the carrier will be estopped to assert a policy provision. As AIU Insurance makes clear, however, the CAS cannot be used to create coverage by estoppel because to do so would raise constitutional defects by impairing an obligation of contract. Thus, the estoppel permitted by the CAS is limited to other policy clauses the breach of which may result in a forfeiture of coverage provided by the policy.

Under the CAS, no conduct of the carrier in good faith investigation of a possible claim against the insured can result in coverage where the policy explicitly excludes coverage for ' the claim. See § 627.426(l)(c) (“none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy: ... investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim.”). It is apparent that the insured’s theory of es-toppel is in direct conflict with this clear text from the CAS. Surely the supreme court did not mean to allow an estoppel on the basis of conduct clearly permitted by the CAS. Hence, there was no jury question presented, and thus the jury’s verdict does not matter. If it did, the evidence fails to support the claim of coverage by waiver or estoppel.

The insured also argues that the carrier’s failure to assert a reservation of rights during the presuit investigation results in coverage by waiver. That argument is also contrary to the CAS. Under the CAS, any delay in failing to assert a reservation of rights may result in an estoppel to assert one of the other policy provisions— e.g., a provision barring any settlement by the insured without the express consent of the carrier — but it cannot operate to create coverage by estoppel where the policy clearly excludes coverage for the particular claim. AIU Ins., 544 So.2d at 1000 (failure to comply with requirements of CAS will not bar insurer from disclaiming liability where coverage sought is expressly excluded). Thus, the testimony by the insured’s expert that a delay in reserving the right to disclaim coverage operates to prejudice the insured and therefore results in coverage by estoppel is at odds with existing law. It is therefore legally insufficient to create a factual issue.

I would reverse for the entry of judgment declaring that as a matter of law there can be no coverage by estoppel under the facts construed in favor of the insured. I would explicitly hold that a carrier who has clearly excluded coverage for a specific class of prospective claims owes no duty to its insured to spend money investigating such claims before any legal action is brought on it.

ON MOTIONS FOR REHEARING & CERTIFICATION

PER CURIAM.

We deny appellant’s motion for rehearing, but certify the following question as one of great public importance:

CAN THE ESTOPPEL THEORY APPROVED IN DOE v. ALLSTATE INSURANCE CO., 653 So.2d 371 (Fla. 1995), BE APPLIED TO CONDUCT ARISING OUT OF THE INSURER’S INVESTIGATION OF A CLAIM BEFORE THE CLAIMANT HAS FILED A LAWSUIT?

FARMER, C.J., KLEIN, J., and LEVIN, STEVEN J., Associate Judge, concur.

      . The relevant provision in the policy in question excludes coverage for:
      "any claim for bodily injury or property damage (including the loss and use thereof) caused by, contributed to or arising out of the actual or threatened discharge, dispersal, release, or escape of smoke, vapors, soot, fumes acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, pollutants or contaminants into or upon the land, the atmosphere or any course or body of water, whether above or below the ground.”
      The claim here was based on a leak of chlorine gas from the water treatment plant operated by the city. A neighboring property owner who grows peppers commercially claimed that the gas leak destroyed its crop. It is indisputable that the unplanned discharge of the chlorine gas from the city’s water treatment plant is well within this pollution exclusion.

      . Pollution coverage in this case should not be seen as a mere afterthought by an unsuspecting insured who had no basis to anticipate a need for such coverage. This city operates a water treatment plant in which it routinely uses toxic chemicals.

      . If expert testimony is accurate, the science is against the grower. It appears that chlorine damage to crops manifests itself within hours or a few days and should have been obvious — if it occurred — by the time the grower first notified the insured and carrier.

      . This expert does not purport to explain why the law should prefer "false sense of security” as against clear contractual language to the contrary.

        . § 627.426, Fla. Stat. (1995). The incident occurred in 1995.

        . § 627.426(2)(a), Fla. Stat. (1995).

      . To be sure, Crown Life is a tortured decision. The court was split 4-3, with no less than three opinions attempting to justify the creation of the "fraud” estoppel exception. Only two justices joined in the "majority” opinion, each of the other two in the majority writing their own opinions. While close decisions are nonetheless still precedent for the result joined in by the simple majority, it is questionable whether much more than the simple recognition of the fraud exception should be gleaned from any of this.

      . The supreme court derived this exception from our decision in Cigarette Racing Team, Inc. v. Parliament Ins. Co., 395 So.2d 1238 (Fla. 4th DCA 1981).

      . Nothing in Shuster even remotely suggests that the carrier may be estopped' to deny coverage simply because of negligence in investigating a prospective claim before any suit has been filed.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Maribel FARINAS and Margarita Farinas, Susan Walker, individually, and as representative of the Estate of Margaux Schehr, Rochelle Slosberg, individually, Irving Slosberg, individually, and as representative of the Estate of Dori Slosberg, Emily Slosberg, individually, and Ligia Gallego, individually, and as representative of the Estate of Carolina Gil, Appellants, v. FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, Nicholas Frank Copertino and Nicholas T. Copertino, Appellees.
    Nos. 4D02-11, 4D02-96.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Order Denying Rehearing and Certifying Question July 9, 2003.

      Gary E. Sherman of the Law Offices of Gary E. Sherman, P.A., Fort Lauderdale, for appellants Maribel Farinas and Margarita Farinas.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens and Brian J. Glick of Glick Law Offices, Boca Raton, for appellants Susan Walker, Estate of Margaux Schehr, Rochelle Slosberg, Irving Slosberg, Estate of Dori Slosberg, Emily Slosberg, Ligia Gal-lego and Estate of Carolina Gil.
    Louis K. Rosenbloum of Louis K Ro-senbloum, P.A., Pensacola, for Amicus Curiae The Academy of Florida Trial Lawyers.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, J. Michael Burman of Burman, Critton, Luttier & Coleman, P.A., West Palm Beach, Greg M. Gaebe of Gaebe, Murphy, Mullen & Anto-nelli, Coral Gables, and Donald H. Parting-ton of Clark, Partington, Hart, et. al., Pensacola, for appellee Florida Farm Bureau General Insurance Company.
    Sylvia H. Walbolt, and F. Townsend Hawkes of Carlton Fields, P.A., Tallahassee, and Alfred J. Saikali of Carlton Fields, P.A., Miami, for Amicus Curiae Florida Defense Lawyers Association and American International Companies.
   PER CURIAM.

