author: TAYLOR, J.

text:
    Omar ORDONES, Appellant, v. AMERICAN INTERSTATE INSURANCE COMPANY, a corporation, Appellee.
    No. 4D05-3530.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 16, 2007.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Jeffrey M. Liggio and Jene P. Williams-Rhoads of Liggio, Benrubi & Williams, P.A., West Palm Beach, for appellant.
    Caryn L. Bellus and Sharon C. Degnan of Kubicki Draper, Miami, for appellee.
   TAYLOR, J.

This case concerns an action on a consent judgment entered against the insured, Bella Marine, under a workers’ compensation policy. We find that the trial court erred when it held as a matter of law that the insured owed a duty to notify the insurer, appellee, American Interstate, of a pending action by Ordones, appellant, against Bella Marine after appellee had repudiated the contract. Therefore, we reverse the trial court’s order granting summary judgment in favor of appellee.

Appellee issued a workers’ compensation policy to Bella Marine in July 2000. In October 2000, appellee issued two notices of cancellation of the policy, effective November 14, 2000, to Bella Marine. On December 12, 2000, appellant, an employee of Bella Marine, was injured on the job. American Interstate refused to provide coverage for appellant’s injuries. Bella Marine and appellant agreed to a consent judgment under which appellant was assigned Bella Marine’s rights to proceed against appellee.

In the motion for summary judgment that is the subject of this appeal, appellee asserted that it properly cancelled the contract under sections 440.42 and 627.4133(l)(b), Florida Statutes. The trial court held as a matter of law that section 627.4133(1)(b) does not apply to workers’ compensation, and that appellee did not validly cancel the contract. The court further held, however, that Bella Marine breached its contractual duty under the policy to provide appellee with notice of its suit with appellant. Accordingly, it entered summary judgment in favor of appel-lee.

When one party repudiates a contract, the non-breaching party is relieved of all obligations to tender performance under the contract and has an immediate cause of action for breach. See Hosp. Mortgage Group v. First Prudential Dev. Corp., 411 So.2d 181 (Fla.1982). Here, appellee repudiated the contract by canceling coverage. Bella Marine was thus relieved of its duty to provide notice as required by the contract. Therefore, the trial court erred in granting summary judgment for appellee on the ground that Bella Marine continued to owe a duty of performance under the contract.

We leave for another day the issue of whether the insured’s failure to give notice also violates Coblentz v. American Surety Co. of New York, 416 F.2d 1059 (5th Cir. 1969), and its progeny.

Reversed.

STEVENSON, C.J., and WARNER, J., concur.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    MARINA FUNDING GROUP, INC., a Florida corporation, and Broward Yachts, Inc., a Florida corporation, Appellants, v. PENINSULA PROPERTY HOLDINGS, INC., a Florida corporation, Appellee.
    No. 4D05-4788.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellants.
    Alfred A. Lasorte, Jr. of Shutts & Bowen LLP, West Palm Beach, for appellee.
   STONE, J.

Marina Funding Group, Inc. and Bro-ward Yachts, Inc. (collectively “Bro-ward/Marina”) appeal from a final judgment in favor of the plaintiff, Peninsula Property Holdings, Inc. (“Peninsula”), after a non-jury trial. We affirm.

We recite only the most essential of the complex facts. Peninsula foreclosed on a first mortgage on the subject property (“Binks”), unaware that it was also encumbered by a second mortgage, held by Evans Financial (“Evans”). The second mortgage was secured by Binks and two additional properties. Evans also sued to foreclose, but chose only to pursue foreclosure of the two additional properties, resulting in a final judgment in the foreclosure of $4,259,650.88.

Evans sold the second mortgage remaining on Binks and the foreclosure judgment to Marina for $4,000,000.00. Marina reassigned these to Broward almost immediately, but failed to record. Marina then purchased one of the foreclosed properties with a credit bid of $3,002,000.00 and asked the clerk to sell the other property to satisfy the deficit, but in the interim, the property owner declared bankruptcy, stopping the sale. Broward/Marina filed a claim in the bankruptcy action, and the trustee satisfied the claim in its entirety.

Because some of the conveyances and assignments had gone unrecorded, Peninsula later became aware that it had not included the Evans second mortgage in its foreclosure and filed a re-foreclosure of Binks against Marina. The trial court entered summary judgment in favor of Peninsula, re-foreclosing the first mortgage with Marina listed as junior lienholder, listing the amount Marina needed to redeem its interest ($5,930,268.56 + interest of $413,372.93 = $6,343,641.49), and directing it to do so within thirty days or be forever barred. This summary judgment was later vacated by agreed order when Peninsula learned of the assignment to Broward.

Anticipating that Broward/Marina was close to being satisfied through the bankruptcy claim, Peninsula amended its complaint, dropping its re-foreclosure count and adding a count to quiet title. Bro-ward/Marina answered and counterclaimed, seeking declaratory relief regarding its right to redeem.' Peninsula answered that Broward/Marina’s interest was satisfied and extinguished by the sale of the other collateral.

Meanwhile, the property bankruptcy trustee satisfied Broward/Marina’s claim in its entirety. Again, Peninsula moved for summary judgment, now contending that full payment of the Broward/Marina judgment extinguished any interest Bro-ward/Marina may have had in Binks.

The case went to trial; the trial court ruled for Peninsula. In a detailed order, the trial court focused on the effect of the satisfaction, by the payoff of the note, on Broward/Marina’s right to redeem.

Section 45.0315, Florida Statutes, codified the common law right of redemption in foreclosure proceedings. Indian River Farms v. YBF Partners, 777 So.2d 1096, 1099 (Fla. 4th DCA 2001)(citing Saidi v. Wasko, 687 So.2d 10, 11 (Fla. 5th DCA 1996)). The statute provides for redemption “[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure.” § 45.0315, Fla. Stat.

The right to redeem belongs to either the mortgagor or the holder of any subordinate interest. Id.

The term “right of redemption” takes on different meanings depending on whether it refers to the right exercised by a mortgagor or a subordinate or junior mortgagee.... When the phrase is used with reference to a junior mortgagee, ... it refers to his right to satisfy a prior mortgage by payment of the debt it secures and thereby become equitably subrogated to all rights of the prior mortgagee.

Engels v. Valdesuso, 497 So.2d 698, 700 n. 1 (Fla. 3d DCA 1986) (citation omitted).

Clearly, Peninsula had the right to re-foreclose against Broward/Marina as a matter of substantive law. Raskin v. Otten, 273 So.2d 433, 435 (Fla. 3d DCA 1973); Polster v. Gen’l Guar. Mortgage Co., 180 So.2d 484, 487 (Fla. 1st DCA 1965). The remedies of a purchaser at the foreclosure sale against an omitted junior mortgagee are a motion to compel redemption by the junior, or re-foreclosure in a suit de novo. The omitted junior mortgagee may defend in the same manner as if the initial foreclosure had not happened. Abdoney v. York, 903 So.2d 981, 983 (Fla. 2d DCA 2005).

In its pleadings, Peninsula acknowledged the obvious, that vacating the prior foreclosure revitalized Broward/Marina’s right to redeem. Broward/Marina did not need leave of the court, but it did need to tender payment of the amount listed in the vacated judgment to either Peninsula or the clerk of the court. Broward/Marina had four months to accomplish this, but failed to do so.

During the pendency of the action sub judice, Broward/Marina satisfied the judgment obtained in the foreclosure suit against the other mortgages securing the same note. The amount due on the note was fully established in the final judgment. The Binks mortgage simply secured the monies owed; it did not create additional indebtedness.

There is no indication in the record that the satisfaction was in any way intended to be partial or for anything other than payoff of the debt in full. The satisfaction of judgment ended all proceedings. Morris N. Am., Inc. v. King, 430 So.2d 592, 592 (Fla. 4th DCA 1983). “Since a lien is a charge on property for the payment or discharge of a debt or duty, it stands to reason that where there is no longer a debt or duty owing, no lien can be claimed.” Harbour Village at Saga Bay, Inc. v. Dahm, 367 So.2d 1100, 1102 (Fla. 3d DCA 1979) (citation omitted). Without a valid existing lien, Broward/Marina has no right to redeem.

Broward/Marina did not contest the validity of the satisfaction, but still tried to attack it by a corporate representative’s testimony that he did not intend the satisfaction to wipe out the right to redeem. Essentially, this is a mistake of law, not fact. The record supports a conclusion that the satisfaction was for the entire indebtedness.

The trial court’s fact finding was supported by competent, substantial evidence. Therefore, we affirm the final judgment.

SHAHOOD and HAZOURI, JJ., concur.

      . Peninsula Bank, while not a party to this appeal, is predecessor in interest and will also be referred to by "Peninsula.”


author: PER CURIAM.

text:
    Charles E. SIMMONS, M.D., Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. 1D06-4544.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2007.
    Michael P. Gennett and Stephen T. Maher of Shutts and Bowen, LLP, Miami, for Petitioner.
    William H. Roberts, Deputy General Counsel, and Garnett W. Chisenhall, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   PER CURIAM.

By a petition for writ of mandamus, Charles E. Simmons, M.D., seeks to compel the Agency for Health Care Administration to provide him a clear point of entry into agency proceedings concerning the denial of his request to enroll as a provider in the Medicaid Program. We grant the petition to the extent set forth herein.

