author: SHAW, Judge.

text:
    John F. FOLEY and Sidney J. Norred, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. AI-285.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 22, 1982.
    Joshua Stanford Morse of Law Offices of John T. Ware, St. Petersburg, for appellants.
    Jerrold K. Phillips of Brooks, Callahan & Phillips, Tallahassee, for appellee.
   SHAW, Judge.

This is an appeal from an order granting summary judgment in favor of the Department of Transportation (DOT) predicated upon the appellants’ stipulation that DOT had adopted a schedule for maintenance of downed signs and for the mowing of weeds and grass along State Road 52 where the accident occurred, and that there had been no breach or deviation from that schedule.

The facts are relatively simple and straightforward. Appellant John F. Foley, the driver of a motorcycle, and his passenger girl friend, Sidney Norred, were returning home from an outing at the Pasco County Fairgrounds when Foley pulled off onto the shoulder of the road to check an oil leak. The motorcycle became airborne as a result of striking an unmarked culvert, and both Foley and his passenger were permanently injured. In granting summary judgment for the Department the court relied upon the following findings of fact:

1. The Department of Transportation had instituted a planned program of highway maintenance throughout Pasco County on those roads under its jurisdiction and control. The planned program required an inspection of each of the three hundred miles under the Defendant’s control at least once every two weeks to identify and control traffic markers which are out of place, damaged, or missing. This inspection requirement was fulfilled during the period immediately preceding the accident, March 22, 1978, through Friday, April 7, 1979; no traffic marker was then found missing, damaged or out of place at the accident scene. Further, the Department of Transportation’s complaint records indicate that it had no actual notice from any other source of any missing, damaged, or out-of-place marker at the accident scene.
2. The Department of Transportation has instituted a policy concerning the mowing of right-of-way property located adjacent to those roadways under the control of the Department of Transportation. The Plaintiff has stipulated and the Court does find that there has been no breach or deviation from the requirements of the Department of Transportation’s planned schedule of mowing in the vicinity of this accident.

It is apparent that although the court does not use the term governmental immunity, it is upon this theory that summary judgment was granted. Resolution of the sole issue on appeal hinges upon the characterization of DOT’s alleged tortious acts. The claimed negligence is in allowing grass and weeds to obscure the offending culvert and in failing to detect and repair a missing reflector. Appellants assert that the acts of negligence combined to create a hazardous condition or “trap” for the unwary. DOT defended on the theory that formulating a schedule for mowing grass along the roadway at the site of the accident and inspecting for missing and damaged warning devices are planning level functions under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Ergo, if the schedule is followed, the agency is immune from tortious liability though the grass grows tall and the reflector vanishes.

The Florida Supreme Court in Commercial Carrier eschewed the temptation to fall back on semantic labels as a test for identification of discretionary government functions which should enjoy immunity and adopted a more practical approach. The opinion holds that section 768.28, Florida Statutes (1975) evidences the intent of our legislature to waive sovereign immunity on a broad basis. It recognizes that certain discretionary governmental functions remain immune, however, from tort liability. In order to identify those functions, the court adopted the analysis in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), which distinguishes between the “planning” and “operational” levels of decision making by governmental agencies. In pursuance of this case by case method of proceeding, Justice Sundberg, writing for the court, recommended use of the preliminary four-prong test established in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965):

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Commercial Carrier at 1019.

The complaint in this instance alleges negligence on the part of DOT in allowing grass and weeds to grow to a height so as to obstruct the view of the culvert and in failing to timely detect and replace a missing reflector along the right-of-way and shoulder of State Road 52. The complaint alleges that the agency knew or should have known of the hazard in time to take the needed corrective action. Motion for summary judgment was denied because “.. . this court is unable to conclude that the defendant has established that there is no genuine issue of material fact which would warrant the granting of a summary judgment.” At pretrial hearing, counsel for the appellants expressly stipulated that DOT followed its schedule for inspecting State Road 52. With the consent of the parties, the court reconsidered the motion for summary judgment, and upon consideration of the stipulation granted summary judgment in favor of the appellee. The trial court obviously viewed the affidavit as dispositive. We disagree, for if the affidavit has the critical significance attributed to it by the trial judge, the broad waiver of immunity articulated in Commercial Carrier is truly illusory. The State could invoke immunity in like situations by simply establishing that it has formulated a schedule from which it has not deviated. Subsequent to Commercial Carrier, the Supreme Court of Florida rendered a decision in De partment of Transportation v. Neilson, 419 So.2d 1071 (1982), which specifically recognized that the failure to warn of a known danger is a negligent omission at the operational level of government and cannot reasonably be within the judgmental planning sphere. This type of failure may serve as a basis for action against a governmental entity. The Neilson opinion reaffirmed that failure to properly maintain an existing traffic control device and existing roads, as they exist, may be the basis of a suit against the governmental entity. In the opinion of this Court, mowing grass along the shoulder of a roadway and maintenance of existing warning devices would fall within the definition of maintenance as contemplated in Commercial Carrier and Neilson. Query: Can the responsible agency avoid this duty to maintain by simply showing that it formulated a schedule for road maintenance and adhered to the schedule? We do not read either Commercial Carrier or Neilson as saying this and indeed Justice Sundberg, who authored Commercial Carrier, makes it quite clear in his dissent in Neilson that this is not the holding. In Commercial Carrier the court was dealing with the maintenance of a traffic signal light which was in place. We are here confronted with maintenance of an existing state road and the abutting shoulder. For purposes of analysis, we believe the cases are analogous. As in Commercial Carrier we are not dealing with whether to put in a culvert, whether to mow the grass along the shoulder of the roadway, or whether to put up a warning device. These decisions have been made and are not questioned for the purpose of this suit. The complaint simply alleges that DOT was negligent in failing to properly maintain State Road 52 at the site of the accident and as a result of that negligence the appellants were injured. We do not feel that governmental immunity can be invoked by simply showing that DOT formulated and adhered to a schedule of road maintenance at the accident site.

REVERSED and REMANDED for proceedings consistent with this opinion.

LARRY G. SMITH and JOANOS, JJ, concur.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    WFSH OF NICEVILLE, Florida, a Florida corporation, Red Gilson, and George Cain, Appellants, v. CITY OF NICEVILLE and George H. Ireland, City Clerk, in his official capacity, Appellees.
    No. AJ-448.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 16, 1982.

      Bert Moore, Niceville, for appellants.
    Gillis E. Powell, Sr., of Powell, Powell & Powell, Crestview, for appellees.
   McCORD, Judge.

Appellants appeal the trial court’s denial of their petition for attorney’s fees pursuant to Section 119.12(1), Florida Statutes. We affirm.

Appellant radio station WFSH of Nice-ville, demanded from appellee City of Nice-ville access to all election records pertaining to a certain city election. The city clerk, on the advice of the city attorney and in the presence of WFSH’s reporter, called the State Superintendent of Elections who advised that a court order was needed before supplying the records. WFSH then brought an action for access to the records under the Florida Public Records Act, Chapter 119, Florida Statutes. The city immediately tendered the records into the protection and direction of the court stating that “the defendants do not object to the plaintiffs’ request, provided that it is legally valid and lawfully proper.” The trial judge allowed appellant access to the records. WFSH then filed a motion for assessment of attorney’s fees and court costs under Section 119.12(1), Florida Statutes, which provides:

Whenever an action has been filed against an agency to enforce the provisions of this Chapter and the court determines that such agency unreasonably refused to permit public records to be inspected, the court shall assess a reasonable attorney’s fee against such agency. (Emphasis supplied.)

The trial court determined that the city had not acted unreasonably and denied the motion.

Section 106.23(2) provides:

The Division of Elections shall provide advisory opinions when requested by any supervisor of elections, candidate, local officer having election related duties ..., or other person or organization engaged in political activity, relating to any provisions or possible violations of Florida election laws with respect to actions such supervisor, ... has taken or proposes to take.... The opinion, until amended or revoked, shall be binding on any person or organization who sought the opinion or with reference to whom the opinion was sought, unless material facts were omitted or misstated in the request for the advisory opinion. (Emphasis supplied.)

Although the State Supervisor of Election’s advice was incorrect, the city was justified, pursuant to the above statute, and therefore did not act unreasonably, in relying upon that advice and in withholding the election records in question until a ruling could be obtained from the trial court. Consequently, the trial court did not abuse its discretion in determining that WFSH is not entitled to attorney’s fees pursuant to Section 119.12(1), Florida Statutes.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    Michael L. POWERS, Robert Griggs and Roger Eugene Smith, Appellants, v. STATE of Florida, Appellee.
    Nos. AK-387 to AK-389.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.

      David J. Busch, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants, prison inmates, were discovered by prison officials with weapons on their persons, given Miranda warnings, interrogated, and placed in administrative confinement. Some three months thereafter, appellants were charged with and arrested for possession of a weapon by a State prisoner.