This consolidated appeal arises from litigation regarding a February 23, 1996 car accident. Nicholas Copertino lost control of his car and crossed a median, hitting an oncoming car. This tragedy resulted in the unfortunate deaths of five teenagers and severe injuries to another seven, including Copertino and a 14-year-old girl rendered a quadriplegic. Copertino’s liability for those resulting injuries was not in question.

Copertino was covered by his father’s Florida Farm Bureau General Insurance Company (“Farm Bureau”) policy with bodily injury limits of $100,000 per claim and $300,000 per accident. Consequently, with the five death claims and seven significant personal injury claims, the policy limits were plainly inadequate.

Farm Bureau settled for the limits with Lisa Boccia, the driver of the other car, and the Rashidian and Cordes estates, two of the death claims, by March 8, 1996. After exhausting the limits, Farm Bureau filed a declaratory judgment action in July 1996 against the insured, the Copertinos, to determine whether it had any further duty to defend the Copertinos after having paid the policy limits. Appellants intervened and ultimately all filed third-party bad faith actions alleging that Farm Bureau entered into settlements without due regard for the interests of the insured.

Farm Bureau moved for summary judgment against all appellants, and the Fari-nases moved for cross-summary judgment. The trial court granted summary judgment to Farm Bureau as to all the appellants and denied the Farinases’ summary judgment. Now, all appellants seek review of the summary judgment granted to Farm Bureau, and the Farinases also seek review of the denial of their summary judgment.

We are confronted with three questions: 1) what was Farm Bureau’s good-faith duty to the insured, the Copertinos, in a multiple claimant situation, 2) did Farm Bureau meet that duty and 3) are there any remaining issues of fact for a jury to determine.

A brief background of insurance good-faith law is necessary to provide context for our analysis. Good-faith law in Florida evolved as liability insurance policies began to replace traditional indemnity policies.

Under liability policies, however, insurance companies took on the obligation of defending the insured, which, in turn, made insureds dependent on the acts of the insurers; insurers had the power to settle and foreclose an insured’s exposure or to refuse to settle and leave the insured exposed to liability in excess of policy limits. This placed insurers in a fiduciary relationship with their insureds similar to that which exists between an attorney and client. Consequently, courts began to recognize that insurers “owed a duty to their insureds to refrain from acting solely on the basis of their own interests in settlement.” This duty became known as the “exercise of good faith” or the “avoidance of bad faith.” Under this new standard of culpability, if an insurer was found to have acted in bad faith, the insurer would have to pay the entire judgment entered against the insured in favor of the injured third party, including any amount in excess of the insured’s policy limits. This type of claim became known as a third-party bad faith action.

State Farm Mut. Ins. Co. v. Laforet, 658 So.2d 55, 57-58 (Fla.1995).

Even though the bad faith occurs between the insurer and its named insured, Florida law allows the injured third party insured to bring an action directly against the insurer. See Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla.1971). The rationale behind this procedure is that the injured party, as the beneficiary of any successful bad faith claim, is the real party in interest as a sort of judgment creditor. See id. at 264.

In 1982, the Florida legislature enacted section 624.155, which created a statutory bad faith claim and extended the claim to the first-party insureds. See § 624.155, Fla. Stat. (Supp.1982). A 1990 amendment noted the existence of common-law bad faith and added that a person may obtain a judgment under either the common law remedy or the statutory remedy, but not both. See § 624.155, Fla. Stat. (Supp. 1990). The third district has determined that this statutory obligation did not change the common law obligation of good faith or the measure of damages. See Hollar v. Int’l Bankers Ins. Co., 572 So.2d 937, 939 (Fla. 3d DCA 1990). All the appellants in the present case, except the Farinases, grounded their claims on both the common law and statutory standards.

The Florida Supreme Court announced the case law standard for insurer good faith in Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). The general standard of care that the insurer must exercise when handling claims against the insured is “the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Id. at 785 (citation omitted). Because the insured has relinquished control of all decisions regarding claims to the insurer, the insurer’s standard of care requires the insurer to act “in good faith and with due regard for the interests of the insured.” Id. (citation omitted). The extent of this good faith duty is explicitly defined in detail by the court:

This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid the same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.

Id. (citations omitted). The determination of whether an insurer has satisfied this standard is one for the jury. Id. (citation omitted).

This standard of care is further reflected in the applicable Florida Statute, which states that an insured has a cause of action for bad faith, when the insurer did not attempt “in good faith to settle claims when, under all circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for her or his interests.” § 624.155(b)(1), Fla. Stat. (2002).

Both prior and subsequent to the Florida Supreme Court’s decision in Boston Old Colony, courts have recognized attendant duties of good faith under Florida law. The United States Court of Appeals for the Fifth Circuit, when interpreting Florida bad faith law in a diversity action, concluded that the jury is to decide whether an insurer has given inappropriate primary regard to his own interests over those of the insured in making a settlement determination. Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475, 480 (5th Cir.1969). Additionally, when there are multiple claimants ánd minimal policy limits, “it follows that, insofar as the insureds’ interest governs, the fund should not be exhausted without an attempt to settle as many claims as possible.” Id. at 481. More recently, the Florida Supreme Court augmented its decision in Boston Old Colony, by specifically addressing a multiple claimant situation involving a “deems expedient” clause, much like the present case. Shuster v. S. Broward Hosp. Dist. Physicians’ Prof'l Liab. Ins. Trust, 591 So.2d 174 (Fla.1992).

For example, when there are multiple parties to a suit, we do not believe a “deems expedient” clause will protect an insurer who, in bad faith, indiscriminately settles with one or more of the parties for the full policy limits, thus exposing the insured to an excess judgment from the remaining parties. Clearly, the intent of the parties would not have been to • allow the insurer to escape its primary duty to defend and indemnify the insured merely by paying out the full sum of the policy limits in bad faith.

Id. at 177 (citations omitted). Although Shuster approves of an insurance company settling claims within policy limits, there is nothing in Shuster that states the insurer is not subject to a good faith duty to the insured. Shuster states that “an insured’s good faith discretion is broader when deciding to settle a claim within the policy limits than when refusing to settle or defend a claim.” Id. at 176 (citing Gardner v. Aetna Cas. & Sur. Co., 841 F.2d 82 (4th Cir.1988)). Stating that discretion is broader when an insurer settles a claim necessarily implies that what discretion exists, although broad, is not unbridled and is limited by some duty.