Dr. Simmons filed an application with AHCA to enroll as a Medicaid Provider, but was informed by letter that, for reasons not material at this point, AHCA would not enter into a provider agreement with him. Dr. Simmons then filed a timely petition for formal administrative hearing concerning the denial of his enrollment request. He was informed by letter from the agency clerk, however, that no action would be taken on the request for administrative proceedings based on the agency’s position that the denial of a Medicaid provider application is a contract action over which only the courts have jurisdiction.

Although the parties have argued extensively concerning the question of whether Dr. Simmons is entitled to administrative proceedings concerning the denial of his application, we decline to reach that issue at this point. The question of whether Dr. Simmons is entitled to administrative hearing and the form thereof are matters that should be addressed on appeal from a final agency order. What seems apparent at this point, however, is that AHCA has a clear legal duty under section 120.569(2)(a), Florida Statutes, to enter an order granting or denying the petition for formal administrative hearing. An agency is not entitled to ignore a properly filed request for hearing, and if it determines that the petitioner is not entitled to a hearing, it is obligated to issue an order to that effect. See Global Water Conditioning v. Dep’t of Agriculture and Consumer Serv., 521 So.2d 126 (Fla. 1st DCA 1987); See also Teachers Educators Ass’n, Inc. v. Duval County Sch. Dish, 763 So.2d 1265 (Fla. 1st DCA 2000). Here, AHCA has not discharged its duty in this regard, and instead has simply responded that “no action” will be taken on Dr. Simmons’ petition.

Accordingly, we grant the petition for writ of mandamus to the extent of directing AHCA to enter an appropriate order disposing of the petition for formal administrative hearing within 15 days of the date of mandate herein. If the agency elects to deny the petition, its reasons for doing so can be fully explicated in the agency’s order, which is then subject to appeal to this court. On the other hand, if the agency grants the request for administrative proceedings in some form, its final order entered at the conclusion of those proceedings will likewise be subject to appeal.

PETITION FOR WRIT OF MANDAMUS GRANTED.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


text:
    A.F., father of A.B., a minor child, Appellant, v. M.B., mother of A.B., a minor child, Appellee.
    No. 1D06-1858.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Rehearing Denied March 9, 2007.

      Jennifer Cogdill, Fleming Island, for Appellant.
    Frank E. Maloney, Jr., P.A., Macclenny, for Appellee.
   PER CURIAM.

A.F. appeals an order terminating his parental rights. Finding appellant to be indigent, the trial court appointed counsel to represent him both in the proceedings below and before this court. As an indigent, appellant is also entitled to the preparation of a record of sufficient completeness to permit proper appellate review. See M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). However, a court reporter was not present at the final hearing below, and the trial court has informed us that efforts to reconstruct the record of that hearing have been unsuccessful. Accordingly, we are constrained to reverse the trial court’s order and remand for a new trial. See M.T. v. Dep’t of Health and Rehabilitative Sem, 680 So.2d 1118 (Fla. 1st DCA 1996).

REVERSED AND REMANDED.

VAN NORTWICK, PADOVANO, and POLSTON, JJ., concur.


author: PLEUS, C.J.

text:
    Bruce SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1043.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Rehearing Denied March 14, 2007.
    James S. Purdy, Public Defender, and Christopher Sinclair Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, C.J.

After careful review of the record, we conclude, given the defendant’s own videotaped admissions, that any error in the references to the defendant’s drug use had no impact whatsoever on the verdict returned by the jury.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.


author: VAN NORTWICK, J.

text:
    STATE of Florida, Appellant, v. Naji Kamel HADDAD, Appellee.
    No. 1D05-4610.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellant.
    Robert Augustus Harper III, Robert A. Harper, Jr., and Jonathan Mitchell Kester of Harper & Harper Law Firm, P.A., Tallahassee, for Appellee.
   VAN NORTWICK, J.

The state appeals an order granting post-conviction relief to Naji Kamel Haddad, appellee, thereby permitting Haddad to -withdraw his December 7, 1981 plea and vacating the court’s orders sentencing Haddad pursuant to such plea. The trial court ruled that Haddad’s plea was involuntary because, as a matter of fact, when he entered the plea he did not know that the conviction would become a deportable offense in the future, and had he known that fact, he would not have entered his plea. Because the effect of the trial court’s ruling is to apply rule 3.172(c)(8), Florida Rules of Criminal Procedure, retroactively, we reverse and certify a question of great public importance.

Haddad sought eoram nobis relief based on an error of fact through the vehicle of a motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, see Wood v. State, 750 So.2d 592 (Fla.1999); Peart v. State, 756 So.2d 42, 45 (Fla.2000). Had-dad, who has an American wife and two children, immigrated to this country in 1976 from Lebanon. In 1981, while a student at the University of Florida, Haddad pled nolo contendere to the crime of possession of one tablet of methaqualone. In 1995, Haddad pled guilty to grand theft in Hillsborough County, Florida, and was placed on probation. His petition alleges as follows:

On February 22, 2005, petitioner crossed the Canadian border in order to view the Canadian side of the Niagra Falls. Upon an attempt to reenter the United States, petitioner was detained by border officials from the office of Homeland Security. At this time, petitioner was informed that his prior conviction in 1981 made him eligible for deportation proceedings. This detention was carried out pursuant to a 8 U.S.C.A. 1182(2)(A)(i)(I) and (II) which states that aliens found guilty of drug offenses or crimes of moral turpitude (effective date December 17, 2004) are to classified as inadmissible to enter into the United States. Until February 22, 2005, petitioner did not and could not have had knowledge that the entry of his 1981 plea would subject him to possible deportation.

Haddad’s immigration attorney advised the trial court that in 1981 it was not known, could not have been known, and could not have been reasonably anticipated that the law would change in 1996 to make the 1981 possession conviction a mandatory basis for deportation. Haddad argued that his 1981 plea was not knowingly and voluntarily entered because he was not advised, and did not know, that deportation may result from the conviction. Haddad testified that he first learned of the possibility of deportation on February 22, 2005, when he was denied reentry into the U.S. because of the 1981 conviction. The state correctly acknowledges that Haddad’s motion was timely. See Peart, 756 So.2d at 46; see also State v. Green, 944 So.2d 208 (Fla.2006).

After an evidentiary hearing, the trial court made extensive factual findings and expressly found that, if the 1981 conviction is vacated,

[Haddad] has a good chance of not being deported as a result of the Hillsborough County conviction. If the Alachua County conviction is not vacated he will be deported. The Court finds that loss of a “good chance” to avoid otherwise certain deportation is prejudice.

Based upon its findings, the trial court ruled, as follows:

A. Defendant’s motion is hereby granted, based upon the following showings: 1) The facts upon which defendant’s motion is based (possibility of deportation as a result of a plea leading to conviction) was unknown to defendant; 2) Defendant and his counsel could not have known of them by the use of due diligence; 3) had the facts been known by the trial court at sentencing, the Court probably would not have entered a judgment against the Defendant (in this case, because he would not have entered a plea). [State v. Perry, 786 So.2d 554 (Fla.2001).]
B. Defendant is permitted to withdraw his plea, and such withdrawal is hereby accepted.
C. The Order Withholding Adjudication of Guilt and Placing Defendant on Probation entered herein on 17 February 1982 is hereby vacated and set aside.
D. The Orders of Modification entered herein on 26 January 1987 and on 7 June 1984 are hereby vacated and set aside.

In Peart, the Florida Supreme Court held that a petitioner could use a writ of error coram nobis to claim that his plea was not voluntary in cases where he was not advised as to the deportation consequences of the plea contrary to rule 3.172(c)(8). 756 So.2d at 45. The court explained:

The petition should fully assert the evidence upon which the alleged facts may be proven and the source of such evidence. The facts upon which the petition is based must have been unknown at trial, and it must appear that the defendant and counsel could not have known of them by the use of diligence. When the alleged facts are sufficient in legal effect — meaning that if the alleged facts had been known by the trial court at the previous hearing the court probably would not have entered a judgment against the defendant — the next step is for the trial court to determine the truth of the allegations in an evidentiary hearing.

Id. (citations omitted). Thus, while the writ of error coram nobis has been subsumed in rule 3.850, a mistake of fact unknown by the defendant at the time he entered the plea, and which by the exercise of reasonable diligence could not have been discovered in time to have been presented to the court, may constitute the basis for a request for coram nobis relief. See Wood, 750 So.2d at 593.

Rule 3.172(c) was amended effective January 1, 1989 by adding subsection (8), see In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988), requiring that a defendant entering a plea be advised of the possibility of deportation. The state argues that the trial court erred in applying rule 3.172(c)(8) retroactively and that the present case is controlled by State v. Ginebra, 511 So.2d 960 (Fla.1987). Haddad submits that because he is raising issues of fact, not of law, the trial court’s ruling is fully supported by Peart.

