author: SUNDBERG, Justice.

text:
    Jean BURO, Petitioner, v. DING’S SOUTHLAND MEATS, Cosmopolitan Mutual Insurance Company, and the Industrial Relations Commission, Respondents.
    No. 51866.
    Supreme Court of Florida.
    Jan. 12, 1978.

      Laurence E. Windsor, of the Law Offices of Israel Abrams, North Miami Beach, for petitioner.
    Michael J. D’Agostino, of Pyszka, Kessler, Adams & Solomon, Miami, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari we are asked to review an order of the Industrial Relations Commission reversing a Workmen’s Compensation award for failure of the Judge of Industrial Claims to state sufficient facts for review by the Commission and for his failure to make a determination as to whether petitioner made a bona fide effort to obtain employment. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27, Florida Statutes (1975). In accordance with Florida Appellate Rule 3.10 e. we have dispensed with oral argument.

Petitioner sustained injuries arising out of and in the course of her employment as a cashier in a meat market when she slipped and fell on a greasy floor at her employer’s premises on June 12, 1975. Petitioner’s injuries affected her lower back, neck, shoulders, and legs. She was treated by several physicians approved by the carrier, including an orthopedic surgeon, until July 24, 1975, when the orthopedic surgeon concluded that she had reached maximum medical improvement. However, commencing August 13, 1975, petitioner came under the care of Dr. Kenneth Pollock, a chiropractic physician, because she continued to experience pain or discomfort. Dr. Pollock continued treating petitioner until December 12,1975, at which time he discharged her as having reached maximum medical improvement. In the interval between the injury and December 12, 1975, petitioner attempted on several occasions to resume her employment as a cashier but found that she was neither able to stand for protracted periods of time nor able to perform the bending required by the job. However, petitioner did return to work with her employer on December 15, 1975, performing bookkeeping functions, which permitted her to remain seated in the course of her job. In her capacity as bookkeeper, petitioner works three or four hours per day, receiving a salary of $50 per week. Petitioner’s weekly wage at the time of the injury was $100 per week.

Dr. Howard Kurzner, the orthopedic surgeon approved by the carrier, reexamined petitioner on December 9, 1975. Based on the reexamination, Dr. Kurzner reaffirmed his opinion that petitioner could have returned to work on July 24,1975, and opined that she was left with no permanent partial disability as a result of the industrial injury. Subsequent to December 12, 1975, Dr. Pollock referred petitioner to his associate, Dr. David Boschowitz, for disability evaluation in that Dr. Boschowitz was a board-certified chiropractic orthopedist. Based on the AMA Guide to Evaluation of Permanent Impairments, Dr. Boschowitz was of the opinion petitioner had sustained a ten percent permanent partial physical impairment of the body as a whole due to the industrial accident.

Pertinent to our review are the following portions of the order of the Judge of Industrial Claims:

“4. As a result of her accident, claimant suffered temporary total disability from June 13, 1975 to December 13, 1975, at which time I find she reached her maximum medical improvement. This finding is based on the testimony by deposition of Dr. Kenneth Pollock, notwithstanding the opinion of Dr. Howard Kurzner.
“5. Having found that the claimant had reached her maximum medical improvement on December 13, 1975, I further find that she has sustained a 10% permanent partial physical impairment of the body as a whole. This finding is made notwithstanding the opinion of Dr. Howard Kurzner, who indicated that the claimant had sustained no permanent disability, but is based on the testimony by deposition of Dr. David Boschowitz.
“6. The claimant is a 59 year old female who attended one year of high school and who also has a limited background as a dental assistant. Throughout most of her adult life she has worked in her capacity as a housewife although for approximately the last ten years she has been employed as a cashier and hostess in two restaurants, until her recent employment with the present employer with whom she was a cashier whose duties included waiting on customers at the meat market. She complains of low back pain as well as occasional pain in her neck and shoulders. She also complains of pain when she is required to do any heavy lifting, bending or standing for long periods of time. The claimant testified, and I so find, that she has returned to work with the employer, Dino’s South-land Meats, earning $50.00 per week in the capacity of a bookkeeper which is primarily a sedentary job and is compatible with her stated physical condition. Having considered the above stated age, education and industrial background together with the 10% permanent partial physical impairment rating, I find that the claimant sustained a 50% permanent partial disability based on a loss of future wage earning capacity. I recognize, and it should be noted, that the claimant’s husband is the president of the corporation which is the employer, and therefore, the claimant’s employment could be considered as sheltered. I find, however, that her employment is not sheltered and that her $50.00 per week income accurately reflects her earning capacity.”

Upon review by the Industrial Relations Commission, the following points were presented:

“1. Whether the Judge erred in finding that the claimant sustained a 50% permanent partial disability of the body on the basis of loss of earning capacity.
“2. Whether the Judge erred in finding that the claimant sustained a 10% permanent partial physical impairment of the body as a whole.
“3. Whether the Judge erred in finding that the claimant was disabled from June 13, 1975, to December 13, 1975.”

The commission reversed as to all three points because (i) the Judge of Industrial Claims made no finding as to criteria by which he found that the claimant sustained a fifty percent permanent partial disability based on a loss of wage earning capacity; (ii) the Judge of Industrial Claims made no determination as to whether the claimant had made a bona fide effort to obtain employment; and (iii) the order of the Judge of Industrial Claims did not show why he chose to accept the testimony of Drs. Pollock and Boschowitz rather than that of Dr. Kurzner. Consequently, the Industrial Relations Commission reversed the order of the Judge of Industrial Claims and remanded for the purpose of entering a further order in accord with their disposition.

With respect to points (i) and (iii), it is apparent that there is competent, substantial evidence in the record, which comports with logic and reason, to support the findings of the Judge of Industrial Claims. United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951). In our view, the findings of the Judge of Industrial Claims which are set forth in this opinion meet the requirements of Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973), even as refined by Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). In our estimation, the findings of ultimate fact recited in paragraph 6 of the order meet the criteria enunciated in Walter v. Electronic Products & Engineering Company, 248 So.2d 161 (Fla.1971). Likewise, we do not deem it essential, in view of the teachings of Pierce, supra, for the Judge of Industrial Claims to explain precisely why he accepts the testimony of one doctor and rejects that of another. In the case sub judice, it is clear that the Judge of Industrial Claims did not ignore or overlook the opinion testimony of Dr. Kurzner; he merely chose to accept the opinions of Drs. Pollock and Boschowitz instead. In view of the apparent expanded standard and scope of review in the Commission, demonstrated by the decisions of this Court in Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976), and Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975), it is incongruous to insist upon more elaborate findings of fact by the Judge of Industrial Claims as to matters such as are involved here.

Nor do we believe it was incumbent upon the Judge of Industrial Claims in this case to make an express determination as to whether petitioner made a bona fide effort to obtain employment. First, it is apparent that petitioner sought to return to her former employment as cashier on several occasions and was unable to perform the tasks inherent in that job. Second, at the time of the hearing before the Judge of Industrial Claims, petitioner was, in fact, employed in a more sedentary job. The Judge of Industrial Claims specifically found that petitioner’s employment as a bookkeeper was not sheltered employment. The record before the Judge of Industrial Claims contained competent, substantial evidence to support his finding of permanent disability based upon wage earning capacity. In the context of this case it would appear nonsensical to require petitioner to seek other employment in the open labor market. The evidence of petitioner’s employment history up to and including the date of the hearing was sufficient to shift the burden to respondents to prove the availability of other job opportunities in the open employment market. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960).

Respondents would justify the order of the Industrial Relations Commission upon the authority of Schafer v. St. Anthony’s Hospital, 327 So.2d 221 (Fla.1976). Respondents’ reliance on this decision is misplaced. First, there is a factual dissimilarity between Schafer and this case. The testimony of the claimant in Schafer was not competent as it concerned his loss of wage earning capacity, “when coupled with his failure to respond to offers to discuss available jobs with the employer.” Id. at 222. Here, petitioner returned to work with her employer, sought to perform the functions of her original employment and, when unable to do so, accepted a more sedentary job with the employer. Second, although Schafer recognizes authority in the Industrial Relations Commission to enter orders, interlocutory in nature, to perfect areas of a record before them which are insufficient, the holding of that decision cannot constitute authority for indiscriminate remands to the Judge of Industrial Claims where the record contains competent substantial evidence.

For the foregoing reasons, the petition for writ of certiorari is granted and the order of the Industrial Relations Commission is quashed.

It is so ordered.

ADKINS, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., dissents.


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    LYKES BROTHERS, INC., Appellant, v. CITY OF PLANT CITY et al., Appellees.
    No. 50356.
    Supreme Court of Florida.
    Jan. 19, 1978.
    Charlie Luckie, Jr. and Claude H. Tison, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Paul S. Buchman, City Atty., Plant City, Jeannette M. Haag, Asst. County Atty., Tampa, and Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellees.
   ENGLAND, Justice.

Can a city levy ad valorem property taxes in 1975 on the properties of a non-public corporate tenant who in 1964 had been induced to locate its meat packing plant on city-owned land in exchange for the city’s promise never to impose municipal taxes? This question was answered in the affirmative by the Hillsborough County Circuit Court, in a decision which has now been brought to us for review.

In 1964, Plant City sought to make use of a tract of undeveloped land it owned outside its corporate limits by creating an industrial park. The city invited Lykes Bros., Inc. (“Lykes”) to move its meat packing plant from Tampa to the proposed industrial park, promising in the formal lease agreement never to annex or to impose municipal taxes on the Lykes property. Lykes did move its Tampa operation to Plant City, constructing a new packing plant on the leased property and eventually employing some 450 persons. The contract rent of $2,478 per year has faithfully been paid by Lykes to the city.

