text:
    VOLUME SERVICES DIVISION OF INTERSTATE UNITED CORPORATION, and Interstate United Corporation of Florida, Inc., Petitioners, v. CANTEEN CORPORATION, Koolee, Inc., and Thomas B. Trierweiler, Respondents. VOLUME SERVICES DIVISION OF INTERSTATE UNITED CORPORATION, and Interstate United Corporation of Florida, Inc., and Tampa Sports Authority, Appellants, v. Thomas B. TRIERWEILER, Canteen Corporation, and Koolee, Inc., Appellees.
    Nos. 78-1897, 78-1903, 78-1931 and 78-2026.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Thomas T. Steele of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for Volume Services Division of Interstate United Corp. and Interstate United Corp. of Florida, Inc.
    C. Lawrence Stagg and Michael A. Fo-garty of Stichter, Stagg, Hoyt, Riedel & Fogarty, P.A., Tampa, for Tampa Sports Authority.
    John W. Boult and W. Crosby Few of Few & Ayala, Tampa, for Canteen Corp.

      Michael C. Addison and Richard Benjamin Wilkes of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for Koolee, Inc.
    J. Rex Farrior, Sr. and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for Thomas B. Trierweiler.
   GRIMES, Chief Judge.

These appeals involve a controversy stemming from the award of the concessions franchise at Tampa Stadium.

In March of 1977 the Tampa Sports Authority (TSA) announced its intention to enter into a hew ten-year contract for the concessions franchise at Tampa Stadium. Paragraph 15(b) of the bid specifications provided:

Acceptance and rejection of proposals.

(b) The right to enter into the formal license agreement shall be awarded to the responsible bidder submitting the highest percentage of gross receipts. In determining whether a bidder is responsible the authority may consider financial responsibility, general experience and reputation of a bidder and any other reasonable criteria.

Several concessions companies submitted bids pursuant to the specifications. TSA voted to accept the bid of Interstate United Corporation of Florida, Inc. (Interstate) even though Ogden Food Service Corporation (Ogden) and Canteen Corporation (Canteen) had each submitted a bid pledging a higher percentage of gross receipts to TSA than had Interstate. On June 30, 1977, Interstate and TSA entered into a contract permitting Interstate to sell food, drink and other items at the Tampa Stadium for a period of ten years.

Thomas B. Trierweiler (Trierweiler), a resident of Tampa and an employee of Ogden, filed a taxpayer’s suit against TSA challenging the legality of the contract between TSA and Interstate. Trierweiler prayed for an injunction preventing Interstate’s further operation at the stadium and requested the court to award the concessions contract to Odgen, the highest bidder. TSA sought to justify its award to Interstate on the comparison of (1) past performances in other stadia similar to Tampa Stadium, (2) management personnel, and (3) potential volume of sales.

A summary judgment was entered on June 28, 1978, holding that TSA did not have the right to prepare the bid specifications in a manner which reserved undefined discretion to select other than the highest bidder. The court reasoned that by including in paragraph 15(b) of the specifications the words “and any other reasonable criteria” TSA had improperly reserved the right to determine what “other reasonable criteria” it might choose to apply until after the submission of the bids. The court observed that specifications for bidding on a public project must be definite enough on points of material concern as to allow an objective comparison of bids on a common basis. The court voided the contract between TSA and Interstate and ordered TSA to rebid the franchise and to issue new bid specifications in compliance with the summary judgment. Interstate, which had already begun to perform under the contract, was permitted to continue to handle the concessions for a limited period of time pending rebidding. TSA did not appeal the summary judgment.

TSA revised its bid specifications to provide as follows:

1. Determination of Qualification of Bidders.
(a) Authority reserves the discretion based on the criteria set out in this subsection to determine whether particular bidders have the basic qualifications to conduct a food and beverage service concession for a facility of the size of the Stadium. This determination shall be in addition to procedures for selection of the concessionaire under section 2 of this article. A bidder who is determined on the basis of the listed criteria to lack the basic qualifications to conduct the concession at the Stadium will not be awarded the right to enter the formal license agreement, regardless of percentage bid or other relevant merits of the proposal.
(b) In determining whether a bidder possesses the basic qualifications to operate, the Authority will consider the following:
(1) Experience in operation of similar facilities, or in operation of any facility having a seating capacity in excess of 40,000.
(2) Past performance of the bidder at the Stadium or at other facilities.
(3) Bidder’s general reputation for performance and service.
(4) Bidder’s financial condition.
(5) Bidder’s existing service contracts and ability to expand operations.

2. Selection of Concessionaire.

(a) Bidders are advised that the Authority intends to select as concessionaire the qualified bidder who the Authority determines, based on the criteria set out below will provide the Authority with the opportunity to maximize its revenues from the concession operation, while at the same time providing high quality products and efficient service to Stadium patrons.
(b) In order to determine which proposal will provide the Authority with the opportunity to maximize its revenue from concessions, the Authority will consider the following factors, none of which will, standing alone, be conclusive.
(1) The percentage of gross receipts from concessions bid.
(2) The historical per capita production from sale of food and beverage concessions by the Bidder:
(A) At the Stadium, if any.
(B) At similar facilities for events similar to those conducted at the Stadium, if any.
(C) At all events at similar facilities, if any.
(D) At dissimilar facilities for events similar to those conducted at the Stadium, if any.
(E) At dissimilar facilities for all events.
(3) Bidder’s experience and general performance at operating food and beverage concessions at the Stadium and at other similar facilities, as shown by personal knowledge of or experience with the bidder, if any, by inspections of other facilities which have been or may be made by or on behalf of the Authority, or by the other criteria set out in this article.
(4) The experience, training and past performance of those persons designated by the bidder as proposed management-level personnel regarding operation of concessions at the Stadium.
(5) The criteria for determination of qualifications set out in Section 1 of this Article.
(c) In order to determine whether a bidder will insure that patrons of the Stadium will be provided high-quality products and prompt, efficient and satisfactory service, the Authority will consider each of the criteria set forth in sections 1 and 2 of this Article, relating to past performance and service.

TSA received seven bids in response to the new specifications. With respect to the percentage of gross receipts to be paid to TSA, the parties interested in this litigation bid as follows:

Koolee, Inc. 46.3%
Canteen Corporation 44.15%
Ogden Food Service Corporation 44.13%
Interstate United Corporation of Florida, Inc. 42.1%

TSA referred the bids to its concessions committee for preparation of a recommendation to the full authority. The concessions committee, in turn, ordered its staff to submit a report and recommendation to the committee. The staff recommended an award to Canteen. The full concessions committee, however, met and decided that, in consideration of all of the factors listed in the specifications, Interstate should be awarded the contract. The committee members relied heavily on their conclusion that Interstate’s experience would generate higher per capita sales which would ultimately result in higher revenue for TSA. The full authority accepted the committee’s recommendation and voted to award the contract to Interstate.

At this point, Koolee, Interstate and Canteen were permitted to intervene in the litigation. Trierweiler and Canteen moved to set aside the award to Interstate. On October 23, 1978, the court set aside the award of the concessions contract to Interstate on the ground that TSA had not complied with the summary judgment by making an objective comparison of the bids on a common basis. The court directed TSA to “reconsider” its decision to contract with Interstate. Canteen also filed a petition for writ of mandamus to require TSA to award the concessions contract to Canteen, and Koolee moved for an order compelling an award to Koolee because of its status as the highest percentage bidder.

TSA then met in special session to reconsider its decision to award the concessions contract to Interstate and voted once again to contract with Interstate. The court then entered an order dated November 1, 1978, invalidating the bid specifications because they did not conform to the final summary judgment. The court held that the only criteria which met the requirements of objectivity was the comparison of percentage of gross receipts pledged. The court ordered TSA to redraw the specifications and to rebid the contract. The court, however, affirmed TSA’s finding that Koolee was not a qualified bidder because of its lack of experience in large stadia. Finally, the court directed that should the bid specifications be upheld on appeal, an objective consideration of all factors required an award to Canteen. TSA, Interstate and Koolee each seek review of the orders of October 23, 1978, and November 1, 1978.

At the outset, we must consider Interstate’s contention that upon the entry of the summary judgment of June 28, 1978, the court lost jurisdiction to enter orders with respect to the new specifications and the new bids in the absence of the filing of another lawsuit. Interstate points out that except for the limited circumstances under which modification is permitted, once a judgment becomes final, the court ordinarily loses jurisdiction to entertain further proceedings other than for purposes of enforcement. Davidson v. Springer, 109 Fla. 238, 147 So. 228 (1933); Hopwood v. Revitz, 312 So.2d 516 (Fla. 3d DCA 1975).

Canteen responds that the orders entered subsequent to the summary judgment amounted to nothing more than enforcement because TSA had failed to follow the directions of the court as set forth in the final judgment. Canteen points out that Interstate, itself, obtained permission to intervene in the proceeding and ultimately sought affirmative relief by requesting the court to allow it to continue as interim concessionaire after the expiration of the time period originally specified in the summary judgment. Canteen argues that since all of the interested parties were before the court and the subject matter of the dispute was within the court’s jurisdiction, a denial of the court’s authority to conduct the proceedings necessary to resolve this dispute would exalt form over substance.

