author: GROSS, J.

text:
    WINN-DIXIE STORES, INC., a Florida corporation, Appellant, v. DOLGENCORP, INC., a Kentucky corporation, and Crest Haven, L.L.C., a foreign limited liability company, Appellees.
    No. 4D06-1585.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.

      Thomas E. Warner, Dean A. Morande, and Jason Alderman of Carlton Fields, P.A., West Palm Beach, for appellant.
    Tod Aronovitz and Christopher Marlowe of Aronovitz Trial Lawyers, Miami, and William N. Withrow, Jr. and Andrea D. Seeney of Troutman Sanders, LLP, Atlanta, Georgia, for appellee Dolgencorp, Inc., a Kentucky corporation.
    Monterey Campbell, Mark N. Miller, and Kristie Hatcher-Bolin of GrayRobin-son, P.A., Lakeland, for amicus curiae Publix Super Markets, Inc., and The Food Marketing Institute.
    Douglas C. Spears, Todd K. Norman, and Donald T. Regan, III of Stump, Callahan, Dietrich & Spears, P.A., Orlando, for amicus curiae Family Dollar Stores of Florida, Inc.
   ON MOTION FOR REHEARING

GROSS, J.

We grant Winn-Dixie Stores, Inc.’s motion for rehearing, withdraw our previous opinion, and substitute the following.

In the circuit court, Winn-Dixie Stores, Inc. brought suit to enjoin Dolgencorp, Inc., another tenant in a shopping plaza, from selling groceries. Winn-Dixie based its suit upon a covenant in its recorded lease with the landlord giving it the exclusive right to sell groceries in the plaza. The circuit court granted summary final judgment in favor of Dolgencorp. We reverse, holding that if we view the evidence in the light most favorable to Winn-Dixie, the covenant in its lease was one running with the land that was enforceable against Dolgencorp.

We state the facts in the light most favorable to Winn-Dixie, the non-moving party in the summary judgment below. See Byrd v. BT Foods, Inc., 948 So.2d 921, 928 (Fla. 4th DCA 2007).

Winn-Dixie operates a grocery store at the Crest Haven Shopping Plaza, where it is the anchor tenant. An anchor tenant in a shopping center is one that provides a benefit to the center and its tenants by attracting customers.

In March, 1996, the landlord and Winn-Dixie entered into a lease which granted Winn-Dixie the exclusive right to sell groceries at Crest Haven, with the exception that other stores could sell groceries, provided that they devoted no more than 500 square feet to such items. Paragraph 33 of the lease provided that all the provisions in the lease, including Winn-Dixie’s grocery exclusive, were “deemed” to be covenants that ran with the land:

This lease and all of the covenants and provisions thereof shall inure to the benefit of and be binding upon the heirs, legal representatives, successors and assigns of the parties hereto. Each provision hereof shall be deemed both a covenant and a condition and shall run with the land.

A short form of the lease, containing a legal description of the shopping plaza and the grocery exclusive, was recorded on April 23, 1996 in the public records of Palm Beach County, Florida. The recorded short form lease appears in the chain of title for the Crest Haven Shopping Plaza.

Shopping plaza exclusives similar to Winn-Dixie’s are customary and standard throughout the industry, especially with regard to anchor tenants. Sophisticated tenants such as Winn-Dixie and Dolgen-corp encounter exclusives in almost every shopping center in which they do business. Dolgencorp knew that Winn-Dixie stores typically operated under grocery store exclusives.

In 1998, Dolgencorp became a tenant at Crest Haven and began operating a Dollar General Store. Dolgencorp operates 7,800 Dollar General Stores in 32 states. Dol-gencorp’s lease contained a provision granting it the exclusive right to operate a Dollar General type of store at the shopping plaza.

Winn-Dixie learned that Dolgencorp was violating its grocery exclusive by devoting more than 500 square feet of sales area to grocery items. Winn-Dixie demanded that the landlord enforce the grocery exclusivity provision, but the landlord failed to do so. Winn-Dixie filed a complaint against the landlord and Dolgencorp seeking injunctive relief, specific performance, damages for breach of contract, and unjust enrichment.

Dolgencorp moved for summary judgment, arguing that section 542.335, Florida Statutes (1998) rendered the grocery exclusive unenforceable against it because Dolgencorp was not a signatory to Winn-Dixie’s lease. The trial court granted the motion, holding that Winn-Dixie’s grocery exclusive was not a real property covenant that ran with the land, that Dolgencorp did not have constructive notice of the grocery exclusive under Florida law, and that section 542.335 rendered the grocery exclusive unenforceable.

Concerning appellate review of a summary judgment, we have held that

[a]n order granting summary judgment is reviewed de novo. Summary judgment is proper only when there are no genuine issues of material fact conclusively shown from the record and the movant is entitled to judgment as a matter of law. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available. An issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the ease.

Byrd, 948 So.2d at 923 (internal citations omitted).

The Grocery Exclusive in the Lease was a Real Property Covenant that Ran With the Land

Winn Dixie’s grocery exclusive was a real property covenant that ran with the land and not a personal contract obligation. The distinction between the two is well established in Florida law.

We explained the difference between a covenant running with the land and a personal covenant in Alternative Networking, Inc. v. Solid Waste Authority of Palm Beach County, 758 So.2d 1209, 1211 (Fla. 4th DCA 2000):

“A personal covenant creates a personal obligation or right enforceable at law only between the original covenanting parties whereas a real covenant creates a servitude upon reality for the benefit of another parcel of land. A real covenant binds the heirs and assigns of the original covenantor, while a personal covenant does not.” A covenant running with the land differs from a merely personal covenant in that the former concerns the property conveyed and the occupation and enjoyment thereof, whereas the latter covenant is collateral or is not immediately concerned with the property granted. If the performance of the covenant must touch and involve the land or some right or easement annexed and appurtenant thereto, and tends necessarily to enhance the value of the property or renders it more convenient and beneficial to the owner, it is a covenant running with the land.

(quoting Palm Beach Cty. v. Cove Club Investors, Ltd., 734 So.2d 379, 382 n. 4 (Fla.1999) (quoting 19 Fla. JuR.2d Deeds § 174 (1998), and Maule Indus., Inc. v. Sheffield Steel Prods., Inc., 105 So.2d 798, 801 (Fla. 3d DCA 1958))).

Florida courts have long enforced use restrictions in commercial leases as covenants running with the land.

In Dunn v. Barton, 16 Fla. 765 (1878), John Dunn, the assignee of a tenant in a commercial lease, assigned the lease to Mary Barton, who agreed not to permit the leased premises to be used as a “public bar-room.” Dunn owned a bar in an adjoining building and he sought to limit competition. Barton sublet to Annie Ha-zelton, who began to operate a bar. Dunn sued Barton and Hazelton to enforce his agreement with Barton. Id. at 770.

The supreme court characterized the Dunn/Barton use restriction as covenant which ran with the land, because it affected “the mode of enjoyment of the premises.” Id. at 771. The court also held that the covenant was enforceable against Ha-zelton, who, as a sublessee, was “subject to the covenants running with the land in the hands of her lessor,” Barton. Id. at 772. The supreme court applied the rule that a lease “restriction upon the manner of using the premises runs with the land and is binding upon the estate in the hands of sub-tenants ... [who] take only the title of the lessee, and with the title, limitations and restrictions.” Id. at 772 (quoting Wheeler v. Earle, 59 Mass. 31 (1849)).

More recently, in Park Avenue BBQ & Grille of Wellington, Inc. v. Coaches Corner, Inc., 746 So.2d 480 (Fla. 4th DCA 1999), this court enforced a use restriction in one tenant’s commercial lease against another tenant of a shopping center. There, the landlord granted a lease exclusive to a sports bar to be the only TV sports bar in the shopping center. Id. at 481. The lease exclusive was recorded in the public records when the landlord conveyed the shopping center to a new owner. Id. at 482. Later the shopping center leased space to a barbeque restaurant that began showing televised sporting events. The sports bar obtained an injunction against the shopping center and the restaurant enforcing its lease exclusive. Id. On appeal, the restaurant argued that it was not bound by the sports bar exclusive because it was not in direct contractual privity with the sports bar. This court affirmed the injunction, rejecting the argument that privity was a requirement to enforce a covenant running with the land, in light of the restaurant’s actual knowledge of the restrictive covenant. Id. 482.

From the Florida cases, we extract the following rule: to establish a valid and enforceable covenant running with the land arising from a landlord-tenant relationship, a plaintiff must show (1) the existence of a covenant that touches and involves the land, (2) an intention that the covenant run with the land, and (3) notice of the restriction on the part of the party against whom enforcement is sought. See Maule Indus., 105 So.2d at 801; Park Avenue BBQ, 746 So.2d at 481-82; Alternative Networking, 758 So.2d at 1211; see also Ralph E. Boyer, SURVEY of the Law of Property 530 (3d ed.1981).

