author: SCOLA, JACQUELINE HOGAN, Associate Judge. WARNER, J., GROSS, J.,

text:
    LIGGETT GROUP, INC., Appellant, v. Beverly DAVIS, Appellee.
    No. 4D04-3811.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      Denise B. Crockett and Alvin B. Davis, P.A., of Steel Hector & Davis, LLP, and Kelly A. Luther of Clarke Silverglate Campbell Williams & Montgomery, Miami, for appellant.
    John F. Venable of Venable & Venable, P.A., Brooksville, and Angel M. Reyes and Daniel F. O’Shea of Reyes & O’Shea, P.A., Miami, for appellee.
   SCOLA, JACQUELINE HOGAN, Associate Judge.

Appellant, Liggett Group, Inc., appeals a jury verdict in favor of appellee, Beverly Davis, with respect to two legal theories: negligence and defective design of the cigarettes causing Davis’ harm, lung cancer. The jury awarded damages in excess of $500,000 to Davis. Liggett appeals the jury’s findings claiming first, federal preemption and second, that in spite of the two-issue interrogatory submitted to the jury on the second .of Davis’ verdicts, there was- no evidence of an alternative safer design applicable to both theories which would have reduced or prevented Davis’ injuries; thus, the trial court should have granted Liggett’s motion for directed verdict. This error, Liggett claims, was compounded by erroneous instructions on the strict liability claim.

The first question raised is whether the trial court erred in permitting the jury to consider a “continuing to manufacture cigarettes” claim. We answer the question in the affirmative.

As to the second question, we hold that the trial court did not err in refusing to grant a directed verdict on Davis’ strict liability design defect claim; and next, that there was no error in the jury instructions on Davis’ strict liability design defect claim.

Because the jury’s verdict of damages may be sustained on the strict liability claim, we affirm.

FACTS

Beverly Da-vis sued Liggett Group, Inc., for injuries she suffered as a result of smoking Chesterfield cigarettes, manufactured by Liggett, from 1951 to 1974. In 2001, Davis was diagnosed with lung cancer. Though she had continued to smoke cigarettes after 1974, she had switched to a brand manufactured by another company. The jury awarded Davis over $500,000 finding in her favor on two of her claims, the “negligent continuing to manufacture” claim and the “strict liability defective design” claim.

The trial court instructed the jury that there were two distinct claims presented: negligence and product liability. In charging the jury on the negligence claim, the relevant part of the jury instruction told the jury that they should determine whether Liggett “was negligent in doing or failing to do one or more of the following,” one of which was “continuing to manufacture Chesterfield cigarettes when it became known to [Liggett] that such cigarettes posed significant risk to the health of smokers of such cigarettes.”

As to the strict liability claim, the trial court instructed the jury they must determine “whether the Chesterfield cigarettes manufactured by [Liggett] were defective when they left [Liggett’s] possession;” and if so, whether the defect was the legal cause of the damage. The trial court further explained, “[a] product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect, when used as intended or in a manner reasonably foreseeable by the manufacture, or the risk in the design outweighs the benefits.” Liggett did not object to the this issue verdict form. Liggett did request a special jury instruction which the court refused to give.

NEGLIGENCE IN CONTINUING TO MANUFACTURE

Liggett argues that by allowing the jury to consider a negligence claim based merely on its continuing to manufacture cigarettes, the trial court violated federal conflict preemption, claiming Congress has rejected a ban on cigarette products and foreclosed the removal of cigarettes from the market. Liggett further argues that such a claim circumvented the elements of Florida products liability law. Davis responds that her negligence claim was not preempted and is a legally viable negligence claim.

STRICT LIABILITY DESIGN DEFECT

Liggett claims that the trial court should have granted a directed verdict on the defective design claim because Davis did not prove that the cigarettes manufactured by Liggett were dangerous beyond that contemplated by the ordinary consumer; nor, Liggett claims, did Davis prove that an alternative design would have allowed her to avoid her injury. Davis responds that where the jury was instructed as to both the ordinary consumer test and the risk utility test and a general verdict form was used, reversal is not warranted under the “two issue rule.” In addition, Davis argues that should this court decide to review this issue despite the “two issue rule,” the trial court did not err in refusing to grant the directed verdict as to this claim. Finally, Davis claims, the court did not err in refusing to give a jury instruction as requested by Liggett because the instruction was not a correct statement of the law.

STANDARD OF REVIEW

This court reviews a trial court’s decision on a motion for directed verdict using the de novo standard. See Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005). “A motion for directed verdict should be granted when there is no evidence or reasonable inferences upon which a jury could legally predicate a verdict in favor of the nonmoving party.” Wallent v. Fla. Power Corp,, 852 So.2d 339, 342 (Fla. 2d DCA 2003).

PREEMPTION

Appellant argues that the trial court erred in allowing the jury to consider the continuing to manufacture claim relying primarily on Food and Drug Administra tion v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), for the proposition that Congress intends to keep cigarettes on the market and, therefore, to make the manufacture of cigarettes tortious conflicts with federal law. Appellant asserts that his position was recognized by the third district in Liggett Group Inc. v. Engle, 853 So.2d 434, 460 (Fla. 3d DCA 2003), reversed by Engle v. Liggett Group Inc., 945 So.2d 1246 (Fla.2006).

The doctrine of conflict preemption prevents state laws which conflict with federal statutes from being applied. De Jesus Rivera v. R.J. Reynolds Tobacco Co., 368 F.Supp.2d 148, 154 (D.Puerto Rico 2005) (citing FDA, 529 U.S. at 121, 120 S.Ct. 1291). Conflict preemption occurs where “a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively or when state law is in actual conflict with federal law.” Freightliner Corp. v. Myr-ick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal citation omitted). Conflict preemption turns on the identification of “actual conflict and not an express statement of preemptive intent.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). “If Congress gives express sanction to an activity, the states cannot declare that activity tortious.” Insolia v. Philip Morris Inc., 128 F.Supp.2d 1220, 1224 (W.D.Wis.2000) (citing Geier, 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914).

“Congress has foreclosed the removal of tobacco products from the market.” De Jesus Rivera, 368 F.Supp.2d at 154 (citing Prado Alvarez v. R.J. Reynolds Tobacco Co., 313 F.Supp.2d 61, 72 (D.Puer-to Rico 2004)). Insolia stands for the proposition that Congress’ considered decision that sale of cigarettes was not only not illegal but part of the market that the government supported, preempted a state negligence claim against tobacco manufacturers based on their continuing to manufacture and sell cigarettes once they realized the danger that cigarettes posed, even though no statute or regulation explicitly preempts such claims. Such is the very claim in the case at hand.

Appellee argues that appellant has ignored Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In that case, the Supreme Court addressed the issue of preemption and whether state law common law actions for failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to misrepresent or conceal material facts were preempted. Cipollone, 505 U.S. at 524-30, 112 S.Ct. 2608. Even though none of the opinions in Cipollone acquired a majority, the plurality has been treated as a majority opinion and the test articulated therein is “... whether the legal duty is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based 5n smoking and health ... imposed under State law with respect to ... advertising or promotion.’ ” Id. at 523-24, 112 S.Ct. 2608. The Court therein addressed specific causes of action which are different from those dealt with here, but ultimately found that state laws which required a showing that warnings on cigarettes should have been more clearly stated, were preempted, and the state law claims based on the manufacturer’s practices of testing or research unrelated to advertising were not preempted.

The Eleventh Circuit Court of Appeals in Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir.2004), explained the Cipollone test stating that “under Cipollone whether a state law claim is preempted is dependent on the exact nature of that particular claim.” Spain, 363 F.3d at 1193.

Our own Florida Supreme Court pointed out in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000) that express warranty claims are not preempted because “liability for express warranty is not imposed under state law but rather by the warrantor’s express actions.” Carter, 778 So.2d at 940. It would appear, therefore, that not all claims are preempted, only certain ones.

Appellant’s position in this case, however, is more far-reaching than preemption and goes to the broader argument that where Congress clearly intends to keep cigarettes on the market, the manufacture of them cannot be considered tortious.

Although recently in Ferlanti v. Liggett Group, Inc., 929 So.2d 1172, 1174 (Fla. 4th DCA 2006), our own court determined that there is no federal preemption of design defect claims; the issue was never addressed other than in dicta in Engle, 945 So.2d 1246. The few comments regarding preemption were made in connection with the propriety of the closing argument of counsel, and neither the Supreme Court nor the Third District squarely addressed the issue of conflict preemption.

Nevertheless, not only our court in Fer-lanti but also the Second District in Philip Morris USA, Inc., v. Amitz, 933 So.2d 693 (Fla. 2d DCA 2006), has held that a design defect claim against a cigarette manufacturer is not preempted by federal statutes. This is the prevailing position of courts which have addressed this issue. See, e.g., Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo.Ct.App.2006); Boemer v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir.2005); Rose v. Am. Tobacco Co., 3 Misc.3d 1103(A), 787 N.Y.S.2d 681 (N.Y.Sup.2004). But see De Jesus Rivera, 368 F.Supp.2d 148 (D.Puerto Rico 2005).

Indeed, the United States Supreme Court noted that many common law claims are not preempted from regulation, including a description of claims that we conclude are design defect claims. In Cipol-lone, a case addressing the extent that Congress preempted common law claims against cigarette manufacturers, the Court wrote:

That the preemptive scope of § 5(b) cannot be limited to positive enactments does not mean that that section preempts all common-law claims. For example, as respondents concede, § 5(b) does not generally preempt “state-law obligations to avoid marketing cigarettes with manufacturing defects or to use a demonstrably safer alternative design for cigarettes.” For purposes of § 5(b), the common law is not of a piece.