Appellants moved for discharge, alleging that their rights to speedy trial pursuant to Rule 3.191(a)(1), Florida Rules of Criminal Procedure (1981), had been violated in that more than 180 days had passed since they were given Miranda warnings and placed in administrative confinement. The trial court denied these motions. We conclude the evidence does not show an arrest as of the date of administrative confinement for purposes of commencing the 180-day speedy trial time and, accordingly, affirm.

McCORD, BOOTH and WENTWORTH, JJ., concur.


author: PER CURIAM. THOMPSON, Judge,

text:
    XANADU MIAMI, INC. and Kent Insurance Co., Appellants, v. John INGRAO, Appellee.
    No. AK-420.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 9, 1982.
    Douglas E. Daze of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.

      Gavin D. Lee of Maynard & Lee, Mait-land, for appellee.
   PER CURIAM.

We find no error in the amount of the fee awarded or in the order assessing it. The carrier made no objection either before the deputy or before this Court concerning division of responsibility for paying the fee. Section 440.34, Florida Statutes (1978 Supp.).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and SHIVERS, J., concur.

THOMPSON J., dissents.

THOMPSON, Judge,

dissenting.

I dissent. The employer/carrier (E/C) appeals an order awarding claimant’s attorney a $3,500 fee on the grounds that the fee was excessive. I agree and would modify.

After a hearing on the attorney’s fee, the Deputy Commissioner (deputy) stated in the record that claimant’s counsel was entitled to more than $3,500 but he did not think the law would permit him to award more than $3,500 and he directed claimant’s attorney to prepare an order because he was going to get an attorney’s fee. The deputy stated “[a]nd I’ll just ask you to specifically set forth in the order ...” when he was interrupted by claimant’s attorney and never completed his request. The claimant’s attorney prepared and the deputy entered a brief order providing in part as follows:

[HJaving considered the argument of counsel, the criteria set forth in Chapter 440.34, Florida Statutes, Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), the testimony of two expert witnesses, Irv Meyers, Esquire and Bob Keifer, Esquire, the affidavit and testimony of Jeff B. Clark, Esquire, counsel for claimant, and having personally tried the matter and recalling with certain particularity the uniqueness and novelty of the issues, the benefits obtained for the claimant, the obvious time in research and preparation, and all factors, and, having excluded from my considération the time allocated by counsel for claimant to the preparation of the attorney’s fee affidavit and time allocated to the attorney’s fee hearing and time allocated to correspondence to and from Credit Bureau as listed in his affidavit, I find that the employer/carrier shall pay the claimant’s attorney, Jeff B. Clark, Esquire, the sum of Three Thousand Five Hundred Dollars ($3,500.00) representing a reasonable attorney’s fee for his legal services rendered.

Although the order states that all criteria set forth in § 440.34 and Lee Engineering were considered, there is nothing in the order stating which of the criteria were considered and why they were considered to increase the fee awarded to two and one-half times the statutory scheduled fee, which would be modified up or down only if affected by the listed criteria. When a deputy departs from the schedule, he should specify the reasons in his order. Roundtree Transport, Inc. v. Godek, 412 So.2d 66 (Fla. 1st DCA 1982).

The claimant was injured on October 15, 1978. Section 440.34, Florida Statutes (Supp.1978) which was applicable in this case, provided that 75% of attorney’s fees on claims for benefits other than medical benefits shall be paid by the E/C and 25% by the claimant, unless the claimant proves that the E/C handled the claim in a negligent, arbitrary, or capricious manner. No effort was made to prove that the E/C handled the claim in a negligent, arbitrary, or capricious manner. Although claimant’s attorney made a claim for attorney’s fees based on temporary total compensation benefits, in addition to medical benefits, the entire claim was assessed against the E/C.

The benefits obtained for the claimant, including costs, total slightly less than $6,200. The scheduled fee on those benefits is $1,490. In view of the fact that the order sets forth no basis for deviating from the schedule set forth in the statute, and as a result of the failure of claimant’s attorney to make any effort to show the carrier handled the claim in a negligent, arbitrary, or capricious manner, I would amend the order awarding attorney’s fees to provide for a fee of $1,490 and, as amended, would affirm.


text:
    Willie ORR, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1713.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Willie Orr, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Christopher v. State, 416 So.2d 450 (Fla.1982); Washington v. State, 397 So.2d 285 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981); State v. Youngblood, 217 So.2d 98 (Fla.1968); Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981); Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981); Williams v. State, 396 So.2d 267 (Fla. 3d DCA 1981); Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980); Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1977); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977).


author: HOBSON, Judge.

text:
    John Grant WINKLE, Appellant, v. STATE of Florida, Appellee.
    No. 82-171.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.

      Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, Clear-water, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

John Grant Winkle appeals an order of the trial court adjudicating him guilty of petit theft, withholding imposition of sentence and placing him on six months probation on condition that he serve the maximum sixty-day jail term for the petit theft conviction. We reverse the split sentence probation alternative.

Our supreme court held in State v. Holmes, 360 So.2d 380 (Fla.1978), that the combined periods of incarceration and probation imposed as a “true” split sentence alternative must be within the maximum period of incarceration provided by the statute for the offense involved. We believe that the Holmes holding should also apply to a split sentence probation order because the decision is based upon a reading of section 948.01(4), Florida Statutes (1981). This statute not only authorizes the imposition of a “true” split sentence order when read alone, Holmes, but also authorizes the imposition of a split sentence probation order when read in conjunction with sections 948.01, 948.03(1) and (3). See Villery v. Florida Parole & Probation Commission, 396 So.2d 1107, 1109 (Fla.1981). In addition, the court stressed in Villery that incarceration as a condition of probation serves as an incident of probation to give the defendant “a taste of prison”; it must not serve as “the main course.” Id. at 1110-11. A maximum term of incarceration as a condition of probation can hardly be characterized as an incident of probation.

We therefore hold that the combined periods of incarceration and probation imposed as a split sentence probation alternative must be within the maximum term of imprisonment provided by the statute for the crime involved. Thus, the trial court in this case lacked the authority to impose as a condition of probation the maximum jail term for the petit theft conviction.

Accordingly, we reverse the split sentence probation order and remand with directions that the trial court either impose sentence or place appellant on probation in a manner not inconsistent with this opinion.

REVERSED and REMANDED.

OTT, C.J., and RYDER, J., concur.

      . We presume that this is appellant’s first conviction for petit theft since the record-on-appeal and the parties’ briefs do not indicate otherwise. A first conviction for petit theft is a misdemeanor of the second degree punishable by either a definite term of imprisonment not exceeding 60 days or a fine not exceeding $500. See §§ 812.014(2)(c), 775.082(4)(b), 775.-083(l)(e), Fla.Stat. (1981).

      . A split sentence probation alternative is not a sentence. See Villery v. Fla. Parole & Probation Comm’n, 396 So.2d 1107, 1109-10 (Fla.1981).

      . A “true” split sentence alternative is a sentence imposing a specified period of incarceration to be followed by a specified period of probation.

      . Section 948.01(4) provides in full:
      948.01 When Courts May Place Defendant on Probation.—

      (4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.


author: GRIMES, Judge.

text:
    Robert E. HACKETT, M.D., and Robert E. Hackett, M.D., P.A., Appellants, v. METROPOLITAN GENERAL HOSPITAL, a Florida corporation, Appellee.
    No. 82-837.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.
    William C. Ballard of Fisher & Sauls, P.A., St. Petersburg, for appellants.
    Charlie Luckie, Jr., of Dayton, Sumner, Luckie & McKnight, P.A., Dade City, for appellee.
   GRIMES, Judge.

This appeal from an order dismissing a complaint involves the applicability of the Florida Antitrust Act of 1980 and section 395.0653, Florida Statutes (1981), to a private hospital.

According to the complaint, Dr. Hackett is a medical doctor and a board certified urologist who practices in Pinellas County. Dr. Hackett applied for staff privileges at Metropolitan General Hospital, a private, nonprofit hospital located in Pinellas Park. The hospital participates in the countywide emergency medical service in which all persons located within the hospital’s district who require emergency medical treatment are transported to that hospital for treatment. At the time of Dr. Hackett’s application, the medical staff of the hospital consisted of only osteopathic physicians. The medical staff recommended to the board of trustees that Dr. Hackett’s application for staff privileges be denied on the basis that the hospital had adequate urological coverage. The board of trustees approved the medical staff recommendation and denied Dr. Hackett’s application on January 30,1980. Dr. Hackett then appealed the denial of staff privileges. On November 26, 1980, the board of trustees denied his appeal on the ground that the board members felt that he “would be a disruptive force on the staff.”