The grocery exclusive in this case was a covenant that “touched and involved” the land. Under Dunn and Park Avenue BBQ — the grocery exclusive “affects the mode of enjoyment of the premises.” Dunn, 16 Fla. at 771.

The intent that the use restriction run •with the land was expressed in paragraph 33 of the lease, which “deems” its provisions to be covenants that run with the land.

Finally, Dolgencorp had sufficient notice of the grocery exclusive so that Winn-Dixie could bring an enforcement action against it.

Florida recognizes three types of notice in cases concerning covenants running with the land — constructive notice, actual notice, or implied actual notice. This record supports the conclusion that Dolgencorp had either constructive or implied actual notice of Winn Dixie’s lease exclusive.

“ ‘Constructive notice’ has been defined as notice imputed to a person not having actual notice.” Sapp v. Warner, 105 Fla. 245, 255, 141 So. 124, 127 (1932). “The usual instance of constructive notice, is of course, restrictions in a recorded deed or plat. And the authorities are practically unanimous in holding that the recorded deed containing such restriction is not necessarily the immediate deed by which the instant owner takes or has taken title; it may be in an antecedent deed, even the deed from the original common grantor.” Hagan v. Sabal Palms, Inc., 186 So.2d 302, 311-312 (Fla. 2d DCA 1966).

Park Avenue BBQ is an actual notice case. The barbeque restaurant had actual knowledge of the sports bar’s exclusivity provision; the restaurant’s president “hand wrote language into his lease allowing [the restaurant] to televise sporting events because he was concerned about [the sports bar’s] exclusivity provision.” 746 So.2d at 482. Actual or “express” notice is based on “direct information” leading to “actual knowledge of the fact in question.” Sapp, 141 So. at 127; McCausland v. Davis, 204 So.2d 334, 335 (Fla. 2d DCA 1967).

Implied actual notice includes “notice inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use.” Sapp, 105 Fla. at 255, 141 So. 124. If a person has information that would lead a reasonable man to make further inquiry for his own protection, but fails to further investigate and learn what the inquiry would reasonably have uncovered, the person “must suffer the consequence of his neglect.” Flanigan’s Enters., Inc. v. Shoppes at 18th & Commercial, Inc., 954 So.2d 758 (Fla. 4th DCA 2007) (quoting Chatlos v. McPherson, 95 So.2d 506, 509 (Fla.1957)); Rafkind v. Beer, 426 So.2d 1097, 1099 (Fla. 3d DCA 1983); see also Citgo Petroleum Corp. v. Fla. E. Coast Ry. Co., 706 So.2d 383, 386 (Fla. 4th DCA 1998) (citing Chatios). Implied actual notice is based upon the principle

that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.

Sapp, 141 So. at 127.

Based on this record, Dolgencorp had at least implied actual notice of the grocery exclusive when it entered into its lease. Dolgencorp was an experienced commercial tenant with 7,800 stores in 32 states, most of which are located in shopping plazas; it often sought exclusives in its own leases and secured one from Crest Haven. Dolgencorp understood that Winn-Dixie was the anchor tenant at Crest Haven. Dolgencorp was aware that anchor tenants like Winn-Dixie typically secure restrictive covenants in shopping center leases. Under these circumstances, Dolgencorp had the obligation to make further inquiry of the landlord or Winn-Dixie or to examine the shopping center’s chain of title to see if Winn-Dixie had recorded its grocery exclusive. In sum, Dolgencorp had reason to know of the existence of Winn-Dixie’s restrictive covenant.

In the circuit court, Dolgencorp relied upon Camena Investments & Property Management Corp. v. Cross, 791 So.2d 595 (Fla. 3d DCA 2001). That case is inapplicable to the issue of implied actual notice. Camena concerned a claim that a lessor had fraudulently induced a lessee to enter into a lease by representing that the lessee could open a restaurant by a certain date; however, a recorded restrictive covenant on the property made such an opening impossible. The lessor took the position that there could be no fraud because the “restrictive covenant was a matter of public record.” Id. at 597. The third district rejected this argument and wrote in dicta that public records searches for restrictive covenants were not the “types of searches ... expected to be performed as standard procedure by a party entering into a commercial lease.” The obligation that the law places on a lessee to maintain a cause of action for fraudulent inducement is different than the obligation placed on an experienced commercial lessee to inquire about restrictive covenants that would place limitations on its tenancy. Camena stands only for the proposition that in the appropriate case, a fact appearing in public records, if it is misrepresented, may still form the basis of a fraud claim.

Moving away from implied actual notice, the more difficult issue is whether Winn-Dixie’s recording of the short form lease gave Dolgencorp constructive notice of the grocery exclusive sufficient to enforce the covenant against it.

Three statutes pertain to instruments as notice. Section 28.222(3)(a), Florida Statutes (2006) provides that leases are one kind of instrument that the clerk of the circuit court is required to record. Section 695.11, Florida Statutes (2006) states that an instrument, like a lease, which is “authorized or required to be recorded” by the clerk “shall be notice to all persons” once it is “officially recorded” pursuant to the statute. We read the “notice” provision of section 695.11 as a general description of the legal effect of recording, rather than as a statement that recording operates as notice to all persons, in all situations. Most significant is the third statute, which describes the effect of recording a lease of real property:

No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.

§ 695.01(1), Fla. Stat. (2006). Section 695.01(1) provides that a recorded lease “shall be good and effectual” against “subsequent purchasers for a valuable consideration.” If narrowly construed, a lessee in a shopping center would not qualify as a “subsequent purchaser.”

However, the supreme court has tacitly recognized a broader interpretation of section 695.01(1), one which means that Dol-gencorp had constructive notice of the grocery exclusive sufficient to enforce the covenant against it. Stack v. Dunn, 444 So.2d 935 (Fla.1984), involved competing mineral rights leases for the same property. One lease was entered into in 1971, but not recorded until May 11, 1972. Id. at 936. The second lease was signed on January 17, 1972 and promptly filed with the clerk. Id. The supreme court applied section 695.01(1) to conclude that the failure to comply with the power of attorney provisions of the statute rendered one lease ineffectual against the other. Id. at 938. Implicit in this ruling is that recording of a lease could constitute constructive notice against a subsequent lessee.

Relying on Stack v. Dunn, we hold that a lessee of real property is a “purchaser” within the meaning of section 695.01(1). This interpretation is consistent with the view that a lease of land for a term of years “is a conveyance of an interest in land,” “that passes a present interest in the land for the period specified.” See Flowers v. Atl. Coast Line Ry. Co., 140 Fla. 805, 809, 192 So. 321, 323 (1939); De Vore v. Lee, 158 Fla. 608, 30 So.2d 924, 925 (1947) (quoting Chandler et al. v. Hart, 161 Cal. 405, 119 P. 516, 519 (1911), see Rogers v. Martin, 87 Fla. 204, 208, 99 So. 551, 552 (1924)) (stating that a leasehold estate “for all practical purposes is equivalent to absolute ownership”). This holding is also in accord with the sparse authority existing in other states. See Slice v. Carozza Props., Inc., 215 Md. 357, 137 A.2d 687, 688, 694 (1958); Reeve v. Hawke, 136 A.2d 196, 201 (Del.Ch.1957).

Section 5Jf2.3S5, Florida Statutes (1998) Does Not Invalidate Winrir-Dixie’s Real Property Covenant

We reject the circuit court’s ruling that section 542.355 precludes enforcement of the restrictive covenant against Dolgen-corp. First, by its terms, the statute does not apply to the Winn-Dixie/Crest Haven lease. Second, even if the statute were applicable, it does not apply to real property covenants running with the land.

Section 542.335(3) states: “This act shall apply prospectively, and it shall not apply in actions determining the enforceability of restrictive covenants entered into before July 1, 1996.” § 542.335(3), Fla. Stat. (1998). Winn-Dixie’s grocery exclusive was executed on March 16, 1996 and the short form lease was recorded on April 23, 1996. By its terms, the statute does not apply to the restrictive covenant in this case.

In the circuit court, Dolgencorp focused on the wording of section 542.335(l)(a), which states that “[a] court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” However, to correctly construe section 542.335(l)(a), we must read it in pari materia with the rest of the statute. See Maddox v. State, 923 So.2d 442, 445-46 (Fla.2006).

When read in context with the other provisions of section 542.335, subsection (l)(a)’s reference to “a restrictive covenant” does not include real property covenants running with the land. Rather, the section is directed at personal service contracts not to compete.

