author: SHARP, Judge. ORFINGER, Judge, BAKER, JOSEPH P.,

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. Nancy Crews SUTTON, as widow of Joseph Sutton, Jr., Appellee.
    No. 79-320.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    Rehearing Denied July 23, 1981.

      Ronald L. Harrop and W. Marvin Hardy, III, of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    Dennis J. Wall of Rumberger, Kirk & Caldwell, Orlando, for appellee.
   SHARP, Judge.

Government Employees Insurance Company (GEICO) appeals from a judgment of the circuit court that Nancy Crews Sutton has the right to require GEICO to arbitrate uninsured motorist benefits under its policy which insured Joseph Sutton, Jr., Nancy’s deceased husband. GEICO claims recovery under its policy is barred because Nancy Sutton entered into a settlement with and gave a complete release to an insured joint tort-feasor, and its liability insurer, without obtaining in advance the written consent of GEICO. We agree that under the circumstances of this case, Sutton’s claim is barred, and the judgment appealed is therefore reversed.

The parties submitted a Joint Statement of Agreed Case which summarized all of the ultimate facts they agreed were necessary for the court’s determination of this suit. At approximately 8:00 P.M. on November 1, 1971, Joseph Sutton, Jr. died as a result of injuries he received in an automobile accident involving his car, a Renault, and a Cadillac owned by Amick Construction Company, which was driven Richard Amick. The Amick vehicle was traveling west in the west-bound lane of a 2-lane highway, when it pulled out into the east-bound lane and collided with Sutton. At the time of the accident another vehicle, owned by George Roberts, was stopped in the westbound lane, without any lights. Amick apparently had to pull into the east-bound lane to avoid hitting Roberts’ car.

The Roberts car was not insured. The Amick vehicle had liability coverage of $1,000,000 with Aetna Casualty & Surety Company. Sutton had uninsured motorist coverage of an undisclosed amount with GEICO.

Sutton’s widow filed suit against Richard Amick, Amick Construction Company, and Aetna. That action was settled for $185,-000.00 and it was dismissed with prejudice. Nancy also gave Aetna and the Amicks a release of all claims she might have against them. She then made a claim against GEI-CO on the ground that the provable damages exceeded $185,000.00, and her children’s damages exceeded $250,000.00. GEI-CO claimed her damages did not exceed $185,000, and it denied coverage because of her settlement with Aetna and the Amick defendants.

Sutton’s insurance policy with GEI-CO contained the following exclusionary provision with respect to uninsured motorist coverage:

Exclusions: This policy does not apply under Part IV: (a) to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this policy shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor; ....

The “Trust Agreement” provisions of Part IV also provided that if GEICO made any payments pursuant to uninsured motorist coverage, it would be entitled to recover its payments out of any settlement or judgment with the tortfeasor. The fundamental issue in this case is whether the “exclusion” in the uninsured motorist endorsement, barring recovery where the insured settles his claim against a tortfeasor other than the uninsured motorist, is valid and enforceable.

In other jurisdictions where the insured is injured by both an insured and an uninsured tortfeasor, there is a split of authority as to whether settlement with the insured tortfeasor bars recovery of uninsured motorist benefits. Annot., 25 A.L.R.3d 1275, 1287 (1969). Some courts have held that if the exclusion is applied to a settlement with an insured tortfeasor; it would violate the state’s statutory requirements with regard to uninsured motorist coverage and, therefore, the exclusion only applies if the insured settles with the uninsured motorist. Other courts hold that settlements with either the insured tortfeasor or the uninsured tortfeasor in violation of the exclusion will bar coverage.

Absent a statute which alters the rules applicable to the enforceability of such exclusions, there appears to be no logical basis to distinguish between an unauthorized settlement with an uninsured motorist tortfeasor and an unauthorized settlement with an insured joint tortfeasor or his liability carrier. In both situations the uninsured motorist carrier or insurer has subro-gation rights against the party released, and in both situations the uninsured motorist carrier is potentially liable for the excess over the amount received from the liability carrier or the tortfeasor.

This case is different than the three-car accident involved in Volkswagen Insurance Company v. Taylor, 201 So.2d 624 (Fla. 1st DCA 1967) because in that case there were two separate accidents caused by two tort-feasors. The injuries and damage to the plaintiff were apparently unrelated and distinguishable. In this case the uninsured motorist, Roberts, either was totally uninvolved in the accident, or he was a joint-tortfeasor. He could not have been an “unrelated,” independent tortfeasor because there was only one collision between two cars.

In the context of an unauthorized settlement with the uninsured motorist tortfeasor, Florida courts enforce the plain meaning of the exclusions in uninsured motorist coverage. American Home Assurance Company v. Curtis, 367 So.2d 641 (Fla. 3d DCA 1979); Travelers Insurance Company v. Gray, 360 So.2d 16 (Fla. 3d DCA 1978); Sena v. State Farm Mutual Automobile Insurance Company, 305 So.2d 243 (Fla. 3d DCA 1974); McInnis v. State Farm Mutual Automobile Insurance Company, 208 So.2d 481 (Fla. 4th DCA 1968). Enforcement of the consent to settlement clause does not violate the statutory provisions of Florida’s uninsured motorist coverage in that context. Travelers Insurance Company v. Gray, 360 So.2d 16 (Fla. 3d DCA 1978). We do not perceive any reason to find a violation of the statute or of public policy merely because the settlement was with an insured joint tortfeasor rather than with an uninsured sole tortfeasor.

Analogous to the uninsured sole tort-feasor situation, the enforcement of the exclusion when settlement is with an insured joint tortfeasor does not always follow. The insurance carrier may waive the benefits of the exclusion through inequitable conduct. The insured may show such a breach of the “consent-to-settlement” clause did not in fact prejudice the uninsured motorist carrier and the insured may show the uninsured motorist carrier breached its own policy by refusing to honor the claim. However the stipulated facts in this case posit no basis upon which to refuse to enforce the exclusion. The judgment is therefore

REVERSED.

ORFINGER, J., concurs specially with opinion.

BAKER, JOSEPH P., Associate Judge, dissents with opinion.

ORFINGER, Judge,

concurring:

I concur with the opinion written by Judge Sharp. We are bound by the determination that the UMI carrier has enforceable subrogation rights under its policy, and there are numerous decisions in Florida upholding the validity of the “consent to settlement” provision under the uninsured motorist coverage provision of the insurance policy. Some of the cases reported in 25 A.L.R.3d 1275 which refuse to enforce this provision do not recognize its validity even where there is only one tort-feasor involved. Since Florida cases recognize the validity of the “consent to settlement” provision where there is only one tort feasor (either uninsured or underinsured), it does not seem logical to apply a different rule where, as here, there is an insured tort-fea-sor and an uninsured tort feasor, and the unconsented to settlement is made with the one who is insured. The same policy provision comes into play and the same rights are involved. If we recognize the one, we must recognize the other.

BAKER, JOSEPH P.,

Associate Judge, dissenting.

Purchase of uninsured motorist coverage is an exercise of the reflexive golden rule: Do unto thyself as thou would have others do unto thee. When someone purchases uninsured motorist coverage as a part of his own insurance policy, it is intended to provide for himself public liability insurance to pay his own damages as against a tort-fea-sor who has neglected to buy such a policy.

GEICO’s uninsured motorist coverage for Sutton is, then, intended to put GEICO in the position of providing public liability coverage of Roberts, as one of the alleged tort-feasors, for the benefit of Sutton. If GEICO had insured Roberts, it could not limit its public liability exposure by an exclusion of the sort asserted by GEICO against Sutton. GEICO was required by § 627.727, Fla.Stat. (1971) to provide Sutton with insurance coverage for damages caused Sutton by an uninsured motorist. GEICO’s policy purported to provide such coverage, but the exclusion quoted in the majority opinion has the effect of taking away coverage for part of Sutton’s damages.

If GEICO had insured Roberts, it would have no contribution claim against Amick or Aetna. (The Uniform Contribution Among Tort-Feasors Act, § 768.31, Fla.Stat. (1975) was passed after this accident.) GEICO has a setoff claim that it may assert to prevent its insured (Sutton) from recovering any amount in excess of total damages, whatever they are determined to be. International Sales-Rentals Leasing Co. v. Nearhoff, 263 So.2d 569 (Fla.1972). On the stipulated facts the damages recoverable be Mrs. Sutton exceed the settlement amount reached with Amick and Aetna.

For these reasons the order of the trial court denying GEICO’s suit for declaratory decree and injunction should be affirmed.

      . We note parenthetically that this suit began with GEICO seeking a declaratory judgment that it had no duty to arbitrate with Sutton, and asking the court to enjoin the arbitration proceeding. Sutton sought no affirmative relief. The judgment appealed from declared that Sutton had the right to arbitrate with GE1-CO. Technically it is not proper to refuse to enter a declaratory judgment for one party, and at the same time enter a declaratory judgment for the other party who has not sought such relief. American Home Assurance Co. v. Curtis, 367 So.2d 641 (Fla. 3d DCA 1979).

      . Trust Agreement: In the event of payment to any person under this Part: (a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally, responsible for the bodily injury because of which such payment is made; (b) such person shall hold in trust for the benefit of the company all rights to recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this Part: (c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights; . . .

      . Gulf American Fire & Cas. Co. v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967); Michigan Mut. Liab. Co. v. Karsten, 13 Mich.App. 46, 163 N.W.2d 670 (1968); Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456 (Miss.1971); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Clem, 49 Ala.App. 457, 273 So.2d 218 (1973); Rhault v. Tsagarakos, 361 F.Supp. 202 (D.Vt.1973); Government Employees Ins. Co. v. Shara, 137 N.J.Super. 142, 348 A.2d 212 (1975); Hawaiian Ins. Co. & Guaranty Co. v. Mead, 14 Wash.App. 43, 538 P.2d 865 (1975); Hebert v. Green, 311 So.2d 223 (La. 1975); Lebs v. State Farm Mut. Auto. Ins. Co., 568 S.W.2d 592 (Mo.App.1978).

