author: PER CURIAM. PER CURIAM.

text:
    Eduardo CASO and Eduardo Caso House of Shoes, Inc., d/b/a Eduardo Caso, Appellants, v. STANLEY NELSON, INC., Appellee.
    No. 80-1505.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Rehearings Denied Oct. 6 and Nov. 22, 1982.

      Hoadley & Gavigan, P. A., and Edna L. Caruso, West Palm Beach, for appellants.
    Cone, Wagner, Nugent, Johnson, Hazouri & Roth, and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the record we are of the view that the trial court erred in setting aside the verdict of the jury in favor of the appellants, lessees in this landlord and tenant dispute.

After a dispute arose as to the timeliness of payments due by the tenant, Eduardo Caso, Caso vacated the premises. When the landlord, Stanley Nelson, Inc., sued for breach of lease, Caso counterclaimed alleging that the landlord had breached the lease and had constructively evicted him from the premises. The jury returned a verdict for the tenant. Subsequently, the trial court set aside the verdict on the grounds that there was no evidence that the landlord breached the lease or constructively evicted the tenant.

There was evidence presented at trial indicating that the tenant did not timely make a payment under the lease which provided for payment of a percentage of the tenant’s gross sales in his shoe business in addition to the usual periodic lease payments. However, there was also evidence that the landlord indicated to the tenant that this default would be waived if the tenant made the payment by a date certain and that the tenant immediately mailed the payment to the landlord several days before the date certain. The landlord, however, contrary to the agreement to extend the date and before the date certain arrived, advised the tenant that he was in breach of the lease and that a new lease, at a rate substantially in excess of the rate provided in the existing lease, would have to be executed. The landlord also refused to accept the next timely periodic lease payment tendered by the tenant. Finally, the tenant overheard a conversation in which the principal of the landlord stated that the tenant would be locked out of the premises the next morning. In anticipation of being locked out the tenant vacated the premises.

Of course, all of this evidence was substantially disputed by the landlord. However, the trial court was obligated to construe the evidence most strongly in favor of the tenant when considering the landlord’s motion for directed verdict, and direct a verdict only in the complete absence of evidence to support the tenant’s case. Sun Life Insurance v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976). We believe this evidence is sufficient to support a claim of constructive eviction and breach of the lease. Ruotol Corp., N.W., Inc. v. Ottati, 391 So.2d 308 (Fla. 4th DCA 1980). Under this evidence the jury was entitled to conclude that the landlord, after first agreeing to accept the late payment, changed his mind and decided to use the situation to coerce the tenant into executing a lease at a much higher rate. The landlord’s refusal to accept the subsequent monthly payment may be construed as further evidence of this intent. The landlord’s express statement that the tenant was to be locked out the next day only served to confirm the tenant’s belief that he was being coerced into either executing a new lease or getting out. Under these circumstances we do not believe the jury would have erred in concluding that the tenant was constructively evicted from the premises.

We also believe there was adequate evidence presented to sustain the jury’s award of damages. The landlord complains that the lease was with the tenant individually while the tenant’s corporation operated the business on the premises. The tenant leased the space to operate a shoe business. Indeed, a portion of the rent was based on the sales in the shoe business. Under these circumstances we do not believe the tenant was foreclosed from establishing damages to the business despite the fact that the tenant operated the business in a corporate form. Indeed, the landlord, in its pretrial statement listed the nature of the landlord’s relationship with the tenant and the tenant’s corporation as factual issues to be tried by the jury. The landlord listed one issue as being whether the landlord “conducted business with the two defendants as one entity without differentiation.” There is substantial evidence that the landlord did so conduct business and is now estopped to complain.

Accordingly, we reverse the order of the trial court setting aside the jury verdict and granting a new trial to the appellee and remand with instructions to reinstate the jury verdict and enter judgment thereon.

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.

OPINION ON REHEARING

PER CURIAM.

We agree with the appellee that this cause should be remanded for a new trial solely on the issue of appellants’ damages rather than for reinstatement of the damage award returned by the jury. Accordingly, we modify our opinion of August 11, 1982 to the extent that we remand this cause for retrial solely on the issue of the damages incurred by appellants as a consequence of appellee’s breach of lease. With the exception of our determination that the damages issue must be retried, the jury verdict determining appellee’s liability to the appellants is reinstated. In all other respects the appellee’s motion for rehearing is denied.

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    AMERICAN INDEMNITY COMPANY, et al., Appellants, v. George COMEAU, Appellee.
    No. 82-47.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Rehearing Denied Sept. 22, 1982.

      Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
    James A. Scott, Jr., of Sylvan A. Wells, P. A., Daytona Beach, for appellee.
   COWART, Judge.