Cipollone, 505 U.S. at 523, 112 S.Ct. 2608 (emphasis added) (footnote omitted). This clearly indicates that the Court did not consider a design defect claim as being preempted by Congress.

We therefore conclude that the negligence claim based on Liggett’s mere continuing to manufacture cigarettes is barred by conflict preemption. We can find no authority for a claim for negligently continuing to manufacture cigarettes. According to the jury instruction, the claim seeks to hold Liggett liable for continuing to manufacture cigarettes when it became known to Liggett that they posed a significant danger to the health of smokers. Although Davis specifically directs this claim against Chesterfield cigarettes, it is clear from the evidence at trial as well as the literature that this claim would necessitate all manufacturers from refraining from producing cigarettes because they all pose significant danger to the health of smokers. Thus, to allow this claim would be contrary to Congress’ intent to protect commerce and not to ban tobacco products. See Food and Drug Admin., 529 U.S. at 138-39, 120 S.Ct. 1291. We view this claim as promoting an “across-the-board, Prohibition-style ban on tobacco products.” See Conley v. R.J. Reynolds Tobáceo Co., 286 F.Supp.2d 1097, 1107 (N.D.Cal.2002). We, therefore, hold that this claim is barred by conflict preemption. See also Insolia, 128 F.Supp.2d at 1223 (negligence based upon continued sale of product “would run afoul of the congressional policy that the sale of cigarettes is legal”).

TWO ISSUE RULE

Davis urges affirmance based on the “two issue rule.” We addressed the “two issue rule” in Zimmer, Inc. v. Bimbaum, 758 So.2d 714 (Fla. 4th DCA 2000). In Zimmer, as in this case, a general verdict form was submitted, without objection, to the jury based on two alternative theories of liability. In that case, again, as in this one, the alternative theories were the “ordinary consumer” test and the “risk benefit” test. The court in Zimmer affirmed the verdict finding it impossible to determine under which theory the jury found the defendant hable. The charge to the jury was to determine whether the product was unreasonably dangerous based on the expectations of the ordinary consumer (“ordinary consumer” test) and also, whether the risk caused by the dangers to the ordinary consumer outweighed the benefits received by them (the “risk benefit” or “risk utility” test). This court acknowledged in Zimmer that the argument that the installer of the product did not qualify as the “ordinary consumer” was compelling, but because the jury could have found for the appellee on the “risk utility” theory, the second of the two issues, the court affirmed the decision relying on the “two issue rule.” Zimmer, 758 So.2d at 715. In Zimmer, just as in the instant case, there were alternative theories of liability and the court found that the verdict would stand, because at least one of the two theories was legally valid.

More recently, the Fifth District has found that the appellate court may sua sponte raise the “two issue rule” and that a general verdict will be affirmed if there was no error as to one of the issues. Food Lion, L.L.C. v. Henderson, 895 So.2d 1207, 1209 (Fla. 5th DCA 2005).

Liggett acknowledges that there were two design defect theories in the instant case and that the “two issue rule” would apply ordinarily. However, Liggett argues that the “two issue rule” does not preclude reversal because as a directed verdict was required under both tests, as proof of a safer alternative design was required and this proof was not presented. As well, Liggett asserts, the risk utility does not even apply to cigarettes. Clearly, and Liggett does not argue otherwise, if Davis were to prevail under either theory of product liability, the verdict would have to be upheld under the “two issue rule.” That is because we cannot determine under which theory the jury found liability. See Zimmer, 758 So.2d 714. We examine each theory and its application separately.

RISK-UTILITY TEST

The Restatement (Second) of Torts, section 402A was adopted as the law of Florida by the Supreme Court in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976). Moreover, the Restatement (Third) of Torts has not yet been adopted in Florida. See McConnell v. Union Carbide Corp., 937 So.2d 148 n. 4 (Fla. 4th DCA 2006) (“We purposefully forbear from any reliance on the Restatement (Third) of Torts and its risk-benefit analysis until the supreme court has recognized it as correctly stating the law of Florida.”); Force v. Ford Motor Co., 879 So.2d 103, 107 (Fla. 5th DCA 2004) (“Nevertheless, the Restatement (Third) position has not been adopted by any appellate court in Florida.”). Pennsylvania courts have refused to embrace the risk-utility analysis in such situations. See Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485, 489 (E.D.Pa.1988). In Miller, the court held that cigarette claims in an action against a cigarette manufacturer for death caused by cigarette smoking on grounds that cigarettes gave no benefit to society, but imposed great risk could not be maintained.

Liggett asserts that there was not evidence that a safer alternative design was available here which would allow for application of the risk-utility test. We agree that the record was devoid of evidence of a safer design for cigarettes. Further, whether proof of an alternative safer design was required or not, Davis argued strongly in her closing at trial that Liggett should have turned to cigars instead as an “alternative safer design.”

As Liggett also correctly points out, the record is devoid of any evidence that Davis would have availed herself of that option or that it would have avoided or lessened her injuries. It is common knowledge and requires no citation or expert testimony to understand that cigars are an entirely different product from cigarettes.

Thus, even assuming that Florida recognized the risk-utility test of the Restatement (Third) of Torts, the federal government’s pronouncement that the continued manufacture of cigarettes is a sanctioned activity precludes application of this theory to cigarettes. Therefore, the strict liability verdict cannot be upheld under this theory of liability.

ORDINARY CONSUMER TEST

Assuming a directed verdict should have been granted with regard to the risk-utility test, we move to the question of whether the verdict could have been upheld on the second of the general verdict issues, the ordinary consumer expectations test, which has not been specifically tested in Florida state courts with respect to cigarettes. Because the motion for directed verdict was properly denied under the “ordinary consumer” test theory, the verdict should stand.

Liggett makes two arguments. First, that Davis had the burden of presenting evidence that the dangers here were greater than the dangers expected by the ordinary consumer. Liggett claims that there was absolutely no testimony that the dangers of Chesterfield cigarettes were beyond what was expected by the ordinary consumer. Second, Liggett argues that Davis had the duty to present evidence of a safer alternative design, and that there is no evidence of a safer alternative design.

Both sides point to evidence presented during trial which supports their respective positions regarding the “ordinary consumer expectations.” Indeed, there is evidence on both sides. And, where there is any evidence from which the finder of fact may reasonably conclude that the non-moving party prevails, that verdict should stand. See Lester’s Diner II, Inc. v. Gilliam, 788 So.2d 283, 285 (Fla. 4th DCA 2000). Thus, at least for the years from 1951 to 1968, there is sufficient evidence from which the jury could reasonably have concluded that Davis, as an ordinary consumer, was not aware of the extent of the dangers of the product she was consuming. After 1968, Congress came to recognize, as a matter of law, that warnings should and would be required on cigarette packs manufactured and sold throughout the United States. Though, as Liggett argues, testimony was presented that the average consumer knew of the dangers before that time, the jury was free to disregard or disbelieve that testimony, and there was testimony from which the jury could reasonably have concluded otherwise. Therefore, this argument favors upholding the verdict.

If there is any evidence to support a verdict for the nonmoving party, a directed verdict is improper. Gilliam, 788 So.2d 283. Here, there was evidence presented that at least up until the time Congress addressed the issue of required warnings, the average consumer may not have known of the dangers. And Davis testified that she was one such consumer. The jury was free to accept that testimony. Therefore, the verdict on the “ordinary consumer” theory will not be disturbed.

The question remains whether Florida law requires that a plaintiff prove a safer alternative design and thus the requested jury instruction was improperly denied. We find no case which holds that a plaintiff is required to show a safer alternative design in order to prevail on a strict liability design defect claim. Rather, it appears to be one factor which can be demonstrated and argued to the jury.

Though this particular issue has not been dealt with in Florida, Pennsylvania courts have addressed this question. See Goldstein v. Morris, 854 A.2d 585 (Pa.Super.2004). In 1990, citing to Section 402A Restatement (Second) of Torts, a Pennsylvania court rejected claims that cigarette companies could be held liable merely for manufacturing a legal and regulated product with inherent risks. Id. at 589 (citing Hite v. R.J. Reynolds Tobacco Co., 396 Pa.Super. 82, 578 A.2d 417 (1990)). In dismissing design defect claims, the Hite court, quoting Berkebile v. Brantly Helicopter Corp., 462 Pa. 88, 337 A.2d 893, 899 (1975), reiterated: “ ‘Section 402A recognizes liability without fault and properly limits such liability to defective products. The seller of a product is not responsible for harm caused by such inherently dangerous products as whiskey or knives that despite perfection in manufacture, design or distribution, can cause injury.’ ” Hite, 578 A.2d at 420.

As we pointed out earlier, Florida courts have adopted Section 402A of the RESTATEMENT (SECOND) of ToRts as the standard for product liability in West v. Caterpillar Tractor Co., 336 So.2d 80, 87 (Fla.1976). Product liability cases under Florida law require proof of two things. Jennings v. BIG Corp., 181 F.3d 1250, 1255 (11th Cir.1999). First, that the product is defective; and, second, that such defect caused plaintiffs injuries. Id. A product may be defective by virtue of design defect, manufacturing defect, or an inadequate warning. Id. In this instance, we are examining a claim of design defect. However, the question of design defect has been further explained as a defect which renders the product unreasonably dangerous. See id. (emphasis added). The defectiveness issue in both tests at issue is based on an objective standard and not the viewpoint of any particular consumer. Id. (citing Hobart Corp. v. Siegle, 600 So.2d 503, 505 n. 3 (Fla. 3d DCA 1992)). The “normal public expectation of danger” is a consideration in analyzing a claim under the “risk benefit” test and, as well, the ordinary consumer’s expectation is a required consideration under the “consumer expectations” test. Hobart, 600 So.2d at 505 n. 3 (citing Auburn Mach. Works Co. v. Jones, 366 So.2d 1167, 1170 (Fla.1979)). Because we find that the risk-utility test is not applicable to the case at hand, we consider this in light of the ordinary consumer test only.

