author: ROTHENBERG, Judge. SCHWARTZ, Senior Judge

text:
    BELLSOUTH TELECOMMUNICATIONS, INC., Petitioner, v. CHURCH & TOWER OF FLORIDA, INC., et al., Respondents.
    No. 3D05-1645.
    District Court of Appeal of Florida, Third District.
    March 15, 2006.
    Rehearing and Rehearing En Banc Denied June 19, 2006.

      Gordon Hargrove & James and Carol A. Gart, Fort Lauderdale, and John R. Har-grove, for petitioner.
    Richard A. Sherman, Fort Lauderdale; Julio C. Acosta, Miami, and Michelle C. Lopez; and Richard G. Bartmon, Boca Raton, for respondents.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

BellSouth Telecommunications, Inc. (BellSouth) petitions for a writ of certiora-ri, seeking to quash a portion of the trial court’s order permitting Liberty Mutual Fire Insurance Company (Liberty), which had initially denied coverage, to take control of the defense, to select counsel of its own choosing, and to defend BellSouth in the personal injury lawsuit. As we conclude that Liberty has forfeited its right to defend, we grant the petition.

The guardian of Marvin Trujillo filed a personal injury action against Florida Power & Light (FP & L), BellSouth, and Church & Tower of Florida, Inc. (Church & Tower). The complaint alleges that Mr. Trujillo was electrocuted when he came into contact with an FP & L power line which was attached to a utility pole owned by BellSouth, and that, as a result of this accident, Mr. Trujillo is now in a permanent vegetative state. The BellSouth utility pole was installed by Church & Tower pursuant to a contract between BellSouth and Church & Tower. In this contract, Church & Tower agreed to obtain insurance covering its operations, naming Bell-South as an additional insured under the policy, and Church & Tower also agreed to indemnify BellSouth. In accordance with this contract, Church & Tower obtained an insurance policy from Liberty. After Bell-South notified Liberty that Mr. Trujillo’s guardian had filed a claim against it, Liberty sent a letter to BellSouth stating that BellSouth’s notice was untimely, and that based upon the untimely notice, it was denying coverage and would not defend BellSouth in the action.

Thereafter, BellSouth sued Liberty for breach of contract, and after several depositions were taken, moved for summary judgment against Liberty. Prior to the summary judgment hearing, Liberty sent a letter to BellSouth stating that it was no longer denying coverage; it agreed to assume BellSouth’s defense; it wished to appoint counsel of its own choosing to represent BellSouth; and it expected Bell-South’s cooperation in facilitating the substitution of counsel. At the summary judgment hearing, it was undisputed that Liberty was now accepting coverage. BellSouth, however, objected to Liberty assuming control of the defense with counsel of its own choosing. The trial court concluded that, since BellSouth was insured by Liberty and Liberty had accepted its duty to defend, Liberty should defend BellSouth and would, therefore, have the right to select counsel for that defense. BellSouth’s motion for rehearing was denied and BellSouth filed the instant petition for writ of certiorari.

BellSouth argues that the trial court’s ruling, permitting Liberty to control the defense through the selection of Bell-South’s counsel, is a departure from the essential requirements of the law, and therefore, the order should be quashed. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000)(“For an appellate court to review a nonfinal order by petition for certio-rari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”); El Cid Condo. Ass’n, Inc., No. II v. Pub. Serv. Mut. Ins. Co.; 780 So.2d 325, 325-26 (Fla. 3d DCA 2001)(find-ing no basis for a petition for writ of certiorari where petitioner did not demonstrate that the trial court departed from the essential requirements of the law, causing material injury which cannot be adequately remedied on appeal following the entry of final judgment).

It is well-settled law that, when an insurer agrees to defend under a reservation of rights or refuses to defend, the insurer transfers to the insured the power to conduct its own defense, and if it is later determined that the insured was entitled to coverage, the insured will be entitled to full reimbursement of the insured’s litigation costs. Additionally, if the insurer offers to defend under a reservation of rights, the insured has the right to reject the defense and hire its own attorneys and control the defense. See Aguero v. First Am. Ins. Co., 927 So.2d 894 (Fla. 3d DCA 2005)(“ ‘[WJhen an insurer offers to defend under a reservation of rights, Florida law provides that the insured may, at its own election, reject the defense and retain its own attorneys without jeopardizing his right to seek indemnification from the insurer for liability1 ”)(quoting Travelers Indem. Co. of Illinois v. Royal Oak Enters., Inc., 344 F.Supp.2d 1358, 1371 (M.D.Fla.2004)); Florida Ins. Guar. Ass’n, Inc. v. All The Way With Bill Vernay, Inc., 864 So.2d 1126, 1129 (Fla. 2d DCA 2003)(“The law is well established that when an insurer unjustifiably refuses to defend its insured, the insurer is liable to the insured for the reasonable attorney’s fees and other expenses incurred in defending the action brought by the third party.... ”); Nationwide Mut. Fire Ins. Co. v. Beville, 825 So.2d 999, 1003 (Fla. 4th DCA 2002)(ex-plaining that when an insurer either refuses to defend or makes a reservation of rights, it violates its duty to unconditionally defend its insured and thereby transfers to the insured the power to defend).

Liberty denied coverage on the basis that BellSouth violated the notice provision of the insurance contract by not timely notifying Liberty of the lawsuit. However, an insured’s violation of a notice requirement does not relieve the insurer of its contractual obligation to defend when no prejudice is shown. See Aguero v. First Am. Ins. Co., 927 So.2d 894 (Fla. 3d DCA 2005)(finding that summary judgment was improper, even if an additional insured delayed in notifying an insurer of a lawsuit filed against the additional insured, because a genuine issue of material fact existed as to whether the insurer was prejudiced by the delay); see also Nationwide Mut. Fire Ins. Co., 825 So.2d at 1004 (“[T]he failure of the carrier to offer a proper defense upon receipt of notice waives any defect in delaying notice.”). Liberty had a duty to defend despite the late notice and, therefore, wrongfully refused to do so.

Liberty asserts that, while it wrongfully refused to defend, because it now accepts that duty without a reservation of rights, BellSouth has an obligation to accept its defense. In support of its argument, Liberty notes that BellSouth filed a declaratory judgment action against Liberty, seeking to enforce the insurance policy with Liberty; that BellSouth was getting what it asked for; and it cannot now complain. We disagree.

A review of BellSouth’s complaint against Liberty and Church & Tower, reveals that BellSouth sued them for breach of contract and indemnification, not for specific performance. The “wherefore” clauses do not demand that Liberty comply with its contractual obligations to defend. They, instead, seek damages in the form of attorneys’ fees and costs incurred in BellSouth’s defense of the lawsuit filed by Trujillo’s guardian and FP & L, as well as attorneys’ fees and costs in the prosecution of the declaratory judgment action.

We conclude that, under the circumstances presented herein, Liberty has forfeited its right to defend BellSouth in its litigation with Trujillo and FP & L. Liberty had a duty to defend, and Bell-South’s late notice did not relieve Liberty from that obligation as there was clearly no prejudice. Liberty has been defending Church & Tower in the instant lawsuit. Liberty, therefore, wrongfully refused to defend instead of defending with a reservation of rights. BellSouth, therefore, was forced to assume its own defense and has done so for over a year. BellSouth’s chosen attorney has engaged in discovery and an investigation of the facts, and is a highly experienced attorney in this particular field. At this stage, BellSouth would suffer material harm if forced to relinquish control of its defense to Liberty, as Liberty is also representing Church & Tower in a pending appeal against BellSouth arising out of this same lawsuit, and Liberty's liability is either $1,000,000 or $2,000,000 while BellSouth’s potential liability is substantially higher.

Our conclusion is supported by case law from this jurisdiction. In Carrousel Concessions, Inc. v. Florida Insurance Guaranty Association, 483 So.2d 513 (Fla. 3d DCA 1986), we were faced with a situation where Carrousel, who was a defendant in a personal injury action, and whose defense was assumed by the Florida Insurance Guaranty Association (FIGA) when Carrousel’s insurer became insolvent, became dissatisfied with the performance of the attorneys hired by FIGA, and hired its own attorneys. Id. at 515. FIGA refused to pay the costs and attorneys’ fees for the defense, and after the trial resulted in an adverse judgment against Carrousel, FIGA refused to post an appellate bond. Carrousel sued FIGA for breach of contract for failing to provide Carrousel with an adequate defense and for failing to post the appellate bond. The trial court entered summary judgment in favor of FIGA, and Carrousel appealed.

On appeal, we reversed the summary judgment, finding that, if Carrousel established that the defense supplied by FIGA was inadequate and that it was reasonable for Carrousel to engage its own attorneys, Carrousel would be entitled to recover all reasonable costs and attorneys’ fees incurred at the trial level, as well as its appellate expenses. We concluded that since FIGA breached its duty to defend by providing an inadequate defense at trial, it forfeited its right to decide whether an appeal should be pursued.

With respect to an insurer’s refusal to defend, it is well established that an insurer’s unjustified refusal to defend a suit against the insured relieves the insured of his contract obligation to leave the management of such suit to the insurer and justifies him in assuming the defense of the action on his own account. In such a case the insurer cannot complain about the conduct of the defense by the insured, cannot dictate to the insured how the case should be handled, and can neither object to the taking of an appeal by the insured from an unfavorable judgment rendered against him, nor complain of the insured’s failure to appeal. Also, the right to intervene is lost by the insurer by its wrongful refusal to defend.

