text:
    Arthur Randall SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1575.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.

      Loyd C. Mosley and Michael Evans, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Arthur Randall Sanders challenges the trial court’s denial of his motion to suppress tangible evidence. The police seized the evidence from Sanders’ automobile after they stopped him on the basis of an anonymous tip. We hold that while the officers validly stopped Sanders, their search of the automobile was invalid. Thus, the court erred in denying Sanders’ motion to suppress the contraband found in the automobile. We reverse.

The state charged Sanders with possession of marijuana, cocaine and methaqua-lone. Sanders moved to suppress the contraband on the ground that the police had illegally seized the contraband because their stop of him and search of his automobile was not valid under the Florida Stop and Frisk law. § 901.151, Fla.Stat. (1979).

Detectives Pasto and Johnson of the Pi-nellas County Sheriff’s Department testified at the suppression hearing. Their testimony disclosed that Pasto had been investigating Sanders for approximately four years in connection with the sale of pornographic materials in adult book stores. Pasto knew that Sanders had an extensive record of arrests for various offenses including aggravated assault, attempted murder, kidnapping and resisting arrest with violence. However, Pasto did not know of Sanders’ present whereabouts.

About 1:30 p.m. on April 12, 1979, an anonymous caller telephoned Pasto. The caller told Pasto that Sanders had arrived from Atlanta, Georgia, and had been in Pinellas County for a few days and would remain for another day or two. The caller said that Sanders was staying at a Best Western Motel and was probably using an assumed name. Further, the caller stated that Sanders had seventeen ounces of cocaine in his possession. The informant would neither reveal his name nor permit the conversation to be taped because he was deathly afraid of Sanders. Detective Pasto promptly set out with Detective Johnson to locate Sanders.

After an unsuccessful attempt to locate Sanders at one Best Western Motel, the officers proceeded to another Best Western Motel in the Clearwater area. There, the desk clerk identified Sanders from a photograph the officers were carrying and told them that Sanders was staying at the motel but that the room he was staying in was not registered in his name. The room registration, however, did list a Georgia license tag number for the occupant’s automobile. The officers rented the room next to Sanders’. Several hours later Detective Pasto recognized Sanders as Sanders left his room for his automobile. Sanders was carrying an attache case and a white envelope. Detectives Johnson and Pasto ran to Sanders’ automobile just as Sanders was getting into it. Johnson drew his gun and ordered Sanders out of the car while Pasto covered Sanders with his weapon. As Sanders complied by moving away from the door he had opened, Detective Johnson reached into the car through that door and retrieved the unsealed envelope which contained a vial of white powder and two plastic straws. He conducted a presumptive test which indicated the white powder was cocaine. Johnson then arrested and searched Sanders after which the officers searched the vehicle and found additional cocaine under the back seat and marijuana and methaqualone in the trunk.

The trial court denied Sanders’ motion to suppress this contraband on the authority of State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979). Sanders subsequently pled nolo contendere reserving the right to appeal denial of his motion to suppress. The court adjudicated him guilty of the three posses-sory offenses and sentenced him to three concurrent five-year prison terms. Sanders filed this appeal.

Sanders first challenges the validity of the stop contending that the anonymous tip was insufficient to provide the police with the founded suspicion of criminal activity required for a stop under Section 901.151(2), Florida Statutes (1979). See Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976). Sanders recognizes that this court in Het-land held that a corroborated anonymous tip can provide the necessary founded suspicion. Yet, he argues that here the information furnished by the informant was not sufficiently detailed and that the police erred in failing to prepare a memorandum of the information contemporaneous with the call. Sanders also contends that the officers did not act with sufficient dispatch in investigating the tip.

We find no merit to Sanders’ challenge of the stop. We pointed out in Het-land that while every anonymous tip cannot provide the basis for a stop, an anonymous tip that there is criminal activity afoot will be sufficient if the details in the tip are specific and corroborated by the officers’ observations. This, we noted, is true irrespective of whether violence threatens the public safety or a possessory offense such as the present case is involved. 366 So.2d at 833-34. Here, the informant specifically identified Sanders and stated that Sanders was staying at a local Best Western Motel, probably using an assumed name. This provided sufficient details. While we did recommend in Hetland that police officers make contemporaneous records of tips relayed by telephone, we did not hold that failure to record a tip would render it unreliable. Id. at 839. Finally, the detectives acted in a timely manner in corroborating the informant’s tip when they promptly located Sanders at a Best Western Motel in a room not registered to him. Id.

Next, Sanders attacks the search of the vehicle which yielded the contraband. He argues that, even assuming the validity of the stop, the seizure of the envelope was not justified and the subsequent search of the automobile was not incident to a valid arrest. We agree.

The officers accosted Sanders under the Florida Stop and Frisk Law. § 901.151, Fla.Stat. (1979). This did not automatically authorize them to frisk Sanders’ person or search his automobile. Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). When the officers stopped Sanders, they did not immediately frisk him. He emerged from the vehicle with his hands in the air and complied with the officers’ demands by moving away from the driver’s door and leaning against the passenger door. Officer Pasto testified that Sanders was wearing tight jeans and a tight shirt and that “[i]t was evident that he had no guns in the front part of his body.” The detective also testified that he did not think that Sanders was going to reach into the automobile for a weapon.

At this point Detective Johnson reached inside the automobile and seized the envelope. The officers then arrested and searched Sanders. Since the officers clearly were not concerned that Sanders was armed or would reach into the automobile for a weapon, however, they had no basis under Section 901.151(5), Florida Statutes (1979), to search Sanders’ car. Thus, Detective Johnson improperly seized the envelope.

Prior to seizure of the envelope, the officers did not have probable cause to arrest Sanders because neither the informant’s tip nor the officers’ observations furnished more than a founded suspicion that criminal activity was afoot. Since Detective Johnson improperly seized the envelope, the contraband it contained could not be considered in ascertaining probable cause. Gossett v. State, 188 So.2d 836 (Fla. 1966). Thus, the officers did not have probable cause at the time they arrested Sanders and, therefore, the arrest was invalid.

Following the arrest the officers searched Sanders’ automobile and found the additional contraband. Since the search was not incident to a legal arrest, however, the trial court erred in not suppressing the fruits of the search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 44 (1963).

REVERSED.

GRIMES and CAMPBELL, JJ., concur.

      . Section 901.151(5) provides:
      Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) of this section has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

        See McNamara v. State, 357 So.2d 410 (Fla.1978); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978).

      . Even assuming the officers had grounds under § 901.151(5), Florida Statutes (1979) to search Sanders’ person, we do not address the question of whether that would have authorized seizure of the envelope.

      . The trial court rejected any notion that probable cause was established when it observed that the court’s ruling was based on the language in State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979).


source: Caselaw Access Project

author: HOBSON, Judge.

license: Public Domain

text:
    James D. HARDISON, Appellant, v. STATE of Florida, Appellee.
    No. 80-158.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

James D. Hardison appeals from the judgment entered upon his nolo contendere plea to manslaughter. The appellant contends the trial court erred in denying his motion to suppress certain statements and the results of a blood alcohol test.

We are unable to determine the appellant’s appeal on the merits. Under Brown v. State, 376 So.2d 382 (Fla.1979), only legally dispositive issues may be reserved for appeal following a nolo contendere plea. We find that the appellant did not reserve a legally dispositive issue, and therefore is not entitled to an appeal.

The appellant’s plea was entered after the Brown decision. While we have remanded cases involving pre-Brown pleas with instructions that the appellant be afforded an opportunity to seek to withdraw his plea, see Pittman v. State, 382 So.2d 1227 (Fla.2d DCA 1980), denying rehearing, such an order is not appropriate to post-Brown pleas. The opportunity to withdraw was predicated in pr e-Brown pleas upon the notion that it would be unfair to punish a defendant for his reliance on pre-Brown cases. However, after the rendition of the Brown decision a defendant can no longer justifiably claim that he was not aware that an issue reserved for appeal following a plea of nolo contendere must be dispositive.

Accordingly, the appeal is dismissed and the appellant need not be afforded an opportunity to withdraw his plea.

SCHEB, C. J., and CAMPBELL, J., concur.


author: NESBITT, Judge.

text:
    Willie Fred HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 80-187.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Willie Fred Howard, in pro. per.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The aftermath of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), decided June 29, 1972, which abolished the death penalty, is still upon us.