On the opposing side of the coin to the Florida Supreme Court’s evolving articulation of insurer good faith standards, is the Second District Court of Appeal decision in Harmon v. State Farm Mutual Automobile Insurance Co., 232 So.2d 206 (Fla. 2d DCA 1970). The case raised an issue of first impression:

Whether an insurance company may settle with two insureds in the full amount of the policy limits, thereby exhausting the limits of the policy to the exclusion of another insured under the uninsured motorist provisions of said policy.

Id. at 207. The court reviewed case precedent from other states and concluded that:

It is generally held that where multiple claims arise out of one accident, the liability insurer has the right to enter reasonable settlements with some of those claimants, regardless of whether the settlements deplete or even exhaust the policy limits to the extent that one or more claimants are left without recourse against the insurance company.

Id. at 207-208 (citations omitted). The trial court in the present case found this argument to be persuasive and relied upon it in determining that Farm Bureau acted within its rights when settling with three of the possible claimants.

On their faces, Boston Old Colony and related cases seem irreconcilably opposed to Harmon. Boston Old Colony provides that an insurer must conduct a full investigation of all competing claims arising out of an accident before endeavoring to settle any one individual claim, while keeping the insured informed at all junctures of the process. Harmon provides that an insurer may pick and choose which claims to settle based on any strategy it deems expedient, as long as those choices are reasonable. The trial court in the present case believes that it can decide which of these standards to apply. However, this is not the case, because the two cases are capable of harmonization.

Boston Old Colony and Harmon provide a general rule and a more specific application of that rule. The rule in Boston Old Colony sets a standard applicable in all automobile insurance bad faith cases, regardless of the factual circumstances and legal nuances of the cases. The Harmon rule focuses on the standard in scenarios with multiple competing claims. Therefore, the Boston Old Colony standard applies to all Florida cases alleging insurer bad faith, and Harmon applies to the subset of those cases involving multiple competing claims. Under this rationale, the present case is subject to both standards.

Farm Bureau was required by Boston Old Colony to fully investigate all the claims at . hand to determine how to best limit the insured’s liability. Additionally, based on Davis, Farm Bureau' should have sought to settle as many claims as possible within the policy limits. Finally, based on Shuster, Farm Bureau had the duty to avoid indiscriminately settling selected claims and leaving the insured at risk of excess judgments that could have been minimized by wiser settlement practice. Whether Farm Bureau satisfied each of these requirements, are questions for a jury to decide.

Additionally, Farm Burean, by virtue of having a policy with the insured, had primary control of claims settlement placed in its hands by the insured. This fact gives Farm Bureau a certain degree of discretion in deciding how to approach decisions of settlement and defense with regard to the multiple claims in the present case. Based on Harmon, Farm Bureau could have entered into reasonable settlements with some claimants to the exclusion of others based on an exercise of its discretion. However, Farm Bureau, and the trial court, are not free to overlook the fact that Harmon requires these settlements to be “reasonable,” as part of the insurer’s fiduciary duty to the insured. However, the Second District Court of Appeal did not define “reasonable” in Harmon. Therefore, reasonableness must be determined based on some external source of authority, and in the present case, the general rules of Boston Old Colony and Florida Statutes section 624.155(b)(1) provide that very guidance.

Harmon may apply to the case at hand, but Farm Bureau’s decisions under its authority are subject to Boston Old Colony’s definition of reasonable standard of care and associated requirements. After full investigation and communication with the insured, Farm Bureau could have elected to follow a strategy of settlement with selected claimants, if that policy were reasonable. The reasonableness of that policy is also a question for the jury, one subject to the constraints of Boston Old Colony and related cases and statutes.

Because the necessary determinations of reasonableness were dispensed with by the trial court due to its reliance on Harmon, factual issues remain to be resolved by a jury.

We now answer the three questions posed for resolution by this opinion. First, Farm Bureau’s good faith duty to the insured requires it to fully investigate all claims arising from a multiple claim accident, keep the insured informed of the claim resolution process, and minimize the magnitude of possible excess judgments against the insured by reasoned claim settlement. This does not mean that Farm Bureau has no discretion in how it elects to settle claims, and may even choose to .settle certain claims to the exclusion of others, provided this decision is reasonable and in keeping with its good faith duty. Second, whether Farm Bureau has met its good faith duty and undertaken a reasonable claims settlement strategy are questions for a jury to decide. Consequently, in answer to the third question, there are many factual issues for the jury to resolve, including whether Farm Bureau’s quick settlement with three of the possible claimants was reásonable, whether Farm Bureau’s rejection of global and other settlement options contemplated the best interests of the insured, whether Farm Bureau adequately investigated the facts of all of the claims, and whether Farm Bureau properly rejected advice of legal counsel and suggested settlement strategies proposed by Farm Bureau employees.

As a result, we reverse the summary judgment in favor of Farm Bureau, affirm the denial of the Farinases’ motion for summary judgment, and remand for jury trial. We affirm all other aspects of the appeal without comment.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED FOR JURY TRIAL.

POLEN, C.J., GUNTHER and SHAHOOD, JJ., concur.

MOTION FOB REHEARING, REHEARING EN BANC AND CERTIFICATION

PER CURIAM.

We deny Florida Farm Bureau’s Motion for Rehearing and Motion for Rehearing En'Banc. However, in light of the fact that automobile accidents involving multiple claims and' inadequate policy limits are likely to lead to fecurrent lawsuits raising similar issues in the future, we grant Florida Farm Bureau’s Motion for Certification and certify the following question as one of great public importance:

IN AN AUTOMOBILE ACCIDENT SCENARIO INVOLVING CLEAR LIABILITY, MULTIPLE CLAIMS, AND INADEQUATE POLICY LIMITS, DOES INSURANCE GOOD FAITH LAW REQUIRE THAT AN INSURER REASONABLY INVESTIGATE ALL CLAIMS PRIOR TO PAYMENT OF ANY CLAIM, KEEP THE INSURED INFORMED OF THE CLAIMS RESOLUTION PROCESS, AND ATTEMPT TO MINIMIZE THE MAGNITUDE OF POSSIBLE EXCESS JUDGMENTS AGAINST THE INSURED?