Liggett has asked the court to look to its prior reliance on the Restatement (ThiRd) of Torts in defining what defective design is or what constitutes an unreasonably dangerous product. Although we referred to the Restatement (Third) of ToRts previously in Scheman-Gonzalez v. Saber Manufacturing Co., 816 So.2d 1133, 1139 (Fla. 4th DCA 2002), we did so merely to make the point that “a product is defective in design Svhen the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design’ and its omission ‘renders the product not reasonably safe.’ ” Id. at 1139. We added in Sche-man-Gonzalez, that if “a product [wa]s reasonably safe, the fact that there may be a better alternative design is not grounds for product liability.” Id. at 1141.

Liggett also cites Husky Industries, Inc. v. Black, 434 So.2d 988 (Fla. 4th DCA 1983), to suggest that a directed verdict should have been granted in the instant case. In Husky, this court reversed a trial court’s denial of a directed verdict. There, plaintiff alleged that a manufacturer was strictly liable for damages caused by a product which was allegedly defective because of its color and its failure to have a particular safety “device.” Husky, 434 So.2d at 990. The case was reversed because the plaintiffs witness lacked the knowledge and expertise to establish that the product was unreasonably dangerous, particularly where there was evidence that the plaintiff misused the product. Husky, 434 So.2d at 995 n. 11. The misuse in Husky makes the case inapplicable to the case at hand. The court did discuss, albeit in dicta, that there was no testimony that the proposed alternative design would have been safer.

Davis argues that she does not have the duty to present evidence of a safer alternative design in order to prevail against Liggett on a claim of strict liability design defect. This is true in the strictest sense. However, we note that Davis certainly argued in her closing argument that Liggett chose not to make a safer cigarette, but that even if Liggett could not find a safer cigarette, it should have stopped making cigarettes in favor of cigars because they are safer. Because of this, as well as an apparent trend in the law to consider that factor, the safer alternative design language could probably have been included in the jury instructions as a factor to be considered by the jury, had the court exercised its discretion to do so. Liggett requested the following jury instruction be given:

To recover under plaintiffs’ theory of liability for design defect, you must further determine (1) whether the alleged injuries plaintiff Beverly Davis sustained as a result of the challenged design for the Liggett Chesterfield cigarettes she smoked would have been avoided, or less severe, had Liggett used a feasible and then available alternative design, (2) whether Beverly Davis would have used the product employing the alternative design instead of the Liggett Chesterfield cigarettes that she did smoke, and (3) that if she had used a product with this alternative design, her injuries would have been avoided.

However, because the court read the Standard Jury Instructions to the jury and the jury instruction proposed by Liggett was not a proper statement of the law as it stood at the time of trial, the court did not err in failing to give the requested instruction.

The standard civil jury instruction for strict liability (design defect) does not include any mention of an alternative design requirement. See Fla. Std. Jury Inst: (Civ.) PL4-PL5 (2004) (FSJI). We have recently held that the standard jury instructions are presumptively correct and should be used unless a party shows the contrary. McConnell, 937 So.2d at 153 (while the standard jury instructions recognize the possibility that even a standard instruction might not accurately state Florida law in a given circumstance, the operating presumption should be that the standard jury instructions are accurate until a litigant makes a showing to the contrary). The instruction proposed by Liggett did not accurately state the law because there is no requirement of an alternative design in a design defect claim. Given the law on jury instructions, there was no error in the trial court’s jury instruction.

Affirmed.

WARNER, J., concurs specially with opinion.

GROSS, J., concurs specially with opinion.

WARNER, J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.

WARNER, J.,

concurring specially.

I concur in the result and agree that the negligent continuing to manufacture claim is barred by conflict preemption. I write separately on the consumer expectation test for the strict liability design defect claim.

The definitions and elements of a cause of action for design defect in the standard instruction are as follows:

A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] [or] [the risk of danger in the design outweighs the benefits].

Fla. Std. Jury Instr. (Civ.) PL 5 (2004). However, Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), notes that this definition does not work well in design defect cases.

The consumer expectation standard, though adequate to identify unintended manufactured defects, is more difficult to apply as to the other two generally recognized types of product defects: (1) design defects those which are due to design error because unforeseen hazards accompany normal use of the product created according to design, and (2) defects resulting from misinformation or inadequate warnings. As to the last two defects, the standard is said to be a very vague and imprecise one because the ordinary consumer cannot be said to have expectations as to safety regarding many features of complexly made products that are purchased, such as the risk of fire from the way gasoline tanks are installed in cars, or the magnitude of risks involved in vehicles overturning. Due to the difficulty in applying the consumer expectation standard to all types of product defects, many thoughtful commentators have suggested that it should be rejected, particularly as to those defects arising from design, in favor of a test that would weigh the utility of the design versus the magnitude of the inherent risk.

Id. at 1145 (footnotes omitted). With respect to the manufacture of cigarettes, this standard becomes even more difficult to apply because of the nature of cigarettes. There is no “safe” cigarette. Studies show that all cigarettes are carcinogenic and thus harmful to health. Thus, it is hard to apply the consumer expectation test which involves an expectation that a properly designed form of the product will perform safely, when no cigarette will. Further, as Judge Scola explains, the risk-utility test is inapplicable to cigarettes. Thus, neither test applied in “normal” design defect cases adequately addresses how strict liability should be applied in the case of cigarettes.

Judge Gross notes that comment (i) to the Restatement (Second) of Torts § 402A states that cigarettes are not “unreasonably dangerous” merely because the effects of smoking are harmful. That comment explains that “good tobacco” would not be unreasonably dangerous, whereas tobacco with, for instance, marijuana in it may be unreasonably dangerous, suggesting that the presence of harmful additives changes the result. Here, Davis offered evidence that cigarettes contain many additives which make them more palatable to inhale and thus increase the carcinogenic substances ingested by the body over that which would be ingested by the use of a different product, like a cigar, the smoke of which is not generally inhaled. See, e.g., Philip Morris USA, Inc. v. Amitz, 933 So.2d 693, 698 (Fla. 2d DCA 2006) (smoker contended that cigarettes had design defect because manufacturer placed additives in cigarettes to make them more inhalea-ble, that cancer risk was heightened by flue curing of tobacco, and that some additives in cigarettes changed nicotine to freebase nicotine). Apparently, all cigarettes contain such additives. Thus, this would not be a “good tobacco” case. Other courts have also rejected the application of comment (i) as precluding liability. See, e.g., Witherspoon v. Philip Morris Inc., 964 F.Supp. 455, 466 (D.D.C.1997) (“The infamous comment (i) following § 402A appears to be on very shaky ground currently.”).

Our supreme court has not as yet adopted any other standard for determining design defect claims for cigarettes. The court has not adopted the Restatement (Third) test requiring an alternative safer design, nor has any Florida case required such proof. We found the Restatement (Third) of Torts “instructive” in Schemanr-Gonzalez v. Saber Manufacturing Co., 816 So.2d 1133, 1139 (Fla. 4th DCA 2002). However, whether Florida should adopt the position of this new restatement is an issue that our supreme court should decide. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Therefore, we look to the consumer expectation test to determine strict liability in this case. As Judge Scola points out, the evidence presented was conflicting on this issue. While Liggett presented a wealth of information that the dangers of smoking were well-known during the period when Davis smoked Chesterfields, the tobacco industry also made a concerted effort to discredit those studies and to allay people’s fears. Such efforts were successful, as surveys showed that as of 1970 only 50% of the public believed that smoking would cause ill health. In 1963 only 25% of Chesterfield smokers believed that they should quit smoking to protect their health. From the evidence presented, a jury could conclude that an ordinary consumer of cigarettes would not necessarily expect that smoking would cause cancer or serious health effects during the period before 1974.

Liggett seeks to add to the ordinary consumer expectation test by claiming that Davis must prove that Chesterfield cigarettes were worse than other cigarettes in the tendency to promote cancer (i.e., that the health risks of smoking Chesterfields were different and more injurious than other brands). I do not read the test, or its applications, as requiring a product to be “worse” than the others. Instead, a consumer must show that she had a reasonable expectation that the product would perform in a “safe” manner had it been designed correctly. In a cigarette case, I interpret this as showing that the consumer expects that smoking a cigarette will not cause serious health risks. If my interpretation is wrong, then Liggett may be entitled to a directed verdict on the strict liability case. Davis did not show that Chesterfields were more likely to produce cancer than other cigarettes, nor did she show that smoking other cigarettes would not have caused her cancer. Her experts presented no evidence that Chesterfields brought on cancer sooner than had she smoked another brand or that she would have avoided it entirely with another brand.

In sum, I think the jury verdict finding strict liability may be upheld on the consumer expectation test theory. I do not agree with Judge Gross, however, that En-gle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), gave a “green light” to strict liability design defect claims. This issue was not discussed in the Engle case, and the issues there involved claims of fraudulent misrepresentation (a claim not alleged by Davis), rather than strict liability. Although issues regarding strict liability were present at the trial court level in Engle, they were not addressed by either the Third District or the supreme court. Therefore, I would certify to the supreme court the question of whether Florida should adopt the Restatement (Third) of Torts for design defect cases. If an alternative safer design is essential to a claim of design defect, then I believe that Lig-gett would be entitled to a directed verdict.