The leased property remained outside the city limits until 1974, when the Legislature by special act incorporated the industrial park within its boundaries. Although Lykes promptly notified city officials of the lease covenant and attempted to prevent the assessment of ad valorem taxes, the property was nonetheless placed on the 1975 ad valorem tax rolls. Lykes then filed this suit seeking declaratory and injunctive relief, which the trial court denied.

The trial court refused to exonerate Lykes from Plant City’s tax levies on two principal grounds. It held that the city’s contractual agreement for tax exoneration was beyond the city’s authorized power, or “ultra vires”, and that the so-called savings (or grandfather) law for pre-1972 leasehold interests, Section 196.199(3), Florida Statutes (1973), is inapplicable to this case or, insofar as it pertains to private lessees on governmental lands who use the property for non-public purposes, is invalid. Lykes, of course, assails these conclusions here.

1. In holding that a municipality lacks the power to contract away its taxing authority over property used for private purposes, the trial court expressly relied on various constitutional provisions and the decisions rendered in City of Naples v. Conboy, 182 So.2d 412 (Fla.1965), Tampa Shipbuilding & Engineering Co. v. City of Tampa, 102 Fla. 549, 136 So. 458 (1931), and City of Safety Harbor v. City of Clearwater, 330 So.2d 840 (Fla.2d DCA 1976).

Lykes does not argue against the general inability of a municipality to contract away its taxing power, but it strenuously urges that we should view this transaction as nothing more than a net lease in which the city, acting solely in a proprietary capacity, has agreed to assume responsibility for the burden of Lykes’ ad valorem municipal taxes. Lykes suggests, simply, that a municipal landlord has the same contract powers as private lessors with respect to the allocation of property taxes between landlord and tenant.

Despite Lykes’ inventive characterization of its lease with the city, it is clear that the lease itself called for tax exoneration. Plant City attempted by every means at its disposal to free Lykes from all tax burdens that might later be imposed. Paragraph 7 of the lease provided that the land would never be annexed into the city limits, but that if it was, then Lykes’ properties would not be “rendered liable” for taxes. It further provided that if taxes were levied then the city “agrees to pay said taxes and to indemnify” Lykes for the tax liability and all attendant expenses. The purpose of these provisions, as recited in the lease, was to assure Lykes that its properties “shall be completely free from all municipal taxes.” Absolutely nothing in the agreement suggests that rental payments were adjusted to reflect the netting effect which would result from now-routine, commercial tax-allocation provisions, and neither this Court nor Lykes’ counsel can now re-write the parties’ 1964 contract.

As to whether a city’s tax exoneration contract is valid, our decisions uniformly hold that municipal contracts promising not to impose taxes, or granting tax exemptions, are ultra vires and void in the absence of specific legislative authority. See, e. g., Tampa Shipbuilding & Engineering Co. v. City of Tampa, 102 Fla. 549, 136 So. 458 (1931), and City of Tampa v. Kaunitz, 39 Fla. 683, 23 So. 416 (1898). At the time this contract was made the only legislative grant of authority pertaining to municipal leases provided that leasehold interests such as that contemplated by this agreement “shall be assessed and taxed to the same extent and in the same manner as other real or personal property” unless the use fell within certain enumerated “public purpose” exceptions. Lykes does not contend that its use of the property was in any way devoted to a “public purpose”.

It follows that, in the absence of statutory authority, Plant City lacked the power to covenant against the imposition of ad valo-rem taxes on Lykes’ property, and the trial court correctly held the lease provision to be void. City of Naples v. Conboy, 182 So.2d 412 (Fla.1965).

2. Lykes next contends that an ultra vires act of a municipality can always be validated by subsequent legislative ratification if the act is one which could have been authorized initially, and that Section 196-199(3), Florida Statutes (1973), did precisely that with respect to the tax on its leasehold interest in the city’s property. The trial court determined that Section 196.199(3) does not pertain to governmental leases for non-public purposes, and that it would be unconstitutional if it did.

The disputed portion of Section 196.199, entitled “Exemptions for property owned by governmental units”, reads:

“(3) Nothing herein or in § 196.001 shall require a governmental unit or authority to impose taxes upon a leasehold estate created prior to December 31,1971 if the lease agreement creating such leasehold estate contains a covenant on the part of such governmental unit or authority as lessor to refrain from imposing taxes on the leasehold estate during the term of the leasehold estate . . . .”

We have no doubt that subsection (3) of the statute applies to lease arrangements between governmental owners and private lessees using the property for non-public purposes. Section 196.001, Florida Statutes (1973), provides that all property is subject to taxation unless expressly exempted. Governmental property exemptions appear in Section 196.199. Subsection (1) provides an exemption for property both owned and used by governmental units, and subsection (2) exempts property owned by governmental units but used by private lessees for certain public purposes. Subsection (3) does not distinguish between users or uses. Lykes forcefully argues that if subsection (3) were confined to leaseholds in which the private lessee uses the property predominantly for public purposes, as the trial court has ruled and Plant City contends, the subsection would have no subject matter on which to operate, since leasehold interests of that type are already exempt from taxation under subsection (2). We agree. Not only did the legislation ostensibly apply to all pre-1972 governmental lessees, without regard to purpose or user as in the related provisions, but the construction urged upon us by Plant City and the Attorney General would require us to hold that the Legislature enacted a redundancy. Section 196.199(3) necessarily applies to private lease agreements such as Lykes’.

Our last inquiry, then, is whether this savings clause for pre-1972 contracts benefits Lykes. In ruling that it does not, the trial judge stated that the statute would be constitutionally infirm if applied to Lykes. He referred to Straughn v. Camp, 293 So.2d 689 (Fla.1974), Hillsborough County Aviation Authority v. Walden, 210 So.2d 193 (Fla.1968), and City of Bartow v. Roden, 286 So.2d 228 (Fla.2d DCA 1973), from which we conclude he meant that Florida’s 1968 Constitution requires the taxation of private leaseholds in government-owned property used for non-public purposes. We agree that the Constitution requires taxation of these leaseholds, but we find it unnecessary to reach the constitutional question on which the trial judge ruled.

Lykes’ contention with respect to the application and validity of Section 196.-199(3) — that an ultra vires municipal contract can be legislatively ratified if it could have been authorized initially — is generally correct, but it neglects an additional requirement. The legislative attempt at ratification must itself be consistent with the Constitution. At the time Section 196.-199(3) was enacted, the Legislature no longer possessed the constitutional power to authorize tax exoneration of property owned by a municipality and used by a private lessee predominantly for non-public purposes. Moreover, we do not read into the language of Section 196.199(3) a legislative attempt to exceed this constitutional limitation by giving legal effect to otherwise invalid pre-1972 contracts, and thereby creating a new category of tax exemption.

Inasmuch as Section 196.199(3) has no application to Lykes’ contract with Plant City, there was no need for the trial court to consider its constitutionality. The action of the trial court in entering summary final judgment for Plant City, however, is approved.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.

ADKINS, J., concurs in result only.

      . In the course of analysis the circuit court declared invalid § 196.199(3), Fla.Stat. (1973), insofar as it applies to governmental property devoted to private, as opposed to public, purposes. Direct appeal of the trial court’s order to this Court is authorized by Art. V, § 3(b)(1), Fla.Const.

      . The lease recited that total municipal tax exoneration was an inducement for Lykes to relocate, and stated that if taxes were ever imposed during the lease term then the city would either pay the taxes or reimburse Lykes for their payment.

      . All expenses of moving the operation and constructing the new plant were borne by Lykes.

      . Chapter 74-596, Laws of Florida.

      . Lykes’ leasehold interest and tangible personal property were assessed at $5,889,006, giving rise to a total municipal tax liability of $47,-112.05.

      . Art. VII, § 10, Fla.Const. (prohibiting a municipality from lending or using its taxing power or credit for private enterprise); Art. IX, §§ 1 and 5, Fla.Const. (1885) (requiring uniform tax on all non-exempt property); and Art. XVI, § 16, Fla.Const. (1885) (requiring taxation of all non-exempt corporate property).

      . Plant City’s charter specifically so states. Ch. 13282, § 8, Laws of Florida, Special Acts of 1927.

      . § 192.62; Fla.Stat. (1963), enacted by Ch. 61-266, Laws of Florida. This provision can be viewed as a response to this Court’s decision in Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla.1957), where it was held that such leaseholds were not taxable in the absence of statutory authority. It was subsequently reenacted verbatim as § 196.25, Fla.Stat. (1969), by Ch. 69-55, Laws of Florida, and remained in effect until the 1971 general revision of the tax statutes. Ch. 71-133, Laws of Florida.

      . In support of this contention, Lykes refers us to City of Gainesville v. Board of Control, 81 So.2d 514, 518 (Fla.1955), and 56 Am.Jur.2d Municipal Corps. § 512 (1971), among other authorities.

      . The 1975 assessed value of Lykes’ leasehold interest was $4,477,125, producing a tax liability of $35,817.

      . The Attorney General appears on behalf of the Department of Revenue, a named defendant in this lawsuit.

      . In Straughn v. Camp, 293 So.2d 689, 696 (Fla.1974), we said that “where the predominant use of governmentally leased land is for private purposes the Constitution requires that the leasehold be taxed.” City of Bartow v. Roden, 286 So.2d 228 (Fla.2d DCA 1973), suggests that all municipally-owned property not used exclusively for a public purpose must be taxed, by implication from Art. VII, § 3, Fla. Const. Hillsborough County Aviation Authority v. Walden, 210 So.2d 193, 195 (Fla.1968), held that the Constitution “is a limitation upon and not a grant of the power of the legislature to exempt property from taxation.”

      . See, e. g., C. Rhyne, Municipal Law 62 (1957); 56 Am.Jur.2d Municipal Corporations § 512 (1971); 23 Fla.Jur. Municipal Corporations § 193 (1959).