GUNTHER, POLEN and SHAHOOD, JJ., concur.


author: TAYLOR, J.

text:
    Antonio CIOETA, Appellant, v. ESTATE OF Jerome LINET, Appellee.
    No. 4D02-2813.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Rehearing Denied Aug. 18, 2003.

      Peter J. Forman and Arin S. Miller of Tescher, Gutter, Chaves, Josepher, Rubin, Ruffin & Forman, P.A., Boca Raton, and Law Offices of Frederic M. Klein, P.A., Boca Raton, for appellant.
    Manley H. Thaler and Margarita P. Muina of Thaler & Thaler, P.A., Boca Ra-ton, for appellee.
   TAYLOR, J.

Anthony Cioeta appeals an order admitting a will and first codicil to probate and appointing personal representatives in the Estate of Jerome Linet. We reverse, because the decedent’s attempted partial revocation of the first codicil is invalid, thus requiring probate of the unaltered first codicil.

On January 6, 1989, Jerome Linet executed his Last Will and Testament. He appointed Louis Claps, Maurice Lopatin, and appellant as co-personal representatives. On December 29, 1992, Mr. Linet executed a first codicil to his will, re-appointing Claps, Lopatin, and appellant, and adding Chase Manhattan Bank of Florida, N.A. as co-personal representatives.

Mr. Linet died on March 13, 2002. On April 16, 2002, Claps and appellant filed a Petition for Administration as co-personal representatives of the decedent’s estate. A few weeks later, Harry and Rhonda Linet, the decedent’s son and daughter and sole beneficiaries of the estate, objected to the petition, asserting that decedent marked through his designation of appellant as co-personal representative in a first codicil to the will. At the time of the petition, Claps and appellant were unaware of the codicil’s existence.

The First Codicil to the Last Will and Testament of Jerome Linet, dated December 29,1992, provides:

I hereby nominate, constitute and appoint LOUIS CLAPS, MAURICE LO-PATIN, ANTHONY CIOETA and THE CHASE MANHATTAN BANK OF FLORIDA, N.A. as co-Personal Representatives of this my Last Will and Testament and direct that they shall not be required to furnish a bond for the faithful performance of their duties as Personal Representatives....

However, the beneficiaries produced a copy of the first codicil, on which the names of Maurice Lopatin, Anthony Cioe-ta, and Chase Manhattan Bank were lined through. Next to the stricken names, in the left margin, appeared the word “deleted,” the date “6-21-96,” and the decedent’s signature. There were no witnesses to the purported signature and the decedent’s signature was not at the end of the document.

On May 6, 2002, the beneficiaries filed their own petition for administration, to which Claps and appellant objected. At a hearing on May 21, 2002, appellant argued that the alleged attempted alteration of the codicil was invalid under Florida law. The court determined, however, that the beneficiaries should be appointed as co-personal representatives, along with Claps, and that appellant should be excluded.

On May 31, 2002, appellant and Claps filed a petition for administration and enforcement of the original will and codicil, as unaltered. In their petition, they asserted that the alleged attempted alteration was invalid under section 732.505, Florida Statutes, and sought their appointment as co-personal representatives.

On June 6, 2002, the court issued an order admitting to probate the will and first codicil (as altered) and appointing Claps and the beneficiaries as co-personal representatives, but excluding appellant. Appellant’s motion for rehearing was denied.

Appellant argues that the partial revocation of decedent’s first codicil was ineffective because it did not strictly comply with Florida’s testamentary statutes. We agree.

“It is well settled that strict compliance with the will statutes is required in order to effectuate a revocation of a will or codicil.” Estate of Tolin, 622 So.2d 988 (Fla.1993). Here, the decedent attempted to partially revoke a codicil by subsequent writing. “Florida law does not allow the partial revocation of a will in the absence of compliance with the statutory requirements for revocation.” Taft v. Zack, 830 So.2d 881 (Fla. 2d DCA 2002).

Section 732.505, Florida Statutes, provides:

A will or codicil, or any part of either, is revoked:
(2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.

Section 732.502 provides:

Every will must be in writing and executed as follows:

(1)(a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses. — The testator’s:
1. Signing, or
2. Acknowledgment:
a. That he or she has previously signed the will,

or

b. That another person has subscribed the testator’s name to it,

must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures. — The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(3) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.
(4) A codicil shall be executed with the same formalities as a will.

If the decedent failed to observe the formalities for execution of a will specified in section 732.502, his attempt at a partial revocation must be declared invalid. See Estate of Shifflet, 170 So.2d 96, 98-99 (Fla.App. 3d DCA 1965). When an attempted partial revocation of a will or codicil is invalid, the will or codicil as originally written must be admitted to probate. Id.

Taft is a recent case involving an attempted partial revocation by physical act. There, the decedent, as in this case, drew a line through the name of the personal representative and next to it wrote the word “void” and her initials. The second district concluded that this attempt to partially revoke the will was ineffective because the decedent failed to comply with these statutory requirements: the decedent did not sign the altered will at the end; her name was not subscribed at the end of the will by another person in her presence and at her direction; and there were no attesting witnesses to the altered will.

Taft is on all fours with this case. Here, the decedent’s attempt to revoke a portion of' his first codicil by lining through the names of three designated personal representatives and placing the word “deleted,” his signature, and date in the adjoining margin failed to meet the mandatory will formalities of section 732.502. The decedent did not sign the altered first codicil at the end of the document, and he had no attesting witnesses to the attempted partial revocation. Consequently, his attempted partial revocation must be ruled invalid.

Accordingly, we reverse the order and remand with instructions to the trial court to admit the decedent’s first codicil, as unaltered, and appoint only the personal representatives named therein. See Schleider v. Estate of Schleider, 770 So.2d 1252 (Fla. 4th DCA 2000)(“The general rule of law is that trial courts do not have discretion to refuse to appoint the personal representative named by the testator in the will unless that person is disqualified by law. Clearly, the testator’s selection of a personal representative should be afforded great deference. Only in exceptional circumstances does a court have the discretion to refuse to appoint a person as personal representative who was named in the decedent’s will.” (citations omitted)).

REVERSED and REMANDED for further proceedings consistent with this opinion.