Florida courts have uniformly held that rule 3.172(c)(8) is not to be applied retroactively. Anderson v. State, 860 So.2d 996 (Fla. 5th DCA 2003); and Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002); State v. Richardson, 785 So.2d 585 (Fla. 3d DCA 2001). For pre-1989 cases, a plea may be attacked only if the defendant received positive misadvice of counsel regarding immigration consequences. State v. Sallato, 519 So.2d 605, 606 (Fla.1988). In Richardson, the third district concisely explained the relationship between rule 3.172(c)(8) and Ginebra:

In Ginebra, the Florida Supreme Court held that deportation is a collateral consequence of a defendant’s plea and that a defendant is not entitled to post-eon-vietion relief because the court or counsel failed to advise the defendant that a guilty plea could subject the defendant to deportation. Id. at 960-62. A defendant could obtain post-conviction relief if he received positive misadvice concerning deportation, see State v. Sallato, 519 So.2d 605 (Fla.1988), but not if there was simply a failure to advise or warn the defendant regarding possible deportation consequences.
Effective January 1, 1989, the court amended Florida Rule of Criminal Procedure 3.172 to require that during a plea colloquy, the court must advise a defendant regarding possible deportation consequences of the defendant’s plea. Peart, 756 So.2d at 47 n. 5. The new rule superseded Ginebra to the extent of any inconsistency. Id. Thus, the new rule was controlling for pleas entered during 1989 and thereafter.

Richardson, 785 So.2d at 587 (footnote omitted). Because Ginebra continues to govern pre-1989 pleas, we are obligated to reverse.

We agree, however, with the following observations of Judge Cope in Richardson:

We believe that the intent of Peart was to make post-conviction relief available where the defendant can establish a lack of awareness of the deportation consequences of the plea. We would urge the court to consider whether the relief granted in Peart should be extended to those who entered into pleas prior to January 1,1989.

Id. at 588. Accordingly, we certify the following question of great public importance:

WHETHER A DEFENDANT IS ENTITLED TO VACATE HIS 1981 PLEA ON ACCOUNT OF A LACK OF AWARENESS OF DEPORTATION CONSEQUENCES, WHERE AT THE TIME OF HIS PLEA THE CONVICTION HAD NO DEPORTATION CONSEQUENCES BUT, AS A RESULT OF CHANGES IN FEDERAL LAW IN 1996, THE 1981 CONVICTION WAS MADE A MANDATORY BASIS FOR DEPORTATION.

REVERSED and REMANDED for further proceedings consistent with this opinion

BARFIELD and LEWIS, JJ., concur.

      .Rule 3.172(c)(8), Florida Rules of Criminal Procedure, provides in pertinent part, that:
      if [the defendant] pleads guilty or nolo con-tendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases....

      . Haddad presently faces formal removal proceedings. While there is a distinction between a “removal” and a “deportation” proceeding, see, e.g., Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir.2005), the trial court treated them as interchangeable and so do we.

      . See the Illegal Immigration Refort and Immigrant Responsibility Act, Pub.L. No. 104-208, div. C„ 110 Stat. 3009-546 (1996), and Antiterrorism, and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996).


text:
    Jason Michael SHARLOW, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-227.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2007.
    Rehearing Denied March 13, 2007.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

See Cameron v. State, 943 So.2d 938 (Fla. 4th DCA 2006); Russell v. State, 920 So.2d 683 (Fla. 5th DCA), rev. granted, 926 So.2d 1270 (Fla.2006).

AFFIRMED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


text:
    William SCHROEDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-95.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 30, 2007.
    William Schroeder, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006); Scanes v. State, 876 So.2d 1238 (Fla. 4th DCA 2004).

GUNTHER, KLEIN and GROSS, JJ., concur.


text:
    NEW YORK BUFFET, INC., a dissolved Florida corporation, and Wendy Yuk Wah Lo, Appellants, v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON, a foreign company, Nob Hill Plaza, Inc., and Hong Hao Chen, Appellees.
    No. 4D05-4103.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 27, 2007.

      Robert A. Robbins of Robbins & Reynolds, P.A., Miami, for appellants.
    Frank J. Ingrassia of Powers, McNalis, Torres & Teebagy, West Palm Beach for Appellee-Certain Underwriters At Lloyd’s London.
   TAYLOR, J.

Nob Hill Plaza, Inc. (“landlord”) leased property in its shopping center to New York Buffet, Inc. and Wendy Yuk Wah Lo (“tenant”) to operate a restaurant. Pursuant to the lease, the tenant agreed to maintain the leased premises, repair any damage to the premises, and indemnify the landlord against all claims arising from damage to the property resulting from the tenant’s occupancy or use of the premises. The lease also required the tenant to maintain insurance and name the landlord as an additional insured or loss payee. The tenant obtained a commercial insurance policy from Certain Underwriters at Lloyd’s of London (Lloyd’s), but did not include the landlord as an additional insured or loss payee. The policy included all risk coverage from perils, including fire.

On January 8, 2001, after the Lloyd’s policy went into effect, a fire severely damaged the leased premises. When the landlord demanded that the tenant repair the premises, the tenant filed an insurance claim for the fire loss with Lloyd’s. Lloyd’s denied the claim. The landlord filed a complaint against the tenant for damages to the premises. After filing its answer to the complaint, the tenant filed a third-party complaint against Lloyd’s. The tenant’s third-party complaint against Lloyd’s asserted that Lloyd’s denied its fire loss claim, and that if the landlord succeeds in obtaining fire loss damages against the tenant, then Lloyd’s will be responsible for payment of some or all of those damages pursuant to the insurance policy.

Lloyd’s filed a motion to dismiss the tenant’s third-party complaint. The trial court denied the motion to dismiss. Later, however, the court granted Lloyd’s motion for final summary judgment against the tenant, ruling that the landlord had no rights of contribution, indemnification, or subrogation against Lloyd’s. Apparently, the trial court determined that because the landlord did not qualify as a third-party beneficiary of the Lloyd’s policy, the tenant’s third party-complaint against Lloyd’s could not stand. This was error.

A third-party complaint is proper where the third-party defendant “may be hable to the defendant for all or part of the plaintiffs claim against the defendant....” Fla. R. Civ. P. 1.180(a) (2006). “The policy behind the rule is to avoid multiple actions.” Gorbz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484, 486 (Fla. 4th DCA 2000). A claim for indemnification, subrogation, or contribution must be brought as part of any third-party action under the rule. Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So.2d 240, 241 (Fla. 2d DCA 1989); see also Dhaliwal v. Don L. Leasing Co., 600 So.2d 533, 534 (Fla. 4th DCA 1992) (following Leggiere). Here, indemnification is the issue.

As part of its third-party claim, the tenant argues that Lloyd’s is obligated to pay for fire damage for which it is being sued by the landlord. The landlord required the tenant to obtain insurance and the tenant did obtain such insurance from Lloyd’s. In Tindall v. Travelers Indemnity Co., 613 So.2d 1369 (Fla. 2d DCA 1993), the defendant in a defamation action brought a third-party claim against his insurance company, which had refused coverage. The trial court dismissed the action. The second district reversed, stating:

An insurance contract is in the nature of a contract for indemnification. Under the similar third-party practice in federal courts, impleader of an insurance company which denied coverage is permissible. See Skevolfilax [Skevofilax] v. Quigley, 810 F.2d 378, 386 n. 6 (3rd Cir.), cert. denied sub nom, Township of Edison, N.J. v. Skevolfilax [Skevofilax], 481 U.S. 1029, 107 S.Ct. 1956, 95 L.Ed.2d 528 (1987).

Id. at 1370. We referred to Tindall in Merchants & Businessmen’s Mut. Ins. Co. v. Bennis, 636 So.2d 593, 595 (Fla. 4th DCA 1994), wherein we noted that, though dismissal of an insured’s third-party action against an insurer is improper, the trial court could sever the third-party action to prevent prejudice to the insurer. Because the trial court erred in granting final summary judgment against the tenant on his third-party claim asserting indemnification against Lloyd’s, the insurer, we reverse and remand for further proceedings.

Reversed and Remanded.

STONE, J., and COLBATH, JEFFREY J., Associate Judge, concur.


text:
    Charles E. FRATELLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4622.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rehearing Denied March 28, 2007.

      Charles G. White of Charles G. White, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Charles E. Fratello appeals the trial court order which denied his motion for post conviction relief following an eviden-tiary hearing. Fratello’s conviction and sentence were affirmed on appeal in Fratello v. State, 496 So.2d 903 (Fla. 4th DCA 1986).

In his motion for post conviction relief, he challenged his conviction and sentence to life in prison for first degree murder, alleging multiple and overlapping claims of ineffective assistance of trial counsel. In particular, his claims included allegations of ineffective assistance for allowing Fra-tello to participate at trial while under the influence of medications, for proceeding while counsel was ill, for failure to inform him of all plea offers by the State, for raising but later abandoning objections during trial, for failure to pursue legal arguments at trial, and for failure to adequately prepare for trial and locate all possible witnesses. In an addendum to this motion, Fratello added to those claims, including allegations that trial counsel was grossly unfamiliar with state and federal law, the law on discovery violations, rules on impeachment of witnesses, procedures on closing, jury instruction, and other matters.

The trial court held an evidentiary hearing on his motion for post conviction relief in May 1990. Defense counsel did not testify at that hearing, but the parties stipulated to the introduction of his deposition. Other witnesses did testify, including the legal assistant to defense counsel, his private investigator and appellant Fra-tello himself. Broward Circuit Court Judge Patti Englander Henning presided, but did not rule in the case after the hearing concluded.

Instead, the case was transferred to successor Judge Barry Goldstein, who also did not rule. In December 1997, Fratello retained new counsel and filed a second addendum and supplement to his motion for post conviction relief. The latter pleadings were denied after a State response arguing untimeliness, among other points. At a hearing before Judge Gold-stein, the State argued for dismissal of the cause on the grounds of laches or lack of prosecution. Those arguments were rejected and dismissal denied. At that hearing, Judge Goldstein offered to consult with the original presiding judge, Judge Henning, to determine if she recalled the case such that she could rule on the post conviction claims. Apparently she did not.

