author: LEWIS, J. PARIENTE, C.J.,

text:
    STATE of Florida, etc., et al., Appellants, v. PRESIDENTIAL WOMEN'S CENTER, et al., Appellees.
    No. SC04-2186.
    Supreme Court of Florida.
    April 6, 2006.
    Rehearing Denied Aug. 10, 2006.

      Charles J. Crist, Jr., Attorney General, Christopher M. Rise, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, John J. Rimes, III, Senior Assistant Attorney General, and James A. Peters, Special Counsel, Tallahassee, FL, for Appellants.
    Marshall J. Osofsky of Moyle, Flanigan, Katz, Raymond and Sheehan, P.A., West Nan Strauss of Center for Reproductive Rights, New York, NY; and Barry M. Silver, Boca Raton, FL, for Appellees. Palm Beach, FL; Bebe J. Anderson and
    Mathew D. Staver, Erick W. Stanley, Anita, L. Staver, Rena M. Lindevaldsen and Lindsey F. Martin of Liberty Counsel, Longwood, FL, and Teresa Stanton Col-lett, Profession of Law, University of St. Thomas School of Law, Minneapolis, MN; on behalf of Christian Medical Association and Catholic Medical Association; Jo Ann Barone Kotzen of Kotzen Law, West Palm Beach, FL on behalf of American College of Obstetricians and Gynecologists, Florida Section (ACOG-FS); and Donna Lee, New York, NY on behalf of Florida Association of Planned Parenthood Affiliates, Planned Parenthood of Southwest and Central Florida, Planned Parenthood of South Palm Beach and Broward Counties, Planned Parenthood of the Palm Beach and Treasure Coast Area, Planned Parenthood of Collier County, Planned Parenthood of North Central Florida, American Civil Liberties Union of Florida, and American Civil Liberties Union Reproductive Freedom Project, for Amici Curiae.
   LEWIS, J.

We have on appeal State v. Presidential Women's Center, 884 So.2d 526 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal declared section 390.0111 of the Florida Statutes invalid. We have See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below,' we reverse the district court’s decision and remand for further proceedings. jurisdiction.

BACKGROUND

In 1997, the Florida Legislature enacted subsection 390.0111, Florida Statutes, titled the “Woman’s Right to Know Act” (hereinafter “the Act”). See ch. 97-151, § 1, Laws of Fla. The Act essentially prohibits termination of pregnancy procedures from being performed or induced unless either the referring physician or the physician performing the procedure first obtains informed and voluntary written consent from the patient. See § 390.0111(3), Fla. Stat. (2005).

Respondents (collectively “Presidential”) filed a complaint in the Fifteenth Judicial Circuit Court alleging that the Act violates the Florida and United States Constitutions. After a hearing, the trial court issued a temporary injunction enjoining enforcement of the Act. The Fourth District affirmed. See State v. Presidential Women’s Ctr., 707 So.2d 1145 (Fla. 4th DCA 1998).

Presidential subsequently moved for the entry of a summary judgment, specifically asserting that subsection (3)(a)(l) of the Act violates the right to privacy under the Florida Constitution and is unconstitutionally vague under the due process clauses of the Florida and United States Constitutions. The trial court agreed with Presidential, held that the Act was unconstitutional on its face, granted Presidential’s motion, and entered the summary judgment requested. On appeal, the Fourth District affirmed the trial court’s order in full. See State v. Presidential Women’s Ctr., 884 So.2d 526 (Fla. 4th DCA 2004) (hereinafter Presidential).

The State has appealed the Fourth District’s decision, and we have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

ANALYSIS

Our standard of review in the instant proceeding is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (stating that a trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review). However, in considering the constitutionality of subsection (3)(a)(l) of the Act, we adhere to the settled principle that “[w]hen two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution.” Indus. Fire & Cas. Ins. Co. v. Kwechin, 447 So.2d 1337, 1339 (Fla.1983); see also Hiers v. Mitchell, 95 Fla. 345, 116 So. 81, 84 (1928) (noting that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter”).

We begin our analysis by noting that the Act is fundamentally an informed consent statute. Under the doctrine of informed consent, a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure. See Thomas v. Berrios, 348 So.2d 905, 907 (Fla. 2d DCA 1977). Unless a person knows the risks and dangers of such a procedure, “a ‘consent’ does not represent a choice and is ineffectual.” Bowers v. Talmage, 159 So.2d 888, 889 (Fla. 3d DCA 1963). The doctrine of informed consent is well recognized, has a long history, and is grounded in the common law and based in the concepts of bodily integrity and patient autonomy. We agree with the well-articulated view that:

Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words, the right to himself — is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by-a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge. 1 Kinkead on Torts, § 375, states that general rule on this subject as follows: The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it.

Chambers v. Nottebaum, 96 So.2d 716, 719 (Fla. 3d DCA 1957) (internal quotation marks omitted) (quoting Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15 (1905)); see also Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (“ ‘[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment.”) (citation omitted) (quoting Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891)). As this Court stated in 1990:

[Ejveryone has a fundamental right to the sole control of his or her person. As Justice Cardozo noted seventy-six years ago:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body....
An integral component of self-determination is the right to make choices pertaining to one’s' health, including the right to refuse unwanted medical treatment. ...
... The issue involves a patient’s right of self-determination and does not involve what is thought to be in the patient’s best interests.
More is involved in respect for self-determination than just the belief that each person knows what’s best for him- or herself.... Even if it could be shown that an expert (or a computer) could do the job better, the worth of the individual, as acknowledged in Western ethical traditions and especially in Anglo-American law, provides an independent — and more important — ground for recognizing self-determination as a basic principle in human relations, particularly when matters as important as those raised by health care are at stake.

In re Guardianship of Browning, 568 So.2d 4, 10 (Fla.1990) (citations omitted).

The State of Florida has further codified the doctrine of medical informed consent generally in section 766.103 of the Florida Statutes. Moreover, the Florida Legislature has enacted statutes that have application and govern the concept of informed consent in specific contexts. See, e.g., § 458.324, Fla. Stat. (2005) (breast cancer); § 458.325, Fla. Stat. (2005) (electroconvul-sive and psychosurgical procedures); § 945.48, Fla. Stat. (2005) (inmates receiving psychiatric treatment).

The termination of a pregnancy is unquestionably a medical procedure and we conclude that, as with any other medical procedure, the State may require physicians to obtain informed consent from a patient prior to terminating a pregnancy. This basic premise is without dispute in this litigation. No legitimate reason has been advanced to support a theory that physicians who perform these procedures should not have an obligation to notify their patients of the risks and alternatives to the procedure. Further, we do not view those patients requesting this medical procedure to be less concerned than patients having other medical treatments with regard to the risks and alternatives of that medical procedure, or such information as being less pertinent to an informed patient’s decision to undergo or not undergo the procedure. Therefore, it is reasonable to conclude that if the informational requirements of subsection 3(a)(1) are comparable to those of the common law and other Florida informed consent statutes implementing the common law, this subsection which addresses informed consent certainly may have no constitutional prohibition or generate the need for an analysis on the issue of constitutional privacy.

In considering whether the informational requirements of subsection (3)(a)(l) are analogous to the common law or other informed consent statutes implementing the common law concept, we first review Presidential’s vagueness challenges because the interpretation of the language of the provision is determinative of this issue. Presidential contends that requiring physicians to inform patients of “[t]he nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy,” § 390.0111(3)(a)(l)(a), Fla. Stat. (2005), is unconstitutionally vague on two separate grounds.

First, Presidential asserts that the term “reasonable patient” is vague because it requires physicians to speculate as to what information a hypothetical reasonable patient would consider material to her decision and inform all patients contemplating a termination of pregnancy of this information, regardless of whether it is in any way relevant to the particular patient who is presenting herself for this medical intervention. Presidential claims that the standard is vague because it does not contain express language limiting the provision of information to what a reasonable patient under the patient’s circumstances would consider material to her decision. Presidential contends that patients seeking terminations of pregnancy are diverse and, therefore, the Act affords treating physicians for this procedure no guidance as to what information must be provided to patients, or how one satisfies or complies with this statutory requirement.

Second, Presidential asserts that subsection (3)(a)(l)(a) of the Act is unconstitutionally vague because in their view this provision is unclear as to whether physicians must inform patients of the nonmedical risks of undergoing or foregoing this medical treatment. In support of this argument, Presidential notes that while subsection (3)(a)(l)(c) of the Act requires physicians to notify patients of “[t]he medical risks to the woman and fetus of carrying the pregnancy to term” (emphasis supplied), subsection (3)(a)(l)(a) requires physicians to inform patients of “[t]he nature and risks of undergoing or not undergoing the proposed procedure.” § 390.0111(3)(a)(l)(a),(c), Fla. Stat. (2005). Since the word “medical” is present in subsection (3)(a)(l)(c), but is omitted from subsection (3)(a)(l)(a), Presidential asserts that subsection (3)(a)(l)(a) may be read to encompass nonmedical risks, which would produce impermissible vagueness.