For example, section 542.335(1) refers to “contracts that restrict or prohibit competition” that “are reasonable in time.” Subsections 542.335(l)(d) & (e) set out four rebuttable presumptions a court is to apply to determine the “reasonableness in time” of a “postterm restrictive covenant.” “Postterm” connotes an employment relationship that has terminated, which is the time when one party seeks to enforce a covenant not to compete. “Postterm” is nonsensical when applied to a real property covenant, which typically does not have a stated termination point. Absent a specified term or materially changed conditions, a real property covenant running with the land is without duration. Citizens Nat’l Bank of Orlando v. Shell Oil Co., 232 So.2d 230, 231 (Fla. 4th DCA 1970). All four presumptions in subsections 542.335(l)(d) & (e) apply to personal service contracts, concerning restrictive covenants sought to be enforced (1) against a former employee, agent, or independent contractor; (2) against a former distributor, dealer, franchisee, or licensee of a trademark or service mark; (3) against a seller of all or part of a business, and (4) to protect trade secrets. None of these presumptions have any application to real property covenants that run with the land.

Additionally, section 542.335(1) imposes the requirement that an enforceable restrictive covenant be “reasonable in ... area.” As amici curiae point out, such an area restraint does not apply to a real property covenant running with the land, which “is tied to specifically described real property, whether it be an entire subdivision, an adjacent lot, or a commercial development.” Rather, the concept of geographical limitations makes sense only to define the area of performance of personal services covered under a covenant not to compete. A court should avoid a reading of the statute that would render a part of it meaningless. E.g., Unruh v. State, 669 So.2d 242, 245 (Fla.1996).

Winn-Dixie demonstrates in its brief that nothing in the legislative history of section 542.335 indicates an intent to invalidate real property covenants. See Staff of Fla. Comm. On Judiciary, HB 611 & 375, Staff Analysis (May 30, 1996); Senate Staff Analysis and Economic Impact Statement, SB 282 & 1224 (Apr. 11, 1996). As Winn-Dixie explains, “[i]mposing requirements that real property covenants be in writing and signed by the person against whom enforcement is sought would be nonsensical. Recorded leases and other real property covenants are already in writing, and the whole purpose of recorded covenants is to bind future, unknown successors to the burdened estate. Obviously, it would not be possible to obtain the signatures of future unknown persons when the instrument is signed.”

In the circuit court, Dolgencorp relied heavily on Tusa v. Roffe, 791 So.2d 512 (Fla. 4th DCA 2001), but that case does not control, since it did not consider the issue raised in this case — whether section 542.335 applies to real property covenants running with the land.

In Tusa, tenant A had a provision in its lease saying that it was the only restaurant in the building that could sell pizza. Tenant B had a restriction in its lease prohibiting it from making or selling pizza. Id. at 513. There is no indication in Tusa that any of the leases were recorded or that the parties intended to create covenants running with the land. Tenant B began to sell pizza. Id. Tenant A sued Tenant B seeking injunctive relief as a third party beneficiary of Tenant B’s lease. Id. at 514. We held that Tenant A could not sue to enforce the obligation in Tenant B’s lease because Tenant A was not in “contractual privity” with Tenant B and Tenant B’s lease did not identify Tenant A as a third party beneficiary. Id. We went on to state that “under section 542.335(f)(1),” Tenant A had “no viable claim” against Tenant B. Id.

Unlike this case, there was no claim in Tusa that the “pizza” use restriction was a real property covenant running with the land. Tenant A based its case on the legal theory that it was a third party beneficiary of a personal contract obligation in Tenant B’s lease. Therefore, because no party in Tusa raised the issue, we did not rule on whether section 542.335 applied to real property covenants running with the land.

Reversed and remanded.

SHAHOOD and TAYLOR, JJ., concur.

      . The circuit did not resolve issues concerning the landlord in the order on appeal. The action against the landlord remains pending in the court below.

      . Publix Super Markets, Inc. and Food Marketing Institute.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Delores GRAHAM, Appellant, v. LLOYD’S UNDERWRITERS AT LONDON, Appellee.
    No. 2D06-3621.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      Matthew D. Pardy of Kim, Pardy & Rodriguez, P.A., Orlando, for Appellant.
    Neil Bayer of Sarnoff & Bayer, Coconut Grove, for Appellee.
   PER CURIAM.

Delores Graham appeals the trial court’s order granting final summary judgment in favor of her insurer, Lloyd’s of London. Lloyd’s denied coverage for damages to Ms. Graham’s Naples home sustained during Hurricane Charley on August 13, 2004, based on its assertion that Ms. Graham had made a material misrepresentation in her application for insurance coverage. Because there are unresolved genuine issues of material fact in this case, we reverse the summary judgment entered in favor of Lloyd’s and remand for further proceedings.

In June 2004, Ms. Graham applied for homeowner’s insurance through the John Lee Insurance Agency, an independent agent in Naples, Florida. The application contains an entry indicating that the home is three miles from the “gulf.” Mr. Lee submitted the application to The Levings Group (Levings), the surplus lines agent for Lloyd’s Underwriters at London (Lloyd’s). On June 10, 2004, Levings issued a binder for coverage of Ms. Graham’s home, with coverage effective as of June 9, 2004. A policy was subsequently issued which included windstorm coverage. Shortly after issuing the policy, Levings had the home inspected by an independent inspector. That inspector reported that the home was one and one-quarter miles from the gulf.

Lloyd’s alleges that on July 12, 2004, it sent a letter to John Lee Insurance stating that based on the inspection report, “please send endorsement request to increase coverage to $150,000 and X-wind or send proof of replacement cost and distance to coast.” This document contains the word “FAX” at the top and is dated July 12, 2004, but contains no facsimile time or date markings or a fax confirmation report.

Lloyd’s also alleges that on August 11, 2004, it sent another letter to Mr. Lee discussing the “X-wind” problem. However, the typed portion of this letter discusses only the increased replacement cost and does not mention the “X-wind” problem at all. At the bottom of the letter is a handwritten notation stating, “[h]ome needs to be X-wind. Inspection report states home is 1½ miles to the gulf.” No evidence was presented as to whether the handwritten entry was added to the letter prior to the time it was allegedly sent or who wrote it. More importantly, the record does not establish whether either of the above-mentioned documents were ever actually faxed or mailed to John Lee Insurance. Mr. Lee was never deposed nor was the individual who allegedly sent the letters. Ms. Graham contends that she had never seen either of these letters and was never informed of their existence by Mr. Lee, assuming that he did get them.

On August 13, 2004, Hurricane Charley struck the gulf coast of Florida causing damage to Ms. Graham’s home. Three days after the hurricane, on August 16, 2004, Levings sent Mr. Lee a change endorsement deleting wind damage coverage from Ms. Graham’s policy. Meanwhile, having suffered wind damage from Hurricane Charley, and purportedly without notice that her policy would not cover damage caused by the hurricane, Ms. Graham submitted a claim. Lloyd’s denied the claim on the basis that wind damage was excluded. Ms. Graham filed suit. The trial court ordered the parties to nonbinding arbitration. The arbitrator found that (1) there was a material ambiguity in the homeowner’s policy application with respect to the definition of “gulf and/or distance to gulf,” (2) Lloyd’s waived its coverage defenses by failing to notify its insured after having actual or constructive knowledge of the (alleged) actual distance to the gulf for more than thirty days prior to the date of the loss, and (3) Ms. Graham’s losses were covered losses under the policy of insurance. After the arbitrator issued his decision in favor of Ms. Graham, Lloyd’s filed a motion for trial de novo, which the trial court granted. Lloyd’s then filed a motion for summary judgment based on its assertion that Ms. Graham had made a material misrepresentation in her application with regard to the distance to the gulf. After a hearing, the trial court granted the motion.

We review a trial court’s grant of a party’s motion for summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). The burden is on the moving party to show conclusively that the nonmoving party cannot prevail. Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989). “If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Id. “The presumption of correctness generally applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence.” Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400-01 (Fla. 2d DCA 2004).

The basis of Lloyd’s motion for summary judgment was its assertion that Ms. Graham indicated in her insurance application that her home was three miles from the gulf, when in fact it was less than two miles from the gulf. Lloyd’s asserts that this is a misrepresentation material to the risk and that it would not have issued the policy with wind damage coverage had the true facts been known. Ms. Graham disputes the calculation of the actual distance, asserts that the application language is ambiguous, and alleges that Lloyd’s waived any defenses to coverage by sitting on its knowledge of the claimed defense for over a month and failing to notify her of the coverage question and/or failing to issue a change endorsement until after the hurricane had passed.