Following abolition of the death penalty in Furman, prosecutors properly charged persons accused of first degree murder by information. After the Legislature revitalized the death penalty by the enactment of Section 921.141, Florida Statutes (Supp.1972), effective October 1, 1972, the trial of a defendant charged with first degree murder, by information, was void because Article I, Section 15(a) of the Florida Constitution prohibits any person from being tried for a capital crime without presentment or indictment by a grand jury. Lowe v. Stack, 326 So.2d 1 (Fla.1975); State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974). This is so notwithstanding the fact that a defendant never faced nor in fact was sentenced to death. Bradley v. State, 374 So.2d 1154 (Fla. 3d DCA 1979).

In the present case, the defendant was charged, by information filed on January 18, 1973, with first degree murder of Johnnie L. Williams, which crime was allegedly committed on November 5, 1972. The defendant was tried before a six-person jury and convicted of murder in the second degree on May 30, 1973. Upon the rationale of Lowe v. Stack, supra, the trial of the defendant was void and his adjudication and sentence must be reversed. See also Bell v. State, 360 So.2d 6 (Fla. 2d DCA 1978), cert. denied 372 So.2d 445 (Fla.1979); Smith v. State, 315 So.2d 224 (Fla. 1st DCA 1975).

The trial of the defendant was void; however, for the purpose of tolling the applicable period of limitations with respect to second degree murder and other lesser included offenses, his prosecution by information was timely commenced. Lowe v. Stack, supra; Bradley v. State, supra; Bell v. State, supra.

For the jurisdictional infirmity disclosed, the denial of the defendant’s motion for postjudgment relief pursuant to Florida Rule of Criminal Procedure 3.850 was error. Bradley v. State, supra; Bell v. State, supra. Accordingly, the defendant’s judgment and sentence are reversed and remanded for further proceedings.

      . Former § 932.465, Fla.Stat. (1971).


author: PER CURIAM.

text:
    J. R. CARTER and Conch Country Real Estate, Inc., jointly and severally, Appellants, v. Terry B. DORMAN and Canama Realty, Inc., f/k/a Canadian American Realty, Inc., Appellees.
    No. 80-723.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Wright & Silverio and Mark V. Silverio, Miami, for appellants.
    Tittle & Tittle and Karl Beckmeyer, Tav-erniar, for appellees.

      Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order under review, denying a motion to set aside a final judgment under Fla.R.Civ.P. 1.540(b)(4), is reversed and the cause is remanded to the trial court with directions to set aside the said final judgment and to enter a new final judgment based on the jury verdict previously rendered herein upon a holding that (a) the original judgment was entered without jurisdiction while an appeal from a nonfinal trial court order was pending in this court, De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974); Crichlow v. Equitable Life Assurance Society, 113 Fla. 668, 152 So. 849 (1933); Fla.R.App.P. 9.130(f); (b) this result is not changed by the fact that the above-stated interlocutory appeal was subsequently dismissed for lack of jurisdiction, Carter v. Dorman, 381 So.2d 778 (Fla. 3d DCA 1980), as this court still had jurisdiction to determine whether it had jurisdiction over the subject appeal which thereby deprived the trial court of jurisdiction to dispose finally of the cause during the pendency of said appeal, Sun Insurance Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958); State ex rel. B. F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175 (1939) (court syllabus no. 6); and (c) the trial court now has jurisdiction to enter a new final judgment based upon the jury verdict previously rendered in this cause. Wagner v. Wagner, 372 So.2d 510, 512 (Fla. 3d DCA 1979).

Reversed and remanded.


text:
    George BURKE, Appellant, v. CHARLES B. ESHER, INC., Appellee.
    No. 79-1560.
    District Court of Appeal of Florida, Third District.
    July 16, 1980.
    Arthur Newman, Miami, for appellant.

      Pyszka, Kessler & Adams, Greene & Cooper and Joan M. Bolotin, Miami, for appel-lee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION TO STRIKE

PER CURIAM.

Burke’s appeal is from an adverse summary judgment entered on the apparent ground that the record indisputably showed that Burke was injured while on the job as an employee of Otis Elevator Company, a subcontractor of Charles B. Esher, Inc., and therefore, his exclusive remedy was under the Workmen’s Compensation Act. His brief, which Esher has moved to strike, merely states:

“. . . that based upon the affidavits and depositions before the Trial Court at the Summary Judgment hearing, a question of fact was presented as to whether or not the appellant/plaintiff was a subcontractor [sic].”

and concludes with the legal proposition that under such circumstances a summary judgment is precluded.

Burke’s brief tells us nothing of the facts of the case. It does not refer us to any part of the record which would show the existence of the needed genuine issue of material fact. The place in the “affidavits and depositions” where we might find the question of fact is shrouded in mystery. In short, Burke’s brief, if accepted in its present form, would require the appellee to course through the record on appeal to find something which might support Burke’s contention and then to respond to its own speculation as to Burke’s meaning. We will impose no such requirement on the appellee.

Accordingly, Esher’s motion to strike is granted, Burke’s brief is stricken, and Burke is hereby given fifteen (15) days from this date to file an amended brief complying with the Florida Rules of Appellate Procedure.


author: PER CURIAM. CAMPBELL, Judge,

text:
    LINDER INDUSTRIAL MACHINERY COMPANY, Appellant, v. Chester BERRY, Appellee.
    No. 79-1293.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.

      Christy F. Harris of Christy F. Harris, P. A., Lakeland, for appellant.
    J. Bruce Phelps, Miami, and R. Scott Bunn, Winter Haven, for appellee.
    Jim Smith, Atty. Gen., and Cecil L. Davis, Jr., Asst. Atty. Gen., Tallahassee, for ami-cus curiae, Dept, of Revenue, State of Florida.
   PER CURIAM.

This is an appeal from a final judgment which reads in pertinent part:

THIS CAUSE was tried before the Court without a jury. The Court heard the evidence and the argument of counsel and has carefully considered them and the authorities cited.
The Defendant, Chester Berry, was a partner in 1974 in a coal company in Kentucky. At that time he also was interested in a rock pit in Bay County, Florida, some business interests in Miami and in Venezuela. The inference was that his main place of business was in Kentucky, although at the time he resided in Florida.
Berry became a substantial customer of Plaintiff, Linder Industrial Machinery Company (Linder) with most of the equipment purchased being sold and used in Florida by Berry or a corporation in which he was interested. Ordinarily, Lin-der did not sell to out of State customers because of agreements with the equipment manufacturers.
However, late in 1974 Linder made six sales of heavy equipment to Berry for use outside the State of Florida. The equipment was sold FOB Linder’s Hialeah yard and was to be delivered there for shipment at Berry’s expense to Kentucky. This was accomplished with the equipment being loaded at Linder’s place of business directly upon a “common carrier” vehicle for immediate transporting to Kentucky. It was not warehoused, held, or transferred in any manner by Berry or anyone for him prior to shipment. Delivery to Berry was accepted by the common carrier.
At that time Berry represented that he was exempt from sales tax in Kentucky and that he would submit his tax exemption number. As a result, Linder did not charge and collect the Florida sales tax on the sales.
In May, 1975, Berry purchased a used Allis-Chalmers loader for use in Venezuela. Again the sale was FOB Miami. In this instance, however, the equipment was resold by Berry to an independent licensed exporter for shipment to Venezuela. This stratagem was apparently common and was a means of expediting the exporting rather than being a bona fide sale of the equipment. Because of the planned export, no sales tax was collected by Linder on this purchase.
Berry did not submit the sales tax exemption numbers or proof of the exporting to justify Linder’s failure to collect the tax.
In 1977, the Florida Department of Revenue performed a sales tax audit of Linder’s books concerning the period of all the sales here involved. Objection was made to the failure to pay tax on these transactions. Berry was called upon by Linder to furnish evidence that the sales were tax exempt. Berry made an inadequate, unsuccessful effort of assistance. The Kentucky tax exemption was no bar to collection of the Florida tax. The Department of Revenue apparently paid little attention to the defense of intended Kentucky use of property sold and delivered in Miami.
As a result taxes, penalties and interest were assessed by the State of Florida against Linder in the amount of $18,-770.73 on the sale of equipment shipped to Kentucky and $523.79 for that exported to Venezuela. Linder paid the assessment and demanded reimbursement by Berry. Berry refused payment and the instant litigation ensued.
The question to be decided by the Court is whether the sales were subject to the Florida sales tax?
The sales come under the sales tax act unless exempt under Section 212.06(5)(a), Florida Statutes.
This section provides:
“212.06(5)(a). It is not the intention of this Chapter to levy a tax upon tangible personal property, imported, produced or manufactured in this State for export, provided that tangible personal property shall not be considered as being imported, produced or manufactured for export unless the importer, producer, or manufacturer delivers the same to a licensed exporter for exporting or to a common carrier for shipment outside the State or mails the same by United States mail to a destination outside the state. * * * (clauses dealing with aircraft, radio, or television broadcasting omitted) * * or any sale which the state is prohibited from taxing under the constitution or laws of the United States. Every retail sale made to a person physically present at the time of sale shall be presumed to have been delivered in this State.”
The Florida 3rd District Court of Appeal in Graybar Electric Company, Inc. v. State of Florida, Fla.App., 347 So.2d 718, stated:
“The Florida Supreme Court in McGilvray v. O’D.Askew, 340 So.2d 475 (Fla.1976) (Opinion filed December 9, 1976), has interpreted this statute to create a presumption that tangible personal property cannot be considered export goods exempt from the state sales tax unless one of three conditions obtain: (1) the property is delivered to a licensed exporter for exporting, or (2) the property is delivered to a common carrier for shipment out of the State, or (3) the property is mailed by the United States mails outside the State. The presumption created is rebuttable by the taxpayer upon a showing of any one of the above three conditions, in which case the property would not be subject to the State sales tax.”
So, if the evidence establishes that the Venezuela bound machinery was delivered to a licensed exporter for exporting or that the Kentucky machinery was delivered to a common carrier for shipment out of the State, then the respective transactions would not be taxable.
In this case the equipment was sold “FOB Miami” and delivery was accepted by the trucker as agent of the buyer.
Linder contends that the sale was completed, and it became Berry’s property prior to being loaded upon the common carrier for shipment to Kentucky. It was, the argument runs, a completed transaction and, therefore, subject to the tax. If it had been sold FOB some site in Kentucky but loaded on the same common carrier transport by the same employees at the same spot in Linder’s Miami yard, it would not have been taxable. But if the purchaser is responsible for the transportation (as in the instant case) it is taxable.
This pharisaical, fine distinction, is intriguing intellectually but results in poor justice and ignores both the substantive intent and the plain test given in the Statute.
The Legislature did not specify as to the test whether the sale was “complete” or whether title passed or who is responsible for the shipment. The test stated is whether the “importer, producer or manufacturer delivered same to a common carrier for shipment outside the State”.
In this case the Kentucky bound equipment was so delivered. This Court, therefore, finds the transaction was not taxable.
The Venezuela equipment situation is not so simple. For exporting reasons not fully explained, this equipment was technically sold to an exporter for shipment. The proof of the exporting transaction left much to be desired. The Court finds the evidence insufficient to prove that the equipment was delivered by Linder to a licensed exporter for exporting. This transaction is, therefore, found to be taxable.

We approve and adopt the foregoing analysis. There is no need to decide whether there is a constitutional prohibition against Florida imposing a tax on these transactions. By virtue of Section 212.-06(5)(a), Florida Statutes (1977), Florida has simply chosen not to do so. Notwithstanding Judge Campbell’s dissent, we see nothing in Chapter 212 or in any reported decision which requires that in order for the sale to be exempt, the dealer have an intent to sell his product in interstate commerce at the time he originally acquires it or commences its manufacture.

AFFIRMED.

HOBSON, Acting C. J., and GRIMES, J., concur.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I respectfully dissent. I do so because I believe the trial court and the majority mistakenly interpreted and relied on Section 212.06(5)(a), Florida Statutes (1973), to exempt a transaction which, but for that mistaken interpretation and reliance, would clearly be taxable. In every other transaction a sales tax consequence would occur in Florida when title to the article sold passed in Florida. As a general rule title passes when delivery from the control of the buyer to the control of the seller occurs in Florida. The legislature provided an exception to that rule in a special limited circumstance contained in Section 212.06(5)(a), Florida Statutes (1973), which provides in pertinent part:

It is not the intention of this chapter to levy a tax upon tangible personal property imported, produced or manufactured in this state for export, provided that tangible personal property shall not be considered as being imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same to a licensed exporter for exporting, or to a common carrier for shipment outside the state or mails the same by United States mail to a destination outside the state; . . . nor is it the intention of this chapter to levy a tax on radio and television broadcasting, or any sale which the state is prohibited from taxing under the constitution or laws of the United States. Every retail sale made to a person physically present at the time of sale shall be presumed to have been delivered in this state. (Emphasis added.)

The trial court and the majority place emphasis on the proviso of that statute concerning delivery to a common carrier, but in doing so they fail to give any import to the language in the statute preceding the proviso. I believe that preceding language must be construed to have some significance, and if so, its significance is to specifically prescribe who must be the deliverer to the common carrier in order to trigger the special exemption. The statute requires that for a transaction to be exempt where title passes in Florida, there must be delivery to a common carrier by a seller who imported, produced or manufactured for export the items sold. If title passed in Florida and there was delivery to a common carrier for export, the transaction would not be exempt under the literal interpretation of the statute if the item sold had not previously been imported, produced or manufactured in Florida for the purpose of export. The record below does not establish that Linder, the appellant here, had such a purpose when it acquired the property for resale. An examination of the facts established below is essential to an understanding of this writer’s conclusion that the literal interpretation of the statute requires the transaction in dispute to be taxable.

At all times pertinent to this appeal, Lin-der was a Florida corporation engaged, among other things, in the sale of heavy industrial equipment. Its headquarters were in central Florida, but it had branch offices and storage facilities in various other parts of the state. Linder acquired its equipment through the Clark Equipment System primarily for resale within the state of Florida. Indeed, only five percent or less of its equipment was sold outside the state or to out-of-state customers, when the terms of its dealer agreement as to its geographical area of responsibility would not be violated.

Berry was a resident of Florida, maintaining business operations in Kentucky as well as Florida, and had been a substantial customer of Linder.

There were six sales of industrial equipment by Linder to Berry in 1974, each represented by an invoice which contained the terms “FOB Miami” and “VIA Customer Trans.” There was a further sale in 1975 which contained the same delivery terms. The equipment purchased in 1974 was picked up at Linder’s storage facility in Miami by a common carrier hired by Berry, immediately following which it was transported to Berry’s business in Kentucky. The common carrier had no intrastate authority within Florida. No sales tax was collected from Berry by Linder because Berry had indicated that he was tax exempt and would furnish appropriate exemption numbers and documentation. He never did, however, and when the Florida Department of Revenue subsequently audited Linder and imposed the sales tax, Linder paid and brought its action below for breach of contract and for reimbursement from Berry.

In its final judgment, the trial court correctly concluded that the sales tax imposed was not prohibited by the constitution or laws of the United States. However, it did conclude that the tax was prohibited by the specific exemption created by Section 212.-06(5)(a). The trial judge was apparently of the opinion that this exemption was triggered by the mere fact that the equipment was delivered to the common carrier at Linder’s Miami facility. He made no initial finding that the particular equipment involved here had originally been imported, produced or manufactured in Florida for export.

For the reasons which follow, I would hold that the transactions in 1974 were not exempt and reverse.