GROSS, J.,

concurring specially.

I concur with Judge Hogan Scola’s opinion based on the evolution of products liability law in the last 30 years, most recently demonstrated in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), where the supreme court apparently gave the green light for causes of action such as those in this case. I write only to point out that if this case were strictly controlled by the comments to that section of the Restatement adopted by the supreme court in 1976, the trial court should have granted a directed verdict on the products liability/design defect count.

West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), adopted section 402A of the Restatement (Second) of ToRts. That section provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Comment i to section 402A emphasized that it must be the defective condition of a product that makes it “unreasonably dangerous.” Thus, to fall under section 402A, a product

must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.

Restatement (Second) of ToRts § 402A, cmt. i (1965) (emphasis added). The requirement that a defect be “unreasonably dangerous” was added to the section “to foreclose the possibility that makers of products having the inherent potentiality for causing harm, such as drugs, whiskey, sugar, butter, etc., would become automatically responsible for all the harm that such things do in the world.” Cassisi, 396 So.2d at 1144 (citation omitted). Thus only “bad” tobacco should be subject to the section 402A standard. See id.

We applied the principles of comment i in Coulson v. DeAngelo, 493 So.2d 98, 99 (Fla. 4th DCA 1986), a case involving a handgun “solely used for the commission of criminal acts.” We affirmed a dismissal of the plaintiffs section 402A claim for failure to state a cause of action, recognizing that the “essence of the doctrine of strict liability for a defective condition is that the product reaches the consumer with something ‘wrong’ with it.” Id. We reasoned that “it was the use of the gun that made it defective” or unreasonably dangerous, “not that it malfunctioned or had a faulty design.” Id. See also Todd v. Societe BIC, S.A., 9 F.3d 1216, 1219-20 (7th Cir.1993) (quoting Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368, 372 (1978)); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.1988); Gianitsis v. Am. Brands, Inc., 685 F.Supp. 853, 858 (D.N.H.1988); Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485, 488 (E.D.Pa.1988). The evidence at trial about tobacco additives did not turn this into a “good tobacco” case. My understanding of the evidence was that the additives made tobacco easier to inhale, not that the additive synergistically reacted with the cancer-causing chemicals in tobacco.

After deciding West, Florida courts have given little guidance as to the mechanics of handling the jury trial of a strict liability design defect. The supreme court has approved a jury instruction defining the term “unreasonably dangerous” by two alternative tests, the consumer-expectation test and the risk-utility test. See Standard Jury Instructions — Civil Cases, 872 So.2d 893 (Fla.2004). We know from Radiation Technology, Inc. v. Ware Construction Co., 445 So.2d 329, 331 (Fla.1983), that the “term ‘unreasonably dangerous’ ” requires the balancing of a number of factors:

the likelihood and gravity of potential injury against the utility of the product, the availability of other, safer products to meet the same need, the obviousness of the danger, public knowledge and expectation of the danger, the adequacy of instructions and warnings on safe use, and the ability to eliminate or minimize the danger without seriously impairing the product or making it unduly expensive.

How and when a jury is made aware of these factors is unclear. There may be cases where the consumer-expectation test is not suitable for the evaluation of a complex product. See Force v. Ford Motor Co., 879 So.2d 103, 106-07 (Fla. 5th DCA 2004). The propriety of either test for a given product will apparently be decided on a case by case basis.

      . Ms. Davis’ husband, Alan Davis, was a plaintiff below. All verdicts with regard to Mr. Davis were in favor of Liggett and Mr. Davis did not cross-appeal these verdicts.

      . Though six (6) interrogatories were submit- ■ ted to the jury, only two (2) were decided in favor of the Davises.

      . In Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002), the Iowa Supreme Court was asked in a certified question whether the cigarette company defendants in a design defect case could rely on comment (i) of the Restatement to show that cigarettes were not unreasonably dangerous. The court decided to adopt the Restatement (Third) as the law of Iowa for product defect cases, rendering comment (i) inapplicable.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Ivory COVINGTON, II, Appellee.
    No. 3D06-3070.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 14, 2008.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Epstein Becker & Green and Joseph P. Klock, Jr., and Rashida M. Ivy, Miami, for appellee.
    Before WELLS and CORTIÑAS, JJ., and FLETCHER, Senior Judge.
   WELLS, Judge.

The State of Florida appeals from an order granting Ivory Covington’s motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). We reverse, finding the motion legally insufficient to support dismissal because the motion neither demonstrates that no disputed material facts exist, nor establishes that Covington could not have committed the charged offenses. See State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004) (confirming that the purpose of a rule 3.190(c)(4) motion is to determine whether the undisputed facts on which the State will rely to prove its case establish a prima facie case that would permit a jury to find the defendant guilty of the crime charged).

On December 14, 2005, the State filed a four count information charging Covington with possession of cocaine with intent to sell, manufacture or deliver (count I); resisting an officer with violence (count II); possession of cannabis (count III); and possession of a firearm by a convicted felon (count IV). Covington moved to dismiss the information, claiming that the State could not make a prima facie case against him on these charges because the facts detailed in two affidavits attached to his motion were not in dispute and confirmed that he had no drugs or firearm in his possession; that he had no access to the place where the drugs and firearm were found; and that he did not resist arrest.

On the morning of the hearing of the motion to dismiss, the State filed a traverse denying Covington’s factual assertions and offering the sworn statement of the officers who arrested Covington to demonstrate that factual disputes existed and that a prima facie case against Coving-ton could be made. The traverse was stricken as untimely and insufficient, and the motion to dismiss granted because the trial court concluded that the facts detailed in the affidavits of Vincent Herout and Frederick James, which Covington relied on to support the motion, were undisputed and exculpated him of all charges. We do not agree.

In State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000), this court noted that rule 3.190(c)(4) motions to dismiss are treated like summary judgment motions in civil cases:

A motion to dismiss, made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), must allege and establish that “there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” State v. Kaloge-ropolous, 758 So.2d 110, 111 (Fla.2000). A motion to dismiss in a criminal case is analogous to a motion made for summary judgment in civil cases, and as such “[bjoth should be granted sparingly.” State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998); Kalogeropo-lous, 758 So.2d at 111. See also State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981) (stating that “[a] motion to dismiss should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.” (emphasis added) (citation omitted)).

In filing this kind of motion, a defendant bears the burden of showing the absence of a material factual dispute and that the facts fall short of a prima facie case of the crime charged. See State v. Sammons, 889 So.2d 857, 858 (Fla. 4th DCA 2004). Where the motion fails to make such a showing, it is legally insufficient and may be denied without a State response. See id.; State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999) (finding that the “State’s failure to file a traverse is not, in itself, fatal to a criminal charge, as the trial court must still consider the facts alleged in the motion to dismiss to determine whether a prima facie case has been established”); State v. Pur-vis, 560 So.2d 1296, 1298 (Fla. 5th DCA 1990) (“If the undisputed facts as alleged in the motion to dismiss are legally insufficient, then any response from the State would be superfluous, and the motion may be summarily denied.”). Here, we find that Covington’s motion was legally insufficient and should have been summarily denied even in the absence of a State response.

Vincent Herout’s affidavit establishes no facts whatsoever relevant to the charges against Covington and does not support dismissal. In fact, the affidavit establishes only that Herout was in no position to testify about whether any contraband was found on Covington at the time of his arrest or whether Covington resisted arrest. According to the affidavit, Herout was in bed on the evening of November 15, 2005, when Covington burst into his bedroom and hid under the bed. As soon as the police entered, Herout went into the living room where he remained during the entire time (ten to fifteen minutes) the police were in the bedroom — behind a closed door — with Covington. Under the circumstances, Herout’s affidavit could not establish as undisputed fact either that no contraband was found on Covington at the time of his arrest or that Covington did not resist arrest.

Frederick James’ affidavit also establishes no facts to support dismissal. James’ affidavit confirms only that some contraband and a firearm were found in an exterior hallway approximately thirty feet from the apartment where Covington was found hiding. The affidavit does not establish that Covington had no access to the place where these items were found as James so boldly states.

According to James, after being stopped by the police on the ground floor of the apartment complex where he lived, he saw Covington and another man on the third floor walkway of the complex running in a westerly direction. After Covington’s companion ducked into an apartment, James lost sight of Covington and did not see him again until after he had been arrested and was being removed from another apartment which was, coincidentally, the same apartment occupied by James and Herout. Although James could not see where Covington had gone before entering his apartment, he nonetheless surmised from snippets of overheard conversations that Covington did not go near the place where some drugs and a firearm were later found:

I saw the man that was with [Coving-ton] duck into a third floor window of the last apartment [on the walkway] that runs east-west (See Position “C”)[], [which walkway is] parallel to the [walkway on which] ... my apartment [is located] on the south side of the building (See Position “E”). [Covington] kept running to the west, down the cut and disappeared, presumably along the outside walkway that runs along the backside of the apartments that run north-south on the third floor (See Position “D”).
At that point, someone on the first floor yelled: “We got him. We got him.” A voice came over the radio and said. “No. Upstairs.” Some of the men then ran upstairs.
Whoever was talking on the radio and giving directions apparently could see [Covington] because he ran along the back of the apartment complex-....
The voice kept directing the men to the side of the building where my apartment was (See Position “E”), and where apparently [Covington] had ended up.
After a couple of minutes, I was allowed to go upstairs. As I walked towards my apartment, I was stopped again on the north-south hallway that leads to my row of apartments (See Position [“] F”). I could see just to the right of that passage way, a white plastic chair that sits outside an apartment two units to the east of mine on the third floor (See Position “G”). Close by the chair was a trash box or can....
As the police passed by the chair, I heard someone yell: “It’s a gun. It’s a gun.”
Meanwhile, I could hear the voices of men who were apparently in my apartment. They kept saying: “It’s got to be here somewhere.” They searched my apartment completely and found nothing.
A^ all of this was going-on, the men caught the other young man who had initially gone into the apartment window on the north side of the building. Based on where they found him (See Position “I”), he had to have run along the north[-]south walkway and then east on the east-west walkway. His route would have taken him past the plastic chair and the trash pile.
After they had searched my apartment, they went out into the hallway ands [sic] looked around there too. When they got to the trash can and looked through it, I heard one of them say that they had found drugs. I saw one of the men lift some plastic bags out of the trashcan and say: “Look at this; look at this.”
It was clear to me that no drugs or anything else were found on [Coving-ton]. The drugs were found outside my apartment, about 30 feet away from my apartment.
The men in black found both the gun and the drugs in a position that [Coving-ton] had not passed. Based upon the voices coming from the radio, it was clear that [Covington] ran along the outside pathway (See Position “D”) and then jumped into the window of my apartment. He was never within 30 feet of either the chair or the trash pile, and had no drugs or gun on him when he left my apartment.