The complaint further states that the hospital does not have adequate urological coverage because the only member of the staff practicing urology is an osteopathic physician who is not board certified in urology. The five other hospitals in the Pinel-las County area offering emergency medical service each has at least two urologists on the staff, at least one of whom is board certified. Dr. Hackett alleges that he was denied staff privileges by reason of a conspiracy between the hospital through its board of trustees and the osteopathic physicians on the staff to perpetuate a monopoly for the one staff member practicing urology and to limit the staff to osteopathic physicians, thereby insulating them from competition by medical doctors. Dr. Hackett asserts that in denying his request for staff privileges the hospital violated the Florida Antitrust Act of 1980 and section 395.0653, Florida Statutes (1981). He requested an order mandating his admission to the staff, attorney’s fees and other relief. In the order dismissing the complaint with prejudice, the court stated:

[I]t being the opinion of this Court that the decision of whether or not to admit a doctor to the staff of a private hospital is a matter to be determined solely in the discretion of the Board of Directors or Trustees of such private hospital corporation that the Florida Anti-Trust Act (Chapter 452 [sic] Florida Statutes 1981) and the Florida Hospital Licensure Act (Chapter 395 Florida Statutes 1981) do not give rise to a cause of action by a doctor to require a private Florida hospital to admit him to its medical staff regardless of whether: (1) the hospital’s motivation was to restrict competition among doctors in the furnishing of medical services; (2) the availability of a specialized medical service in the hospital and in the emergency medical service district it serves is limited to one doctor and is inadequate; (3) the rejected applicant was rejected on the basis of being a medical doctor as opposed to an osteopathic physician.

On appeal, the hospital’s major defense against Dr. Hackett’s antitrust arguments is that the provisions of the 1980 act are irrelevant because Dr. Hackett applied for staff privileges before the effective date of the act. Thus, the hospital relies upon our interpretation of prior Florida antitrust laws in Moles v. White, 336 So.2d 427 (Fla. 2d DCA 1976). In that case we said, “Florida case law has not yet determined operation of a hospital or the practice of medicine to be within the ambit of this statute, and we are not prepared to hold that such was the intention of the legislature.” 336 So.2d at 429.

The revision of Florida’s antitrust statutes, known as the Florida Antitrust Act of 1980, became effective on October 1, 1980. Dr. Hackett’s application for admission to the staff and the initial denial thereof took place prior to that date. However, Dr. Hackett had to file an appeal so as to exhaust his administrative remedies prior to going to court, and the act became effective at a time when the board of trustees had not yet acted upon his appeal. We are convinced that the controlling law is that which was in effect on the date the trustees ultimately rejected Dr. Hackett’s appeal. Hence, we must consider, as did the trial court, the applicability of the 1980 legislation.

Section 542.18, Florida Statutes (1981), provides that “[ejvery contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful.” This statute was patterned after section 1 of the Sherman Antitrust Act (15 U.S.C. § 1) which prohibits “every contract, combination ... or conspiracy in restraint of trade or commerce among the several states.” In fact, the Florida legislature declared that the purpose of the act was “to complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition.” § 542.16, Fla.Stat. (1981).

Section 542.17, Florida Statutes (1981), defines “trade or commerce” to include “any economic activity of any type whatsoever involving any commodity or service whatsoever.” The language of the statute is clearly broad enough to encompass a restraint upon the practice of medicine. Moreover, the federal courts have consistently interpreted the Sherman Act to include within its prohibitions the practitioners of a learned profession. American Medical Association v. United States, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. 434 (1943); Williams v. St. Joseph’s Hospital, 629 F.2d 448 (7th Cir.1980); Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075 (4th Cir.1976). The allegations of the complaint, if proven, demonstrate a conspiracy which would fall within the scope of the Florida Antitrust Act of 1980.

The supreme court’s decision in West Coast Hospital Association v. Hoare, 64 So.2d 293 (Fla.1953), that a private hospital had the right to exclude a physician from practicing therein for any reason is not controlling. In that case, the court recognized that the legislature had the power and authority to regulate private hospitals but pointed out that it had not yet done so. While the Florida Antitrust Act of 1980 is not specifically directed to private hospitals, its provisions are sufficiently broad to cover them when their activities are alleged to have brought about an illegal restraint of trade or commerce.

Dr. Hackett also contends that he was denied staff privileges in violation of section 395.0653(1), Florida Statutes (1981), which reads:

(1) Any hospital licensed under this chapter in considering and acting upon applications for staff membership or professional clinical privileges shall not deny the application of a qualified doctor of medicine licensed under chapter 458, doctor of osteopathy licensed under chapter 459, doctor of dentistry licensed under chapter 466, or doctor of podiatry licensed under chapter 461 for such staff membership or professional clinical privileges within the scope of his respective licen-sure solely because the applicant is licensed under any of said chapters.

The hospital’s only response to this contention is that the complaint did not specifically say that Dr. Hackett was denied staff privileges “solely” because he was a medical doctor. Notwithstanding, we believe that the complaint as a whole sufficiently alleges the denial of staff privileges for the violation of section 395.0653. From a substantive standpoint, we cannot see any basis for the court’s ruling that the statute is totally inapplicable. Chapter 395 deals with the licensing and regulation of private as well as public hospitals. Section 395.0653 obviously reflects a legislative intent that a doctor should not be denied staff privileges simply because of the particular branch of practice he pursues. If a doctor cannot obtain judicial relief for violation of the statute, its provisions will be rendered meaningless.

Nothing we have said in this opinion should be construed as a limitation upon the broad discretion which any hospital must have in determining who should be granted staff privileges. See North Broward Hospital District v. Mizell, 148 So.2d 1 (Fla.1962). We hold only that the allegations of this complaint are sufficient to state a cause of action for relief under the Florida Antitrust Act of 1980 and section 395.0653, Florida Statutes (1981).

We reverse the order dismissing the complaint and remand the case for further proceedings consistent with this opinion.

OTT, C.J., and HOBSON, J., concur.

      . Actually, the Florida statute is broader than the comparable provision of the Sherman Antitrust Act because it expressly brings “services” within the definition of “trade or commerce.”

      . Ordinarily, a corporation cannot conspire with its own directors, officers or employees. However, an exception to this rule exists where, as here, the coconspiring corporate agents are alleged to have an independent personal stake in achieving the object of the conspiracy. H & B Equipment Co. v. International Harvester, 577 F.2d 239 (5th Cir.1978); Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391 (4th Cir.1974).


text:
    Tony Sherman LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1260.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Green v. State, 414 So.2d 1171 (Fla.5th DCA 1982); Brewer v. State, 413 So.2d 1217 (Fla.5th DCA 1982).

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


author: COBB, Judge. COWART, Judge,

text:
    CROSS COUNTY REALTY, INC., a Florida corporation, Appellant, v. Charles S. AMACKER; the Errol Estate Realty Company, a Florida corporation; William B. Singleton; and James L. Summers, jointly and severally, Appellees.
    No. 81-1533.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      James R. Lavigne of Lavigne & Davis, P.A., Winter Park, for appellant.
    Kenneth D. Morse and Janet E. Messer-vey of Matthias & Matthias, Orlando, for appellees Charles S. Amacker, The Errol Estate Realty Co. and William B. Singleton.
    Wallace F. Stalnaker, Jr., Casselberry, for appellee James L. Summers.
   COBB, Judge.

The issue on this appeal is whether or not the trial court erred in dismissing with prejudice the second amended complaint of the appellant, Cross County Realty, Inc., the plaintiff below.

The third count deals with general allegations that the defendants tortiously interfered with unspecified contracts between plaintiff and the defendant Amacker, and properly was dismissed. The second count, in our view, properly was dismissed because the alleged interference was done by parties who could not be considered third parties to the contract. See Doyal v. School Board of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982) and West v. Troelstrup, 367 So.2d 253 (Fla. 1st DCA 1979).

The first count, set out below, does state a cause of action for breach of contract. Presumably, Errol Estate Realty Company and Singleton could be added as parties to that count. The dismissal of Count I is

REVERSED.

DAUKSCH, J., concurs.

COWART, J., dissents.

COWART, Judge,

dissenting:

Plaintiff, a real estate “listing” broker, in count I of its complaint complains at length about Errol Estate and Singleton (other brokers) violating ethical duties and professional agreements, but plaintiff seeks no relief from those entities in that count. Presuming, as the majority opinion does, that those entities could be added as parties to that count certainly does not make that count state a cause of action against them or against the owner-seller, Amacker.