      . Although Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla.1957), had held that the 1885 Constitution did not require the Legislature to impose ad valorem taxes on private-use leaseholds in governmental property, decisions construing the 1968 Constitution make clear that taxation of such property is no longer discretionary. See note 12 above. Certainly there was no authorization in Art. XII, § 7(a), Fla. Const., which states that pre-existing contracts shall “continue” to be valid.


text:
    Judge James P. CALHOUN, and Maria Contino, Petitioners, v. NEW HAMPSHIRE INSURANCE COMPANY and Lola Pittman, Respondents.
    No. 50448.
    Supreme Court of Florida.
    Jan. 19, 1978.

      Mulholland, Kinney & Anderson, Tampa, and David A. Maney of Gordon & Maney, Tampa, for petitioners.
    William M. Sehneikart of Miller, McKen-dree & Somers, Tampa, for respondents.
   ENGLAND, Justice.

By petition for a writ of certiorari to the Second District Court of Appeal, we are asked to review a decision of that court construing the personal injury lawsuit threshold provision of Florida’s no-fault insurance statute. The district court held that an injured plaintiff who has claimed damages in excess of the threshold, been accorded a full jury trial and suffered a jury verdict finding that the defendant was not negligent, will not be permitted to re-litigate the same cause of action simply because special interrogatories to the jury also indicated that the plaintiff neither sustained permanent injury nor incurred reasonable and necessary medical expenses in excess of $1,000. New Hampshire Insurance Co. v. Calhoun, 341 So.2d 777 (Fla. 2d DCA 1976).

Petitioners assert conflict between that decision and two decisions of the Third District Court of Appeal to the effect that an injured plaintiff may re-litigate the same claim under similar circumstances. Wooten v. Collins, 327 So.2d 795 (Fla. 3d DCA 1976); Marquez v. Mederos, 307 So.2d 873 (Fla. 3d DCA 1975). In each of those cases the court held that a trial court will lose subject matter jurisdiction over the lawsuit, and thereby become impotent to enter final judgment, whenever it is determined that a no-fault threshold has not been reached. We accepted jurisdiction in this case to harmonize this dichotomy between the districts.

Jurisdiction over the subject matter refers to a court’s power to hear and determine a controversy. See Bohlinger v. Higgenbothan, 70 So.2d 911 (Fla.1954). Generally, it is tested by the good faith allegations, initially pled, and is not dependent upon the ultimate disposition of the lawsuit. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). We find nothing in the no-fault insurance law whatsoever to indicate that the legislature intended to hinge the subject matter jurisdiction of Florida trial courts on the fact-finder’s determination that an injury was not permanent and the amount of damages was $1,000 or less. Neither the language of the statute nor its history supports so drastic a notion.

Once a no-fault lawsuit has properly been submitted to a jury and a finding of non-negligence has been made, it is immaterial to the jurisdiction of the court whether the jury also finds an absence of permanent injury and compensable expenses of $1,000 or less. The controversy between the two parties has at that point been fully litigated and concluded. See Farnsworth v. Allstate Insurance Co., 343 So.2d 100, 101 (Fla. 2d DCA) (Ott, J., concurring specially), aff’d, No. 51,475 (Fla.1978). And see Tucker v. Walker, 335 So.2d 636 (Fla. 2d DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1977).

The threshold requirement of the no-fault law is no different than the dollar threshold requirement for submission of a claim to the circuit rather than the county court. In those cases the circuit court does not lack subject matter jurisdiction merely because the claimant subsequently fails to establish damages at least equal to the original jurisdictional limit. Tantillo v. Miliman, 87 So.2d 413 (Fla.1956); Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976).

Our holding as to the purport of the no-fault insurance statute on this issue is fully consistent with our decision in Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974). There, although we allowed the plaintiff a second opportunity to pursue her tort action against the defendant, her initial complaint failed to allege threshold damages, she had not submitted her case to a jury, and there had been no adverse determination of defendant’s negligence. The problem addressed in Lasky was one of pleading jurisdiction, a matter now resolved by a preliminary judicial inquiry to test whether the statutory thresholds have been met.

The Wooten and Marquez decisions are disapproved to the extent they are inconsistent with our conclusions, and the decision of the Second District Court of Appeal in this case is affirmed.

OVERTON, C. J., and BOYD, SUND-BERG and KARL, JJ., concur.

HATCHETT, J., concurs in result only.

ADKINS, J., dissents.

      .§ 627.737, Fla.Stat. (1975), entitled “Tort exemption; limitation on right to damages”, provides:
      “(2) In any action of tort brought against the owner . . . of a motor vehicle . a plaintiff may recover damages because of bodily injury . . . only in the event that the benefits which are payable for such injury . . . exceed $1,000 or the injury . . . consists in whole or in part of . permanent injury within reasonable medical probability . . .
      In 1976 this provision was amended (Ch. 76-266, § 5, Laws of Florida), and repealed effective July 1, 1982 (Ch. 76-168, § 3(3)(ff), Laws of Florida). The amended law is not before us, but the issues considered in this proceeding are applicable to rights and procedures under the amended statute.

      . Art. V, § 3(b)(3), Fla.Const.

      . In fact, a 1976 amendment to the statute indicates the contrary. Ch. 76-266, § 5, Laws of Florida, enacted § 627.737(3), Fla.Stat.Ann. (West Supp.1977), to permit a judicial inquiry concerning threshold requirements.

      . Similarly, plaintiff has had his or her day in court and may not re-litigate with the defendant on the same claim if a jury verdict of negligence results but the jury does not find permanency and the award of damages is $1,000 or less. (A finding of either permanency or damages over $1,000, coupled with the negligence determination, will of course entitle the plaintiff to a final judgment.) The doctrine of res judicata applies equally to issues of liability and damages, and once a jury has determined that the damages caused to this plaintiff by the defendant are non-permanent and aggregate $1,000 or less, plaintiff should not be permitted to force defendant into a second legal defense of additional damages. Nothing in logic or in the theory of a threshold statute commends such a result, and we disapprove the suggestion to the contrary in Tucker v. Walker, 335 So.2d 636, 638 (Fla. 2d DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1977), and in the footnotes in the district court’s opinion on rehearing in this proceeding. 341 So.2d at 778 n. 1, 2.

      . See § 34.01(1), Fla.Stat. (1975).

      . § 627.737(3), Fla.Stat.Ann. (West Supp.1977).


author: CROSS, Judge. PER CURIAM.

text:
    Dr. Sidney COLE, Petitioner, v. Roosevelt WALLACE, Respondent.
    No. 77-227.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    On Rehearing Feb. 21, 1978.
    John A. Thompson, Jr. of Preddy, Had-dad, Kutner, Hardy & Josephs, Miami, for petitioner.
    Sheldon J. Schlesinger of Simons & Schlesinger, Fort Lauderdale, for respondent.
   CROSS, Judge.

Petitioner, Dr. Sidney Cole, seeks review through writ of certiorari of two orders entered by the judicial referee of a medical mediation panel in a medical malpractice action. We affirm the referee’s order terminating the jurisdiction of the medical mediation panel, and therefore do not reach the issue of the propriety of the appealed-from order denying objections to written interrogatories.

Respondent, Roosevelt Wallace, filed a claim for medical malpractice against petitioner on December 16,1975. On March 15, 1976, at the request of the respondent/claimant, the mediation proceeding was abated by order of the judicial referee pending a determination by the Florida Supreme Court as to the constitutionality of medical mediation proceedings under former § 768.133 (now § 768.44), Florida Statutes (Supp.1976). Following the decision of the Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), upholding the constitutionality of the medical mediation procedure, the judicial referee on September 23, 1976, reinstated the instant cause and ordered that “. . . this claim shall proceed as if filed on the date of this Order, with the jurisdictional limit of 10 months to run from the date of this Order.” On January 27, 1977, respondent filed a motion to terminate jurisdiction of the medical mediation panel for failure to conclude proceedings within the 10-month jurisdictional period established by § 768.44(3), Florida Statutes (Supp.1976). The motion was granted and an order entered terminating the jurisdiction of the panel. Hence, this petition for a writ of certiorari.

The initial question presented by this appeal is whether petition for a writ of certiorari is the proper vehicle through which appellate review of medical mediation proceedings may be sought. Medical liability mediation panels may be characterized as quasi-judicial boards whose determinations fall neither under the ambit of “interlocutory orders in civil actions,” nor involve “intermediate agency actions” within the contemplation of Fla.App. Rule 4.2(a) or § 120.68(1), Florida Statutes (Supp.1976), respectively. Where the legislature establishes a procedure to provide “reforms” in medical malpractice actions, and where during the course of the administration of such procedures an injury or wrong is alleged to have occurred, any aggrieved party must'be afforded a concomitant right of access to appellate review for redress of such injury or wrong. The legislature has chosen, either consciously or unconsciously, to remain silent as to the procedure whereby appellate review of medical mediation proceedings may be obtained. Under these circumstances, common law certiorari appears to be the most logical and appropriate method.

We now turn to review the order terminating the jurisdiction of the medical mediation panel.

Both § 768.44(3), Florida Statutes, and Rule 20.190, Fla.R.Med.P. (effective Sept. 1, 1977), provide that the jurisdiction of the medical mediation panel shall terminate automatically upon the expiration of ten months from the date the claim was filed. As we stated in Perkins v. Pare, 352 So.2d 64 (Fla.4th DCA Opinion filed April 15, 1977):

“The language of the . . . statute is explicit. It limits the jurisdiction of the mediation panel to a period of ten months from the date the claim is filed within which a final hearing on the merits must be concluded. Failure to observe this limitation period results in automatic termination of the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties.” (Citation omitted)

Strict adherence to the statutory framework provided by § 768.44, Florida Statutes, is mandated in order to protect the rights of the claimant whose pre-litigation burden “reaches the outer limits of constitutional tolerance . . . .” Carter v. Sparkman, supra, at 806.