Carrousel, 483 So.2d at 517-18 (quoting Couch on Insurance 2d § 51:161 (rev. ed.l982))(footnotes omitted in Carrousel Xemphasis added).

In Carrousel, we also relied on Witt v. Universal Automobile Insurance Co., 116 S.W.2d 1095 (Tex.Civ.App.1938), which held that when an insurer wrongfully withdraws from the defense of a case, the insured has the right to refuse to allow the insurer to re-enter the case and take charge of the defense, because the insurer waived its right to defend the suit and, ‘“having thus waived its right to defend the suit, such right was lost forever.’ ” Carrousel, 483 So.2d at 518 (quoting Witt, 116 S.W.2d at 1098)(alterations removed). While Liberty asserts that this statement in Carrousel, summarizing and quoting the Texas court’s decision in Witt, was merely dicta, we disagree. The issue being addressed in that portion of the opinion was whether FIGA had the right to decide whether to pursue an appeal. Carrousel, 483 So.2d at 517-18. We, therefore, examined persuasive authorities to determine whether an insurer can control a case after breaching its duty to defend, and based upon Witt, which concluded that an insurer cannot re-enter and take charge of a case after it wrongfully refused to defend, we found that FIGA had forfeited its right to decide whether an appeal should be pursued after providing an inadequate defense. As FIGA was not permitted to reenter the case in Carrousel, our reliance upon Witt was clearly critical to the outcome in Carrousel, and, therefore, not dictum. See Black’s Law Dictionary 1102 (8th ed.2004)(defining “obiter dictum” as a judicial comment in an opinion that is “unnecessary to the decision in the case and therefore not precedential”).

We, therefore, conclude that our statement in Carrousel, that once an insurer wrongfully withdraws from the defense of a ease, the insured has the right to refuse to allow the insurer to re-enter the case and take charge of it, is controlling. Thus, by reinstating Liberty’s right to defend after its previous wrongful refusal to defend, the trial court departed from the dictates of the controlling case law in this district, and departed from the essential requirements of the law. See Progressive Express Ins. Co. v. Physician’s Injury Care Ctr., Inc., 906 So.2d 1125, 1127 (Fla. 5th DCA 2005)(finding that a departure from the dictates of controlling case law is a departure from the essential requirements of the law).

Liberty attempts to distinguish Carrousel by arguing that it involved a failure to provide an adequate defense, rather than a refusal to provide a defense at all. Such a distinction is meritless. In Carrousel, we held that whether an insurer provides an inadequate defense or no defense at all, it breaches its duty to defend and thereby forfeits its right to control the defense. Carrousel, 483 So.2d at 517-18.

As we conclude that the trial court departed from the essential requirements of the law by allowing Liberty to select counsel and to take control of BellSouth’s defense, and that BellSouth would suffer irreparable injury due to its potential liability which greatly exceeds the policy limits, we grant the petition and quash the portion of the trial court’s order permitting Liberty to select counsel and to control BellSouth’s defense. See Gonzalez v. Chillura, 892 So.2d 1075, 1076-77 (Fla. 2d DCA 2004)(explaining that to deny a party the counsel of its choice is a material injury without remedy on appeal).

Accordingly, the petition for writ of cer-tiorari is granted, and that portion of the trial court’s order which permits Liberty to select counsel and control BellSouth’s defense, is quashed.

CORTIÑAS, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would deny certiorari on the basis of the immutable legal principle that nothing is perfect. Having won a judgment that Liberty must provide coverage and an appropriate defense, BellSouth must accept the downside of that victory, including the fact that, under the policy, the insurer is entitled to conduct the defense itself. (Ironically, having now succeeded in this Court in its insistence upon the contrary proposition that it may designate its own attorney, it must now suffer the adverse consequences of that triumph: by doing so, it has breached the cooperation clause of the policy, thus providing Liberty with what is, this time, a good, sound reason to disclaim responsibility.)

      . There is currently a dispute between Bell-South and Liberty as to the amount of coverage.

      . Although the issue is not squarely before us, I believe that BellSouth's suggestion at oral argument that Liberty must also pay for Bell-South’s lawyer is no less than an outrageous addition of financial injury to unjustified insult (or vice versa).


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    ACTION REALTY AND INVESTMENTS, INC., a Florida corporation, Appellant, v. Halima GRANDISON and Mortgage Electronic Registration Systems, Inc., Appellees.
    No. 4D05-1160.
    District Court of Appeal of Florida, Fourth District.
    March 15, 2006.
    Rehearing Denied July 10, 2006.

      Jerome L. Tepps of Jerome L. Tepps, P.A., Fort Lauderdale, for appellant.
    Lisa Walsh of Gonzalez & Walsh LLP, and Kenneth Walton of The Walton Law Firm, Miami, for appellee Halima Grandi-son.
   WARNER, J.

Action Realty and Investments, Inc., a purchaser of the home of appellee, Halima Grandison, at a foreclosure sale, appeals an order of the circuit court setting aside the sale. The court determined that a title company which was responsible for completing a sale of the property and paying off the mortgage had simply failed to send the money in time to stop the sale. We conclude that the court abused its discretion in setting aside the sale, because the bid was not grossly inadequate, and no irregularities in the sale process itself were evident.

Mortgage Electronic Registration Systems, Inc., the lender, filed an action to foreclose its mortgage on Grandison’s home. Before a foreclosure judgment was entered, Grandison contracted to sell the property to a third party for $274,900. The closing was set to occur on September 30, 2004, with Summit Title acting as the closing agent. On September 9, 2004, the lender sent the mortgagor Grandison a payoff statement good through October 1, 2004.

In the meantime, the trial court entered a final judgment of mortgage foreclosure in favor of the lender for a total sum due of $154,037.74. The final judgment did not contain a specified time for exercise of the right of redemption, other than a provision which stated that upon the filing of a certificate of sale, all rights of the defendants and others claiming interest would be terminated. Pursuant to the judgment, a foreclosure sale was scheduled for October 12, 2004.

The closing of the sale of the property from Grandison to the third party went forward on September 29, 2004. Summit Title held $180,000 in escrow to pay off the mortgage. A paralegal for Summit testified that she sent a letter to Grandison to obtain the payoff information, but she did not respond. After a week of being unable to get in touch with Grandison, the paralegal contacted the attorney for the mortgage company who also did not contact the title company. The lender finally faxed the payoff statement to Summit Title on October 11, which was Columbus Day. Although the paralegal received the letter that day, the banks were closed for the holiday. She said that she knew the property was in foreclosure, but she failed to see the final judgment of foreclosure when she ran a title search on September 27. On October 12, the deed to the purchaser was recorded. The paralegal called the attorneys for the lender and found out that the sale had taken place as scheduled that day. Action Realty was the successful bidder at the sale, purchasing the property for $162,000. The paralegal ran the title search again and discovered the final judgment.

Within the ten day time permitted under section 45.031(4), Florida Statutes, for filing objections to the sale, Grandison filed an objection to the foreclosure sale and a motion to vacate. She argued that the lender’s mistakes and oversight in failing to respond with a payoff number justified vacating the foreclosure sale. At the hearing, Action Realty argued that it was a bona fide purchaser, the price at the foreclosure sale was not grossly inadequate, and the party with the most fault should suffer the loss. The court noted that Action Realty was in the business of buying foreclosed properties and would benefit from “an error that should not have occurred.” It therefore concluded that the lender was culpable for failing to deliver the payoff figures in time to stop the foreclosure sale. Thus, the court viewed the lender as being at fault for the mortgagor losing her right of redemption. The court vacated the foreclosure sale, and Action Realty appeals.

The right of redemption of a mortgagor to reclaim its estate through payment of the amount of the judgment after it has been forfeited through foreclosure is a valuable equitable right. See Indian River Farms v. YBF Partners, 777 So.2d 1096 (Fla. 4th DCA 2001). That equitable right, available at common law, is now governed by section 45.0315, Florida Statutes (2004), which provides:

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

As was noted in Saidi v. Wasko, 687 So.2d 10, 11 (Fla. 5th DCA 1996), under former section 45.031, the right of redemption could be exercised up to the time of the issuance of the certificate of title. However, section 45.0315 provides that the right may now be exercised up until the certificate of sale unless another time is set in the judgment of foreclosure. In this case, no other time was set. Therefore, Grandi-son could exercise the right of redemption up until the filing of the certificate of sale and the recording of the certificate of sale. She did not do that, and her right of redemption was extinguished.

She claims, however, that the sale should be set aside because the mortgagor failed to give a payoff figure for the mortgage to the title company through whom she had sold the property, thus defeating her right of redemption. In addition, the property sold for substantially less than it was worth. In Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), our supreme court explained:

The general rule is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

Applying the test set forth in Arlt, this court has indicated that in order to vacate a foreclosure sale, the trial court must find both “(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.” Blue Star Invs., Inc. v. Johnson, 801 So.2d 218, 219 (Fla. 4th DCA 2001) (quoting Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000)).