We reject both of Presidential’s assertions. First, we disagree that subsection (3)(a)(l)(a) requires physicians to inform those patients presenting themselves for this treatment as to what a generalized, nondescript, abstract, hypothetical “reasonable patient” would consider material when providing the informed consent information. As this case has developed, and during oral argument, the State has asserted and agreed that the “reasonable patient” under subsection (3)(a)(l)(a) is only and specifically the patient who is presenting herself for the procedure, and, therefore, the doctor need only consider, address, and inform based on that patient’s individualized circumstances in determining what information is material and to be provided as the “informed consent.” We adopt the State’s interpretation of the “reasonable patient” language because statutory provisions should not be construed in a manner that would lead to an absurd result, see Warner v. City of Boca Raton, 887 So.2d 1023, 1033 n. 9 (Fla.2004), and it would be illogical to require physicians who perform this treatment to provide the identical standardized information to every patient, even when that information would be completely irrelevant to the patient’s individual circumstances. Indeed, such a practice would defeat the very purpose of informed consent by overwhelming and possibly confusing the patient with immaterial information. Moreover, even though Florida’s general consent law includes the words “under the circumstances” when describing the reasonable patient standard, see supra note 2, we agree with the State and conclude that the mere absence of these words from the Act does not render the provision unconstitutionally vague. Even without the precise language, we conclude that the Act is to be rationally and reasonably construed, as advanced by the State, to require a physician to consider only and exclusively the individual circumstances of each patient presenting herself for treatment in determining what information is material to that patient’s decision. See generally Indus. Fire, 447 So.2d at 1339; Hiers, 116 So. at 84.

We further reject Presidential’s contention that subsection (3)(a)(l)(a) must be read to encompass nonmedieal risks. As this litigation developed, and during oral argument, the State has agreed and conceded that this subsection applies solely and exclusively to information with regard to medical risks — not information with regard to social, economic, or any other risks. The doctrine of medical informed consent is rooted in the concepts of bodily autonomy and integrity, see Chambers, 96 So.2d at 719, and it is logical that physicians be required to inform the patient only and exclusively of the medical risks of terminating or not terminating a pregnancy. Physicians are not sociologists, economists, theologians, or philosophers, and it is implausible to conclude that the Legislature intended that physicians be required to venture far beyond their professional specialty and expertise to advise patients of nonmedical matters merely because the word “medical” is not specifically utilized in subsection (3)(a)(l)(a). Cf. Arato v. Avedon, 5 Cal.4th 1172, 23 Cal.Rptr.2d 131, 858 P.2d 598, 608-09 (1993) (recognizing the “therapeutic limitation inherent in the doctrine of informed consent” and finding “[t]he fact that a physician has fiducial obligations which ... prohibit misrepresenting the nature of the patient’s medical condition, does not mean that he or she is under a duty, the scope of which is undefined, to disclose every contingency that might affect the patient’s nonmedical rights and interests” (internal quotation marks omitted)).

By interpreting the term “reasonable patient” to be a reasonable patient under the particular patient’s circumstances, and the word “risks” to encompass solely and exclusively medical risks, we agree with the State and conclude that subsection (3)(a)(l) of the Act constitutes a neutral informed consent statute that is comparable to the common law and to informed consent statutes implementing the common law that exist for other types of medical procedures — it requires the physician to describe the medical procedure to the patient and inform her of the medical risks of having a termination procedure and carrying a pregnancy to term. Moreover, we conclude that subsection (3)(a)(l)(a), when its terms are construed in the manner we have described, is not “so vague that men of common intelligence must necessarily guess at its meaning.” D'Alemberte v. Anderson, 349 So.2d 164, 166 (Fla.1977) (quoting Cline v. Frink Dairy Co., 274 U.S. 445, 459, 47 S.Ct. 681, 71 L.Ed. 1146 (1927)). Subsection (3)(a)(l) can be construed in a manner that avoids any violation of the Florida and the United States Constitutions, see Indus. Fire, 447 So.2d at 1339; Hiers, 116 So. at 84, and, therefore, we conclude that the lower courts erred in holding that the Act is unconstitutional on the basis of this particular subsection.

COSTS

On appeal, the Fourth District awarded attorneys’ fees to Presidential, conditioned on the trial court determining that Presidential is the prevailing party. The State sought review of this award, claiming that the Fourth District erred in affirming the trial court’s award of summary judgment. Because we have concluded that the Fourth District erred in holding that the Act is unconstitutional, we vacate the Fourth District’s award of attorneys’ fees to Presidential at this time.

CONCLUSION

We conclude that section 390.0111(3)(a)(l) of the Florida Statutes is not unconstitutional. Accordingly, we reverse the Fourth District’s decision in Presidential which affirmed the summary final judgment in favor of Presidential holding that the unconstitutionality of this subsection renders the Act facially unconstitutional and remand for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

PARIENTE, C.J., specially concurs with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

PARIENTE, C.J.,

specially concurring.

The majority has construed section 390.0111(3)(a)(l), Florida Statutes (2005), to be a neutral informed consent statute that is comparable to other informed consent statutes and the common law from which they are derived. With the statute so limited, I concur in upholding its constitutionality. I write to emphasize that it is only because of two significant limitations placed on this provision by the majority that the Act is not facially unconstitutional, and that it was the State at oral argument that made these two substantial concessions limiting the interpretation of this statute. The first is that the “reasonable patient” is not a hypothetical patient but rather is the patient presenting herself for the procedure. The second is that subsection (3)(a)(l)(a) requires physicians to inform patients of only medical risks and not other types of risks such as social or economic risks.

If the State had advanced these substantial limiting constructions from the outset, this case could have been resolved expeditiously either before the trial court or the Fourth District Court of Appeal. Without the benefit of these clear concessions from the State, I cannot fault the Fourth District for concluding that the plain language of the statute is unconstitutionally vague. See State v. Presidential Women’s Ctr., 884 So.2d 526, 533-34 (Fla. 4th DCA 2004).

Lastly, as the majority points out, our review is limited to the informed consent provisions in subsection (3)(a)(l) of the Act. Therefore, when this matter is returned to the trial court, it is with the understanding that the other portions of the Act challenged by the Presidential Women’s Center in its initial complaint remain to be considered. Our decision in this case expresses no opinion on the constitutionality of these other sections of the Act.

ANSTEAD and QUINCE, JJ., concur.

      . The relevant portion of the Act provides:
      (3) CONSENTS REQUIRED. — A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian.
      (a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
      1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in person, informed the woman of:
      a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy-

        b. The probable gestational age of the fetus at the time the termination of pregnancy is to be performed.
      c. The medical risks to the woman and fetus of carrying the pregnancy to term. § 390.01 ll(3)(a)(l), Fla. Stat. (2005).

      . Section 766.103, Florida Statutes, provides, in pertinent part:
      No recovery shall be allowed in any court in this state against any physician ... in an action brought for treating, examining, or operating on a patient without his or her informed consent when:
      (a)l. The action of the physician ... in obtaining the consent of the patient ... was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and-experience in the same or similar medical community; and
      2. A reasonable individual, from the information provided by the physician ... under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are _ recognized among other physicians ... in the same or similar community who perform similar treatments or procedures; or
      (b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician ... in accordance with the provisions of paragraph (a).
      § 766.103(3), Fla. Stat. (2005).

      . See Maggio v. Fla. Dep’t of Labor & Emp. Sec., 899 So.2d 1074, 1076 (Fla.2005) ("When construing a statutory provision, legislative intent is the polestar that guides the Court’s inquiry.”) (internal quotation marks omitted); see also Scenic Hills Utility Co. v. City of Pensacola, 156 So.2d 874, 876 (Fla. 1st DCA 1963) ("In the drafting of a statute there is no magic in the presence or absence of a particular word. It is the duty of the Court to examine the enactment as a whole in order to determine its meaning. The failure to use a word very commonly used to express a certain thought is a circumstance to be considered in arriving at the legislative intent. But the failure to use a particular word does not mean that the legislature cannot express the meaning of that word in other language. If the intent of the legislature is clear and unmistakable from the language used it is the duty of the Court to give effect to that intent.”).

      . See, e.g., § 458.324, Fla. Stat. (2005) ("Each physician treating a patient who is, or in the judgment of the physician is at high risk of being, diagnosed as having breast cancer shall inform such patient of the medically viable treatment alternatives available to such patient; shall describe such treatment alternatives; and shall explain the relative advantages, disadvantages, and risks associated with the treatment alternatives to the extent deemed necessary to allow the patient to make a prudent decision regarding such treatment options.”).

      . Further, to the extent that the Act permits only the performing physician or a referring physician to provide the informed consent information, we note that other informed consent statutes, including the general medical consent statute, require a physician to provide the informed consent information. See supra notes 2, 4.

      . Although Presidential’s motion for summary judgment addressed only subsection (3)(a)(l) of the Act, the complaint that Presidential filed with the circuit court more broadly challenged the constitutionality of other provisions of the Act as well. However, the district court’s affirmance of the summary final judgment only addresses subsection (3)(a)(l) of the legislation, and our decision today is limited to consideration of that subsection.

      . The trial court also awarded Presidential attorneys’ fees and costs; however, the State did not seek review of the trial court's award.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles HAWKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-527.
    District Court of Appeal of Florida, Third District.
    April 27, 2005.
    Charles Hawkins, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   PER CURIAM.

Charles Hawkins appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The verdict form reflects that defendant-appellant Hawkins was convicted of robbery with a deadly weapon, which is a first degree felony punishable by life imprisonment. See § 812.13(2)(a), Fla. Stat. (1981). The 99-year sentence is a legal sentence.

Affirmed.


text:
    The STATE of Florida, Petitioner, v. Tavares David CALLOWAY, and Antonio Clark, Respondents.
    Nos. 3D04-1585, 3D04-1582.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 21, 2006.

      Charles J. Crist, Jr., Attorney General; Katherine Fernandez Rundle, State Attorney and Fleur J. Lobree, Assistant State Attorney, for petitioner.
    Scott W. Sakin, for respondent Callo-way.
    H. Scott Fingerhut, Miami, on behalf of the Association of Criminal Defense Lawyers as amicus curiae.
    Before LEVY and RAMIREZ and ROTHENBERG, JJ.
   PER CURIAM.