      . Portillo v. Farmers Ins. Exch., 238 Cal.App.2d 58, 47 Cal.Rptr. 450 (1965); Kisling v. M. F. A. Mut. Ins. Co., 399 S.W.2d 245 (Mo.App.1966); Charest v. Union Mut. Ins. Co., 113 N.H. 683, 313 A.2d 407 (1973); Tuthill v. State Farm Ins. Co., 19 Ill.App.3d 491, 311 N.E.2d 770 (1974); Aetna Cas. & Sur. Co. v. Poirier, 371 Mass. 257, 356 N.E.2d 452 (1976); State Farm Mut. Auto. Ins. Co. v. Ford, 537 S.W.2d 138 (Tex.Civ.App. 14th Dist. 1976), rev’d 550 S.W.2d 663 (Tex.1977) [on ground that insurer waived its right to consent before its insured could settle with another insurance carrier].

      . See § 627.727(6), Fla.Stat. (1979).

      . International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972).

      . Jones v. Travelers Indem. Co. of R. I., 368 So.2d 1289 (Fla.1979).

      . See Travelers Ins. Co. v. Gray, 360 So.2d 16 (Fla. 3d DCA 1978); Tuthill v. State Farm Ins. Co., 19 Ill.App.3d 491, 311 N.E.2d 770 (1974).

      . See Johnson v. Home Indem. Co., 377 So.2d 40 (Fla. 1st DCA 1979); McInnis v. State Farm Mut. Auto. Ins. Co., 208 So.2d 481 (Fla. 4th DCA 1968); Kaplan v. Phoenix of Hartford Ins. Co., 215 So.2d 893 (Fla. 3d DCA 1968).

      . Aristonico Infante v. Preferred Risk Mut. Ins. Co., 364 So.2d 874 (Fla. 3d DCA 1978).

      . International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972).

      . E. g. Travelers Insurance Co. v. Gray, 360 So.2d 16 (Fla. 3d DCA 1978).

      . See, e. g., Gulf American Fire and Casualty Co. v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967).


source: Caselaw Access Project

author: ORPINGER, Judge. DAUKSCH, Chief Judge,

license: Public Domain

text:
    Howard Takashi OISHI, Appellant, v. STATE of Florida, Appellee.
    No. 79-1092/T4-559.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    Rehearing Denied June 18, 1981.
    Richard A. Lazzara, Bennie Lazzara, Jr., a,nd Anthony F. Gonzalez, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORPINGER, Judge.

Appellant entered a plea of nolo conten-dere to possession of cocaine, section 893.-13(1)(3), Florida Statutes (1977), specifically reserving his right to appeal the denial of his motion to suppress. We affirm.

During a routine airport boarding gate security search, the security guard thought she detected a letter opener in appellant’s briefcase when the briefcase passed through the x-ray machine. When a second run through the machine did not satisfy her, and after appellant denied having a letter opener, she asked appellant if she could look inside the briefcase and received an affirmative reply. Upon opening the case, she found a large manila envelope, and opening it revealed another manila envelope with the top folded down. Although appellant requested the guard not to open the second envelope, she did so because she was not satisfied that a weapon was not present, and when she opened the second envelope, she discovered in it a clear plastic envelope with a white powder inside, whereupon she summoned a law enforcement officer who placed appellant under arrest. No letter opener or other weapon was found in the briefcase.

Appellant contends that the warrantless search was an unreasonable and unwarranted intrusion into his right to privacy, that there was no probable cause to search and that the search violated his right to be free from unreasonable searches and seizures as guaranteed to him by the Fourth Amendment to the United States Constitution and by Article I, Section 12, of the Declaration of Rights of the Florida Constitution.

The issues raised by appellant have been answered contrary to his position by several federal courts, but of controlling precedent here is the recent case of Shapiro v. State, 390 So.2d 344 (Fla.1980). There, a security guard discovered cocaine in Shapiro’s suitcase while conducting a security check at the boarding area of the airport. In disposing of Shapiro’s contention of a fourth amendment violation, the court said:

For several reasons, we hold that probable cause was not a prerequisite to this search in the security area of the airport, conducted for the limited purpose of discovering weapons, explosives, or other devices which could have been utilized to hijack an airplane.
In order for Shapiro to claim that his fourth amendment rights were violated, he must first establish that he had a reasonable expectation of privacy to be free from this particular intrusion by the detective. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A reasonable expectation of privacy under a given set of circumstances depends not only upon one’s actual subjective expectation of privacy but also upon whether society is prepared to recognize this expectation as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Here, the defendant clearly failed to demonstrate that he had a reasonable expectation of privacy to be free from the particular intrusion involved in this case — a search for what the detective thought was a bomb.
* # * * * *
Additionally, we conclude that even if Shapiro had some subjective expectation of privacy, society is not prepared to recognize such expectation as reasonable. At this point in time when airplane hijacking is at a crisis level, such an expectation, to be free from the limited intrusion brought about by the screening process utilized in the boarding area of airports, is not justifiable under the circumstances. One who enters the boarding area of the airport knows or should know that he is subject to being searched for weapons or other devices which could be used for hijacking. Notices posted in front of boarding areas inform prospective air passengers that all are subject to anti-hijacking searches. These searches are not directed against individuals but rather are a part of a general screening process to avoid the carrying of weapons or explosive devices onto an aircraft.
Since Shapiro did not demonstrate that he had a reasonable expectation of privacy, the fourth amendment is not implicated, and probable cause was not requisite to justify the search....

Shapiro, at 347, 348.

Sub judice, there is no allegation nor proof that the search conducted by the security guard was a pretextual search or anything other than what it purported to be; a search for weapons as a part of a routine procedure involving every passenger who boards a commercial airline. Consequently, the Fourth Amendment is not implicated here and probable cause was not requisite to justify the search.

The question remains as to how far the search at the airport security gate can go once we determine that no reasonable expectation of privacy exists and that a limited search may be made. The Fifth Circuit has held that the search may continue until the security officer is satisfied that no harm would come from the passenger’s boarding the plane. U. S. v. Cyzewski, 484 F.2d 509, 513 (5th Cir. 1973). Only when it becomes unreasonable for the suspect’s innocence to be further questioned does the security search itself become unreasonable. Id., at 514. The Florida Supreme Court seems to have approved such an extensive search:

Although the initiating purpose of the search is limited to the detection of a would-be hijacker, the search may be extensive because the airplane hijacker’s weaponry could be any of a number of easily concealed things including plastic explosives or gasoline.

Shapiro, at 350.

In Shapiro, the Supreme Court recognizes and quotes extensively from U. S. v. Skip-with, 482 F.2d 1272 (5th Cir. 1973) and of particular note is this passage:

[I]t is important to note that the imposition which must be considered is the intrusion on a citizen’s right to be free of unreasonable searches, not upon any right to be free of criminal prosecution. Certainly the imposition of a criminal penalty for possession of drugs found during an airport search will burden the one on whom it is imposed; constitutionally speaking, however, he has suffered only the same intrusion as other passengers who were searched. Although the discovery of cocaine in a search for weapons may be unexpected by the government, there is nothing in the Constitution that gives the apprehended felon a right to complain because the product of the protective action was not anticipated. Such a result cannot properly be classified as a windfall. It is the product of valid police work. The government has no duty to catch a carrier of dope sportingly or according to any game book rule. Nor is it material whether the circumstances leading to the discovery of the cocaine were of the defendant’s making; all that matters is that the search be legally conducted. 482 F.2d at 1277 — 78 (emphasis added).

390 So.2d at 350.

In U. S. v. Moreno, 475 F.2d 44 (5th Cir. 1973), the court recognized that “modern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube.... It is in this context that we must assess the constitutionality of the search.” 475 F.2d at 49. A policy of completely searching baggage is a reasonable administrative procedure, which acts not only to “single out individuals,” but also “to thwart potential hijackers by deterrence.” U. S. v. Cyzewski, 484 F.2d at 514. Passengers seeking entry should know that the exigencies of plane hijackings may subject them to such searches; there is no reasonable expectation that any baggage is immune. Shapiro v. State, supra.

The ability of a passenger to call off the search once something is found has been rejected in Cyzewski. Allowing the passenger to leave, said the court,

greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts.

484 F.2d at 513, N.2.

All the evidence here reflects that the security guard was merely completing a routine anti-hijacking search. Having had a valid reason to search the luggage for a weapon, there is no constitutional impediment to a search of all the contents until all contents are reasonably identified as non-dangerous or the guard is otherwise satisfied that the baggage is safe. Boarding-gate searches are limited to a narrow class of self-defined individuals, who voluntarily present themselves to be searched. Further, courts must take into account the likelihood that the search procedure will be efficacious in averting the potential disaster of a hijacking, Shapiro, at 349; thus the deterrent effect of a routine complete-search procedure cannot be discounted. The procedure being constitutional, evidence of another crime discovered in the search is admissible. Shapiro, at 351.

The judgment appealed from is

AFFIRMED.

EVANS, VERNON W., Jr., Associate Judge, concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

The decision of the majority is in conflict with the intent and holding of Shapiro v. State, 390 So.2d 344 (Fla.1980), which it cites as authority. It is in conflict because in Shapiro there were clearly suspicious actions on the part of the appellant which required the police to conduct the questioned search. In Shapiro, it was held “that probable cause was not a prerequisite to this search in the security area of the airport, conducted for the limited purpose of discovering weapons, explosives, or other devices which could have been utilized to hijack an airplane.”