In Blue Star, we reversed a court order setting aside a judicial sale, because the sale price was not grossly inadequate when it was roughly 69% of the property’s appraised value. Here, the foreclosure sale price was roughly 59% of the fair market value of the property. The judicial sale price was not grossly inadequate. See, e.g., Maule Indus., Inc. v. Seminole Rock & Sand Co., 91 So.2d 307, 311 (Fla.1956) (sale for 70% of assumed valuation of property did not justify setting aside foreclosure sale); Shipp Corp., Inc. v. Charpilloz, 414 So.2d 1122 (Fla. 2d DCA 1982) (where bid was for amount of $1,100,000 and fair market value of the property was in the range of $2,800,000 to $3,200,000, price was not grossly inadequate). Findings of gross inadequacy of price are confined to “situations in which a very small, usually only nominal, amount has been bid for property of substantial value.” Blue Star Invs., 801 So.2d at 219 (quoting Moody v. Glendale Fed. Bank, 643 So.2d 1149, 1150 (Fla. 3d DCA 1994)).

Because the amount of the sale was not grossly inadequate, as in Blue Star we must reverse the order vacating the sale, because the first factor set forth in the Arlt test was not met. We acknowledge that the second district questioned the two-part test of Arlt in Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). There, the second district was confronted with the question of whether an irregularity in the foreclosure sale would permit a trial court to vacate a judicial sale absent a finding of gross inadequacy of the bid price. Horton, the assignee of the original mortgage holder’s interest, was not notified of the foreclosure sale. Id. at 1256-57. The trial court set aside the sale, specifically finding that the notice of sale was defective and that Horton’s counsel had not received it. However, there was no showing of any inadequacy in the price bid for the property. The second district held that the trial court did not abuse its discretion in setting aside the sale, reasoning as follows: “to hold that a trial court may not vacate a foreclosure sale absent a grossly inadequate bid price would deprive the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process.” Id. at 1258-59.

We believe that Ingorvaia is distinguishable from the facts of this case. The equitable consideration in Ingorvaia was a defect in the sale itself, because the assign-ee of the mortgagor, whose attorney had entered an appearance in the case, was not notified of the final judgment and sale. Therefore, due process concerns made the sale irregular. Here, there is no irregularity in the sale itself. The mortgagor had notice and apparently failed to provide the title company with the information. The title company also failed to note the final judgment setting the sale, even though it performed a title search. This was not a case of a defect in the sale process.

In Cueto v. Manufacturers & Traders Trust Co., 791 So.2d 1125, 1127 (Fla. 4th DCA 2000), this court stated:

“The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused. The mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment....”

(quoting John Crescent, Inc. v. Schwartz, 382 So.2d 383, 385-86 (Fla. 4th DCA 1980)). Grandison was not deprived of notice of the sale. She has shown no defect in the sale process. On this basis, we distinguish Ingorvaia.

Because the judicial sale price was not grossly inadequate and there were no irregularities in the sale process, we reverse the trial court’s order vacating the sale. We remand with directions to reinstate the certificate of sale and for further proceedings thereon.

STEVENSON, C.J., and HAZOURI, J., concur.

      . The trial judge recognized that the title company may have been negligent and expressed a desire to avoid a second lawsuit by Grandison's purchaser against the title company based upon the title policy. While we can appreciate the common sense approach to this solution, it does not follow the extant law of this district in Blue Star. It also prevents the innocent purchaser, Action Realty, at the foreclosure sale from deriving the benefit of its investment, through no fault of it, and it deprives Action from recouping any expenses that it incurred in bidding and paying for the property.


text:
    Kenneth ATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4379.
    District Court of Appeal of Florida, Fourth District.
    March 22, 2006.
    Rehearing Denied July 10, 2006.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Kenneth Atkins appeals his conviction for sexual battery and claims that the court erred in admitting a taped telephone conversation between the victim and her Mend, as admission of the conversation violated the wiretap statute, sections 934.03-934.09, Florida Statutes. Because the conversation was not taped for the purpose of obtaining evidence of a criminal act, it was improperly admitted. We reverse.

Atkins was charged with sexual battery by multiple perpetrators. The incident occurred at a party where A.S., the victim, was present. Her Mend, Jamie Doctor, was also present and introduced A.S. to Atkins. According to A.S.’s trial testimony, she was sexually assaulted by multiple young men, including Atkins, at the pool of the apartment complex where the party was held. After the attack, a hysterical A.S. found Doctor and told her what happened. Doctor looked “in shock” and walked off.

An anonymous caller reported the assault to the police, and an officer then went to the complex and found A.S. who told the officer she had been assaulted. A.S. was escorted to the police station to give a statement and also to the hospital for the administration of a rape kit test. Atkins was arrested several days later for the sexual assault and was subsequently tried and convicted for the crime.

At some point when A.S. was at the police station, one of the investigating detectives directed A.S. to tape record any conversations with the suspects, which the detective also testified to at trial. A conversation with Atkins two days after the incident was admitted at trial.

A.S. also recorded a conversation with Jamie Doctor which she had with her within a few hours after the incident. At trial, Doctor testified for the defense that she had seen A.S. drinking rum and doing drugs. She saw A.S. with Atkins and another Mend by the pool, and A.S. did not look upset. In fact, she took off her top and “put on a show for everybody.” Doctor testified that she then walked A.S. back to the party. Not until they got back to the apartment did A.S. say she had been raped, and Doctor testified that she did not believe her, because she was not crying or upset at all.

Upon cross-examination by the prosecutor, Doctor admitted that she telephoned A.S. shortly after the incident. However, she denied that A.S. asked her where she (Doctor) had gone or what she had done after A.S. told her about the rape. The prosecutor asked Doctor if she wanted to hear the tape recorded conversation, to which the defense objected, first on hearsay grounds and then because the wiretap statute was violated by the recording of the conversation. The court overruled the objection, and the tape was played first for Doctor, who still did not remember the conversation, and then for the jury. In the short section played, Doctor was heard stating to A.S. that she told Atkins in rather strong language that she hated him and she told other persons around the party what occurred, thus impeaching Doctor’s prior testimony that she did not believe a rape occurred. The admission of this tape is the subject of this appeal.

Section 934.03 makes intentional interception of telephone conversations unlawful, unless it falls within the exceptions of the act. Section 934.03(2)(c) provides a law enforcement exception:

It is lawful under ss. 934.03-934.09 for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

We agree with Atkins that the recording of this conversation was not authorized under the statute and went beyond the directions of the officer as to what was permissible to record.

The statute permits a law enforcement officer to direct the recording of a conversation with a consenting participant where the “purpose of such interception is to obtain evidence of a criminal act.” § 934.03(2)(c), Fla. Stat. In State v. Napoli, 373 So.2d 933 (Fla. 4th DCA 1979), our court determined that the recording of a conversation between a state investigator posing as a clerk for a judge and a defendant was permissible under section 934.03(2)(c). There, the defendant had already approached the investigator with a bribe. The officer secured a body bug and then met with the defendant and recorded the bribe. Thus, the purpose of the recording was to obtain “evidence of the criminal act,” i.e., the bribe itself. Id. at 935; § 934.03(2)(c), Fla. Stat.

Other cases have held that where the purpose of the recording was to obtain an admission from the defendant, a recorded conversation with the defendant also complies with the statute. See Thompson v. State, 731 So.2d 819 (Fla. 5th DCA 1999); State v. Stout, 693 So.2d 657 (Fla. 4th DCA 1997); Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979). We have not found a single case in which any court has approved the admission of a recorded conversation under section 934.03(2)(c), or pursuant to other counterparts around the country, which did not involve a conversation with the defendant being tried and was either part of a criminal act itself or an admission of a criminal act. See also Eric H. Miller, Annotation, Permissible warrantless surveillance, under state communications interception statute, by state or local law enforcement or one acting in concert with officer, 27 A.L.R.4th 449 (1984).

We conclude that a conversation surreptitiously recorded with a mere witness is not the type- of conversation allowed under section 934.03(2)(c). In this case, Doctor was not even a witness to the crime but instead encountered A.S. after the incident. Recording her conversation was not for the purpose of obtaining evidence of a criminal act. Even if we presume that the officer’s direction to A.S. was to record calls of the suspects or “anyone else who was trying to influence or threaten or coerce her,” that did not include conversations from concerned friends who happened to be at the party.

Of course, had Doctor threatened her or attempted to coerce her, then the call would have been admissible in a prosecution of Doctor herself for witness tampering. The call would have been used as evidence of a criminal act. In this respect, it would have been similar to State v. Sobel, 743 So.2d 38 (Fla. 5th DCA 1999), where the officers were investigating a case of child abuse and could not find the child victim who had reported the abuse. They enlisted the help of a friend of the child, who contacted Sobel, the child’s mother. In a recorded conversation, Sobel encouraged the friend to lie to the police. That conversation was the basis of the charge against her. The fifth district held that the recording of that conversation fell within the authority of section 934.03(2)(c) even though at the time of the call Sobel was not implicated in any crime. Id. at 38. Judge Sharp wrote a strong dissent. We do not have to decide whether we agree or disagree with the majority in Sobel in this case, because it is factually distinguishable, as we have just explained.

The recording of the conversation between A.S. and Doctor violated section 934.03. It therefore was inadmissible. Section 934.06 provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

The state, however, suggests that the conversation should still be admissible as impeachment, pointing to Washington v. State, 432 So.2d 44 (Fla.1983), in which the supreme court relied on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and permitted a defendant’s prior inconsistent statement to be admitted even though it was otherwise inadmissible under Miranda.