The case was later transferred to Judge Alfred J. Horowitz, the judge then presiding in the division in which the case was originally heard. Fratello moved for a new evidentiary hearing in June 2003. Judge Horowitz entered an order denying the motion for post conviction relief without evidentiary hearing in October 2003.

We affirm the trial court’s decision to deny the second addendum and supplement to the rule 3.850 motion filed in 1997. Fratello’s conviction and sentence became final in this case in 1986 after his appeal. His attempt to amend in 1997 was well beyond the two-year limitations period in Florida Rule of Criminal Procedure 3.850(b), with no basis for an exemption shown. See Gaskin v. State, 737 So.2d 509 (Fla.1999).

Nonetheless, we reverse the trial court’s order denying post conviction relief on the motion as filed and timely amended because the successor judge who ruled in this case did so on a cold record without hearing the actual testimony of the key witnesses, including appellant, his defense counsel’s legal assistant, and a private investigator for the defense. Ordinarily, a trial judge is not permitted to rule on a matter based on the credibility of witnesses which the judge has not heard, absent a stipulation of the parties. See, e.g., Acker v. State, 823 So.2d 875 (Fla. 2d DCA 2002) (holding that successor judge who did not hear witness testimony or rule on credibility could not sign written order revoking probation); Hartney v. Piedmont Tech., Inc., 814 So.2d 1217 (Fla. 1st DCA 2002) (holding that successor judge who did not preside at trial or hear evidence could not enter final judgment). See also E.J. v. Dep’t. of Children and Families, 795 So.2d 1131 (Fla. 5th DCA 2001); Tompkins Land and Hous., Inc. v. White, 431 So.2d 259, 260 (Fla. 2d DCA 1983). There was no stipulation here.

We reject the argument that Fra-tello waived his right to have the judge hear the witnesses, or that he invited trial court error in this case by filing a motion asking that his case be transferred to another judge after the evidentiary hearing. Fratello filed that motion because Judge Henning had been transferred from the criminal division of the circuit court to the civil division after she had presided at his rule 3.850 evidentiary hearing but before she ruled. Fratello was seeking a ruling in his case, but nothing in that motion suggested that he intended to waive the right to have the judge who ruled on his claims and the credibility issues do so only after having heard those witnesses.

Therefore, we reverse the trial court’s order of denial and remand for an eviden-tiary hearing on the claims made in the motion as originally amended.

STONE, WARNER and MAY, JJ., concur.

      . The State filed a cross appeal in this cause, but this Court earlier granted a motion to dismiss it.


author: LAGOA, Judge.

text:
    Tyrone JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1975.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.

      Tyrone Jordan, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   LAGOA, Judge.

Tyrone Jordan (“Jordan”) appeals an order summarily denying his motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. Because the record before us does not conclusively refute Jordan’s claim, we reverse and remand for an evidentiary hearing.

In 1994, Jordan was convicted of strong-arm robbery and burglary of an occupied conveyance with an assault or battery. The conviction was affirmed on appeal. See Jordan v. State, 653 So.2d 1040 (Fla. 3d DCA 1995)(table). On August 17, 2005, Jordan, pursuant to Florida Rule of Criminal Procedure 3.853, filed a motion for post-conviction testing of swabs that the State had preserved after trial. In his motion, Jordan argued that the evidence adduced at trial showed that the victim scratched the arms of her assailant during a struggle over the victim’s purse. The evidence adduced at trial further showed that the victim’s fingernails were analyzed in 1993, but not subjected to DNA testing. Lastly, in his motion, Jordan asserts that DNA testing of the swabs will exonerate him as it will show that he was convicted based on faulty identification by the victim. During trial, Jordan presented a mistaken identity defense.

After the State failed to respond to Jordan’s motion, the trial court, on December 5, 2005, granted the motion and ordered that the swabs be tested. The State did not appeal from this order. On April 20, 2006, five months after the trial court ordered the swabs to be tested, the State moved for reconsideration, arguing that fingernail swabs could not exonerate Jordan because “it is impossible to know how many individuals’ DNA might be found under the victim’s fingernails, nor the circumstances of how their DNA came to be lodged there.” In the alternative, the State argued that if the trial court found that post-conviction DNA testing could produce an exculpatory result, Jordan’s motion should still be denied as “the swabs in question have been lost, and that their loss does not stem from any bad faith on the part of law enforcement.”

On July 5, 2006, a new trial judge granted the State’s motion for reconsideration and summarily denied Jordan’s Rule 3.853 motion upon a ruling that “given the circumstances of this case, postconviction DNA testing could not produce an exculpatory result.” A trial court’s summary denial of a Rule 3.853 motion for DNA testing must be reversed, however, unless the post-conviction record conclusively demonstrates that the defendant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D); See Hampton v. State, 924 So.2d 34, 35 (Fla. 3d DCA 2006). Here, the present record does not conclusively refute Jordan’s claim. Indeed, the sparse record before this Court provides no basis for the trial court’s ruling that DNA testing could not produce an exculpatory result.

Moreover, this appeal is determined by the Court’s opinion in Hampton v. State, 924 So.2d 34 (Fla. 3d DCA 2006). In Hampton, the State advanced a similar argument as the one made in this case, namely that the DNA test result would not exonerate the defendant because there were multiple assailants. This Court in Hampton, however, rejected the State’s argument as the State had neither introduced scientific evidence before the trial court to support this assertion nor “addressed the question [of] whether, if genetic material from the three assailants is contained in the sample collected from the victim, DNA testing could generate a DNA profile for each of the three assailants. If that is a possibility from a scientific viewpoint, and if three DNA profiles were generated, none of which match the defendant, then such evidence could exonerate the defendant.” Id. at 36.

In this case, as in Hampton, if DNA testing could separate out several individual DNA strands on the swabs, none of which match Jordan, that evidence would tend to exonerate Jordan particularly as the victim testified at trial that Jordan was the man she scratched. Id. Absent such scientific evidence on the present record, the trial court must, on remand, conduct an evidentiary hearing to ascertain whether it is scientifically possible to identify an assailant from material swabbed from a victim’s fingernails and whether such DNA testing could produce an exculpatory result. In the event that the trial court determines that the answer is no to either of those questions, the trial court must attach the relevant portions of the record to its order and the order must comply with the requirements of Rule 3.858(c)(5), Fla.R.Crim.P. See Carter v. State, 913 So.2d 701, 703 (Fla. 3d DCA 2005).

Lastly, although this issue was not addressed in the trial court’s order, we find it necessary to comment on the State’s contention that the swabs cannot be located as this issue was raised by the State in its reconsideration motion. An assertion made by the State that evidence is no longer in its possession and cannot be found may not be summarily resolved and requires an evidentiary hearing. See Carter, 913 So.2d at 702; see also Spaziano v. State, 879 So.2d 51, 54 (Fla. 5th DCA 2004); Marsh v. State, 852 So.2d 945, 946 (Fla. 2d DCA 2003). In the event that the trial court finds after conducting an evi-dentiary hearing that DNA evidence contained in the swabs could provide an exculpatory result, the trial court must conduct an evidentiary hearing on whether the swabs are missing as the State contends. If the swabs are found to be missing, the defendant may then present a claim that the swabs are missing as a result of bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); Williams v. State, 891 So.2d 621, 622 (Fla. 3d DCA 2005).

Accordingly, we reverse the order denying Jordan’s motion for DNA testing and remand for further proceedings consistent herewith.

      . Rule 3.853 authorizes DNA testing only where a movant states "how the DNA testing requested by the motion will exonerate the movant of the crime.” Fla. R.Crim. P. 3.853(b)(3). Additionally, "[u]nder rule 3.853, a motion for postconviction DNA testing must include, among other things, 'a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced.’ ” Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004). Here, Jordan has presented a facially sufficient motion.


author: WOLF, J. LEWIS, J.,

text:
    Marsha K. BROCKNEY, as Personal Representative of the Estate of Randy B. Brockney, deceased, Appellant, v. CENTEL CELLULAR COMPANY OF FORT WALTON BEACH LIMITED PARTNERSHIP a/k/a 360 Communications Company of Fort Walton Beach Limited Partnership, Fred C. Cooke and Pamela Scheel, as Personal Representative of the Estate of Pamela B. Cooke, deceased, Appellees.
    No. 1D05-4168.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Rehearing Denied March 9, 2007.

      Stephen H. Echsner of Levin, Papanto-nio, Thomas, Mitchell, Echsner, Proctor, P.A., Pensacola, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    Michael W. Kehoe of Fuller, Johnson & Farrell, P.A., Pensacola, for Appellee Cen-tel Cellular.
   WOLF, J.

Marsha K. Brockney, appellant and the plaintiff in the trial court, challenges a final summary judgment in a negligence action in favor of appellee, Centel Cellular Company of Fort Walton Beach, the defendant in the trial court. The issue is whether the trial court erred in granting a summary judgment on the basis that appellee owed no duty to the plaintiffs decedent under the unique facts of this case. We uphold the trial court’s decision determining that a defendant who hires an independent contractor to perform work on rural land belonging to the defendant is not hable to an employee of that contractor who is injured when: 1) the injury occurred off the premises where the work is being done; 2) the alleged dangerous condition does not exist on the property where the work is being done; 3) any connection between the land where the work is being done and the location where the injury occurs is incidental; and 4) the defendant could not reasonably have been expected to know that there was any connection between the dangerous condition and defendant’s property.