Paragraphs 8 and 22 of the complaint infer that plaintiff is suing Amacker under paragraph 5(c) of a listing agreement between them which obligates Amacker to pay plaintiff a broker’s commission if Amacker “without employing another broker” agrees, within ninety days after an exclusive four month period of time, to sell to a prospect generated by the plaintiff realtor or a cooperating broker or the owner during the exclusive period. Plaintiff alleges that within the ninety day period Amacker sold to one Summers, a person whom plaintiff believes was a prospect interested by Errol Estate and Singleton, as cooperating brokers, during the exclusive period. The problem is that paragraph 22 of the complaint, apparently attempting to allege that Amacker sold “without employing another broker,” does not adequately allege the occurrence of that contract provision by merely alleging that Amacker sold “under circumstances such that it was not necessary for Amacker to employ another broker....” The contract provision does not state that Amacker was not obligated to pay plaintiff a commission on the subsequent sale if it was necessary for Amacker to employ another broker. Under the agreement Amacker is not liable if in fact another broker was employed in the subsequent sale, whether or not the plaintiff thinks that employment was “necessary.”

The reason for paragraph 5(c) of the listing agreement appears to be to secure plaintiff’s commission-participation rights as listing broker in the event a prospect is procured during the exclusive period, but is not “signed-up” for some reason until after that period. In that event, if the prospect was secured by the listing broker his commission would be secure. If the prospect was secured by the owner (Amacker), the listing broker would be entitled to a commission. However, in the event the prospect had been secured by a cooperating broker (such as Errol Estate and Singleton) then the owner (Amacker) would not be liable to the listing broker, but would be liable for a commission to the cooperating broker and the listing broker depended on the professional relationship between itself as listing broker and the cooperating broker as the basis for sharing in the commission collected by the cooperating broker. In the counts held insufficient (counts II and III) the plaintiff ineffectively sought to enforce such ethical and professional agreements and duties against Errol Estate and Singleton, whom plaintiff believed were “cooperating” brokers who would not cooperate by sharing their commission with plaintiff. Plaintiff’s inability to collect from his brother brokers does not, however, change his agreement with the owner, so as to make the owner (Amacker) liable in this event to plaintiff under the agreement.

In failing to correctly allege the occurrence of that condition precedent to recover on this contract, the complaint fails to state a cause of action. To recover, one need only prove what one has plead in a complaint that has been held sufficient. By approving these allegations which do not meet the contract provision, the majority opinion effectually misinterprets or modifies the parties’ contract. For these reasons I dissent.

      .PLAINTIFF’S SECOND AMENDED COMPLAINT
      COMES NOW the Plaintiff, CROSS-COUNTY REALTY, INC., a Florida Corporation, by and through its undersigned attorneys, and sues the Defendants, CHARLES S. AMACKER, THE ERROL ESTATE REALTY COMPANY, WILLIAM B. SINGLETON, and JAMES L. SUMMERS, jointly and severally, and alleges:
      1. The Plaintiff, CROSS-COUNTY REALTY, INC., hereinafter referred to “CROSS-COUNTY,” is a Florida Corporation with its principal place of business in Altamonte Springs, Seminole County, Florida.
      2. The Defendant, CHARLES S. AMACKER, hereinafter referred to as “AMACKER,” is a resident of Seminole County, Florida, and is sui juris.
      3. The Defendant, THE ERROL ESTATE REALTY COMPANY, hereinafter referred to as “ERROL ESTATE,” is a Florida Corporation with its principal place of business in Apopka, Orange County, Florida. At all times material hereto, ERROL ESTATE was a member of the Orlando — Winter Park Board of Realtors. As a member of the Orlando — Winter Park Board of Realtors, and Multiple Listing Service, the Defendant, ERROL ESTATE had subscribed or agreed to a code of ethics which among other things required ERROL ESTATES and its employees, agents, or brokers to submit all offers from prospective purchasers directly to the listing office, in this case to the Plaintiff. Notwithstanding this obligation ERROL ESTATES and SINGLETON did intentionally violate its code of ethics and violated its duty to Plaintiff by refusing to forward SUMMER’S offers to Plaintiff and by intentionally going directly to AMACKER with SUMMER’S offer in violation of its duty to not communicate directly with the seller but only through the listing office, to wit: the Plaintiff.
      4. The Defendant, WILLIAM B. SINGLETON, hereinafter referred to as “SINGLETON,” is a resident of Orange County, Florida, and is sui juris.
      5. The Defendant, JAMES L. SUMMERS, hereinafter referred to as “SUMMERS,” is a resident of Orange County, Florida, and is sui juris.
      COUNT I
      The Plaintiff, CROSS-COUNTY REALTY, INC., sues the Defendant, CHARLES S. AMACKER, and alleges:
      6. On or about October 17, 1979, the Plaintiff, CROSS-COUNTY, and the . Defendant, AMACKER, entered into an Exclusive Right of Sale Contract, whereby the Defendant gave the Plaintiff an exclusive right to sell a condominium unit owned by the Defendant under a Contract for Sale and Purchase with JACK I. HICKMAN described as:
      Unit “A”, Building “F”, LAKE FRANCIS VILLAGE II, Apopka, Florida, for a period of four (4) months. A true and correct copy of said Exclusive Right of Sale Contract is attached hereto as Plaintiffs Exhibit “A” and incorporated herein by reference as if herein fully set forth. All Defendants were aware of this contract at all times material.
      7. Pursuant to the terms of the Exclusive Right of Sale Contract, the Plaintiff did process the above property through the Orlando-Winter Park Multiple Listing Service, Inc. and did otherwise advertise the above-described property and did otherwise comply with its obligations under paragraph 3 of the Exclusive Right of Sale Contract.
      8. Paragraph 5 of the Exclusive Right of Sale Contract provided, among other things:
      “5. In further consideration of this Exclusive Right and Power of Sale, Owners, jointly and severally, agree to pay to the REALTOR a commission of 5% of the sales price for said property, upon the occurrence of any of the following circumstances: ... (c) In the event that within 90 days after the termination of this Exclusive Right of Sale Contract, the Owners without employing another broker, agree to sell the property to a purchaser to whom the property was submitted by the REALTOR, any cooperating broker, or Owner before the date of termination ...”
      9. On or about January 14, 1980, the Defendant, ERROL ESTATE, did obtain from the Defendant, SUMMERS, a Contract for Sale and Purchase of the aforedescribed condominium upon the terms stated therein. A true and correct copy of that Contract for Sale and Purchase executed by the Defendant, SUMMERS, on the 14th day of January, 1980, is attached hereto as Plaintiff’s Composite Exhibit “B” and incorporated herein by reference. Said Contract for Sale and Purchase from the Defendant, SUMMERS, was for the total purchase price of SEVENTY-SEVEN THOUSAND AND NO/100 ($77,000.00) DOLLARS.
      10. The Defendant, ERROL ESTATE, did receive from the Defendant, SUMMERS, a deposit of FIVE HUNDRED AND NO/100 ($500.00) DOLLARS pursuant to the aforesaid Contract for Sale and Purchase. A true and correct copy of the check tendered to ERROL ESTATE by the Defendant, SUMMERS, is attached hereto as Plaintiffs Exhibit “C” and incorporated herein by reference.
      11. Subsequent to January 14, 1980, but pri- or to February 17, 1980, the Plaintiff was informed by Defendant, AMACKER, that he was contacted directly by ERROL ESTATE and that he had in fact received the aforesaid offer from Defendant, SUMMERS.
      12. Upon gaining that knowledge, CROSS-COUNTY contacted the Defendant, ERROL ESTATE, and asked said Defendant to transmit the offer through its office so that it may submit the same to the owner for his consideration. The Defendant, ERROL ESTATE was required to do this as a co-operating broker. The Defendant, AMACKER, was required to refer all inquiries to Plaintiff pursuant to the exclusive Right of Sale Contract with Plaintiff.
      13. After receiving the Contract for Sale and Purchase signed by the Defendant, SUMMERS, from ERROL ESTATE, the Plaintiff was led to believe by said Defendant that there were a number of changes to be made in the offer and said Defendant, therefore, requested the Plaintiff to destroy the aforesaid Contract for Sale and Purchase, and that the offer would be re-submitted. This representation was proven to be false and was made as part of a conspiracy by the Defendants to deprive Plaintiff of a commission.
      14. After numerous telephone calls by the Plaintiff or the Plaintiffs agents to the Defendant, ERROL ESTATE, the Plaintiff was informed by the Defendant, ERROL ESTATE, that no new offer would be submitted, although said Defendant knew that SUMMERS and AMACKER had in fact agreed to continue to negotiate the sale and purchase of the condominium.
      15. Subsequent to February 17, 1980, the Plaintiff did learn from an agent or employee of ERROL ESTATE that the Defendant, SUMMERS, and the Defendant, AMACKER, did in fact enter into a contract for AMACKER to sell and for SUMMERS to purchase the contract AMACKER had with JACK I. HICKMAN by the way of an assignment of the aforedescribed condominium unit within days after February 17, 1980, upon terms substantially similar to the Contract for Sale and Purchase executed by SUMMERS on January 14, 1980.
      16. Attached hereto as Exhibit “D” and made a part hereof is the Exclusive Right of Sale Agreement entered into for the above condominium unit between the Defendant AMACHER and the Defendants ERROL ESTATE and WILLIAM SINGLETON dated February 18, 1980, the day immediately following the technical expiration of Plaintiffs Exclusive Right of Sale Agreement. The entering into the Agreement attached hereto as Exhibit “D” was not necessary and was a bad faith attempt to defeat the Plaintiff of its commission by attempting to use the provision in Plaintiffs listing agreement allowing the Defendant AMACKER to employ another broker to sell the property if done within 90 days of February 17, 1980. Plaintiff alleges that this Exhibit “D” is a fabricated document entered into after the fact. Said Exclusive Right of Sale Contract between AMACKER and ERROL ESTATE was never submitted to the Orlando-Winter Park Multiple Listing Service as required under the bylaws of said organization, which bylaws Defendants, ERROL ESTATE and SINGLETON agreed to be bound as members of said organization. A copy of the Bylaws is attached as Exh. “H”.
      17. On or about May 7, 1980, the Defendant, AMACKER, did in fact close a sale of the above-described condominium unit to the Defendant, SUMMERS in the office of Mid-Florida Title Insurance Company, Inc., Altamonte Springs, Seminole County, Florida. The purchase price was SEVENTY-SEVEN THOUSAND AND NO/100 ($77,000.00) DOLLARS. A true and correct copy of the recorded deed going from JACK I. HICKMAN to the Defendant, SUMMERS, as recorded in the Public Records of Orange County, Florida, is attached hereto as Plaintiff’s Exhibit “E” and incorporated herein by reference.
      18. A true and correct copy of the contract entered into for the sale and purchase of the above-described condominium unit by the Defendant, AMACKER, and the Defendant SUMMERS, is attached hereto as Exhibit “F” and incorporated herein by reference. Said contract shows that the Defendants ERROL ESTATE and SINGLETON received the deposit on January 12, 1980, a date when the Plaintiffs Exclusive Right of Sale Agreement was in full force and effect. The Defendants has conspired to close the subject transaction without a written contract in an attempt to defeat and defraud Plaintiff of its lawfully earned commission. The Defendant, AMACKER breached the Exclusive Right of Sale Agreement by wilfully, intentionally and in bad faith negotiating with SUMMERS directly or with ERROL ESTATE or SINGLETON rather than refering all inquiries to Plaintiff as required by the exclusive Right of Sale Agreement.
      19. Prior to the actual closing, the Plaintiff did cause to be sent to the Defendant, AMACKER, its letter dated February 28, 1980, requesting payment of 5% of the purchase price pursuant to the Exclusive Right of Sale Contract when it confirmed Defendants conspiracy to deprive it of its rightful commission. A true and correct copy of the February 28,1980 letter to AMACKER from the Plaintiff is attached hereto as Plaintiffs Exhibit “G” and incorporated herein by reference.
      20. Notwithstanding the demands of the Plaintiff, the Defendant, AMACKER, has refused to pay the Plaintiff its commission due in the amount of THREE THOUSAND EIGHT HUNDRED FIFTY AND NO/100 ($3,850.00) DOLLARS.
      21. The Plaintiff has complied with all of the terms and conditions of the Exclusive Right of Sale Contract attached hereto as Plaintiff’s Exhibit “A” and has otherwise fully complied with all conditions of contract or law entitling it to bring this action while the Defendant has fraudulently deprived Plaintiff of its lawful commission.
      22. The closing on the above-described condominium unit occurred within 90 days of February 17, 1980, to wit: on May 7, 1980 the 80th day after February 17, 1980 and under circumstances such that it was not necessary for AMACKER to employ another broker since the closing was upon substantially similar terms to the terms of the January 14, 1980 contract offer by Defendant SUMMERS, and under such facts and circumstances as alleged to show that the employment of another broker was in bad faith and was a fraudulent attempt to defeat and deprive the Plaintiff of its lawful commission.
      WHEREFORE, the Plaintiff, CROSS-COUNTY REALTY, INC., sues the Defendant, CHARLES S. AMACKER, for compensatory damages and punitive damages, attorneys fees, interest, and costs and demands trial by jury of all issues as of right triable by jury.