DISTANCE TO THE GULF

Lloyd’s relied on the report of an independent inspector who indicated that he measured the distance on a map and came up with one and one-quarter miles. During his deposition, the inspector stated that he also drove to the beach from Ms. Graham’s home and found the distance to be about one and one-quarter miles. However, Ms. Graham points out that the inspector, by his own admission, had stopped at Clam Beach Park, which is as far as one can go by car on that route. According to the testimony and affidavit of another witness, the distance to the actual shoreline from where the Lloyd’s inspector stopped is another three-quarters of a mile. Thus, argues Ms. Graham, even by Lloyd’s agent’s attempt to drive to the beach, the distance is at least two miles. She contends that because Lloyd’s would have issued the policy as long as the distance was over two miles, any misrepresentation which might be attributed to Ms. Graham’s claim that her home was three miles from the gulf instead of two would not be material to the risk.

Following arguments of counsel, the trial court announced it was granting the motion for summary judgment but the court did not explain its decision. The written order contains no findings of fact or conclusions of law. No evidence as to the actual distance was presented during the hearing on the motion for summary judgment, and the depositions and affidavits attached to the pleadings contain contrary claims.

Whether Ms. Graham’s answers to questions on the application for insurance constituted misrepresentations is normally a question for the finder of fact. “[T]he insured’s representations normally constitute a disputed issue of fact for the trier of fact’s resolution regardless of how obviously false or material the representations may be.” Anderson v. Armor Ins. Co., 674 So.2d 174, 175 (Fla. 2d DCA 1996) (citing Beneby v. Midland Nat’l Life Ins. Co., 402 So.2d 1193 (Fla. 3d DCA 1981)). When the evidence is not conclusive, the accuracy of the answers given by the insured and the insured’s misrepresentations are matters of fact for the jury’s determination. Id. (citing Patterson v. Cincinnati Ins. Co., 564 So.2d 1149, 1151 (Fla. 1st DCA 1990)). Although Lloyd’s asserted that Ms. Graham’s home was less than two miles from the gulf, because the actual distance to the shoreline from Ms. Graham’s home is still in dispute, this question remains a disputed issue of material fact.

AMBIGUITY

Ms. Graham also contends that the application is ambiguous. The application asks only, “distance to gulf.” It does not explain the meaning or purpose of this question or spell out the means by which the applicant is to determine or estimate the distance. Ms. Graham testified that she did not know any other way to calculate that distance other than according to her own experience driving (and on one occasion walking) there. Lloyd’s counters that there is only one logical interpretation of this question on the application, which is that it seeks the “as the crow flies” distance to the shoreline for purposes of determining eligibility for wind damage coverage. Ms. Graham responds that she is not sophisticated in insurance matters and had no way of knowing the importance of this question or its meaning.

We agree that the question as presented on the application is ambiguous and susceptible to differing interpretations. It is undisputed that there is no direct route of travel from Ms. Graham’s home to the shoreline. We question whether the average person in Ms. Graham’s position should know that she must measure the distance to the shoreline “as the crow flies” or even know how to accomplish such a measurement, as opposed to simply relying on her experience traveling the shortest route thereto or estimating that distance.

After all, the man on the street purchases his insurance policy in very much the same way that he purchases his automobile or his reaper or other chattels. He knows no more about the making of a contract of insurance than he does about the making of an automobile, and he naturally relies upon the skill and good faith of those who hold themselves out to be experts in such matters, by advertising their wares for sale. It would seem to be the clear duty of the insurer, professing to draw an instrument protecting the applicant’s property against certain defined perils, to exercise due diligence to supply a policy which will effect the purpose intended. Any damage caused to the applicant through the agent’s mistakes or negligence in making inquiries that he should know to be pertinent should rest on the insurer.

Am. S. Life Ins. Co. v. Hardy, 202 So.2d 98, 102 (Fla. 4th DCA 1967) (Cross, J., dissenting) (quoting Vance on Insurance, § 89 (3d ed.1951)), quashed, 211 So.2d 559, 561 (Fla.1968).

Ambiguities in an application for insurance are construed liberally in favor of the insured and strictly against the insurer who prepared the policy. See Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993). Where the terms of a contract are disputed and reasonably susceptible to more than one construction, an issue of fact is presented which cannot properly be resolved by summary judgment. Chhabra v. Morales, 906 So.2d 1261, 1263 (Fla. 4th DCA 2005); Strama v. Union Fid. Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001).

We conclude that because reasonable persons could disagree as to the meaning of the distance question as stated on the application or on how to measure that distance, summary judgment was inappropriate.

NOTICE & WAIVER

Ms. Graham contends she never received notice of Lloyd’s intention to cancel the wind damage coverage in her policy. Lloyd’s contends that it notified Mr. Lee of the problem and that Mr. Lee was Ms. Graham’s agent; therefore, notice to Mr. Lee was effective as notice to Ms. Graham. Ms. Graham denies that Mr. Lee was her agent and further argues that, if anything, Mr. Lee was Lloyd’s agent.

We first note that once Lloyd’s had knowledge of a possible defense to the wind damage coverage provision of the policy, it had a duty to notify Ms. Graham of its intention to cancel that coverage in her policy. Cat ’N Fiddle, Inc., v. Century Ins. Co., 213 So.2d 701, 704 (Fla.1968); Best Meridian Ins. Co. v. Tuaty, 752 So.2d 733, 735 (Fla. 3d DCA 2000). Whether notice to Mr. Lee constituted effective notice to Ms. Graham depends on whether Mr. Lee was Ms. Graham’s agent. Although a broker is usually considered the agent of the insured during the process of procuring insurance, Amstar Ins. Co. v. Cadet, 862 So.2d 736, 740 (Fla. 5th DCA 2004), once the policy has been issued, the relationship between the insured and the broker is severed. See Cat ’N Fiddle, 213 So.2d at 704-05.

[W]hen an insurer has failed to give personal notice to the insured, but seeks nevertheless to establish cancellation on the theory that it effected notice to the insured’s agent, it is incumbent on the insurer to demonstrate that the scope of the agent’s authority encompassed the authority to perform the act sought to be charged to the agent’s principal.

Id. In order to establish the existence of an agency relationship, three elements are necessary: (1) acknowledgement by the principal that the agent will act on his or her behalf, (2) acceptance by the agent, and (3) control by the principal over the agent’s actions. Amstar, 862 So.2d at 741. Alternatively, “such authority may be presumed from a long course of dealing between the parties.” Cat ’N Fiddle, 213 So.2d at 704. In this case, the record contains no evidence confirming an ongoing agency relationship between Ms. Graham and Mr. Lee. Ms. Graham testified in deposition that she did not know Mr. Lee at all and only chose his insurance agency to obtain the insurance because of its proximity to her home.

It is a well-settled rule that a broker or agent employed by an owner to procure a policy of insurance on property is not authorized to accept notice of the cancellation of such policy. His employment is at an end when he procures the insurance, and the subsequent notice to him by the insurance company of the cancellation of its policy is no notice to the insured.

Cat ’N Fiddle, 213 So.2d at 704 (quoting Stuyvesant Ins. Co. v. Barkett, 226 Ky. 424,11 S.W.2d 87, 89 (1928)).

Finally, the fact that Levings was apparently relying on Mr. Lee to submit the requested change endorsements arguably reflects that it considered Mr. Lee its agent, not Ms. Graham’s. Indeed, it is unclear why Levings requested that Mr. Lee prepare a change endorsement to the policy when it appears that Levings, as Lloyd’s agent, had full authority to issue the necessary changes unilaterally without consulting Mr. Lee. In fact, Levings finally did issue the change endorsement on August 16, 2004, three days after Hurricane Charley had done its damage.

We conclude that Lloyd’s has failed to prove that Mr. Lee was Ms. Graham’s agent for the purpose of Lloyd’s notice of its intent to cancel the wind damage coverage of her homeowner’s policy. In addition, as noted above, the record does not conclusively establish that Lloyd’s actually notified Mr. Lee of the problem.

WAIVER

Ms. Graham contends that by failing to give notice for over sixty days and waiting until after the hurricane had passed to issue the policy change endorsement, Lloyd’s waived its defense to the wind damage coverage.

[A]n insurance company should not be permitted to lull the assured into a false sense of security by accepting premiums after knowledge, either actual or constructive, of facts sufficient to avoid the policy, and then when the risk eventuates assert as a basis for escape from liability the existence of facts or conditions of which they were, or should have been, previously aware.

Hardy, 211 So.2d at 561 (citing Johnson v. Life Ins. Co. of Georgia, 52 So.2d 813, 816 (Fla.1951)). “[I]t is equally well settled in insurance law that, when an insurer has knowledge of the existence of facts justifying a forfeiture of the policy, any unequivocal act which recognizes the continued existence of the policy or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof.” Johnson, 52 So.2d at 815.