Here, there was no reason at all for the search of the envelope except the unjustifiable curiosity of the security guard. As the majority points out, the only reason the guard felt a need to search further is because she felt the appellant might be attempting to board the aircraft with a dangerous letter opener. In the course of the search when she finally reached the “suspect” envelope, she could have satisfied any reasonable suspicion that the envelope contained the letter opener by simply bending it. Any suggestion that the guard was justified in believing the envelope or its contents posed a potential threat does not stand up under the light of reason and in fact is not supported by any testimony that the guard or anyone felt there was a threat.

In the majority opinion it is correctly said that “the question remains as to how far the search at the airport security gate can go once we determine that no expectation of privacy exists and that a limited search may be made.” (emphasis added). The opinion then cites United States v. Cyzewski, 484 F.2d 509, 513 (5th Cir. 1973), and says that “the search may continue until the security officer is satisfied that no harm would come from the passenger’s boarding the plane.” I quite agree with that and I must then wonder why the opinion says this and then upholds this search. Obviously, the suspected threat, the potential letter opener, was not in the envelope and this could have been confirmed as easily and less obtrusively by merely slightly bending the envelope or even, I suspect, by picking it up and feeling the weight of it since, as the majority opinion points out, it was the folded top of the envelope which led the guard astray.

The use of the United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), citation as authority is not at all persuasive. It is not really on point and is of no precedential value anyway because the aggregation of separate judicial opinions in a case does not produce a precedent. Witt v. State, 387 So.2d 922 (Fla.1980); Greene v. Massey, 384 So.2d 24 (Fla.1980). Although two of the three judges agreed in the result reached in Skipwith, they did not agree upon the reasoning therefor. We should not give any support to the suggestion in Skipwith that a “mere or unsupported suspicion standard” is a proper standard when considering fourth amendment rights. Reasonableness, as said in Shapiro, is the everlasting proper standard and Skipwith was a one-shot case, not clearly reasoned and certainly not the law within the United States Fifth Circuit or the law in the rest of the United States. See United States v. Albarado, 495 F.2d 799 (2d Cir. 1974); United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973); United States v. Legato, 480 F.2d 408 (5th Cir. 1973); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. den., 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).

The majority opinion says “. . . there is no allegation nor proof that the search ... was .. . anything other than ... a search for weapons .... ” This is just not so. The entire case is just that — an allegation the guard was intruding improperly with no suspicion, let alone a reason to suspect, that a weapon could be in the envelope when it was finally about to be opened. The evidence is one-sidedly clear that the guard did not suspect, or have reason to suspect, she was continuing a weapons search when she came down to the smallest manila envelope with the folded top. Her prior authority to satisfy herself that no weapon was present ended there and what followed was an illegal search and seizure.

      . An employee of a private security service hired by the airline, and not a law enforcement officer.

      . It was the folded top of the inner envelope that apparently gave the appearance of a letter opener on the x-ray machine.

      . See Leavitt v. State, 369 So.2d 993 (Fla. 1st DCA 1979), where the court upheld a search, at the boarding gate, of a toilet kit found in a carry-on bag, even though the passenger protested and demanded that the kit be returned to him and not searched.

      . In these cases a security guard has as much of a duty to refrain from unlawful searches as does a law enforcement officer. She has essentially the same authority and must exercise essentially the same restraint from improper intrusion. United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Gorman, 484 F.Supp. 529 (S.D.Fla.1980).


author: FERGUSON, Judge.

text:
    George BENNETT d/b/a London Luggage Company, Appellant, v. I. B. BERK, individually, Kane Insurance Agency, Inc., and the United States Fidelity and Guaranty Company, Appellees.
    Nos. 80-939, 80-2123 and 80-2535.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied July 23, 1981.

      Adams & Ward and R. Wade Adams, Miami, for appellant.
    Lanza, Sevier & Womack, Coral Gables, and Mel Lamelas, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appel-lees.
    Before BASKIN and FERGUSON, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   FERGUSON, Judge.

Plaintiff appeals from summary judgments entered for the defendants on a claim for fire loss after cancellation of a fire insurance policy. The appeals from these summary judgments have been consolidated by this court. The complaint alleges that brokers Kane Insurance Agency, Inc. and Berk failed to notify plaintiff of the cancellation, that Kane and Beck were negligent in not procuring other insurance, and that the insurer, United States Fidelity and Guaranty Company, was without authority to cancel.

The pleadings and depositions show that genuine issues of fact and law exist as to the claim against brokers, Kane and Beck, thus summary judgment was improperly granted. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Perez, II v. City of Miami, 358 So.2d 1132 (Fla.3d DCA 1978). An insurance broker may be liable for damages where there is an agreement to procure insurance and a negligent failure to do so. Marlor v. Foley Carter Ins. Co., 388 So.2d 22 (Fla.2d DCA 1980); Cat ’n Fiddle, Inc. v. Century Insurance Company, 200 So.2d 208 (Fla.3d DCA 1967), vacated in part on other grounds, 213 So.2d 701 (Fla.1968).

It is uncontested that the insurer communicated to brokers Kane and Beck that the fire coverage was being deleted and that this communication was understood by the brokers. Assuming, as contended, that the broker failed to explain to Bennett the significance of the policy endorsement which deleted fire coverage, the insurer cannot be held liable. An insurance broker is an agent of the insured rather than of the insurer. Auto-Owners Insurance Co. v. Yates, 368 So.2d 634 (Fla.2d DCA 1979).

The authority for cancellation of the fire coverage was written approval by plaintiff. This approval was given by plaintiff after he had held the endorsement for approximately one month. No party to a written contract can defend against its enforcement on the sole ground that he signed it without reading it. Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977); All Florida Surety Company v. Coker, 88 So.2d 508 (Fla.1956); Alejano v. Hartford Accident and Indemnity Co., 378 So.2d 104 (Fla.3d DCA 1979).

The order of summary judgment is affirmed as to the insurer United States Fidelity and Guaranty Company; it is reversed as to brokers Kane Insurance Company and Beck, and the cause is remanded for further proceedings.


author: ORFINGER, Judge. DAUKSCH, Chief Judge,

text:
    Garry Edmund PYSZKA, Appellant, v. STATE of Florida, Appellee.
    No. 79-1056/T4-547.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied July 2, 1981.
    James W. Sears of Lubet, Sears & Woodard, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORFINGER, Judge.

The judgment of conviction for possession of contraband drugs is affirmed on the authority of Oishi v. State, 400 So.2d 480 (Fla. 5th DCA 1981). Here, the appellant’s carry-on bag was opaque and could not be visualized through the x-ray machine at the airport boarding gate, so the security guard opened it to check its contents. The discovery of the drugs was not the product of an illegal search and thus the trial court was correct in denying the motion to suppress.

AFFIRMED.

EVANS, VERNON W., Jr., Associate Judge, concurs.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

I concur in the conclusion reached in this case because I do not believe an unlawful search and seizure was conducted here. The guard had a lawful right and duty to inspect the opaque bags which very well might have contained hi-jacking instruments. Because of the opaqueness the guards could not know what was there and had to open to see. In Oishi, the guard was not searching for what she was lawfully permitted to search but was opening a little envelope she had earlier thought might have contained a lethal letter opener. As was pointed out in my dissent, the envelope could not have contained the letter opener, she had no suspicion it did contain a letter opener when she searched, and an unlawful search and seizure slipped by this court.


author: COWART, Judge.

text:
    Frankie Lee DRAKES, Appellant, v. STATE of Florida, Appellee.
    No. 79-1705/T4-697.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied July 6, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Gregory C. Smith and Barbara Ann Butler, Asst. Attys. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant burglarized both the Haynes house and the Turner house, in each case stealing property which included a gun or guns. As to each of the two burglaries, appellant was charged with two grand thefts under section 812.014(2)(b), Florida Statutes (1979): one theft under section 812.014(2)(b)l (in which count the property stolen was alleged to be valued at $100 or more), and the second theft under section 812.014(2)(b)3 (in which count the property stolen was alleged to be a firearm). We agree that the theft of a firearm and other property at the same time and place as one continuous act or transaction is a single theft offense. Hearn v. State, 55 So.2d 559, 28 A.L.R.2d 1179 (Fla.1951); Hill v. State, 293 So.2d 79 (Fla.3d DCA 1974); Avilia v. State, 278 So.2d 298 (Fla.4th DCA 1973); Russell v. State, 107 So.2d 801 (Fla.2d DCA 1958). However, appellant failed to timely present his double jeopardy defense by motion to dismiss the information, as required by Florida Rule of Criminal Procedure 3.190(b), and it was waived. Chapman v. State, 389 So.2d 1065 (Fla.5th DCA 1980).

The value of the property taken must be established as an essential element of the crime of grand larceny. Negron v. State, 306 So.2d 104 (Fla.1974); Tribble v. State, 277 So.2d 559 (Fla.3d DCA 1973); Smart v. State, 274 So.2d 577 (Fla.2d DCA 1973). The state attorney, attempting to prove value, elicited only testimony that all of the property stolen from the Turner house, including the gun, was worth between $1,500 and $1,700 and did not establish the value of the property separate from the gun. Neither did the state establish the value of the gun, which would have permitted its value to have been subtracted from the total value to establish the value of the property taken excluding the gun. Since the state chose to prosecute the appellant under a separate count for theft of the firearm, the value of the firearm must be excluded from the value of the remaining property. Therefore, the evidence of the value of the property stolen from the Turner house is insufficient to support the conviction of grand larceny. Suarez v. State, 136 So.2d 367 (Fla.2d DCA 1962). Accordingly, appellant’s conviction of grand larceny under count III of amended information 78-198, being count VIII of the original information is hereby reduced to petit theft, a misdemeanor of the second degree (§ 812.-014(2)(c), Fla.Stat. (1979)) and the sentence on that count is vacated and the cause remanded for resentencing.