(Emphasis added).

James’ statements regarding Coving-ton’s connection to the drugs and firearm found in the hallway are nothing more than speculation and do not establish as fact, much less undisputed fact, that Cov-ington either did not or could not have stashed or thrown the drugs and firearm only feet from the apartment where he was found hiding. This testimony, like that provided by Herout, is simply insufficient to support dismissal of the charges against Covington. See Morgan v. Cont’l Cas. Co., 382 So.2d 351, 352 (Fla. 3d DCA 1980) (stating that affidavits which are based entirely upon speculation, surmise and conjecture are legally insufficient).

Because Covington failed to meet his initial burden of demonstrating either the complete absence of disputed material facts or that the undisputed facts show that the State cannot establish a prima facie case of guilt, the motion to dismiss the information should have been summarily denied. See State v. Gutierrez, 649 So.2d 926, 927-28 (Fla. 3d DCA 1995) (concluding that a motion to dismiss an information “should have been summarily denied even in the absence of any response from the State” because the defendant “failed to meet his initial burden of demonstrating the complete absence of any material facts”); State v. Torres, 375 So.2d 889, 890 (Fla. 3d DCA 1979) (stating that “[o]n its face, the motion to dismiss was legally insufficient and should have been summarily denied by the trial court” where it “fail[ed] to demonstrate that the undisputed material facts do not establish a prima facie case of guilt against the defendant”).

Accordingly, the dismissal order is reversed and the cause remanded with directions to reinstate the charges against Covington.

      . The remainder of Herout’s affidavit regarding the sounds he heard coming from the bedroom and Covington's appearance when he was removed from the apartment, is simply irrelevant. So, too, are Herout’s statements that the police did not tell him that drugs or a gun had been found on Covington; that the police searched his apartment for contraband but found none; that he overheard the officers being told to search the hallway for the "stuff”; and that at a later date he learned that drugs had been found in the hallway.

      . These references are to a sketch of the apartment complex appended to James’ affidavit.

      . Since James was not inside the apartment when Covington was arrested, he could not supply any facts about what was found in Covington's possession when he was arrested or whether he resisted arrest.

      . This all ignores the sworn arrest affidavit, which, although stricken with the traverse, was considered by the trial court in dismissing these charges. That affidavit states that an officer saw Covington sitting on a chair on the third floor of the apartment complex and that this officer saw Covington remove a revolver from his waistband and throw it onto a chair. Notably, this all occurred before James saw Covington and his companion running along the third floor corridor. The arrest affidavit also states that Covington kicked at the officers while they were attempting to take him into custody and that a search incident to the arrest revealed "53 baggies of suspect cocaine, 4 baggies of suspect marijuana, and $217.00 in U.S. Currency in [Coving-ton’s] groin area.”


author: ROTHENBERG, Judge.

text:
    The OPERIS GROUP, CORP., Appellant, v. E.I. AT DORAL, LLC, Appellee.
    No. 3D07-298.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 25, 2008.

      Burstein Associates, P.A. and Bernardo Burstein, Miami, for appellant.
    Alfredo G. Duran, Alba Varela, for ap-pellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The Operis Group, Corp. (“Operis”) appeals from orders granting the defendant’s, E.I. at Doral, LLC (“Doral”), motion for stay pending arbitration and denying Operis’ motion for reconsideration. We reverse.

Operis, the plaintiff in this litigation, is a Florida corporation that provides contracting and other services to real estate developers. Doral, the defendant, is a company involved in the construction of the Euro-Suites Hotel at Doral in Miami (“Euro-Suites project”). Juan Sarda (“Sarda”), a licensed Florida contractor and the president of Operis, and Pedro Villar (“Villar”), a managing member of Doral, enjoyed a successful business relationship and worked together on a series of real estate developments before the EuroSuites project. For some time, Sarda and Villar shared an office in Coral Gables, Florida.

In March 2005, Villar, on behalf of Doral, approached Sarda in order to retain Operis to work on the EuroSuites project. Operis claims that it was retained as the primary general contractor, whereas Doral contends that it retained Operis for the limited purpose of clearing the land before construction. Operis completed some work on the EuroSuites project, but ceased operations in July 2005.

Operis subsequently filed suit, alleging that Doral breached an “implied-in-fact and/or oral” contract for the construction of the EuroSuites project, and also included in its complaint, counts of unjust enrichment and quantum meruit. During discovery, Sarda averred that the agreement between Operis and Doral had been reduced to writing, but that his copies were stolen from the office he shared with Vil-lar. In October 2006, Sarda allegedly found a misfiled copy of the EuroSuites project contract (“the alleged contract”), entitled “AIA Document A107-1997.” After “finding” the alleged contract, Operis filed a second amended complaint, adding a count for breach of a written contract and attaching a copy of the alleged contract signed allegedly by both Sarda and Villar.

Doral opposed the introduction of the alleged contract, claiming that Villar had never signed it; Doral had not seen the document prior to its production; and that the signature purporting to be that of Vil-lar, was a forgery. Despite claiming that the alleged contract was a forgery, Doral moved to enforce the arbitration provision contained in the alleged contract, and moved for a stay of the court proceedings pending arbitration. The alleged contract contains the following dispute resolution clause:

1⅛.6.1 Claims, disputes or other matters in question between the parties to this Agreement shall be resolved by mediation or by arbitration. Prior to arbitration, the parties shall endeavor to reach settlement by mediation.

The trial court found that even if the alleged contract was a forgery, because the party disputing its validity (Doral) was not objecting to the enforcement of the arbitration provision contained in the alleged contract, the dispute resolution clause was enforceable. The trial court ruled that the parties’ dispute over the making of the alleged contract should be resolved by an arbitrator, and entered an order denying Operis’ motion for reconsideration and an order staying the court proceedings pending arbitration.

Operis argues that the trial court erred in failing to resolve the issues of whether any agreement between the parties existed or was ever concluded, and if so, whether Doral waived its right to arbitration. We agree. Because the issue of whether Doral waived its right to arbitration is dependent upon the determination of the existence of a valid written contract between the parties, and the trial court did not determine whether the alleged contract containing the arbitration clause was, in fact, entered into by the parties, the trial court was in no position to enforce the arbitration clause contained in the agreement.

Under Florida’s arbitration code, the trial court must consider three elements before ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). In the instant case, the parties dispute, and the trial court failed to resolve: (1) whether a valid written agreement containing an arbitration clause was entered into by the parties, and (2) whether Doral waived its right, assuming it had one, to compel arbitration.

In October 2006, Operis produced a copy of the alleged contract which appeared to be signed by representatives of both parties. Doral, however, maintained below, and maintains on appeal, that Villar’s signature was forged, and that Doral had never seen the alleged contract until it was produced by Operis during the litigation. Nevertheless, Doral moved to compel arbitration pursuant to the terms of the contract Doral claims is a forgery. Thus, there is a question as to the existence of a written agreement by the parties. In addition to the unresolved issue as to whether a valid written agreement to arbitrate exists, is Operis’ claim that Doral waived its right to arbitrate by litigating the case before moving to compel arbitration under the alleged contract. Operis claimed that the alleged contract is a valid agreement between the parties of which Doral had knowledge prior to its production. Operis claimed that because Doral was aware of the alleged contract and its contents, Doral waived any right to compel arbitration by answering Operis’ complaint and actively participating in the litigation. These issues must be resolved by the trial court.

WHETHER A VALID AGREEMENT TO ARBITRATE EXISTS

Section 682.03(1), Florida Statutes (2006), states: “If the court shall find that a substantial issue is raised as to the making of the agreement or provision [to arbitrate], it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application [for arbitration].” Thus, whether the alleged contract containing the arbitration clause was a valid agreement entered into by the parties, is a material issue that the trial court had a statutory duty to resolve before compelling arbitration. By claiming that Villar’s signature on the alleged contract was a forgery, Doral raised a substantial issue as to the making of the alleged contract which contains the dispute resolution clause. The trial court, therefore, erred in failing to resolve this threshold issue.