We do not believe that the court was without jurisdiction to conduct the proceedings which occurred subsequent to the entry of the summary judgment. It may be that if an appeal had been taken from the summary judgment we would have concluded that the court erred in doing anything more than setting aside the original contract. See City of Miami Beach v. Klinger, 179 So.2d 864 (Fla. 3d DCA 1965). However, the fact remains that the summary judgment, from which no appeal was taken, ordered TSA to issue new bid specifications in compliance with the summary judgment. The matters involved in the subsequent pro-ceedings bore a sufficient relationship to enforcement so as to permit the court to proceed without the filing of a new action. Moreover, there was an obvious need to continue to exercise jurisdiction in order to insure that TSA would have the services of an interim concessionaire until the award of a new contract.

On the merits, TSA and Interstate argue that the new specifications were not invalid and that TSA did not abuse its discretion in deciding to award the contract to Interstate. Canteen does not question the validity of the specifications but, because the court below did, we deem it advisable to address this point. In so doing, however, we will necessarily discuss the scope of TSA’s discretion.

There is no common law rule requiring public agencies to let contracts through competitive bids. In the absence of specific constitutional or statutory requirements, a public agency has no obligation to establish a bidding procedure and may contract in any manner not arbitrary or capricious. Eggart v. Westmark, 45 So.2d 505 (Fla.1950); William A. Berbusse, Jr., Inc. v. North Broward Hospital Dist., 117 So.2d 550 (Fla. 2d DCA 1960); 10 E. McQuillin, Municipal Corporations, § 29.31 (3d Ed. 1966); 64 Am.Jur.2d Public Works and Contracts § 34 (1972). Even when the receipt of bids is required by law, a public agency has no obligation to let a contract to a particular bidder — the lowest, the lowest and best or the lowest responsible bidder— in the absence of a directive to that effect in the controlling legislation.

In William A. Berbusse, Jr., Inc. v. North Broward Hospital Dist., supra at 551, the low bidder attacked the award of a construction contract by a public hospital district to a higher bidder. The legislative act which created the district specified that construction contracts should be awarded “to the lowest responsible bidder, provided it is to the Owner’s interest to accept the bid.” In affirming an award of the contract to the higher bidder, this court said:

A public body is not required unqualifiedly to award the contract to the low bidder unless there exists a statutory requirement. .

TSA was created by Chapter 65-2307, Laws of Florida. Section 4 of this legislative act provides:

Section 4. General Powers. The Authority is hereby authorized and empowered:
(1) to contract for the operation of concessions on or in any of the sports and recreational facilities of the authority; subject to reasonable public notice, bids and hearing.

Significantly, this act was amended to provide that in the case of purchase, lease or repair of tangible property, TSA must award the contract to the lowest responsible bidder. Ch. 69-1142, Laws of Fla. Thus, the legislature obviously intended for TSA to have more discretion in the determination of its concessionaire than in the selection of contractors or suppliers.

Section 4 requires only public notice, bids and hearing. There is no suggestion that the bid specifications must be prepared in any particular manner. The absence of the word “competitive” confirms that there is no mandate for specific criteria upon which the bids must be received. Hence, there is no basis upon which to hold the specifications invalid for lack of objectivity.

Despite its lack of a requirement that the contract be awarded to the lowest responsible bidder, section 4 serves a substantial public purpose by requiring TSA to publicize its intention to award a contract, to receive bids on the contract, and to decide the award at a public meeting. If there are sinister influences abroad or if TSA intends to abuse its discretion, then these evils will become much more apparent under the spotlight of public scrutiny. This does not mean, however, that TSA does not retain the utmost discretion to decide which bidder should receive the contract.

Having reached this conclusion, we can easily dispose of the contention that Koolee should not have been disqualified from consideration because of its lack of concessions experience in stadia having a seating capacity of over 40,000 persons. The job of providing concessions at Tampa Stadium is a responsible undertaking, and TSA cannot be faulted for its desire to use a concessionaire with previous experience in comparable facilities. TSA was not obligated to provide Koolee with a springboard into the stadium concessions business.

While conceding TSA’s discretion, Canteen argues that there is sufficient evidence in the record to support the court’s conclusion that TSA abused that discretion. Much of the controversy in this matter centered upon the question of which of the bidders was most likely to generate the highest gross receipts from the sale of concession items at the stadium. TSA properly recognized that limiting its consideration to the percentage of gross receipts pledged by the bidders would be inadequate unless one assumed that all concessionaires would realize identical total sales. Accordingly, TSA asked the bidders to furnish historical data in the form of per capita sales, i. e. the average dollar amount sold to each person attending events at stadia served by the respective concessionaires. As a consequence, the bidders submitted per capita data of their performances at various football, baseball and soccer stadia throughout the country.

Canteen argues that after receiving all of this information, TSA arbitrarily declined to give any weight to the baseball and soccer figures and was only able to offset the higher percentage bid of Canteen by comparing Interstate’s 1977 football per capita figures at several stadia with Canteen’s 1977 football per capita figures at Schaeffer Stadium in Foxborough, Massachusetts, which is a cold weather stadium. In essence, Canteen says that if all of the per capita figures were given substantially equal weight, its figures were such that after the application of its higher percentage bid, TSA could be expected to derive more net revenue with Canteen as its concessionaire.

TSA says that a consideration of the soccer figures would not have affected the outcome of the revenue computations but admits that Canteen’s performance in baseball stadia has been superior to Interstate’s. TSA justifies its lack of reliance on baseball figures on the bases that no baseball is played or contemplated at Tampa Stadium and the sale of concession items at the two events differs because there is only one extended break in the action during a football game. TSA points out that Canteen serves only one pro-football stadium while Interstate serves three in addition to Tampa Stadium. Furthermore, Arrowhead Stadium in Kansas City, which is served by Interstate, is just as much a cold weather stadium as is Schaeffer Stadium in Massachusetts, and, in order to make a fair comparison, 'TSA could not exclude per capita figures for cold weather games at Schaeffer Stadium without also eliminating the figures for cold weather games at Arrowhead Stadium. TSA also calls to our attention the finding of its concessions committee that Interstate had done a good job since taking over the Tampa Stadium concessions and that the quality of its services had been much better than that of Ogden’s, the previous concessionaire.

In the final analysis, depending upon the weight given to the various categories of figures and the other factors, both sides can make a case for their respective positions. No doubt this is what prompted the lower court’s conclusion that subjective considerations played an important part in the award of this contract. But, as we have pointed out, TSA was not required to award this contract solely upon the basis of an objective comparison of percentage bids.

The nonpaid members of TSA have been given the responsibility of operating Tampa Stadium in the best interest of the citizens of Tampa and Hillsborough County. They fully complied with the governing legislation applicable to the award of the concessions contract. There is no suggestion of any fraud or overreaching in the determination to award the contract to Interstate. Canteen can make a strong case that its bid was more favorable, but we cannot say that TSA’s decision was arbitrary, capricious or beyond the scope of its discretion. As our supreme court said in Culpepper v. Moore, 40 So.2d 366, 370 (Fla.1949):

So long as such a public agency acts in good faith, even though they may reach a conclusion on facts upon which reasonable men may differ, the courts will not generally interfere with their judgment, even though the decision reached may appear to some persons to be erroneous.

The orders setting aside the award of the concessions contract to Interstate and invalidating the new specifications are reversed.

BOARDMAN and RYDER, JJ., concur.

      . A mistake in the staffs figures was later discovered thereby putting into question part of the premise upon which the staff’s recommendation had been made.

      . Once the time in which Interstate had been permitted to serve as interim concessionaire had expired, the court appointed Canteen to act in this capacity until a new contract was properly awarded. Following TSA’s appeal, this court reversed the trial court’s denial of super-sedeas and ruled that upon the posting of appropriate security Interstate could continue to handle the concessions pending our decision.

      . Even though we have concluded that the court was not without jurisdiction to entertain further proceedings, we do not conceive that we are bound to limit our review to the mechanics of enforcement, particularly since the subject matter of the subsequent orders ranged substantially further.

      . TSA sought high bids since the successful bidder would be required to pay TSA for the privilege of selling concessions in the stadium.

      .Perhaps the reason for this distinction is that a concessions contract smacks more nearly of a contract for personal services. Florida has followed the lead of many other jurisdictions in construing its general statutes requiring competitive bidding for the award of contracts by public agencies as inapplicable to contracts for personal services. Parker v. Panama City, 151 So.2d 469 (Fla. 1st DCA 1963).

      . Even where the governing legislation required the acceptance of the lowest bid, this court held that a public agency could properly include in its specifications a provision for bids on systems for maintenance in subsequent years. Hillsborough County Aviation Auth. v. Taller & Cooper, Inc., 245 So.2d 100 (Fla. 2d DCA 1971).

      . The court took no testimony concerning the deliberations of TSA in the award of the contract to Interstate and relied primarily upon an examination of the minutes of TSA’s meetings. Therefore, any findings of fact made by the trial court are entitled to less weight on appeal because this court enjoys an equal vantage point from which to discern what actions TSA took.