      . Perhaps it is not amiss to suggest that upon this reversal and remand appellee Amacker can possibly mitigate the result of this opinion erroneously relieving appellant of its duty to properly and squarely allege the occurrence of this contractual condition precedent to recovery. Amacker can allege as an affirmative defense that the alleged sale to Summers was made by and with the assistance of a broker which Amacker employed and to whom Amacker paid a commission. Although the result will be to erroneously shift the burden of proof as to these facts from the plaintiff to the defendant, this may cobble up the error in this case.


author: DAUKSCH, Judge.

text:
    Robert E. LHAMON, d/b/a Hitch-N-Post, Appellant, v. RETAIL DEVELOPMENT, INC., Appellee.
    No. 82-353.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      John V. Doyle, Daytona Beach, for appellant.
    William Hart and Richard L. Gumo, Holly Hill, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment awarding attorney’s fees in a breach of contract case. Appellant was the lessee of property owned by appellee and when appellant breached the terms of the lease ap-pellee sued. Among the allegations in the. complaint was one regarding attorney’s fees. The lease contract provided for attorney’s fees should the lessor be required to hire an attorney to collect past due rent. Such was the case and at trial a jury determined appellant was indebted for the rent.

Appellee presented no evidence at trial regarding attorney’s fees but waited until the verdict and rent judgment were rendered to present his claim to the judge for the fees. Appellant objected saying the fees were a part of the damages to be considered by the jury at trial for the breach of contract.

The question for us to resolve is who determines the attorney’s fees award, the jury or the judge?

There is conflict in earlier decisions on the question but we have followed Newcombe South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2d DCA 1976) where Judge Scheb wrote for the court “In a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury.” Mystery Fun House, Inc. v. Magic World, Inc., 417 So.2d 785 (Fla. 5th DCA 1982); also see Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977) where it was held “In actions at law, interest and attorney fees are properly recoverable as a part of damages in a breach of contract case and, as such, are to be determined by the jury where a case is tried by a jury.” This Third District decision is apparently in conflict with an earlier Third District decision, Richmond v. Lumb, 339 So.2d 1147 (Fla. 3d DCA 1976). See Parker v. Solar Research Corporation, 210 So.2d 271 (Fla. 1st DCA 1968) which is in conflict, as well.

The judgment awarding attorney’s fees is

REVERSED.

ORFINGER, C.J., and COWART, J., concur.


author: COWART, Judge.

text:
    Larry K. KRUCKENBERG, Petitioner, v. Honorable Rom W. POWELL, etc., Respondent.
    No. 82-1160.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      Ed Leinster, Orlando, for petitioner.
    No appearance for respondent.
   COWART, Judge.

Petitioner was charged in the Circuit Court of the Ninth Judicial Circuit with one felony and the case was assigned to Judge Kirkland (Subdivision 11). Petitioner was later charged in the same court with another felqny and that case was assigned to Judge Baker (Subdivision 14). Later both cases were reassigned from the prior “subdivision” to Subdivision 15 by orders signed by Judge Powell as “administrative judge.” Petitioner moved Judge Powell to reassign the cases “to the court in which they were originally assigned.” That motion was denied. Petitioner seeks a writ of mandamus directing Judge Powell to reassign said cases, claiming that the reassignment of the cases was done at the request of the state attorney for the purpose of judge shopping, was done ex parte without notice to the petitioner and was contrary to local court rules which provide procedures for the random assignment of cases and for reassignment of cases in the event of disqualification of a judge and as to companion cases. Petitioner expressly claims that the respondent judge has a ministerial duty to reassign the cases, which duty is not subject to discretion.

The assignment and reassignment of specific court cases between or among the judges of a multi-judge court is a matter within the internal government of that court and is directed and controlled by policy adopted by the judges of that court, either directly or by and through their chief judge. If such policy is in writing, it is properly documented by an administrative order or similar directive usually directed to the clerk of the court for ministerial implementation.

Where the court has jurisdiction, it is the court, and not the particular judges thereof, that has jurisdiction over a particular cause, controversy and the parties thereto. Every duly elected or appointed judge of a court has the bare power or authority to exercise all of the jurisdiction of that court. Administrative orders evidencing internal matters of self-government of the court do not limit the lawful authority of any judge of the court, nor do they bestow rights on litigants. In legal contemplation judges, like litigants, are all equal before the law.- Subject only to substantive law relating to disqualification of judges, litigants have no right to have, or not have, any particular judge of a court hear their cause and no due process right to be heard before any assignment or reassignment of a particular case to a particular judge.