The warning requirements under Miranda are judicially created constitutional guidelines for law enforcement to follow. See Dickerson v. United States, 530 U.S. 428, 439, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Central to the Harris court’s decision to permit a defendant’s statement in violation of Miranda to be used as impeachment was the notion that the Miranda exclusionary rule is designed to have a deterrent effect on proscribed police conduct and that “sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” Harris, 401 U.S. at 225, 91 S.Ct. 643. Thus, its focus continued to be on the deterrent function of Miranda to police officers.

Our supreme court rejected a similar argument to permit otherwise inadmissible wiretap recordings into evidence in State v. Garcia, 547 So.2d 628 (Fla.1989). The court considered whether the good faith exception to the exclusionary rule authorized by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should be applied to the exclusionary provisions of the Florida wiretap law, so that evidence obtained in violation of the statute could still be admitted. The court determined that there was a difference between the exclusionary rule and the statute:

[T]he fourth amendment’s exclusionary rule operates as “ ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ ” Leon, 468 U.S. at 906, 104 S.Ct. at 3411 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)).
The exclusionary rule in this case, however, is statutorily mandated. Chapter 934, Florida Statutes, pertaining to security of communications, unequivocally expresses the Legislature’s desire to suppress evidence obtained in violation of that chapter.

Garcia, 547 So.2d at 630. Because it is a statutory mandate, the court held that the good faith exception could not apply to permit introduction of illegally intercepted communications. The prohibition of the statute was absolute. Therefore, based upon section 934.06, the tape recording is inadmissible to impeach Doctor.

Finally, we conclude that the admission of the tape recording was not harmless. In a sexual battery case such as this, where the issue is whether the victim consented to the act, the credibility of the witnesses is at the heart of the trial. Here, the playing of the tape undermined the credibility of Doctor who testified both that she disbelieved A.S. when she told her she had just been raped and that A.S. did not appear upset when she stated that she had been raped. This was critical evidence, and we cannot say beyond a reasonable doubt that the verdict was not affected by the error. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

For the foregoing reasons, we reverse the judgment and conviction and remand for a new trial.

STEVENSON, C.J., and HAZOURI, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WELLS, Judge.

text:
    Armando Andres VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-202.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.
    Rehearing and Rehearing En Banc Denied June 16, 2006.

      Gonzalez & Walsh and Carlos F. Gonzalez, Miami, for appellant.
    Charles J. Crist, Attorney General, and Annette M. Lizardo and Valentía M. Tej-era, Assistant Attorneys General for appel-lee.
    Before COPE, C.J., and WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Armando Valdes appeals his convictions and sentences on twelve counts of sexual abuse, claiming that the trial court reversibly erred in allowing his former wife to testify that he had been physically violent toward her and in allowing her to make derogatory remarks about him at trial. Valdes also alleges that his convictions for showing obscene material to a minor should be vacated because the State failed to prove that the materials at issue were obscene. We disagree and affirm.

Valdes married V.A. and S.A.’s mother in 1992 when V.A. and S.A. were six and four years old respectively. Shortly after the marriage, the former wife gave birth to the couple’s only child together.

On December 1, 1999, V.A. informed a school counselor that Valdes had been sexually abusing her. The school counselor contacted the authorities and V.A.’s mother, who thereafter learned that Valdes had also been sexually abusing S.A. Valdes subsequently was charged with, and convicted of, sexual battery on a minor, lewd assault on a minor, showing obscene material to a minor, and engaging in sexual activity with a minor.

Valdes argues that the trial court abused its discretion by permitting his former wife to testify about domestic violence in the home, claiming this testimony to be irrelevant and, if relevant, too prejudicial. We disagree.

Testimony concerning domestic violence in the home was relevant in this case to explain why V.A. and S.A. failed to disclose the abuse for so long. The testimony was that Valdes intimidated the sisters by threatening that if they disclosed the abuse, they would cause a break-up of the family; their mother would become a single parent; their little sister would grow up without a father; and they would be impoverished. He also threatened to destroy their home if the abuse were disclosed, a threat made plausible by his verbal and physical abuse which included instances in which he set fire to their mother’s bathing suits and ripped up the landscaping following arguments. The testimony, including that from the former wife, regarding domestic violence was therefore relevant to put the entire relationship between Valdes and V.A. and S.A. into perspective and to explain why the sisters failed to disclose abuse that went on for approximately five years. See Lazarowicz v. State, 561 So.2d 392, 397 (Fla. 3d DCA 1990) (concluding that evidence of uncharged physical violence was properly admitted to explain a failure to report abuse).

We disagree with Valdes that Burgos v. State, 865 So.2d 622 (Fla. 3d DCA 2004), and Scarboro v. State, 832 So.2d 930 (Fla. 3d DCA 2002), are controlling and mandate reversal. In both Burgos and Scar-boro, the context of the crimes charged and proof of the crimes themselves (battery on a law enforcement officer, resisting an officer with violence, and depriving an officer of means of protection) could be fully explained and adjudicated without detailed reference to the uncharged domestic violence which preceded the crimes charged in each case. That is not so in this case. Consequently, we find no abuse of discretion in permitting the former wife to testify regarding domestic violence. See Heath v. State, 648 So.2d 660, 664 (Fla.1994)(confirming that a “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion”); Castro v. State, 547 So.2d 111, 114 (Fla.1989) (finding that “[ajbsent an abuse of discretion, a trial court’s ruling on the admissibility of evidence will not be disturbed”); see also Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000) (noting that “[a] trial judge is afforded significant discretion in determining whether the prejudicial nature of evidence outweighs any relevance the evidence may have at trial”).

We also find no reversible error in seven unsolicited, gratuitous comments made by the former wife during trial. Three of these comments drew no objection; two drew objections but were properly overruled; and the remaining two comments resulted in curative instructions which were sufficient “to dissipate any prejudicial effect.” Buenoano v. State, 527 So.2d 194, 198 (Fla.1988); see also Gudinas v. State, 693 So.2d 953, 964 (Fla.1997) (denying a new trial where a witness made “an isolated comment which the judge dealt with swiftly and decisively by issuing a curative instruction”). Taken individually or together, these statements do not warrant a new trial.

Finally, we reject Valdes’ claim that the State failed to present sufficient evidence to prove that he had shown obscene material to V.A. and S.A. Valdes was charged with showing to V.A. and S.A. “A PORNOGRAPHIC MOVIE and/or MOVIE DEPICTING A MALE AND FEMALE ENGAGING IN SEXUAL INTERCOURSE and/or ORAL SEX, in violation of s. 847.0133, Fla. Stat.” At trial, S.A. and V.A. testified about numerous sexual acts that Valdes performed on them, or that they performed on him, including oral sex. According to V.A., she learned how to perform some of these acts by watching pornography:

Q. While this was happening, were you doing anything or was he doing anything in addition or else with you?
A. Like there was porn on the cable.
Q. When you say porn, could you say what you mean?
A. Naked people having sex and stuff.
Q. And was it your idea to watch that?
A. No, it was his idea.
Q. Would he say anything to you about that?
A. Yeah, like to do the same things they were doing on television.
Q. And would you try to do that?
A. Yes. He would tell me to do what they were doing so I would try to do it.
Q. And what about his actions when he was performing on you did it have anything to do with the video you were watching?
A. Yes.
Q. Now, do you remember if while you were watching these pornographic movies was the video from [sic]?
A. Once he rented a video tape and then it was on cable.

Similarly, S.A. testified that she learned how to perform various sex acts by watching pornography at Valdes’ direction:

Q. How did you know what to do when he put his penis in your mouth?
A. He explained to me how.
Q. Did he ever show you anything to demonstrate how to do that?
A. Yes.
Q. What did he show you?
A. He rented porn videos.
Q. What did you see on those porn videos?
A. Sex.
Q. What specifically? Who was involved?
A. It was all kinds of things, there was [sic] lesbians, a guy and a girl, it was everything.
Q. When you say sex, tell me what they were doing.
A. It was intercourse, oral everything.
Q. Did he indicate to you at all what you should be doing in reference to what you saw in the television?
A. Yes.
Q. What did he say?
A. He said that is how you are suppose [sic] to do it.
Q. Before you saw these video and were involved with what the defendant was telling you did you have any idea how to do that type of thing?
A. No.

Unlike the testimony in Beber v. State, 853 So.2d 576 (Fla. 5th DCA 2003), reversed on other grounds, 887 So.2d 1248 (Fla.2004), we believe this testimony was sufficient to support a conviction under section 847.0133.

In Beber, the child victim could not identify the obscene magazines that had been shown to him at trial as the ones that had been shown to him previously. The child also gave inconsistent testimony as to the substance of that material. Moreover, some videotapes which the child had seen, but were not introduced at trial, had been reviewed by a police investigator who determined that they were not obscene.

In this case, both S.A. and V.A. gave sufficiently detailed descriptions of the pornographic content of the materials Valdes had shown them. Not only that, both testified that they learned how to perform the various sex acts they were forced to perform by watching these videos. Although none of the videotapes that V.A. and S.A. were forced to watch were introduced into evidence at trial, we find their testimony sufficiently descriptive and detailed for a jury to find that the material was obscene.

Accordingly, Valdes’ convictions and sentences are affirmed.


author: SWEET, GARY L., Associate Judge.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. HAYDEN BONDED STORAGE COMPANY, a Florida corporation, Appellee.
    No. 4D05-4.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Rehearing Denied June 29, 2006.

      Mitchell L. Shadowitz of Shadowxtz Associates, P.A., Boca Raton, for appellant.
    Heidi M. Roth of Heidi M. Roth, P.A., Coral Gables, for appellee.
   SWEET, GARY L., Associate Judge.