In State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977), and State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla.3d DCA 1977), our sister court of the Third District determined that the judicial referee had no authority to stay or alter the time allowed by statute for the conclusion of medical mediation proceedings. Although we adopt the rule of law set forth in these opinions, we must respectfully decline to follow the ultimate results reached in Mercy Hospital and McGuirk, supra, respectively. In both cases the Third District recognized a special equity existing on behalf of the respective defendants which arose because the abatement of proceedings pending a determination as to the constitutionality of the medical mediation proceedings was obtained at the instance of the claimant. Therefore, the Third District reasoned:

“. . . since the claimant asked for such an unauthorized order which resulted in the subsequent expiration of the statutory ten-month period, we believe that the medical defendants should not thereby be deprived of their right to mediation. We therefore hold that there still adheres to the mediation panel the time which remained on the ten month statutory period at the time the unauthorized order was entered.”

We are required by the clear and precise terms of § 768.44, Florida Statutes, and Rule 20.190, Fla.R.Med.P., to decline this approach and, instead, adhere to the views expressed by the dissenting opinion in State ex rel. McGuirk v. Cowart, supra.

The jurisdiction of a medical mediation panel terminates as a matter of law if a hearing has not been held at the expiration of the ten-month jurisdictional period. Perkins v. Pare, supra. The mere fact that the claimant was able to obtain an unauthorized order from the judicial referee in no way mitigates the clear dictates of the statute. Administrative tribunals and trial courts frequently issue improper orders which contribute, in part, to the great increase in the caseload which plague appellate courts today. However, because appellate courts are available in which review of such orders may be readily — even if somewhat belatedly — obtained, failure to seek review of orders which appear contrary to statutory dictates cannot be asserted as a mitigating factor where jurisdictional time limits are involved. The claim was filed on December 16, 1975 and jurisdiction of the panel, therefore, terminated as a matter of law on October 16, 1976, notwithstanding the order of the judicial referee abating the proceedings.

Accordingly, the petition for a writ of certiorari is dismissed.

Certiorari denied.

ANSTEAD and MOORE, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

We grant rehearing, and correct the date on which the mediation claim was filed to reflect that the mediation claim was filed on December 22, 1975, not December 16, 1975.

CROSS, ANSTEAD and MOORE, JJ., concur.

      . See Perkins v. Pare, 352 So.2d 64 (Fla.4th DCA Opinion filed April 15, 1977); 16 F.L.W. 775 (April 22, 1977).

      . State ex rel. McGuirk v. Cowart, 344 So.2d 624, at 626 (Fla. 3d DCA 1977).


author: PER CURIAM.

text:
    INSURANCE COMPANY OF NORTH AMERICA and J. S. Neviaser, Appellants, v. Eva Dale EDMONDSON, Appellee.
    No. DD-386.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1977.

      Monroe E. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, Richard B. Rosier, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    James T. Terrell, of Brown & Terrell, Jacksonville, Edward F. Simpson, Jr., of Moore, Wood, Simpson & Korey, Ormond Beach, for appellee.
   PER CURIAM.

Appellants argue the Volusia County Hospital, which settled with the ap-pellee in exchange for a release from liability, is a joint tortfeasor, so that Section 768.041(2), Florida Statutes (1975) is applicable and requires a set-off from the jury verdict rendered against appellants the amount of the release executed to the hospital. The determination of whether two or more persons are joint wrongdoers is one of fact dependent upon circumstances of the particular case. Louisville and N. R. Company v. Allen, 67 Fla. 257, 65 So. 8 (1914); Hudson v. Weiland, 150 Fla. 523, 8 So.2d 37 (1942). The appellants have not, and cannot, point to facts reflected in this limited record showing the damages incurred by the wrongdoers cannot be apportioned. The final judgment is, therefore

AFFIRMED.

ERVIN, Acting C. J., MELVIN, J. and NIMMONS, RALPH W., Jr., Associate Judge, concur.


author: CROSS, Judge.

text:
    STATE of Florida, Appellant, v. Thomas Joseph HOLT, Appellee.
    No. 76-2677.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 24, 1978.

      Michael J. Satz, State’s Atty., and Linda DeBene, Asst. State’s Atty., Fort Lauder-dale, for appellant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   CROSS, Judge.

The State of Florida appeals an order suppressing certain incriminating statements made by the appellee, Thomas Holt, in a prosecution for homicide.

At the time of his indictment for murder, Thomas Holt was a confidential informant for the United States Drug Enforcement Agency [hereinafter D.E.A.] and had been for some time. Mr. Holt’s occupation required that he regularly provide information to law enforcement officers about drug trafficking and related crimes.

In May 1976 appellee was implicated in a homicide then under investigation by the Police Department for the City of Oakland Park, Florida. Word of Mr. Holt’s alleged involvement reached his supervisors at the D.E.A., who then contacted Sgt. Hemp and Det. Schiffman of the Oakland Park Police to ascertain the degree of appellee’s possible involvement in the alleged crime. At a meeting later held with Sgt. Hemp and Det. Schiffman, Mr. Holt’s supervisors were told that appellee was a suspect in a homicide currently under investigation. A request was made to the D.E.A. agents not to reveal to appellee that he was under investigation. They agreed.

Subsequently, upon learning that the D.E.A. officers were scheduled to meet with Mr. Holt, Det. Schiffman, according to testimony elicited at the hearing on the motion to suppress the confession, asked the D.E.A. agents to see what they could learn from appellee about the homicide. Later, Det. Schiffman again contacted the D.E.A. and requested them to inquire whether appellee would be willing to speak with the Oakland Park Police about the case. In exchange for meeting with the city detectives, a promise was made that after the meeting appellee would not be placed under arrest at the time, and that after the meeting he would be free to leave.

That afternoon appellee met with his D.E.A. supervisors, who informed him of their communications with the detectives from the Oakland Park Police. Upon inquiry by the D.E.A. agents, appellee detailed the facts and circumstances surrounding the murder of one Jerry MacDonald in Oakland Park on the night of May 6, 1976. In his statement to these federal agents, Mr. Holt implicated himself and others as perpetrators of the crime. No Miranda warnings were given to Mr. Holt at this meeting. Following the meeting, the substance of appellee’s statement was communicated to the Oakland Park Police.

Later that evening, appellee arrived at the Oakland Park Police Station accompanied by his D.E.A. friends for a pre-ar-ranged meeting with Detectives Hemp and Schiffman. At that time appellee was again told that he would not be arrested that night if he should decide to give a statement concerning the homicide under investigation. However, it was made clear that the entire matter would be submitted to the grand jury at a later time for consideration, and that criminal indictments might be issued. After being informed of his Miranda rights, which were waived both orally and in writing, appellee repeated the statement which he had given earlier that day to the D.E.A. officers. This statement was taped and transcribed, and forms the body of the material sought to be suppressed.

Mr. Holt was subsequently indicted by the grand jury for murder, and on motion the trial court suppressed the incriminating statements given to the D.E.A. and to the Oakland Park Police. This appeal by the state then followed.

It is uniformly recognized that a confession may be admitted in evidence only if it is freely and voluntarily made, and no improper influences were executed to induce it. Coffee v. State, 25 Fla. 501, 6 So. 493, 23 Am.St.Rep. 525 (1889). Where two confessions have been given, the mere fact that the first confession may have been obtained as a result of improper influences does not necessarily make inadmissible a subsequent confession, provided there has been a showing that the improper influences have been removed. Rhome v. State, 222 So.2d 431 (Fla. 3d DCA 1969).

In the instant case, we are of the view that the totality of the circumstances indicates that the confession given to the Oakland Park Police was freely and voluntarily made by the appellee. While the record is unclear as to what possible inducements were offered by appellee’s D.E.A. associates to obtain the initial confession, it is clear that those improper influences, if there were any, were dissipated by the careful explanation of appellee’s constitutional rights, and the voluntary waiver of those rights at the Oakland Park Police Department.

Accordingly, the order suppressing the confession is reversed and the cause remanded.

Reversed and remanded.

DOWNEY and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Ronald Lee KURTZ, Appellee.
    No. 77-1196.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 21, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, Marsha G. Madorsky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

We must again venture into the legal morass of the Speedy Trial Rule, Rule 3.191, Fla.R.Crim.P.

The applicable facts are that Appel-lee was arrested on April 5, 1976, and charged by information on April 9, 1976, with the crime of burglary. Counting from the date of arrest, April 5,1976, the trial of the accused had to begin on or before the expiration of 180 days, since the charged crime is a felony. Rule 3.191(a)(1), Fla.R. Crim.P. The trial court set September 9, 1976, as the date for the trial. On September 9, 1976, the Appellee moved for a continuance of the trial and the court rescheduled the trial for September 14, 1976. On September 10, 1976, Appellee again moved for a continuance of the trial and specifically waived his theretofore accrued right to speedy trial. Parenthetically, it is noted that the waiver is not necessary since the Order granting the Defendant’s Motion has that effect anyway. State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977). On September 14, 1976, the second trial date, the court granted Appellee’s Motion of September 10, 1976, and rescheduled the trial for November 29,1976. On November 27,1976, the Appellant filed a proper Motion for Continuance of the trial which was granted and the trial was rescheduled for February 14,1977. Judge Cooper was the first scheduled trial judge and he continued to handle the matter until the Order of November 27, 1976, at which time, or on December 2, 1976, according to a clerk’s form, Judge deManio became the scheduled trial judge. On January 3,1977, Judge deManio recused himself and Judge Pfeiffer was assigned the case on January 4, 1977.

Next there appears in the record Defendant’s Motion for Discharge dated March 28, 1977. What became of the February 14, 1977, trial which was ordered in the November 27, 1976, Order and the December 2, 1976, Notice of Trial? Appellant’s brief doesn’t say and Appellee didn’t favor us with a brief. Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957); Southeastern Fidelity Insurance Co. v. Broughton, 293 So.2d 139, 142 footnote 6 (Fla. 1st DCA 1974).