The State of Florida (“State”) seeks cer-tiorari review of several ex parte Motions and Orders. The State also filed a Petition for Prohibition seeking to disqualify the trial judge. We grant the Petition for Writ of Certiorari in part and grant the Petition to Disqualify the trial judge.

PETITION FOR WRIT OF CERTIORARI

During the deposition of Dr. Ofshe, one of the defendant’s psychiatric experts, the State learned of a taped interview Dr. Ofshe took of the defendant, which the defense did not list in its discovery disclosure. The State later learned that the material was submitted for in camera review without notice to the State, and resulted in an ex parte Order which excluded the information from defendant’s discovery obligations. Upon learning of the ex parte ruling, and the existence of additional ex parte rulings, the State filed a Motion to Vacate all Ex Parte Orders, and sought a hearing on all of defendant’s ex parte motions, arguing that the Orders were entered without any notice to the State.

The State’s primary argument below, and on appeal, relating to the ex parte rulings, was that the State should have been noticed and permitted to present legal argument and authority to oppose the defense position regarding the discovera-bility of the material. The trial court denied the State’s motion, reasoning that to allow the State to raise an objection to the defense’s privilege argument would defeat the purpose of the in camera inspection. The court explained that the defense took the position that they were not obligated to provide the material because it was confidential work product, and after reviewing the material in camera, the court agreed with the defendant and found that the material was not discoverable.

After reviewing the ex parte motions and Orders, we find that, while the trial court did not depart from the essential requirements of the law with respect to the Orders relating to defendant’s motions seeking appointment and financing of expert witnesses pursuant to Florida Rule of Criminal Procedure 3.216, where the defense was not required to provide the State with notice pursuant to State v. Hamilton, 448 So.2d 1007 (Fla.1984), it departed from the essential requirements of the law when it considered ex parte defendant’s Motion to Exclude Dr. Ofshe’s Interview of Defendant from Defendant’s Discovery Obligation where Dr. Ofshe was listed as a witness for the defense.

Defendant’s Discovery Obligations

Florida Rule of Criminal Procedure 3.220(d)(1)(B) provides that a defendant who elects to participate in discovery must provide the prosecution with a list of the names and addresses of all witnesses whom the defendant expects to call at trial or at a hearing. Fla. R.Crim. P. 3.220(d)(1)(B) (2004). Moreover, subsection (B)(ii) permits inspection of reports, memorandums or statements of experts made in connection with the case. Fla. R.Crim. P. 3.220(d)(l)(B)(ii) (2004). Thus, once the defense provided the State with its witness list including Dr. Ofshe, the State was entitled to depose Dr. Ofshe, and review materials which the witness relied on in formulating his opinion- about the case. Nevertheless, avenues still exist to protect privileged materials from discovery. See Fla. R.Crim. P. 3.220(d)(l)(B)(i), (e), (g) and (m)(l).

The issue before this Court, therefore, concerns whether the defendant, who claimed a privilege on certain material, must provide the State with notice of his intent to seek protection of this information. Florida Rule of Criminal Procedure 3.220(m') allows the court to consider in camera matters which a party may consider are sensitive. Fla. R.Crim. P. 3.220(m)(l). The Rule also allows the defendant to make “an ex parte showing of good cause for taking the deposition of a Category B witness:” Fla. R.Crim. P. 3.220(m)(2). The defendant in the instant case suggested below, and claims on appeal, that Rule 3.220(m) allows for, what is in effect, an ex parte, in camera inspection of the material. We cannot agree with the defendant’s expansive reading of the Rule. The Rule clearly allows either party to move for in camera inspection of sensitive material or, separate and apart, make an ex parte request to depose a Category B witness. Fla. R.Crim. P. 3.220(m)(l) and (2). Thus, the Rule clearly only allows for ex parte requests to depose a Category B witness. In fact, subsection (3) separately refers to the two situations, i.e., “If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding should be sealed-” Fla. R.Crim. P. 3.220(m)(3). Accordingly, contrary to the defendant’s suggestion, an in camera inspection and an ex parte proceeding are not one and the same. Moreover, an ex parte proceeding is only proper where permitted by law. See In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla.1987)(ex parte communications are improper “except when they are expressly authorized by statutes or rules.”); see also Fla. Bar Code of Jud. Conduct, Canon 3(B)(7) (judge should accord to every person who is legally interested in a proceeding that person’s full right to be heard according to law, and except as authorized by law or Rule, neither initiate nor consider ex parte or other communications concerning a pending proceeding).

In the instant case, although the trial court correctly concluded that it had authority to, and in fact did, conduct an in camera inspection of the material, that inspection improperly occurred as a result of an ex parte communication which is not expressly authorized by any statute or rule. Consequently, we find that although the State is not entitled to review the material submitted for in camera inspection, the State, as a party, is entitled to notice of, and an opportunity to be heard at, any hearing regarding the alleged privilege of the information. Rose v. State, 601 So.2d 1181, 1183 (Fla.1992).

Ex Parte Orders relating to Defendant’s Rule 3.216 Motions

The State in the instant case sought hearings on all of the motions and Orders filed ex parte. Rule 3.216(a) requires the trial court to appoint an expert to examine an indigent defendant upon motion of defendant’s counsel that she or he has “reason to believe that the defendant may be incompetent to proceed or that the defendant may have been insane at the time of the offense.” Fla. R.Crim. P. 3.216(a)(2004). Moreover, Rule 3.216(a) limits any reporting by the expert to defendant’s counsel and provides that “matters related to the expert shall be deemed to fall under the lawyer-client privilege.” Fla. R.Crim. P. 3.216(a)(2004).

In State v. Hamilton, 448 So.2d 1007 (Fla.1984), the Supreme Court of Florida reviewed the following question relating to Rule 3.216(a):

When an appointed counsel informs the court, as provided in Florida Rule of Criminal Procedure 3.216(a), that he has reason to believe his indigent client is incompetent to stand trial or was insane at the time of the offense, does the trial court have any discretion as to any matter of law or fact the determination of which would entitle the State to be given notice and an opportunity to be heard before the court appoints an expert to examine the accused and to assist his appointed counsel?

Hamilton, 448 So.2d at 1008. The Court answered the question in the negative, and explained that:

[t]he rule is designed to give an indigent defendant the same protection as afforded to a solvent defendant. Further, and as important, in many instances the basis for the request for such an expert is founded on communications between the appointed lawyer and his client. Any inquiry into those communications would clearly violate the basic attorney-client privilege. Any inquiry into counsel’s basis to believe that his indigent client is incompetent to stand trial or was insane at the time of the offense also impermissibly subjects the indigent defendant to an adversary proceeding concerning issues which may be litigated in the trial of the cause. No solvent defendant would be subjected to this type of inquiry or proceeding.

Hamilton, 448 So.2d at 1008-09 (emphasis added). Thereafter, this Court in State v. Nolasco, 803 So.2d 757 (Fla. 3d DCA 2001), explained that the request for expenses relating to an indigent defendant’s need to hire an expert in order to prepare his or her case are heard in quasi ex parte proceedings, where the motion requesting the funds is served on the County Attorney but not on the State and the written motion is filed under seal. The Court explained that an assistant county attorney attends the hearing and is given an opportunity to be heard, and voice any opposition it may have. Nolasco, 803 So.2d at 758.

After reviewing the State’s Petition, it is clear that with the exception of the ex parte Order excluding Dr. Ofshe’s interview of the defendant the trial court did not depart from the essential requirements of the law in appointing defendant’s expert without notice to the State where the Motions and Orders about which the State complains involve matters protected under Rule 3.216(a), Florida Rule of Criminal Procedure, and Hamilton; see also McKinniss v. State, 439 So.2d 302 (Fla. 2d DCA 1983).

We recognize that the County is no longer responsible for funding Rule 3.216 expert appointments, see § 29.019, Florida Statutes (2005), and that perhaps the No-lasco procedure will change. However, the changes did not take effect until July 1, 2004, after the Orders at issue in the instant case were entered. § 29.019, Fla. Stat. (2005)(billings for services rendered before July 1, 2004, must be paid by the counties).

In light of the foregoing, we grant the State’s Petition for Writ of Certiorari only as it relates to the Ex Parte Order excluding Dr. Ofshe’s Interview of the Defendant from Defendant’s Obligation and remand for in camera inspection, giving the State an opportunity to respond to the defendant’s position on this matter.

PETITION FOR WRIT OF PROHIBITION

With respect to the State’s Petition for Prohibition, we grant the Petition because an unauthorized ex parte communication took place. As a result of the ex parte communications, it is necessary that any further proceedings take place before another judge.

CONCLUSION

The State’s Petition for Certiorari is granted in part, the Writ of Prohibition is granted, and the matter remanded for further proceedings consistent with this opinion.

      . We decline to address what the proper procedure should be in light of the changes to section 29.019, Florida Statutes, however, it seems if the State Attorney’s office is the party receiving notice of the request for expert appointment, the purpose of Rule 3.216 is thwarted. See State v. Hamilton, 448 So.2d 1007, 1008 (Fla.1984)("The rule is designed to give an indigent defendant the same protection as afforded to a solvent defendant. Further, and as important, in many instances the basis for the request for such an expert is founded on communications between the appointed lawyer and his client.... No solvent defendant would be subjected to this type of [adversary] inquiry or proceeding.”)


text:
    Anthony B. WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2482.
    District Court of Appeal of Florida, Third District.
    April 19, 2006.
    Rehearing Denied Sept. 26, 2006.
    Anthony B. Wilson, in proper person.

      Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A); Fla. R.App. P. 9.141(b) (2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


text:
    Lawrence Fitzgiles CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4068.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2006.
    Rehearing Denied July 18, 2006.
    James S. Purdy, Public Defender, and Caleb A. Bendix, Assistant Public Defender, Daytona Beach, for Appellant.
    Lawrence F. Carter, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


author: SHEPHERD, J.

text:
    Jorge Lorenzo CUETO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1257.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 20, 2006.

      Dunlap & Silvers and Marcia J. Silvers; Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S, Katz, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Defendant was convicted of seven crimes based on events that occurred on October 5, 1999, where defendant, Jorge Lorenzo Cueto, and a co-defendant allegedly stole a vehicle. Defendant then drove to a restaurant and robbed at least one customer. Defendant then proceeded to a hotel and robbed the hotel clerk and a hotel guest.

Defendant raises eleven points of ineffective assistance of counsel, one of which might have merit. During trial, defense counsel conceded that defendant was guilty of armed burglary without assault or battery when defendant entered the hotel and robbed the hotel clerk and guest. The evidence, however, was legally insufficient to' support a conviction for burglary because it is indisputable on the record that the premises entered during the robbery was in an area of the hotel that was open to the public. See Miller v. State, 733 So.2d 955, 957 (Fla.1998)(holding “that if a defendant can establish that the premises were open to the public, then this is a complete defense [to the crime of burglary].”); of. Johnson v. State, 786 So.2d 1162, 1163 (Fla.2001)(affirming Miller but permitting prosecution for defendant’s un-per-mitted entry into a non-public portion of a convenience store). Defendant raised this point on direct appeal despite the fact that for obvious reasons the error was not preserved. The State responded that the argument was waived. On that basis, we affirmed. Cueto v. State, 840 So.2d 246 (Fla. 3d DCA 2003).

The State now argues that defendant is precluded from raising the point pursuant to an ineffective assistance claim because this issue was considered on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995). Such an argument, if accepted, would procedurally bar defendant from raising a potentially meritorious claim of ineffective assistance of counsel precisely because appellate counsel identified a significant error by trial counsel and attempted to remedy it on the merits. The law abhors such a circular result. See State v. McBride, 848 So.2d 287, 292 (Fla.2003)(“res judicata will not be invoked where it would defeat the ends of justice”).

The State additionally contends that defendant cannot show prejudice because the quality and quantity of the physical and testimonial evidence established that any error regarding the convictions was harmless beyond a reasonable doubt. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While the evidence does indicate that potential errors regarding defendant’s robbery and petit theft charges were harmless, such is not the case for the charge of burglary without assault or battery.

Because the record now before us fails to conclusively establish that defendant is not entitled to relief, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively establishing that defendant is not entitled to relief.

Reversed and remanded for further proceedings.


text:
    MOUNT SINAI MEDICAL CENTER, Appellant, v. Costel FOTEA, Appellee.
    No. 3D04-302.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 21, 2006.

      Parenti & Parenti and Gail Leverett Parenti, Coral Gables, for appellant.
    John Herrera, for appellee.
    Before LEVY, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Mount Sinai Medical Center (“Mount Sinai”) petitions this Court for a writ of certiorari, claiming error in the trial court’s orders (1) denying Mt. Sinai’s Motion to Dismiss Costel Fotea’s (“Fotea”) Complaint for failure to comply with the statutory presuit requirements of Chapter 766, Florida Statutes; and (2) striking Mount Sinai’s Answer which asserts affirmative defenses for failure to comply with the presuit requirements. We grant the petition as it relates to the trial court’s denial of Mount Sinai’s Motion to Dismiss because the allegations in the Complaint satisfy the “medical services” provision of Chapter 766.

Fotea filed suit against Mount Sinai claiming he was improperly committed pursuant to the Baker Act following a laboratory error at Mount Sinai. The Complaint alleges that while Fotea was at Mt. Sinai awaiting a CT scan prescribed by his chiropractor, he was approached by a lab tech for blood and urine samples. Fotea alleges that because the lab results indicated high levels of alcohol and illegal drugs, Mount Sinai Baker Acted Fotea.

Section 766.106, Florida Statutes, requires that a plaintiff, claiming medical negligence or medical malpractice, give notice to prospective defendants of the intent to initiate litigation prior to filing suit. § 766.106(2), Fla. Stat. (2003). This notice requirement then triggers preliminary discovery and investigation. § 766.106(3), Fla. Stat. (2003). Section 766.106(1), Florida Statutes,' defines “medical negligence” and “medical malpractice” as a claim “arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(1), Fla. Stat. (2003); see also Puentes v. Tenet Hialeah Healthsystem, 843 So.2d 356 (Fla. 3d DCA 2003).

In the instant case, Fotea presented himself to the hospital for medical services, i.e., a CT scan. As part of that service, the hospital took lab work from Fotea. The lab results prompted the alleged improper, involuntary commitment of Fotea. Thus, Fotea’s claims clearly arise out of the rendering of medical services.

Accordingly, Mount Sinai’s Petition for Certiorari is granted, and the matter is remanded with directions to grant Mount Sinai’s Motion to Dismiss Fotea’s Second Amended Complaint for failure to comply with the presuit requirements of Chapter 766.

Petition for Certiorari granted.

      . § 394.451, Fla. Stat. (2003).


author: FARMER, J.

text:
    William McCONNELL and Elizabeth McConnell, Appellants, v. UNION CARBIDE CORPORATION, Appellee.
    No. 4D04-4329.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2006.
    Rehearing Denied Oct. 6, 2006.

      James L. Ferraro and David A. Jagolin-zer of Ferraro & Associates, P.A., Miami, for appellants.
    Natalie S. Whiteman and Lawrie E. De-morest of Alston & Bird, LLP., Atlanta, GA, for appellee.
   FARMER, J.

In this asbestosis case, plaintiffs went to trial on their strict liability, failure to warn claim. They requested that the court give the standard products liability jury instructions for failing to warn of serious risk of harm when a dangerously defective product is used as intended. See Fla. Std. Jury Inst. (Civ.) PL4-PL5 (2004) (FSJI). Defendant objected on the grounds that FSJI PL4-PL5 did not apply, contending that Florida law does not recognize a manufacturing or design defect from “uncontaminated raw” material incorporated into a manufactured product. Defendant argued that “raw” asbestos is not a product capable of being defectively manufactured or designed for products liability purposes. In agreeing with defendant, the trial court cut off any discussion of the issue and instead gave a non-standard jury instruction requested by defendant. After a verdict for defendant, plaintiffs appeal. We reverse for a new trial.

During the 1970s and 1980s, William McConnell worked as a carpenter for drywall businesses in Florida and Alabama. His job involved applying a joint compound, called “Ready-Mix,” onto drywall and then sanding it after it had hardened. Ready-Mix was manufactured by Georgia-Pacific and included an ingredient called “Calidria Asbestos” which is made, marketed and sold by Union Carbide (Carbide). The facts showed that Carbide milled raw asbestos into the product used in the manufacturing of Ready-Mix. In its marketing literature for Calidria Asbestos, Carbide stated:

“Calidria Asbestos is produced by a proprietary manufacturing process that yields unusually high fiber content and more complete fiber liberation from the natural bundles. As a result, Calidria Asbestos goes up to twice as far, pound for pound, as commercial grades of asbestos containing large amount of other filler materials that have no specific desirable effects on tape joint compound properties.”

The McConnells alleged that he did not know — and was never informed — that Ready-Mix contained health-hazardous asbestos. They alleged that as a consequence of sanding the Ready-Mix, he unknowingly released and inhaled asbestos fibers manufactured, sold, and distributed by Carbide, which caused him to develop asbestosis. They alleged that Carbide’s product was unreasonably dangerous when used as intended, that it reached him essentially unchanged, and caused him serious personal injury. They adduced evidence in support of all these allegations.

In objecting to plaintiffs’ request to instruct the jury with FSJI PL4-PL5, Carbide argued that this was not a products liability case because, as it contended, “raw” asbestos was simply incapable of being defectively manufactured or designed. Agreeing with Carbide, the court summarily ended any argument in response by plaintiffs, stating rather peremptorily and without further elaboration: “This is not a defect case. This is not a products liability case.” In short, the court refused to hear plaintiffs’ arguments on entitlement to FSJI PL4-PL5. Instead, at Carbide’s request, and over the objection of plaintiffs, the trial judge gave the following instruction:

“In order to find Union Carbide strictly liable, the Plaintiff must prove that Union Carbide sold a defective product by failing to adequately warn of a particular risk that was known or noticeable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of sale of the product, and in light of the level of education and knowledge of the danger of Union Carbide’s customers such as Georgia Pacific.” [e.sj

We must differ with the trial judge as to the nature of the issue presented here. This is a products liability case. From Carbide’s own words, Calidria Asbestos was produced by its own proprietary manufacturing process and is then sold to Georgia-Pacific. In fact, as we have seen, its own marketing touted the product as being designed to go “twice as far” as other “commercial grade Asbestos.” There was evidence that the intended use of Carbide’s Asbestos — and the Ready-Mix product into which it had been added — routinely involves sanding the joint compound after it has been applied to drywall and permitted to harden. Its intended use thus contemplates the liberation of asbestos into the air where it can be inhaled. The fiber bundles in the asbestos are liberated by the sanding, effectively increasing the level of harmful dust ordinarily associated with asbestos. The evidence showed that Carbide’s milled Calid-ria Asbestos product reached an ultimate user like plaintiff McConnell without any essential change affecting its deleterious properties. There was ample evidence to go to the jury on the claim of a defective product without warnings.