GUNTHER, J. and TOBIN, VICTOR, Associate Judge, concur.

      . Maurice Lopatin predeceased the decedent.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Shannon D. SMITH a/k/a Benjamin D. Smith, Appellee.
    No. 2D01-2138.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    Rehearing Denied July 23, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, Bartow, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Ap-pellee.
   DAVIS, Judge.

The State appeals the trial court order granting Smith’s motion to suppress a baggie of cocaine found on the ground where he allegedly dropped it while fleeing police. We reverse.

It was revealed at the suppression hearing that Officer Vasquez and three other officers, all wearing raid gear, arrived in a high drug area in separate unmarked cars. As the officers pulled up near Smith, he turned and looked at them. Officer Vasquez said that Smith looked surprised when he saw the officers. He also said that their raid gear was visible. Smith immediately began walking away from the officers while forcefully shoving his hand into his right front pocket. As Officer Vasquez exited his vehicle he told Smith to “stop, police.” Smith simultaneously made a dropping or throwing motion and started to run. The officer did not see any object actually drop. Smith was subsequently apprehended, and another officer retrieved a baggie of cocaine at the spot where Smith made the dropping motion.

The trial court granted Smith’s motion to suppress without making any findings of fact. In reviewing the trial court’s determination on a motion to suppress, we consider the trial court’s findings of fact pursuant to the competent, substantial evidence standard; the trial court’s legal conclusions are reviewed de novo. Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

First, our review of the record reveals that, contrary to defense counsel’s argument, the initial stop was justified. Pursuant to Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), unprovoked flight from officers in a high drug area supports a reasonable suspicion that the defendant was involved in criminal activity. In Copeland v. State, 756 So.2d 180, 181 (Fla. 2d DCA 2000), this court extended Wardlow to apply to a situation where the defendant did not run, but rather

began backing away from the officers, looking nervous. He positioned himself so that he was standing behind a woman, thus placing the woman between himself and the officers. Mr. Copeland also concealed his hands behind his back, leading at least one officer to be concerned that he might have a weapon.

In Copeland this court found no meaningful distinction between the facts in Copeland and those in Wardlow. Noting that Copeland did not engage in flight, this court observed that while “Mr. Copeland’s conduct was not flight, ... it was equally unusual, suspicious behavior.” 756 So.2d at 181.

We can see no meaningful distinction between the instant case and Copeland because Smith’s behavior, quickly walking away while forcefully shoving his hand into his pocket and looking surprised, was “equally unusual, suspicious behavior” that justified the stop. Id.

However, even if the stop was not justified, pursuant to Abdullah v. State, 745 So.2d 582 (Fla. 1st DCA 1999), once Smith began to run, the seizure was terminated, so that whatever he dropped was considered abandoned and therefore admissible. The officer here testified that as he told Smith to stop, Smith simultaneously began to run, dropping something as he went. Smith’s act of running thus terminated the seizure, rendering the dropped baggie admissible.

Finally, we conclude that the officer’s inability to see anything actually drop from Smith’s hand, under the particular circumstances of this case, was not fatal. Pursuant to C.H.S. v. State, 795 So.2d 1087 (Fla. 2d DCA 2001), while mere proximity to contraband will not support its admission, contraband may be admissible where there are other links between the contraband and the defendant. The record reveals that the officer clearly saw Smith forcefully reaching into his pocket immediately before Smith made the dropping motion. The only item on the ground where Smith had been was the baggie of cocaine. There were no other individuals around. The cocaine was found by the other officer shortly after Smith was apprehended. We believe that, as in C.H.S., 795 So.2d 1087, circumstantial evidence eliminated other reasonable hypotheses of innocence because there were sufficient links between Smith and the contraband for the jury to conclude that Smith dropped the baggie on the ground as he began to run. We therefore conclude that the trial court erred in its legal conclusions that the stop was improper and that the baggie of cocaine should have been suppressed.

Reversed and remanded.

FULMER and KELLY, JJ., concur.


author: PER CURIAM.

text:
    Robert SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0524.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s April 14, 2003 order, we dismiss this appeal for lack of jurisdiction.

DISMISSED.

BARFIELD, WOLF and DAVIS, JJ., concur.


text:
    ZENITH INSURANCE COMPANY, as Successor in Interest to Riscorp Insurance Company, a Florida corporation f/k/a Commerce Mutual Insurance Company, an Assessable Mutual, f/k/a Commerce Mutual Insurance Company, Appellant, v. COMMERCIAL FORMING CORPORATION, a Florida corporation, Appellee.
    No. 2D02-2352.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Rehearing Denied July 22, 2003.

      Joel W. Walters and Steven C. Allender, of Walters Levine Brown Klingensmith & Thomison, P.A., Sarasota, for Appellant.
    Adam C. Linkhorst and Stuart H. Sak-wa, of Leiby Taylor Stearns Linkhorst and Roberts, P.A., Fort Lauderdale, for Appel-lee.
   DAVIS, Judge.

Zenith Insurance Company appeals the trial court order that transferred venue of its action against Commercial Forming Corporation to Broward County. Because we conclude that the venue provision contained in the application for insurance was a part of the insurance policy, we reverse the trial court’s order transferring venue in contravention of that venue provision.

In 1994, Commercial completed an application for workers’ compensation insurance coverage with Riscorp Insurance Company, the predecessor, of Zenith. Pursuant to that application, Riscorp insured Commercial for the policy year September 30, 1994,. through September 30, 1995. Commercial renewed the coverage policy for the year September 30, 1995, through September 30, 1996. In 2001, Zenith, as the successor to Riscorp, filed suit against Commercial in Sarasota County in accord with the application’s venue provision. Zenith sought to collect unpaid premiums for the policy year 1995-96. The complaint specifically alleged that Sarasota County was the proper venue because the application contained a provision that limited venue for litigation regarding the terms of the policy, including suits for collection of unpaid premiums, to Sarasota County.

Commercial objected to the venue being placed in Sarasota County, arguing that the venue provision in the application did not apply because the application was not part of.the actual insurance policy. Commercial cited the following policy language in support of its'argument:

This Policy includes at its effective date the Information Page and all endorsements and schedules listed there ... The only agreements relating to this Insurance are stated in this policy. The terms of this policy may not be changed or waived except by endorsement issued by us to be part of this policy.