I must assume, from reading Section 212.06 as a whole, that the State of Florida intends to impose its taxing power to the fullest extent allowable under the United States Constitution. As I read the numerous decisions of the United States Supreme Court, in an attempt to determine what is allowable under the United States Constitution, I find that the intent of the seller when he imports or manufactures goods, or the intent of the buyer when he purchases them, while relevant, is not determinative of the question of whether a particular transaction may be taxed by the state. See e. g., Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886). Rather, the determinative inquiry is whether the delivery of the goods to the purchaser, i. e., the passing of title, was a step in the process of exportation. If delivery occurs within the taxing state, a tax on the transaction will ordinarily be upheld. For example, in State Tax Commission of Utah v. Pacific States Cast Iron Pipe Co., 372 U.S. 605, 83 S.Ct. 925, 10 L.Ed.2d 8 (1963), a corporation manufactured pipe in Utah to meet specifications for specific out-of-state jobs. Although the contract called for shipment out of state and the sales price included freight charges, the Supreme Court reversed the Utah Supreme Court’s ruling that the certainty of interstate shipment made a sales tax on those shipments unconstitutional under the Commerce Clause. Reversal turned on the fact that the purchaser took delivery in Utah, i. e., title passed and the transaction was consummated before the purchaser shipped the goods out of state. See also Dodgen Industries, Inc. v. Iowa State Tax Commission, 160 N.W.2d 289 (Iowa 1968).

On the other hand, where there is a clear intent from the beginning that certain goods be exported and the act of delivery is a commitment of the goods to interstate commerce (or foreign export), the state where delivery occurred would be prohibited from levying a tax. In A.G. Spalding & Brothers v. Edwards, 262 U.S. 66, 43 S.Ct. 485, 67 L.Ed. 865 (1923), for example, a foreign purchaser directed its agent in New York to instruct a New York manufacturer of baseball equipment to deliver certain equipment to an exporter for shipment to the purchaser. While noting that the state could have levied a tax on the goods while they were in the process of manufacture, regardless of the fact that they were being manufactured for export, the court stated that no tax could be imposed once the goods had been committed to the export stream. Delivery of the goods to the exporter was the event which took the goods out of the general mass of property in New York and committed them to the export stream. See also Richfield Oil Corp. v. State Board of Equalization, supra.

It would seem, therefore, that the State of Florida could extend its taxing power to all transactions which occur up to the point at which the goods enter the stream of export or interstate commerce. The so-called “Florida sales tax”, Chapter 212, Florida Statutes, which is actually an excise tax for the privilege of engaging in the business of selling tangible personal property at retail in Florida, is collectible from “dealers” and is due and payable as each item of such property is sold at retail in Florida. “Dealer” is defined in Section 212.06(2) as, among other things, “every person who manufactures or produces . who imports or causes to be imported tangible personal property ... for sale at retail ... in this state.” As in the previously discussed cases, this language focuses on where the sale, i. e., delivery, occurs and seems to make irrelevant the dealer’s intent at the time he imported, produced or manufactured the property. However, Section 212.06(5)(a) announces the legislature’s intent to exempt tangible personal property which a dealer imports, produces or manufactures for export, so long as it is delivered to a licensed exporter, common carrier or is sent out of state by United States mail. Thus, it appears that the dealer’s intention at the time he acquires tangible personal property is relevant. This interpretation is bolstered by the fact that Section 212.06(5)(a) later provides that it is not intended to tax “any [other] sale which the state is prohibited from taxing under the constitution or laws of the United States.” Since this general exemption would have been sufficient to allow the state to extend its taxing power to the fullest extent possible, we must assume that the earlier, specific exemption was intended to protect transactions which the state would have otherwise been allowed to tax.

Unfortunately, this question of whether a dealer, if he is to qualify for the specific exemption, must have the intent to export the property at the time he acquires it, has not been addressed by the courts of this state. In State ex rel. Sunair Electronics, Inc. v. Green, 177 So.2d 490 (Fla. 1st DCA 1965), the seller, unlike the instant case, manufactured certain electronic equipment with the specific intent to sell it in export, and the question before the court was whether the other requirements of Section 212.06(5)(a) had been met, i. e., delivery “to a licensed exporter for exporting.” I interpret that case as standing for the proposition that where property is manufactured in Florida for export, the subsequent sale of that property will not be subject to the sales tax if delivery within Florida is to a licensed exporter. The court there held that the sales were exempt when the equipment was delivered directly to the exporter for export. It also held that the sales were taxable where prior to export the equipment was delivered to third parties or to the purchaser for installation in Florida in aircraft for export after the installation. The court reasoned in the second instance that the property had come to rest, title passed and the sale was consummated in Florida prior to delivery for export.

The ruling in the first instance comports with the holding in A.G. Spalding & Brothers v. Edwards, supra. I disagree with the ruling in the second instance insofar as it suggests that the place of delivery is crucial for purposes of the specific exemption created by Section 212.06(5)(a). As I have indicated, that question is only relevant with respect to the general exemption. If a dealer manufactures certain property for export, and has proper documentation of that intent, then it is immaterial that delivery occurs in Florida and the property temporarily comes to rest here before it continues on its journey out of this state. I again emphasize, however, that only Section 212.-06(5)(a), and not the United States Constitution, prohibits a sales tax under those circumstances.

My attention has been called to the Florida Supreme Court’s decision in Fred McGilvray, Inc. v. Askew, 340 So.2d 475 (Fla.1976), but I find that that decision does not resolve the question of whether, absent an intent to export at the time of acquisition, mere delivery by a dealer to a licensed exporter or common carrier exempts the transaction. Not only was there no indication in that case of the Florida dealer’s intent when he acquired the construction materials, the facts also indicated that there had been no delivery to a common carrier. Thus, although the court did discuss the presumption created by Section 212.06(5)(a), the case actually turned on whether or not the taxpayer fell under the general exemption. Because there were no facts to indicate a commitment to the stream of export, the court ruled that the transaction was not exempt under the United States Constitution. The property had come to rest and became a part of the mass of property in this state, making the transaction taxable under Section 212.06(6).

From the foregoing and numerous other decisions, I would distill the following principles:

(1) If the intent to sell in interstate or foreign commerce was present when the dealer originally acquired the property, it does not matter where title to the property passes so long as the property continues in the stream of foreign or interstate commerce by one of the three means specified in Section 212.06(5)(a). Thus, the fact that title to the property passes and the property temporarily comes to rest here before it continues on its journey is irrelevant. The United States Constitution does not prohibit a sales tax once the property comes to rest; Section 212.06(5)(a) does, however.

(2) If an intent to sell in interstate or foreign commerce was not present when the dealer originally acquired the property, neither Section 212.06(5)(a) nor the United States Constitution prohibits a sales tax on the subsequent retail sale, i. e., delivery of property in Florida. In this respect, it should be noted that the last sentence of Section 212.06(5)(a) creates a presumption that delivery is within Florida if the purchaser is physically present at the time of sale.

(3) However, the transaction in (2) would be exempt if the purchaser took delivery of the property outside of Florida.

Florida Administrative Code Rule 12A-1.64, is confusing if it is applied to all three transactions. It applies only to (2) and (3) by addressing the general exemption of Section 212.06(5)(a). It merely reiterates that the sales tax will not be levied on goods whose possession is taken outside the state, but will be levied if possession is taken here, even though the buyer intends to immediately ship them outside the state. Possession is taken outside the state where the sales agreement calls for delivery there by the dealer, or where the agreement calls for the dealer to ship them there by common carrier.

Turning now to the instant case, I have searched the record and find no indication that Linder imported the equipment with an intent to export it. Thus, under Rule 12A-1.64, the transaction would be exempt only if the sales agreement called for delivery outside the state by Linder or via a common carrier. The term “FOB Miami” and “VIA Customer Trans.” did not call for such delivery; it only provided that the purchaser would pick up the equipment in Miami and arrange for its shipment to its destination. As far as Linder was concerned, the sale had been consummated pri- or to the date when the purchaser’s carrier picked up the equipment.

For the foregoing reasons, I would reverse and remand.

      . Berry did not file a cross-appeal with respect to the shipment which ultimately reached Venezuela.

      . Linder’s claim for refund against the Department of Revenue has been stayed pending determination of this appeal.

      . The underlined language was first added in 1951.

      . The trial court ruled that this sale was taxable, and Linder has not appealed that ruling.

      . “Export” includes shipment of tangible personal property to another state. See Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, 91 (1946);
        Gough Industries, Inc. v. State Board of Equalization, 51 Cal.2d 746, 336 P.2d 161, 163 (1959).