Appellant is the personal representative of the estate of Rodney Brockney. Appellant contends Centel Cellular is hable for the death of Randy Brockney who, while riding an ATV, struck a cable that was strung across a dirt road which Centel Cellular did not own.- The cable was attached to. a tree, the base of which is located approximately one foot onto Centel Cellular’s property. However, this encroachment was only discovered by a professional survey conducted at the request of appellant after the accident. The location of the encroachment is approximately 335 feet north of the road used for access to the Centel Cellular tower at which the decedent had been working before the accident. The decedent was an employee of an independent contractor who had contracted with Centel Cellular to perform work on a cellular telephone tower.

The cable in question was placed across the roadway by an employee of an adjoining-property owner, Cooke, to keep poachers off his land and prevent dumping on that property. The person that placed the cable and the owner of the adjoining property did not believe any portion of the cable was on Centel’s property. They never received Centel’s consent to place the cable across the roadway. Centel Cellular employees had seen the cable before the accident and did not believe any portion of it was on Centel’s property. The west end of the cable was attached to a four-inch oak stump, which was approximately 1.08 feet west of the “west right-of-way line of the easement” and about one foot' south of Centel’s north property line, meaning that the stump was on Centel’s property. The east end of the. cable was attached to a five-inch oak tree trunk on property owned by Cooke.

On August 1, 2005, the trial court entered the Final Summary Judgment at issue on appeal, in which it again found that Centel owed no duty to the decedent under the facts of this case. The court noted that the parties had been unable to find any precedent expressly establishing a duty on Centel’s part “to know the metes and bounds of its property with the exactitude which would have been required in this case to recognize the offending cable was tied to a tree on Centel Cellular property, even if its potentially hazardous nature was recognized.” The court found that the exceptions to the general rule that a property owner who hires an independent contractor to perform work on his property is not liable for injuries sustained by the contractor’s employees discussed in Houk v. Monsanto Co., 609 So.2d 757 (Fla. 1st DCA 1992), were inapplicable to this case. Specifically, the trial court found that the exception that a property owner must warn or protect an independent contractor against potential dangers on the premises about which the property owner had actual or constructive knowledge did not apply because Centel did not have a threshold duty to determine whether the cable was attached to a tree located on its property. After noting that the only conceivable way for Centel to know whether the cable was attached to a tree on its property was by obtaining a professional survey, the trial court indicated that it was unaware of any precedent requiring Centel to suspect that the cable was improperly attached to its property or, even if it developed such a suspicion, to incur the expense of a professional survey to confirm or dispel its suspicion.

We find that the trial court order is well reasoned. Because whether Centel had a duty of care to the decedent in this negligence action is a question of law, see Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005), the trial court’s ruling on Centel’s motion for summary judgment is subject to de novo review by this court. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (stating that a trial court’s ruling on a summary judgment motion that poses a purely legal question is subject to de novo review on appeal).

In Mozee v. Champion International Corp., 554 So.2d 596 (Fla. 1st DCA 1989), the court set forth the law related to the duty of an owner to employees of an independent contractor that the owner hires.

It is well established in Florida law that an owner who hires an independent contractor is generally not liable for injuries sustained by that contractor’s employees.
There are, however, two principal exceptions to this rule. First, an owner may be held liable if he interferes or meddles with the job to the extent of assuming the detailed direction of it, and thus become[s] the master of the independent contractor’s employee. Second, if the owner has been a passive non-participant, in order to impose liability one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the contractor’s employee, must be established.
A person who is having work done on his premises by an independent contractor and has actual or constructive knowledge of latent or potential dangers on the premises owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers to employees of the contractor and subcontractor who are without actual or constructive notice of the dangers. See Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953), citing 57 C.J.S. Master & Servant § 606.

Id. at 597-98 (citations omitted; emphasis added); see also Holsworth v. Fla. Power & Light Co., 700 So.2d 705, 707-08 (Fla. 4th DCA 1997); Hawkins v. Champion Inti Corp., 662 So.2d 1005, 1007 (Fla. 1st DCA 1995); Indian River Foods Inc. v. Braswell, 660 So.2d 1093, 1096 (Fla. 4th DCA 1995); Houk, 609 So.2d at 759.

Because there is no evidence that Centel interfered or meddled with the work of its independent contractor, our analysis focuses on the second exception to the general rule that an owner is not liable for injuries sustained by an independent contractor’s employees.

First and most importantly, neither the injury or the dangerous condition occurred on Centel’s premises. The dangerous condition was the height of the wire and the failure to properly warn of the wire strung across the dirt road; the injury occurred on that road. The road was not on Centers property.

Appellant relies on several cases, including Thompson v. Gallo, 680 So.2d 441 (Fla. 1st DCA 1996), and Whitt v. Silverman, 788 So.2d 210 (Fla.2001), where the injury or the dangerous condition occurred off the landowner’s premises and the landowner was still found to be liable. These cases are inapplicable. In those cases, the dangerous condition causing the injury was on the owner’s land or the landowner created a duty by inviting the injured person to utilize an area in immediate proximity to the dangerous condition.

In Thompson, 680 So.2d at 441, this court determined that a landowner could be responsible for injuries sustained at a marked ingress and egress point to a shopping center. While the injuries occurred off the premises in the intersection, the court held summary judgment was inappropriate where the landowner had a responsibility to make safe that area it had invited people to be.

Thompson is inapplicable because the injury in this case did not occur anywhere near where the plaintiff was supposed to or invited to be. In IRE Florida Income Partners, Ltd. v. Scott, 381 So.2d 1114, 1116 (Fla. 1st DCA 1979), we stated:

The general principle governing liability of a landowner applicable here is that an owner or occupant is liable for an injury sustained by a person, who entered the premises by invitation, as a result of a defective condition of the premises, only where the part of the premises on which the injury was sustained was covered by the invitation. If a person, though on the premises by invitation, goes to a place not covered by the invitation, the owner’s duty of care owed to that person as invitee ceases forthwith.

In addition, a landowner may be liable where they invite a person to utilize an off premises facility for a specific purpose. Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970 (Fla. 1st DCA 1991). No such invitation took place in the instant case.

Appellant also relies on Whitt, 788 So.2d at 210. In Whitt, plaintiff pedestrians were injured by a motorist driving off the defendant’s premises because foliage on defendant’s premises impaired the driver’s view of the sidewalk. The trial court dismissed the case and the district court affirmed. The supreme court quashed the decision and remanded the case for further proceedings holding that a commercial gas station owner owes a duty of care to persons who may be injured as a result of natural conditions or landscaping on the landowner’s property even when the injury actually occurs off of the property. Id. at 212.

Whitt is inapplicable for several reasons. First, the injury took place immediately adjacent to an area set aside for ingress and egress to the property; an area where the public was invited to be. Second, the dangerous condition, the overgrown foliage, was on the landowner’s property. In this case, as previously noted, the actual dangerous condition was a dirt roadway nowhere near the ingress and egress to appellee’s property.

Finally and most importantly, we decline to hold that the rural landowner had a duty to ascertain whether any portion of the cable was on his property. It is undisputed that the only item in question on the landowner’s property was a connection to a trunk of a tree one foot inside the landowner’s property. The connection was not the dangerous point, and the landowner had nothing to do with extending the cable across the road.

It is undisputed that the boundaries of rural property are often unclear. No one knew that the cable was attached to a tree that happened to be on Centel’s property until after appellant’s counsel had a professional survey done several years after the accident. There is no evidence to indicate that Centel had reason to suspect the one-foot encroachment on its property. To impose a duty on a rural landowner to contract for a professional survey under these circumstances is unrealistic.

We, therefore, affirm the well reasoned decision of the trial court.

THOMAS, J., concurs; LEWIS, J., dissents with opinion.

LEWIS, J.,

dissenting.

I respectfully dissent because, in my view, the trial court erred in granting Cen-tel Cellular Company’s (“Centel”) motion for summary judgment on the ground that Centel had no duty to the decedent, Randy Brockney, under the facts of this case.

The decedent was an employee of Excel Communications (“Excel”), an independent contractor hired by Centel to mount antennas on its cellular telephone tower. The decedent was killed on April 18, 2002, while operating a four-wheel, all-terrain vehicle (“ATV”) during the course and scope of his employment as supervisor of an Excel maintenance crew, which was performing technical service on the tower under a contract with Centel. At the time of the accident, Centel owned the real property upon which the tower was located and the tower itself.

According to the deposition testimony of the decedent’s co-workers, their crew brought the ATV to the tower site “to pull guy wires out” and to reduce the distance they had to walk around the site in order to complete their work. On the day of his fatal accident, the decedent was using the ATV to go to a location beyond the tower to “set the azimuths,” which he needed to do because the azimuths could not be set up close to the tower and because the woods were so thick that the top of the tower could not be seen through them. The decedent drove down a dirt road adjacent to the tower site, hit a steel cable that had been strung across the road, flipped off the ATV, and died as a result of the accident. The parties stipulated below that the road on which the decedent was traveling when he struck the steel cable was located on an “ingress and egress and utility easement” to Centel’s property and that Centel did not attach anything to the steel cable or the surrounding area that warned of the steel cable’s existence, danger, or hazard. For purposes of its motion for summary judgment, Centel conceded that the cable was hazardous or created a dangerous condition.