      . While we are not called upon to approve the original summary judgment, we note that the basis upon which the court set aside the second award to Interstate was far different from the first. The original specifications provided that the contract would be awarded to the responsible bidder submitting the highest percentage of gross receipts, yet the high bidder was denied the contract on the basis of undisclosed criteria.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carl Anthony ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2290.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence but we remand the case for correction of the judgment and sentence form so that it conforms to the judge’s oral pronouncement of sentence. The judge imposed a sentence of two years imprisonment with credit for 141 days previously served. However, possibly through a scrivener’s error, the form provides for a sentence of two years 141 days with credit for 141 days served.

This clerical error should be corrected. Otherwise the judgment is affirmed.

HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.


author: DANAHY, Judge.

text:
    FLORIDA HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., et al., Appellants, v. Christopher J. BRADSHAW et al., Appellees.
    No. 77-1894.
    District Court of Appeal of Florida, Second District.
    March 30, 1979.

      Chris W. Altenbernd and W. Donald Cox of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.
    Douglas J. Loeffler of Fox, George, Loef-fler & Downey, Clearwater, for appellees.
   DANAHY, Judge.

In this case a high school’s football program ran afoul of the rules which govern eligibility to participate and impose sanctions for violations, no matter how innocent. For an inadvertent violation, the school’s football team was threatened with losing its chance to compete for a state championship. The trial judge granted an injunction which avoided that result. On the facts presented in this case, we hold that the injunction should not have been granted.

The facts are essentially undisputed. Plaintiff/appellee Christopher J. Bradshaw (Christopher) was a student at Largo Senior High School (Largo). He participated as a varsity member of the football team in two games between Largo and other high schools in the fall of 1977, both won by Largo, at a time when he was ineligible to do so under the rules of defendant/appellant Florida High School Activities Association, Inc. (the Association). Accordingly, the Association declared that Largo must forfeit those two football games. This suit was brought to enjoin the Association and Largo’s principal from imposing that forfeiture. The injunction was granted and the Association appeals. We reverse.

The Association is a voluntary association of almost all private and public high schools in the State of Florida. Largo is a member. The members of the Association enact rules which regulate interscholastic athletic activities among them. These rules are contained in the by-laws of the Association. The rules applicable in this case are as follows:

A student must reside with his/her parents, or with the same one parent or other individual with whom he/she has continuously resided for a full calendar year, in his/her school community. Until he/she has met this residence requirement, he/she shall be ineligible to represent his/her school in interscholastic athletic contests. However, attendance for a full calendar year in a school other than that which serves his/her home community shall qualify a student to represent that school so far as residence is concerned.
No student is eligible, regardless of his or her eligibility in other respects, until his or her name has been submitted to the Executive Secretary on an annual eligibility list for the current school year, and if his or her name does not appear on the game eligibility list exchanged between the competing schools before the game. If an ineligible player is permitted to participate in an interscholastic athletic contest, forfeiture of the game and honors shall be mandatory .
The principal of the school represented by the ineligible participant shall forfeit the contest or contests.

The by-laws permit the Association to waive an eligibility rule (other than the age limit) on grounds of undue hardship, but there is no provision permitting waiver of a forfeiture once the rule violation has occurred which mandates the forfeiture penalty.

Christopher enrolled at Largo in August 1977. His parents were divorced and during the two years prior to August 1977 he was in the legal custody of his father and did not live in Largo. In August of 1977, Christopher began residing with his mother and her husband in the Largo school district. He was, therefore, ineligible to play football in Largo in the fall of 1977 under the one-year residency rule. He was also ineligible for the two games in question because his name was not on the game eligibility lists (although it was on Largo’s annual eligibility list).

It should be noted that although Christopher “suited up” for those two games, he did not actually play in either. It should also be noted that there is absolutely no indication in this case that the rule violation was intentional or for the purpose of recruiting. Recruiting, of course, is the evil intended to be met by the one-year residency requirement. .

After the situation regarding Christopher’s residence was brought to the attention of the Association, it notified Largo that the two football games in which Christopher had participated must be forfeited. An application to the Association was made on Christopher’s behalf requesting a waiver of the residence requirement as to him on grounds of hardship. The Association granted that application, thus making Christopher eligible to participate in future games, but insisted that the two football games in which Christopher participated while ineligible must be forfeited. This suit against the Association followed. The principal of Largo, though undoubtedly sympathetic, was made a party defendant because, apparently, he felt that he had no choice other than to comply with the by-law requirement and declare the games forfeited.

The plaintiffs are Christopher and his parents, the coach of the Largo Senior High School football team, and the team captain as representative of the team. Their complaint alleged that if Largo forfeited the two football games in question, it would no longer be in contention for the district championship and thus could not compete for the state championship in its class. The injunction granted by the trial judge prevented the forfeiture and Largo was declared district football champion, thus making Largo eligible to compete for the state championship. Thereafter, Largo’s team lost in an interdistrict play-off game and was eliminated from further contention for the state championship.

By motion to dismiss this appeal, plaintiffs/appellees suggested that, since Largo’s participation in the state championship play-offs had occurred and was unsuccessful, this case is now moot. Stated otherwise, plaintiffs/appellees are simply no longer interested in the outcome. The Association vigorously opposed the motion to dismiss, arguing that the interest of the Association in the integrity of its rules and their application in this case makes the outcome very important to the Association and its member schools and prevents the case from being moot. We agreed and denied the motion to dismiss. Accord, Oklahoma High School Athletic Ass’n. v. Bray, 321 F.2d 269 (10th Cir. 1963).

Unfortunately, the asserted importance of this appeal to the Association was not matched by a commensurate amount of care on its part in describing to this court the issues involved. According to the Association, the case involves simply an impermissible interference by the trial judge in the internal affairs of a private voluntary association. In support of its position, the Association cited to us the 1941 decision of the Supreme Court of Florida in Suit v. Gilbert, 148 Fla. 31, 3 So.2d 729 (1941). In that suit, which involved a dispute between a member high school and the Association, the court did indeed hold that the matter was one of contract and there was no justification for interference by the court in that situation. No constitutional issues were addressed.

The Association also cited to us cases from other states holding that harshness resulting from the application of a high school athletic association’s eligibility rules is not grounds for judicial interference. Morrison v. Roberts, 183 Okl. 359, 82 P.2d 1023 (1938); Sanders v. Louisiana High School Athletic Ass’n., 242 So.2d 19 (La.App.1970). We agree with the rationale of these decisions, which are in accord with Suit v. Gilbert, supra, and would reach the same conclusion in this case were no constitutional issues presented.

Plaintiffs/appellees, for their part, and perhaps understandably in view of their present lack of interest, have likewise failed to furnish guidance to this court as to the issues here involved. They have simply cited two decisions from the Third District Court of Appeal holding that Florida high school students barred from participating in interscholastic athletic activities by the eligibility rules of the Association may be entitled, under the circumstances of those cases, to injunctive relief against the Association on due process grounds. Lee v. Florida High School Activities Association, Inc., 291 So.2d 636 (Fla. 3d DCA 1974); Florida High School Activities Association v. Bryant, 313 So.2d 57 (Fla. 3d DCA 1975). That is not the case here; the Association’s waiver of the residence requirement as to Christopher on grounds of hardship made him eligible to participate in future games.

Because of the parties’ treatment of the issues in their briefs and on oral argument, this court has been required to review the record to determine the basis for the ruling of the trial judge in this case, and undertake its own research to determine the principles of law which must be applied in deciding whether the trial judge was correct. Imposition of that burden on this court aggravates the problem we face in accommodating the demands of an extremely heavy case load.

In the order- appealed from, the trial judge set forth the following findings:

1. That the activities of [the Association] constitute “state action” in the constitutional sense.

2. That the unintentional failure to comply in every detail with the eligibility rules of [the Association] was in no way for the purpose of recruiting; or for any other purpose in contravention of the letter or spirit of the by-laws of [the Association] nor in contravention of the purpose for which they were designed.

3. That the imposition of forfeiture as a penalty for an inadvertent failure to comply with the rules of the Association constitutes an arbitrary, capricious, and unduly harsh application of the by-laws of [the Association].

The order offered no further explanation of the basis of the trial judge’s decision to grant the injunction. The findings quoted above, however, clearly imply the application of constitutional principles.

The complaint in this case asserted two constitutional bases for the relief requested. One was the claim that the Association’s one-year residency requirement for eligibility operated as a denial of the equal protection of the law guaranteed by the 14th Amendment to the United States Constitution and in Article I, Section 2, of the Florida Constitution. The other claim was that the imposition of forfeiture of the games in which Christopher had participated while ineligible constituted a denial of substantive and procedural due process guaranteed by the 14th Amendment and in Article I, Section 9, of the Florida Constitution.

At the threshold the question arises whether the action of the Association is state action for constitutional purposes. The trial judge so found and in that respect he was eminently correct. The question is so well settled that it does not require extensive citation of authority. E. g., Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970). We hold, however, that plaintiffs/appellees have failed to show a deprivation by the Association of a constitutionally protected right.