Commercial argued further that even if the application and the venue provision did apply to and become a part of the 1994-95 policy, it did not become a part of the 1995-96 policy and thus did not apply to the disputed 1995-96 premium, because Commercial did not submit a new application for that policy, term. The trial court agreed with Commercial that the venue provision contained in the 1994-95 application did not apply to the 1995-96 policy and ordered that venue be transferred to Broward County in accord with Commercial’s request. This was error.

Florida law provides that an insurance contract is to be “construed according to the entirety óf its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto-.” § 627.419(1), Fla. Stat. (1993). Over thirty years ago, the Florida Supreme Court read this language to say: “The application thus becomes a part of the agreement between the parties and the policy together with the application form the contract of insurance.” Mathews v. Ranger Ins. Co., 281 So.2d 345, 348 (Fla.1973). The trial court thus erred in concluding that the 1994-95 application did not become a part of the 1994-95 policy.

The remaining issue is whether the terms of the application also apply to the renewed 1995-96 coverage. We conclude that they do. First, the terms of the application itself anticipate renewals. Paragraph (e) of the application provides: “That the Rating Information and/or [ (Accord 130-FL(1/91)) ] Renewal Certificates, when completed and returned to us by RISCORP of Florida, become part of this agreement.” Second, the provisions of the Florida Administrative Code governing the workers’ compensation insurance industry indicates that new applications are not required when coverage, is renewed. Fla. Admin. Code Ann. R. 4-189.003(2)(a). Finally, unless notice is given to the contrary, upon renewal of coverage by the payment of the new premium, the parties are entitled to assume that the terms of the renewed policy are the same as those in the original contract. Marchesano v. Nationwide Prop. and Cas. Ins. Co., 506 So.2d 410 (Fla.1987).

Accordingly, the trial court erred when it determined that the venue provision contained in the 1994 application did not apply to the coverage agreement for the policy year 1995-96. We reverse and remand for further proceedings.

WHATLEY and KELLY, JJ., concur.


author: HARNAGE, HENRY H., Associate Judge.

text:
    Jack Georg GUSTAVSSON, Appellant, v. WASHINGTON MUTUAL BANK, F.A., Appellee.
    No. 4D02-1313.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied Aug. 12, 2003.

      Theresa L. Fiset of The Yerrid Law Firm-and Marsha Rydberg of the Rydberg Law Firm, P.A., Tampa, for appellant.
    Martin J. Alexander, Scott B. Newman, Debra L. Lowman, and Jason Lazarus of Holland & Knight, LLP, West Palm Beach for appellee.
   HARNAGE, HENRY H., Associate Judge.

Jack Georg Gustavsson [Gustavsson] appeals an order granting Washington Mutual Bank, F.A.’s motion to compel arbitration, which order stayed the trial proceedings in circuit court.

Gustavsson contends the trial court erred in finding he had agreed to terms found in the Bank’s Disclosure statement, which included an arbitration agreement when he never received either the reverse side of the Signature Card and Agreement, or the Disclosure statement. We agree and reverse, finding no enforceable agree-' ment to arbitrate existed between the parties.

BACKGROUND

Relevant Facts

In November 1996, Gustavsson allegedly opened three accounts in his own name: Account A (the only account of the three referenced on the Signature Card and Agreement); Account B (which account Gustavsson claims was opened without his knowledge or consent); and Account C (funded within weeks by an approximate sum of $367,000). Gustavsson requested that all of his account documents and statements be held at the .Bank.

On November 14, 1996, Gustavsson wired approximately $230,000 to fund Account A. The next day, a vice-president of the Bank sent to him in Sweden a two-page facsimile including the front side of the Bank’s Signature Card and Agreement for Account A, and. a Declaration of Non-residency form. The Bank did not include a copy of either the reverse side of the Signature Card and Agreement (which included the reference to the Disclosure statement) or the Disclosure statement itself. Gustavsson signed the Signature Card and Agreement and returned it and the Declaration of Non-Residency to the Bank, with a cover letter inviting the Bank to contact him for “any questions.”

Three years later in late 1999, he sought to withdraw money from the Bank. Instead of finding a balance of $658,000, he found $200. Gustavsson alleged that the Bank had improperly funneled money from his two accounts into the account of an individual who was a mutual friend of his and the Bank’s vice-president.

The Process

On November 13, 2000, Gustavsson sued Washington Mutual, as successor of its predecessor federal savings bank, Great Western Bank [collectively, the Bank], alleging that the Bank had unlawfully and without his authorization transferred approximately $658,000 out of his accounts at the Bank. He alleged eleven common law and statutory causes of action.

On July 3,- 2001 Gustavsson served an Amended Complaint and demanded a jury trial. On November 30, 2001, counsel for the successor bank first discovered the arbitration provision contained in the General Terms and Conditions Disclosure [Disclosure statement] of the predecessor bank. On December 3, 2001, the Bank filed a motion to compel arbitration and to stay the proceedings.

The Bank’s belated motion claimed that ah arbitration provision governed disputes about Gustavsson’s accounts. It maintained that Gustavsson received and signed an Account Signature Card upon opening Account A in 1996. Located on the front side of the Signature Card was the following language:

EACH PERSON SIGNING ABOVE HAS READ AND AGREES TO THE TERMS AND CONDITIONS AS LISTED ON THE BACK OF THIS SIGNATURE CARD
SEE REVERSE FOR IMPORTANT INFORMATION

The “IMPORTANT INFORMATION” on the reverse side of an original of the Bank’s Signature Card includes no mention of arbitration but, instead, incorporates by reference the Bank’s detailed Disclosure statement. The latter does indeed contain an arbitration provision (within “Dispute Resolution Program”) and provides:

If you and Great Western [the Bank] are unable to solve any dispute in an informal manner, either you or Great Western may request that the dispute be resolved by binding arbitration or judicial reference, depending on the type of dispute, as provided herein.._.. The dispute will be arbitrated by the American Arbitration Association (AAA), pursuant to the AAA’s Commercial Rules.... The Federal Arbitration Act shall apply.

It is uncontroverted that Gustavsson never received either the reverse side of the Signature Card and Agreement or the Disclosure statement, until they were revealed five years later to the trial judge. Hence he maintains he did not enter into an agreement to arbitrate.