The salient issue in this appeal is whether an insurer/indemnitor, which has no duty to defend its insured, but is alleged to have breached its duty to indemnify, may be bound by a Coblentz settlement agreement/consent judgment negotiated by its insured/indemnitee and the claimant. The court below found such a breach and bound the insurer. Because there is no basis to find such a breach, we reverse the trial court. In so doing, we do not reach the larger question of whether, in this context, the duty to indemnify is coterminous with the duty to defend.

Facts

The facts of this case are summarized as follows:

The Jacobs Litigation

The insured, Hayden Bonded Storage Company (Hayden), operated a moving and storage business. On June 30, 1994, Hayden contracted with Gayle Jacobs (Jacobs), agreeing to pick up Jacobs’ furniture and personal property, deliver some of the items to a new residence, and store the remainder at its warehouse. The form language of the storage documents provided Hayden’s liability for any damage to the items arising out of transportation or storage was limited to $0.30 per pound, unless otherwise stated. Jacobs was afforded the option of purchasing additional valuation and, in two of the documents, $35,070 was handwritten in as the valuation. The bill of lading limited Hayden’s liability for damage to the property to $0.30 per pound up to a maximum of $2,000.

On August 17, 1994, Jacobs filed a statement of claim with Hayden, claiming some of the items delivered to her home on June 30, 1994, were damaged; the statement of claim placed an actual cash value of $500,000 on the transported property and claimed damages of $15,000.

In 1995, Jacobs asked Hayden to deliver the remainder of the items from the storage warehouse. When the items arrived, Jacobs refused to accept them, insisting the property was damaged by water and mold. Thereafter, Jacobs ceased making the monthly storage payments. Subsequently, Hayden sent Jacobs a letter, indicating she was more than $11,000 in arrears and threatening to place a lien upon her property. Jacobs instituted a court action for injunctive relief to prevent the sale of the property. Hayden notified its insurer, United States Fire Insurance Company (USFIC), and requested a defense.

Hayden was insured under an inland marine policy issued by USFIC. The policy included a “Furniture Warehouse Policy” form and contained the following relevant provisions:

1. PROPERTY COVERED
This policy covers the legal liability of the insured as a common carrier, bailee (or warehouseman) under bills of lading, shipping receipts, or storage agreements, issued or accepted by the insured, with respect to shipment or storage of lawful goods....
7. VALUATION
All property for which the insured’s legal liability is insured hereunder is by agreement valued at the amount of invoice or if not under invoice then at cash market value on date and at place of shipment, except however, the liability of the company shall not exceed the value as shown in tariff documents, bills of lading or shipping receipts if any, nor shall the company’s liability in any event exceed what it would then cost to repair or replace the cargo lost or damaged with other of like kind and quality.
11. INDEMNIFICATION
It is the purpose of this insurance to indemnify the insured only to the amount which the insured shall become liable to pay and shall pay in respect of the property. In no event does this policy cover the liability of the insured for the payment of any fines, assessments, damages, attorney’s fees, court costs, or any other penalties which the insured shall be required to pay as a result of the violation of any law or regulation relating to the delay in the payment, denial or settlement of any claim for loss.
12. ADMISSION OF LIABILITY
The insured shall not voluntarily admit any liability nor settle any claims nor incur any expenses without the specific authority of the company.... In event of legal action being brought against the insured in respect to alleged loss or damage which might constitute a claim under this policy, the insured shall give immediate notice to the company, and the company reserves the right at its sole option to defend such action in the name and on behalf of the insured and will pay all legal expenses incurred by the company in connection with any action it undertakes to defend, also any judgment against the insured subject, however, to all the valuations and limitations provided for in this policy.

USFIC indicated it would not provide a defense in the matter, citing the policy language which gave it the “sole option” to defend. Nonetheless, it tendered $35,-070 — the amount written into the storage contract and the customer protection plan documents as the value for Jacobs’ property. Jacobs rejected the tender and filed suit against Hayden, claiming Hayden was grossly negligent in handling her property and, as a result, some property was damaged during the initial June 1994 delivery and the remainder sustained water and mildew damage during storage. Jacobs’ complaint sought damages in excess of $500,000. In response, the insurer reiterated it was not obligated to provide a defense and was not denying coverage, as it had tendered what it contended was its limit of liability, $35,070.

Eventually, Hayden and Jacobs executed a settlement agreement. The settlement agreement provided in relevant part:

1. Defendant, HAYDEN BONDED STORAGE WAREHOUSE, INC., hereby agrees to a final judgment entered against it in favor of Plaintiff, GAYLE JACOBS, in the amount of Four Hundred Seventy-five Thousand Dollars ($475,000.00).
3. Plaintiff hereby agrees that the “Final Judgment” ... shall not be ... recorded in any official record book.... The Plaintiff ... further agrees to forever forgo and forbear and refrain payment by the Defendant, its heirs, representatives, successors and assigns, of that final judgment ... and agrees not to execute or collect or attempt to collect against the Defendant.... If the Plaintiff ... is unsuccessful in an attempt to collect said judgment from United States Fire Insurance Company, then the Defendant ... shall be in no way obligated to pay said judgment.
8. It is specifically understood ... that ... the obligation of the Defendant to pay said judgment shall only be due to the extent that funds are recovered from United States Fire Insurance Company....
9. In the event the Defendant fails to prevail in its action against United States Fire Insurance Company and fails upon appeal, then Defendant shall pay to the Plaintiff the sum of One Hundred Thousand Dollars ($100,-000.00).... In addition, the Defendant agrees to pay over to the Plaintiff any sums determined to be due and owing under the policy issued by United States Fire Insurance Company, including the Thirty-five Thousand Seventy Dollars ($35,070.00) previously tendered....

As a result of the settlement, a final consent judgment was entered in Jacobs’ favor against Hayden.

The Declaratory Judgment Action

By the time of the settlement agreement’s execution, Hayden had initiated this litigation, seeking a determination from the court that USFIC had both a duty to defend and a duty to indemnify beyond the $35,070. By the time of trial, all parties agreed the policy did not impose upon USFIC a duty to defend its insured. Thus, the only remaining issues were whether the breach of a duty to indemnify should be treated similar to a breach of a duty to defend for purposes of binding an insurer to a Coblentz settlement, and if so, whether USFIC breached its duty.

The Final Judgment

The trial court entered final judgment in favor of Hayden, finding USFIC breached its duty by refusing to indemnify Hayden for any amount beyond the $35,070. In reaching this conclusion, the court specifically found that, during the declaratory judgment proceedings, “USFIC conceded that its liability was not limited to $35,070.00 under the subject policy of insurance, and that it had a duty to indemnify HAYDEN for the amount of any judgment entered against it in the Jacobs v. Hayden litigation, up to the policy limit” and that USFIC had failed to convey this to its insured. The court also found that USFIC was bound by the settlement agreement/consent judgment between Hayden and Jacobs, ruling the agreement was the result of arm’s length negotiations and was reasonable. The court directed USFIC to pay to Jacobs the $135,070 Hayden was obligated to pay her under the terms of the settlement agreement/consent judgment and the $57,994.02 in fees and costs Hayden incurred in defending itself in the suit filed by Jacobs.

USFIC timely sought rehearing, arguing that (1) the settlement agreement did not require Hayden to pay Jacobs $100,000 plus the $35,070, but, rather, the $100,000 was inclusive of the $35,070 previously tendered; (2) absent a duty to defend, it was improper to require the insurer to bear the cost of Hayden’s fees and costs; and (3) there was inadequate evidence to support the $57,994.02. The court rejected the arguments raised in the motion for rehearing. This timely appeal followed.

Analysis

The settlement agreement/consent judgment material to this ease was described in the case of Coblentz v. American Surety Co. of New York, 416 F.2d 1059, 1063 (5th Cir.1969), wherein the court held that an insurer which had “refused to handle” its insured’s defense, thereby leaving its insured “to his own resources,” was bound by the terms of a negotiated final consent judgment entered against its insured.

Such agreements are valid and binding in Florida. An insurer will be bound to a settlement agreement/consent judgment negotiated between its insured and a claimant where (1) the damages are covered by the policy; (2) the insurer wrongfully refuses to defend; and (3) the settlement is reasonable and made in good faith. See Ahern v. Odyssey Re (London) Ltd., 788 So.2d 369, 372 (Fla. 4th DCA 2001).

This case is different for two distinct reasons. First, cases such as Ahem involve a policy containing a duty to defend. In this case, the policy is clear, and the parties have stipulated, that the insurer was under no duty to defend. Second, those cases clearly involve a breach of that duty. Because the insurer in this case adamantly asserts there was no breach of its duty to indemnify, we address that issue first, as a finding of no breach would be dispositive and render moot the more general question of whether a Coblentz agreement may be imposed on an insurer for breaching its duty to indemnify.

It is clear that an insurer’s duty to defend is broader than its duty to indemnify. See Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So.2d 611, 612-13 (Fla. 4th DCA 1982). In fact, an insurer’s duty to defend rises to the level of a fiduciary duty, requiring an insurer “ ‘to use [on behalf of its insured] the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.’ ” Berges v. Infinity Ins. Co., 896 So.2d 665, 668 (Fla.2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)).