Ms. Graham has raised a legitimate question of waiver and estoppel. The policy was issued with an effective date of coverage of June 9, 2004. The inspection report noting the distance discrepancy was prepared June 27, 2004. According to the record, Lloyd’s first alleged attempt to notify Mr. Lee of the problem was July 12, 2004. Its second alleged attempt to communicate with Mr. Lee was August 11, 2004. It was not until August 16, 2004, over two months since the issuance of the policy and three days after Hurricane Charley hit that Lloyd’s issued the coverage change endorsement. As noted above, neither our statutes nor our case law define what would constitute waiver under the facts of this case. Ms. Graham also asserts that had she been given timely notice of the wind damage coverage issue, she may have been able to secure other coverage before the hurricane hit. Therefore, whether Lloyd’s actually waived its coverage defense in this case is a question for the finder of fact which cannot be resolved in a summary judgment proceeding. Mut. of Omaha Ins. Co. v. Eakins, 337 So.2d 418, 419-20 (Fla. 2d DCA 1976); Woodruff v. Gov’t Employees Ins. Co., 669 So.2d 1114, 1115 (Fla. 1st DCA 1996).

Based on the above, we conclude that there are unresolved issues of material fact in this case with regard to actual distance, ambiguity of the “distance” provision in the application, notice, and waiver; all of which should have precluded summary judgment. We therefore reverse the trial court’s grant of summary judgment in favor of Lloyd’s and remand for further proceedings consistent with this opinion.

Reversed.

STRINGER and SILBERMAN, JJ., and GROSS, RAYMOND 0., Associate Judge, Concur.

      . "X-wind” appears to mean “delete wind damage coverage.”

      . We can find no statutory or other legal basis establishing thirty days as a waiver of a coverage defense in a first party claim such as this one. Section 627.426(2)(a), Florida Statutes (2004), provides that a liability insurer may not deny coverage based on a particular coverage defense unless, within thirty days after the liability insurer knew or should have known of the defense, written notice of reservation of rights to assert the defense is given. There is no corresponding statute applicable to first party property damage claims. Since the period of time in question in this case was over thirty days, we assume this was simply the period of time the arbitrator felt was sufficient to establish waiver under the facts of this case.

      . Lloyd’s underwriting guidelines prohibit underwriting wind damage coverage for homes within two miles of the shoreline.

      . Hardy involved an alleged misrepresentation on an application for insurance as to the health of the insured. When the insured died the insurer denied coverage. The trial court directed a verdict in favor of Hardy. American Southern appealed. The Fourth District held that "[t]he insured was not in good health and in the absence of a showing of waiver or estoppel on the part of the company, the policy never became effective,” 202 So.2d at 100, and reversed the trial court, directing judgment in favor of the insurer. Judge Cross dissented. The supreme court, in quashing the Fourth District's decision, specifically agreed with Judge Cross's dissenting opinion.

      . The actual date the report was forwarded to the Levings Group is not clear from this record, although the president of the Levings Group testified it must have been received before July 12, 2004.


text:
    Yovall AUGOSHE, Appellant, v. Debra LEHMAN, Appellee.
    No. 2D06-181.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.
    Leslie Telford of Klaus & Telford, P.A., Sarasota, for Appellant.
    Edward B. Sobel of Edward B. Sobel, P.A., Bradenton, for Appellee.
   PER CURIAM.

Yovall Augoshe, the husband, appeals an order awarding Debra Lehman, the wife, attorneys’ fees, suit. money, and costs stemming from the parties’ dissolution of marriage and awarding temporary attorneys’ fees, suit money, and costs for the appeal of the dissolution judgment.

In Augoshe v. Lehman, 962 So.2d 398 (Fla. 2d DCA 2007), we reversed one portion of the amended final judgment of dissolution and remanded with instructions to the trial court to modify the equitable distribution plan. In light of that decision, we reverse the awards of attorneys’ fees, suit money, and costs and temporary attorneys’ fees, suit money, and costs. On remand, after the equitable distribution plan has been modified, the trial court shall reexamine the awards in view of the modified equitable distribution plan and other pertinent factors under section 61.16, Florida Statutes (2004).

Reversed and remanded with instructions.

CASANUEVA, DAVIS, and CANADY, JJ., Concur.


author: STRINGER, Judge.

text:
    Janiero CRANKFIELD, Sr., a/k/a Janiero R. Crankfield, Appellant, v. Krystal YELDON; Edwin B. Jagger, Esq.; Battaglia, Ross, Dicus & Wein, P.A., Marvin L. Blair; Bakers Roofing, Inc.; and Troy Fain Insurance, Inc., Appellees.
    No. 2D06-591.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 2007.

      Douglas M. Buchwalter, Clearwater, for Appellant.
    Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker P.A., St. Pe-tersburg, for Appellees Edwin B. Jagger, Esq., and Battaglia, Ross, Dicus & Wein, P.A.
    No appearance for Appellees Krystal Yeldon, Marvin L. Blair, Bakers Roofing, Inc., and Troy Fain Insurance, Inc.
   STRINGER, Judge.

This appeal stems from a probate matter in which Edwin B. Jagger of Battaglia, Ross, Dicus & Wein, P.A. (“Battaglia, Ross”) served as the attorney for the estate of Janiero Crankfield, Sr.’s, deceased minor son (“the Estate”). After the proceeds of the Estate were distributed entirely to the child’s mother, who also served as the personal representative of the Estate, Crankfield filed a petition to set aside the order approving the distribution. Crankfield named several parties as respondents in the petition, including Jagger and Battaglia, Ross. The trial court granted their motion to dismiss the petition, and Crankfield now seeks review of the final judgment which ensued.

Crankfield concedes that his petition failed to seek any relief against Jagger and Battaglia, Ross, and we affirm the final judgment on this basis. We note that the trial court granted Jagger and Battaglia, Ross’s motion to dismiss on two other bases, but we expressly decline to reach those issues. Because further proceedings may ensue between Crankfield and the Estate, we note that this opinion does not constitute law of the case on any issues other than those ruled on herein. See Smith v. City of Fort Myers, 944 So.2d 1092, 1094 (Fla. 2d DCA 2006).

Affirmed.

SALCINES and CANADY, JJ., Concur.


author: MONACO, J.

text:
    Bobby L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2389.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.
    Bobby L. Jackson, Florida City, pro se.
    No Appearance for Appellee.
   MONACO, J.

During the pendency of the appeal of the denial of his motion for post conviction relief pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, the appellant, Bobby L. Jackson, filed an appeal from a second order entered by the trial court that again denied the same motion, but using different language to do so. It is not clear from the record why the second order was entered. Because the initial order was already on appeal, however, the trial court was without jurisdiction to enter the second denial order. See Tompkins v. State, 894 So.2d 857, 859 (Fla.2005). Accordingly, we vacate the order of the trial court dated June 22, 2007 and dismiss the instant appeal.

ORDER VACATED. APPEAL DISMISSED.

TORPY and LAWSON, JJ., concur.


text:
    Danton PATRICK, Petitioner, v. STATE of Florida and Ric L. Bradshaw, Palm Beach County Sheriff, Respondents.
    No. 4D07-3628.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 2007.
    Carey Haughwout, Public Defender, Daniel Cohen and Carol Bickerstaff, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

The petitioner filed for a writ of habeas corpus. He argues that the trial court improperly increased his bond sua sponte. We agree and grant the petition.

The trial court found probable cause and set bond in petitioner’s case at the first appearance hearing. Not long after the hearing ended and after petitioner was outside the courtroom, a disturbance could be heard by those inside the courtroom. The judge inquired about the noise, which was apparently someone’s voice. An unidentified person told the judge that petitioner had been “very verbal” on his way to the holding cell. The court then stated:

I m going to modify his release conditions. The court finds that an individual who can’t comport themselves in court— the court has limited confidence he’ll be able to comply with these conditions.

Over the defense counsel’s objection, the trial court increased petitioner’s bond sua sponte.

A trial court does not have the authority to increase bond on its own motion. Sueliman v. Jenne, 935 So.2d 120 (Fla. 4th DCA 2006); Montgomery v. Jenne, 744 So.2d 1148 (Fla. 4th DCA 1999); Cousino v. Jenne, 717 So.2d 599 (Fla. 4th DCA 1998). In addition, once bond has been set, any modification of bond necessitates notice be given to the defendant. Fla. R.Crim. P. 3.131(d)(2); Flemming v. Cochran, 694 So.2d 131, 133 (Fla. 4th DCA 1997).

The trial court abused its discretion when it sua sponte increased petitioner’s bond after petitioner had left the courtroom and without giving petitioner notice. Accordingly, we grant the petition for writ of habeas corpus and quash the order increasing bond. The case is remanded for reinstatement of the bond and conditions originally set.

SHAHOOD, C.J., STEVENSON and MAY, JJ., concur.


text:
    Scott J. INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-163.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.
    Scott J. Ingram, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 937 So.2d 1142 (Fla. 5th DCA 2006).

GRIFFIN, THOMPSON and EVANDER, JJ., concur.


text:
    Isaac WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-931.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2007.
    Kurt Erlenbach, Titusville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Harper v. State, 955 So.2d 617 (Fla. 5th DCA 2007); Russell v. State, 676 So.2d 1026 (Fla. 3d DCA 1996).