In reading Appellee’s Motion for Discharge we assume his argument to us would be that the trial should have been held within 180 days from his last Motion for Continuance especially since his “Waiver of Speedy Trial” says “. . . hereby waive my right to speedy trial for up to 180 days.” It doesn’t say 180 days from when but that doesn’t matter as will be shown.

When the accused filed his Motion for a continuance and the court granted it the provisions of the Speedy Trial Rule were no longer applicable as far as the 180 days provision is concerned. It’s a whole new ball game. Other rights now apply, not the limiting rule of criminal procedure. The Appellee voluntarily took himself out of Rule 3.191 and his vague attempt to unilaterally impose another 180 days restriction effects nothing. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State ex rel. Gadson v. Tyson, 334 So.2d 56 (Fla. 4th DCA 1976). Although again it really doesn’t matter, Appellee’s attorney’s Motion for Continuance specifically waives the Speedy Trial Rule and no attempted restriction is contained therein. State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977).

In accordance with Rule 3.191(d) (2), Fla.R.Crim.P., and the above cited cases we hold that if a criminal defendant or his attorney files a motion for continuance of his trial and the motion is granted then the Speedy Trial Rule no longer applies except to the limited extent of Rule 3.191(d)(3). State ex rel. Gadson v. Tyson, supra. We also hold that the State’s proper Motion for Continuance, which was granted, also took this matter out of the strict operation of the Speedy Trial Rule. Rule 3.191(d)(2) and 3.191(f), Fla.R.Crim.P. King v. State, 303 So.2d 389 (Fla. 3d DCA 1974).

Finally for us to consider is whether the Appellee should be discharged because he was not tried before March 29, 1977. Appellee has shown no reason why he was unduly prejudiced by this two or three month delay after the last action of the court so we must say he should go to trial.

The Order of discharge is reversed and this cause is remanded for trial.

REVERSED and REMANDED.

DOWNEY, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.

      . The Order granting continuance and Notice of Trial, the first signed by the judge and the second signed by the clerk, are contained within the same piece of paper.


text:
    Jimmie Lee THORNTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2337.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Defendant, Jimmie Lee Thornton, appeals the summary denial of his motion to vacate judgment and sentence on the ground of ineffective assistance of counsel in that (1) his appointed counsel allegedly told him that in exchange for his plea of guilty, the maximum sentence he would receive would be 10 years when, in fact, he received a sentence of 13 years, and (2) his counsel failed to adequately investigate the case.

Upon receipt of a motion to vacate judgment and sentence, the trial court must examine the record and if the record conclusively demonstrates that the movant is not entitled to relief, the motion may be denied without a hearing. State v. Weeks, 166 So.2d 892 (Fla.1964); State v. Barton, 194 So.2d 241 (Fla.1967); Brumley v. State, 224 So.2d 447 (Fla. 4th DCA 1969). Further, allegations in a motion for post conviction relief that the court appointed counsel has not investigated the case and has advised defendant to plead guilty are insufficient as a matter of law to support the charge of ineffective assistance of counsel, particularly where the record shows the guilty plea was freely and voluntarily entered. Crusoe v. State, 183 So.2d 600 (Fla. 2d DCA 1966); Brumley, supra.

The record reflects that both appointed counsel and the trial judge in open court and in the presence of defendant stated that in exchange for his guilty plea, defendant would be sentenced to 13 years. The trial judge then questioned the defendant as to the voluntariness of his plea and at no time did the defendant question the 13 year sentence. The record further illustrates with respect to the issue of adequate investigation, that defense counsel invoked the standard rules of discovery and had an investigator appointed. Thus, the record conclusively demonstrates that defendant is not entitled to relief.

Affirmed.


author: MELVIN, Judge.

text:
    W. M. PALMER COMPANY, Petitioner, v. Patricia C. MEEKS, and Division of Employment Security, Department of Commerce, State of Florida, Respondents.
    No. EE-397.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1978.
    Rehearing Denied Feb. 24, 1978.
    Willard Ayres of Ayres, Cluster, Curry & McCall, Ocala, for petitioner.

      Kenneth H. Hart, Jr. and Alex D. Little-field, Jr., Tallahassee, for respondents.
   MELVIN, Judge.

By a Petition for Writ of Certiorari, which we treat as a Petition for Review of an Administrative Order under the provisions of Chapter 120, Florida Statutes, W. M. Palmer Company seeks review of an order of the Industrial Relations Commission affirming an order entered by an appeals referee. The order entered by the appeals referee allowed unemployment compensation benefits to Patricia C. Meeks, an employee of W. M. Palmer Company.

Patricia Meeks had advised her employer that it was the expressed wish of her husband that she resign from her employment and remain at home to take care of their children. She was not dissatisfied with her work and her employer was not dissatisfied with her. It appears that W. M. Palmer Company conducts a relatively small operation and has very few people in its employ. Because of the special type of work in which Patricia Meeks was engaged and the problem thus presented in securing someone to take her place, she was requested and she agreed to continue in her employment for a short period of time. After she had made known her desire to cease office work, Palmer discussed with her his future business plans which did not include her as an employee. Meeks did not then, or at any subsequent time, withdraw her voluntary resignation notice. Meeks continued in her work with Palmer and continued her cooperation to the end so that he would have adequate time to find her replacement or make readjustments among the existing personnel. Thereafter, such arrangements having been made, she was advised on or about October 31, 1975, that her services would not be required beyond November 7, 1975. In this posture, she considered that she had been discharged and filed her application for unemployment compensation.

The appeals referee found that Meeks had been discharged and that such discharge was not for misconduct connected with her work, thus affirming the finding of the claims examiner that she was entitled to receive unemployment benefits. This rather unique decision has been timely presented to this court for review.

Meeks voluntarily resigned her employment. It is beyond dispute that she set in motion the chain of events for the termination of her employment. Therefore, she is disqualified from receiving unemployment compensation benefits. It is in effect urged by the Commission that the action on the part of Palmer in requesting the cooperation of its employee by remaining with the company until a replacement could be found, to which the employee was in accord, resulted in her desired termination amounting to a discharge from employment. Were this court to affirm the order of the Commission, such acts of common courtesy, cooperation and mutual consideration on the part of the employer and employee would be forever discouraged. To request such consideration would place the employer in fear of having charged against his premium account unemployment compensation benefits. This court declines to accept such a tortured misconstruction of the letter and spirit of the unemployment compensation law.

In Guy Gannett Publishing Company v. Maine Employment Security Commission, 317 A.2d 183, at 187 (Me.1974), the Supreme Judicial Court of Maine held:

“A resignation, when voluntary, is essentially an unconditional event the legal significance and finality of which cannot be altered by the measure of time between the employee’s notice and the actual date of departure from the job. An employer who accepts an unequivocal notice of resignation from an employee is entitled to rely upon it, to the extent of preparing in one manner or another for the employee’s absence, unless, of course, the employer chooses to return to ‘status quo’ by rehiring the employee, or accepting a retraction of the notice.”

In Duran Insurance Company v. Florida Department of Commerce, 260 So.2d 873 (Fla.2d DCA 1972), the court considered a factual situation in which the employee’s putative husband submitted for her a resignation from employment coupled with two weeks notice. This, the employer accepted. When this fact came to the attention of the employee, she accepted final earnings and vacation pay. Then followed the inevitable claim for unemployment compensation. The court held that the employee was not entitled to such benefits. She had accepted the fruits of the resignation submitted for her.

We hold that Meeks does not come within the letter and spirit of the provisions of the unemployment compensation law. Therefore, the order of the Industrial Relations Commission affirming the order entered by the appeals referee is hereby reversed.

McCORD, C. J., and BOYER, J., concur.


author: MOORE, Judge.

text:
    Buddy L. SANSING and Virginia Sansing, his wife, Appellants, v. The FIRESTONE TIRE & RUBBER COMPANY, etc., et al., Appellee. Robert Lee FAVORS, Appellant, v. The FIRESTONE TIRE & RUBBER COMPANY, etc., et al., Appellee.
    Nos. 76-1364 and 76-1365.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 24, 1978.

      C. R. McDonald, Vincent A. Lloyd, and John C. Guerriero, Fort Pierce, for appellants.
    George W. Wright of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Joseph W. Beasley of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for ap-pellee, Firestone Tire and Rubber Co.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellee, Ford Motor Co.
   MOORE, Judge.

Plaintiffs, Buddy L. Sansing, his wife and Robert Lee Favors take this consolidated appeal from an adverse final judgment entered against them in favor of the Firestone Tire .& Rubber Company and Ford Motor Company. This is the second opportunity this court has had to visit the issues involved in this case, the first being a review of the trial judge’s dismissal of plaintiffs’ sixth amended complaint. Favors v. Firestone Tire and Rubber Company, 309 So.2d 69 (Fla. 4 DCA 1975).

The plaintiffs were injured by an exploding tire which had been placed on a wheel and rim assembly at plaintiffs’ place of employment, the local Goodyear Tire and Rubber Store. The wheel and rim assembly was designed and assembled by Firestone and incorporated on a 1968 Ford truck which was sold by Ford as its own product. The pertinent facts are recited in our opinion in Favors, supra. Recovery was sought upon three separate theories, to wit: strict liability in tort, breach of implied warranty, and negligence. In compliance with our opinion in Favors, supra, the trial court struck the theory of strict liability in tort and allowed the case to proceed on the latter two theories. A directed verdict against the plaintiffs was issued as to negligence and the jury received the case on the sole issue of breach of implied warranty. Plaintiffs assign as error the trial court’s refusal to submit the case to the jury on strict liability and the granting of the directed verdict as to negligence.