The dangerous propensities of asbestos are well known. We take judicial notice that Florida law outlawed the use of asbestos-based fiber materials in any public building started after September 30, 1983. The danger caused by asbestos products is not unique to this case or even Florida. Indeed, even if it were true that the Calidria Asbestos marketed by Carbide had been in its “raw” form, that fact would be meaningless in Florida, where the statute prohibiting the product encompasses even its most elemental form.. It reflects the understanding that asbestos is intrinsically dangerous and can cause asbestosis, a life-threatening disease.

To be sure, Carbide’s argument that the Calidria Asbestos substance it sold to Georgia-Pacific was merely “raw material” is utterly betrayed by its own marketing literature. Calidria Asbestos had an “intended design” by Carbide. A product so designed may properly be deemed “defective” within the meaning of Florida products liability law. And even if the product distributed by Carbide could be thought merely raw material, we fail to understand how its unreasonably danger-; ous incorporation into a product distributed commercially for use in the building trades, without required warnings, would insulate it from strict liability theory. The substance is dangerous to users whether in its “raw” form or, as here, processed into a higher commercial grade. We therefore conclude that Carbide’s Calidria Asbestos is a product for products liability purposes.

In determining whether plaintiffs were entitled to have the jury instructed under FSJI PL4-PL5, we rely on and follow Force v. Ford Motor Co., 879 So.2d 103 (Fla. 5th DCA 2004). Force held that a plaintiff in strict liability action in Florida is entitled to an instruction on the “consumer expectations” test originating in section 402A, Restatement (Second) of ToRTS. Force held:

“Under the consumer-expectation theory a product is defectively designed if the plaintiff is able to demonstrate that the product did not perform as safely as an ordinary consumer would expect when used in the intended or reasonably foreseeable manner.”

Force, 879 So.2d at 106. Here, evidence showed that McConnell used the Ready-Mix on drywall in the way. it was designed and intended. The product lacked any warning about the presence of asbestos. Evidence indicated that the Ready-Mix product failed to carry a warning of the dangerous health implications raised by sanding the dried product and thereby inhaling asbestos fibers. Without a warning, plaintiff had no way of anticipating the presence of asbestos and had every reason to expect that the product could be safely used in the ordinary manner. Plaintiffs’ theory of liability was that Carbide’s Calid-ria Asbestos made the Ready-Mix joint compound unreasonably dangerous, and thus defective, even when used as intended, and that a warning about the health hazards of asbestos was necessary. This theory is entirely compatible with Carbide’s Calidria Asbestos product. FSJI PL4-PL5 are designed to be used precisely in this circumstance.

In objecting to FSJI PL4-PL5, Carbide argued that plaintiffs had not specifically pleaded whether it was a design or a manufacturing defect that made the product defective. But it is not apparent to us why it would" matter whether the defect originated specifically in its design or its manufacture or both. In Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981), the court quoted the following with approval:

“ 'It would be a strange result if we said that a manufacturer who carefully designs a product and thereafter negligently produces it should be held liable, but a manufacturer who negligently designs the product and thereafter carefully produces it pursuant to the negligent design should be relieved of liability.’ ”

404 So.2d at 1052 (quoting Hancock v. Paccar, Inc., 204 Neb. 468, 475, 283 N.W.2d 25, 33 (1979)). The court went on to explain:

“Moreover, some commentators agree that
[t]he policy reasons for adopting strict tort liability do not change. merely because of the type of defect alleged. If a product, due to its design, is dangerous at the time of an accident, that should be sufficient, to impose strict tort liability.
2 L. Frumer & M. Friedman, Products Liability § 16A(4)(f)(iv)(D) at 3B-136.2(p) (1981). Contra, Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 MinmL.Rev. 773 (1979).
We feel that the better rule is to apply the strict liability test to all manufactured products without distinction as to whether the defect was caused by the design or the manufacturing. If so choosing, however, a plaintiff may also proceed in negligence.” [e.s.]

404 So.2d at 1052. Thus, pleading specifically that the defect in the product came from its design or, instead, its manufacture is not required to make the claim a strict liability claim under section 402A or to make FSJI PL4-PL5 applicable. Accordingly, Carbide’s argument — that FSJI PL4-PL5 was not applicable because of the failure to plead and prove whether the defect came from its design or from its manufacture — is not correct.

We note the frequent admonition that the trial court is “accorded broad discretion in formulating jury instructions, and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” See, e.g., Barton Protective Servs. Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999) (relying on Reyka v. Halifax Hosp. Dist., 657 So.2d 967 (Fla. 5th DCA 1995)). Many appellate courts have held that a “decision to give or withhold a jury instruction is to be reviewed under the abuse of discretion standard of review.” Barton, 745 So.2d at 974. But whether the jury should be instructed at all on an issue actually presents a question of law because the court has a duty to instruct on the law applicable to the issues litigated. See Wransky v. Dalfo, 801 So.2d 239, 243 (Fla. 4th DCA 2001) (trial court is required to instruct jury regarding law applicable to facts in evidence); Lynch v. McGovern, 270 So.2d 770, 771 (Fla. 4th DCA 1972) (“trial court is required to instruct the jury regarding the law applicable to the facts in evidence and the law of the case.”). Discretion arises only as to the content of the instruction. It would seem that a more accurate statement of the standard of review may well be that giving or refusing jury instructions is reviewed under a mixed standard of de novo and abuse of discretion.

At one time all jury instructions were non-standard, and trial judges were required to decide on content for themselves without approved forms to which they could confidently resort. That changed with the adoption of the FSJI in Florida. A rule now provides:

“The forms of Florida Standard Jury Instructions published by The Florida Bar pursuant to authority of the supreme court may be used by the trial judges of this state in charging the jury in civil actions to the extent that the forms are applicable, unless the trial judge determines that an applicable form of instruction is erroneous or inadequate. In that event the trial judge shall modify the form or give such other instruction as the judge determines necessary to accurately and sufficiently instruct the jury in the circumstances of the action. In that event the trial judge shall state on the record or in a separate order the manner in which the judge finds the standard form erroneous or inadequate and the legal basis of that finding.” [e.s.]

Fla. R. Civ. P. 1.985. This rule was undoubtedly designed to limit the range of discretion in deciding on the content of jury instructions. Indeed one essential purpose in having standardized texts for jury instructions is to insure that judicial statements of the law to lay juries are uniform throughout the state, especially as to like issues on similar evidence. While the FSJI recognize a 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. See Wransky, 801 So.2d at 243 (holding that standard jury instructions should be used when applicable unless erroneous or inadequate). In this sense discretion in the content of civil jury instructions has been lessened.

In Force, the court made clear:

“The party who asserts instructional error of this kind must show that: (1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly.”

879 So.2d at 106. Force applied a mixed standard of review in the circumstance — as here — where a party demonstrates entitlement to a standard jury instruction as a matter of law. Force, 879 So.2d at 106.

In objecting to FSJI PL4-PL5, Carbide did not make a showing that they inaccurately stated Florida law, that plaintiffs failed to produce evidence to support giving these instructions, or that giving them was not necessary to resolve the issues raised by plaintiffs in the theory of their case. As in Force, the record in this case supports plaintiffs’ request for FSJI PL4-PL5 in each respect: (1) each was an accurate statement of the law; (2) there was evidence to support them; and (3) the instructions were necessary for the jury to resolve the dispute. Notably, Carbide did not contend that FSJI PL4-PL5 do not accurately state Florida strict liability law, or that no evidence supports the theory, or that' the instruction would confuse the jury. In essence, its sole argument was that FSJI PL4-PL5 were not applicable.

Carbide’s argument was not well taken because as we have seen FSJI PL4-PL5 were specifically designed for the kind of claim on trial. It is legal error to hold that this was not a strict liability, products liability case. Plaintiffs’ claims fell exactly under the theory of strict liability, to which FSJI PL4-PL5 were presumptively applicable. The error of the trial judge was compounded by his peremptory termination of discussion which prevented plaintiffs’ counsel from being able to state a sufficient legal argument in response to Carbide’s opposition to the FSJI PL4-PL5. That is an abuse of discretion. Because plaintiffs’ proposed use of FSJI PL4-PL5 was fully supported by the record, we follow Force and hold that the court erred in refusing to give plaintiffs’ requested instruction.

In place of FSJI PL4-PL5, the court gave a special, non-standard instruction prepared by Carbide containing the following:

“and in light of the level of education and knowledge of the danger of .Union Carbide’s customers such as Georgia Pacific.”

Our decision in Union Carbide Corp. v. Kavanaugh, 879 So.2d 42, 45 (Fla. 4th DCA 2004), expressly rejected the precise legal theory underlying this phrase and makes clear that it does not correctly state the law regarding the failure of a supplier in the circumstance of Carbide to warn of an unreasonable danger in the contemplated use of its product. Paradoxically, Ka-vanaugh involved this identical defendant, this identical product, this identical use by a plaintiff, this identical injury, the identical theories of liability, the same underlying issues, and (finally) much the same evidence. Nor has it gone unnoticed that trial counsel for plaintiffs is the same in both cases. We rejected the very same defense underlying Carbide’s special jury instruction given in the present case, and held that Carbide had failed in its duty to warn because:

“It provided Georgia-Pacific with limited information which was not communicated to the ultimate users. Because [Carbide] did not take reasonable precautions under the circumstances, its duty to warn did not stop with Georgia-Pacific, but continued to the ultimate user.”