We find the evidence sufficient to support the jury’s finding that appellant participated in the armed robbery of Mrs. Campbell;

REVERSED in part; AFFIRMED in part.

DAUKSCH, C.J., and ORFINGER, J., concur.


text:
    STATE of Florida, DEPARTMENT OF NATURAL RESOURCES, Appellant, v. CONTEMPORARY LAND SALES, INC., Appellee.
    No. 80-375.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    Rehearing Denied July 8, 1981.

      Jack W. Pierce, and S. Sherman Weiss, Tallahassee, for appellant.
    John F. Bennett, of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.
   COWART, Judge.

This case involves the application of the Marketable Record Title Act (§ 712.01 et seq., Fla.Stat. (1963)) to the title to land exposed by the lowering of the water level of a freshwater lake by a state water control agency.

The original U. S. Government survey, made in 1848, shows Section 18, Township 23 South, Range 26 East, as a fractional section with a couple of hundred acres of land on the west edge bordered on the east by the meandered shore of the navigable, non-tidal, fresh waters of what is now known as Lake Louisa in Lake County, Florida. Descriptions in the deeds in the chain of title refer to the fractional aspect of the section until a conveyance recorded December 23, 1938, described the land conveyed as the northwest quarter of the southwest quarter of the section. That description was used until a conveyance on August 29, 1966, described the property conveyed by metes and bounds as:

Begin at the SW corner of NW!4 of SW!4, Sec. 18, Tp. 23 S, R 26 E, and run thence north 36° 24' east 600 ft., thence east 964 ft., more or less, to the east line of said NWVi of SWVi, thence south 482.9 feet, more or less, to the southeast corner of said NWVi of SWVi, thence west 1320 feet, more or less, to point of beginning.

By various mesne conveyances this property, so described was conveyed to Contemporary Land Sales.

Lake Louisa is part of the Clermont chain of lakes whose water table was artificially lowered by a spillway constructed about August 8, 1956, by the Oklawaha Basin Recreation and Water Conservation Control Authority, an agency of the State of Florida.

At this time the description in the deed to Contemporary covers (a) some land which was original upland, (b) some land which was originally beneath the waters of Lake Louisa but has now been exposed by the lowering of the water level (i. e., land below the original high water mark and above the present lake level or “reclaimed lake bottom”), and (c) some land that is still beneath the present waters of Lake Louisa. Contemporary and its predecessors in title have paid ad valorem property taxes on the entire parcel described above for at least the last ten years.

Contemporary brought a quiet title action alleging the Marketable Record Title Act (§ 712.01 et seq., Fla.Stat. (1977)) extinguished all claims of the State to the property described above. The trial court entered summary judgment quieting Contemporary’s title to those portions of the property in question lying west of a contour line running at an elevation of 96.4 feet NGVD along the present shore of Lake Louisa. The defendant State of Florida, Department of Natural Resources, appeals.

The State does not challenge the judgment quieting Contemporary’s title to the original uplands and Contemporary did not appeal the trial court’s judgment in effect denying Contemporary’s action to quiet title to the portions of lands described above which are still underwater. Therefore, in this case we are concerned only with the title to land formerly, but not now, covered by the waters of Lake Louisa.

The original thirteen colonies became sovereign entities and owned the beds of their navigable waters. They did not give up that ownership when they formed the United States of America. Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877); Pollard’s Lessee v. Hagan, 44 U.S. 212, 11 L.Ed. 565, 3 How. 212 (1845); After the United States acquired West and East Florida from Spain in July, 1821, the lands under the navigable waters thereof, including the shores, were held by the United States for the benefit of the whole people, to go to the future state for the use of the whole people thereof. Ex parte Powell, 70 Fla. 363, 70 So. 392 (1915). States subsequently admitted to the Union have an equal status and when Florida was admitted as a state on March 3,1845 (5 Stat. 742), by virtue of its sovereignty, it became the owner of all the land under navigable bodies of water within the state. These lands are called sovereignty lands. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428 (1911); Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909). See also Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). Under common law doctrine the State of Florida in its sovereign capacity holds title to the beds of navigable waters, including the shore or the space between high and low water marks, in trust for the people of the state who have rights of navigation, commerce, fishing, boating and other public uses. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Broward v. Mabry. Subject to these public rights the Legislature of the State of Florida has control over such sovereign trust lands but, it is said, may sell parts of such lands to private ownership when the public and private rights are not impaired. State ex rel Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908). Therefore the lands originally under the waters of Lake Louisa were sovereign lands.

The title to the uplands in question passed to the State of Florida as swamp and overflowed lands under the Act of September 28,1850 (9 Stat. 519) and was conveyed into private ownership by the Trustees of the Internal Improvement Fund in 1883. Swamp and overflowed lands within the meaning of the act did not include any lands below navigable waters. Conveyances of uplands, including swamp and overflowed lands, for ordinary private ownership purposes do not extend below the ordinary high-water mark of adjoining navigable waters and do not include sovereignty lands. While ordinarily a meander line is not necessarily a boundary line when conveyances do not expressly make the meander line one of the calls of the boundary, (Lord v. Curry, 71 Fla. 68, 71 So. 21 (1916)), the meander line shown on the original government survey is evidence of the ordinary high-water mark of the body of navigable water and of the boundary between the sovereignty lands below the high-water mark and uplands or lands under private ownership which are above the high-water mark. However, owners of uplands bordering navigable water usually have riparian rights, including the right to an increase of their lands by accretion and reliction. Accretion is the extension of land area due to a gradual, natural and imperceptible build up of additional land by the accumulation of alluvium material. Reliction is a similar increase of land area due to the lowering of the water level by natural causes. Under the doctrine of accretion and reliction, the added land belongs to the riparian owner, even as against the sovereign rights of the State. Mexico Beach Corporation v. St. Joe Paper Company, 97 So.2d 708 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla.1958). On the other hand, it has been held in Florida that reliction does not apply where the land is reclaimed by the drainage operations of governmental agencies, in which case the State, not the upland owner, continues to own the former lake bottom, or sovereignty lands, that become uncovered and reclaimed between the original high water mark and the new lake water level resulting from the drainage operations. Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927). While the purposes of the governmental action in this case was to control the water level of a chain of lakes and not, as in Martin, for the express objective of reclaiming land, nevertheless we hold that the result is the same and that an artificial lowering of the waters of Lake Louisa occurred and that the sovereign lands formerly beneath the lake waters continued to be sovereignty lands after they were exposed.

The Marketable Record Title Act, section 712.02, Florida Statutes (1963), provides, in effect, that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims except those set forth in section 712.-03, Florida Statutes. When the Marketable Record Title Act was originally adopted in 1963, and at all times relevant to this case, section 712.03 contained no exception in favor of sovereignty lands. On the contrary section 712.04 indicated that all govemmen-tal rights depending on any act or event prior to the date of a root of title were extinguished excepting only rights in favor of the state reserved in deeds by which Florida parted with title. Of course, that exception is not applicable in this case.

Contemporary claims all of its lands were included in the NWVi of the SWVi of Section 18 and therefore its “root of title” (§ 712.01(2), Fla.Stat. (1979)) is from the conveyance recorded December 23, 1938, and that, effective December 23, 1968, the Marketable Record Title Act perfected its title to the property in question and barred the State’s claims to that portion of the property in question lakeward of the original government meander line.

The question is therefore squarely presented: Can the Marketable Record Title Act as it existed prior to the 1978 amendment perfect title in a private owner to lands that would otherwise be owned by the State of Florida in its sovereign capacity and held in trust for all the people?

We read the Supreme Court’s denial of certiorari in Modrall v. Sawyer, 297 So.2d 562 (Fla.1974), and its decision in Odom v. Deltona Corp., 341 So.2d 977 (Fla.1976), to answer the above question in the affirmative. Certainly, Justice Ervin, dissenting in Modrall, and Justices Sundberg, Overton and England, dissenting in Odom, understand those cases to have that meaning. Therefore, we feel compelled to answer the same question in the same way in this case.

The State does not really challenge the above point of law but argues in effect that the property description in Contemporary’s chain of title is legally insufficient because section 18 was originally surveyed as a fractional section bounded on the east by Lake Louisa and the survey shows no internal half, quarter or quarter-quarter survey lines. The State argues that since the original government survey does not show a full section a description referring to a quarter-quarter section is legally insufficient and describes no land. In support of this proposition the following language is quoted from Mexico Beach Corporation v. St. Joe Paper Company, 97 So.2d at 709-10.

Appellant’s contention that the State conveyed to its immediate successor in title a square section containing 640 acres is untenable. Sections and boundaries are created by Government survey and not merely designated thereby. Having been surveyed and created as a fractional section, the boundaries of Section 15 cannot be arbitrarily projected so as to make it a complete section containing the customary 640 acres.

The court in Mexico Beach held that a description in a conveyance referring to a section which was originally surveyed as a fractional section described only the original surveyed lands; but it also held that alluvial lands formed by accretion along the waters bounding the fractional section became a part of that section and passed along with it under a conveyance referring only to the fractional section. The result was that a conveyance of the fractional section also conveyed the accretion and was not limited to lands landward of the original government surveyed meander line and the fractional section continued to front on the waters of the Gulf of Mexico and the owner of the fractional section continued to be a riparian owner. In the case of St. Paul & Pacific R. Co. v. Schurmeir, 74 U.S. 272, 19 L.Ed. 74, 78 (1868), the United States Supreme Court stated:

Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser.