Via deposition, James Edward Campbell, the owner of Campbell Sand & Gravel Company, testified that at his direction, John Parker, his former employee, had placed the steel cable across a road that was on the company’s property to keep poachers off and prevent dumping on the property. Campbell testified that he instructed Parker to erect the steel cable on the company’s property but that he did not take measurements or look for surveyor’s monuments to establish his property lines. Neither Campbell nor Parker obtained Centel’s consent to place the steel cable across the road. Parker testified that he strung the steel cable between two trees in the general area that Campbell told him to place it and that, in the middle of the road, he placed a post with a welded loop on top of it, which he ran the steel cable through.

Four Centel employees testified via deposition that they were aware of the steel cable’s existence prior to the decedent’s accident. Moreover, Jack Crusan, a Cen-tel network operations manager, testified that he first noticed the steel cable three to four months prior to the decedent’s accident but that he did not believe the steel cable was stretched across any property owned by Centel because, based on what he had been told and his vague understanding of the property lines, Centel did not own the road. There was conflicting testimony regarding the visibility of the steel cable and whether or how well it was marked with warning signs and flags on the day of the decedent’s accident. While several witnesses testified to the effect that the steel cable was clearly visible and was well-marked with flags and signs, several others testified that they had not noticed the steel cable when they went to the tower site prior to the decedent’s accident and that any markings on the steel cable were not readily visible. For instance, Centel employee Paul Jones testified that he did not see any warning signs or ribbons on the cable until after the decedent’s accident. Similarly, Centel employees Mike Meadows and Jimmy Hanson each testified that they did not remember seeing any markings or signs warning of the cable’s existence when they went to the tower site. Crusan testified that he saw the cable from a distance but that he did not notice any signs warning of its existence, although it had one piece of faded surveyor’s tape tied to it.

Edward Shontz, a professional land surveyor, testified via deposition that following the decedent’s accident, his company conducted a survey of the tower site, which revealed that the west end of the steel cable had been attached to a four-inch oak stump that was approximately 1.08 feet west of the “west right-of-way line of the easement” and about one foot south of Centel’s northern property line. Thus, on the day of the decedent’s accident, both the stump and a portion of the steel cable that caused the accident were located on Centel’s property.

In its Final Summary Judgment, the trial comet found that the exceptions to the general rule that a property owner who hires an independent contractor to perform work on his property is not liable for injuries sustained by the contractor’s employees were inapplicable to this case. Specifically, the trial court found that the exception that a property owner must warn or protect an independent contractor against potential dangers on the premises about which the property owner has actual or constructive knowledge did not apply because Centel did not have a threshold duty to determine whether the steel cable was attached to a tree located on its property. The trial court set forth that it was unaware of any precedent requiring Centel to suspect that the steel cable was improperly attached to its property or, even if it developed such a suspicion, to incur the expense of a professional survey in order to confirm or dispel the suspicion. This appeal followed.

“ ‘Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.’ ” Selim v. Pan Am. Airways Corp., 889 So.2d 149, 153 (Fla. 4th DCA 2004) (quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). “It is well established that summary judgment should only be granted if the moving party demonstrates conclusively that no genuine issues exist as to any material fact, with all reasonable inferences drawn in favor of the opposing party.” Gerard v. Scott Crane Rental Corp., 754 So.2d 896, 897 (Fla. 1st DCA 2000). If the record “raises even the slightest doubt that [a genuine issue of material fact] might exist, that doubt must be resolved against the moving party, and summary judgment must be denied.” Newman v. Herrin, 667 So.2d 271, 272 (Fla. 1st DCA 1995). Because whether Centel had a duty of care to the decedent is a question of law, the trial court’s ruling on Centel’s motion for summary judgment is subject to de novo review on appeal. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001).

As the majority acknowledges, while the general rule is that a property owner who hires an independent contractor is not liable for injuries sustained by the contractor’s employees, there are two principle exceptions to that rule. Mozee v. Champion Int’l Corp., 554 So.2d 596, 597-98 (Fla. 1st DCA 1989). Under one of those exceptions:

A person who is having work done on his premises by an independent contractor and has actual or constructive knowledge of latent or potential dangers on the premises owes a duty to give warning of, or use ordinary care to furnish protection against, such dangers to employees of the contractor and subcontractor who are without actual or constructive notice of the dangers.

Id. at 598. Thus, pursuant to Mozee, a property owner owes a duty to warn or to use ordinary care to protect an independent contractor’s employees when (1) the property owner is having work performed on his premises by the independent contractor, (2) the property owner has actual or constructive knowledge of latent or potential dangers on his premises, and (3) the independent contractor’s employees lack actual or constructive knowledge of the dangerous condition.

Under the first prong of the Mozee analysis, Centel, the property owner, was having work performed on its premises by Excel, an independent contractor. Although the decedent’s accident did not occur on Centel’s property, a property owner’s liability under Mozee is not limited to injuries to an independent contractor’s employees that occur on the landowner’s property. Rather, in certain circumstances, a landowner owes a duty of care to persons injured off its premises as a result of conditions on the landowner’s property. See Almarante v. Art Inst, of Ft. Lauderdale, Inc., 921 So.2d 703, 705 (Fla. 4th DCA 2006) (“A landowner’s conduct can give rise to a zone of risk extending beyond the physical boundaries of his property when harm reaching outside those boundaries is foreseeable.”); see also Whitt v. Silverman, 788 So.2d 210, 222 (Fla.2001); Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163, 164 (Fla. 4th DCA 1993); Johnson v. Howard Mark Prods., Inc., 608 So.2d 937, 938 (Fla. 2d DCA 1992). For example, as the majority acknowledges, one who exercises implied authority over a piece of property by inviting a person to utilize the property in a particular manner may be responsible to invitees in the same manner as a landowner. See Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991). Given the decedent’s co-workers’ testimony that the decedent needed to drive down the road to go to a location beyond the tower to set the azimuths, a jury ■ could have reasonably found that Centel invited members of the decedent’s crew to utilize the road in that manner by hiring them to perform work on the tower that required them to set the azimuths. See id.; see also IRE Fla. Income Partners, Ltd. v. Scott, 381 So.2d 1114, 1117 (Fla. 1st DCA 1979) (“The duty to keep the premises safe for invitees extends to all portions of the premises that are included in the invitation and that are necessary or convenient for the invitee to visit or use in the course of the business for which the invitation was extended. This includes places where his presence should reasonably be anticipated, as well as places where he is allowed to go.”).

Under the second prong of the Mozee analysis, given that at least four Centel employees knew about the steel cable before the decedent’s accident and that Cen-tel conceded for summary judgment purposes that the cable was hazardous or created a dangerous condition, the evidence would clearly support a determination that Centel had actual knowledge of the dangerous condition created by the cable. In fact, Centel does not argue on appeal that it did not have knowledge that the steel cable was suspended across the road but only that it did not have knowledge that a portion of the steel cable was on its property. Even assuming arguendo that Centel did not have actual knowledge of the dangerous condition, it is undisputed that the steel cable was strung across the road sometime before John Parker left his employment with Campbell Sand & Gravel company in 1999 and that the decedent’s accident occurred on April 18, 2002. Those facts are sufficient to raise an inference that the steel cable was suspended across the road for a sufficient amount of time to put Centel on constructive notice of the dangerous condition. See Houk v. Monsanto Co., 609 So.2d 757, 760 (Fla. 1st DCA 1992) (stating that constructive knowledge is imputed if the dangerous condition has existed for a sufficient length of time such that the landowner should have known about it).

The remaining question under the second prong of the Mozee analysis is whether the dangerous condition was on Centel’s property. While the majority holds that it was not, it is undisputed that approximately 1.08 feet of the steel cable and one of the trees to which it was attached were located on Centel’s property. Because the steel cable’s attachment to the trees, one of which was located on Centel’s property, caused it to be suspended at a fatal height that caused the decedent’s accident, a portion of the hazardous condition was located on Centel’s property. Nonetheless, Centel argues that mere knowledge of the cable’s existence should not give rise to a duty to suspect that the cable encroached upon its property. This argument is consistent with the trial court’s conclusion and the majority’s holding that Centel did not have a duty to determine whether the cable was tied to a tree that was located on its property. For several reasons, I disagree with the trial court’s rationale and the majority’s holding.

First, while the trial court was correct that the existence of a legal duty is a question of law, see McCain v. Florida Power Corp., 598 So.2d 500, 502 (Fla.1992), both the trial court’s rationale and the majority’s holding erroneously equate the existence of a legal duty with the breach of a legal duty. Any duty Centel might have had was not to determine whether the cable was tied to a tree on its property but, rather, to protect or warn Excel’s employees of a dangerous condition that it knew about and that was, in fact, located partially on its property.

Second, Centel’s knowledge of the steel cable’s existence does not, in and of itself, create a legal duty in this case. Rather, the trial court erred in finding, as a matter of law, that Centel did not have a duty under Mozee for the following reasons: (1) Centel hired Excel to work on its property; (2) Centel had knowledge of the existence of the steel cable, a portion of which was on its property and conceded the cable created a dangerous condition; and (3) as set forth below, the evidence would support a finding that the dangerous condition was a latent one of which the decedent did not have actual or constructive knowledge.