Subsequent to our decision in Favors supra, strict liability in tort in products liability cases has become the law in Florida. West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976). It would serve no useful purpose in reiterating here the scholarly analysis by the Supreme Court of products liability law. Suffice to say the theories of strict liability and implied warranty have been so refined that “the distinctions frequently have more theoretical than practical significance”. West at 84. Strict liability is imposed when the following have been established:

(1) The manufacturer’s relationship to the product;
(2) The defect in the product and its unreasonably dangerous condition; and
(3) The proximate causal connection between such condition and the user’s injuries. West at 86, 87. See also, Restatement of Torts (Section 402(a)).

Liability is imposed under the theory of implied warranty when it has been proved that:

(1) Plaintiff was a foreseeable user of the product;
(2) The product was being used in the intended manner at the time of the injury;
(3) The product was defective when transferred from the warrantor; and
(4) The defect caused the injury. McCarthy v. Florida Ladder Company, 295 So.2d 707 (Fla. 2 DCA 1974).

As was stated by the United States Court of Appeal, 4th Circuit, in Chestnut v. Ford Motor Company, 445 F.2d 967 at 968:

“The standard of safety of goods imposed on the seller or manufacturer of a product is essentially the same whether the theory of liability is labeled warranty or negligence or strict tort liability: the product must not be unreasonably dangerous at the time that it leaves the defendant’s possession if employed in the manner in which it was intended to be used or put to a special use known before hand by the defendant”.

We turn now to the jury instructions in the instant case. The court, inter alia, instructed the jury:

“. .1 instruct you that a manufacturer of a product such as these defendants, or either of them, each impliedly warrants its product to be reasonably fit for its intended use. On the claim of the plaintiffs against these defendants for breach of implied warranty the issues for your determination are whether the defendants, or either of them, breached its implied warranty of fitness by manufacturing the wheel rim assembly in question in such a way that it was not reasonably fit for its intended use, and if so, whether such breach was the legal cause of the loss, injury or damage sustained by the plaintiffs ... A defect in a product is a legal cause of injury or damage if it directly and in natural and continuous sequence produces, etc. . . ”
“In order for the plaintiffs to recover from the defendants Ford and Firestone for injuries sustained as a result of a defect in the truck wheel rim assembly involved in this litigation it is necessary that the plaintiffs’ injuries were caused by some defect or dangerous condition in the wheel rim assembly which makes it unreasonably dangerous to the user. The wheel rim assembly in question must be dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, possessing the ordinary knowledge common to the community as to its characteristics”.

We find from the totality of the instructions given, the trial court, although having struck the claim for strict liability, did in fact substantially instruct on strict liability. The two theories of implied warranty and strict liability have become so intertwined that the distinction between Florida standard jury instructions P.L. 2 (implied warranty of merchantability) and P.L. 4 (strict liability), both adopted prior to West, has no practical significance. Therefore, plaintiffs’ assigned error is without merit.

We have examined the record in this case and find plaintiffs’ other contentions to be unsupported by the record and therefore also without merit. Accordingly, the judgment of the trial court is

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Anthony J. ETTARO, Appellant, v. STATE of Florida, Appellee.
    No. 76-2080.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 28, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The evidence to support the conviction of rape was legally insufficient and the trial court should have granted Defendant’s Motion for judgment of acquittal. Hollis v. State, 27 Fla. 387, 9 So. 67 (1891); Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960); O'Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976).

The Judgment and Sentence are reversed with directions to discharge the Appellant.

REVERSED with directions.

CROSS and DOWNEY, JJ., concur.


text:
    Gilda RIZZI, Appellant, v. SERVICE DEVELOPMENT CORPORATION, a Florida Corporation, and Jack P. Moskos and Betsy B. Moskos, his wife, and Charles Fischofer and Joan Fischofer, his wife, and James F. Redditt and Elizabeth R. Redditt, his wife, jointly and severally, Appellees.
    No. 76-2110.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 24, 1978.
    Hal H. McCaghren, West Palm Beach, for appellant.
    Richard W. Bates, Orlando, and J. Geoffrey Pflugner of Dent & Pflugner, Sarasota, for appellees.
   DREW, E. HARRIS (Ret.), Associate Judge.

Robert Armstrong entered into a written lease for certain lands with the buildings and improvements for a period of fifteen years at an annual rental of $13,800, payable $1,150 per month plus certain percentages of gross sales according to a formulae fixed in the lease with Service Development Corporation. Attached to the lease was a “Guarantee of Lease” signed by the six individual stockholders of the lessee. The full text of the guarantee, omitting the names and witnesses, appears in the footnote. The lease and guarantee were dated February 10, 1969.

In December, 1971, Robert Armstrong sold the property and assigned the lease containing the guarantee and all past due and future rentals to Gilda Rizzi, plaintiff below — appellant here. At the time of Riz-zi’s purchase, rents, taxes and other obligations under the lease were past due. Rizzi brought this action against the lessee corporation and the six stockholder guarantors to recover past due rent and the other obligations alleging that the lessee had abandoned the property, failed to pay rents and other charges, and that Rizzi had re-rented the premises for $800 per month, which was set off against amount due.

As affirmative defenses the guarantors alleged that the assignment of the lease ineffective as an assignment of the guarantee, estoppel by failure to rent promptly after abandonment, failure to mitigate damages and other defenses not pertinent here.

After trial before the court a judgment was entered for the guarantors. The trial court, in its judgment, held:

“The guarantee of lease which is the subject matter of this suit was never assigned by reference, nor did the guarantors consent to an assignment or receive notice thereof. The guarantee was a special, rather than general and could not be assigned without the consent of the guarantors. In addition, the lease was materially altered without the knowledge of the guarantors. Under the above and other circumstances shown by the evidence, Plaintiff is not entitled to prevail.”

The assignment of the lease to Rizzi, attached to the original lease and guarantee recited:

“FOR VALUE RECEIVED, we hereby assign to GILDA RIZZI, all of our right, title and interest in this lease, together with all past, present and future rents due under the terms of said lease.”

The guarantee was for the benefit of the lessor Armstrong, “his heirs and assigns.” (Emphasis supplied.) The guarantee was a part of the original lease and obviously one of the considerations for it. It was not a “special” guaranty as held by the trial court but a general guaranty. It ran to the lessor and his assigns and therefore to any person to whom the principal obligations and the guaranty may be transferred.

The transfer of the lease to Rizzi as purchaser of the property and all past, present and future rents was transfer of the original obligation and operated as an assignment of the guaranty.

Guarantors argue, among other points, none of which we find to be of merit, that there was a material alteration of the terms of the lease when Rizzi changed the rental for the premises from $1,150 to $800 per month and that such material alteration operated as a release of all the guarantors from liability. The rent reduction was made by the lessor in order to rent the premises and thereby to mitigate the damages to the guarantors. The change was not a material one as that word is used in the cases and texts. To be material in the context used, a change must operate to the detriment of the guarantors. While the point is not raised here — and we express no views concerning its applicability to the situation here — we do observe that the concluding paragraph of the guarantee provided that the guaranty was a continuing one and that liability under it would in no way be affected or diminished by any extension of time or sub-lease granted by the lessee.

Reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

ALDERMAN, C. J., and STETTIN, HERBERT, Associate Judge, concur.

      .“In consideration of the letting of the premises hereinbefore described, and of the sum of Ten Dollars ($10.00) and other good and valuable considerations, we hereby become guarantors for the punctual payment of the rent, and performance of the covenants in the herein written Agreement mentioned, to be made and performed by SERVICE DEVELOPMENT CORPORATION, the within-named Lessee; and if any default shall be made therein, we do hereby promise and agree to pay unto the within-named Lessor, his heirs or assigns, such sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of the said Agreement, without requiring any notice of nonpayment, or proofs of demand being made.
      “This guaranty shall be a continuing guaranty, and the liability thereunder shall in no way be affected or diminished by reason of any extension of time or sub-lease that may be granted by the Lessor to Lessee.”

      . 38 Am.Jur.2d Guaranty §§ 20, 21 (1968).

      . 38 Am.Jur.2d Guaranty § 36 (1968).

      . 38 Am.Jur.2d Guaranty § 81 (1968); See, Anderson v. Trade Winds Enterprises Corp., 241 So.2d 174 (Fla. 4th DCA 1970); Hollywood Shopping Plaza, Inc. v. Schuyler, 179 So.2d 573 (Fla. 2d DCA 1965).


text:
    Vincent Anthony CIRAOLO, Petitioner, v. STATE of Florida, Respondent.
    No. 77-1098.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 28, 1978.
    McCain & Saccocio, Ft. Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition denied.

CROSS, DOWNEY and MOORE, JJ., concur.


author: KEHOE, Judge.

text:
    Sylvia F. GUILLEN et al., Appellants, v. Ruth S. KITCHING et al., Appellees.
    No. 76-2200.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 23, 1978.

      Levenstein, Burke & Associates and Linda Dakis, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Aliene D. Nicholson and W. Sam Holland, Miami, for appel-lees.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a summary judgment dated July 31, 1975, entered by the trial court in favor of appellees, defendants below.

Appellants’ basic contention on appeal is that the trial court erred, in granting appellees’ motion for summary judgment against the claims of appellants Hector and Sylvia Guillen, because it misinterpreted the word “survivors” in Section 768.-18, Florida Statutes (1975). The trial court interpreted the word “survivors” as follows:

“That notwithstanding the liberal construction to be applied in accordance with Florida Statutes 768.17, this Court construes a blood relative, partly or wholly dependent on a decedent for support or services, to require actual dependency, though same may be partial, in order to qualify as a ‘survivor’ under the ‘Florida Wrongful Death Act’, and the word ‘dependent’ connotes one who looks to another for aid or support, relies upon same, and one who would not be able to sustain himself without such aid or support, and the Plaintiff brother, Hector Guillen, and the Plaintiff sister, Sylvia F. Guillen, do not qualify as ‘survivors’ as a matter of law under the facts in this cause.”