Doral argues that arbitration is mandated because neither party specifically challenged the arbitration provision within the alleged contract, and because, in this case, Doral challenged the validity of the alleged contract itself. We disagree. In support of its argument, Doral relies on Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and the Florida cases that flow from Buckeye. In Buckeye, the United States Supreme Court held that challenges to the validity of an arbitration agreement come in one of two types. 546 U.S. at 444, 126 S.Ct. 1204. The first type “challenges specifically the validity of the agreement to arbitrate.” Id. “The other challenges the contract as a whole, either on a ground that directly affects the entire agreement ie.g. the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.” Id. In Florida, it is now clear that challenges of the first type are to be decided by the court, and challenges of the second type are to be decided by an arbitrator. Rowe Enters., LLC v. Int’l Sys. & Elec. Corp., 932 So.2d 537, 540 (Fla. 1st DCA), review denied, 944 So.2d 345 (Fla.2006).

Doral maintains that because it claims that the alleged contract is a forgery, the challenge goes to the validity of the entire contract, and, thus, the decision is one for the arbitrator. We disagree. The instant case is distinguishable from cases involving challenges to the validity of an entire contract. In the cases involving challenges to the validity of an entire contract containing an arbitration provision (where compelling arbitration would be appropriate), the parties do not dispute the existence of the relevant document and have presumptively agreed to arbitrate any disputes. Rowe, 932 So.2d at 541. In the instant case, Doral steadfastly contends that it did not sign the alleged contract. Thus, the alleged contract is not presumptively valid, and therefore, the alleged contract’s very existence as an agreement between the parties, and not its validity as a presumptive agreement, is in dispute. A challenge to the very existence of any agreement between the parties is thus distinguishable from a challenge to the validity of a presumptively existing, signed document.

In Buckeye, the United States Supreme Court acknowledged that a third potential type of challenge exists, though the Court declined to state who — the court or the arbitrator — is to decide the issue. Buckeye, 546 U.S. at 444 n. 1, 126 S.Ct. 1204. In these challenges, which the Court specifically described as different than a challenge to a contract’s validity, the issue is whether any agreement between the parties was ever concluded. Id. The instant challenge to the alleged contract corresponds most closely to this third type. Because the challenge is to the making of and the existence of a written agreement between the parties, we conclude that pursuant to Florida’s arbitration code, which requires the trial court to resolve substantial issues regarding the making of the agreement or provision to arbitrate, and Seifert, 750 So.2d at 636, which requires the trial court to determine whether a valid written agreement to arbitrate exists before submitting the case to arbitration, the issue was one which the trial court was required to resolve.

WHETHER DORAL WAIVED ITS RIGHT TO ARBITRATION

Operis claims that Doral waived the right to compel arbitration by participating in the litigation. Because whether Doral waived its right to compel arbitration is dependent on whether the parties executed the alleged contract, the trial court was required to determine whether there was, in fact, a contract containing an arbitration clause executed by the parties. If the signatures affixed to the alleged contract are the signatures of the parties, then Doral had knowledge of the dispute resolution clause prior to answering Operis’ complaint, and by participating in the litigation, Doral would have waived its right to compel arbitration under the contract. See Raymond James Fin. Sens., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (“We have long held that a party’s contract rights may be waived by actually participating in a lawsuit or taking action inconsistent with that right.”). If, as Doral claims, the alleged contract is a forgery and does not represent any meeting of the parties’ minds, then Doral never had any contractual foundation upon which to move to compel arbitration. In either situation, the trial court could not properly compel arbitration without making findings as to the existence of a contract entered into by the parties containing an arbitration clause. Thus, the trial court’s decision to compel arbitration was premature.

THE PARTIES’ ESTOPPEL ARGUMENTS

Our conclusion that before enforcing the arbitration clause the trial court was required to determine whether the parties had, in fact, entered into a written contract containing an arbitration clause, becomes even more compelling in this case because here, both Doral and Operis have raised estoppel arguments. Doral asserts that because all of Operis’ claims arise out of the alleged contract and presume that the alleged contract exists, Operis should be equitably estopped from contesting the enforcement of the arbitration provision. Contrarily, Operis asserts that because Doral claims that the alleged contract is á forgery, Doral should be estopped from compelling arbitration under the alleged contract. The resolution of these estoppel arguments rests, as does the waiver argument, on the existence or non-existence of a written agreement between the parties. Because Doral asserts that the alleged contract is a forgery, Doral would be es-topped from asserting that arbitration pursuant to the forged alleged contract is mandated, an argument Operis presented to the trial court, and again on appeal. However, if the alleged contract is not a forgery, then Operis would be estopped from objecting to enforcement of the arbitration clause, unless Operis can establish a waiver of the provision by Doral.

Additionally, when presented with competing estoppel arguments, “one estop-pel neutralizes the other, leaving the matter as if neither estoppel had been offered.” Fla. Land & lym. Co. v. Williams, 98 Fla. 1258, 116 So. 642, 644 (1928); see also Astor v. Astor, 120 So.2d 176, 183 (Fla.1960) (O’Connell, J., dissenting) (doctrine applicable in context of marriage and divorce); 28 Am.Jur.2d Estoppel and Waiver § 132 (2000) (stating that one party may be denied the right to assert an estoppel by reason of certain facts creating an estoppel against the asserting party). Because we are presented with opposing estoppel arguments, these arguments neutralize each other, leaving the issue of whether the alleged contract represented an existing agreement between the parties, as one which must be determined by the trial court.

CONCLUSION

Whether the parties entered into or executed a written contract is an issue not to the validity of the alleged contract, but rather as to the making of the contract. That issue is one which must be resolved by the trial court. Because Operis claims that the alleged contract was signed by the parties and represents an agreement by them; Operis raised the issue of whether Doral waived arbitration by litigating the case; and the issue of waiver is dependent on whether the parties executed the alleged contract, the trial court was required to determine whether the parties did execute the agreement. And lastly, because of the equitable estoppel arguments raised by each, the trial court was compelled to resolve the dispute as to the making of the alleged contract. Based upon all three grounds, each standing alone, we find that the trial court erred in compelling arbitration without deciding these threshold issues.

Reversed.


author: COPE, J.

text:
    Beatrice PERAZA, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D07-477.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 14, 2008.

      Korge & Korge, Coral Gables and Thomas J. Korge, for appellant.
    Powers, McNalis, Torres & Teebagy and Shaun J. Marker, West Palm Beach, and Nancy llene Stein-McCarthy, for appellee.
    Before COPE and SALTER, JJ„ and FLETCHER, Senior Judge.
   COPE, J.

Beatrice Peraza appeals the denial of her motion to tax costs, including reasonable attorney’s fees, under Florida Rule of Civil Procedure 1.420(d) and section 627.428, Florida Statutes (2006). We affirm in part and remand for further proceedings on one issue.

Peraza filed a claim with Citizens Property Insurance Corporation (“Citizens”), her homeowners’ insurance company, for windstorm damages sustained in Hurricane Wilma in October of 2005. Citizens invoked the appraisal clause and each party appointed an appraiser. The appraisers could not agree on an umpire, so (as allowed by the appraisal clause) Citizens petitioned the trial court for the appointment of an umpire. Peraza filed her response to Citizens’ petition agreeing that an umpire should be appointed. After the trial court entered its order appointing an umpire, Citizens filed a voluntary dismissal under Florida Rule of Civil Procedure 1.420. Peraza filed a motion to tax costs, including reasonable attorney’s fees, under Florida Rule of Civil Procedure 1.420(d) and subsection 627.428(1), Florida Statutes (2006). The trial court denied the motion and Peraza has appealed.

Peraza requested attorney’s fees under subsection 627.428(1), Florida Statutes, which authorizes an award of attorney’s fees when an insured recovers judgment against an insurer. In this case, Citizens filed a petition to appoint an umpire. Peraza answered and requested the same relief. The trial court entered an order appointing umpire, thus granting the relief requested by both sides. Under these facts, the order did not amount to an order against Citizens and in favor of Per-aza for purposes of subsection 627.428(1).

Peraza maintains that the analysis is otherwise because Citizens voluntarily dismissed its petition. Peraza points out that under the voluntary dismissal rule, Peraza is entitled to costs as the non-dismissing party. See Fla. R. Civ. P. 1.420(d). She reasons that this makes her the prevailing party for purposes of costs and, by extension, the prevailing party for purposes of attorney’s fees under subsection 627.428(1). As to the attorney’s fees, we disagree. To qualify for an attorney’s fee award, Peraza had to meet the statutory criteria contained in subsection 627.428(1). As that test was not satisfied, attorney’s fees were properly denied.

We do conclude, however, that the trial court erred by ruling that Peraza had no entitlement to costs under Rule 1.420(d). Once Citizens filed its voluntary dismissal, Peraza was entitled to costs. “Rule 1.420(d) is unambiguous — costs are to be assessed in the action that is the subject of the voluntary dismissal.... ” Wilson v. Rose Printing Co. Inc., 624 So.2d 257, 258 (Fla.1993). The trial court apparently accepted the argument that costs should not be awarded because the insurance policy provides that “[e]ach party will (a) pay its chosen appraiser; and (b) bear the other expenses of appraisal and umpire equally.” While this language allocates the expenses for the appraisal process, we do not believe it constitutes a waiver of entitlement to court costs under Rule 1.420(d).

We therefore remand for the trial court to rule on the merits of Peraza’s claim for costs (but not attorney’s fees). We express no view on the merits of the costs she seeks.

Affirmed in part, and remanded for a hearing on costs only.