As in all cases involving constitutional issues, a careful analysis of relative rights and duties as between the particular parties is necessary. We find several decisions of federal courts which have made that analysis in situations similar to that presented here. Pronouncements concerning federal constitutional issues, of course, are primarily found in decisions of federal courts. In the absence of a decision by a Florida court applicable to the situation presented in this case, we must necessarily turn to federal decisions in similar cases for guidance. We consider the federal and Florida constitutional guarantees as imposing the same standard and thus do not treat them separately. Cf. McClaskey v. Leatherman, 261 So.2d 137 (Fla.1972) (a final decision in the federal courts finding no violation of the 14th Amendment guarantees of equal protection and due process is controlling under the rule of comity in a state suit by the same parties challenging the same matter as violative of Florida constitutional guarantees of equal protection and due process).

DENIAL OF EQUAL PROTECTION

The claimed denial of equal protection is based on exceptions to the Association’s one-year eligibility rule. The complaint asserted that these exceptions create some unconstitutional classifications in that, for example, a student changing his residence from that of a parent to that of some other individual, because the parent has been committed to a correctional or state medical institution, or has died, is eligible without a one-year delay. It was claimed that, therefore, Christopher is in a class unfairly treated by the rules.'

We need not examine the merits of that claim, because Christopher has neither alleged nor shown any injury personally as a result of the rule’s application to him. As noted above, the Association waived the eligibility rule in Christopher’s case on grounds of undue hardship, so that Christopher was not barred from participating in Largo’s football games. The only injury that would be suffered, as far as this record shows, is an injury to the members of the Largo football team (including Christopher) and their coach, in that the forfeiture would have deprived the team of the title of district champion and the opportunity to compete in the state championship play-offs.

But neither the team members nor the coach have any right of redress because they have no standing to assert a claim of denial of equal protection to Christopher. Ih that respect we agree with the lower court in Associated Students, Inc., etc. v. National Col. Ath. Ass’n., 493 F.2d 1251 (9th Cir. 1974), which held that members of a student body had no standing to assert that an NCAA eligibility rule denied equal protection to student athletes. We note that neither the coach nor the team members in the case before us asserted any denial of equal protection to them, as a team member did in Moreland v. Western Pa. Interscholastic, etc., 572 F.2d 121 (3d Cir. 1978).

Therefore, for these reasons, we hold the equal protection argument fails to support the action of the trial judge in this case.

DUE PROCESS OF LAW

The crucial question here is whether the opportunity to participate in interscholastic athletic activities, standing alone, is a constitutionally protected right or privilege. We hold that it is not. Three United States Circuit Courts of Appeal have so ruled and the thorough discussions of the point in those cases need not be repeated here. Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970); Albach v. Odle, 531 F.2d 983 (10th Cir. 1976); Hamilton v. Tennessee Secondary School Athletic Association, 552 F.2d 681 (6th Cir. 1976). We find no federal decision to the contrary.

If an individual student has no constitutionally protected right or privilege to participate in interscholastic sports activities, then it follows that, without more, a school’s football team as a group has no such constitutionally protected right or privilege. We find nothing in this case to persuade us that Largo’s football team has a constitutionally protected right -to retain its record of games won or to be declared district champion or to compete in the state championship play-offs. The only other plaintiff in this case, the team coach, has offered no reason whatsoever to find that he has a constitutionally protected right to have a team he coached retain its win record or to have his team declared district champion or to have his team participate in the state championship.

We think it helpful to observe, parenthetically, that, likewise, Largo (not a party here) has no constitutionally protected right to its record of games won, its district championship, or the opportunity to participate in the state championship playoffs. We observe further that Largo, or the officials who represent Largo, have no constitutional duty to the Largo football team or any player higher than the contractual duty to declare the forfeiture of the two football games in question, a duty derived from Largo’s agreement with the Association as represented by the Association’s by-laws. Regents of U. of Minn. v. National Collegiate Athletic Association, 560 F.2d 352 (8th Cir. 1977). If there is a need for a means of alleviating harsh results in cases such as that presented here, the appropriate mechanism is the Association’s by-laws, which can be changed through the initiative of member schools, including Largo.

In sum, we hold that there is no right or privilege asserted in this case to which the constitutional standard of due process applies. As noted above, the only person in this case with standing to claim a denial of equal protection of the law has shown no injury. Accordingly, we hold that the granting of a permanent injunction by the trial judge was error and the same is hereby reversed.

Reversed.

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

      . A recent study prepared by the National Center for State Courts shows that Florida district courts of appeal rank close to the top in total caseload, and have the highest caseload (both on a unit of population and per judge basis) of all state intermediate appellate courts. NCJISS, LEAA, State Court Caseload Statistics: Annual Report, 1975, Washington, D.C., U.S. Government Printing Office (1979). The high volume of cases handled by our district courts of appeal is three times greater than the number of cases leading authorities suggest as the maximum which can be handled without jeopardizing the essential qualities of the appellate process. P. Carrington, D. Meador and M. Rosenberg, Justice on Appeal, at 143 (1976); R. A. Leflar, Internal Operating Procedures of Appellate Courts, at 9 (1976).

      . The opportunity to participate, in this case, was the opportunity to play on a winning team. We have found no case holding that such an opportunity is a constitutionally protected right or privilege.

      . We note that one federal court has expressed the view that a one-year eligibility rule would pass constitutional muster if tested on due process grounds. Walsh v. Louisiana High School Athletic Ass’n., 428 F.Supp. 1261 (E.D. La. 1977). That case contains a thoughtful discussion of the reasons why such a rule serves a legitimate state interest and why the automatic operation of the rule (not allowing for case by case adjudication of whether recruitment is actually involved in a particular case) is justifiable as the only effective plan for regulating recruiting.


author: OTT, Judge.

text:
    In re the ESTATE of James RIHA, Deceased. Elsie Sacha RIHA, widow of James Riha, Deceased, Appellant, v. Doris Mae Sue HARDING, as Personal Representative of the Estate of James Riha, Deceased, Appellee.
    No. 78-1314.
    District Court of Appeal of Florida, Second District.
    March 30, 1979.
    Robert H. Schultz of Law Offices of Robert H. Schultz, Bradenton, for appellant.
    Clifford L. Walters of Knowles, Blalock, Coleman & Landers, Bradenton, for appel-lee.
   OTT, Judge.

Appellant filed a notice of claim against the Estate of James Riha, deceased. Appel-lee/personal representative filed an objection to the claim. Appellant thereupon filed a petition to extend the time period for filing suit provided under § 733.18(2), Fla.Stat. (1973). Hearing on the petition for extension of time was held on May 15, 1978. The hearing was not recorded or transcribed. On June, 8, 1978 the court entered a written order nunc pro tunc to May 15, 1978, granting appellant an extension until June 1, 1978 to file suit. Motion for rehearing was denied and this appeal followed.

A court may enter an order nunc pro tunc to correct the record of an order actually made, which was either entered incorrectly in the court records or not entered at all. DeBaun v. Michael, 333 So.2d 106 (Fla. 2d DCA 1976). However, when the court wholly omits an order or wishes to change it, the new order cannot be entered nunc pro tunc. Nichols v. Walton, 82 Fla. 385, 90 So. 157 (1921); 56 Am.Jur.2d, Motions § 44.

The record on appeal does not disclose the entry of an order Until that of June 8, 1978. There is no prior order for the June 8th order to correct nunc pro tunc. Unfortunately, the order of June 8th grants an extension of time which appellant is already precluded from using. Although the trial court determined that an extension was warranted, the defective order effectively denied such an extension. Under the circumstances we hold that the trial court erred in entering the nunc pro tunc order of June 8, 1978.

We are aware that the appellant had the burden of showing a substantial reason which constitutes a legal excuse. In re Goldman’s Estate, 79 So.2d 846 (Fla.1955); Exchange National Bank of Winter Haven v. Field, 338 So.2d 889 (Fla. 2d DCA 1976). Since the record of the hearing is not before us on appeal, we must assume that the trial court correctly found good cause for granting appellant an extension. South Florida Apartment Association, Inc. v. Dansyear, 347 So.2d 710 (Fla. 3d DCA 1977); Brown v. Householder, 134 So.2d 801 (Fla. 2d DCA 1961).

The order appealed is reversed and the case remanded with direction that appellant be allowed 15 days within which to file suit.

BOARDMAN, Acting C. J., and SCHEB, J., concur.


author: HENDRY, Judge.

text:
    3-M ELECTRIC CORPORATION, Appellant, v. Mario VIGOA and Maria Vigoa, Individually and as parents and next friends of Jennifer Vigoa, a minor, Appellees.
    No. 77-2174.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Haddad & Josephs and Michael Cohen, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/defendant, 3-M Electric Corporation, seeks review of the trial court order which effectuated dismissal with prejudice of its counterclaim against appellees. The allegations of the said counterclaim constitute an attempt to establish a right to contribution from the appellees/plaintiffs in a tort action. Mr. and Mrs. Vigoa, individually and as parents of their minor child, had named the instant party, an electrical sub-contractor, as a codefendant in a suit for injuries proximately caused by the alleged negligent failure to remove a piece of pipe protruding vertically from the ground in the backyard of their recently constructed home; further allegations stated that there was no response to repeated requests for its removal and appellees’ minor child was injured when she fell on the pipe while playing in the backyard.