See also South Florida Farms Co. v. Goodno, 84 Fla. 532, 94 So. 672 (1922). Appellant is confused by the language in Mexico Beach and seems to argue either that no lands exist unless shown as land on the original government survey or that land descriptions are legally insufficient if they are composed by projecting “imaginary survey lines” to locate “nonexistent points” and “corners where no survey had ever been.” These arguments while well worded, are patently specious: land was created by God before He created government surveyors and land exists whether or not shown on a government survey and whether or not covered by water at a particular time. The correct rule is that a deed is not void for uncertainty if the description is such as will enable a surveyor to ascertain and locate the land or if it is possible to ascertain and identify the land intended to be conveyed. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314, 317 (1943). Any competent surveyor can easily comprehend the land intended to be conveyed by the description referring to the northwest quarter of the southwest quarter of the section 18 involved in this case or that part of it described in the particular deed to Contemporary. This is done by the projection of section lines from the nearest full sections to the north, east, south and west of the fractional section and by interpolation of the boundaries thereof to ascertain the theoretical length of the boundaries that would have resulted had the section been surveyed in full and then by usual subdivision of that section into halves, quarter and quarter-quarters. As is common in surveying, even the description above merely assumes that the distance between the southwest and the southeast corner is the theoretical perfect 1320 feet. This results in a most elementary surveying problem. Therefore the property description in the chain of title to Contemporary is legally sufficient and poses no problem in this case.

In view of our conclusion that the Marketable Record Title Act sustains the trial court’s judgment in this case, we do not reach appellee’s argument that because of the collection of taxes by the county, a political subdivision of the State, the State is equitably estopped to assert title against appellee. See Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775 (Fla.1956); Trustees of Internal Improvement Fund v. Bass, 67 So.2d 433 (Fla.1953); Daniell v. Sherrill, 48 So.2d 736 (Fla.1950). Nor do we consider appellee’s argument that because the State, acting through the water control authority, artificially lowered the waters of Lake Louisa it is estopped to now claim that the present highwater mark of Lake Louisa is not the boundary between Contemporary’s privately owned uplands and public owned sovereign lands under navigable water and is further estopped to claim title to the former lake bottom thereby separating Contemporary’s uplands from the water and depriving Contemporary of its rights as riparian landowner. See State v. Florida National Properties, Inc., 338 So.2d 13 (Fla.1976).

The summary judgment is

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . NGVD means National Geodetic Vertical Datum of 1929.

      . See Vol. Ill, Fla.Stat. 1941, Whitfield’s Notes, at 230.

      . State ex rel Ellis v. Gerbing, 56 Fla. 603, 615, 47 So. 353, 357 (1908).

      . Effective June 15, 1978, Ch. 78-288, § 1, Laws of Florida, amended section 712.03, Florida Statutes (1977), adding an exception numbered 7 which provides that the Marketable Record Title Act does not extinguish “state title to lands beneath navigable waters acquired by virtue of sovereignty.” It will be readily noted that this exception is patently ambiguous as relating to a case, such as this, involving lands no longer beneath navigable waters. If by this statute the Legislature intended to correct an oversight, not only did the horse in this case escape in the hiatus but the bam door is still ajar.

      . It should be noted that such sovereignty trust lands have been alienated and have been, and still are, recognized to be alienable. State ex rel Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908). At the general election on November 3, 1970, the people of the State of Florida amended the Constitution of the State of Florida to add an Article X, Section 11, entitled “Sovereignty Lands” which provides as follows:
      The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.
      The Legislature in 1970 (ch. 70-97, Laws of Florida) amended subsection 1 of section 253.-12, Florida Statutes (1969), to vest title to “all submerged lands owned by the state by right of its sovereignty in navigable fresh water lakes, rivers and streams” in the Board of Trustees of the Internal Improvement Trust Fund and provided that “submerged lands owned by the state by right of its sovereignty in navigable meandered fresh water lakes shall be administered in accordance with the provisions of section 253.151. Section 253.151(3)(a) defines the boundary of navigable meandered fresh water lakes as being the actual waters edge as of the date the body of water came under the jurisdiction of the state and section 253.151(5) gives the riparian or upland owner an usufructuary right over lands lakeward of the boundary line down to the existing water line.


author: DAUKSCH, Chief Judge.

text:
    Marion Wade PENDARVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1106.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, and Julianne Piggotee, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a sentence which was not in accordance with section 39.-111(6), Florida Statutes (1979), which requires certain benefits be afforded juveniles appearing in adult criminal court. Ordinarily, the failure to comply with this section would cause us to reverse the sentence and remand the matter for resentencing. But here it is clear from the record the sentence was the result of a plea bargaining process agreed to by the parties and the judge and clearly not an otherwise illegal sentence. Of course, appellant did not object below. We would be hard put to try to explain to the trial judge where he erred when he did everything everyone, except appellate counsel, agreed to. Compare Austin v. State, 400 So.2d 495 (Fla. 5th DCA 1981), issued this date.

AFFIRMED.

ORFINGER and COWART, JJ., concur.


text:
    Michael Richard AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-988.
    District Court of Appeal of Florida, Fifth District.
    May 20, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, App. Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Although appellant, a juvenile was tried in the criminal division of the circuit court upon a direct information pursuant to section 39.04(2)(e)4., Florida Statutes (1979), and was not “transferred” from the juvenile division pursuant to section 39.02(5)(a), Florida Statutes (1979), he was entitled to the sentencing benefits and procedure of section 39.111(6), Florida Statutes (1979), and section 958.05(2), Florida Statutes (1979). State v. Cain, 381 So.2d 1361 (Fla.1980); Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980). Accordingly, this cause is remanded for resentencing in accordance with the cited authorities and appellant’s prior sentence is

REVERSED.

DAUKSCH, C. J., and ORFINGER, J., concur.


text:
    Robert REYNOLDS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-271.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Rehearing Denied July 7, 1981.
    Maher, Overchuck & Langa, Orlando, and Larry Klein, West Palm Beach, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
   COWART, Judge.

This case involves the sufficiency of allegations in a complaint to allege that certain injuries of appellant arose out of the use of his automobile.

Appellant, as insured, sued his insurance company, the appellee, alleging that when he got into his insured automobile an unidentified assailant, lurking in the back seat, struck and injured appellant rendering him unconscious. The complaint further alleges that appellant and his automobile were driven several miles from the place of the assault where appellant was thrown or otherwise ejected from his vehicle causing him further injury. The trial court ruled these allegations were insufficient to allege that appellant suffered bodily injuries arising out of the ownership, maintenance or use of his motor vehicle within the meaning of section 627.736(1), Florida Statutes (1979), relating to the personal injury protection benefits and of section 627.727(1), Florida Statute (1979), relating to uninsured motorist provisions of his automobile insurance policy and dismissed the complaint.

On appeal appellant first contended his vehicle was moving when he was thrown or ejected from it. When appellee pointed out that the complaint does not allege that the vehicle was moving, appellant replied (a) that fact is a proper inference to be drawn, (b) that it made no difference, and (c) that the complaint should not be dismissed with prejudice merely because it left out one word. We cannot agree with appellant. The facts alleged are insufficient without that one word and essential allegations must be alleged not inferred. It is the self-powered and mobile nature of a vehicle that makes it a dangerous instrumentality and is largely the basis for the distinctive law relating to it. The movement of a vehicle makes it capable of being used to inflict injury, Leatherby Insurance Company v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975), and of adding its velocity to an object thrown from it to cause or contribute to injuries, Valdes v. Smalley, 303 So.2d 342 (Fla.3d DCA 1974), cert. dismissed, 341 So.2d 975 (Fla.1976), and of causing wind movement to dislodge a passenger, U.S. F.&G. Co. v. Daley, 384 So.2d 1350 (Fla.4th DCA 1980). In the absence of effects caused by its movement or ability to move, and circumstances arising from the necessity that its use requires normal ingress and egress to and from it, Padron v. Long Island Insurance Company, 356 So.2d 1337 (Fla.3d DCA 1978), a vehicle is inherently no different from any other place or object and its existence or use becomes no more than the situs of injuries caused by accidents or intentional acts bearing no causal relationship to its nature as a vehicle, as in Stonewall Insurance Company v. Wolfe, 372 So.2d 1147 (Fla.4th DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980), General Accident Fire and Life Assurance Corp. Ltd. v. Appleton, 355 So.2d 1261 (Fla.4th DCA), cert. denied, 361 So.2d 830 (Fla.1978), Feltner v. Hartford Accident and Indemnity Company, 336 So.2d 142 (Fla.2d DCA 1976), and Watson v. Watson, 326 So.2d 48 (Fla.2d DCA 1976).

In Stonewall it is noted that the court in Appleton concluded “that it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist.” 372 So.2d at 1148. Accordingly, insurance does not cover every incident or accident that happens in a car.

As a plaintiff is entitled to recover if he presents evidence of any set of facts which proves the elemental allegations of his complaint, it is essential that those allegations of his complaint adequately state in terms of ultimate facts a cause of action in law under every set of evidentiary facts that can reasonably and fairly be argued to meet, fulfill and prove the ultimate facts set forth in the complaint. The allegations of this complaint are consistent with proof that appellant’s assailant physically heaved him from his parked vehicle, or carefully carried him some distance from the vehicle then violently threw him down, causing injuries, in which circumstances the vehicle would be only a point of departure and neither its use or its nature caused or contributed to appellant’s injuries anymore than if he had been “thrown or otherwise ejected” from his home.