The assignment and reassignment of cases in a busy multi-judge court presents a continuous administrative problem resulting, not only from the disqualification of judges in particular cases and the need to conserve judicial labor by the consolidation of companion and other related cases, but also from many other complex causes, including the rotation of judges between divisions of the court, equalization and control of individual judge case loads, the temporary absence of judges or the temporary inability of judges to perform services, termination of the service of individual judges by death, retirement or otherwise, and other good reasons. Contrary to petitioner’s assertion, in the administration of the internal matters of a court the judges thereof exercise an authority that goes far beyond the judicial discretion that judges exercise in the disposition of cases and controversies before the court. A litigant does not have standing to enforce internal court policy, which is a matter of judicial administration and the proper concern of the judges of the particular court and of the administrative supervision of the judicial system. We note that the order of reassignment in the case was signed by Judge Powell as “administrative judge” and we presume that he was acting under Florida Rule of Judicial Administration 2.050(b)(5), as the designee of the chief judge of the judicial circuit who has administrative supervisory authority over such matters under Judicial Administrative Rule 2.050(b), and article V, section 2(d), Florida Constitution, and whose authority is subject to the administrative supervision of the chief justice of the supreme court who has such supervising authority under article V, section 2(b), Florida Constitution.

Accordingly, the writ of mandamus is

DENIED.

ORFINGER, C.J., and COBB, J., concur.


author: COBB, Judge.

text:
    HUSKY INDUSTRIES, INC., a Delaware corporation, and Insurance Company of North America, a Pennsylvania corporation, Appellants, v. Wilson J. GRIFFITH, Sherwin-Williams Company, a foreign corporation, Continental Can Company, Inc., a foreign corporation, and Union Oil Company, a foreign corporation, Appellees.
    Nos. 81-1597, 82-5.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      Stephen W. Beik of Pitts, Eubanks & Ross, P.A., Orlando, for appellants.
    Carey N. Bos of Rogers & Dowling, P.A., Orlando, for appellees.
   COBB, Judge.

The issue in this case is whether the trial court properly granted a summary judgment for third-party defendant, Continental Can Company. We hold it did and affirm.

The plaintiff in the action below, Wilson J. Griffith, brought suit against appellant, Husky Industries, to recover damages for injuries he received when the Smokey Bear Charcoal Lighter Fluid he was applying to a charcoal grill ignited, causing the can to explode. Husky filed a third-party second amended complaint against Sherwin Williams, the manufacturer of the container; Continental Can Co., which manufactured the closure for the container; and Union Oil Co., which supplied the lighter fluid. The action against Continental is the focus of this appeal. The complaint against Continental sought damages both under indemnity and contribution. In the complaint, Husky alleged three counts against Continental. The first, for negligence, alleged that Continental breached its duty to manufacture the caps and spouts free of defects and safe for the uses intended and foreseeable. Husky alleged that such negligence consisted of, but was not limited to, improper design, manufacture or assembly, the failure to inspect for defects, and the failure to warn of dangers. Husky’s second count was based on an implied warranty of merchantability and fitness for use. Husky claimed that the warranty was breached by the defective design due to Continental’s failure to provide flashback arrestors, which allowed the can to explode. The final count against Continental was for strict liability, with Husky alleging that the spouts and closures contained a defect or defects which created an unreasonable risk of harm to foreseeable users, and that Husky relied on Continental to provide a product free of defects, with Continental knowing this and knowing that no inspection by Husky would occur. Husky also alleged the defect consisted of, but was not limited to, the defective design of not allowing for the flashback arrestor.

Continental moved for a summary judgment, alleging that the instant action was barred by res judicata and/or collateral es-toppel, since the question of liability between Husky and Continental regarding the manufacture and sale of charcoal lighter cans had been determined in a prior case, Black v. Husky, Inc., No. 78-4591 CA(L)OIG (15th Judicial Circuit In and For Palm Beach County (1980)). In Black, the plaintiff was injured in the explosion of a can of Sparky Lighter Fluid manufactured by Husky when he lit a match on lighter fluid-soaked charcoal. The flames then spread to the can, exploding, injuring the plaintiff. Black brought suit against Husky, and Husky then filed a third-party complaint against Sherwin Williams, Continental and Union Oil. In the complaint, Husky alleged counts of negligence, implied warranty and strict liability similar to those pled in the instant case’s complaint. The negligence alleged was in the specifying, designing, manufacturing, inspecting and assembling of the spouts and closures, with the negligence consisting of, but not limited to, improper design, manufacture or assembly, improper testing and inspecting, and failure to adequately warn of the dangers and the failure to use safety precautions.

In the implied warranty count, Husky alleged that the spouts and closures were defectively designed so as to allow explosions, and in the strict liability count, they alleged that the parts contained a defect or defects which created an unreasonable risk of harm to foreseeable users, with Continental knowing that no inspection would occur prior to use.

In answer to request for admissions in the instant case, Husky admitted that it was involved in a prior third-party action with Continental Can; that the cap and closure on the Sparky can in the Black case was the same type as that in the instant case; that the suit was based on negligence, breach of implied warranty and strict liability; and that the court entered a final judgment for the plaintiff in that action, with Husky taking nothing from Continental. Husky also admitted that the jury in the Black case found that Continental did not breach its implied warranty, and that the cap was reasonably fit for the uses intended or reasonably foreseeable by the defendant.

The trial court in the instant case granted Continental’s motion for a summary judgment on November 6, 1981, and a final summary judgment was entered on November 17, 1981. Husky’s motion for relief from summary judgment, alleging newly-discovered evidence under Florida Rule of Civil Procedure 1.540, based upon letters showing a possible defect in the cap itself, was denied by the trial court. Husky then filed its notice of appeal. Appellant claims that the summary judgment was improper as neither res judicata nor collateral estop-pel applies so as to bar the present action against Continental Can.

In order for res judicata to bar the present suit, four identities must be present:

(1) Identity of the thing sued for;

(2) Identity of the cause of action;

(3) Identity of persons and parties;

(4) Identity of the quality or capacity of the persons for or against whom the claim is made.

Donahue v. Davis, 68 So.2d 163 (Fla.1953); Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla. 2d DCA 1976). Here, the four identities are not met, since the causes of action are different.

The test for identity of a cause of action for the purposes of determining res judicata is the identity of the facts essential to the maintenance of the action. Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680 (1952). These facts need not be identical; rather, the testimony produced by the plaintiff in the second suit must be essentially the same as that which was produced in the former action. Gordon, 59 So.2d at 44. In the instant case, it cannot be said that the testimony presented in the Griffin suit would be “in essence” the same as that presented in Black. Since negligence cannot occur in a vacuum, the attendant circumstances in the use of the fluid must be considered. Two separate incidents occurred here, giving rise to liability on the part of Husky. These incidents were at two separate times and involve two separate cans, with two separate caps. It is clear that the evidence required to prove the negligence in Black would clearly differ from that required in the instant case. Since two causes of action are present, res judicata is not applicable.

The doctrine of estoppel by judgment, or collateral estoppel, is applicable, however, to the instant case. Collateral estoppel may apply where two causes of action are different, in which case the judgment in the first suit estops the parties from litigating in the second suit those points in question common to both which were actually adjudicated in the prior litigation. Seaboard Coastline Railroad v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972). See Hann v. Carson, 462 F.Supp. 854 (M.D.Fla.1978).

The essential elements of collateral estoppel are:

(1) that the parties and issues be identical;

(2) that the particular matter be fully litigated and determined in a contest,

(3) which results in a final decision,

(4) in a court of competent jurisdiction.

Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977).

Here, there is no doubt that the liability of Continental Can to Husky for their caps was previously litigated and determined in a court of competent jurisdiction. Furthermore, both the parties and the issues are identical, thereby allowing collateral estoppel to bar the instant action.

The trial court ruled properly in granting a summary judgment for Continental Can. Accordingly, the judgment is

AFFIRMED.

COWART, J., and DANIEL C. WEL-BORN, Associate Judge, concur.

      . The indemnity claims were dismissed by the trial court upon Continental’s motion.

      . This mutuality of parties requirement, which provides that collateral estoppel will lie only between parties who were adverse to each other in a prior action, has been consistently honored in Florida. See Seaboard Coastline Railroad Co. v. Cox, 338 So.2d 190 (Fla.1976); Youngblood v. Taylor, 89 So,2d 503 (Fla.1956). However, the doctrine has been rejected by both the federal courts and by those of several states. See 31 A.L.R.3d 1044 (1970).


author: BERANEK, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Agnes JONES, Robert M. Jones, her husband, and United States Fire Insurance Company, etc., et al., Appellees. UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Agnes JONES, et al., Appellees.
    Nos. 80-2098, 80-2112 and 80-2113.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Rehearings Denied Dec. 29, 1982.