879 So.2d at 46. Carbide has failed to show here why the same holding should not apply in this case.

We think it is reasonably probable that the jury was misled by the final phrase in Carbide’s special instruction quoted above. Carbide’s proposed instruction strongly implies that Georgia-Pacific’s specific knowledge regarding the defect, rather than end users like plaintiff McConnell, was the sole focus of Florida’s strict liability law. But that is not an accurate statement of the law. In Kavanaugh, we explained that Carbide:

“as a bulk supplier of asbestos had a duty to warn of the danger of its product. Section 388 of the Restatement (Second) of ToRts provides that:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Seoond) of ToRts § 388 (1965); see also Sowell v. Am. Cyanamid Co., 888 F.2d 802, 803-04 (11th Cir. 1989).
Under the Restatement, [Carbide] is hable if it knowingly placed a dangerous product on the market, the dangerous condition of which is unnoticeable, and failed to properly warn of the dangerous condition.”

879 So.2d at 44. In other words, the rule is that a supplier of a dangerous product has a general duty to warn of the danger presented.

The precise nature of the duty to warn of hidden asbestos imposed on Carbide is further explained in comment n to section 388 of the Restatement (Seoond) of ToRts:

“the magnitude of the risk involved must be compared with the burden which would be imposed by requiring them (see § 291), and the magnitude of the risk is determined not only by the chance that some harm may result but also the serious or trivial character of the harm which is likely to result (see § 293). Since the care which must be taken always increases with the danger involved, it may be reasonable to require those who supply through others chattels which if ignorantly used involve grave risk of serious harm, to those who use them ... to take precautions to bring the information home to the users of such chattels which it would be unreasonable to demand were the chattels of a less dangerous character.
Thus, while it may be proper to permit a supplier to assume that one through whom he supplies a chattel which is only slightly dangerous will communicate the information given him to those who are to use it unless he knows that [the] other is careless, it may be improper to permit him to trust the conveyance of the necessary information of the actual character of a highly dangerous article to a third person of whose character he knows nothing. It may well be that he should take the risk that this information may not be communicated, unless he exercises reasonable care to ascertain the character of the third person, or unless from previous experience with him or from the excellence of his reputation the supplier has positive reason to believe that he is careful. In addition to this, if the danger involved in the ignorant use of a particular chattel is very great, it may be that the supplier does not exercise reasonable care in entrusting the communication of the necessary information even to a person whom he has good reason to believe to be careful. Many such articles can be made to carry their own message to the understanding of those who are likely to use them by the form in which they are put out, by the container in which they are supplied, or by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.”

Restatement (Second) of ToRts § 388 cmt. n (1965). As this comment explains, the nature of the duty to warn is governed by the actual character of the danger involved. If the risk is slight, the supplier may properly rely on one through whom he supplies the dangerous product. When — as here — the risk is very great, however, the supplier of a product like Calidria Asbestos may not rely on its intermediaries to give warning. This is especially true when the burden involved in giving the warning is not unduly burdensome. There is almost no burden in imposing on Carbide the duty of contractually requiring its “learned intermediaries” (like Georgia-Pacific) to affix to the end product an indelible warning of the existence of the asbestos in it and the very serious dangers in using it without proper precautions.

The facts of this case fit exactly within the above highlighted parts of comment n. We have already noted that asbestos is highly dangerous and is by statute banned from use in public construction because of its inherent danger. Comment n makes clear that with something like undisclosed Calidria Asbestos, whose unknowing use as intended can cause serious injury— where its distributor’s burden in disclosing its presence is so easily and cheaply accomplished by indelible labels — a supplier in the shoes of Carbide may not reasonably rely on an intermediary, no matter how learned it might be deemed. Our decision in Kavanaugh constitutes a clear holding that the “learned intermediary” exception is not applicable to Calidria Asbestos and Ready-Mix with its hidden measure of asbestos.

There was evidence that those in the industry had not been able to find a substitute for asbestos in manufacturing joint compound products, yet warning labels were not being placed on the product. Carbide had reason to believe that whatever may be the knowledge Georgia-Pacific might have had about the serious risks of harm in using this product as intended, that knowledge was not reaching uninformed end users applying the Ready-Mix product. The evidence in this case is indistinguishable from Kavanaugh. Because Carbide’s proposed instruction did not accurately state the law and may have actually misled the jury into believing that Carbide had carried its duty to warn by merely warning Georgia-Pacific, we hold that it was error to give that instruction.

Reversed for new trial.

STONE and MAY, JJ., concur.

      . See § 255.40, Fla. Stat. (2005) ("The use of asbestos or asbestos-based fiber materials is prohibited in any building, construction of which is commenced after September 30, 1983, which is financed with public funds or is constructed for the express purpose of being leased to any governmental entity.").

      . See, e.g., 42 U.S.C. § 7412(b)(1) (designating asbestos as hazardous air pollutant); 40 C.F.R. § 61.01 (since March 1971 designating asbestos as known hazardous air pollutant); Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 511 (5th Cir.1984) (holding that asbestos products are dangerous because they were distributed without any warning of the unavoidable risk involved in their use); Board of Regents of Univ. of Minnesota v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn.1994) (opining that it would be a disservice to the English language to say that asbestos fibers, which are a health hazard because of their irritating effects on the human body, were not irritants); Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 653, 593 N.Y.S.2d 966, 609 N.E.2d 506 (1993) (citing various laws and regulations categorizing asbestos as a "known carcinogenic agent,” a "toxic pollutant”); Martin v. Johns-Manville Corp., 508 Pa. 154, 171, 494 A.2d 1088 (1985), rav'd on other grounds, 515 Pa. 377, 528 A.2d 947 (1987) (recognizing that asbestos products were unavoidably dangerous); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1090 (5th Cir.1973), cert. den., 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (applying Texas law) (saying that an unavoidably unsafe product must not be made available to the public without disclosure of those dangers that the application of reasonable foresight would reveal).

      . See § 255.551(2), Fla. Stat. (2005) (" 'Asbestos' means the asbestiform varieties of chryso-tile, crocidolite, amosite, anthbphyllite, tre-molite, and actinolite, but does not include bituminous resinous roofing products.”).

      . 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). The Restatement (Third) of Torts has not been adopted in Florida. See Force, 879 So.2d at 107 (“Nevertheless, the Restatement (Third) position has not been adopted by any appellate court in Florida.”). 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.

      . We recognize that because the plaintiffs are different, Florida law does not permit the application of collateral estoppel. Nonetheless, it does considerable disservice to respect for law when different legal rules are applied to the same facts and issues, leading to conflicting outcomes.


author: GROSS, J. HAZOURI, J.,

text:
    Dennis STOWE, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 4D05-785.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Sept. 27, 2006.

      Roderick L. McGee of Roderick L. McGee, P.A., Pompano Beach, for appellant.
    Nancy W. Gregoire, Matthew D. Klein, and Todd E. Brant of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellee.
   GROSS, J.

The issue in this case is whether a motion for trial complies with Florida Rule of Civil Procedure 1.820(h) if it is filed after a section 44.103 arbitration hearing but before the rendition of the arbitrator’s decision. We hold that such a motion for trial fails to comply with the rule and affirm.

In 2001, Dennis Stowe sued Universal Property & Casualty Insurance Company for breach of an insurance contract. Universal answered and asserted that Stowe’s claim was not covered under the policy. From 2001 to 2004, the parties conducted discovery.

In May, 2004, Stowe filed a notice to set the case for trial pursuant to Florida Rule of Civil Procedure 1.440. The trial judge returned the notice to Stowe, because he had failed to comply with the judge’s own rule that required a “mandatory hearing” before he would set a trial.

In July, 2004, with the parties’ agreement, the trial judge referred the case to non-binding arbitration pursuant to section 44.103, Florida Statutes (2004).

The arbitration took place on September 1, 2004. At the arbitration hearing, Stowe’s lawyer perceived that the arbitrator disagreed with his position.

On September 21, 2004, Stowe scheduled a “mandatory hearing” before the trial judge for October 26, 2004, attaching a copy of his May, 2004, rule 1.440 notice for trial. The record does not reflect that a hearing took place on October 26.

On September 29, 2004, the arbitrator rendered his decision, finding that the insurance policy did not cover Stowe’s claim. After the arbitrator’s decision, Stowe did not file a motion for trial. On October 28, 2004, Universal moved for the entry of a final judgment in accordance with the arbitrator’s decision. See § 44.103(5), Fla. Stat. (2004); Fla. R. Civ. P. 1.820(h). The trial judge granted the motion and entered final judgment.

The legal framework for this case derives from section 44.103 and rule 1.820, which created the procedure to effectuate the statute. Section 44.103(5) states that an “arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court.” Rule 1.820(h) provides that “[i]f a motion for trial is not made within 20 days of service on the parties of the [arbitrator’s] decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision.... ” The “failure to request a trial de novo within the time provided in the rules creates a ‘right to enforce an arbitration award that has become final and binding as a result of a failure to request a trial.’ ” Nicholson-Kenny Capital Mgmt., Inc. v. Steinberg, 932 So.2d 321 (Fla. 4th DCA 2006)’ (quoting Johnson v. Levine, 736 So.2d 1235, 1238 (Fla. 4th DCA 1999)).

When it comes to interpreting rules of civil procedure, often the job of an intermediate appellate court is to read the tea leaves of Florida supreme court decisions. The recent trend in these decisions is to construe rules of civil procedure according to their plain meaning. Some high court opinions strictly construe provisions to create rules that are clear-cut and easy to apply. Thus, Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), adopted a bright line rule concerning the form of a rule 1.442 proposal for settlement. Recently, in Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006), the supreme court described rule 1.525 as establishing “a bright-line time requirement for motions for costs and attorney fees.” Wilson v. Salamon, 923 So.2d 363 (Fla.2005) interpreted rule 1.420(e) by its “plain meaning” to “further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court’s docket.”