The trial judge found at a March 8, 2002, non-evidentiary hearing that the parties had entered into a valid agreement to arbitrate, concluding that “[s]ince the disclosure statement is specifically referenced in the Signature Card and Agreement, it becomes part of that agreement and the terms of the Disclosure Agreement are binding on the parties.”

Pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), Gustavsson has appealed the trial court’s decision.

ANALYSIS

We begin by making it clear that our decision in this matter does not disturb the strong policy favoring arbitration in those circumstances when both parties agree in writing to arbitrate, and the scope of the arbitration provision is in dispute.

The United States Supreme Court .addressed this policy consideration in First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 948, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), instructing that “when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.” 514 U.S. at 944, 115 S.Ct. 1920. Consequently, the Supreme Court stated “the law treats silence or ambiguity about the question as to ‘who (primarily) should decide arbitrability’ differently from the way it treats silence or ambiguity about the question of ‘whether a particular merits-related dispute is arbitra-ble because it is within the scope of a valid arbitration agreement’ — for in respect to this latter question the law reverses the presumption.”

The clear issue before us is not ambiguity over the scope of the arbitration agreement, but rather whether an agreement to arbitrate exists at all.

The cases suggested by the Bank for its contention do not concern parties attempting to enforce a contract provision found within an unsupplied document, which provision was incorporated by reference on the reverse side of a form which, also, was not supplied. If the Bank had listed on the reverse side what terms and conditions were incorporated by the Disclosure statement, it then would be necessary to determine whether the listed terms gave Gus-tavsson sufficient notice of the existence of the additional conditions. '

While numerous cases have addressed the adequacy of notice given by words on the front of a document, see, e.g., Rudy’s Glass Constr. Co. v. E.F. Johnson Co., 404 So.2d 1087 (Fla. 3d DCA 1981) (holding that language appearing on the front in all capital letters was a sufficient and conspicuous reference to terms included on the back), such cases have focused on documents where other terms and conditions were actually listed on the reverse side or, at least, were included in another document supplied to the other party at the time of the making of the contract.

The Florida Supreme Court has addressed contracts which expressly refer within their own writings to other documents. In OBS Co. v. Pace Construction Corp., 558 So.2d 404, 406 (Fla.1990), the Court held that “[I]t is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.” (Emphasis added.)

The only signed document in this record neither identifies and describes, nor in any way expresses an intention that Gustavs-son should be bound by a twice removed collateral document referring to arbitration.

Additionally, the existence of conspicuous terms providing for other terms elsewhere is not all that is required to make such other terms binding. The terms must actually be provided. Cf., 188 LLC v. Trinity Indus., Inc., 300 F.3d 730 (7th Cir.2002)(holding as a matter of law that an additional document was not incorporated into the parties’ sales contract when a letter of acceptance incorporated by reference a Term Sheet, which itself incorporated an additional document, and the seller [offeror] never provided any copy of his term sheet that contained the additional document on its reverse side). Here, there was no mutual assent, either express or implied, to the arbitration agreement found within the Disclosure statement. See, e.g., Gibson v. Courtois, 539 So.2d 459, 460 (Fla.1989)(Mutual assent to the essential terms of a contract is an absolute condition precedent for the contract’s formation and the provisions’ existence).

We cannot agree that a Signature Card which provides “see reverse for important information” — where that reverse side is blank — can be said to be expressly referring and sufficiently describing another document. While the words do expressly refer to a place to find additional terms [“reverse side”], they do not sufficiently: (1) describe the type of terms or conditions that Gustavsson may find; (2) expressly refer to another document; or, (3) even describe another document, at all.

Finally, Gustavsson did not sign any document containing language that he acknowledged receipt of any other documents. The only portion of the Signature Card and Agreement that acknowledges any other document is on the back portion, which he never received.

CONCLUSION

This cause is but another example that the offeror is still the master of the offer. We therefore conclude that the Bank made an offer through its Signature and Agreement Card, and that Gustavsson accepted. Since the Bank did not refer to arbitration, or expressly refer and sufficiently describe another document containing an arbitration requirement, it cannot now ask us to put in a term and condition when it failed to do so and to which Gustavsson did not assent.

As the lower court erred, we reverse and remand so that the matter may be reset on the trial court’s docket.

GUNTHER and WARNER, JJ., concur.

      . Deciding as we do, we need not reach the issues of the Bank's waiver, or whether the claims are arbitrable.

      . Fraud in the inducement, breach of contract, money had and received, Florida Unfair & Deceptive Trade Practices, conversion, civil theft, breach of fiduciary duty, negligence, gross negligence, and violations of sections 670.204 and 674.401, Florida Statutes.

      . Here the lower court found that the Federal Arbitration Act (FAA) strongly favors a policy of enforcement of arbitration agreements citing Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). See also Wylie v. Investment Mgmt. and Research Inc., 629 So.2d 898 (Fla. 4th DCA 1993) (en banc).


author: SILBERMAN, Judge.

text:
    Charles W. SAFFOLD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3648.
    District Court of Appeal of Florida, Second District.
    June 11, 2003.
    Rehearing Denied July 17, 2003.
   SILBERMAN, Judge.

Charles Saffold appeals the trial court’s order summarily denying his motion for postconviction DNA testing filed pursuant to section 925.11, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.853. We affirm because Saf-fold’s motion did not satisfy the requirements of subsections (b)(1), (b)(3), and (b)(4) of rule 3.853.

We first note that under section 925.11(l)(a), a “person who has been tried and found guilty of committing a crime and has been sentenced by a court established by the laws of this state may petition that court” for postconviction DNA testing. Saffold appears to meet this requirement because his motion asserted that in September 1982, after a trial, he was “convicted of an information charging five counts.”

Next, rule 3.853 describes the information that must be contained in a motion for postconviction DNA testing. The motion must be made under oath, and it must include the following:

(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it- originally was obtained;
(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;
(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the mov-ant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;
(4) a statement that, identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;
(5) a statement of any other facts relevant to the motion; and
(6) a certificate that a copy of the motion has been served on the prosecuting authority.

Fla. R.Crim. P. 3.853(b)(l)-(6).