       Subsection 627.428(1), Florida Statutes (2006), states:
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.


author: PALMER, G.J.

text:
    Lawrence M. DESTEFANO, Appellant/Cross-Appellee, v. ADVENTIST HEALTH SYSTEM SUNBELT, etc., et al., Appellee/Cross-Appellants.
    No. 5D06-75.
    District Court of Appeal of Florida, Fifth District.
    Nov. 30, 2007.
    Rehearing Denied Feb. 8, 2008.
    Nicholas A. Shannin, Gotha for Appel-lanVCross-Appellee.
    Larry J. Townsend and David L. Evans of Mateer & Harbert, P.A., Orlando, for Appellee/Cross-Appellant Orlando Regional Healthcare System, Inc.
    George N. Meros, Jr., and Allen C. Win-sor of Gray Robinson, P.A., Tallahassee, Monterey Campbell of Gray Robinson, P.A., Lakeland and Tracy A. Marshall and Dyana L. Petro, of Gray Robinson, P.A., Orlando, for Appellees/Cross-Appellants Adventist Health System Sunbelt.
   PALMER, G.J.

Lawrence Destefano appeals the final order entered by the trial court awarding him $500,000 in compensatory damages and $1,000,000 in punitive damages against Rollins Bedford Corporation d/b/a Sunbelt Healthcare and Subacute Center (Rollins). Destefano contends that the compensatory damage award was improperly reduced and that the other defendants were improperly dismissed from the lawsuit. Determining that the compensatory damages found by the jury were improperly reduced, we reverse and remand for the entry of an amended judgment increasing Destefano compensatory damage award to $1,000,000. On all other issues, including the issues raised on cross-appeal, we affirm.

Destefano, individually and as the personal representative of his mother’s estate, filed suit against numerous defendants, including Rollins, for libel, slander, civil conspiracy, and battery. The pertinent facts as established at trial, are as follows.

Destefano’s mother was an Alzheimer’s patient who was admitted to Florida Hospital for treatment of an infection. Four days later, she was released from Florida Hospital and admitted as a patient to Rollins. Two days later, she was transferred to Orlando Regional Healthcare System (ORHS) for an examination. The next day, she was transferred back to Florida Hospital.

Destefano’s complaint alleged that, in retaliation for his refusal to surrender a note signed by a Rollins staff member which memorialized the fact that a wound on his mother’s foot had not been properly cared for, statements were made by the employees of the various defendants falsely accusing him of engaging in inappropriate sexual conduct with his mother. The defamatory remarks included claims that Destefano inappropriately kissed his mother and improperly laid with her on her hospital bed. The remarks were written on his mother’s medical charts, and verbally expressed to employees of the defendants, to the Department of Children and Families, to the Orlando Police Department, and to an abuse hotline.

The defendants contended alternatively that no defamation had occurred and that, even if defamatory remarks had been made, recovery by Destefano was not warranted because he self-published the defamatory remarks to the public when he picketed in front of Rollins while holding a sign containing the defamatory remarks.

At the close of Destefano’s case-in-chief, the trial court entered a directed verdict in favor of all defendants except Rollins and ORHS on the defamation claims, and entered directed verdicts against Destefano on his battery claim and his conspiracy claim.

At the close of all the evidence, the matter went to the jury on the defamation claims against Rollins and ORHS. The jury entered a special verdict finding that Rollins had libeled or slandered Destefano and that he suffered $1,000,000 in damages as a result of said defamatory conduct. The jury further found that ORHS had not libeled or slandered Destefano. The jury also found that Destefano had self-published the defamatory statements to third parties thereby causing damage to himself, and that 50% of his damages were attributable to his self-publication.

The matter then proceeded on Destefa-no’s punitive damage claim. After receiving evidence, the jury awarded Destefano punitive damages against Rollins in the amount of $1,000,000.

The trial court thereafter entered a final judgment against Rollins in the amount of $500,000 in compensatory damages and $1,000,000 in punitive damages. Destefano timely appealed and the defendants cross-appealed.

Destefano first argues his compensatory damages were improperly reduced by the trial court. We agree.

The special verdict form utilized in this case, upon the request of Rollins and over Destefano’s objection, contained specific questions concerning the issue of self-publication. Specifically, after asking the question whether Rollins had defamed Destefano, the jury verdict form asked the jury:

What damages did Lawrence Destefano suffer as a direct result of being libeled and slandered by [Rollins]?

The jury wrote: “$1,000,000”. The next question asked the jury:

Did Lawrence Destefano self-publish the defamatory statements to third parties and cause the damages that are alleged by him against [Rollins]?

The jury answered: “Yes”. The next question then stated:

What portion of Lawrence Destefano’s damages are attributable to his self-publication of the defamatory statements to third parties?

The jury responded: “50%”. Based upon these findings, the trial court reduced the jury’s $1,000,000 compensatory damage award by $500,000.

The special verdict form was at best confusing and, at worst, erroneous. Although the jury could have properly considered whether Destefano’s claimed damages were caused in part by his own actions and, accordingly, excluded those portions of his claimed damages from the verdict, the special verdict form, as written, did not accomplish that objective. The first question did not ask what Des-tefano’s overall damages were, but rather, specially asked what damage he suffered as a direct result of being Iiabled and slandered by Rollins. In answering that question, the jury properly would have had to have excluded that portion of Destefano’s overall damages which were caused by his self-publication, since any such damages would not have been suffered “as a direct result of being Iiabled and slandered by Rollins.” As such, the subsequent questions were irrelevant to arriving at a proper compensatory damage award. Accordingly, the jury’s compensatory damage award should not have been reduced.

Normally, the proper remedy for addressing such error would be to remand for a new trial on damages; however, during oral argument in this case all parties agreed that, in the event of a reversal on this issue, the appropriate remedy would be reinstatement of the jury’s $1,000,000 compensatory damage award. Accordingly, we remand this matter to the trial court with directions to enter an amended judgment increasing the compensatory damage award from $500,000 to $1,000,000.

Destefano also argues that the trial court reversibly erred by entering directed verdicts against three corporate defendants: Adventist Health System/Sunbelt, Inc., Adventist Health System/Sunbelt Healthcare Corporation, and Sunbelt Health Care Centers, Inc. We disagree.

As to Adventist Health System/Sunbelt Healthcare Corporation, Destefano’s counsel conceded during trial that he had not presented any evidence against the corporation and stipulated to the entry of a directed verdict as to that defendant. Destefano argues that, since he was not present in the courtroom at the time of the stipulation, he should not be bound by the stipulation. However, Destefano cites no law in support of that claim and the court has found none in its research.

As to the other two corporate defendants, we find no error in the trial court’s determination that Destefano failed to present sufficient evidence from which the jury could find them liable for defamation. Similarly, we conclude that the trial court did not err in entering directed verdicts on the battery and conspiracy claims based upon insufficient evidence. We also find no merit in Destefano’s claim of alleged evidentiary errors by the trial court or in the cross-appeal filed by the defendants.

Accordingly, we reverse and remand for entry of an amended final judgment consistent with this opinion.

REVERSED and REMANDED.

SAWAYA, J„ and LARUE, T., Associate Judge, concur.


author: SALTER, J.

text:
    Manuel Raul Gonzalez Y DUARTE, Petitioner, v. RMC SOUTH FLORIDA, INC., d/b/a Florida Rock & Sand, Ramie International Corp., Carlos Manuel Gonzalez, and Laura Regla Hernandez, Respondents.
    No. 3D07-1241.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Rehearing and Rehearing En Banc Denied Feb. 7, 2008.

      Arthur J. Morburger, Miami, for petitioner.
    Sivyer Barlow & Watson and Neal A. Sivyer, Tampa and J. Carlton Mitchell for respondent, RMC South Florida; Albert D. Rey, Miami and Raymond Carrero for respondent, Ramie International Corp.
    Before COPE and SALTER, JJ., and FLETCHER, Senior Judge.
   SALTER, J.

Manuel Raul Gonzalez Y Duarte petitions this court to issue a writ of mandamus directing the Appellate Division of the Circuit Court for the Eleventh Judicial Circuit to reinstate his appeal. We have jurisdiction and grant the petition. See Caldwell v. Estate of McDowell, 507 So.2d 607, 608 (Fla.1987) (issuing writ of mandamus reinstating appeal dismissed for failure to comply with a rule of appellate procedure); Jellen v. Dist. Ct. App., Third Dist., 488 So.2d 825, 825 (Fla.1986) (issuing writ of mandamus reinstating appeal dismissed as a consequence of misapplication of a rule of appellate procedure).

On November 8, 2006, Duarte timely filed a notice of appeal seeking review of an order denying relief from a motion to vacate and set aside a final judgment of foreclosure and a certificate of title. A little over a month later, Ramie International Corporation, the purchaser of the property, moved to dismiss the appeal claiming that Duarte had failed to timely file its initial brief and that it had not been served with a copy of the notice of appeal. Duarte promptly moved for an enlargement of time in which to file his initial brief. Although that motion was granted, within days, the appeal as to Ramie was summarily dismissed. Duarte quickly moved for reconsideration. In response, Ramie claimed that the appeal, which had been pending for less than two months, was properly dismissed because the certificate of service on the notice of appeal was not dated and because it had never received a copy of that notice. The motion for reconsideration was denied because, according to the court below, the certificate of service accompanying the notice of appeal was defective as it was not dated, and Ramie had not received the notice as certified in the certificate of service. Neither of these reasons supports dismissal of his appeal.

Failure to date a certificate of service to a timely filed notice of appeal is not a jurisdictional defect and will not support dismissal of an appeal absent a showing of prejudice. As explained in County Sanitation v. Ross, 389 So.2d 1247, 1248 (Fla. 1st DCA 1980) (citations omitted):

A copy of all documents filed pursuant to the Rules of Appellate Procedure are to be served on each of the parties before filing or immediately thereafter. However, service of the notice of appeal is not jurisdictional. While the sanction of dismissal is clearly available in proper circumstances for failure of appellant to comply with the rules, ... [t]hat extreme sanction should be imposed only when there has been a showing of substantial prejudice.