We understand that appellant, being unconscious at the time, and his assailant being unknown and unavailable, may be at some disadvantage to know and prove exactly how his injuries did occur, but from the allegations of his last complaint they appear to have resulted from the mean and dangerous nature and action of his assailant and not from that of his own vehicle. The order dismissing the third amended complaint with prejudice for failure to state a cause of action is

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Robin Lee DANIELS, Appellee.
    No. 80-676.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Rehearing Denied July 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James K. Freeland, Orlando, for appellee.
   SHARP, Judge.

The State appeals an order granting Daniels’ motion to suppress a written statement made by him under oath before a deputy sheriff and in response to an investigative subpoena issued by the State Attorney pursuant to section 27.04, Florida Statutes (1979).

Daniels was being prosecuted for perjury based on the statement which was suppressed. He argues the statement should have been suppressed because the deputy failed to give him any Miranda warnings and the deputy was not empowered to require him to answer pursuant to section 27.04 or section 914.04, Florida Statutes (1979), and thereby to grant him “transactional immunity” from prosecution for the subject matter of his responses. We disagree.

The result in this case is dictated by a prior decision of this court involving these matters. In Daniels v. Kirkland, 379 So.2d 197 (Fla. 5th DCA 1980), we ruled that Daniels could not be prosecuted for burglary charges, which was the subject matter of Daniels’ statement. However, we held that the immunity afforded pursuant to section 914.04 did not preclude prosecution for any false statements made by Daniels during the investigation. U. S. v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); Gordon v. State, 104 So.2d 524 (Fla.1958); State v. Saunders, 378 So.2d 1305 (Fla. 4th DCA 1980).

Because Daniels had immunity to respond truthfully to the State’s investigative subpoena, no Miranda warnings were required. The order granting the motion to suppress is reversed and the case is remanded for further proceedings.

REVERSED and REMANDED.

DAUKSCH, C.' J., and COWART, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 443, 86 S.Ct. 1602, 1611, 16 L.Ed.2d 694 (1966).


author: DANIEL S. PEARSON, Judge.

text:
    JEMCO, INC., a foreign corporation, and United States Fire Insurance Company, a foreign insurance company, Appellants, v. UNITED PARCEL SERVICE, INC., a foreign corporation, and Liberty Mutual Insurance Company, Appellees.
    No. 79-944.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 24, 1981.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellants.
    Magill & Reid and Edward L. Magill, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

United Parcel Service, Inc. (UPS), an Ohio corporation with its principal place of business in Connecticut, contracted with Jemco, Inc., a Texas corporation, for the purpose of having Jemco install a conveyor system in a building UPS was having built in Miami.

Harold McKinney, a Jemco employee, was injured installing the conveyor. McKinney sued UPS, which, in turn, filed a third-party complaint against Jemco for contractual and common law indemnity. UPS settled with McKinney, and the case proceeded to trial on the indemnity claims, resulting in judgment for UPS. Later, the trial court entered orders awarding costs and attorneys’ fees to UPS, and Jemco appealed. We affirm the final judgment, and consequent order taxing costs, upon a holding that UPS was entitled to be indemnified under its contract with Jemco. We reverse, in part, the order awarding attorneys’ fees by reducing the amount awarded.

The indemnity provision of the contract between Jemco and UPS provided, in pertinent part:

“Contractor [Jemco] hereby assumes the entire responsibility and liability for any and all damage or injury of any kind or nature caused by or resulting from the execution of the work occurring in connection therewith and agrees to indemnify and save harmless UPS . .. against any and all claims, liabilities, loss and expenses .... Such indemnity shall include the defense of all claims made against UPS . .. . ”

Jemco contends that this indemnity provision is void and unenforceable under Section 725.06, Florida Statutes (1975). UPS, although not conceding invalidity under Florida law, contends, and we agree, that Connecticut law, under which, UPS argues, the indemnity provision is valid and enforceable, applies.

The contract negotiations between Jemco and UPS took place in New York and Texas. After agreement was reached, a Jemco representative signed the contract in Texas and forwarded it to UPS at its headquarters in Connecticut, where it was executed by UPS. Jemco does not dispute that the last act necessary to complete the contract, the signing by UPS, was done in Connecticut.

The forum court applies its own conflict of law rule respecting the contract to make the initial determination of the law to be applied. Under the law of Florida, the forum, that conflict of law rule is that a contract is made at the place where the last act necessary to complete the contract is done. See Goodman v. Olsen, 305 So.2d 753 (Fla. 1975); Wingold v. Horowitz, 292 So.2d 585 (Fla. 1974); Ray-Hof Agencies, Inc. v. Petersen, 123 So.2d 251 (Fla. 1960); Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); Boat Town U.S.A., Inc. v. Mercury Marine Division of Brunswick Corporation, 364 So.2d 15 (Fla. 4th DCA 1978); Regal Shoe Shops v. Kleinman, 361 So.2d 765 (Fla. 3d DCA 1978); Carriers Insurance Company v. LeRoy, 309 So.2d 35 (Fla. 3d DCA 1975). It is also well settled in Florida that matters bearing on the validity and substantive obligations of contracts are determined by the law of the place where the contract is made (lex loci contractus.) Walling v. Christian & Craft Grocery Company, 41 Fla. 479, 27 So.2d 46 (1899); Eagle Star Insurance Company v. Parker, 365 So.2d 780 (Fla. 4th DCA 1979); State-Wide Insurance Company v. Flaks, 233 So.2d 400 (Fla. 3d DCA 1970). See Boat Town U.S.A., Inc. v. Mercury Marine Division of Brunswick Corporation, supra. Indemnity being a substantive obligation of the contract, UPS’s claim is governed by Connecticut law, the lex loci contractus.

Moreover, the indemnity provision of the contract between UPS and Jemco is valid and enforceable under Connecticut law. In Laudano v. General Motors Corporation, 34 Conn.Sup. 684, 388 A.2d 842 (1977), an indemnity provision functionally identical to the provision in question here was held valid. General Motors (GMC) contracted with Boyle Equipment Company for the purchase and installation of six dock shelters at a GMC plant. While installing the shelters, Laudano, a Boyle employee, was injured. Laudano sued GMC, which filed a third-party complaint against Boyle for indemnification. GMC settled with Laudano and proceeded on its indemnity claim against Boyle. The trial court found for Boyle, holding that the indemnity provision lacked the requisite degree of specificity required to conclude that Boyle intended to indemnify GMC for GMC’s own negligence.

On appeal, the Connecticut Superior Court reversed. Noting that Connecticut had not adopted the apparent majority rule that an indemnity contract must contain an express stipulation relieving the indemnitee from liability for loss resulting from his own negligence, the court held:

“[b]y using the language that appears in the indemnity clause in this contract, Boyle agreed to indemnify and protect GMC against all liabilities, no matter how such liabilities were caused, provided that they grew out of the performance of the contract.” Laudano v. General Motors Corporation, supra at 845.

The jury here, as in Laudano, made a finding that the injury occurred during the performance of the contract. That finding, under Connecticut law, entitled UPS to recover under the indemnity contract unless there exists in Florida some strong public policy which would require us to avoid the application of Connecticut law in this case. We find none. No Florida public policy bars a business entity from contracting to indemnify another for its wrongdoing. Indeed, Florida law specifically authorizes such indemnity agreements, provided only that the intent to indemnify is clearly and unequivocally expressed. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Mental Equipment Co., 374 So.2d 487 (Fla. 1979). We deem it far more important to protect the expectations of the parties who at arm’s length entered into a contract than to refuse to enforce an indemnity provision that fails in Florida, not because it is inherently offensive, but because the magic words which would make the provision valid in this state were not used. See Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d 507 (Fla. 1981); M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Compare Olsen v. State Farm Insurance Co., 386 So.2d 600 (Fla. 5th DCA 1980) (where the court held that the “unjust and inequitable” doctrine of contributory negligence, applicable in the fortuitous locus de-licti, was against Florida public policy).

Lastly, we turn to the award of attorneys’ fees. The trial court awarded UPS attorneys’ fees of $71,562.50. This amount consisted of two awards: (1) $11,750.00 paid by UPS to their attorneys pursuant to two interim bills, which award Jemco does not contest and which we affirm. (2) $60,812.50 which the trial court awarded to UPS for 695 unbilled hours at $87.50 per hour. Jem-co contests the latter award. It claims only that the trial court was not free to award fees of $87.50 per hour, as a “reasonable per hour fee,” because UPS had a prior agreement to pay its attorneys $50.00 per hour. We agree.

Under Florida law, a party entitled to indemnity may recover as damages “. . . reasonable attorneys fees and . .. costs . . . which he is compelled to pay as a result of suits by him or against him in reference to [the indemnity action].” Fontainebleau Hotel Corporation v. Postol, 142 So.2d 299, 300 (Fla. 3d DCA 1962).

In Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728, 731 (Fla. 3d DCA 1980), we held that a party entitled to recover attorneys’ fees as indemnification damages may recover “the amount he must pay his lawyer, or a reasonable fee, whichever is lower.” We limited our holding in Cameron-Brown to the exact situation present in this case, “instances where two contracts exist: one between the parties and one between a party and his counsel.” The holding in Cameron-Brown is no less controlling because there a contract existed for an express amount of attorneys’ fees, and in the present case there was a “previously existing fee arrangement” for UPS to pay its attorneys $50.00 per hour. UPS’s position, which we reject, is that its fee arrangement is not binding in the determination of a reasonable fee. As we said in Cameron-Brown, the question, when there is an existing fee arrangement, is not what is a reasonable fee, but rather is the existing fee arrangement reasonable. The court below held $87.50 per hour to be reasonable; a fortiori, $50.00 per hour is reasonable. We reverse the amount of attorneys’ fees awarded and remand with directions to reduce the challenged attorneys’ fees award to UPS to $34,750.00, for the 695 unbilled hours.