      . Of course, if the purchaser takes delivery outside of Florida, then no retail sale has occurred here.


author: HUBBART, Judge.

text:
    PROPRIETORS INSURANCE COMPANY et al., Appellants, v. John and Janet VALSECCHI, etc., Ann and Richard Scileppi, etc., et al., Appellees.
    Nos. 80-752, 80-753.
    District Court of Appeal of Florida, Third District.
    July 18, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, Daniels & Hicks, Dolan, Fertig & Curtis, Ft. Lauderdale, for appellants.
    Rossman & Baumberger, Podhurst, Or-seck & Parks, Miami, for appellees.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   ON MOTION TO REVIEW

HUBBART, Judge.

This is a motion to review an order of a trial court increasing the amount of three supersedeas bonds previously posted by the appellant in this cause. We have jurisdiction to review this order. Fla.R. App.P. 9.310(f).

The central issue presented for review is whether an insurance company which is appealing an adverse final money judgment may obtain an automatic stay pending appeal under Fla.R.App.P. 9.310(b)(1) by posting a good and sufficient supersedeas bond in the amount ordered to be paid by said money judgment plus 15 percent thereof. We conclude that under Fla.R.App.P. 9.310(b)(1) the insurance company is entitled to such an automatic stay upon the posting of a supersedeas bond in the above amount, which amount a trial court has no discretion to increase. Accordingly, we reverse the order under review and reinstate the original supersedeas bonds posted by the appellant Proprietors Insurance Company herein.

I

The facts pertaining to the instant motion are undisputed. In an action filed and tried in the Circuit Court for the Eleventh Judicial Circuit of Florida, the plaintiffs John and Janet Valsecchi, the plaintiffs Ann and Richard Scileppi and the cross-claimant Caetano Da Vital secured jury verdicts against the defendant Proprietors Insurance Company and its insured defendants Deland Aviation, Inc., O. R. Hunt, and Dean V. West in the amount of $750,000, $750,000 and $750,000 respectively. Three final judgments were entered upon these verdicts in favor of the plaintiffs against all the above defendants in this cause. These final judgments were, in turn, amended by the trial court to reduce the defendant Proprietors Insurance Company’s liability on the judgments to the amount of the applicable insurance policy limits, to wit: $75,000 as to the Valsecchi plaintiffs; $75,000 as to the Scileppi plaintiffs and $100,000 as to the Vital plaintiff. All the defendants have prosecuted an appeal to this court from these final judgments as amended.

The defendant Proprietors Insurance Company sought to supersede the amended final judgment entered against it and from which it has appealed by posting with the clerk of the circuit court three supersedeas bonds equal to the amount which it was required to pay by the judgments appealed from, plus 15 percent thereof. The plaintiffs herein were dissatisfied with the amount of these bonds and moved the trial court to increase such bonds to equal the amount which the defendant Proprietors Insurance Company was required to pay by the amended final judgments plus 15 percent of the $750,000 entered against the individual insured defendants herein. The trial court entered an order granting this motion after a full hearing. The defendant Proprietors Insurance Company has filed a motion to review this order.

II

The applicable and controlling law in this case is found at Fla.R.App.P. 9.310 (1977), which provides in relevant part as follows:

“(a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both, (b) Exceptions.
(1) Money Judgments. When the order is solely for the payment of money, a stay pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof. If the liability of a party is less than the entire amount ordered to be paid, the bond required for that party shall be equal to the amount of such liability, plus 15%. Multiple parties having common liability may file a bond in the amount of the common liability, plus 15%. ”

This rule represents a change from the prior applicable appellate rules on this subject which provided at Fla.R.App.P. 5.5, 5.7 (1962) as follows:

“If a party desires to supersede a final decision, judgment, order or decree, he shall, at the time the appeal is taken, or at any time prior to filing the reeord-on-appeal in the Court, apply to the lower court for an order fixing the amount, terms and conditions for good and sufficient bond to be payable to the adverse party.” Fla.R.App.P. 5.5 (1962).
“When the decision, judgment, order or decree requires or provides unconditionally for the payment or recovery of money, the bond shall be conditioned to satisfy the judgment or decree or any modification not increasing the amount thereof, in full, including costs, interest (if chargeable), and damages for delay, in event the appeal be dismissed or the judgment, order or decree is affirmed.” Fla.R.App.P. 5.7 (1962).

As a plain reading of the above rules indicate, Fla.R.App.P. 9.310 (1977), does not provide for a hearing and a discretionary setting of a supersedeas bond by the trial court, as the prior rule did, where an appeal is taken from a money judgment. As to such an appeal, the amount of the superse-deas bond is automatically set by Fla.R. App.P. 9.310(b)(1) at a sum “equal to the amount ordered to be paid [by the judgment appealed from], plus 15% thereof.” The committee notes for Fla.R.App.P. 9.310(b)(1) confirm this conclusion by stating that the above rule “establishes a fixed formula for determining the amount of the bond where there is a judgment solely for money.” A trial court, in our view, has no discretion to interfere with this formula by increasing or decreasing the amount of the supersedeas set by the rule. The salutory purpose behind this new rule was to relieve the trial and appellate courts from the taxing administrative burden of hearing and deciding routine, non-controversial motions for supersedeas on appeals from money judgments by fixing a formula for the posting of such bonds with the clerk of the court without the necessity for a motion or hearing. Indeed, the formula fixed by Fla. R.App.P. 9.310(b)(1) is similar in amount to that which was followed by the vast majority of trial and appellate courts under the prior rules. The purpose behind the new rule is defeated, in our judgment, if we read it, as urged, to give the trial court the discretionary authority to hear and grant motions to increase or decrease such super-sedeas bonds.

Ill

In the instant case, we deal with three amended final judgments solely for money which ordered the defendant Proprietors Insurance Company to pay the plaintiffs herein $75,000, $75,000 and $100,000 respectively. Under Fla.R.App.P. 9.310(b)(1), the defendant Proprietors Insurance Company is entitled to an automatic stay of such judgments pending an appeal to this court by posting, as it did, three supersedeas bonds equal to the amounts ordered to be paid by said judgments plus 15 percent thereof. We see no legal basis under the rule for the trial court to exercise its discretion, as it did, and increase the supersedeas bonds herein. The rule, not the trial court, sets the amount of the supersedeas bond in an appeal to this court from a money judgment.

The plaintiffs herein urge, notwithstanding the clear language of Fla.R. App.P. 9.310(b)(1), that the trial court should have the authority to increase the supersedeas bond previously posted because the formula set by the rule is inadequate in this case. Specifically, the plaintiffs point out that the defendant Proprietors Insurance Company has a contingent liability to pay for any interest and taxable costs in-' curred upon appeal from the judgments entered against the individual insured defendants under the subject insurance policy, which liability is not adequately secured by the supersedeas bonds herein. We are cited to no authority, however, either under the present or prior appellate rules which require an insurance company to supersede such a contingent liability in order to stay a money judgment entered against it pending appeal, and our independent research has revealed none. Such contingent liability, in our view, may be determined and enforced in subsequent proceedings by independent complaint under Fla.R.Civ.P. 1.110(h), but need not be superseded upon this appeal by the defendant Proprietors Insurance Company. In any event, Fla.R.App.P. 9.310(b)(1) automatically sets the amount of supersedeas herein and, as previously explained, the trial court has no discretion to determine that the automatic formula set by the rule is inadequate in a given case.

The motion to review is granted and the cause remanded to the trial court with directions to vacate the order under review and reinstate the three prior supersedeas bonds previously posted in this cause by the defendant Proprietors Insurance Company.

      . It should be noted that the posted supersede-as bonds also include the individual insured defendants as principals on the bonds. It is clear, however, that these bonds in no way supersede the $750,000 amended final judgments entered against such defendants herein as the amount of the bonds posted is vastly less than that required by Fla.R.App.P. 9.310(b)(1).

      . The plaintiffs have filed a thoughtful and comprehensive response in this cause which we have carefully considered. We must, nonetheless, reject the position taken therein as such would require a rewrite of our present appellate rules and practice. Indeed, as the response indicates, plaintiff’s counsel has proposed just such a change to the Appellate Rules Committee in accord with the position he takes in his response. We believe any such change, if warranted, should come by this method of proper rule modification rather than, as urged, by judicial fiat of this court.


text:
    DADE COUNTY, a Political Subdivision of the State of Florida, Petitioner, v. The Honorable H. Paul BAKER, Circuit Judge in and for the Eleventh Judicial Circuit of Florida, and the Honorable Bennett H. Brummer, public defender of the Eleventh Judicial Circuit of Florida, Respondents. Arising out of the STATE of Florida, Plaintiff, v. Hernando AHUMADA, Defendant.
    No. 78-765.
    District Court of Appeal of Florida, Third District.
    July 21, 1980.