      Roy R. Watson of Adams, Coogler, Watson & Smith, West Palm Beach, for appellant, Travelers Ins. Co.
    Joe N. Unger, Law Offices of Joe N. Unger, P.A., Miami, and Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellant, United States Fire Ins. Co.
    Montgomery, Lytal, Reiter, Denney & Searcy, and Larry Klein, West Palm Beach, for appellees, Agnes Jones, and Robert Jones, her husband.
   BERANEK, Judge.

This opinion deals with three separate appeals involving a complex insurance coverage liability dispute. At the root of this dispute is an automobile accident involving appellee, Agnes Jones, and Mario Torres, who is not a party to this action. It is uncontested that Mrs. Jones was seriously injured as a result of the collision and that Torres was responsible. The car Torres was driving was owned by his father-in-law, Efraim Jimenez, an insured of appellant, Travelers Insurance Company. As a permissive user of the Jimenez vehicle, Torres was an additional insured under the Travelers policy which had a $10,000 limit. Torres also had his own insurance policy with limits of $10,000 which had been issued by appellant, United States Fire Insurance Company, under the Florida Assigned Risk plan.

Travelers was promptly notified of the accident by Jimenez and, following an investigation, determined that liability was clear and the claim had a value of at least the $10,000 policy limit. Thereafter, Agnes Jones and her husband, Robert Jones, filed suit against Jimenez, Torres, and Travelers, but service was not immediately perfected on Torres. Travelers recognized Torres as a potential insured under its policy and unsuccessfully attempted to locate him. Following service on Jimenez and his carrier, Travelers agreed to pay the policy limits to Mr. and Mrs. Jones. The Joneses executed a written release of Jimenez and Travelers but advised Travelers that they did not want to release Torres since they had not been able to ascertain whether he had separate coverage. Travelers settled on behalf of its insured, Jimenez, but at that time took no further steps as to Torres.

Several months after the settlement, but before Travelers was dismissed from the suit, the Joneses obtained service on Torres. He turned the suit papers over to the Fras-es Insurance Agency where he had obtained his United States Fire policy. Unfortunately the agency negligently failed to forward these papers to United States Fire. Of course, the Torres set of suit papers also failed to reach Travelers Insurance Company. Consequently, a default was entered against Torres and, pursuant thereto, a jury trial was conducted as to damages which resulted in a $200,000 judgment against Torres. Although Travelers was still a party to the suit, the motion for default against Torres was not served on Travelers. Travelers never filed an answer in the case despite the fact it was served with process. Counsel for Jones had given Travelers an oral unlimited extension of time. After default was entered against Torres, Jones filed a motion to dismiss Jimenez and Travelers reciting the case had been settled with them. Even the motion to dismiss Travelers was not served on Travelers. Eventually the case was tried with notice to no defendant. Torres had no assets and assigned to the Joneses whatever cause of action he might have against United States Fire and Travelers and the insurance agent and agency. Based on this assignment, the Joneses instituted the instant suit against United States Fire, the Frases Insurance Agency, and its agent, Jose Balido. United States Fire then sued Travelers as a third party defendant and the Joneses thereafter joined Travelers as a direct defendant.

The theory of liability against Travelers was bad faith in that Travelers allegedly failed to exercise skill, care, and good faith to defend and protect Torres. Specifically, the complaint alleged that Travelers had notice of both the accident and the suit filed against Torres. Nevertheless, Travelers agreed to a release which did not protect Torres in any way. Travelers had learned that Torres did not read or speak English and should have known, therefore, that Torres would not understand his rights under the Travelers policy, or any legal papers which might be served on him. The major point was that Travelers’ attempts at locating Torres were unsuccessful due to negligence and poor claims procedures.

The liability of United States Fire was based on breach of its obligation to indemnify Torres for damages awarded to the Joneses and breach of the contract of insurance by failing to provide Torres with a defense to the suit. It was asserted that the insurance agency had apparent authority as the carrier’s agent. Substantial evidence was presented on this point and the jury’s finding of apparent agency is not questioned on appeal.

The Frases Insurance Agency and Balido were alleged to be negligent in failing to advise United States Fire of the accident and failing to forward the summons and complaint which had been served on Torres and delivered by him to the agency. The agency and individual agent did not answer and were defaulted.

Travelers raised the defense that Torres had failed to comply with the conditions of the insurance policy in that he did not immediately notify Travelers and that he further failed to forward the summons and other process served on him. Similarly, United States Fire asserted as an affirmative defense Torres’ failure to promptly report the accident in accordance with the provisions of the policy. Moreover, United States Fire defended by pointing to Travelers’ failure to protect Torres’ interests, to provide him with a defense, and to include him in the release secured by Travelers. Finally, United States Fire claimed that since Torres was an assigned risk and, as such, had applied for insurance through the Frases Insurance Agency, Balido and Fras-es were agents only of Torres and not of United States Fire. The factual issues of agency and apparent authority were tried and determined adversely to United States Fire.

After Balido and the Frases Agency defaulted, the suit against the two insurance companies proceeded to a jury trial. Following trial, the jury returned a verdict jointly against Travelers and United States Fire for the sum of $245,294.80. A judgment for $245,294.80 was entered against all defendants, and cross-claims by Travelers and United States Fire against Frases and Balido were granted for the full amount of the judgment. Post-judgment proceedings resulted in cross-claims by Travelers and United States Fire against each other for contribution being granted to the extent of one-half of the plaintiffs’ total recovery, including plaintiffs’ costs and attorneys’ fees.

On appeal, Travelers argues that the trial court should have directed a verdict in its favor or, alternatively, should have entered judgment notwithstanding the verdict since Travelers never refused to defend Torres or to settle on his behalf, never had the opportunity to settle for him, and never put its own interests above those of its insured. Travelers does not, however, raise any argument in its brief with respect to the post-judgment determination on the contribution cross-claims between the two carriers. United States Fire raises three points on its appeal. First, it claims the trial court erred in refusing to set aside the jury determination of its liability since Torres failed to give notice of the accident as soon as practicable and such failure materially prejudiced the rights of the insurer. Next, it cites error in the trial court’s refusal to find that United States Fire, under its excess clause, had a cause of action in equitable subrogation against Travelers for breach of the latter’s duty of good faith to its insured for the full amount of plaintiffs’ recovery. Finally, United States Fire separately appeals the trial court’s order requiring it to pay one-half of plaintiffs’ attorneys’ fees.

As the matter now stands, the Joneses have a judgment for $200,000 against Torres who has assigned to them his rights against his own carriers for their negligence, bad faith, and failure to defend and settle on his behalf. Pursuant to this assignment, the Joneses secured judgments for $245,294.80, plus their costs and attorneys’ fees against United States Fire, Travelers, and the defaulted insurance agency and agent. The carriers, in turn, have indemnity judgments against the agency and agent. United States Fire and Travelers also have judgments against each other for contribution equal to one-half of the plaintiffs’ $245,294.80, plus costs and fees, judgment.

We first turn our attention to Travelers’ appeal. Travelers had knowledge of the suit filed against Torres even before Torres did. Although service had not been effected on Torres, he was named in the suit papers served on Jimenez and Travelers. Jimenez was a passenger in his own ear which was being driven by Torres who was clearly at fault in the accident which resulted in a substantial injury to Mrs. Jones. Despite this knowledge, Travelers’ efforts to contact Torres were, at best, feeble. This failure to locate was the major factual matter asserted in the plaintiffs’ case against Travelers.

The most recent relevant decision of the Florida Supreme Court on bad faith is Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla.1980), in which the Court stated as follows:

The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery would do so.... [Citations omitted.] Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. [Citations omitted.] .. . The question of failure to act in good faith with due regard for the interest of the insured is for the jury. [Citations omitted.]

Further, in American Fire & Casualty Company v. Collura, 163 So.2d 784 (Fla. 2d DCA 1964), the district court held that the company must show that it exercised diligence and good faith in bringing about the cooperation of the insured. Basically, it is the position of the Joneses that Travelers’ failure to find Mr. Torres was a sufficient basis on which the jury could conclude that the carrier was guilty of bad faith. The Florida Standard Jury Instruction (MI 3.1) provides in part:

An insurer acts in bad faith in failing to settle a claim within its policy limits, when, under all circumstances, it could and should have done so had it acted fairly and honestly toward its insured with due regard for its interests.