Affirmed in part; reversed in part and remanded.

      . UPS relocated its offices from New York to Connecticut during the negotiations.

      . Reference to Jemco and UPS includes their respective insurers, United States Fire Insurance Company and Liberty Mutual Insurance Company, parties to this appeal.

      . Our holding affirming the entire indemnity award based on contractual indemnity makes it unnecessary to decide the validity of UPS’s common law indemnity claim.

      . Section 725.06, Florida Statutes (1975), provides:
      “Construction contracts; limitation on indemnification. — Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:
      “(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or
      “(2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in his contract and section of the project specifications or bid documents, if any.”

      . In Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980), the Florida Supreme Court rejected lex loci delicti for tort actions and adopted the “significant relationships test” found in the Restatement (Second) of Conflict of Laws §§ 145 — 46 (1971). Jemco urges us to adopt the “significant relationships test” made applicable by Restatement (Second) §§ 186-88, not only to torts, but to contracts. Although the Bishop decision may foretell the end of lex loci contractus in Florida, see Bishop supra, at 1001 n. 1, we are not free to effect such a change in Florida law. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). The Florida conflicts of law rule, originally adopted in Walling v. Christian & Craft Grocery Company, infra, and still extant, is the same as that found in the original Restatement of Conflicts of Laws § 311 (1934), and is that the law to be applied to a contract is the law of the place where the contract was made, not the law of the place with the most significant relationships. See Castorri v. Milbrand, 118 So.2d 563 (Fla. 2d DCA 1960).

      . Jemco correctly says that questions of remedy are determined by the laws of the forum (lex fori), but incorrectly asserts that a determination of whether Jemco is obligated to indemnify UPS under the terms of the contract involves a question of remedy. See Stuart v. Hertz Corporation, 351 So.2d 703 (Fla. 1977) (indemnity is an obligation, either contractual or by operation of law); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973) (the validity of an indemnity agreement is a matter of contract interpretation). Nor does the fact that the contract was to be performed in Florida change the result, since the indemnity provision does not relate to an insubstantial detail of performance. See Restatement (Second) of Conflict of Laws § 206 (1971) (e. g., where contract provides payment to be made during regular business hours, law of place of performance is looked to to determine what are regular business hours).

      . The trial court incorrectly ruled that Florida law applied, but held that the monetary limitation requirements of Section 725.06, Florida Statutes (1975), were satisfied by the minimum insurance called for by the contract. Our holding makes it unnecessary to consider whether that ruling was correct.

      . In Laudano, the indemnity clause read: “If this order covers the performance of labor for Buyer, Seller [the party performing the labor] agrees to indemnify and protect Buyer against all liabilities, claims or demands for injuries or damages to any person or property growing out of the performance of this contract by Seller

      . Florida has adopted the majority rule. See Charles Poe Masonry Inc. v. Spring Lock Scaffolding Rental Equipment Company, 374 So.2d 487 (Fla. 1979); University Plaza Shopping Center, Inc. v. Stewart, supra.

      . Although UPS’s entitlement to damages pursuant to its contractual indemnity claim is governed by Connecticut law, the amount of damages is a question of remedy, see Zim v. Western Publishing Company, 573 F.2d 1318 (5th Cir. 1978), and governed by Florida law. See Goodman v. Olsen, supra.

      .Jemco does not separately contest the cost award.


author: PER CURIAM.

text:
    PFAUDLER COMPANY, Appellant, v. SYLVACHEM CORPORATION, Appellee.
    No. 80-17.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Rehearing Denied July 6, 1981.
    Greene & Cooper and Joan M. Bolotin and Marc Cooper, Pyszka & Kessler, Miami, for appellant.
    Steven R. Berger, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We reverse the summary judgment entered against Pfaudler Company on its third-party complaint for indemnity based'on its contract with Sylvachem Corporation. The contract was made in New York, and for that reason we hold that New York law, under which the indemnity agreement is valid and enforceable, see e. g., Levine v. Shell Oil Company, 28 N.Y.2d 205, 269 N.E.2d 799 (1971), not the law of Florida, under which it is not, see § 725.06, Fla.Stat. (1975), applies. Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla.3d DCA 1981). Our holding makes it unnecessary to decide whether the parties by providing that their contract “shall be construed in accordance with the laws of the State of New York” expressly selected the law of New York to govern their agreement. Compare Boat Town U.S.A., Inc. v. Mercury Marine Division of Brunswick Corporation, 364 So.2d 15 (Fla.4th DCA 1978), with C. A. May Marine Supply Company v. Brunswick Corporation, 557 F.2d 1163 (5th Cir. 1977).

Reversed and remanded.

      . We are of the view, in accord with C. A. May Marine Supply Company v. Brunswick Corporation, supra, and contrary to Boat Town U.S.A., Inc. v. Mercury Marine Division, supra,
        that since (a) matters bearing on the interpretation of the contract are to be determined by the lex loci contractus, Jemco, Inc. v. United Parcel Service, Inc., supra, and (b) at the least, the parties expressed their intention that the contract be construed under New York law, we would have to look to New York law to decide whether the language used amounted to a choice of the law which was to govern. As in C. A. May Marine, supra, 557 F.2d at 1166 n. 1, neither party has provided us with authority from New York which would aid us in this search.


author: ORFINGER, Judge.

text:
    David Hugh STREETER, Appellant, v. STATE of Florida, Appellee.
    No. 80-678.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Rehearing Denied July 7, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Edward M. Chew and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   ORFINGER, Judge.

Appellant questions the sufficiency of the evidence to sustain his conviction for sexual battery. We affirm.

The State proved by competent substantial evidence each element of the crime. While there was conflict in the evidence, and the identity of appellant as the perpetrator of the crime was based solely on the testimony of the victim, she remained resolute in her identification, despite rigorous cross-examination. It is the jury’s function to determine the weight of the evidence and the credibility of the witnesses.

When it is shown that they have performed that duty faithfully and honestly and reached a conclusion that squares with reason and their theory of the evidence, it takes more than mere difference in opinion as to what the evidence shows for this court to reverse them. We find no basis whatever for reversal, except a possible difference of opinion as to what the facts before a jury reveal.

State v. Smith, 249 So.2d 16, 18 (Fla.1971).

The Florida Supreme Court has said that on appeal, we must determine only the legal sufficiency of the evidence; i. e., whether there was substantial competent evidence to support the verdict after all conflicts in the evidence and all reasonable inferences thereon are resolved in favor of the verdict and judgment. We are not permitted to determine the weight of the evidence. Tibbs v. State, 397 So.2d 1120 (Fla.1981).

The judgment of conviction is AFFIRMED.

DAUKSCH, Chief Judge, and FRANK D. UPCHURCH, Jr., J., concur.


text:
    UNITED BUILDING SYSTEMS, INC., Appellant, v. CANAM SYSTEMS, INC., Appellee.
    No. 80-658.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Rehearing Denied July 9, 1981.
    H. Stephen Rash of Rash, Katzen & Kay, P. A., South Miami, for appellant.
    Irby G. Pugh, Orlando, for appellee.
   ORFINGER, Judge.

The partial summary judgment appealed from in this action for breach of contract did not determine the issue of liability in favor of the moving party, but only determined the amount of the debt, leaving open for later determination the issue of liability for the debt. Thus, this non-final order is not appealable.

In dismissing this appeal, we do not pass on the correctness of the trial court’s conclusion in the partial summary judgment or determine if there is an issue of fact as to the amount of the debt, because these matters can be appropriately reviewed on appeal from a final judgment.

Appeal DISMISSED.

DAUKSCH, C. J., and COWART, J., concur.

      . The order granting the partial summary judgment also gave appellant leave to amend its answer and affirmative defenses, which is further evidence that the issue of liability was not decided.

      . Fla.R.App.P. 9.130(a)(3).


text:
    Sherman Robert TUCKER et ux., Appellants, v. Frank Edward SEWARD et al., Appellees.
    Nos. 80-209, 80-314 and 80-515.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Rehearing Denied July 8, 1981.

      Bruce Jacobus, Melbourne, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellants.
    Robert C. Cooper of Cooper & Rissman, P. A., Orlando, for appellee, Hartford Acc. & Indem. Co. and Frank Edward Seward.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee, United Services Auto. Ass’n.
   DAUKSCH, Chief Judge.

This is a consolidated appeal by plaintiffs from two summary final judgments in an automobile insurance case. The question on appeal, just like the other many appeals in summary judgment cases, is whether the trial court made factual determinations and resolved conflicts in the evidence in rendering these judgments.

The first summary judgment was entered for plaintiffs’ insurer against plaintiffs, United Services Automobile Association (US A A). Plaintiffs’ attorney mistakenly delivered a release from, liability to the tortfeasor without first obtaining the approval of plaintiffs’ uninsured — underin-sured motorist carrier (USAA), as the policy required. It is USAA’s position that the delivery of the release was in direct contravention of the policy and prejudiced it in its right to seek subrogation against the tort-feasor, should it pay any benefits to the plaintiffs for underinsured motorist claims. There is no question the policy provisions were violated but that in itself does not end the matter. The violation must be prejudicial to the insurer. Southeastern Fidelity Ins. Co. v. Earnest, 378 So.2d 787 (Fla.3d DCA 1979); Kaplan v. Phoenix of Hartford Insurance Company, 215 So.2d 893 (Fla.3d DCA 1968), cert. denied, 220 So.2d 365 (Fla.1969). See also Bass v. Aetna Casualty and Surety Company, 199 So.2d 790 (Fla. 4th DCA 1967), cert. discharged, 206 So.2d 211 (Fla.1968).