In our opinion, this was a correct interpretation. See Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894), and Burgh v. Carroll, 217 So.2d 353 (Fla. 3d DCA 1969).

Having determined that Hector and Sylvia Guillen were not survivors under the Florida Wrongful Death Act, the trial court also found that there was no genuine issue of any material fact and, accordingly, entered the order granting appellees’ motion for summary judgment. After a careful review of the record, we have concluded that the order was properly entered; therefore, it is affirmed. See, e. g., Wesley Construction Co. v. Lane, 323 So.2d 649 (Fla. 3d DCA 1975); Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1971); Turner Produce Co. v. Lake Shore Growers Coop. Ass’n, 217 So.2d 856 (Fla. 4th DCA 1969), and Fla.R.Civ.P. 1.510.

Affirmed.


text:
    NESCAR, INC., Appellant, v. ALL SPORTS II, INC., a Florida Corporation d/b/a Lombard’s Sport Shop, Appellee.
    No. 77-1401.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 23, 1978.

      Koeppel, Stark & Newmark, Miami, for appellant.
    Goethel & Garcia-Vidal, Coral Gables, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See the principle of law in Warring v. Winn-Dixie Stores, 105 So .2d 915, 918 (Fla. 3d DCA 1958).


author: PER CURIAM. ANSTEAD, Judge,

text:
    Charles E. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1541.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and Laurie Sistrunk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY and LETTS, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting in part:

The appellant, Charles E. Jones, was convicted of two counts' of shooting into a dwelling and is here challenging the sufficiency of the evidence identifying him as the guilty party. I believe the evidence as to Count I was insufficient. The state relied on circumstantial evidence. That evidence revealed that the dwelling house of Mr. and Mrs. Linton King was shot into on January 29 and February 3, 1976. As to the January 29 episode, which formed the basis for Count I, the only evidence identifying Jones as the offender was his ownership of the weapon that fired the shot. Other evidence produced at the trial showed that Jones’ father had threatened the Kings. When circumstantial evidence is relied upon to sustain a conviction, the proof must exclude any reasonable hypothesis of innocence. Mayo v. State, 71 So.2d 899 (Fla.1954). The circumstantial evidence presented here simply falls short.


author: McCORD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Alexander JOHNSON, III, Appellee. STATE of Florida, Appellant, v. Mary Jane JOHNSON, Derry Brown Johnson, Charles Raminez, and Richard Joel Weaver, Appellees.
    Nos. FF-487 and FF-488.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 24, 1978.

      Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    Terry N. Silverman, Robert Augustus Harper, Jr., Larry G. Turner, Gainesville, Jack T. Edmund, and John R. Howes, Bar-tow, for appellees.
   McCORD, Chief Judge.

The state appeals an order granting ap-pellees’ motion to dismiss an amended information with prejudice. The trial court ruled that the state had failed to bring appellees to trial within the time allowed by the speedy trial rule, Fla.R.Crim.P. 3.191, even though appellees were continuously ready for trial during the period. We reverse.

Appellees were arrested on December 15, 1976, on charges of possession of cannabis. The arrest records show they were arrested for possession of more than five grams. On December 30, 1976, the state filed an information charging each of the appellees with possession of cannabis with intent to deliver on December 15. The charge did not specify whether the possession was of more or less than five grams. On March 16, 1976, the state filed two amended informations severing Alexander Johnson from the other appellees and adding allegations that each appellee’s possession was of over five grams and each delivery was for consideration. Appellees then each filed motions for discharge alleging that the speedy trial period had run without trial even though .they were continuously available. On April 7, 1976, leave of court to file the amended informations was granted, nunc pro tunc to March 16. Also, on April 7, 1976, the court granted appellees’ motion for discharge.

The original information only charged a misdemeanor since it did not specify that appellees were in possession of more than five grams of cannabis. Patterson v. State, 313 So.2d 712 (Fla.1975); Franklin v. State, 346 So.2d 137 (Fla. 1 DCA 1977). The circuit court did not have jurisdiction to try the case under the original information, but upon the filing by the state of the amended informations pursuant to Fla.R.Crim.P. 3.140(j) charging felonies, the circuit court acquired full jurisdiction and the 180-day trial period from the time of arrest applicable to felonies became applicable. The trial court therefore erred in dismissing the amended informations.

REVERSED.

BOYER and MELVIN, JJ., concur.


author: HOBSON, Judge.

text:
    John BRALEY, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.
    No. 76-2061.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 22, 1978.
    W. Eric Venable, Tampa, for appellant.
    James C. Hadaway of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellee.
   HOBSON, Judge.

Braley, plaintiff below, appeals the entry of summary judgment in favor of American Home Assurance Company (Home) on Bra-ley’s claim for disability insurance benefits under a policy issued to Braley’s employer, Campbell Soup Company, for the benefit of employees such as Braley. Braley contends that the trial court erred in determining, as a matter of law, that an “accident” was not the proper cause of Braley’s disability. We agree and reverse the order granting summary judgment and final summary judgment entered thereon.

Read in a light most favorable to the party opposing summary judgment, the record discloses the following facts. John Bra-ley was a long-time employee of Campbell Soup Company. Braley’s duties required his construction of shelf and floor displays of canned food products. This included lifting forty-pound cases and long periods of driving and sitting. In May of 1953, Braley injured his back while moving a display in a grocery store. In January of 1955, Braley underwent surgery for a ruptured spinal disc. After that surgery, Braley was able to return to full-time work for Campbell Soup without any significant back problems.

In September 1969, Braley was constructing a display. As he twisted slightly to place a case on a handtruck, he heard a “pop” and immediately felt a sharp pain in his back and down his hips and legs. Bra-ley’s physicians diagnosed and treated him for a rupture of the same disc. The treating and examining physicians who were deposed testified that Braley could not perform his previous duties for Campbell Soup Company. As a practical matter, Braley has not been able to work since this injury.

The policy here involved insured Braley “for loss resulting from injury.” Injury is therein defined as “bodily injury caused by accident occurring while this policy is in force as to the Insured Person and resulting directly and independently of all other causes in loss covered by this policy.”

Upon motion, the trial court granted summary judgment in favor of insurer based on its ruling that Braley did not sustain a loss resulting from an “injury” as that term is defined in the policy. This ruling is founded upon two grounds. Firstly, Braley’s disability was not caused by an “accident.” Secondly, Braley’s disability did not result “directly and independently of all other causes.”

We consider first whether Braley’s disability was caused by an “accident.” Bra-ley argues, in effect, that this term should be interpreted so as to include unexpected results of a known cause. Home, however, claims that the term “accident” should be given its literal meaning so as to be limited to only unexpected causes of an injury, as where some fortuitous mishap acts upon the body of the insured to cause disability.

We note at the outset that Home has failed to avail itself of the opportunity to define, qualify, or narrow the term “accident” in its policy. The courts have repeatedly held that the term “accident,” as all other terms in an insurance policy not defined in the policy, should be given its everyday “man-on-the-street” meaning. In an effort to find a statement of such a meaning, we turn to the Webster’s New International Dictionary, 2d Ed. (G. & C. Merriam Co. 1953) which defines “accident” as:

“An event which takes place without one’s foresight or expectation; an unde-signed, sudden, and unexpected event.”

While this definition well furnishes the concept of unexpectedness, its use of “event” furnishes no insight on the question whether the everyday man-on-the-street considers an accident to be a result as well as a cause. Turning, then, to that authority’s definition of “event” we find it defined as:

“The consequence of anything; the issue; conclusion; result.”

We find, then, that the everyday man-on-the-street definition of “accident” includes an unexpected result. Lest this seem only so much song and dance, we point out that this comports with judicial definitions and applications of the word “accident.”

Workmen’s Compensation cases have long interpreted the term “accident” to include unusual or unexpected results. In Duff Hotel Company v. Ficara, 150 Fla. 442, 7 So.2d 790 (1942), our supreme court rejected the contention that “accident” should be “literally” construed to apply only where an external force or circumstance unexpectedly causes injury to the victim. The court held that the terin “accident” encompasses the unusual result of a known cause without the showing of any fortuitous mishap, stumble, or fall. In that case, a hernia received by ordinary lifting in the usual manner, was an injury caused by “accident.”

In Gray v. Employers Mut. Liability Ins. Co., 64 So.2d 650 (Fla.1952), where a worker injured her arm from lifting a heavy object, our supreme court once again rejected the definition of “accident” requiring a fortuitous mishap. The court considered dictionary definitions and found that an unexpected result of an ordinary circumstance was commonly understood as an “accident.” Thus a back injury suffered when attempting to pick up and load a box certainly was, in common parlance, an “accident.” Gray established the “unusual result” test as a criterion for the existence of an accident. Spivey v. Battaglia Fruit Company, 138 So.2d 308, 310 (Fla.1962). After the Gray decision, it became:

“ . . . settled beyond question in this state that an internal failure, such as a strained muscle, ruptured disc, ‘snapped’ knee-cap, and the like, brought about by exertion in the performance of the regular or usual duties of the employment, may be found to be an injury ‘by accident,’ without the necessity of showing that such injury was preceded by some incident, such as a slip, fall or blow.” (Victor Wine & Liquor, Inc. v. Beasley, 141 So .2d 581 [Fla.1962] at p. 588, Opinion on rehearing construing Workmen’s Compensation law.)

These results are consistent with the present Workmen’s Compensation statutory definition: “ ‘Accident’ means only an unexpected or unusual event or result, happening suddenly.” Section 440.02, Florida Statutes (1975).