The purpose of a rule 1.820(h) motion for trial “is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial.” Nicholson-Kenny, at 325, at *4. An award cannot be evaluated until it is made by the arbitrator, indicating that the rule contemplates a motion made after an award. We have previously described the 20 day time period. of rule 1.820(h) as a “window,” meaning that it opens when an arbitrator serves a decision on the parties and closes 20 days later. State, Dep’t of Trans. v. Bellsouth Telecomms., Inc., 859 So.2d 1278, 1279, 1280 n. 1 (Fla. 4th DCA 2003); see Bacon Family Partners, L.P. v. Apollo Condo. Ass’n, Inc., 852 So.2d 882, 888 (Fla. 2d DCA 2003) (describing, rule 1.820(h) as controlling the procedure “[a]fter the completion of the arbitration proceeding and notice to the parties of the arbitrator’s decision”). Consistent with our previous decisions, we therefore conclude that Stowe’s notice for trial served before the rendition of the arbitration decision did not comply with rule 1.820(h), so that the trial court correctly entered a final judgment.

The position that' Stowe urges us to adopt does violence to the concept of a bright-line rule. If a motion for trial after an arbitration hearing but before a decision complies with the rule, what about a motion after the arbitration is set, but before the hearing, or a motion filed before an order setting arbitration, but after arbitration has been put into play by the court or the parties?

We distinguish two cases discussed at oral argument. Nieholson-Kenny involved a case that had been set for trial prior to the arbitration proceeding, a notice for pretrial conference filed after the arbitration decision was rendered, and the preparation of both sides for the upcoming trial. Under these circumstances, we held that the notice for pretrial conference satisfied the requirements of rule 1.820(h). In this case, Stowe filed no similar notice after the rendition of the arbitration decision.

Swift v. Wilcox, 924 So.2d 885 (Fla. 4th DCA 2006), dealt with a different rule of procedure and a different policy behind the rule. There we found that the “primary evil” addressed by rule 1.525 “was the uncertainty created by excessive tardiness in the filing of motions for fees and costs.” Swift, at 887 (quoting Norris v. Treadwell, 907 So.2d 1217, 1218 (Fla. 1st DCA 2005), review granted, 919 So.2d 435 (Fla.2006)). We held that a motion for fees complied with the rule, and the policy behind it, when it was filed after the issuance of the order deciding the case, but before the largely ministerial act of entering the final judgment that conformed with the order.

Affirmed.

WARNER, J., concurs.

HAZOURI, J, dissents with opinion.

HAZOURI, J.,

dissenting.

. Although the majority holds that the time requirements set forth in Florida Rule of Civil Procedure 1.820(h) must be interpreted as a “bright-line rule” requirement for filing a motion for trial following a voluntary arbitration, in my view the majority places form over substance. As the majority noted, this case was originally filed in 2001 and continued into litigation through May 2004 when Stowe filed a notice to set the case for jury trial, as is his right pursuant to Florida Rule of Civil Procedure 1.440. Instead of receiving an order setting the case for trial, Stowe’s notice was returned to him by the trial judge because the trial judge had established within his own division his own rule requiring that before a case could be set for trial, the parties seeking a trial date had to set a “mandatory” hearing. The purpose for such a procedure was to determine if the case was in fact ready for trial, i.e., that all the necessary discovery had been completed.

As noted, the arbitration took place on September 1, 2004, but prior to that time, on August 20, 2004, Stowe filed the mandatory notice of hearing scheduling that hearing for September 14, 2004. On September 10, 2004, Stowe filed another notice of mandatory hearing setting the hearing for October 5, 2004. On September 21, 2004, Stowe again filed a notice of mandatory hearing attaching a copy of his May 20, 2004, notice to set the case for trial, and setting a hearing on October 26, 2004. Can there really be any doubt that Stowe wanted his day in court?

As the majority notes, at the arbitration hearing, Stowe’s lawyer perceived that the arbitrator disagreed with his position. It would seem to me that no useful purpose is served in requiring Stowe’s lawyer to actually receive an arbitrator’s written decision before he could file a notice requesting a trial date. As this court stated in Nicholson-Kenny, “the purpose of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial.” Id. at 325, at *3. Where is it written in rule 1.820(h) that a litigant must wait until the actual rendition of a written arbitration award before seeking a trial de novo? The rule only calls for a motion for trial be made “within 20 days of service on the parties of the decision.... ” The rule does not say that the motion for trial can only be filed after rendition of the arbitration award. ' The rule does not state that there is a “window” that opens upon the rendition of a written decision and closes 20 days later. As long as the trial court and the opposing party had notice within 20 days of the completion of the arbitration that Stowe wanted a trial, what possible purpose could be served by the majority’s “bright-line rule?” Clearly, Stowe’s continual effort to file a motion for a mandatory hearing to set the case for trial was well within 20 days of September 29, 2004.

In Nieholson-Kenny, this court did not stand on the formality of requiring a party to file a motion for trial after an arbitration award was rendered. Nicholson-Kenny Capital Management, Inc., sued Stein-berg for misappropriation of trade secrets. After discovery and motion practice, Stein-berg moved to set the case for trial. The trial court entered an order setting calendar call for August 29, 2003. The order prescribed the pretrial procedure, including the holding of a pretrial conference between the parties and the filing of the pretrial statement.. It also ordered the parties to non-binding arbitration pursuant to rule 1.820. The parties went to arbitration .and the arbitrator rendered a decision on August 13, 2003. Thereafter, Nicholson’s attorney served a “Notice of Conference of Parties & Attorneys” on Steinberg.

Steinberg had prevailed in the arbitration. It was not until after the pretrial conference that-Steinberg filed a motion for final judgment alleging that because Nicholson failed to file a motion for trial de novo, the court was required to enter a final judgment on the arbitrator’s decision. The trial court agreed with Steinberg and entered a final judgment.

This court ruled, despite the fact that Nicholson never filed a motion to set the case for trial after rendition of the arbitration award, that the filing of a pleading styled “motion for trial” under the circumstances of this case was not required. We even went so far as to say that the rule does not require that the pleading be styled “motion for trial.” Instead of engaging in a “bright-line rule” analysis, this court stated that “[ijnstead, we think the rule requires some notice to the opposing party that its adversary is rejecting an arbitration award and renewing its demand for trial, which in this case was already set.” Id. at 324, at *2.

As the court in Nicholsoiv-Kenny noted: Justice Thornal, speaking for the court after adoption, of the Rules of Civil Procedure, said: No longer are we concerned with the “tricks and technicalities of the trade:” The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.

Id. at 325, at *4 (quoting Cabot v. Clearwater Constr. Co., 89 So.2d 662, 664 (Fla.1956)).

In the instant case it is clear that Stowe did not wish to be bound by the nonbinding arbitration. He filed a motion for mandatory notice of hearing on August 20, 2004, again on September 10, 2004, and a third time on September 21, 2004. To hold that Stowe had to wait for the rendition of the arbitrator’s decision before filing a notice for trial, which he was prevented from doing due to the trial judge’s procedure, creates a “bright-line rule” that obstructs the fair administration of justice and denies Stowe his right to a jury trial.

Therefore, I would reverse and direct the trial court to vacate the final judgment and permit Stowe to proceed to trial.


text:
    Vantese B. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-624.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2006.
    Rehearing Denied Aug. 23, 2006.
    Vantese B. Jones, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Atwater v. State, 788 So.2d 223, 227 (Fla.2001) (quoting Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989)); accord Medeiros v. State, 846 So.2d 1220, 1220-21 (Fla. 5th DCA 2003).

THOMPSON, MONACO and EVANDER, JJ., concur.


author: RAMIREZ, J.

text:
    BANCO FICOHSA, Appellant, v. ASEGURADORA HONDURENA, S.A., et al., Appellees.
    No. 3D06-110.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Sept. 11, 2006.

      Jorden Burt, Richard J. Ovelmen, Richard B. Simring, and Stephan I. Voudris, Miami, for appellant.

      Philip D. Parrish, Miami, Arjang Victory, New York, NY, Jennifer A. Hoffman, and William S. Berk, for appellees.
    Before FLETCHER, RAMIREZ, and CORTINAS, JJ.
   RAMIREZ, J.

Banco Ficohsa appeals the court’s final order granting summary judgment in favor of defendants, Aseguradora Hondure-na, S.A., et al., in a cause of action for negligence and breach of contract. We affirm because Banco Ficohsa failed to establish the existence of a common law or contractual duty on the part of the reinsur-ers to ascertain the existence of unknown assignees, it failed to establish the requisite contractual privity with the reinsurers to maintain its breach of contract action, and it failed to establish that the reinsur-ers breached the reinsurance agreement as a matter of law.

1. Factual Background

Aseguradora issued a fire insurance policy to Texhonsa for a textile plant located in Honduras. The policy contained a Loss Payable Clause and a Claims Control Clause. The Loss Payable Clause specifies that “moss, if any, shall be adjusted with and payable to Textiles de Honduras, S.A. de C.V. (Texhonsa).” The Claims Control Clause entitles the reinsurers to “appoint and/or [sic] representatives acting on their behalf to control all negotiations, adjustments and settlements in connection with such claim or claims,” and does not impose any obligations upon Texhonsa. Additionally, the policy does not specifically impose a contractual obligation on the reinsurers to ascertain any possible assignees in the event of a mediated settlement.