PALMER, C.J., GRIFFIN and THOMPSON, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    Anthony G. ROGERS, M.D., Appellant, v. CHICAGO INSURANCE COMPANY, Appellee.
    No. 4D06-1255.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.

      Douglas E. Thompson, West Palm Beach, for appellant.
    William H. White, Jr. and Jeffrey M. Koonankeil of Bonner Kiernan Trebach & Crociata, LLP, Washington, D.C., for ap-pellee.
   On Motion for Rehearing

PER CURIAM.

We grant appellee’s motion for rehearing, withdraw our prior opinion, and substitute the following in its place.

A medical doctor sued his professional liability insurer for failing to exercise good faith in settling a claim against him. He claimed that his insurance company failed to undertake the necessary investigation pursuant to section 766.106, Florida Statutes, and settled a claim which was completely defensible, causing him damages, including the insurance company’s subsequent refusal to renew his policy. The trial court dismissed the claim, finding that neither section 766.106 nor section 627.4147, upon which the doctor relied in making his claim, created a private cause of action against the insurer. We affirm.

Dr. Rogers, the appellant, purchased medical malpractice insurance coverage from appellee, Chicago Insurance Company (“Chicago”). In April 2002, the estate of a former patient served Dr. Rogers with a notice of intent to initiate litigation. Pursuant to section 766.106, Chicago had 90 days to conduct a presuit investigation of the claim. According to Dr. Rogers, Chicago did not initiate any investigation until approximately a week prior to the expiration of the period. It contacted a doctor to review the materials provided by the plaintiff, but did not contact Dr. Rogers for any other materials. With time running out, it elected to settle the claim instead of defending.

Rogers filed suit against his insurance company, claiming that it had failed to exercise good faith in its conduct of the presuit investigation and settlement. He alleged violations of both the presuit investigation procedure pursuant to section 766.106 and violation of the duty of good faith settlement in the best interests of the insured under section 627.4147. Rogers alleged that if Chicago had properly investigated the claim, it would have discovered that the suit was completely defensible. Rogers alleged that as a result of Chicago’s settlement of the claim, it refused to renew his policy of insurance, causing Rogers to pay substantially more in premiums. Chicago moved to dismiss, claiming that neither statute provided a private right of action and that Chicago’s settlement within the policy limits precluded an action against it under the holding of Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174 (Fla.1992). The trial court agreed and dismissed Rogers’ complaint, prompting this appeal.

We begin our analysis of this issue with an examination of the insurer’s obligation of good faith and Shuster. Our supreme court has long recognized the duty of the insurer to exercise good faith in handling claims against its insured. In Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980), the supreme court outlined this duty:

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take tp avoid same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.

Id. at 785 (citations omitted). The court further noted:

An insurer cannot escape liability for breach of the duty of good faith by acting upon what it considers to be its interest alone. An insurer with control over defense and settlement must at all times act in good faith....

Id. at 786. Where that duty is breached, the insured has a cause of action against the insurer.

In Shuster, the court limited the holding of Boston Old Colony where the policy itself provided that the insurer had the authority to investigate and settle as it “deems expedient.” There, the insurance company settled three medical malpractice claims against Shuster within the policy limits, but the settlements resulted in Shuster being unable to obtain medical malpractice insurance, which limited his practice. He sued claiming bad faith. The trial court dismissed, and this court affirmed in Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 570 So.2d 1362 (Fla. 4th DCA 1990), certifying a question to the supreme court.

The supreme court determined that where the policy contained the “deems expedient” provision with respect to settlement, an insurer may settle a claim within the policy limits even where the claim was frivolous and without consideration of the insured’s interest. Although Boston Old Colony requires the insurer to act in the best interests of the insured, the Shuster court relied on contract principles in determining that the insurer could settle in its own best interests:

The language of the provision is clear and the insured was put on notice that the agreement granted the insurer the exclusive authority to control settlement and to be guided by its own self-interest when settling the claim for amounts within the policy limits. The obvious intent behind placing the provision in the agreement was to grant the insurer the authority to decide whether to settle or defend the claim based on its own self-interest, and this authority includes settling for the nuisance value of the claim. Therefore, we interpret the provision as granting the insurer the discretion to settle cases for amounts within the policy limits, regardless of whether the claim is frivolous or not. The parties have expressly contracted with respect to the subject matter and this Court declines to rewrite the policy when the insurer merely exercises its rights under the agreement.

591 So.2d at 176-77. Shuster thus stands for the proposition that, although there is a duty on behalf of an insurer to exercise good faith in the settlement of claims, including settlements within the policy limits, this duty may be limited contractually by a provision which permits the insurer to settle claims as it deems expedient or in its self-interest. However, even in Shuster, the court found some exceptions to this rule, and, under certain circumstances, a settlement within the policy limits would be considered in bad faith where an insurer settled the claims of one party in a case where there were multiple parties and claims, or prevented the insured from pursuing a counterclaim. Id. at 177.

Neither this court nor the Florida Supreme Court determined what effect section 627.4147(1) would have on the case, as the policy in that case was issued prior to the statute’s enactment. That statute, passed in 1985, provides that a medical malpractice policy cannot include a provision giving the insured veto power over a settlement within the policy limits.

(1) In addition to any other requirements imposed by law, each self-insurance policy as authorized under s. 627.357 or s. 624.462 or insurance policy providing coverage for claims arising out of the rendering of, or the failure to render, medical care or services, including those of the Florida Medical Malpractice Joint Underwriting Association, shall include:
(b)l .... a clause authorizing the insurer or self-insurer to determine, to make, and to conclude, without the permission of the insured, any offer of admission of liability and for arbitration pursuant to s. 766.106, settlement offer, or offer of judgment, if the offer is within the policy limits. It is against public policy for any insurance or self-insurance policy to contain a clause giving the insured the exclusive right to veto any offer for admission of liability and for arbitration made pursuant to s. 766.106, settlement offer, or offer of judgment, when such offer is within the policy limits. However, any offer of admission of liability, settlement offer, or offer of judgment made by an insurer or self-insurer shall be made in good faith and in the best interests of the insured.

(emphasis supplied). Thus, section 627.4147(1) requires malpractice insurance policies to grant the insurer the sole authority to settle a claim where settlement is within policy limits. However, the statute also sets a standard for the insurer’s exercise of its authority, requiring that such a settlement be made in the best interests of the insured.

In Wakulla County v. Davis, 395 So.2d 540, 543 (Fla.1981), our supreme court explained:

[W]hen the meaning of a statute is at all doubtful, the law favors a rational, sensible construction. Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932). Courts are to avoid an interpretation of a statute which would produce unreasonable consequences. Id.

If an insurer and a claimant settle over the objection of the insured, and the insured can sue the insurer for collateral damages, how does the jury determine who prevails? Such a trial would have to involve a comparison of the merits of the medical malpractice claim to the collateral damages the insured may incur. This would be like asking a jury to decide between apples and oranges, because, since the insured’s damages are collateral as to the malpractice claim, one has nothing to do with the other. Roger’s interpretation would result in unreasonable consequences, and we are unwilling to adopt it. Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (“[A] literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.”).

A different rule of statutory construction provides that courts should avoid statutory interpretations which would render part of a statute meaningless. State v. Goode, 830 So.2d 817 (Fla.2002). Roger’s interpretation of the statute would make its primary purpose, which is not to allow insured’s to veto malpractice settlements, meaningless. We say that because, if an insurer did settle with the claimant over the objection of the insured, the insurer would then be exposed to unlimited damages for increased insurance premiums, inability to get insurance, or other far removed and unknown collateral damages. No insurer would take that risk and the objecting insured would thus have the veto which the statute purports to eliminate.

We conclude that the statutory language, requiring that any settlement be in the best interests of the insured, means the interests of the insured’s rights under the policy, not some collateral effect unconnected with the claim. For example, the insured may have a counterclaim in the malpractice lawsuit for services rendered, which should not be ignored. Nor should the insurer be able to settle with the claimant and leave the doctor exposed to a personal judgment for contribution by another defendant in the same case. By including the language that any settlement must be in the best interest of the insured, the legislature was merely making it clear that, although it was providing that an insured cannot veto a settlement, the power to settle is not absolute and must still be in the best interests of the insured under Boston Old Colony and Shuster

We accordingly affirm the dismissal of appellant’s amended complaint.