Third, the majority’s holding that Centel owed no duty to determine whether the cable encroached upon its property unjustly rewards the company for its indifference. Centel took no action after discovering the cable because it assumed that the cable was not attached to its property based on Jack Crusan’s vague understanding of Centel’s property lines and general knowledge that Centel did not own the dirt road and easement across which the cable was strung. A jury should have been allowed to determine whether Centel should have done more under the circumstances. See Selvin v. DMC Regency Residence, Ltd., 807 So.2d 676, 682 (Fla. 4th DCA 2001) (“How the duty of due care should be met in a given case is for the jury.”).

Fourth, the majority reasons that it would be unrealistic to impose a duty on a rural landowner to have a professional survey conducted in order to determine whether a dangerous condition encroaches on the landowner’s property. However, contrary to the majority’s reasoning, Cen-tel could have discharged any duty it had under Mozee without obtaining a professional survey to determine the precise location of the trees to which the cable was attached. As appellant argues, Centel could have spoken to neighboring landowners, examined any existing maps and surveys, searched for existing surveyor’s monuments, or contacted its legal department for advice. At the very least, Centel could have ensured that the cable was well-marked or simply warned Excel’s employees, including the decedent, of the dangerous condition posed by the steel cable.

Finally, the third prong of the Mozee analysis requires a determination as to whether the steel cable posed a latent danger of which the decedent did not have constructive knowledge. A latent danger is defined as “one that is ‘not apparent by use of one’s ordinary senses from a casual observation of the premises.’ ” Houk, 609 So.2d at 759 (citations omitted). “Constructive knowledge is a fact-intensive issue based on information that a party ‘should have known.’ ” Sutherland ex rel. Sutherland v. Pell, 738 So.2d 1016, 1017 (Fla. 2d DCA 1999) (citations omitted). Because there was conflicting testimony regarding the visibility of the steel cable and whether or how well it was marked on the day of the decedent’s accident, reasonable people could disagree as to whether the steel cable constituted a latent or patent hazard and whether the decedent had constructive knowledge of its existence. Because genuine issues of material fact remain, which should be submitted to a jury for a determination as to whether Centel had a duty to warn or protect the decedent under Mozee, I would hold that the trial court erred in granting Centel’s motion for summary judgment.

For the foregoing reasons, I would reverse the trial court’s Final Summary Judgment and remand the cause for further proceedings.

      . The record reflects that Centel changed its name to Sprint Cellular in 1993 and to 360° Communications Company in 1996 and then merged with Alltel Mobile Communications in June 2001.

      . Although Centel would not have had a duty to warn the decedent or to protect him from the dangerous condition if the decedent had actual knowledge of the steel cable's existence, there is no evidence in the record, and Centel does not argue on appeal, that the decedent had actual knowledge of the steel cable until it was too late for him to avoid his fatal accident.


author: FARMER, J.

text:
    Mary LENHART, Appellant, v. FEDERATED NATIONAL INSURANCE COMPANY, Appellee.
    No. 4D06-359.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Rehearing Denied March 28, 2007.

      Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas P.A., West Palm Beach; Dan Cytryn of Cytryn & Santana P.A., Tamarac; Dale Swope, Cel-ene Humphries, and Kathryn Lee of Swope Rodante, P.A., Tampa, for appellant.
    Richard A. Sherman, Sr., Fort Lauder-dale; and Kenneth P. Carman of Carman, Beauchamp & Sang P.A., Boca Raton, for appellee.
   FARMER, J.

The topic of this decision is family member coverage in automobile insurance. We hold that if the objective of the insurer is not to cover an underage, unlicensed family member, the policy must state such an intention explicitly and plainly.

Young Christopher’s father was an established customer of Federated, who for many years purchased insurance covering only his vehicle, which he renewed every November. On the application for the current policy, under the heading of Driver Information, the father was required to list all members of the household and warned:

“All persons H years or older, licensed or not, who are residents of the applicant’s household must be listed below whether or not they are operators of the vehicles listed. Failure to provide this information shall constitute a material misrepresentation, which shall result in all insurance coverages being void. This applies to students living away from home and persons in the Armed Services.” [e.s.]

Father dutifully listed himself, wife Kim, daughter Tatum and even unlicensed son Christopher because he was then 14. Next to the name of each person listed, the form required the driver’s license number. By his own name he wrote his license number, but next to his wife’s and daughter’s names he wrote excluded. Because his son did not yet have a license, next to his son’s name he wrote none. Notably he did not add the word excluded.

On account of Father’s desire to cover only himself and no other family member, Federated required him to execute a Named Driver Exclusion Election form. On that form he listed his wife and daughter — the only other licensed drivers in his household. Conspicuously, however, he did not include or add his underage and unlicensed son’s name on this Named Driver Exclusion Election form.

Accompanying the policy issued by Federated was a Declarations Page, a pre-printed form containing specifications and information inserted onto the form electronically. On this Declarations Page, the form stated four names as operators of the insured vehicle, along with their birthdates and driver’s license numbers. This form also listed all members of father’s household — including the underage, unlicensed son and stated that wife and daughter were excluded. But — like the Named Driver Exclusion Election form — the son’s name was not excluded. The Declarations Page made clear that it, along with the “policy jacket” and any endorsements issued with it, are part of the policy.

Before stating the coverage limits, conditions and exclusions, the policy began with definitions, among which is this: ‘Family member’ [e.oj means a person related to you by blood, marriage or adoption who is a resident of your household ... provided said family member does not own a private, passenger auto.” Son Christopher did not own a private, passenger auto.

As with typical automobile policies, there is an alphabet soup of coverages. We are concerned only with liability coverage. Part A of the policy provided: “We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” [e.s.] Part A specifies that:

“ ‘Covered person’ ... means ... any Family Member [e.s.] for the ... use of any auto ... except for an auto which is owned by you or any family member ... which is not defined as your covered auto under the definition section of this policy.”

Part A also contained this specific exclusion from coverage: ‘We do not provide Liability Coverage ... for any person using a vehicle without a reasonable belief that the person is entitled to do so.” [e.s.] The term entitled is not defined anywhere in the policy papers.

Two days before Christmas, the son— then 15 years old and still unlicensed — was riding as a passenger with a friend in her auto. Knowing that he lacked even a learner’s permit, but feeling ill, she asked him to drive her auto. With the vehicle owner’s express approval and consent, therefore, Son drove his friend’s auto while she placed herself in the rear seat. Turning the vehicle into their destination parking lot, he struck a moped and seriously injured its passenger. The moped passenger eventually brought suit against both Father and Son, in which they raised the issue of coverage for the accident under this policy. The trial court found no coverage; then this appeal.

Insurance contracts are construed in accordance with the plain meaning of the language in the policy for which the parties bargained. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Insuring or coverage clauses are understood to achieve the maximum coverage coherent with the plain meaning of the words used. McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 695 (Fla. 4th DCA 1999) (coverage clauses are construed in the broadest possible manner to effect the greatest extent of coverage); Hudson v. Prudential Prop. & Cas. Ins. Co., 450 So.2d 565, 568 (Fla. 2d DCA 1984) (insurance coverage must be construed broadly and its exclusions narrowly); Nat’l Merchandise Co. v. United Serv. Auto. Ass’n, 400 So.2d 526, 532 (Fla. 1st DCA 1981) (terms in policy relating to coverage must be construed liberally in favor of insured); Valdes v. Smalley, 303 So.2d 342, 344 (Fla. 3d DCA 1974) (clause extending covérage to insured must be construed liberally in favor of insured). If there is more than one reasonable interpretation of policy language- — one affording coverage; one ruling out coverage — the policy is ambiguous and coverage is inferred. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); see also State Farm Fire & Cas. Ins. Co. v. Deni Ass. of Fla. Inc., 678 So.2d 397, 401 (Fla. 4th DCA 1996) (ambiguity results when the insurer drafts an exclusion capable of being fairly and reasonably read both for and against coverage). And when an insurer fails to define a policy term having more than one meaning, the insurer cannot argue a narrow or restrictive interpretation of the coverage provided. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998). To ascertain the meaning of policy text, courts should read the whole policy and attempt to give every provision the full meaning and import of its words. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 941 (Fla.1979) (noting that every provision in a contract should be given meaning and effect, with apparent inconsistencies reconciled if possible).

As we have seen, here the insuring clause grants coverage to all covered persons. The express definition of covered person in Part A includes any blood relative of the named insured who resides in the same household and who does not own a private auto. (“Covered person ... means ... any family member for the ... use of any auto_”) Nothing limits family coverage to only those family members having a valid driver’s license.

Nothing anywhere in the policy states that Son is not covered. To the contrary, the application and Named Driver Exclusion Election forms suggest by necessary implication that Son was meant to be covered and not excluded. The Declarations Page plainly identifies only two family members who are excluded from coverage but — again—not Son. In a contract filled with tightly drawn, context-specific provisions, there is not a single word limiting the broad generality of covered person and family member relating to coverage of Son. In the papers used to make plain who is not being covered, other members of the family are clearly listed, and — -just as clearly — Son is omitted. We are simply unable to find a plain meaning in the entire text used by this insurer in any of the forms or policy that would take Son out of Part A’s insuring clause for coverage. The only reasonable reading of the policy’s insuring clause is that Son is covered while driving his ill friend’s auto.

As indicated above, however, Part A does have an exclusion, one emphatically asserted by the insurer to take Son out of any liability coverage. To repeat, Exclusion 9 says “We do not provide Liability Coverage ... for any person using a vehicle without a reasonable belief that the person is entitled to do so.” [e.s.] The insurer argues that the term entitled means the legal authority to drive a vehicle on Florida roads — in other words, a valid driver’s license. The term entitled was meant to be modified by the unwritten word legally, the insurer argues, so that under its intended meaning Son is excluded from the coverage otherwise granted by Part A.