Because the duty to defend is so broad and so important to an insured, its existence is determined early on based on only the allegations of the complaint. If the complaint sets forth facts which bring the claim within policy coverage, the duty to defend arises. See Farrer v. United States Fid. & Guar. Co., 809 So.2d 85, 88 (Fla. 4th DCA 2002). By contrast, the duty to indemnify is narrower and is determined by the underlying facts adduced at trial or developed through discovery during the litigation. See Travelers Indent. Co. of Ill. v. Royal Oak Enters., Inc., 344 F.Supp.2d 1358, 1366 (M.D.Fla.2004).

Throughout the Jacobs litigation, US-FIC steadfastly asserted that its liability was limited to the amount tendered, $35,070. At some point during discovery, a question arose as to when the $35,070 figure was inserted in the storage documents because Mrs. Jacobs contended it was not present when she signed them. USFIC then argued that even if the tendered amount was invalid, it had nonetheless discharged its duty by tendering an amount which exceeded the contractual default valuation of $0.30 per pound up to a maximum of $2,000. Its position was based upon paragraph 7 of the insurance contract and permanent language of the storage and contractual documents.

Hayden raises numerous reasons why the tendered amount was insufficient and why USFIC’s refusal to tender more clearly establishes a breach of its duty to indemnify.

First, Hayden relies on testimony adduced at trial and directly referenced in the lower court’s final judgment, which it believed established a concession that the duty to indemnify was breached. The colloquy between counsel and the USFIC representative went as follows:

Q: Okay. My question to you is what if it turns out that after a trial a jury determined that the $35,070 was not binding and, therefore, awarded a judgment against Hayden for substantially more than that amount? If that would have occurred is it your position that the insurance company would have paid the amount of that judgment?
A: Yes.

This testimony was given erroneous emphasis. Clearly, if the underlying claim had been fully litigated, and if a jury verdict had established liability in excess of $35,070, then the policy would clearly require indemnification in that amount. This conclusion, however, assumes a full trial and a jury verdict determining the contractual limitations of liability were either invalid or inapplicable.

Second, Hayden contends the complaint alleges gross negligence against it, thereby vitiating the limitations of liability. Although gross negligence may very well accomplish such a result, there is nothing “inherent in [the] settlement agreement,” other than bare allegations, indicating the presence of gross negligence. See Travelers Indem. Co., 344 F.Supp.2d at 1366; Hatmaker v. Liberty Mut. Fire Ins. Co., 308 F.Supp.2d 1308, 1313 (M.D.Fla.2004). Allegations alone may establish a duty to defend, but they do not establish a duty to indemnify.

Third, Hayden argues the limitations of liability, as described in paragraph 7 of the policy, i.e., tariff documents, bills of lading or shipping receipts, pertain only to shipping documents, not storage documents. Close scrutiny of the bill of lading reveals it contains all the terms set forth in the storage contract, with the only difference being that the storage contract includes a paragraph addressing “minimum period for storage.” The bill of lading also sets forth the monthly charge for storage. Obviously, the bill of lading addressed and governed both the transportation and storage of Jacobs’ property. This argument does not nullify the limitations of liability.

Fourth, in a related argument, Hayden argues the warehouse receipt or storage agreement is not valid because it fails to include an item enumerated in Florida Statutes section 677.202, i.e., the location of the warehouse where the goods were to be stored. Assuming Hayden’s argument to be factually correct, it does not produce the desired result. A missing term in a warehouse receipt does not invalidate or nullify the entire document. It merely subjects the warehouseman to any liability for damage caused by the omission of the term. In this case, the alleged omission bears no connection to the relevant damage and therefore has no affect on the limitation of liability.

Fifth, and finally, the limitation of liability may be avoided if there was credible evidence adduced at trial or “inherent in the settlement” that Jacobs was not given a full or fair opportunity to declare full value. Jacobs did not testify at trial, and there was no evidence to establish any hindrance to her ability to fully and fairly declare value. Absent any evidence that she was induced not to read the documents, or was prevented from exercising her right to declare value and choose alternative insurance amounts, she is bound to the documents signed. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977).

The policy in this case clearly provided the insured property was to be valued in an amount that would not exceed “the value as shown in tariff documents, bills of lading or shipping receipts if any.” The warehouse receipt and storage contract indicated a declared value of $35,070. Although some question was raised as to the validity of that declaration of value, there has been asserted no supportable reason to invalidate the $0.30 per pound limitation with a ceiling of $2,000. Accordingly, there was no legal basis to impose liability on USFIC in excess of $35,070, and it clearly fulfilled its duty to indemnify by tendering such amount.

As there was no breach of duty, the final judgment and order correcting final judgment entered below are reversed. The case is remanded with instructions to enter judgment in favor of USFIC.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

      . Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir.1969).

      . Throughout the record, the insured is alternatively referred to as Hayden Bonded Storage Warehouse, Inc.

      . The bill of lading and warehouse receipt both state at paragraph 3(e):
      Unless a greater valuation is stated herein, the depositor or owner declares that the value in case of loss or damage arising out of storage ... of the goods and the liability of the company for any cause for which it may be liable for each or any piece or package and the contents thereof does not exceed and is limited to 30$ per lb. per article, or for the entire contents of the entire storage lot does not exceed and is limited to $2,000....


author: ROTHENBERG, Judge.

text:
    Cecilia BRYAN, Appellant, v. David A. BRYAN, Appellee.
    No. 3D05-520.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Rehearing Denied June 16, 2006.

      Carolyn A. Pickard, Coral Gables, for appellant.
    Deborah Marks, Miami, for appellee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The wife, Cecilia Bryan, appeals a final judgment of dissolution of marriage. We affirm.

The husband, David Bryan, filed a petition for dissolution of marriage; and the wife counterclaimed and filed a third party claim against the husband’s business, Tropical Falls Landscaping & Maintenance, Inc. (“Tropical Falls”). The wife raised the following claims against the husband: dissolution of marriage; coerced prostitution pursuant to section 796.09, Florida Statutes; and assault and battery. In addition, the wife asserted a claim for breach of contract against Tropical Falls.

This court reversed the initial final judgment and remanded the case to the trial court “for a new final hearing on the dissolution issues.” Bryan v. Bryan, 824 So.2d 920, 921 (Fla. 3d DCA 2002). Upon remand, the final hearing was held from September 20 through September 24, 2004, and on December 1, 2004. On September 24, 2004, the courthouse closed at noon due to a hurricane. Prior to closing, however, the parties and the trial court discussed how much time was necessary to complete the final hearing. The husband’s counsel stated that he needed enough time to complete “summation and closings.” In response, the wife’s counsel replied, “We would like to submit to you just a proposed judgment.” The trial court agreed, and the husband’s counsel stated, “And if we want to, a closing layout?” The wife’s counsel responded, “Do it in writing.” In response, the trial court stated, “All right.”

At the conclusion of the final hearing on December 1, 2004, the trial court did not make any oral findings of fact or conclusions of law. The husband’s attorney stated that she needed two weeks to prepare and present a memorandum and proposed final judgment to the trial court. The trial court gave the parties two weeks to submit their proposed final judgments, and an additional week thereafter to file responses.

Both parties submitted proposed final judgments, and the wife filed a response to the husband’s proposed final judgment. The trial court entered a ten-page final judgment which is almost verbatim to the husband’s proposed final judgment, except for a few changes. The most significant change appears in Paragraph 13 of the final judgment, which addresses the wife’s counterclaim for assault and battery. The husband’s proposed judgment states, in part: “The Court resolves the differences in the evidence by finding insufficient evidence to sustain the Wife’s claims of assault and battery.” The final judgment, however, states: “The Court resolves the differences in the evidence by finding sufficient evidence to sustain the Wife’s claim of assault and battery, the Wife’s testimony on this issue being more credible than the Husband’s.” Moreover, the trial court awarded $1,000 to the wife on her claim for assault and battery. The wife’s motion for rehearing was denied, and this appeal followed.

The wife contends that based upon Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), the trial court reversibly erred because it delegated its decision-making authority to the husband’s counsel by adopting virtually verbatim the husband’s proposed final judgment, especially in light of the fact that the trial court failed to make any oral findings of fact or conclusions of law on the record. We disagree.

As in the instant case, Perlow involved a dissolution of marriage action in which the trial court made no oral findings of fact or conclusions of law. The similarities, however, end there. In Perlow, Mr. Perlow, a disbarred California attorney, was acting pro se. After approximately fifteen days of testimony, but prior to closing argument, Mr. Perlow asked the trial court whether he should submit a proposed final judgment. The trial court told him that he was not expected to do so, and that if it ruled in his favor, a legal aide from the family division would assist the trial court in drafting the final judgment. The following day, prior to closing argument, Ms. Berg-Perlow’s attorney presented the trial court with a twenty-five-page proposed final judgment with six pages of financial exhibits. After closing argument, the trial court asked Mr. Perlow whether he had drafted a proposed final judgment. Mr. Perlow informed the trial court that he had not, but asked whether he could submit one later that same day. The trial court once again told him that it was not necessary. Approximately two hours after the final hearing ended, the trial court signed Ms. Berg-Perlow’s proposed final judgment without making any changes, additions, or deletions.

Mr. Perlow appealed the trial court’s decision to the Fourth District Court of Appeal, arguing, in part, that the trial court improperly delegated its decision-making authority by adopting verbatim the proposed final judgment submitted by opposing counsel without making any oral findings of fact or conclusions of law on the record. Perlow v. Berg-Perlow, 816 So.2d 210, 217 (Fla. 4th DCA 2002). The Fourth District affirmed, and thereafter, the Florida Supreme Court granted review, finding that the decision was in conflict with Rykiel v. Rykiel, 795 So.2d 90 (Fla. 5th DCA 2000), quashed on other grounds, 838 So.2d 508 (Fla.2003).