STEVENSON and TAYLOR, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I respectfully dissent, because I believe that the majority construction writes out of the statute the obligation of the insurer to settle within the policy limits “in good faith and in the best interests of the insured.” § 627.4147(l)(b)l., Fla. Stat. (emphasis added). In Unruh v. State, 669 So.2d 242, 245 (Fla.1996), our supreme court explained:

As a fundamental rule of statutory interpretation, “courts should avoid readings that would render part of a statute meaningless.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992); Villery v. Florida Parole & Probation Comm’n, 396 So.2d 1107 (Fla.1980); Cilento v. State, 377 So.2d 663 (Fla.1979). Furthermore, whenever possible “courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe, 604 So.2d at 455. This follows the general rule that the legislature does not intend “to enact purposeless and therefore useless, legislation.” Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962).

The majority’s interpretation renders this portion of the statute useless.

The disputed section of 627.4147(1) was enacted as part of a major medical malpractice reform in 1985. Ch. 85-175, § 6, Laws of Fla. As in all such legislation, a balancing of interests occurred between the medical community, patients injured by medical malpractice, and the insurance industry. At the time, the common law rule regarding an insurance company’s duty to its insured was set forth in Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). The duty of good faith described therein “involves diligence and care in the investigation and evaluation of the claim against the insured _” Id. at 785.

Boston Old Colony did not hold that an insurer could settle within the policy limits regardless of the objection of the insured. That expansion of the right of the insurer was made after the passage of section 627.4147(1) by the supreme court in Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 591 So.2d 174 (Fla.1992). Shuster, however, based its analysis on contract principles and specifically noted that it did not address the effect of the statute.

The majority suggests that Rogers’s interpretation would render meaningless part of the statute in that an insured could veto malpractice settlements by objecting. I do not agree. If the insurer has fulfilled its obligation of good faith in investigating and evaluating the case, and it has considered the best interests of the insured, then it can settle the case. The insured cannot veto the settlement. The standard for the insurer in determining its duty is the same as set forth in Boston Old Colony:

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.

Id. at 785 (emphasis added). This is an objective standard, not a subjective one. The fact that an insured might threaten suit should not control the interpretation of a statute. If the insurer has acted in accordance with this duty, it is not liable.

The statutory obligation of good faith and best interest provides the only protection to a doctor against insurance companies who may settle unfounded cases simply because it is cheaper to settle than to defend. That is a decision in the insurer’s own interests, which it could do under Shuster, but is not consistent, in my view, with its duties under section 627.4147. The majority opinion takes this statutory protection away from the physician. I would read the statute as written and allow Dr. Rogers’s cause of action to proceed.

      . Although they are distinguishable, three cases from this court bear mentioning. In Bland v. Cage, 931 So.2d 931 (Fla. 4th DCA 2006), review denied, 948 So.2d 758 (Fla. 2007), the physician was objecting to the settlement of the malpractice claim, and this court held, without addressing section 627.4147, that the physician had no cause of action where the settlement was within the policy limits. In Babic v. Physicians Protective Trust Fund, 738 So.2d 442 (Fla. 4th DCA 1999), the physician sued his insurer over the settlement of a malpractice claim, arguing that the insurer’s improper report to the state, allocating all of the liability and payment to him, injured him. We held that under the reporting statute, section 627.912, Florida Statutes (1991), the insurer had immunity. In Cohen v. Freeman, 914 So.2d 449 (Fla. 4th DCA 2005), we held that an objecting physician could not prevent his malpractice insurer from settling with the claimant.


author: WARNER, J.

text:
    Michael GARRETT, Appellant, v. MIAMI TRANSFER COMPANY, INC., a Florida corporation, and Florida Power & Light Company, a Florida corporation, Appellees.
    No. 4D06-82.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 2007.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and F. Kendall Slinkman of Slinkman & Slinkman, P.A., Jupiter, for appellant.
    Rosemary B. Wilder and Philip Glatzer of Marlow, Connell, Valerius, Abrams, Adler, Newman, Lewis & Blevins, Coral Gables, for appellees.
   On Motion for Rehearing

WARNER, J.

We grant the appellant’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place, which changes the directions on remand.

The issue presented in this case is whether a court errs in refusing to grant an additur when the jury makes an award of future medical expenses but fails to award future pain and suffering damages, and the evidence is not only undisputed that the accident caused the plaintiffs injuries but also that the plaintiff will continue to suffer as a result of the injuries. We hold that the court erred in failing to grant an additur, because the award was inadequate as a matter of law. We therefore reverse for a new trial on damages.

The plaintiff, Michael Garrett, who was twenty-three years old at the time of his accident, worked for Bar Tech, a labor force hired by Florida Power and Light (“FPL”) to decommission a transformer on FPL’s property. Decommissioning is the process of scrapping or junking a transformer. When a transformer blows out, it must either be rebuilt or scrapped. Transformers generally are scrapped in the field because of their massive size— some units weigh nearly 800,000 lbs.

On the day of the accident, Garrett’s supervisor instructed him to climb to the top of the transformer to assist with removing the radiators from the unit. When he did so, the transformer tipped slightly, causing Garrett to fall about thirteen feet to the ground, injuring his hip, arm and wrist. Immediately after his fall, the plaintiff was taken to the hospital where he was treated by Dr. Jay Dennis, an orthopedic surgeon. As a result of the plaintiffs fall, the plaintiff sustained a complex left distal radius fracture in his wrist, a closed left distal humerus fracture in his arm, and a left hip injury. The wrist fracture required stabilization with an external fixation device, requiring pins in the bone to attach the external device. This device remained in place for eight weeks. The arm fracture required a cast and healed in about six weeks.

The evidence regarding the extent of Garrett’s injuries and disabilities as a result of the accident was undisputed. Both plaintiff and defense experts essentially agreed on this issue.

Garrett developed carpal tunnel syndrome after his initial wrist injury and required two different surgeries to relieve numbness. In 2002 he was released for light duty work, and he went back to driving heavy equipment. At trial his treating physician, Dr. Dennis, rated him with a 16% whole body functional impairment for the wrist injury. The doctor did not expect Garrett to get any better. Dr. Dennis testified that Garrett may need additional surgery in the future should he continue to experience problems with his wrist. And if he continued in his manual labor employment, the probability of additional surgery was greater. Garrett may also develop degenerative arthritis in his wrist.

Garrett saw Dr. Girard, another orthopedic doctor, with respect to the hip injury and was treated for tendonitis and bursitis during five visits in 2001 and then again for a flare-up in 2004. Dr. Girard testified that the condition would continue for the rest of Garrett’s life. Dr. Girard opined that Garret had a 2% functional impairment rating for the soft tissue hip injury. As part of his treatment, he received physical therapy, and the physical therapist testified that she expected the plaintiff to walk with a limp indefinitely. Dr. Girard prescribed anti-inflammatory medication. He testified that Garrett may also need cortisone injections to treat inflammation in his hip.

None of the defense testimony disputed Garrett’s injuries and disabilities. With respect to the wrist injury, defense expert Dr. Thebaut testified that Garrett sustained a 24% whole body impairment, a more significant impairment than found by Garrett’s own treating physician. Dr. Thebaut opined that Garrett would always have an abnormal sensation of numbness and tingling in his wrist. He did not believe that Garrett was malingering. He also agreed that future surgery was a fifty/fifty probability.

Garrett testified that he continued to experience pain and numbness in his wrist and occasionally in his hip, but it hurt only when he was working. His wrist hurts more during winter when his wrist gets cold. When it is cold, his nerves are easily irritated, and he feels like he is receiving an electronic shock when he tries to squeeze or grab things. And if someone bumps his arm in a certain area, it can cause a shock to go down his arm. Although he continues to work, he had problems with his hip and wrist on his last equipment operating job. He has been unable to engage in some of the more energetic recreational activities that he enjoyed prior to the accident, including bull riding, hog hunting, boxing, fishing, and weightlifting.

An occupational expert testified to both Garrett’s future loss of earning capacity, which he calculated at $2,000,000, and Garrett’s future medical expenses, which he put in a range of $38,000 to $131,250, based upon the cost of treatment for both the wrist and his hip. The higher amount included the cost of future surgery for the wrist and injections for the hip.

The jury found the defendants, except Bar Tech, negligent and Garrett comparatively negligent. The jury awarded $50,000 for past medical expenses, $130,000 for future medical expenses, $144,000 for past lost earning ability, and $26,000 for past pain and suffering, for a total of $350,000. However, it awarded nothing for future lost earning ability and nothing for future pain and suffering. Garrett immediately argued to the court that the damages awards as to future lost earning capacity and future pain and suffering were inadequate as a matter of law, and requested that the jury be instructed to re-determine at least those items. The court denied the request and also denied Garrett’s post-trial motion for additur and/or motion for a new trial on damages. In denying the motion for additur, the court stated that the amount awarded was supported by the evidence presented and that the jury’s arguable misallocation of the amount returned is no more than harmless error in light of the reasonableness of the bottom line amount. This appeal follows.

A trial court enjoys broad discretion in ruling on a motion for new trial:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.

Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1969) (citations omitted).