See also Krebs v. State, 588 So.2d 38, 38 (Fla. 5th DCA 1991) (concluding that dismissal of the appeal was too harsh a sanction for a single rule violation and stating that “it is an established principle of law that dismissal of an appellate proceeding should be employed sparingly and only after repeated violations or contumacious disregard of a court’s orders”); Hightower v. Berry, 490 So.2d 1029, 1030 (Fla. 1st DCA 1986) (refusing to impose the severe sanction of dismissal where appellant failed to comply with rule 9.420 based on a “common misunderstanding of the rule”).

In this case, the failure to date the certificate of service resulted in no prejudice and is insufficient to support a dismissal precluding review on the merits. The fact that Ramie did not receive a copy of the notice of appeal as certified also will not support dismissal in this case. The notice of appeal with its undated certificate of service was docketed in the lower court file on November 8, 2006 and mailed, according to Duarte’s attorney, to all parties, including Ramie. This satisfies the requirements of the rules of appellate procedure regarding service:

Method of Service. If service is required or permitted to be made on a party represented by an attorney, service shall be made on the attorney unless service on the party is ordered by the court. Service on the attorney or party shall be made by ... mailing it to the attorney or party at the last known address.... Service by mail shall be complete on mailing.

Fla. R.App. P. 9.420(c) (emphasis added); see Fla. R.App. P. 9.420(d)(1) (stating that certification that a copy was furnished to a party’s attorney by mail constitutes prima facie proof of service); Williams v. Gread-ington, 410 So.2d 644, 645 n. 5 (Fla. 1st DCA 1982) (confirming that a certificate of service by counsel for a party is prima facie proof that documents were sent). , The fact that Ramie did not receive its copy of the notice of appeal does not establish that no service was attempted or effectuated. See Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. & Loan Ass’n, 558 So.2d 153, 154 (Fla. 3d DCA 1990) (concluding that under the analogous service rule, Florida Rule of Civil Procedure 1.080, “service by mail is considered complete on mailing even though a copy has not been received either by the clerk or the opposing party”); Gavin v. Gavin, 456 So.2d 535, 537 (Fla. 1st DCA 1984) (concluding under analogous rule 1.080, that “[i]f a pleading containing a certificate of service is tendered for filing, the certificate is prima facie proof that service has been made effective as of the date of the certificate, even though a copy has not been received by the opposing part/’). This is especially so since the other four parties listed on the certificate of service as having been served, received their copies of the notice of appeal.

We also discern no deprivation of due process or other prejudice stemming from the fact that Ramie did not receive the notice of appeal that Duarte claims he sent. Unlike Alvarez, Armas & Borron, PA. v. Heitman, 770 So.2d 208 (Fla. 3d DCA 2000), on which the court below relied, Ramie received actual notice of the appeal, and, as its motion to dismiss the appeal (filed only 40 days after the notice of appeal was filed) confirms, it received notice sufficiently early in the proceedings to permit it to meaningfully participate in the appeal so as to protect its interests.

The respondents contend that Duarte’s petition for mandamus must be denied because (a) he had an adequate remedy at law, a petition for certiorari, and (b) any such petition for certiorari would have been dismissed as untimely. The respondents are correct that Duarte’s petition was filed after the 30-day period applicable to a petition for certiorari under Fla. R.App. P. 9.100(c)(1).

Mandamus is an appropriate remedy where, as here, a lower court has dismissed an appeal on the basis of a purported jurisdictional defect. Caldwell, 507 So.2d at 608. In that case, the petitioner’s appeal to a district court of appeal was dismissed for the failure to pay a filing fee. In fact, however, the petitioner had filed in the district court a copy of a certified order of insolvency. Mandamus was appropriate because the petitioner had a clear legal right to the performance of a specific, essentially ministerial, act — reinstatement of the appeal.

In Duarte’s case, his appeal was dismissed because Respondent Ramie persuaded the appellate division of the circuit court that an alleged defect in the service of the notice of appeal on respondent Ramie was “fatal” to the appeal under Alvarez, 770 So.2d at 209. The circuit court dismissed the appeal as to Ramie based on that alleged defect, and not as a sanction or other similar exercise of discretion. Respondent RMC then successfully moved the circuit court for dismissal of the appeal as to RMC on the grounds that Ramie was a necessary party to the appeal and the prior dismissal of Ramie required a dismissal of the appeal in its entirety. Simply stated, the circuit court declined to exercise jurisdiction over the appeal and dismissed it because the respondents persuaded the court that a single, fatal procedural defect precluded it from proceeding forward. In such an instance, mandamus is an appropriate means to seek the ministerial act of reinstatement and the exercise of jurisdiction.

Because we are confident that the appellate division of the circuit court will reinstate Duarte’s appeal, we withhold issuance of the writ.

      . After the appeal was dismissed as to Ramie, RMC's motion to dismiss the appeal in its entirety was granted.

      . There is no question that the address shown on the notice of appeal for Ramie’s attorney was the same as that listed by Ramie’s attorney as his address on Ramie’s motion to dismiss.


text:
    Luis BENITES, Appellant/Appellee, v. Marcos ALMEIDA and Nara Almeida, Appellees/Appellants.
    Nos. 3D06-1132, 3D06-2404.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.

      Simon, Schindler & Sandberg, LLP, Miami, and Anthony V. Falzon, for appellant/appellee.
    Shelley Senecal, for appellees/appellants.
    Before COPE, GREEN, and SALTER, JJ.
   COPE, J.

The main issue we address in these consolidated appeals involves the application of a setoff for personal injury protection (PIP) benefits. Since plaintiff Luis Ben-ites exhausted all of his PIP benefits for payment of medical expenses, the setoff for PIP benefits should have been applied only to that portion of the verdict which awarded past medical expenses.

Plaintiff Luis Benites was involved in an automobile accident in which defendant Nara Almeida admitted to being at fault. Defendant Marcos Almeida, her father, was joined as a defendant because he is the owner of the vehicle.

The plaintiff submitted medical bills of $18,702 to his PIP insurer. The PIP printout showed the plaintiff exhausted his $10,000 in PIP benefits.

The plaintiff brought suit against the defendants, contending that he had suffered a permanent injury. The plaintiff introduced his medical bills into evidence at the trial. The jury returned a verdict finding no permanency. It awarded $5,000 for past medical expenses and $2,500 for lost earnings, for a total verdict of $7,500. The question of the PIP setoff was submitted to the trial court post-trial.

The parties agree that the entire $10,000 PIP coverage was expended for medical bills. No PIP benefits were paid for lost wages. The plaintiff argued that since the PIP benefits were paid for medical bills only, it follows that the PIP setoff can only be applied to the jury’s line item of $5,000 for past medical expenses. The defendants argued that the $10,000 PIP amount should be viewed as a whole, and should be applied to the total verdict of $7,500, leaving a zero recovery for the plaintiff. The defendants’ trial counsel also intimated to the trial court (incorrectly) that the plaintiff would somehow be able to submit his claim for lost wages to the PIP carrier in the future. As appellate counsel acknowledges, the PIP benefits have been exhausted and no further claim would be entertained by the PIP carrier.

Under the no-fault law, a plaintiff has “no right to recover any damages for which personal injury protection benefits are paid or payable.” § 627.736(3), Fla. Stat. (2003). The Florida Supreme Court’s decision in Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000), is instructive on the interpretation of the phrase “paid or payable.” In Rollins, the plaintiff exhausted all but $524.78 in PIP benefits. The jury returned an award which included $5,000 in future medical expenses. Id. at 296. The question was whether the $524.78 in unexpended PIP benefits should be set off against the $5,000 award for future medical expenses. The court said that the answer was no.

Referring to the statutory phrase “paid or payable,” the court interpreted “payable” narrowly. The court said that “the proper interpretation of the term ‘payable’ is that only PIP benefits ‘currently payable’ or owed by the PIP carrier as a result of expenses incurred by the plaintiff should be set off from a verdict that includes an award of future medical expenses.” Id. at 301. Since at the time of the verdict the plaintiff had not yet incurred any future medical expenses, it followed that the $524,78 in available PIP benefits could not be set off from the $5,000 future medical award.

Turning now to the phrase “paid or payable” in the context of the present case, it is undisputed that $10,000 in PIP benefits were “paid” within the meaning of the statute. Nothing is “payable” as that phrase has been interpreted by Rollins. There are no “PIP benefits ‘currently payable’ or owed by the PIP carrier as a result of expenses incurred by the plaintiff,” id., because the entire $10,000 benefit has been exhausted.

Since the term “payable” is irrelevant in the present case, the applicable portion of the statute provides that the plaintiff has “no right to recover any damages for which personal injury protection benefits are paid_” § 627.736(3), Fla. Stat. (2003). Because all of the PIP benefits were applied to the plaintiffs past medical expenses, it follows that the setoff can be made only against the jury’s $5,000 line item for past medical expenses. The matter must be returned to the trial court to enter an appropriate judgment in favor of the plaintiff on the $2,500 verdict for lost wages.

The plaintiff has also requested a new trial. We have carefully considered the plaintiffs argument on this issue, but conclude that the trial court’s rulings were within the court’s discretion. In light of our ruling on the PIP setoff, the appeal of the defendants and Allstate Insurance Company regarding the cost award is moot.

Affirmed in part, reversed in part, and remanded for entry of judgment for the plaintiff consistent with this opinion.

      . This consisted of $8,000 paid by the insurance company with a $2,000 deductible being attributable to the plaintiff.

      . The date of the accident was August 20, 2003.