The Florida Supreme Court quashed the Fourth District’s decision in Perlow holding that:

In a marital dissolution proceeding: (1) the trial judge may ask both parties or one party to submit a proposed final judgment; (2) if proposed final judgments are filed, each party should be given an opportunity to review the other party’s proposed final judgments and make objections; (3) if only one party submits a proposed final judgment, there must be an opportunity for review and objections by the opposing party; and (4) prior to requesting proposed final judgments, the trial judge should, when possible, indicate on the record the court’s findings of fact and conclusions of law.

Perlow, 875 So.2d at 384 (emphasis added).

In addressing the verbatim adoption of a party’s proposed judgment, the Florida Supreme Court in Perlow held that:

When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial judge did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.
While a trial judge may request a proposed final judgment from either or both parties, the opposing party must be given an opportunity to comment or object prior to entry of an order by the court. Moreover, the better practice would be for the trial judge to make some pronouncements on the record of his or her findings and conclusions in order to give guidance for preparation of the proposed final judgment.

Perlow, 875 So.2d at 390 (footnote omitted)(emphasis added).

In finding that there was an appearance that the trial court did not exercise its “independent judgment in the case,” the Florida Supreme Court placed a great deal of emphasis on the following facts: (1) the trial court adopted Ms. Berg-Perlow’s proposed final judgment without giving Mr. Perlow an opportunity to either object or respond to the proposed final judgment and, in fact, even discouraged Mr. Perlow from filing his own proposed final judgment; (2) the trial court signed Ms. Berg-Perlow’s proposed order within two hours of its submission without making any changes, additions, or deletions; and (3) the final judgment was “so one-sided in its findings and conclusions that it could only reflect the views of the party that drafted and proposed it.” Perlow, 875 So.2d at 390 n. 5.

The Second District recently noted in In re T.D., 924 So.2d 827, 828 (Fla. 2d DCA 2005), that the Florida Supreme Court had not “established a bright-line rule against the adoption of a party’s proposed judgment,” and therefore, articulated its position regarding proposed final judgments submitted by parties as follows:

The rule in this district, as elsewhere in Florida, is that we will reverse any judgment entered under circumstances that create an appearance that the judgment does not reflect the judge’s independent decision-making. However, the fact that the judgment was adopted from a proposal submitted by a party does not, standing alone, raise that possibility.

Id. at 831.

Prior to addressing whether Perlow is factually similar to the facts in the case under review, we note that “[i]n marital dissolution proceedings, it is quite common for the trial judge to request that both sides present a proposed final judgment at the conclusion of the case.” Perlow, 875 So.2d at 388. In addition, this procedure is acknowledged in the comments to Canon 3B(7), Florida Code of Judicial Conduct, which provides: “A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.” Therefore, the wife’s trial counsel’s request to submit a proposed final judgment was nothing out of the ordinary.

Reliance on Perlow does not require reversal as the facts in Perlow differ substantially from those before us. First, the record in the instant case indicates that the trial court actively participated in the final hearing by asking numerous questions and, as noted in the wife’s written closing argument, the trial court took notes during the final hearing. Second, the trial court allowed both parties to submit proposed final judgments and responses, and in fact, the wife actually filed a response to the husband’s proposed final judgment. Finally, a comparison of the trial court’s final judgment and the husband’s proposed final judgment indicates that the trial court’s final judgment was not a verbatim adoption of the husband’s proposed final judgment and that the final judgment was not “so one-sided in its findings and conclusions that it could only reflect the views of the party that drafted and proposed it.” Perlow, 875 So.2d at 390 n. 5. The trial court actually ruled in the wife’s favor on her claim for assault and battery, even though the husband’s proposed final judgment suggested otherwise, and made other substantive changes. See Chivari v. Ferrell, 909 So.2d 546 (Fla. 4th DCA 2005) (holding that Florida Supreme Court’s decision in Perlow was distinguishable “because the proposed judgment was furnished to the other side and afforded an opportunity to object, and because of the changes made in the judgment by the court”). Therefore, unlike Perlow, there is no appearance that the trial court did not exercise its “independent judgment in the case.” Perlow, 875 So.2d at 390.

Additionally, we note that the procedure employed here, submission of proposed orders by the attorneys, was in fact requested by the wife’s attorney! “[UJnder the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.” Goodwin v. State, 751 So.2d 537 (Fla.1999).

We do not specifically address the remaining arguments raised by the wife, as we conclude they lack merit.

Affirmed.

      . The appellant filed a motion seeking to stay the sale of real property and the distribution of personal property. On April 6, 2005, this court granted the appellant’s motion pending judicial review. We hereby immediately vacate this order, notwithstanding the filing of any motions for rehearing.


author: PER CURIAM.

text:
    Nelson David MOLANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1157.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See § 893.135(l)(b)(l)(b), Fla. Stat. (2001); Gartrell v. State, 626 So.2d 1364 (Fla.1993); Wilder v. State, 587 So.2d 543, 546 (Fla. 1st DCA 1991).


author: PER CURIAM. HAWKES, J.,

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Ralph Lee UTLEY, Respondent.
    No. 1D05-3297.
    District Court of Appeal of Florida, First District.
    April 24, 2006.
    Rehearing Denied June 7, 2006.
    Enoch J. Whitney, General Counsel, and Bryan Thomas Pugh, Assistant General Counsel, Tallahassee, for Petitioner.
    David M. Robbins, Esquire, and Susan Z. Cohen, Esquire, Epstein & Robbins, Jacksonville, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WEBSTER and POLSTON, JJ., CONCUR; HAWKES, J., concurs with opinion.

HAWKES, J.,

concurring.

The constitutional validity of a traffic stop depends upon purely objective criteria. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774 135 L.Ed.2d 89 (1996). The subjective knowledge, motivation or intention of the individual officers involved is irrelevant. See id. Under any other standard, application of the Fourth Amendment would vary from citizen to citizen, depending upon the officer’s knowledge or experience. Consequently, the subjective knowledge or intent of an individual officer can never invalidate otherwise objectively justifiable police conduct under the Fourth Amendment. See id. 517 U.S. at 812, 116 S.Ct. at 1774. “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain action to be taken in certain circumstances, whatever the subjective intent.” Id. 517 U.S. at 814, 116 S.Ct. at 1775 (emphasis in original).

The objective test “asks only whether any probable cause for the stop existed.” Holland v. State, 696 So.2d 757, 759 (Fla.1997); see also Dobrin v. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171 (Fla.2004) (holding trial court applied correct law by considering whether facts contained in arrest report provided an objective basis for vehicle stop, regardless of the officer’s stated reason for the stop). If the facts contained in the arrest report provide any objective basis to justify the stop, even if it is not the same basis stated by the officer, the stop is constitutional. See State v. Perez-Garcia, 917 So.2d 894 (Fla. 3d DCA 2005). In Perez-Garcia, the police officer initiated a traffic stop because he mistakenly thought the defendant’s missing left taillight was illegal. When the defendant challenged the stop, it was determined the vehicle had the legally required number of taillights. However, the Third District, applying the Whren test, held the traffic stop was constitutional because, even though the officer’s subjective reason for initiating the stop was erroneous, the facts contained in the arrest report provided an objective basis to support probable cause to initiate the stop for a reason not known by the officer, i.e., that the vehicle lacked equipment in proper working condition.

Here, when granting Respondent’s petition for writ of certiorari, the circuit court appeared to misapprehend the Florida Supreme Court’s Dobrin decision. Dobrin involved a traffic stop for failure to maintain a single lane. See Dobrin, 874 So.2d at 1172. The officer’s report, which was the only evidence before the fact finder, indicated the officer observed Dobrin driving at a high rate of speed (estimated at fifty miles per hour) drifting to the right and quickly correcting on several occasions. See id. When the officer stopped Dobrin, he observed his eyes were bloodshot and his breath smelled of alcohol. After Dobrin failed a field sobriety test, the officer arrested him for driving under the influence and, as a result of his refusal to take a breath test, the Department of Highway Safety and Motor Vehicles suspended his license. An administrative hearing officer upheld the suspension.

Dobrin subsequently challenged the validity of the stop, arguing the officer failed to specify in his arrest report that Dobrin had actually gone beyond a single lane. See id. The circuit court, in its appellate capacity, granted Dobrin’s petition for writ of certiorari, finding the facts observed by the officer and contained in the arrest report did not provide probable cause to stop Dobrin for failure to maintain a single lane. See id. In upholding the circuit court’s decision, the Florida Supreme Court reiterated the proper test to determine if the stop was reasonable was whether there was an objectively reasonable basis for the officer to initiate the stop. See id. at 1174. The Dobrin court concluded the circuit court applied the correct law by considering “whether the facts contained in the arrest report provided an objective basis to stop Dobrin’s vehicle for failure to maintain a single lane.” See id. at 1175. This was so, because the officer’s report was the only evidence before the fact finder, and the facts contained in the report did not provide an objective basis to support probable cause to initiate a stop for the stated reason, or a reason other than that given by the officer.