The appellant filed its answer and subsequently filed a third party complaint against Florida Power and Light Company and Metropolitan Dade County; a cross-claim against the general contractor; and a counterclaim against Mario and Maria Vi-goa, the appellees herein, the parents of the injured minor child. The said counterclaim states that 3-M Electric has a right of contribution against the parents under § 768.31, Florida Statutes (1975) based upon the allegation that they negligently failed to adequately and reasonably care for, protect and supervise the minor child.

Appellant relies upon the rationale espoused in a recent Florida Supreme Court holding. In Shor v. Paoli, 353 So.2d 825 (Fla.1978), the court upheld the trial court decision that the common-law doctrine of interspousal immunity did not control over the Uniform Contribution Among Joint Tortfeasors’ Act so as to prevent one tort-feasor from seeking contribution from another tortfeasor when the other tortfeasor was the spouse of the person injured in an auto accident who received damages from the first tortfeasor. Appellant quotes from Shor, supra., at 826:

“The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury
“[T]o say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.”

A 1976 first district court of appeal case, holding that contribution is not allowed from a joint tortfeasor who is immune from suit by the injured party due to the family immunity doctrine, was overruled in part by Shor, supra. However, the instant case remains within the parameters of the Mieure decision in regard to precluding contribution from the parents. The doctrine, therefore, has not been abrogated, merely limited under certain circumstances.

The issue raised by the instant appeal is most directly addressed by a discussion of whether the minor child could conceivably have a cause of action in tort against the parents for alleged negligence. It is an established principle that contribution among joint tortfeasors arises only when the plaintiff plausibly has a cause of action against all the tortfeasors who may be found to be jointly responsible for the loss or injury. Thus, the dispositive aspect of this cause depends upon the right of the child to recover from the parents — as contribution is generally not available where the “joint tortfeasor” against whom contribution is sought is immune from liability.

In Florida the state of the law is such that based upon public policy reasons a parent is immune from liability for unintentional or negligent personal torts that occur within the scope of domestic relations, Denault v. Denault, 220 So.2d 27 (Fla. 4th DCA 1969), and an infant may not sue his parents for bodily injury suffered by the child because of the parents’ alleged negligence in failing to provide a safe place to play. Rickard v. Rickard, 203 So.2d 7 (Fla. 2d DCA 1967).

We conclude that the parents herein cannot be considered “joint tortfeasors” since there is a lack of common liability between the parents and the defendants due to the family immunity doctrine.

Affirmed.

      . The pipe was part of a temporary electrical setup consisting of a wooden structure holding up an electrical meter, the pipe being the conduit for wire leading to the meter.

      . The wooden structure and the electrical meter were removed, but the pipe was inexplicably left in the ground.

      . Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977).

      . Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976).

      .In fact, the interspousal immunity doctrine clearly remains viable as well. Blanton v. Blanton, 354 So.2d 430 (Fla. 4th DCA 1978). Related matter, see, Firestone Tire and Rubber Company v. Thompson Aircraft Tire Corporation, 353 So.2d 137 (Fla. 3d DCA 1977) and Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427 (Fla.1978), dealing with the concept of contribution and the Workmen’s Compensation Act, § 440.11, as it relates to employer immunity from tort liability.

      . See, footnotes 4 and 5.

      . That is, to protect family harmony and resources. Orefice v. Albert, 237 So.2d 142 (Fla.1970).

      .There is no dispute, however, that a child may maintain an action against parents with respect to contracts, wills, and other property. See generally, 41 A.L.R.3d 904.


author: SCHWARTZ, Judge.

text:
    Moe HIRSCH, Appellant, v. Fay HIRSCH, Appellee.
    No. 78-25.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.

      Morgan, Lewis & Bockius and Paul J. Levine, Miami, for appellant.
    Abbott & Frumkes and Melvyn B. Frumkes, Miami Beach, for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
   SCHWARTZ, Judge.

Moe Hirsch appeals from a final judgment which increased, from $110 to $270 a week, the support provisions of a separation agreement with his now ex-wife, the present appellee, Fay Hirsch; which granted her additional lump sum payments for the purchase of a new car and for the repayment of medical expenses; and which awarded her $15,000 in attorney’s fees. We reverse the judgment below.

In a prior appearance of this case, Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975), we specifically held that New York law is applicable to the present controversy, stating at 309 So.2d 49-50:

“Having determined then, that the court does have jurisdiction to modify the subject agreement, we acknowledge that clause in the separation agreement wherein the parties have agreed to be governed by the laws of the State of New York on matters affecting the said agreement. The principle is well established that when the parties to a contract have indicated their intention as to the law which is to govern the contract, then it will be governed by such law in accordance with the intent of the parties. 15A C.J.S. Conflict of Laws § 11(4); 6 Fla. Jur., Conflict of Laws § 11. In accord therewith, the trial court shall apply the appropriate New York law when considering the standards applicable if different from those of Florida.”

As all parties agree, the showing necessitated by the law of New York to justify the modification of a separation agreement such as the one before us differs very markedly from the Florida standard, which requires only a significant “change of circumstances.” Section 61.14(1) Florida Statutes (1975). In contrast, New York, as its law was expressed in the leading case of McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185 (1965), requires an ex-wife seeking to increase alimony provisions of such an agreement to meet extremely stringent conditions. She may succeed in that demand only

“. . . when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge . . . ” [e.s.]

15 N.Y.2d at 283, 258 N.Y.S.2d at 95, 206 N.E.2d at 186. The later New York cases have stressed the very restrictive nature of the law on this issue and have repeatedly emphasized the requirement that the ex-wife demonstrate a “real, dire need” for an increase which would obviate an actual danger of her becoming a “public charge.” Apkarian v. Apkarian, 39 A.D.2d 609, 331 N.Y. S.2d 239 (1972); Kreuger v. Kreuger, 86 Misc.2d 857, 383 N.Y.S.2d 1000, 1003 (Sup.Ct.1976), and cases cited.

Our review of the extensive record below convinces us that Mrs. Hirsch fell far short of satisfying these requirements of the New York law. Apart from the $110.00 weekly support provided by the agreement, Mrs. Hirsch has over $5,000 in the bank and no outstanding debts or obligations. While she is surely not a person of wealth, she is just as surely not a candidate for the welfare rolls. Thus, although the modification of the alimony provisions may well have been proper under the Florida law, it was clearly not justified under the applicable law of New York. Gardner v. Gardner, 40 A.D.2d 153, 338 N.Y.S.2d 639 (1972), aff'd., 33 N.Y.2d 899, 352 N.Y.S.2d 626, 307 N.E.2d 823 (1973) (reversing increase of weekly support from $69 to $79); Apkarian v. Apkarian, supra (reversing increase from $600 to $750 per month although trial court had found “real need” for modification); Freidberg v. Freidberg, 79 Misc.2d 361, 360 N.Y.S.2d 527 (Family Ct. 1974) (denying increase in absence of “plain showing of . need to indemnify the public purse” although ex-wife’s subjective needs were in excess of her income).

A fortiori, it was error for the trial court to make lump sum awards of $5,000 for Mrs. Hirsch to purchase a new car and $2,500 for reimbursement of past medical expenses. Those awards cannot stand not only because, as we have held, Mrs. Hirsch did not satisfy the McMains criteria; but also because they represent an attempt to modify or “reform” the lump sum provisions of the parties’ settlement agreement which is impermissible, no matter what the showing, under the law of New York. Trazzi v. Trazzi, 49 A.D.2d 954, 374 N.Y.S.2d 341 (1975); Kaye v. Kaye, 38 A.D.2d 753, 329 N.Y.S.2d 648 (1972); see Silver v. Silver, 36 N.Y.2d 324, 367 N.Y.S.2d 777, 327 N.E.2d 816 (1975).

Our reversal of the provisions of the final judgment favorable to Mrs. Hirsch requires that the attorney’s fee award be remanded for reconsideration. Although, within the discretion of the chancellor, attorney’s fees may be granted to an ex-wife under the New York law even if she is unsuccessful in securing a modification, Gardner v. Gardner, supra; it is obvious that the $15,000 figure was largely based on her counsel’s success below. The trial court should redetermine the amount,- if any, to be awarded in the light of our contrary decision on the merits. E. g., Nott v. Nott, 368 So.2d 669 (Fla. 3d DCA 1979); Amend v. Amend, 341 So.2d 1038 (Fla. 4th DCA 1977); Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976); see Apkarian v. Apka-rian, supra.

The final judgment under review is therefore reversed and the cause is remanded with directions to deny the appellee’s claims for modification of the separation agreement and for further consideration, in the light of this opinion, of her application for attorney’s fees.

Reversed and remanded with directions.

      . Mrs. Hirsch may not receive public assistance either in New York, see 18 Codes, Rules & Regulations of New York, §§ 352.1(a), 352.3(a), 352.23(a), 352.24, or, as is more pertinent since she lives here, in Florida. Under Fla.Adm.Code Rule 10C-26.06 (App. 1), one may not qualify for welfare payments if his income exceeds $167 per month or he has assets of more than $600. The appellee is ineligible on both counts.