      Robert A. Ginsburg, County Atty., and Stephen P. Lee, Asst. County Atty., for petitioner.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Bennett H. Brummer, Public Defender, for respondents.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

ORDER ON MANDATE

WHEREAS, the judgment of this court, 362 So.2d 151, was entered on September 12, 1978 granting a petition for writ of certiorari to the Circuit Court for Dade County in the above styled cause; and

WHEREAS, on • review of this court’s judgment, by certiorari, the Supreme Court of Florida, 384 So.2d 147, by its opinion and judgment filed May 1, 1980 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It Is Ordered that the mandate of this court heretofore issued in this cause on September 28, 1978 is withdrawn, the judgment of this court heretofore filed in this cause on September 12, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court is hereby reinstated and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court.


author: STONE, Judge ad hoc. MARCUS, Justice WATSON, Justice.

text:
    Sandra Mutina RUDLOFF v. LOUISIANA HEALTH SERVICES AND INDEMNITY CO. d/b/a Blue Cross of Louisiana.
    No. 65037.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
    On Rehearing June 23, 1980.
    Howard E. Sinor, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-respondent.
    Leon Rudloff, New Orleans, for plaintiff - applicant.
   STONE, Judge ad hoc.

The plaintiff, Sandra Mutina Rudloff, brought suit against Louisiana Health Services and Indemnity Co. (“Blue Cross”) in the First City Court of New Orleans. She sought reimbursement for certain hospital and doctors’ charges under a group health and accident policy issued by defendant to the City of New Orleans. Plaintiff also sought penalties and attorney’s fees under La.R.S. 22:657. The court entered judgment in favor of the plaintiff for $1,254.41 for the hospital and doctors’ charges. The Fourth Circuit Court of Appeal reversed and found for the defendant. We affirm the Fourth Circuit’s ruling.

Sandra Mutina Rudloff was hospitalized at Tulane Medical Center from May 30, 1977 until June 17 of that year for a mental disorder. At the time of the hospitalization, Rudloff was insured as a dependent under a contract of hospitalization insurance between Blue Cross and the City of New Orleans (plaintiff’s spouse’s employer). Blue Cross refused Rudloff’s claim for reimbursement of the hospital and doctors’ charges under an article of the contract which provided:

No benefits shall be paid hereunder on account of:
Professional services, supplies or hospitalization for mental or nervous disorders and psychiatric disorders (such as minimal brain dysfunction) of the central nervous system. .

After Blue Cross denied the claim, Rud-loff filed suit for the charges contending that Blue Cross failed to comply with La. R.S. 22:213.2, and because of that failure the court should construe the contract as including the disputed coverage. La.R.S. 22:213.2 provides in pertinent part:

A. Every insurer authorized to issue policies of health and accident insurance in this state shall offer to all prospective group, blanket, and franchise policyholders at their option a provision in the insurer’s health and accident insurance policies which shall state that benefits shall be payable for services rendered for the treatment of mental and/or nervous disorders, under the same circumstances, conditions, limitations, and exclusions as benefits are paid under those policies for all other diagnoses, illnesses, or accidents;

Assuming for the moment that R.S. 22:213.2 applies to the policy in question, and further assuming that Blue Cross failed to make the proper offer as required by that statute, we note that no penalty is prescribed by the insurance code for such a failure. To permit recovery in this case, assuming a valid offer, would require us to impute acceptance by the city. We are forced to conclude that the plaintiff may not recover in this case under her hospitalization insurance contract.

The plaintiff draws the court’s attention to R.S. 22:653 which states:

Any insurance policy, rider, or endorsement, hereafter issued and otherwise valid, which contains any condition or provision not in compliance with the requirements of this Code, shall not be rendered invalid thereby, but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider or endorsement been in full compliance with this Code.

It must be noted that nothing in the policy under consideration fails to comply with the insurance code. A contract of hospitalization insurance is in perfect conformity with the code where there is no coverage for mental or nervous disorder treatment. If R.S. 22:213.2 is applicable to a hospitalization insurance contract, it merely requires that mental coverage be offered, not that it be included in all such contracts. The contract conforms to the code without the disputed coverage and therefore R.S. 22:653 does not allow us to construe the contract as including coverage for the treatment of mental disorders.

The plaintiff argues that R.S. 22:213B(8) requires the court to construe the contract as including the disputed coverage. The statute seeks only to assure that if a policy uses certain terms or has reference to certain matters the terms used and the matters referred to should be uniformly understood. In short, R.S. 22:213B seeks to provide for uniform definitions for terms commonly used in insurance contracts. R.S. 22:213B(8) defines “conformity with state statutes” in a certain way and calls upon the courts to construe clauses pertaining to such conformity in the way set forth. There is no such construction problem at issue here. The plaintiff’s argument fails to persuade us.

The court has not been able to find any other provision of the insurance code which convinces it that the specifically excluded coverage should be read into the contract.

The court notes that Tabb v. La. Health Services & Indemnity Co., 361 So.2d 862 (La.1978) held that a policy of hospitalization insurance was not “health and accident insurance” as contemplated by the insurance code. This court does not overrule Tabb today but simply finds that, even if R.S. 22:213.2 is applicable to the insurance contract at issue contrary to Tabb, the plaintiff fails here.

AFFIRMED.

MARCUS, J., dissents and assigns reasons.

CALOGERO and DENNIS, JJ., dissent for the reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

I believe we erred in Tabb v. Louisiana Heaith Services and Indemnity Co., 361 So.2d 862 (La.1978) in finding that a policy like the one sued upon in the instant case is not a “health and accident insurance” policy as defined by La.R.S. 22:6(2). That statute defines “health and accident insurance” as “[ijnsurance against bodily injury . and against disablement resulting from sickness and every insurance appertaining thereto ” (emphasis added); such broad language would include a policy designed to provide benefits for hospital and medical care resulting from bodily injury or disablement. Therefore, defendant insurer should have offered mental disorder coverage to the City of New Orleans in compliance with La.R.S. 22:213.2. The courts below found that no such offer was made.

I also disagree with the majority’s statement that La.R.S. 22:653 does not direct construction of the City’s contract as including the non-offered mental disorder coverage; policies failing to comply with La.R.S. 22:213.2 “shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy been in full compliance with [the] Code.” I would allow plaintiff to recover the expenses incurred for treatment of her mental disorder. Accordingly, I respectfully dissent.

ON REHEARING

WATSON, Justice.

Plaintiff, Sandra Mutina Rudloff, filed suit against Louisiana Health Services and Indemnity Company (Blue Cross) for reimbursement of hospital and doctor’s charges she incurred between May 30 and June 17, 1977, while confined to Tulane Medical Center for a mental or nervous disorder. At the time of her hospitalization, plaintiff was insured as a dependent under a contract of insurance between Blue Cross and the City of New Orleans (her husband’s employer), and she sought recovery under the policy as well as penalties and attorney’s fees under LSA-R.S. 22:657(A).

The trial court ruled in favor of plaintiff in the amount of $1,254.41 for the hospital and doctors’ charges but the Court of Appeal reversed. 372 So.2d 734 (La.App. 4 Cir. 1980). A writ of certiorari was granted. On original hearing before this court, the judgment was affirmed but, because of convincing arguments that Tabb v. Louisiana Health Services & Indemnity Co., 361 So.2d 862 (La., 1978) should be overruled, a rehearing was granted.

At issue is whether defendant, Blue Cross, was required by LSA-R.S. 22:213.2 to offer optional insurance coverage for the treatment of mental and/or nervous disorders to policyholders under their group agreement with the City of New Orleans, whether such an offer was actually made, and, if not, whether the penalty for violation of the statute should be construction of the contract as including the non-offered mental disorder coverage.