Related to a ruling on a motion for new trial is the trial court’s responsibility when considering a motion for additur or remit-titur “to review the amount” of a damage award “to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1), Fla. Stat. (2006). Section 768.74(5) sets forth the criteria that a court “shall consider” in “determining whether an award is excessive or inadequate.”

In Allstate Insurance Co. v. Manasse, 707 So.2d 1110 (Fla.1998), the supreme court relied on Cloud in determining that a verdict was not inadequate as a matter of law where the jury had awarded future medical expenses but no future non-economic damages. Instead, the judicial determination is whether the court abused its discretion, as set forth in Cloud. It applied that test in Manasse and quashed this court’s opinion, in which we had determined that the verdict awarding future medical expenses without an award of future non-economic damages was legally inconsistent. In Manasse the jury had determined that the plaintiff had suffered a permanent injury in an automobile accident. However, in its award of future medical expenses, the jury awarded only the exact amount requested by the plaintiff for palliative care. In approving the award, the supreme court explained that the jury could have concluded that the plaintiff had not proved that she would experience future pain and suffering by a preponderance of the evidence. The supreme court noted that the evidence was in dispute as to whether the plaintiff had suffered a permanent injury and whether her present complaints of pain were caused by other factors.

The supreme court approvingly quoted from Judge Klein’s dissenting opinion in Allstate Insurance Co. v. Manasse, 681 So.2d 779, 784-85 (Fla. 4th DCA 1996), which stated:

Future damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow, in my opinion, that an award of future medical expenses requires an award of noneconomic damages.
Our standard jury instructions do not require consistency in these verdicts. They allow a jury to return a verdict finding a permanent injury, but do not require an award of damages.

707 So.2d at 1111-12. The supreme court determined that its review of the trial court’s decision revealed no abuse of discretion. It thus quashed this court’s opinion.

Shortly after Manasse, the Third District relied on this rule of reasonableness in a case analogous to the present one. In Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708 (Fla. 3d DCA 1999), a jury awarded a plaintiff $32,485 for past lost earnings and medical expenses, and $521,000 for future lost earnings and medical expenses but nothing for future pain and suffering in spite of undisputed evidence of past surgery, a permanent injury to his knee and the need for future surgery and rehabilitation. Acknowledging Manasse’s instruction that the appellate court should apply the standard of reasonableness in the determination of whether the trial court abused its discretion in denying an additur, the court noted the prevailing rule that “[generally, where as [here], the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.” Id. at 710. Under such circumstances, the trial court’s denial of an additur is both unreasonable and an abuse of discretion. Id. at 711.

We adopted the inverse of the rule set forth in Dolphin when we held in Beauvais v. Edell, 760 So.2d 262, 264 (Fla. 4th DCA 2000) (en banc), that “where there is a dispute as to whether the injuries resulted from the accident, a verdict awarding only medical expenses does not require a new trial as a matter of law.” (Emphasis added). In Beauvais, the plaintiff alleged two injuries from an accident, but there was substantial evidence that neither was caused by the accident. The jury awarded a general verdict which did not itemize damages but which equaled the exact amount the plaintiff claimed as her medical expenses. The plaintiff requested an addi-tur for pain and suffering, but the trial court denied it. We held that the court did not abuse its discretion where the evidence was disputed. Where, however, the evidence was undisputed that the accident caused the injuries and the jury had made a specific award of past medical expenses but no past non-economic damages, we held that the court erred in failing to grant a new trial on past pain and suffering damages. See Katz v. Allstate Ins. Co., 905 So.2d 243 (Fla. 4th DCA 2005).

The theme of these and similar cases centers on the level of dispute in the evidence presented. “Where there is undisputed evidence supporting an award of damages and the jury fails to make such an award, it is error for the trial court to deny a motion for additur.” Ortlieb v. Butts, 849 So.2d 1165, 1167 (Fla. 4th DCA 2003). By contrast, “where the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, it is error for the trial court to veto the jury verdict by granting a motion for additur.” Id. The evidence in conflict may involve causation. See id. at 1167-68; Airstar, Inc. v. Gubbins, 668 So.2d 311, 313 (Fla. 4th DCA 1996); Moore v. Perry, 944 So.2d 1115 (Fla. 5th DCA 2006); Republic Servs, of Fla., L.P. v. Poucher, 851 So.2d 866, 872-73 (Fla. 1st DCA 2003); Mayo v. Gazarosian, 727 So.2d 1140 (Fla. 5th DCA 1999). The conflicting evidence may also involve the level of future pain and suffering. See Manasse, supra, (An-stead, J., dissenting) (noting that under the majority’s decision, an award of future palliative care does not require an award of future pain and suffering damages, even though such award indicates at least some future pain); Allstate Indem. Co. v. Clark, 736 So.2d 1 (Fla. 2d DCA 1998) (where evidence was disputed as to need for future medical expenses and future pain and suffering, court did not abuse its discretion in denying motion for additur/new trial); Gebis v. Oaks Condo. Ass’n, 937 So.2d 1284 (Fla. 4th DCA 2006) (where evidence was disputed regarding permanence of injury, plaintiffs contribution to injury, and plaintiffs suffering, and where the plaintiff was not affected at work, the trial court did not abuse its discretion in denying motion for new trial where jury awarded past medical expenses but no pain and suffering for foot injury).

Turning to the facts of the instant case, the evidence was undisputed that the accident caused Garrett’s injuries. He did not have pre-existing conditions which contributed to his injuries. The testimony of all the doctors was consistent, and even the defense expert, Dr. Thebaut, testified as to the need for future medical care for Garrett’s wrist injuries. Dr. Thebaut even testified that the numbness Garrett continued to experience was permanent. Dr. Thebaut gave Garrett a disability rating that was actually higher than the one ascribed by Garrett’s own doctor. The evidence was undisputed that Garrett also suffered injuries to his hip and he would continue to need treatment for flare-ups, indicating future pain.

In addition, the evidence was undisputed that while Garrett could continue to work, he suffered some pain while working. Many of his recreational activities had been curtailed by the accident, yet all doctors testified that Garrett was not malingering. Each anticipated that he would continue to have problems from these injuries.

The jury’s award of future medical expenses in the maximum amount supported by the testimony indicates that the jury fully expected Garrett to continue having flare-ups of both of his injuries, and the amount the jury awarded included additional surgery, indicating an expectation that it would be necessary. Unlike the award in Manasse, this award was not merely for palliative care. It provided for the most aggressive medical treatment to which the doctors testified. Thus, the amount awarded did not “bear[ ] a reasonable relation to the amount of damages proved and the injury suffered.” § 768.74(5)(d), Fla. Stat. (2006). Under these facts, we conclude consistent with Manasse and Dolphin Cruise, that the jury’s failure to award future non-economic damages was unreasonable and the trial court’s denial of additur was an abuse of discretion.

In denying the motion for additur, the trial court concluded that the award represented an arguable misallocation which was harmless error where the gross amount of the verdict was reasonable. The appellees support this view by citing two cases in which the court looked to the total verdict in deciding whether additur was appropriate. See Delva v. Value Rent-A-Car, 693 So.2d 574 (Fla. 3d DCA 1997), KMart Corp. v. Brocho, 776 So.2d 342, 343 (Fla. 3d DCA 2001). Both are distinguishable. In both KMart and Del-va, the jury awarded future medical expenses in excess of the maximum amount the evidence would support. The complaining party failed to request resubmission of the verdict for reconsideration by the jury, and the Third District found this waived the right to complain of the inconsistency or excessiveness on appeal. The court approved the jury award looking to the gross verdict and concluding that the jury simply misallocated some of the award to future medical expenses.

In this case, unlike both Delva and KMart, the medical expenses were not excessive based upon the testimony presented. Expert evidence supported the entire amount. The trial judge’s determination that part of the future medical expenses simply represented a misallocation required the trial court to reject the jury’s finding that Garrett would sustain those expenses in the future. The trial judge impermissibly acted as a seventh juror in deciding issues of fact reserved to the jury. Also unlike the two cited cases, Garrett did not waive his objection to the inconsistency, and he requested the matter be resubmitted to the jury to resolve the issue. The trial court refused the request.

Under these circumstances, where the undisputed evidence revealed that Garrett suffered a permanent injury requiring future medical care and treatment, where it was undisputed that Garrett would suffer future limitations on his physical activities, and where the jury’s verdict anticipated a future surgery, the trial court abused its discretion in denying the motion for addi-tur or new trial.

Garrett also raises a claim that the court improperly denied his motion to add a claim for punitive damages against FPL. We find this claim to be without merit.

We reverse and remand for a new trial on future non-economie damages. See ITT Hartford Ins. Co. of the Southeast v. Owens, 816 So.2d 572 (Fla.2002).

GROSS and TAYLOR, JJ., concur.