      . In addition to the $110 per week in support payments, the 1968 agreement provided for lump sum payments of $11,500, which were promptly made by Mr. Hirsch.

      . In this respect, the Florida law is to the same effect. Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976).

      . In Hirsch v. Hirsch, 296 So.2d 662 (Fla. 3d DCA 1974), we affirmed a February 8, 1974 order which temporarily modified, pendente lite, the support payment from $110 to $180 per week. Because of this action, upon which Mrs. Hirsch has relied, we do not order, as did the court in Gardner v. Gardner, supra, that she repay to Mr. Hirsch the $70 per week difference she has received in the meantime, even though we now hold the increase to have been unjustified under the New York law.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, and Nelida Arevalo, Appellees.
    Nos. 78-618, 78-1384.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Knight, Peters, Pickle, Niemoeller & Flynn and Marco B. Loffredo, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, Genden & Bach, Miami, for appellees.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE, F., Jr., (Ret.), Associate Judges.
   SCHWARTZ, Judge.

United States Fidelity and Guaranty Company appeals from a summary final declaratory judgment which determined that the appellee Nelida Arevalo had the right to arbitration of her underinsured motorist claim, and which awarded her attorney’s fees under Section 627.428(1), Florida Statutes (1975). We affirm.

The facts are undisputed. Mrs. Arevalo is the wife and resides in the household of Roberto Arevalo. As such, she is an insured under his automobile policy with U.S.F. & G. which provides for $25,000 in liability and uninsured-underinsured motorist coverage. After Mrs. Arevalo was involved in an automobile accident allegedly caused by the negligence of a driver named Gutierez who had a $10,000 policy with State Farm, she duly filed a demand for arbitration under the UM provisions of the U.S.F. & G. policy. U.S.F. & G. then filed this action against Mrs. Arevalo, seeking a declaratory judgment that she was required to pursue State Farm’s $10,000 limits before proceeding with her underinsured coverage claim against U.S.F. & G. Mrs. Arevalo counterclaimed for an order compelling arbitration and moved for summary judgment on the legal issue presented by the pleadings. U.S.F. & G. resisted the motion by submitting affidavit evidence that Mrs. Arevalo’s attorney had demanded $5,000 in order to settle her case from a State Farm adjuster, of which $2,500 was proposed to be secured from State Farm, and $2,500 from U.S.F. & G. The trial court nevertheless granted Mrs. Arevalo’s motion, entered summary judgment in her favor requiring U.S.F. & G. to proceed to arbitration, and granted attorney’s fees for the services rendered to her in this action. On this appeal, U.S.F. & G. challenges both the decision on the merits and the fee award. We reject its contentions and uphold both aspects of the judgment under review.

The law as to the right of an unde-rinsured motorist coverage claimant to proceed to arbitration is now well-established to the contrary of the appellant’s position. When, as here, the third party’s limits are less than the UM coverage provided by the insured’s own policy, underinsured motorist coverage is ipso facto provided pursuant to the terms of Section 627.727(2)(b), Florida Statutes (1975); a person thus-insured has the absolute right to arbitration of that claim without first resorting to an action against, or achieving settlement with the third-party tortfeasor which exhausts the “underinsurance” available to him. We have squarely so held in Liberty Mutual Ins. Co. v. Reyer, 362 So.2d 390 (Fla. 3d DCA 1978), Arrieta v. Volkswagen Ins. Co., 343 So.2d 918 (Fla. 3d DCA 1977), and Government Employees Ins. Co. v. Friedman, 344 So.2d 288 (Fla. 3d DCA 1977). The determinative effect of these decisions upon the case at bar is not altered in any way by the evidence of the alleged settlement negotiations introduced by the insurer below. Even an actual settlement, much less the mere demand involved in this case, does not fix the “value” of injuries actually sustained by an insured. U. S. Fidelity & Guaranty Co. v. Gordon, 359 So.2d 480 (Fla. 1st DCA 1978); Brooker v. Nationwide Mutual Ins. Co., 207 So.2d 486 (Fla. 1st DCA 1968), cert. denied, 212 So.2d 869 (Fla.1968). Under the cited cases, the appellee has a presently-existing right to have that issue— as well as the liability of the underinsured motorist — determined through the contractually-provided means of arbitration. In entering summary judgment against the carrier, the trial court correctly so held below.

The somewhat more difficult problem presented by the attorney’s fee question arises because of the language employed by the supreme court in Roberts v. Carter, 350 So.2d 78 (Fla.1977). There, after directly holding that Section 627.428(1), Florida Statutes (1975), does not apply to an injured person who litigates a coverage issue against the carrier for the tortfeasor who has injured him, the court went on to say, at 350 So.2d 79:

“To eliminate any remaining confusion, we now reaffirm Wilder and hold that an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” [e. s.]

Cf. American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979). U.S.F. & G. argues that Mrs. Areva-lo does not qualify under this statement. Although it admits that she is in fact “insured” under its policy as a resident spouse of its named insured, it contends that she was not “the contracting insured” in the sense that it was her husband, rather than she, who directly contracted with the company and presumably paid the premium for the policy.

We do not agree with this interpretation of the Roberts decision. It seems obvious to us that, in the context in which the statement was made, the term “contracting insured” refers to all claimants who have a direct first party contractual relationship with the carrier and are thus insured under the policy itself, as opposed to the third party tort claimants actually involved both in Wilder, which was specifically reaffirmed in Roberts, and in Roberts itself. This conclusion is based predominantly upon the fact that the very statute interpreted in Roberts, Section 627.428(1), provides for fees to be awarded whenever a judgment is rendered, not for “the” or “the contracting” insured, but “ . . .in favor of an insured or the named beneficiary under a policy . . .” [e. s.] In this sense, the word “an” means “any.’.’ Deschane v. McDonald, 86 N.W.2d 518 (N.D.1957); People v. One 1940 Buick Sedan, 71 Cal.App.2d 160, 162 P.2d 318, 320 (1945); State ex rel. Hurd v. Blomstrom, 72 S.D. 526, 37 N.W.2d 247, 249 (1949). Its use precludes acceptance of U.S.F. & G.’s argument that only the single particular insured who deals directly with the carrier is covered by the statute. Taminski v. Administrator, U.C.A., 168 Conn. 324, 362 A.2d 868 (1975); Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969). The Roberts decision specifically emphasizes the statutory language and quotes with approval at 350 So.2d 79 from Wilder v. Wright, 269 So.2d 434, 436 (Fla. 2d DCA 1972) to the effect that

“The purpose of the statute is to discourage contesting of valid claims of insureds against insurance companies . and to reimburse successful insureds reasonably for their outlays for attorney’s fees when they are compelled to defend or to sue to enforce their contracts . . ” [e. s.]

Moreover, there is nothing in the Roberts language which would even faintly indicate that, merely by using the word “contracting,” the supreme court intended to overrule the countless Florida decisions which, applying the clear terms of the statute, have virtually as a matter of course awarded fees to omnibus and additional insureds such as Mrs. Arevalo. E. g., Main Ins. Co. v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977); Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974); Allstate Ins. Co. v. Chastain, 251 So.2d 354 (Fla. 3d DCA 1971), cert. disch. 263 So.2d 578 (Fla.1972); First National Ins. Co. of America v. Devine, 211 So.2d 587 (Fla. 2d DCA 1968). There is no basis for ascribing such a sweeping effect to a single, perhaps inadvertently employed word, even one which appears in an opinion of our highest court. State ex rel. Garland v. West Palm Beach, 141 Fla. 244, 193 So. 297, 298 (1940). In accordance with this view, this court, in an opinion rendered after Roberts, specifically held that an omnibus insured is entitled to fees under Section 627.428(1). Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978); see also, e. g., Rodriguez v. Travelers Ins. Co., 367 So.2d 687 (Fla. 3d DCA 1979). We do so again.

Affirmed.

      . No such settlement was ever effected.

      . Indeed, under a standard provision of these policies, a settlement or judgment secured without the permission of the UM insurer would effectively forfeit UM coverage entirely. Sena v. State Farm Mutual Ins. Co., 305 So.2d 243 (Fla. 3d DCA 1974).

      . It is also contended that she is not a “specifically named policy beneficiary,” both because she is not referred to by name in the policy, and because the “beneficiary” language in both Roberts and the statute refers to life insurance situations, rather than a liability or indemnity policy such as the one involved here. Since we hold that Mrs. Arevalo is the “contracting insured,” we need not decide whether she is also a “specifically named policy beneficiary.” But see Industrial Fire & Casualty Co. v. Jones, 363 So.2d 1168, 1170 (Fla. 3d DCA 1978) (resident spouse a “named insured” though not designated by first and last names in policy).

      . As applied to a situation such as this, it is apparent that the language in Roberts upon which the carrier relies is dictum. There can be no doubt, however, that supreme court dictum is, to say the least, most persuasive to district courts of appeal. Horton v. Unigard Ins. Co., 355 So.2d 154, 155 (Fla. 4th DCA 1978). The only real issue, then, is the proper interpretation of the dictum in question.

      . See Ward v. Baskin, 94 So.2d 859, 860 (Fla.1957).