The problem in this case is that Travelers really never had an opportunity to settle on behalf of its insured, Torres, after he was served with process. The unfortunate circumstance of having the suit papers misplaced by the United States Fire agent cannot be held against Travelers. Had these suit papers been delivered to Travelers after service on Torres via United States Fire, we must assume Travelers would have complied with its contractual duty. The problem here and the crux of the plaintiffs’ case is that Travelers did not locate Torres. Indeed, the trial court specifically instructed the jury as follows:

Now, in order for Travelers’ obligation to Mr. Torres to be relieved by the failure of Mr. Torres himself to deliver the suit papers, you must find that the lack of cooperation was material, that Travelers would have been substantially prejudiced in the defense of the claim, that Travelers had complied in good faith with the terms of the policy and that Travelers exercised diligence and good faith by making an adequate effort to locate and bring about the cooperation of Mr. Torres. (T 920, 921, 922.) (Emphasis added.)

We disagree with the trial court that proof that Travelers was negligent in failing to locate Mr. Torres constituted a bad faith refusal to defend entailing liability for the excess judgment. Florida law has yet to place a duty to find an insured on the same level with the duty to settle the case when the opportunity is presented. Here plaintiffs would require that Travelers locate Torres and lead him by the hand through the entire suit. We decline to broaden the law to this extent. We recognize the presence of substantial opinion testimony from persons in the insurance industry that Travelers’ poor claims practice constituted bad faith. One of these witnesses opined that Travelers should have gotten a side agreement with the Joneses’ lawyer that Travelers would be notified if the case proceeded against Torres. The problem with this opinion evidence is that it assumes the existence of a duty to locate Torres. We further note that Travelers had every right to assume it would receive notice of the plaintiffs’ formal motion for a default against Torres. After all, Travelers was still a party defendant in the case when Torres was finally served. We conclude the trial court erred in failing to grant a directed verdict on behalf of Travelers because the proof simply failed to demonstrate the existence of a duty and a breach of that duty under the circumstances. We thus reverse the plaintiffs’ judgment against Travelers. In short, even negligent and unsuccessful attempts by a carrier to locate an unserved omnibus insured do not subject the carrier to liability for bad faith when that insured is later served and the papers are lost by the insured or his own agent.

Appellant, United States Fire, initially urges the trial court should have overturned the jury’s finding of liability because Torres admittedly failed to report the accident and this failure constituted a breach of the cooperation clause of the policy as a matter of law. In advancing this argument, United States Fire concedes that the defense of lack of notice and other breaches of a cooperation clause by an insured require a showing of substantial prejudice to the rights of the insurer. As stated in Ramos v. Northwestern Mutual Insurance Company, 336 So.2d 71, 75 (Fla.1976), at page 75:

Not every failure to cooperate will release the insurance company. Only that failure which constitutes a material breach and substantially prejudices the rights of the insurer in defense of the cause will release the insurer of its obligation to pay. The question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, it may well be a question of law. (Citations omitted.)

In the instant case, there was evidence presented on the question of whether United States Fire was prejudiced by the insured’s failure to give timely notice. Further, the jury was instructed on this as a factual issue. United States Fire asserts on appeal that it never got the chance to settle the case because its policyholder gave late notice. This argument totally fails to recognize that United States Fire’s agent simply failed to forward the suit papers for defense and that United States Fire is thus responsible for allowing a default to be taken against Mr. Torres. Indeed, even at that point, United States Fire did not defend Mr. Torres in the eventual jury trial on damages. United States Fire urges that had it been notified of the incident, it “undoubtedly” would have offered its policy limits to the Joneses who would have accepted them. This is rather a hollow boast in light of the total failure to take any action after delivery of the suit papers. At the very least, the question of substantial prejudice occurring as a result of late notice to the carrier was one for the jury to decide. Here, the accident was thoroughly investigated by Travelers and there has apparently never been any doubt as to both liability and damages in excess of the limits in both policies.

The second argument advanced by United States Fire is that the trial court erred in failing to recognize a cause of action in equitable subrogation for a 100% recovery against Travelers. The trial court summarized the respective positions of the two carriers on their cross-claims against each other as follows:

The essence of the Defendant TRAVELERS’ claim for contribution against UNITED STATES FIRE is that if Defendant UNITED STATES FIRE had defended MARIO TORRES when UNITED STATES FIRE’s agent (by virtue of the Jury’s Verdict) had received the suit papers, the Plaintiffs’ cause of action would not exist, and consequently, that Defendant UNITED STATES FIRE should bear the burden of the Judgment in this case. On the other hand, the essence of Defendant UNITED STATES FIRE’s claim for contribution against TRAVELERS is that had TRAVELERS not acted in bad faith by failing to find MARIO TORRES and protect him by putting his name on the Release they obtained, there would never had [sic] been any suit papers to deliver, and therefore, TRAVELERS should bear the entire burden of the Judgment.

The trial court concluded that the equities of the case warranted judgment in favor of each carrier for one-half of the total judgment. Under our prior ruling which exonerates Travelers from liability on the plaintiffs’ claim of bad faith, Travelers should not have been held responsible to United States Fire on the theory of equitable sub-rogation. We conclude that United States Fire’s complete and total disregard of suit

papers delivered to it, coupled with the subsequent entry of a default judgment against the insured and the later uncontested trial of damages against that insured, is certainly sufficient reason to warrant imposition of liability against United States Fire herein and to deny this carrier a claimed recovery of 100 per cent on its asserted theory of equitable subrogation. Clearly, if United States Fire had defended its insured, Torres, the $200,000 default judgment would never have been entered. Under the prior ruling herein, United States Fire certainly had no claim against Travelers for 100 percent of the judgment based on equitable subrogation.

The last point raised by United States Fire relates to attorneys’ fees awarded in favor of appellees’ counsel. The only argument stated in the brief is that attorneys’ fees were not authorized by Section 627.428, Florida Statutes (1979). The claim for attorneys’ fees involved here was apparently assigned by the insured policyholder, Torres, to the plaintiffs, Mr. and Mrs. Jones. We see no reason why Torres would not have been allowed to recover his own attorneys’ fees in securing coverage under his policy with United States Fire. See Nationwide Mutual Insurance Company v. McNulty, 229 So.2d 585 (Fla.1969). Further, we can see no reason why the Torres claim for attorneys’ fees was not assignable. We thus conclude that error has not been demonstrated in this regard.

The judgments below are affirmed in part and reversed in part and the matter remanded for further proceedings in accordance with this opinion.

Affirmed in part, Reversed in Part and Remanded.

HERSEY and DELL, JJ., concur.

      . The judgment on the crossclaims states:
      United States Fire Insurance Company and Travelers Insurance Company shall each be entitled to recover from the other any portion of the judgment it pays to the plaintiffs ... which exceeds one half of the total Judgments entered in this action.

      . No party presents any issue on appeal relating to the claims against the agent or agency.

      . There was substantial evidence that the Jones tort case could have been settled if an additional $10,000 had been offered by United States Fire Insurance Company.


author: PER CURIAM. PER CURIAM.

text:
    UTICA MUTUAL INSURANCE CO., Appellant, v. Woodrow KANTNER, Woodrow Kantner, Inc., Vatland-Oldsmobile-Pontiac-GMC, Inc., a Florida corporation, Utica Mutual Insurance Company, Crawford & Company, and Joe Gallagher, Appellees.
    No. 82-596.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Rehearings Denied in Part and Granted in Part Dec. 29, 1982.
    Ronald S. Fanaro of Bernard F. Grail, Jr., P.A., Vero Beach, for appellant.
    Don Brodbeck of MacMillan, Coutant & Brodbeck, Stuart, for appellees Woodrow Kantner and Woodrow Kantner, Inc.
   PER CURIAM.

This is an appeal from a final judgment awarding the appellee, Woodrow Kantner, damages against his insurance company, the appellant, for the full amount available under his coverage for fire damage to his vehicle, a customized van. On appeal appellant contends that there was insufficient evidence to support the findings of the trial court regarding the cause and extent of the damage to the vehicle. As we have noted on numerous occasions we are not empowered to substitute our judgment for that of the trial court, even if our review of the record suggests that we might have come to a different conclusion. Elmore v. Enterprise Developers, Inc., 418 So.2d 1078 (Fla. 4th DCA 1982). There is' some evidence in the record which, considered in a light more favorable to the appellee, indicates that the damage to the vehicle exceeded the amount of the coverage. Under these circumstances we are unable to conclude that the judgment is not supported by competent, substantial evidence.

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD, HERSEY and WALDEN, JJ., concur.

ON REHEARING

PER CURIAM.

We deny the petition for rehearing filed by appellant. We grant the request of ap-pellees on rehearing to delete footnote 1 of the opinion of November 24, 1982. Although we note that the appellees alleged in the trial court that they had tendered ownership of the van to appellant in exchange for full payment of the policy and also suggested at trial that appellant should be directed to make full payment under the policy and “At that point Utica would own the van”, we agree that ownership of the van after payment of the insurance coverage was not an issue on appeal. We adhere to the opinion of November 24, 1982 except for withdrawing footnote 1.

ANSTEAD, HERSEY and WALDEN, JJ., concur.