This definition of “accident” to include the unexpected results of a known cause is not limited to dictionaries and Workmen’s Compensation law. In Christ v. Progressive Fire Insurance Company, 101 So.2d 821 (Fla. 2d DCA 1958), this court construed a contractor’s liability insurance policy providing coverage for damage “caused by accident.” This court recited an often-quoted passage from Midland Construction Co. v. United States Casualty Co., 214 F.2d 665 (10th Cir. 1954) to define “accident” as including an unexpected result from a known cause as well as an event from an unexpected cause. In the Florida case, however, neither the cause nor the result could be said to have been unexpected. Similarly, in Shelby Mutual Ins. Co. v. Ferber Sheet Metal Works, 156 So.2d 748 (Fla. 1st DCA 1963), a common understanding of the word “accident” as used in a contractor’s liability insurance policy was said to include “an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause.” 156 So.2d at 751.

A strikingly appropriate case for consideration at this juncture is Roberson v. United States Automobile Association, 330 So.2d 745 (Fla. 1st DCA 1976). That case involved a claim for bodily injury “caused by accident” under an automobile liability insurance policy. There the plaintiff suffered injury when something bled suddenly as he was' stooping over in his travel trailer which was covered under the policy. In Roberson, as here, the insurer contended that there was no accident because there was no external trauma or force. The court recognized that the common and reasonable understanding by purchasers of such policies is that the purchaser is covered for any fortuitous and undesigned injury. As in Workmen’s Compensation, the average person would consider the unexpected result to be fortuitous and undesigned even though there was no unusual act precipitating the injury. The injury in that case would be commonly understood to have been an “accident” covered by that policy. The policy did not alter this common understanding with a statement defining, qualifying or narrowing the term “accident.” The insurer in that case did not put its insured on notice that this common expectation of coverage for such an injury would not follow under the insurer’s construction of the policy. Since an insurer, as draftsman of the form policy, will not be allowed to use obscure terms to defeat the purpose for which the policy was purchased, the terms must be liberally construed in favor of coverage so that where two interpretations are available the one allowing greater indemnity will prevail. Summary judgment in favor of the insurer was reversed.

Text writers also muster in support of this definition of “accident.” In Couch on Insurance 2d, “accident” is defined to include “an unusual event attending the performance of a usual or necessary act or an unusual effect of a known cause.” 10 Couch on Insurance 2d § 41:6 (1962). Accord 1A Appleman, Insurance Law and Practice 23 (1965) (distinguishing also between “accident” and “accidental means”); Vance on Insurance § 181 (3d Ed. 1951).

Whether defined by the man-on-the-street, the lexicographer, the judge, or the text writer, the unexpected result of a usual occurrence is an injury “caused by accident,” even though the usual event is not accompanied by any external force or mishap. We must construe the term “accident” as used in this policy in accordance with this common understanding of the term unless Home has provided otherwise in the policy. Here, as in Roberson, the insurer has chosen not to define, qualify, or narrow its use of the term “accident.” Home has given the examiners of the policy no reason to believe that its understanding and use of the term is any different than the common understanding and use. Since the trier of fact would have been entitled to find that Braley’s injury was the unexpected result of his usual performance of his duties, the trial court erred in finding that the injury could not be an “accident” under the terms of the policy.

Home also argues, in this connection, that even if Braley’s disability is the result of the usual performance of his duties, the disability cannot be considered “unexpected” in light of his prior identical injury. While it is true that Braley’s prior injury resulted from the same type of work, up until the time of this later injury Braley had resumed this work for a number of years since the first injury without significant incident. There is substantial competent evidence from which the trier of fact could reasonably find that Braley’s disability was unexpected. The evidence presented a genuine issue of material fact as to whether Braley’s disability was caused by “accident.” This issue should have been resolved by the trier of fact after presentation of all the evidence and not by the trial court on motion for summary judgment.

Notwithstanding the above, the trial court’s entry of summary judgment would be proper if there was no genuine issue of a material fact as to whether the disability was caused by an accident “resulting directly and independently of all other causes” as this phrase employed in insurance contracts is judicially construed. In support of this action, Home points out that the prior injury was a contributing cause to the later injury resulting in Braley’s present disability. We find that under the construction to be given this phrase, Braley’s performance of his duties could have been the “direct and independent” cause of his disability even though his prior injury was a contributing factor.

The case of Nationwide Mutual Insurance Company v. Anglin, 306 So.2d 147 (Fla. 2d DCA 1975) is dispositive of this point. There the policy under examination covered only injury which results in loss “directly and independently of all other causes.” In Anglin the wife sought insurance proceeds for the accidental death of her husband, a deputy sheriff, who suffered a fatal heart attack after a fight with a suspect. An autopsy revealed that the deputy had a condition of arteriosclerosis for a number of years and that this condition, combined with the exertion from the fight, caused the fatal heart attack. The legal problem occurred because the physical trauma of the fight acted upon the pre-existing ailment so as to cause the injury. Anglin quoted the discussion in 10 Couch on Insurance 2d § 41:380 to harmonize prior Florida cases. That quote discussed the different legal results attendant upon subtle differences in the policy language and is worth reciting here:

“ ‘§ 41:380. Distinction between express exclusion clause and “caused solely by accident” clause.
There is a distinction between an accident policy covering loss “resulting directly, independently and exclusively” from other causes and a similar policy containing the additional phrase excluding disability “wholly or in part, directly or indirectly, from disease or other bodily infirmities,” or phrases of like nature. The phrase “resulting directly, independently and exclusively” refers to the efficient, substantial, and proximate cause of the disability at the time it occurs. On the other hand, a policy containing the additional phrase set out above refers to another contributory cause, whether proximate or remote. Where, under a policy containing only the first phrase, the accidental injury acts upon a pre-ex-isting disease causing total disability which except for such disease would not have occurred, the injury is deemed to be the proximate cause of the disability entitling recovery. But it is otherwise where the policy contains the additional phrase indicated above . . . ”

Anglin also quotes from Jones v. General Accident, Fire & Life Assur. Corp., 118 Fla. 648, 159 So. 804 (1935) that:

“ ‘A bodily injury may be the direct and exclusive cause of death within the meaning of the policy of insurance in this case when such bodily injury directly and exclusively makes active and progressive a then existing dormant, inactive, diseased condition of the insured, whereby death results; and in such case there may be liability of the insured under the policy, even though the bodily injury would not have resulted in the death of the insured, had he not had the dormant inactive diseased condition of his person . .’ ” See also 10 Couch on Insurance § 41:79.

After noting the significance of the absence of an exclusion for injuries resulting wholly or partly from other causes, Judge Grimes observed:

“ . . . [Wjhen an accident and a preexisting physical condition combine to bring about death, there will ordinarily be a question of fact if the policy provides for coverage whenever the death occurs directly and independently of all other causes. If the policy also contains a provision excluding coverage where the death arises in part from disease or other bodily infirmity, the insurance company will be entitled to judgment as a matter of law whenever the undisputed facts show that disease materially contributed to the death.”

Finding the absence of the additional phrase, this court reversed summary judgment entered in favor of that insurer.

The policy language under examination in the instant case is identical to that in Anglin. This language contains no limitation of coverage where the injury arises in part or indirectly from another cause or contributing condition. The testimony on deposition of Braley and various physicians reveals that Braley’s prior injury produced a weakened condition in his back. The testimony is virtually unanimous that the lifting at the time of the second injury combined with this weakened condition to result in Braley’s present disability. One of the physicians testified that approximately 10% of the patients with injuries such as Braley’s first injury developed subsequent disabilities similar to Braley’s present disability despite the absence of additional trauma. However, Braley testified that he had experienced no significant problems performing his usual duties between the time of treatment for his first injury and the occurrence of the second injury. Other physicians also testified that Braley could return to work with modified duties after his first injury. This gives rise to a genuine issue of material fact as to whether Bra-ley’s weakened condition after the first injury was inactive until acted upon by the lifting in 1969. If the trier of fact were to find this to be the case, then the trier of fact could reasonably find that Braley’s weakened condition did not prevent his disability from being the result of the lifting in 1969, “directly and independently of all other causes.” Accordingly, the trial court erred in granting summary judgment in favor of Home on the basis that Braley could not show that his disability resulted from the lifting in 1969, directly and independently of all other causes.

Finally, even though the court below did not base its decision upon this ground, Home also seeks to support the summary judgment with the argument that the policy excludes coverage for any loss “caused by or resulting from . . . disease of any kind.” The language of this exclusion is not the same as the one which was deemed to be material in Anglin. We do not need to reach the question of whether the subject exclusion would be applicable to exclude a loss partially resulting from a disease because the record discloses a genuine issue of fact concerning whether Bra-ley’s prior condition constituted a “disease.”

Since there were genuine issues of material fact which precluded the entry of a summary judgment for Home upon any theory, the final summary judgment entered herein must be reversed, and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN, C. J., and GRIMES, J., concur.

      . See Bennett v. Fidelity & Casualty Company of New York, 132 So.2d 788 (Fla. 1st DCA 1961) discussing the importance of the “unexpectedness” element of “accident” in a public liability insurance policy.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. John COOK, Appellee.
    No. 77-784.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 22, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellee.
   HOBSON, Acting Chief Judge.

Appellee/defendant, John Cook, was charged with robbery in violation of Section 812.13, Florida Statutes (1975). Appellee filed a motion to dismiss which included numerous allegations designed to show that the undisputed facts of the incident which resulted in the charge against appellee did not establish a prima facie case. Appellant, State of Florida, filed a traverse to the motion denying each of the allegations made by appellee. After a hearing the trial judge granted the motion to dismiss. We reverse.

Fla.R.Crim.P. 3.190(d) requires denial of a motion to dismiss where “the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” See State v. Wood, 299 So.2d 111 (Fla. 2d DCA 1974). In the case before us the state strictly complied with the rule, and consequently it was error to dismiss the information.

REVERSED and REMANDED.

SCHEB and OTT, JJ., concur.