The thing defeating the insurer’s argument — that entitled refers to legal authority to drive an auto — is the text and sentence structure of the exclusion. The sentence says that the exclusion applies to a person using a vehicle without a reasonable belief that he is entitled to do so. But driver’s licensure law does not forbid using a vehicle without an entitlement; instead it forbids driving any vehicle on the highway without a valid license. See § 322.03(1) Fla. Stat. (2006) (“a person may not drive any [e.s.] motor vehicle upon a highway in this state unless such person has a valid driver’s license”).

Obviously a person may use a vehicle without himself actually driving it. He could, for example, by agreement with its owner employ the auto to transport himself and others, while another person — a licensed driver — does the driving. As the court facing the same circumstances and argument explained in American Fire & Casualty Co. v. Blanton, 182 So.2d 36 (Fla. 1st DCA 1966):

“The clause says nothing about operation of the vehicle.... We think that in this context the words use and operation are not synonymous. The use of an automobile denotes its employment for some purpose of the user; the word ‘operation ’ denotes the manipulation of the car’s controls in order to propel it as a vehicle. Use is thus broader than operation. ... One who operates a car uses it ... but one can use a car without operating it.” [c.o.]

182 So.2d at 39. The teaching in Blanton has been around for 40 years; it is hardly new. If a Florida insurer truly intends to exclude unlicensed drivers, the policy text would have to exclude coverage for any person driving any vehicle without a valid driver’s license.

In context, the meaning of Exclusion 9 is more sensibly bound up with using a vehicle belonging to someone else while lacking a plausible reason to believe that one had consent to do so. The meaning argued by the insurer, having a valid driver’s license, could not possibly be more than a remotely possible meaning — and a very weak one at that. From the context plainly it is not the probable one. We think permission to use the auto (without necessarily driving it) is the only meaning the text and context will bear.

We hasten to add that even if having a valid driver’s license was an intended meaning of the insurer, the standard meaning of the actual terminology used by the insurer also reveals the stronger meaning of consent to use the auto in question. In short, both meanings would then be possible. The clause would be legally ambiguous because it is capable of being fairly and reasonably read both for and against coverage. Exclusion 9 would therefore have to be construed in favor of coverage. Deni Associates of Fla. Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1138 (Fla.1998) (ambiguous exclusionary provisions genuinely susceptible to more than one meaning must be construed in favor of the insured because the insurer usually drafts the policy); State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245,1248 (Fla.1986) (same).

Courts in other States confronting this same policy language in functionally identical circumstances have reached the same conclusion. For example in Hurst v. Grange Mutual Casualty Company, 266 Ga. 712, 470 S.E.2d 659 (1996), the court explained:

“Since the insurance contract does not contain a definition of the word ‘entitled,’ we conclude that the exclusion at issue is susceptible of three logical and reasonable interpretations: that the user must be authorized by law to drive in order to reasonably believe he is entitled to use a vehicle; that the user must have the consent of the owner or apparent owner in order to reasonably believe he is entitled to use the vehicle; or, that the user must have both consent and legal authorization in order to be entitled to use the vehicle. The number of reasonable and logical interpretations makes the clause ambiguous and the statutory rules of construction require that we construe the ambiguous clause against the insurer.” [c.o.]

470 S.E.2d at 663. Similarly, the court in Safeco Insurance Co. of America v. Davis, 44 Wash.App. 161, 721 P.2d 550 (1986), said:

“Exclusion 10 of the Safeco policy excludes from liability coverage any person using a vehicle without a reasonable belief that the person is ‘entitled’ to do so. On appeal, Safeco argues that the meaning of ‘entitled’ as used in the ex-elusion is clear but nowhere states clearly its meaning. The Safeco policy itself provides no indication as to the meaning of ‘reasonable belief or ‘entitled.’ Such terms are therefore to be given their ordinary and popular meaning. However, resort to the usual extrinsic aids does not provide clear guidance. According to Webster’s ... Dictionary ... ‘entitle’ means, among other things, ‘to give a right or legal title to: qualify (one) for something: furnish with proper grounds for seeking or claiming something.’
“Several reasonable interpretations of ‘entitled’ are possible within the scope of the exclusionary language. One is ‘permission’ or ‘consent,’ which focuses on the relationship between the driver and the owner of the vehicle. Another equally plausible interpretation of ‘entitled,’ apparently that urged by Safeco, is ‘legal authority,’ which focuses on a variety of relationships that arise between the driver and the state. Safeco places special stress on the fact that Lisa Davis did not have a driver’s license. In addition, ‘entitled’ could encompass both ‘consent’ and ‘legal authority.’ The ambiguity and uncertainty of exclusion 10 are exacerbated by the broad range of situations to which the clause might apply. The average person consulting the policy would have difficulty ascertaining the extent of coverage.” [c.o., f.o.]

721 P.2d at 551-52. In State Automobile Mutual Insurance Co. v. Ellis, 700 S.W.2d 801, 802 (Ky.App.1985), the court also had identical policy text and explained:

“Reading the policy without the questioned exclusion, Andrea is clearly included in the narrow class of ‘family members’ who are specifically afforded coverage under the policy. It is possible to determine that she is covered from the face of the policy without more. When an attempt is made to apply the general exclusion to a family member such as Andrea, an ambiguity arises. It then becomes necessary to resort to facts outside the policy to determine whether there is coverage, by determining whether a reasonable belief existed that the driver was entitled to use the vehicle. The policy does not offer guidance as to what constitutes a ‘reasonable belief,’ nor does it specify whether ‘entitled’ means simply obtaining permission from the owner of the vehicle or whether a valid license from the applicable state would also be required to avoid exclusion from coverage. The rule that ordinary words in insurance policies are to be given their ordinary meaning does not resolve the ambiguity inherent in the language.”

700 S.W.2d at 802-08. There is nothing in the underlying facts or circumstances of any of these cases from other States, much less their policies’ texts, that would allow us to distinguish them in any principled or meaningful way. They all reach the same conclusions we do as to the identical insuring clause and exclusion.

To sum up, all the words used in the forms and policy are against the insurer’s attempt to deny coverage. The application form itself told the applicant to list everyone in the house upon pain of voiding coverage by misstatement. Father excluded only Mother and Daughter in the application and Named Driver Exclusion Election forms, but not Son. Son is explicitly a covered person within the policy’s own definition of that term. The accident occurred in an auto owned by someone outside the family. Exclusion 9 fails to take Son out of coverage because, reasonably and fairly read, the insurer’s asserted meaning is only a distant, possible but implausible meaning, while its plain meaning is to eliminate him from the exclusion. Son is covered for this accident.

As a last resort, the insurer relies on sworn testimony by the Father and its own officials to the effect that both parties to the insurance contract intended that the policy would not cover Son because he was unlicensed. Such testimony, of course, collides with the familiar principle that clear contractual text may not be varied by parole testimony. At the same time, this argument seems to us little more than a variation on the theory of construing insurance policies according to the reasonable expectations of the parties. That theory was decisively rejected by the supreme court in Deni Associates of Florida Inc. v. State Farm Fire & Casualty Insurance Co., 711 So.2d 1135 (Fla.1998):

“There is no need [to consider the parties’ expectations] if the policy provisions are ambiguous because in Florida ambiguities are construed against the insurer. To apply the doctrine to an unambiguous provision would be to rewrite the contract and the basis upon which the premiums are charged.... Construing insurance policies upon a determination as to whether the insured’s subjective expectations are reasonable can only lead to uncertainty and unnecessary litigation.” [e.s., e.o.]

711 So.2d at 1140. Both parties say they thought the policy text meant no coverage whatever for Son, but it would be no different if only one of them had so testified. Either way, a reasonable belief contrary to the plain meaning of policy text — or even to unclear text capable of being fairly read to provide coverage — is irrelevant to construction of the policy.

The summary judgment in favor of the insurer is therefore

Reversed.

STONE and MAY, JJ„ concur.

      . The father is the senior Christopher.

      . We do not concern ourselves with who actually wrote the words in the blanks on the forms, Father or Agent.

      . Widely known coverages are BI (bodily injury), PD (property damage), PIP (personal injury protection), and UM (uninsured motorist).

      . The only exception in this definition — use of a family-owned auto — is inapplicable here.

      . We cannot help but note that in the insuring clause quoted above the insurer modified the term "responsible” with the word legally.

      . The fact that the operative terminology in licensure law has changed from operate to drive does not weaken the force of Blanton’s explanation.


text:
    Melida A. DEMORIZI, Appellant, v. Nestor M. DEMORIZI, Appellee.
    Nos. 3D05-2806, 3D05-2377.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Peter H. Kircher, Miami, for appellant.
    Harvey D. Rogers, Miami, for appellee.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because the parties’ post-judgment agreement to arbitrate did not modify the Final Judgment, which required the Former Husband to pay certain post-graduate expenses, the arbitration proceedings at issue were in the nature of enforcement proceedings pursuant to section 61.16(1), Florida Statutes (2005). Thus, in this case, the trial court has jurisdiction to award the Former Wife attorney’s fees. See § 61.16(1), Fla. Stat. (2005)(“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees ... and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.”).

Reversed and remanded.