It is undisputed that the group agreement in question specifically excludes coverage for plaintiff’s illness. Article VI(14) (Major Medical) provides in pertinent part:

“No benefits shall be provided hereunder on account of:
“Professional services, supplies or hospitalization for mental or nervous disorders and psychiatric disorders (such as minimal brain dysfunction) of the central nervous system . . . ”

Nevertheless, plaintiff contends that LSA-R.S. 22:213.2 mandates that Blue Cross, as a health and accident insurer, offer to group policyholders, at their option, coverage for mental and/or nervous disorders on the same terms as coverage for all other diagnoses, illnesses, or accidents. The applicable portion of LSA-R.S. 22:213.2A provides:

“Every insurer authorized to issue policies of health and accident insurance in this state shall offer to all prospective group, blanket, and franchise policyholders at their option a provision in the insurer’s health and accident insurance policies which shall state that benefits shall be payable for services rendered for the treatment of mental and/or nervous disorders, under the same circumstances, conditions, limitations, and exclusions as benefits are paid under those policies for all other diagnoses, illnesses, or accidents; $ * *

The Court of Appeal accepted the trial judge’s finding that defendant failed to offer mental-disorder coverage on the same terms as coverage for all other illnesses, yet denied plaintiff’s claim on the grounds that, according to Tabb, the policy in question was not a health and accident insurance policy and therefore LSA-R.S. 22:213.2 was inapplicable.

LSA-R.S. 22:6(2) defines health and accident insurance as follows:

“(2) Health and Accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.”

In Tabb, a policy which provided benefits for hospital and medical care, was held not to be a health and accident policy because it did not insure against injury, disablement or death. However, under the statute “health and accident insurance” also encompasses “insurance against bodily injury . . and against disablement resulting from sickness and every insurance appertaining thereto." The United States Supreme Court has held that health insurance is “an undertaking by one person for reasons satisfactory to him to indemnify another for losses caused by illness.” Haynes v. United States, 353 U.S. 81, 83, 77 S.Ct. 649, 650, 1 L.Ed.2d 671, 673 (1957). This policy which provides benefits for hospital and medical care, was intended to indemnify plaintiff for those expenses occasioned by her “sickness” and is therefore a health insurance policy. See Meyer, Life and Health Insurance Law, 19:3, p. 614 (1972). Since hospitalization policies are included within the definition of health and accident policies in Louisiana law, Blue Cross was required by LSA-R.S. 22:213.2 to offer coverage for mental disorders to its policyholders. To the extent that it conflicts with this holding, Tabb v. La. Health Services & Indem. Co., 361 So.2d 862 (La.,1978) is overruled.

Blue Cross did not offer coverage for treatment of mental and nervous disorders with the same conditions as the benefits for other illnesses. The trial and appellate courts correctly concluded that Blue Cross did not comply with the statute in this respect. The next question is whether the insurance contract should be read as though the requisite offer had been made and accepted.

Plaintiff contends that the policy should be reformed to provide the non-offered mental disorder coverage as provided by LSA-R.S. 22:653. However, LSA-R.S. 22:213.2 does not require the inclusion of benefits for mental and nervous disorders in health and accident insurance policies, rather it requires the offer of certain coverage which may be accepted at the policyholder’s option. The question is what remedy is available to a policyholder who has not been offered mental disability coverage by the insurer.

Although not identical, the provisions of LSA-R.S. 22:213.2 are analogous to those of LSA-R.S. 22:1406D(l)(a), which requires the inclusion of uninsured motor vehicle coverage in every policy delivered or written in Louisiana unless the insured specifically rejects such coverage. In other words, the insured must be offered the option of obtaining uninsured motorist coverage, just as group health and accident policyholders must be offered the option of purchasing coverage for mental disorders. In Gianakis v. Mayen, 301 So.2d 413 (La.App. 4 Cir. 1974) there was no evidence uninsured motorist coverage had been rejected, and the policy was construed as though such coverage were included. In Walker v. Coleman, 367 So.2d 395 (La.App. 2 Cir. 1979) writ refused 369 So.2d 1365, it was held that the rejection of uninsured motorist coverage had to be in writing, even though the statute in effect at that time did not so provide. The court recognized the strong public policy behind the enactment of the uninsured motorist statute.

Likewise, the intent of the Legislature in enacting LSA-R.S. 22:213.2 was to promote the availability of mental disorder coverage in group health and accident insurance policies. To give effect to that intent, the Blue Cross policy should be read as though the statutorily mandated offer had been tendered and accepted.

Since Blue Cross clearly violated the provisions of LSA-R.S. 22:213.2 and no remedy is provided by the Insurance Code, reformation of the policy is appropriate. No other sanction is available.

On the issue of penalties and attorney’s fees under LSA-R.S. 22:657(A), defendant claims that because it based its refusal to pay on a specific policy exclusion, a bona fide dispute existed with respect to coverage and penalties and attorney’s fees should not be awarded. Valladares v. Monarch Insurance Co., 282 So.2d 569 (La.App. 4 Cir. 1973); Cotlar v. Gulf Insurance Co., 318 So.2d 923 (La.App. 4 Cir. 1975); Paret v. Louisiana Health Service and Indemnity Co., 366 So.2d 634 (La.App. 3 Cir. 1978), writ refused 369 So.2d 139.

Plaintiff, on the other hand, argues that defendant’s failure to pay was not based on “just and reasonable grounds such as would put a reasonable and prudent businessman on his guard” but was based solely on its view that its policy exclusion prevailed over provisions of the Insurance Code.

Plaintiff first submitted her hospital and doctor bills to defendant on September 2, 1977. At the time of the initial submission of her claim, LSA-R.S. 22:213.2 had not been judicially interpreted and, as evidenced by the conflict between Tabb and this decision, there was room for disagreement on the question of its applicability to this type of policy. Therefore, defendant was justified in relying on its policy exclusion and is not liable for penalties and attorney’s fees. See Hayden v. Torrence, 355 So.2d 1362 (La.App. 1 Cir. 1978), writ refused 357 So.2d 1166, 1169.

For the reasons assigned, the judgment of the Court of Appeal is reversed and the judgment of the trial court is reinstated.

REVERSED AND RENDERED.

BLANCHE and DIXON, JJ., dissent.

       Lemmon, Justice, recused.

      . LSA-R.S. 22:657(A) provides:
      “All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”

      . LSA-R.S. 22:653 provides:
      “Any insurance policy, rider, or endorsement hereafter issued and otherwise valid, which contains any condition or provision not in compliance with the requirements of this Code, shall not be rendered invalid thereby, but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider or endorsement been in full compliance with this Code.”


author: DENNIS, Justice,

text:
    STATE of Louisiana In the Interest of Ray Mitchell CALDWELL, Jr.
    No. 67699.
    Supreme Court of Louisiana.
    June 4, 1980.
   DENNIS, Justice,

dissenting.

I respectfully dissent. The juvenile in this case has a “right to have reviewed summarily by the Louisiana Supreme Court . by preference” the decision by the juvenile court to transfer the case to the court exercising criminal jurisdiction. La. R.S. 18:1571.4B. The action of the majority falls woefully short of a preferential, summary review and effectively denies the juvenile this important statutory right.

ORDER

All proceedings in connection with the statutory juvenile transfer hearing are stayed until this Court acts on the writ application; relator is ordered returned to the Caddo juvenile detention facility pending further orders of this Court; relator’s application to stay grand jury proceedings is denied. See State of Louisiana ex rel. Craig S. Coco, 363 So.2d 207 (La.1978). The transcript of the transfer hearing is ordered furnished to this Court as soon as possible.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    Edward K. SANDERS v. HERCULES SHEET METAL, INC., ABC Insurance Company and DEF Insurance Company.
    No. 66596.
    Supreme Court of Louisiana.
    June 23, 1980.

      Dan C. Garner, Kenneth B. Krobert, New Orleans, David R. Heno, Garner & Munoz, for plaintiff-respondent.
    Michael E. Wanek, Hulse, Nelson & Wan-ek, New Orleans, for defendants-applicants.
   DIXON, Chief Justice.

Edward K. Sanders was injured when he was unable , to stop his car in time to avoid colliding with a truck. On the afternoon of the accident Sanders and his wife had attended a Christmas party given by his employer. Sanders sued his employer on the basis of alternative theories of liability. First, he alleged that the accident occurred because he was intoxicated, and that his employer was responsible in tort because it had encouraged its guests to drink at the party and then — knowing that Sanders had consumed a good deal of alcohol — had permitted him to leave the party and drive home alone. In the alternative, he contended that the accident took place while he was acting in the course and scope of his employment, and that he was therefore entitled to workmen’s compensation benefits.