There is a question whether the carrier was prejudiced in this case. The principal prejudice would be the loss of the subro-gation rights against the tortfeasor if UMI payments are made to the plaintiffs. It is plaintiffs’ position, and the record reflects, that the tortfeasor was 99 years old, a nursing home resident with no future earning capacity and no assets. Perhaps there is no subrogation available and, if so, there is probably no prejudice and thus the summary judgment was error. Thus, if the plaintiffs can show there was no prejudice to the insurer and the insurer would not have any actual rights to protect if the release was not delivered, then the breach of the contract was only nominal and the insurer would be bound to pay under its underin-sured motorists coverage. We reverse this summary judgment.

The second summary judgment was entered in favor of the tortfeasor and his insurer against the plaintiffs. The judgment was rendered after the notice of appeal was filed and it is argued the trial court lacked jurisdiction to enter the judgment. Because the notice of appeal was filed only as to the judgment between the plaintiffs and one defendant (US A A), albeit in the same case, we see no legal reason why the court did not retain jurisdiction over these other defendants. This was a two-count, severable action with separate distinguishable claims against two distinct parties. The first judgment affected only the one defendant (USAA) and the second only the other two defendants. It was final as to the first, only, and for us to rule the trial court lost jurisdiction over the other defendant would in effect make the appeal interlocutory as to them. These defendants should have all the protection the law allows and the law should allow them to have the litigation against them terminated at the earliest time. To require them to await the appeal process to be completed in an essentially unrelated matter is unnecessary and without any good reason. The judgment in favor of Seward and Hartford Accident & Indemnity Company is affirmed and the judgment in favor of US A A is reversed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED for further proceedings consistent with this opinion.

COBB and SHARP, JJ., concur.


author: OTT, Judge.

text:
    Bert H. COLLOM, as Personal Representative of the Estate of April Collom, Deceased, and the Estate of Judith Collom, Deceased, the Guardian of Shelley H. Collom, and for himself individually, Appellant, v. CITY OF ST. PETERSBURG, Florida, a municipal corporation and a subdivision of the State of Florida, Appellee.
    No. 80-997.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.
    Rehearing Denied July 8, 1981.

      Donald Wm. Giffin of Donald Wm. Gif-fin, P. A., St. Petersburg, for appellant.
    Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee.
   OTT, Judge.

Before Florida expressly waived sovereign immunity by the enactment of section 768.28, Florida Statutes (1973), liability of governmental units was dependent upon whether a challenged activity was “governmental” or “proprietary.” Naturally, claimants were prone to see everything as proprietary and, conversely, to the governments there was very little, if anything, that wasn’t governmental.

After the doctrine of sovereign immunity was abolished, the'Florida Supreme Court pointed out that certain functions of government still do not give rise to liability — not because of immunity, but because some functions are discretionary, and therefore cannot be tortious because no duty to act has been breached. Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So.2d 1010, 1020[8], 1022[9]. The court distinguished between functions which may give rise to liability and those which do not: the former are “operational” and the latter are “planning.”

Everything has changed, yet nothing has changed. Claimants now tend to paint everything “operational,” but the governments say it is almost all “planning.” And as always, the courts must draw the lines. In this case the trial court was persuaded that the City of St. Petersburg was merely “planning” when it designed, installed and maintained an allegedly dangerous storm sewer system. Accordingly, the court entered summary judgment for the city in appellant’s action for damages suffered when his wife and daughter were swept into the storm sewer and drowned. We reverse the summary judgment because it was predicated on an erroneous belief that the city was immune from suit.

There is no point in detailing here the allegations of what the city did or didn’t do that rendered the sewer system dangerous. All those facts (and, for that matter, whether the system was in fact dangerous) must be determined by a trial. Suffice it to say here that the city’s theory, that since there was no obligation to install any particular type of sewer system, it is “immune” from liability, no matter what it did, is a misconception of the law.

As we review the cases which come before us, it is all too obvious that many people still do not really understand that “sovereign immunity” simply no longer exists in this state. A government is liable for its negligent acts and omissions without exception. As already noted, the so-called exception for “discretionary” acts is a misnomer. “Discretion to act” completely precludes any possibility that a duty to act will be breached. Historically, no one — whether an individual or a government — has ever been liable where true discretion has been exercised in deciding whether to act or which of two or more reasonable courses of action to follow. But immunity of a government for negligently performing an act no longer exists, even though the initial decision to act may have been purely discretionary, and not compelled in any way. In other words, and at the risk of being deemed repetitive, once a government decides to act, whether out of obligation of free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.

When appellee was faced with a serious storm drainage problem, it may or may not have had discretion to refuse to do anything about it. That is not an issue here and we will not address it. We can assume that it did have discretion to determine whether or not it should get involved or take action. We can further assume that it had discretion in the determination of just how to alleviate the problem — whether to go underground or stay above ground. Once those truly discretionary decisions were made, however, it could not negligently design, construct or maintain a facility with impunity. To illustrate, it might well be that the DOT would incur no liability in deciding to build a limited access road, but if it decides to do so it better not negligently design the roadway so as to cause the flooding of private property.

It is obvious that confusion has arisen from equating “plans” with “planning.” Sometimes attempts to clarify tenuous concepts by putting labels on everything merely lead to further confusion. The operational/planning dichotomy may be a classic example. At any rate, appellee seems to sincerely believe that its conceded discretion in planning to alleviate the storm water problem, by installing an underground storm sewer system, extended right through to the actual drawing of the plans and specifications and even to the maintenance of the system, so that even though the finished project might be inherently dangerous the city could not be liable, because it “planned” the system that way. The fact of the matter is that a blueprint is not a plan in the sense of the “planning” that is discretionary, and once the “planning” has been done, the plans that are then prepared can indeed give rise to liability.

That confusion probably explains another misconception harbored by appel-lee, and we mention it only because it is such a disturbing notion. Appellee argues that many decisions are dictated by necessity, and that a lack of funds often necessitates “penny-pinching” in the design of municipal facilities. Therefore, argues appel-lee, some of the safety features in a sewer system, for example, might have to be eliminated solely because the city couldn’t afford them.

The availability of funds may well be a valid consideration when a city is deciding just how to meet a threat to public safety. Certainly the government could not be expected to provide facilities for which the electorate refuses to loosen the purse strings. Properly, then, the solution selected by the city should be one it can complete. But this is not to say that the city would be free to adopt an expensive plan for alleviating a problem and then cut costs by eliminating the safety features. That would merely replace one danger with a worse one. No reasonable individual, for example, would install a fine furnace to keep his family from freezing, but economize by building a wooden chimney. Governments are expected to exercise similar prudence and reason.

Since this case must be returned to the court for a trial to determine whether ap-pellee installed and maintained a sewer system which was in fact dangerous, and did in fact proximately cause or contribute to the deaths of appellant’s wife and daughter, we must address one further contention made by appellee. It argues that the storm sewer into which the decedents were sucked was located in a drainage and utility right of way not intended for pedestrian traffic. Therefore, the argument goes, the city had no duty to maintain the area in a safe condition, and thus the summary judgment was proper for that reason. Reliance is placed upon our cryptic affirmance in Runowich v. City of St. Petersburg, 276 So.2d 83 (Fla.2d DCA 1973), which relied on Musetto v. City of Miami Beach, 82 So.2d 595 (Fla.1955).

The cited cases involved injuries sustained in tripping over meter boxes or falling into holes in grassy areas provided for beautification — areas in which no reasonable person would “tramp with impunity.” The facts of the present case hardly seem parallel, but of course we have no intention of supervising the trial court in its determination of whether the decedents were themselves guilty of negligence which caused or contributed to their deaths. But that is a question of fact, rarely capable of determination by summary judgment. Surely the trial court will permit appellee to amend its pleadings, if necessary, to set up all appropriate defenses, including contributory negligence.

The summary judgment is REVERSED and the case is REMANDED to the trial court for further proceedings in accordance with this opinion.

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


author: HOBSON, Acting Chief Judge.

text:
    Samuel Edward BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2322.
    District Court of Appeal of Florida, Second District.
    June 5, 1981.
    Rehearing Denied July 8, 1981.
    Jerry Hill, Public Defender and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant’s judgment and sentence as to attempted grand theft is reversed. See Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979), and McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980). Further, in view of the fact that appellant was insolvent, the trial court erred in assessing him court costs in the amount of $500 and requiring him to pay $10 to the Crime Victim Fund. See Hensley v. State, 363 So.2d 352 (Fla. 2d DCA 1978) and Armstrong v. State, 377 So.2d 205 (Fla. 2d DCA 1979).

Accordingly, the judgment and sentence of robbery and false imprisonment is affirmed. The judgment and sentence of attempted grand theft is reversed. That portion of the order assessing court costs and requiring appellant to pay money to the Crime Victim Fund is stricken.

OTT and RYDER, JJ., concur.


text:
    DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant/Cross-Appellee, v. CALIFORNIA FLORIDA CORPORATION, et al, Appellees/Cross-Appellants.
    No. 80-246.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 7, 1981.
    Alan E. DeSerio, Tallahassee, for appellant/cross-appellee.
    Joan H. Bickerstaff and James R. Dressier, Cocoa Beach, for appellee/cross-appel-lant California Florida Corp.
    Leon Stromire of Stromire, Westman, Lintz, Baugh, McKinley, Antoon & Pearce, Cocoa, for appellee/cross-appellant Tommy Oil Co., Inc.
   PER CURIAM.

The final judgment is reversed and this cause is remanded for a new trial on the authority of Division of Administration, State Department of Transportation v. Capital Plaza, Inc., 397 So.2d 682 (Fla.1981). See also City of Orlando v. Cullom, 395 So.2d 286, No. 80-1305 (Fla. 5th DCA June 10, 1981).

REVERSED and REMANDED for new trial.

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.