Concerning the requirement under rule 3.853(b)(1), that a movant provide “a statement of the facts relied on,” Saffold described the material to be tested as semen taken from a vaginal swabbing of the victim at Tampa General Hospital on August 13, 1980. He stated that the material was in the possession of the Florida Department of Law Enforcement in Tallahassee. Saffold also stated that he was convicted following a trial on a five-count information, but he did not identify the offenses of which he was convicted! He claimed that he was “innocent of this crime,” but he did not identify the crime. And he alleged that there were three victims, but he did not identify the victim from whom the swab was purportedly taken.

Saffold also failed to provide any details of the evidence that was introduced at trial except to say that the victims identified him and the composite sketch of the suspect, introduced by the State, did not resemble him. Saffold does not indicate whether he raised a misidentification defense or any other defenses at trial. See Marsh v. State, 812 So.2d 579 (Fla. 3d DCA 2002) (holding that movant was not entitled to DNA testing where defense at trial had been one of consensual sex, not identity).

Although not explicitly stated in subsection (b)(1) of the rule, the statement of the facts relied on should include, if possible, a brief summary of the primary evidence upon which the conviction was based and the theory of defense, if any, utilized by the movant at trial. If the movant does not include that information in the motion, it will be difficult for the movant to satisfy the requirements of subsections (b)(3) and (b)(4) of the rule. For example, without a summary of the evidence and any defense that was asserted, it is doubtful that the movant will be able to provide a facially sufficient statement of why identification was a genuinely disputed issue at trial or how DNA testing would exonerate the movant or mitigate the sentence that the movant received. See rule 3.853(b)(4). In the present .case, because Saffold’s statement of the facts was so lacking in detail that it did not even include the nature of the conviction or convictions he is challenging, we conclude that Saffold’s motion was facially insufficient under subsection (b)(1) of the rule.

As to subsections (b)(3) and (b)(4), Saf-fold asserted the following: “Movant hereby submits that he is innocent of this crime. Further, DNA testing will exonerate movant and show that the semen obtained from the virgina [sic] swabbing of the victim does not match nor [sic] belong' to movant.” While Saffold alleged that he was “innocent of this crime,” his motion indicated that he had been convicted of five offenses. The motion does not indicate to which of the five offenses his claim of innocence is directed, and it is unclear if he is referring to a single crime or perhaps a criminal episode.

Saffold also asserted several facts as reflecting that identification was a genuinely disputed issue. He claimed that shortly after the alleged crime, the victims could not pick him out of a photopack; that one of the victims testified during deposition that the suspect was wearing a mask, but she stated that she could identify her assailant; that all three victims observed Saffold at a hearing prior to trial, which enabled them to identify him at trial; and that the composite sketch of the suspect did not look like Saffold. However, Saffold did not allege that he employed a misidentification defense at trial or that there was no other evidénce that he was the perpetrator of the offenses in question, apart from his identification by the victims.

While some leeway is afforded to the pleadings of pro se litigants, subsection (b)(3) of the rule requires Saffold to state his innocence of the crime and how DNA testing will exonerate him or will mitigate his sentence for that crime. Subsection (b)(4) requires him to state that identification is genuinely disputed and why identification is an issue, or provide an explanation of how the DNA evidence would exonerate him or mitigate his sentence. Other than asserting general, con-clusory information, Saffold has not shown how DNA testing will exonerate him from an unspecified crime or mitigate his sentence, or why identification is an issue in a case involving unspecified facts and a conviction of an unspecified crime. Without some information as to the primary evidence against him and any defense employed at trial, we conclude that Saffold’s motion does not provide a facially sufficient statement to meet the requirements of subsections (b)(3) and (b)(4) of the rule.

The trial court correctly denied the motion, but it did so for the wrong reason. The trial court found as follows:

[A] review of the record demonstrates that the victims were able to positively identify Defendant as the attacker. (See letter from the Hillsborough County Sheriffs Office, criminal report, affidavits, attached.) Therefore, contrary to Defendant’s assertion, identification is not a genuinely disputed issue in the case. As such, Defendant is not entitled to relief.

Rule 3.853(c)(2) states that upon receipt of the motion, the trial court “shall review the motion and deny it if it is insufficient.” If the motion is sufficient, the prosecuting authority shall be ordered to respond. Rule 3.853(c)(3) states that after receiving the response, the trial court “shall review the response and enter an order on the merits of the motion or set the motion for hearing.”

The fact that a movant was identified at trial by the victims does not itself lead to the conclusion that identification is not a disputed issue. In Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002), this court discussed rule 3.853 and what constitutes a sufficient allegation that identity was a genuinely disputed issue at trial. The court noted the lack of Florida case law on this issue and stated: “Cases from other states with a similar postconviction rule, however, make it clear that identity is a ‘genuinely disputed’ issue when the only significant evidence connecting the defendant to the crime is the victim’s identification of the defendant.” Id. at 1062.

In Zollman, the trial court found that DNA testing of evidence would not exonerate Zollman because a partial fingerprint matching him had been located at the crime scene and the victim had identified Zollman as her assailant. Id. at 1061. On that basis, the trial court ruled that Zoll-man’s allegations seeking testing of the contents of a rape kit and other items were insufficient under rule 3.853. Id. On appeal, this court concluded that Zollman’s motion was facially sufficient and that the trial court erred by determining, without any response to the motion by the State, that a hearing was not required. Id. at 1063. We noted that a trial court may not summarily deny the motion even when the record conclusively shows that the defendant is not entitled to relief; if the motion is facially sufficient, the trial court must order the State to respond. Id. at 1063 n. 2. Once the response is received, the trial court may enter an order on the merits or it may set the motion for hearing. Id.

Here, the trial court addressed the merits of the motion without first determining whether the allegations in the motion were facially sufficient and without requiring a response from the State as required under rule 3.853(c)(2). However, because Saf-fold’s motion was facially insufficient, we affirm. Our affirmance is without prejudice to any right Saffold might have to file a facially sufficient rule 3.853 motion within sixty days from the date of the issuance of the mandate in this case.

Affirmed.

WHATLEY and STRINGER, JJ., Concur.

      . Saffold’s motion and the trial court’s order denying it, together with the attachments to the order, constitute the entire record that we have in this case. Although it is premature to consider what may be required to determine the merits of a facially sufficient motion, we note that after the State responds to any such motion the trial court may have to review the trial transcript, should it still be available, or it may have to conduct an evidentiary hearing.