      . The entitlement of all first-party insureds to fees under § 627.428(1), Fla.Stat. (1975), is so well-settled that the cases rarely even refer to the subject; those which do, assume the point without discussion.

      . The appellant’s view of the effect of the Roberts decision would likely result in the unavailability of fees to an employee or his dependent who claims under a group accident or health policy, since the employer would ordinarily be the only eyeball-to-eyeball “contracting” party with the carrier. But see Segelstrum v. Blue Shield of Florida, Inc., 233 So.2d 645 (Fla. 2d DCA 1970).
      Moreover, as applied to the UM question presented in this case, the appellant’s position runs directly contrary to the policy embodied in the Florida decisions which hold that
      “The coupling of uninsured motorist coverage with family protection coverage in an automobile liability policy has made each member of a family an insured under each such policy purchased by any family member.” [e. s.]

        Travelers Indemnity Co. v. Powell, 206 So.2d 244, 246-247 (Fla. 1st DCA 1968); Butts v. State Farm Mutual Auto. Ins. Co., 207 So.2d 73, 75 (Fla. 3d DCA 1968); Mullis v. State Farm Mutual Auto. Ins. Co., 252 So.2d 229 (Fla.1971). In each of these cases, incidentally, attorney’s fees were recovered by the successful additional or omnibus insured.

      . To the extent that Aetna Life Ins. Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978) and Aetna Life & Casualty Co. v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979), express contrary views, we simply do not follow those decisions. We venture to suggest that these cases may be in direct conflict with Roberts itself, on the ground that they accept Roberts as controlling authority in situations materially at variance with that decision. McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962).


author: BARKDULL, Judge.

text:
    Edward J. CAMPBELL and Dr. Richard K. Campbell, as the Personal Representative of the Estate of John W. Campbell, Deceased, Appellants, v. James G. PACE, d/b/a James G. Pace & Associates, Miami Industrial Inc., a Florida Corporation, and Howard Pepion, Appellees.
    No. 78-628.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Hendricks & Hendricks and B. E. Hendricks, Coral Gables, for appellants.

      Prunty, Ross & Olsen and John W. Prunty, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

The Campbells appeal a summary judgment entered by the trial court, which impressed the proceeds of a foreclosed mortgage with a constructive trust or an equitable lien in favor of the appellee-brokers.

John W. Campbell, after entering into a contract for the sale of a large tract of undeveloped property, entered into a letter agreement wherein he recognized the ap-pellees as brokers entitled to a 5% commission if the transaction closed. The letter provided that the commission would be paid “at the rate of 5% of all principal paid and received by me from the purchaser or his assigns.”

We affirm. It is clear from the letter agreement entered into between John Campbell and the brokers that the brokers were to receive their commission from a particular fund, to wit: the principal payments made on the purchase price of the property, when and if received by Campbell. Although the brokers may not have been able to enforce the collection of the note, they were entitled to have Campbell remit to them 5% of any monies that he might collect on the principal. This, in fact, made Campbell or his successors a trustee of 5% of the principal he received for the use and benefit of the brokers. If Campbell had refused to protect the fund or to seek collection thereof, then he would have been liable personally, whether or not he collected the fund. Florida Boca Raton Housing Association, Inc. v. Marqusee Associates of Florida, Inc., 177 So.2d 370 (Fla. 3d DCA 1965); Americana Hotel, Inc. v. Zable, 226 So.2d 272 (Fla. 3d DCA 1969); Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla. 3d DCA 1976); accord, Balias v. Lake Weir Light & Water Company, 100 Fla. 913, 130 So. 421 (1930); Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962). The brokers were not contingent general creditors of Campbell; Campbell was their trustee for those funds that came into his possession as a result of this sale, to the extent that they represented principal payments. A portion of these principal payments, to wit: 5%, were not assets of Campbell; therefore, were not assets to be included within Campbell’s estate and were not assets to be reached by a general creditor, which would have required the filing of a claim. When the monies representing the balance of the principal payments came into the hands of the Personal Representatives of the Campbell Estate, 5% of these funds were held by them as successor constructive trustees, to the same extent that Campbell would have been responsible if he had been alive. Broome as Admr. v. Bisbee, 14 Fla. 21 (1871); Moss v. Sperry, 140 Fla. 301, 191 So. 531 (1939). In Broome as Admr. v. Bisbee, supra, the Supreme Court said:

“In this case Bisbee seeks to share in this particular fund, by virtue of peculiar equities attaching to his demand against the 'deceased intestate. A court of common law certainly cannot afford this relief or act upon this particular fund. The sole question is: Does the case made entitle him to share in this particular fund, or does he occupy the standing of a general creditor of this insolvent estate, with no equity entitling him to a portion of this fund, resulting from his contract and the relations of the parties? Being entitled under the terms of the original contract to one-half of the moneys which Smith was to receive from Myers, the defendant in execution, he is clearly entitled, as against his legal representative or others having a beneficial interest in the estate, to the benefit of all liens which Smith may acquire for his security. Smith’s claim for services has merged in the judgment, and upon the collection of the judgment Bisbee is clearly entitled to one-half of the specific funds. Smith’s contract was not to pay Bisbee a certain amount at all events. It was to pay him one-half of the sums he would realize from Myers, as the services which Bisbee rendered were to enure to the benefit of Myers. After Bisbee has performed one-half, if not more, of the service which these identical funds represent, relying upon the capacity of Myers to pay Smith, and upon the express understanding that he was to share in them in that proportion, it would be palpably inconsistent with the plainest principles of right and justice to make him occupy the relation of a general creditor of an insolvent estate, thus permitting other creditors who had no such equity to take, as against him, a part of this particular fund. The general creditor who relied upon the general credit of the intestate must look to his general assets. This particular creditor who has no claim upon the general assets, and who is entitled to no compensation unless something was realized from a debtor to the estate, and in that event to but one-half of the amount, will be given the right in equity to share in that fund without deduction, when the fund can be identified as in this case. If Smith or his estate had never realized anything from Myers, Bisbee could have claimed nothing. Having taken this risk for all purposes of loss, a court of equity, under the particular contract here disclosed, will make it effectual for the purposes of advantage.
“That Bisbee has a demand payable out of this particular asset cannot be denied. This is the contract set up and established by proof, indeed the administrator does not deny it. Where a legatee has a right to a particular fund, a court of equity will always secure the interest in his favor when the contest is between legatees, and where the superior rights of creditors do not intervene. In this case the demand is by contract. The particular asset is liable for this particular claim; the general assets are not, except conditionally in the event of an improper appropriation by the intestate. That is the case with the amounts collected by the intestate during his life. Respondent is a general creditor as to that, and there is no claim upon the judgment for that. The fund must be identified. These views are fully sustained by adjudicated cases. 2 Yes. Jr. 619; 1 Ves. Sr., 282; 1 Mar. Chy. Dec. 64; Story’s Eq. 846, 730, 717.”

This transaction is not an unusual one, wherein large pieces of property are sold on an installment basis; it protects the seller from having to pay a broker on the entire purchase and sale price until such time as he is assured that he will receive all the purchase price. In this connection, see the following: Balias v. Lake Weir Light & Water Company, supra; Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931); Langford v. King Lumber & Manufacturing Co., 123 Fla. 855, 167 So. 817 (1936); reargument granted 127 Fla. 111, 172 So. 686 (1937), affirmed 132 Fla. 143, 181 So. 395 (1938).

We have examined the authorities cited by the appellant and find them not to be applicable, as they are distinguishable. Some of those authorities relate to a situation wherein a real estate broker sought to impose an equitable lien for commissions against the realty, where the brokers had represented the seller of said realty. They hold the broker’s cause of action is for damages at law against the seller. In the instant case, the action imposed an equitable lien or charge against monies in the hands of the seller’s successor. The remaining authorities were sufficiently different factually, so as not to be applicable. They either sought to impose an equitable lien on real property when the plaintiff either failed to plead or prove a right thereto, or they sought to impose an equitable lien against certain monies which were not earmarked by agreement for payment of the alleged debt.

Therefore, for the reasons above stated, the summary judgment under review be and the same is hereby affirmed.

Affirmed.

      . The proceeds were in the exact amount unpaid on the mortgage and were obtained by assignment of the foreclosure judgment. The realty itself had never come back into the hands of the seller or his successor.

      . John Campbell died between the date of the letter and the foreclosure suit.