In his deposition, taken by counsel for the defendant, Sanders stated that in the course of about two and one-half hours at the party he had four to six mixed drinks, whiskey and 7-Up, although he normally drank beer. From the party plaintiff and his wife drove to a tavern which he regularly frequented after work. After ordering a beer but drinking only part of it, Sanders drove to New Orleans East to buy fireworks, accompanied by a man he had met at the tavern. His wife returned directly home from the tavern by bus, after a discussion in which she attempted to convince him to drive home instead of embarking on the search for fireworks. Sanders stopped at the tavern again for a very brief period after his errand was completed, leaving untouched the beer that was served to him, and he was on his way home from the tavern when the accident took place. Two hours had elapsed since he left the office party. According to Sanders, he was not intoxicated at any point during the afternoon. His wife stated on deposition, on the other hand, that Sanders was intoxicated when they left the office party, although she also stated that she herself was in no condition at that point to evaluate his condition.

Defendant employer filed a motion for summary judgment, accompanying the motion with copies of the depositions. With regard to the workmen’s compensation claim, defendant argued, it was clear that plaintiff was not acting within the course and scope of his employment at the time of the accident. With regard to the tort claim, it was also clear — according to plaintiffs own version of the afternoon’s events — that Sanders was not intoxicated when he left the party, that he would not have appeared intoxicated to others at that time, that he left the party in the company of his wife (not alone, as claimed in his petition), and that he was not intoxicated at the time of the accident. In his memorandum in opposition to the motion for summary judgment, plaintiff cited certain statements in his wife’s deposition, in addition to the results of a police department blood test for alcohol level made shortly after the accident and the DWI charges filed against him as a result of the accident, as proof that he was indeed intoxicated when he left the party and at the time of the accident. Mrs. Sanders’ deposition had already been submitted by the defense in support of its summary judgment motion; plaintiff did not introduce any proof of the blood test results or of the charges filed against him.

The trial court granted defendant’s motion for summary judgment and dismissed plaintiff’s suit. The Court of Appeal affirmed the dismissal of the workmen’s compensation claim but it reversed the dismissal of the tort claim. 377 So.2d 486 (La.App. 1979).

Despite the evidence presented by defendant in support of its motion for summary judgment, the court found that whether plaintiff was intoxicated when he left the party and at the time of the accident continued to present a genuine issue of material fact. The evidence contained in plaintiff’s deposition was not conclusive on this issue; plaintiff might have been too intoxicated at the relevant times to be able to evaluate his own condition, even in retrospect, and he had ingested a large amount of alcohol, in greater concentration than the beer he customarily drank, within a relatively short period. In response to defendant’s application, we granted writs to review this portion of the ruling.

An initial question is whether defendant is entitled to summary judgment on the sole basis that plaintiff failed to respond to defendant’s motion by providing some evidence of the existence of a genuine issue. C.C.P. 967 provides in pertinent part:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

The 1966 Comment to C.C.P. 966 states that article 966 and article 967 were amended to accord with 1963 amendments to Rule 56 of the Federal Rules of Civil Procedure. The Notes of Advisory Committee on 1963 Amendment, Subdivision (e), the source provision of C.C.P. 967, observe, with respect to this question, that where “the evi-dentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” U.S.C. § 28, Federal Rules of Civil Procedure Rule 56. It is for this reason that article 967 provides that in the absence of a sufficient response, summary judgment shall be rendered “if appropriate.” On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.

In deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978). Plaintiff’s statement that he was not intoxicated when he left the party or at the time of the accident was controverted by his wife’s declaration that he was intoxicated upon leaving the party. His wife also stated that he had very little tolerance for hard liquor, and plaintiff himself admitted that he had four to six drinks at the party within less than two hours. Despite defendant’s submission of the depositions of plaintiff and his wife in support of its motion for summary judgment, the issue of plaintiff’s intoxication remained unresolved. Plaintiff was therefore not required, at this juncture, to present any evidence of the existence of a disputed fact.

Even though the issue of plaintiff’s intoxication remained unresolved, it must be noted that this issue was only material to the question of defendant’s negligence; if there was no question about defendant’s negligence, this issue had no relevance. A motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). Assuming, then, that all doubts concerning the issue of intoxication were resolved in favor of the plaintiff, that is, assuming proof that plaintiff was intoxicated when he left the party and at the time of the accident and that his employer’s agents were aware of his intoxication, the crucial question is whether reasonable minds might conclude that defendant breached a duty in permitting plaintiff to leave the party. In Thrasher v. Leggett, 373 So.2d 494 (La.1979), we examined the duty owed by a bar owner to an intoxicated patron. Even if we accept plaintiff’s allegation that his employer provided its employees with the Christmas party solely for the benefit of the employer’s business, defendant would have no higher standard of duty than a bar owner. We found that duty, under C.C. 2315 and 2316, is to avoid affirmative acts which increase the risk of peril to an intoxicated person. The bar owner is not however responsible for harm caused by the patron’s inebriated condition itself. We also found that the proximate cause of harm is more nearly the act of voluntarily drinking to the point of intoxication, a form of contributory negligence, not the act of making the alcohol available for consumption. Viewing the situation before us here most favorably to plaintiff, defendant committed no affirmative act which increased plaintiff’s peril. Evicting plaintiff from the party, onto a busy street, might have been such an affirmative act, but permitting him to leave the party was not. Rather, plaintiff caused the danger to himself, first by drinking to the point of intoxication, then by choosing to drive home alone — after first driving a considerable distance in search of fireworks — instead of returning directly home in the company of his wife.

Because reasonable minds must inevitably conclude that plaintiff’s employer was not negligent, even if the accident were caused by plaintiff’s intoxication, defendant was entitled to summary judgment on the issue of its tort liability.

For the reasons assigned, that part of the Court of Appeal judgment reinstating plaintiff’s tort claim is reversed and the tort claim is dismissed. The judgment of the district court is reinstated, at plaintiff’s cost.

WATSON and LEMMON, JJ., concur in the result.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority opinion unnecessarily interprets Thrasher v. Leggett, 373 So.2d 494 (La.1979), as severely restricting Pence v. Ketchum, 326 So.2d 494 (La.1976). As I read the opinion here, the court has concluded that the duty of an employer hosting a Christmas Party toward his employee-guests consists in merely refraining from doing affirmative acts which imperil them in their intoxicated conditions. This notion is not compelled by Pence or Thrasher.

The proper interpretation of both Pence and Thrasher as to the duty of a bar owner toward patrons, or a host of a party toward guests, is couched in terms of duty/risk. The server of drinks owes a duty not to serve drinks to an intoxicated person; this duty extends to some, but not all, risks. In Thrasher, the duty did not extend to those risks of injury created almost wholly by the victim’s own aggressive, violent behavior. On the other hand, in Pence the bar owner’s duty extended to any risks caused by the bar owner’s ejection of an intoxicated person onto a busy street. See A. Johnson, Symposium: Comparative Negligence in Louisiana, Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319, 328 n. 36 (1980).

Therefore, it is improper to limit the party host’s, or bar owner’s, duty toward intoxicated persons to a mere avoidance of affirmative acts which place the victim in peril. The duty may also extend to the failure to act, where such failure brings on a risk encompassed within the duty of a host not to serve drinks to an intoxicated person. Here, for purposes of deciding the summary judgment motion, the failure of the employer to intervene and prevent the plaintiff from driving away from the party, when the employer knew the plaintiff was intoxicated and incapable of driving, amounted to a breach of his duty toward the plaintiff. The specific risk encompassed by the employer’s duty was that the plaintiff would injure himself by careless operation of an automobile due to his intoxication.

      . Under R.S. 23:1081, workmen’s compensation is not allowed for an injury caused by the injured employee’s intoxication. The employer bears the burden of proving intoxication and causation.

      . The Court of Appeal reached this conclusion without considering plaintiffs wife’s deposition, under the misapprehension that her deposition did not form part of the record before the trial court when it considered the motion for summary judgment.