However, in the case at bar, it appears the circuit court construed this language to mean the facts contained in the officer’s report could be evaluated only to determine whether they provided probable cause to support the officer’s subjective reason for initiating the stop. The circuit court is incorrect. Because that is not the test established by Whren, it cannot be the holding in Dobrin, despite its somewhat ambiguous wording. The Florida Constitution expressly provides that State search and seizure protections “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Art. I, § 12 Fla. Const.; see also Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975) (noting “a State is free as a matter of its own law to impose greater restrictions [on] police activity than those this Court holds to be necessary upon federal constitutional standards,” it “may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.”). Consequently, because of article I, section 12, of the Florida Constitution, Florida cases cannot be construed in such a way as to conflict with, or create any greater burden than that established by the United States Supreme Court’s holding on this issue.

Here, the circuit court’s reason for granting Respondent’s petition for writ of certiorari was that the officer’s report, which indicated the officer’s subjective motivation for initiating the stop (failure to maintain a single lane) was not supported by competent, substantial evidence. The court concluded that, since the evidence did not support a stop for the reasons stated by the officer, the stop could not be justified for any reason.

In reaching its conclusion, the court noted that, had the officer’s report indicated he stopped the vehicle because he suspected Respondent was driving under the influence, or was ill, tired, or in distress, the facts contained in the report would have justified the stop. Thus, the trial court used a subjective, rather than an objective standard to determine the constitutional reasonableness of the stop. Because the United States Supreme Court rejected this reasoning in Whren, we must reject it here.

Clearly, the circuit court applied the wrong law. However, we are compelled to deny the petition for writ of certiorari, because Petitioners did not raise this argument before the circuit court, or in their petition for writ of certiorari. Since we are precluded from reversing for reasons not raised, the petition for writ of certiora-ri must be denied.


text:
    Raymond PARDON, a/k/a Peter Pardon, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4231.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied June 29, 2006.
    James S. Lewis and Melissa Minsk Do-noho, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Raymond Pardon, also known as Peter Pardon, appeals his convictions of attempted robbery, aggravated battery on a person older than sixty-five, and aggravated assault with a deadly weapon. He contends that the court failed to suppress his statements made in violation of his Miranda rights due to a detective’s failure to honor his request for an attorney and that prosecutorial misconduct constituted fundamental error. We conclude that the court did not err in either regard and affirm.

Pardon was seeing Michelle Madden, an admitted prostitute, while he was separated from his wife. According to Madden, the two were using drugs for days and had no money for any more drugs. While driving around, they spotted an elderly couple at a bus stop. Madden said that Pardon told her to get out of the car and get the elderly woman’s purse. Madden had a knife in her hand when she got out of the car. She grabbed the purse, and the woman and her husband started fighting her. She tried to slash both the husband and the wife with her knife when another woman yelled at her, making her come back to reality. She said that Pardon then backed the car up, opened the passenger door, and helped her get back in. He started to accelerate while holding the door open. They then left the scene.

Pardon was eventually arrested, and Detective Moore was assigned as the lead detective in the case. He conducted an interview of Pardon. Moore required Pardon to read the Miranda rights out loud. As Pardon read about his right to an attorney, the following exchange took place:

Pardon (reading): And in regards to this investigation, have you previously asked a police officer to allow you to speak to an attorney? Yeah. I did that. No, I’m going to put no.

Moore immediately asked Pardon to explain what he meant. Pardon related that when he was downstairs he briefly asked one of the officers if he could talk to his attorney. Moore asked if he still wanted to talk to an attorney or if he wanted to talk to Moore, and Pardon said he wanted to talk to Moore.

After asking Pardon to sign the waiver of Miranda rights, Moore again asked about his previous request for an attorney. Pardon said he had asked one of the officers who “rode me over here” about whether he would get to see his attorney. Pardon stated, “And he said to me, you’ll have to worry about that later. At this point, I guess he didn’t, you know feel that I need an attorney because there was no questioning going on.... ” Again, Moore asked if Pardon really wanted to talk with him and whether he understood his rights. Pardon stated that he did want to talk to Moore and proceeded to make a statement.

Pardon moved to suppress the statement, claiming that when he informed Moore that he had previously requested counsel, he effectively invoked his right to counsel under the Fifth Amendment and under article I, section 9, of the Florida Constitution. The state could not show a valid waiver of that right by showing only that Pardon was responding to further police-initiated custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). There, the Supreme Court explained:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Id. at 484-85, 101 S.Ct. 1880 (footnote omitted).

Although Miranda safeguards require the police to unequivocally honor an arrestee’s request not to speak to the police without counsel, the warnings are not required unless a defendant is subject to “custodial interrogation.” Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Traylor v. State, 596 So.2d 957 (Fla.1992). The Supreme Court in Innis, 446 U.S. at 300, 100 S.Ct. 1682, stated, “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” The Supreme Court found that in Innis, even though the defendant was in custody while being transported to the police station, he was not interrogated where the patrolmen transporting him were talking to each other and he voluntarily provided them with incriminating information.

Similarly, Pardon was merely in custody while being transported to the police station when he asked for counsel. He was not being interrogated, as was clear from his own comments to Detective Moore. No evidence was presented to support a finding that there was either express questioning or the functional equivalent.

The state maintains that the Miranda right to counsel cannot be anticipa-torily invoked when custodial interrogation is not imminent, as held in Sapp v. State, 690 So.2d 581 (Fla.1997). We agree. Relying on a footnote in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), the Sapp court determined that an individual is not entitled to “invoke the Miranda right to counsel before custodial interrogation has begun or is imminent.” Id. at 585. In Sapp, the defendant who was in custody on a different crime, invoked his right to counsel, and then was questioned by police days later on another matter after being Mirandized again but without re-asserting his right to counsel. The court held that Sapp’s invocation of his right to counsel in the first case did not invoke his Fifth Amendment right under the United States Constitution or his right under article I, section 9 of the Florida Constitution for the second case, because interrogation in the second case was not imminent when the right was invoked.

Further explaining Sapp, the court in Ault v. State, 866 So.2d 674, 682 (Fla.2003), said:

[I]t is clear from the analysis in Sapp that this Court was not concerned with the time between the invocation of rights and the questioning on the unrelated charge. Rather, it is custodial interrogation that triggers the Miranda prophylactic. As this Court explained in Sapp, “requiring the invocation [of the right to counsel] to occur either during custodial interrogation or when it is imminent strikes a healthier balance between the protection of the individual from police coercion on the one hand and the State’s need to conduct criminal investigations on the other.” 690 So.2d at 586. As we stated in Traylor v. State, 596 So.2d 957, 965 (Fla.1992), “We adhere to the principle that the state’s authority to obtain freely given confessions is not an evil, but an unqualified good.” Accord Hess v. State, 794 So.2d 1249, 1259-61 (Fla.2001).

In McNeil, on which Sapp relied, the Supreme Court determined that an accused’s invocation of his Sixth Amendment right to counsel during judicial proceedings did not constitute invocation of the Fifth Amendment right to counsel. Explaining the difference between the two rights, the court said:

The purpose of the Sixth Amendment counsel guarantee-and hence the purpose of invoking it-is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. [U.S. v.] Gouveia, 467 U.S. [180] at 189, 104 S.Ct. [2292] at 2298 [81 L.Ed.2d 146 (1984) ]. The purpose of the Mirandar-Edwards guarantee, on the other hand-and hence the purpose of invoking it-is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards, supra, 451 U.S., at 484, 101 S.Ct., at 1884. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen).

McNeil, 501 U.S. at 177-78, 111 S.Ct. 2204. In a footnote, the Supreme Court stated:

We have in fact never held that a person can invoke his Miranda rights anticipa-torily, in a context other than “custodial interrogation” — which a preliminary hearing will not always, or even usually, involve, cf. Pennsylvania v. Muniz, 496 U.S. 582, 601-602, 110 S.Ct. 2638, 2650-2651, 110 L.Ed.2d 528 (1990) (plurality opinion); Rhode Island v. Innis, 446 U.S. 291, 298-303, 100 S.Ct. 1682, 1688-1691, 64 L.Ed.2d 297 (1980). If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Assuming, however, that an assertion at arraignment would be effective, and would be routinely made, the mere fact that adherence to the principle of our decisions will not have substantial consequences is no reason to abandon that principle. It would remain intolerable that a person in custody who had expressed no objection to being questioned would be unapproachable.

Id. at 182 n. 3, 111 S.Ct. 2204; see also U.S. v. LaGrone, 43 F.3d 332, 340 (7th Cir.1994) (“We believe that not allowing a defendant to invoke his Miranda rights anticipatorily does not place an arduous burden on the defendant — all he needs to do is invoke his right in response to or just before interrogation.”).

Here, the interrogation of Pardon was not imminent. He was merely being booked into detention, albeit on the same charge on which he was later questioned. Questioning did not occur until a few hours later. Any request for an attorney at this point was an anticipatory invocation of his Miranda rights which would not prevent the officers from later reading him his rights preparatory to interrogation. He could have easily asserted his right to an attorney when Moore asked him about it, but he did not. No constitutional violation is present.

With respect to his trial, Pardon contends that the statements in the prosecutor’s closing argument were so egregious as to constitute fundamental error. We have reviewed the argument and do not conclude that the unobjected-to comments rose to the level of fundamental error. For the most part, the statements were supported by the evidence at trial. But, individually or collectively, we do not find that they are so egregious as to warrant a new trial.

Affirmed.

KLEIN and HAZOURI, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).