Aon Risk Services, Inc. of Florida rein-sured 56% of this policy with Certain Underwriters at Lloyd’s London through a London broker. Aon Florida reinsured the remaining 44% with its affiliate, Aon Panama. Aon Panama in turn reinsured through companies outside the London Market. Aon Panama subsequently consolidated the cover notes and issued one note for 100% to Texhonsa. The reinsurance agreement subjected all parties to the terms and conditions of the original insurance agreement.

Texhonsa subsequently assigned a partial interest in the insurance policy to Ban-co Ficohsa as security for a $4 million line of credit through an independent company. The Assignment was recorded in the Honduran public records and was delivered to Aseguradora, who in turn notified Aon Panama of the Assignment. Camilo Atala, Banco Ficohsa’s president, later testified that he had knowledge of the Assignment and that the reinsurers were the only parties financially responsible for any payment of the insurance policy proceeds.

Thereafter, Texhonsa filed suit against Aseguradora in Miami-Dade County to recover damages incurred as a result of Ase-guradora’s denial of its claim for a fire loss. Texhonsa later dropped Asegurado-ra as a party and added the reinsurers. Approximately two years after Texhonsa filed suit, the parties reached a confidential mediated settlement for $8 million.

Banco Ficohsa then filed suit against the reinsurers for negligence. The reinsurers moved to dismiss the complaint for failure to state a claim, arguing that the negligence claim was missing the fundamental element of duty. The trial court granted the motion with leave to amend, provided that Banco Ficohsa could allege that the reinsurers had either actual or constructive notice of the Assignment. Banco Fi-cohsa amended the complaint by adding a claim for breach of contract and preserved its negligence claim for final appeal. Again, the reinsurers moved to dismiss, and the court once more granted the motion with leave to amend, provided that Banco Ficohsa could allege that the rein-surers had either actual or constructive notice of the Assignment. Banco Ficohsa amended its complaint a third time, and the reinsurers moved to dismiss the action. The court denied that motion, but limited discovery to the issue of whether the rein-surers had notice of the Assignment. The court subsequently dismissed the negligence claim because Banco Ficohsa failed to prove that the reinsurers owed a duty to ascertain its existence as Texhonsa’s as-signee. The reinsurers thereafter moved for summary judgment motion on their breach of contract claim. Following argument on motion, the court entered judgment in favor of the reinsurers.

2. Negligence Claim

Banco Ficohsa first argues that because the reinsurers substituted themselves as defendants in lieu of Asegurado-ra, the reinsurers owed a duty to Banco Ficohsa because they assumed full responsibility to defend the lawsuit brought by Texhonsa, and they should have ascertained the existence of Texhonsa’s assignees before issuing payment of the settlement proceeds to Texhonsa. We disagree.

There is no existing Florida case law which mandates that an insurer or reinsurer has á common law duty to ascertain whether assignees exist before settling an insurance claim. In a situation where a policy premium is due or when a policy might lapse, courts have held that an insurer does not have a duty to notify assignees of these deadlines. See Lewis State Bank v. Travelers Ins. Co., 356 So.2d 1344, 1346 (Fla. 1st DCA 1978). Courts have held that it is the assignee that has a duty to inform a debtor of its existence before it imposes a duty of payment to the assignee upon the debtor. See Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So.2d 94, 98 (Fla.1965).

First, Banco Ficohsa failed to inform the reinsurers of the Assignment despite its knowledge that reinsurers were the sole parties responsible for payment of the settlement proceeds. Furthermore, the insurance policy is silent on the obligation to ascertain the existence of any assignees. The reinsurers issued their payment to Texhonsa in accordance with the insurance agreement which established Texhonsa as the recipient of any payment proceeds.

Additionally, the reinsurers did not create a foreseeable zone of risk when they substituted themselves in Aseguradora’s place in the original lawsuit between Tex-honsa and Aseguradora. There is no evidence in the record that the reinsurers were aware of Banco Ficohsa’s existence. Indeed, they did not act on Banco Ficoh-sa’s behalf at mediation. Thus, because Banco Ficohsa failed to prove the element of legal duty, it cannot establish a prima facie case of negligence.

3. Breach of Contract Claim

Banco Ficohsa next argues that the reinsurers breached their contractual duty because they had constructive notice of the Assignment. Even if the reinsurers had a contractual duty, we do not find that the reinsurers breached this duty.

Courts have held that “a person not a party to nor in privy with a contract does not have the right to use [sic] for its breach.” White v. Exchange Corp., 167 So.2d 324, 326 (Fla. 3d DCA 1964). Banco Ficohsa was not a party to the reinsurance agreement because “an ordinary contract of reinsurance, in the absence of provisions to the contrary, operates solely as between the reinsurer and the reinsured.” McDonough Const. Corp. v. Pan Am. Sur. Co., 190 So.2d 617, 618-19 (Fla. 1st DCA 1966)(emphasis added). Additionally, “[i]t creates no privity between the original insured and the reinsurer.” Id. “The rein-surer has no contractual obligation with the original insured and is not liable to [it].” Id. at 619.

Furthermore, there is no clear written assumption of liability in the original policy or reinsurance agreement to the original insured that would enable Texhonsa to bring a direct action against the reinsur-ers. The agreements indeed do not impose any obligations upon Texhonsa. Thus, neither Texhonsa nor any of its assignees should be able to bring a direct action against the reinsurers because the reinsurers have not assumed any liability to them. The fact that the reinsurance agreement is subject to the same terms and conditions as the original policy does not create privity of contract because, again, no obligation exists towards Tex-honsa or to Banco Ficohsa as its assignee.

Neither the original insurance policy nor the reinsurance agreement specifies that any insurance proceeds payments are to be made to Aseguradora or Banco Ficohsa. As previously stated, the agreement specifically states that all proceeds are to be paid to Texhonsa. Since the reinsurers did not have actual or constructive notice of the Assignment, they could not have been aware that settlement proceeds might have to be paid to another party. Courts generally agree that “notice to a debtor of an assignment is necessary to impose on the debtor the duty of payment to the assignee, and that if before receiving such notice [the debtor] pays the debt to the assignor, or to a subsequent assignee, [the debtor] will be discharged from the debt.” Boulevard Nat’l Bank of Miami, 176 So.2d at 98.

Banco Ficohsa also argues that the reinsurers had constructive notice of the Assignment because their agent, Aon Florida, had knowledge of it. However, Florida law treats an insurance broker as an agent of the insured rather than the insurer. See Almerico v. RLI Ins. Co., 716 So.2d 774, 776 (Fla.1998). In order to establish an agency relationship, there must be: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent. See Ilgen v. Henderson Properties, Inc., 683 So.2d 513 (Fla. 2d DCA 1996).

There is no evidence in the record that Aon Florida was the reinsurers’ agent. Additionally, the reinsurers did not acknowledge that Aon Florida would act as their agent, Aon Florida did not agree to act as the reinsurers’ agent, and the rein-surers did not control Aon Florida’s actions. Thus, Banco Ficohsa failed to demonstrate that Aon Florida was the reinsurers’ agent.

4. Conclusion

We thus conclude that the reinsurers did not have a duty to ascertain the existence of Banco Ficohsa as Texhonsa’s assignee. Banco Ficohsa, therefore, failed to establish a cause of action for negligence.

We further conclude that the reinsurers did not have either constructive or actual notice of the Assignment, and that the reinsurers did not breach the insurance policy or the reinsurance agreement. Contractual privity did not exist between the reinsurers and Banco Ficohsa, and the reinsurers did not breach any terms of the reinsurance agreement when they issued payment of the settlement proceeds to Texhonsa as they were obligated to do under the express language of the insur-anee agreement. Banco Ficohsa therefore failed to establish a valid cause of action for breach of contract. Therefore, there are no genuine issues of material fact that preclude the entry of summary judgment in favor of the reinsurers.

Affirmed.

      . In this case, the reinsurers are Aon Risk Services, Inc. of Florida ("Aon Florida") and Aon Re. Panama ("Aon Panama”).


text:
    Timothy SVAB, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1851.
    District Court of Appeal of Florida, Fourth District.
    July 19, 2006.
    Timothy Svab, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ulcena v. State 925 So.2d 346 (Fla. 4th DCA 2006).

GUNTHER, STONE and KLEIN, JJ., concur.


text:
    James L. PADGETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1352.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Sept. 7, 2006.
    James L. Padgett, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Ramirez v. State, 822 So.2d 593 (Fla. 2d DCA 2002).


text:
    Harvey OXENBERG, Appellant, v. Linda OXENBERG, Appellee.
    No. 3D06-1294.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2006.

      Law Offices of Paul Morris, and Paul Morris, Miami; Kutner and Associates and Maurice Jay Kutner, Miami, for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Bluestein, Wayne & Weintraub and Harold Bluestein, Miami, for appellee.
    Before COPE, C.J., and RAMIREZ and CORTINAS, JJ.
   PER CURIAM.

This is an appeal from the trial court’s entry of an injunction dated April 27, 2006. The injunction was entered pursuant to Section 61.11, Florida Statutes (2005). We affirm on the authority of Sandstrom v. Scmdstrom, 565 So.2d 914 (Fla. 4th DCA 1990), Kennedy v. Kennedy, 464 So.2d 1289 (Fla. 1st DCA 1985), and Gilbert v. Gilbert, 447 So.2d 299 (Fla. 2d DCA 1984). This affirmance is effective immediately and its effectiveness will not be delayed by the filing of a motion for rehearing or any other post-decision motion.

Affirmed.