      . The letter agreement reads, in part, as follows:
      “If this Agreement for Purchase and Sale is actually closed and consummated by Mr. Horton, as Trustee, or his assigns, under the referred to Agreement for Purchase and Sale, I recognize that Mr. Pace and his corporation or corporations, and Mr. Pepion, are entitled to a real estate commission on the sale of five percent (5%) of all principal paid and received by me from the purchase or his assigns.
      “The property is being sold on an installment basis and the commission is to be paid to you in the same manner and percentage as the commission and the percentage relates to the purchase price as the downpayment [sic] and subsequent deferred principal payments are paid and received by me as seller.
      “In the event of default by the purchaser on any deferred principal payments wherein foreclosure proceedings are instituted and the title to the property, or any portion of the same not released, is re-acquired by the undersigned seller, no other or further commission will be paid as it is specifically agreed that the commission will be paid as the principal of the purchase price is actually paid and received and no commission is due and payable unless an actual sale is consummated.
      “Of any sums that are placed on deposit by the purchaser pursuant to the terms of the Agreement for Purchase and Sale and such deposited sums are forfeited and received by me in the event that a sale is not consummated, you will be paid 5% of such sums, and the undersigned shall not be further liable to you in any manner in connection with this transaction.”


text:
    Richard CAMPBELL and Edward Campbell, as Executors of the Estate of John W. Campbell, Deceased, Appellants, v. PYMS-SUCHMAN REAL ESTATE CO., a Florida Corporation, and Lewis F. Harder, Appellees.
    No. 78-629.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Hendricks & Hendricks and B. E. Hendricks, Coral Gables, for appellants.
    Levy, Levenstein, Cowan & Rubenstein and William S. Rubenstein, Herskowitz & Grossman, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

The contract in the instant case is somewhat different from the contract in Campbell v. Pace, 369 So.2d 413 (Fla. 3d DCA 1979). However, it arose under similar situations to that in the cited case; the only material difference being that the brokers in the instant matter were to receive interest on their deferred brokerage commission, which was likewise payable out of the payments received by John W. Campbell on an installment basis.

We find no error in the summary judgment under review, and affirm on the authority of Campbell v. Pace, supra.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Annie Ruth WILLIAMS, Appellee.
    No. 78-966.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied April 26, 1979.

      Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

By this appeal, we are asked to review the trial court order dismissing the informa-tions for failure of the state to disclose the identities of its confidential informants.

Two separate informations filed against Williams and a codefendant contain, inter alia, several charges of sale or delivery and possession of controlled substances (circuit court case numbers 77 — 29326 and 77-32798). The defendants filed sworn motions to dismiss in both cases, alleging that the lead investigative officers in each case were unable to identify the defendants beyond a reasonable doubt, and that the defendants were not the same individuals who were alleged to have possessed and sold the controlled substances on the dates in question; the motions were denied. Subsequently, Annie Ruth Williams, appellee herein, filed motions to disclose the confidential informant in both cases, alleging in part that she is the victim of mistaken identity; that the confidential informant arranged the drug transactions, according to police testimony; that the officers testified that the confidential informants were in a position to observe the transactions and the persons involved; that under Smith v. State, 318 So.2d 506 (Fla. 2d DCA 1975), the state must disclose their identities. The court rendered written orders requiring the state to disclose in both cases; however, an order was subsequently entered dismissing the informations due to the state’s refusal to disclose. This appeal followed.

It appears that after argument and prior to the entry of the orders of disclosure, the state had requested that an in camera investigation be conducted by the court for the purpose of determining whether disclosure was necessary in that the confidential informants’ testimony might have been helpful to the defense.

The state’s most persuasive argument in the prosecution of this appeal is that based on the record, it is impossible to determine if, in fact, the testimony of either confidential informant would be helpful to the defense and that under the circumstances the court was required to hold an in camera hearing.

In Munford v. State the second district court of appeal, quoting from the holding in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), set down the criteria to be weighed to determine when disclosure is required, at 68-69:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

In attempting to apply the above test to this case, we are in much the same position as were the courts in Munford supra, and United States v. Fischer, 531 F.2d 783 (5th Cir. 1976), wherein the court stated at 787-788:

“[W]e are unable to conclude from this record that the informer’s participation was such that fairness to the defendant would require disclosure and production regardless of any showing the government could make in opposition. We can only guess as to the substance of the testimony which this informer would give. Also, the record is silent about the interests which the government may have in resisting disclosure and production.”

The Munford court proposed that the best procedure to insure that a defendant’s right to a fair trial is not abrogated while at the same time considering the state’s interest in non-disclosure is to hold an in camera hearing. See, United States v. Doe, 525 F.2d 878 (5th Cir. 1976) and United States v. Freund, 525 F.2d 873 (5th Cir. 1976).

In conclusion, we believe that notwithstanding the fact that the appellee/defend-ant had made the required initial showing that non-disclosure could possibly hamper the defense, the trial court erred in ordering disclosure without having first conducted an in camera hearing, “[as it] is the appropriate procedural vehicle for accomplishing the accommodation of conflicting interests in this case.” United States v. Freund, supra, at 877. Clearly, disclosure of the identities of the confidential informants in the cases sub judice would be of help to the 'defendants only if their testimony would tend to exculpate the defendants or if it would be materially at variance with the testimony of the police officers.

Reversed and remanded with directions to vacate the appealed order and to proceed with an in camera hearing to determine whether disclosure of the identities of the confidential informants would be valuable and material to the defense.

Reversed and remanded with directions.

      . 343 So.2d 67 (Fla. 2d DCA 1977).


text:
    Mary HEREDIA, Appellant, v. SAFEWAY TRAILS, INC., Tamiami Trail Tours Inc., Continental Trailways, Inc., Liberty Mutual Insurance Company and James Daniel Abridge, Appellees.
    No. 78-977.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.

      Thomas W. Kenworthy, South Miami, Paul E. Gifford, Coral Gables, for appellant.
    Richard E. Hardwick, Coral Gables, Greene & Cooper and Marc Cooper, Miami, for appellees.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., JR., (Ret.), Associate Judges.
   PER CURIAM.

This appeal is by the plaintiff below from an order which dismissed her amended complaint on the ground that the action was barred by the statute of limitations.

On March 12, 1972, the plaintiff Mary Heredia purchased a ticket for transportation from Miami to New York, N.Y., on Continental Trailways bus. The ticket was in writing, was designated “Contract”; showed issuance at Miami, Florida, by Continental Trailways; contained certain identifying numbers; and specified travel from Miami, via Fayetteville, N.C., and Richmond, Va., to New York N.Y. It was alleged that while plaintiff was a passenger on such bus being transported towards her designated destination on March 12, 1972, said transportation contract was breached when the bus was so driven that it left the highway and ran into a canal, with the result that plaintiff thereby suffered certain permanent injuries.

Her action was commenced on March 10, 1977, two days less than five years from the date of the alleged breach of contract from which her injuries resulted. By the time the action was filed, the statute of limitations had run for an action in tort. However, the plaintiff had the election to sue in contract. Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41 (1947).

The determinative question is whether this contract action is controlled by the statute of limitations provision of four years for an action on an oral contract, or the provision of five years for “[an] action on a contract, obligation, or liability founded on a written instrument.” The trial court dismissed the action on the theory that it was based on an oral rather than a written contract.

We hold that in so ruling the trial court was in error. The plaintiff passenger was travelling on a written contract for her transportation from Miami to New York, N.Y. The wrecking of the bus en route, with resultant injury to the passenger, represented a breach of contract of transportation. The plaintiff’s action for damages for alleged breach of the contract was a legal action on the contract and for a liability founded on said written instrument, and therefore was timely filed.

A written instrument may have legal effect beyond its actual words, resultant upon its wording and purpose. It must be considered to embody obligations which legally are to be implied from its wording and the relationship of the parties, and obligations thereunder that are implied by law, although not actually specified therein, are legal obligations founded on the contract, which in this instance was a written contract. McGill v. Cockrell, 88 Fla. 54, 101 So. 199, 201 (1924); Sharp v. Williams, 141 Fla. 1, 192 So. 476, 480 (1939); Wilcox v. Atkins, 213 So.2d 879, 882 (Fla.2d DCA 1968).

It is elemental that a contract of a common carrier to transport a passenger to a given destination imposes on the carrier an obligation to transport the passenger to his destination in a reasonably safe manner. The appellees argued that because the written contract did not contain language specifying that the carrier is so obligated, an action claiming breach of such obligation of safe carriage is not one that is founded on the written contract represented by the ticket, but is a claim based on a separate oral contract for safety in travel. With that contention of the appellees, we cannot agree. As stated iri McGill v. Cockrell, supra, “what the law implies, from the relation of parties created by an express agreement is as much a part of the contract as that which is expressed.” Where a written contract is such as legally to create such obligation, an action charging breach of the obligation is an action predicated on the written contract.

“A contract must create legal obligations.” Kislak v. Kreedian, 95 So.2d 510, 515 (Fla.1957). In Wilcox v. Atkins, supra, the court said:

“This written instrument is to be given legal effect, and to give it effect, the courts must consider it as embodying all the legal obligations implied from its language. Here, it should be noted that a contract includes not only the things written, but also terms and matters which, though not actually expressed, are implied by law, and these are as binding as the terms which are actually written. McGill v. Cockrell, Fla.1924, 88 Fla. 54, 101 So. 199; and Sharp v. Williams, Fla. 1939, 141 Fla. 1, 192 So. 476.
“In this regard, the law imported into a contract does not create an independent agreement, but makes the instrument itself express the full agreement of the parties. * * *”

Here the obligation, the alleged breach of which is the basis of this action, was one legally created by the written instrument, and it is upon the latter that this action -was based, with the result that the five-year statute of limitations was applicable, and the action was timely filed.

The order of dismissal is reversed, and the cause remanded for further proceedings.

      . § 95.11(3)(k), Fla.Stat. (1975).

      . § 95.11(2)(b), Fla.Stat. (1975).