In a suit by the appellee insured on uninsured motorist coverage, appellant insurance company invoked an arbitration clause in the policy. The arbitrators awarded the insured damages. The trial court confirmed the award and entered final judgment for damages plus $1,047.50 costs. The insurance company appeals the cost award, contending that a provision of the insurance policy arbitration clause that “each party will pay the expenses it incurs, and bear the expenses of the third arbitrator equally” amounts to the arbitration agreement’s “providing otherwise” within the meaning of section 682.11, Florida Statutes (1982):

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpires’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

We cannot agree with appellant. Costs may always be taxed by the court against an insurance company in arbitration concerning uninsured motorist coverage. Since statutorily mandated uninsured motorist coverage is statutorily described, to the extent that any insurance policy provision attempts to limit or substract from statutory coverage, such provision is void. Therefore, a provision in any arbitration clause of an insurance policy providing uninsured motorist coverage requiring each party to bear his own costs is an invalid attempt to reduce statutory coverage.

Appellant also contends that, since costs were not “provided in the award,” the trial court could not award costs except by a timely petition to modify the arbitration award under section 682.14, Florida Statute (1982). The cases cited by appellant hold that only where a party seeks an award of arbitrator’s fees, the award of such fees must be made in the award itself or after a timely petition to modify the award.

Section 682.15, Florida Statutes (1982), provides in part:

Costs of the application [for arbitration] and of the proceedings subsequent thereto, and disbursements may be awarded by the court, (emphasis added)

The insured was entitled to an award of fees and properly sought them procedurally by a motion to tax costs.

Appellant also argues that the award of costs erroneously includes an award of $875 as an expert witness fee to Dr. Newfield which was made without evidence or stipulation as to the reasonableness of that amount. If no specific objection to the setting of an expert witness fee without an evidentiary hearing is made, the trial judge has the authority to set the amount of the expert witness fee based upon his experience in those matters together with his observation of the witness’ testimony or his review of the record. Where objection has been made, as in the instant case, the prevailing party must present testimony concerning the necessity and reasonableness of the fee. Lafferty v. Lafferty, 413 So.2d 170, 171 (Fla. 2d DCA 1982).

Accordingly, the judgment is affirmed except as to the award of the expert witness fee, which item is stricken from the cost judgment, and the cause is remanded with directions to the trial court to give appellee an evidentiary hearing and both parties an opportunity to present evidence as to the reasonableness of that item.

AFFIRMED in part; REVERSED in part.

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

      . See Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971); Reeves v. Miller, 418 So.2d 1050 (Fla. 5th DCA 1982); Harbach v. New Hampshire Ins. Group, 413 So.2d 1216 (Fla. 4th DCA 1982).

      . State Farm Mut. Auto. Ins. Co. v. Rutkin, 199 So.2d 705 (Fla.1967); Lumbermen’s Mut. Cas. Co. v. Meade, 404 So.2d 1141 (Fla. 5th DCA 1981); Fidelity & Cas. Co. of New York v. DeJesus, 402 So.2d 15 (Fla. 3d DCA 1981); Eagle Star Ins. Co. v. Parker, 365 So.2d 780 (Fla. 4th DCA 1978); McNair v. Continental Ins. Co., 245 So.2d 634 (Fla. 1st DCA 1971); Carter v. State Farm Mut. Auto. Ins. Co., 224 So.2d 802 (Fla. 1st DCA 1969).

      . Rutkin v. State Farm Mut. Auto. Ins. Co., 195 So.2d 221 (Fla.App.); Lumbermen’s Mut. Cas. Co. v. Meade, 404 So.2d at 1143.

      . See Neimark v. Abramson, 403 So.2d 1057 (Fla. 3d DCA 1981); Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981); Boyette v. Carden, 347 So.2d 759 (Fla. 1st DCA 1977).


author: WENTWORTH, Judge.

text:
    RAY ROOFING CO., INC. and Risk Management Services, Inc., Appellants, v. Daniel YOUNG, Appellee.
    No. AH-280.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    Rehearing Denied Oct. 5, 1982.

      David A. Danielson of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.
    Walter E. Beisler, West Palm Beach, for appellee.
   WENTWORTH, Judge.

Employer/earrier appeal a workers’ compensation order which determined that claimant sustained a compensable injury. The order further reserves jurisdiction “to consider all other issues pertaining to payment of benefits to the claimant as a result of his compensable accident.” The record on appeal establishes that various pending issues, including entitlement to temporary total disability benefits and computation of average weekly wage and compensation rate, have been reserved for the deputy’s ultimate adjudication and are as yet unresolved. In these circumstances the order appealed is a non-final interim order. See Town of Palm Beach v. Watts, Case No. AG—291 (Fla. 1st DCA, June 18, 1982). This court’s jurisdiction does not include appeals from nonfinal orders of a deputy commissioner. See The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982). No circumstances appear to be present in this case to. warrant our exercise of certiorari jurisdiction.

Since this court is without jurisdiction to review the contested order, the appeal is accordingly dismissed. Such dismissal is without prejudice to the parties’ ability to obtain review of the issue in question by timely appeal from a final order.

BOOTH and WIGGINTON, JJ., concur.

      . While the order appealed makes no express award of any specific benefit, at the commencement of the hearing counsel for employer/carrier indicated that medical benefits would not require adjudication and would be handled administratively “in the event of com-pensability.” In these circumstances the deputy’s finding of compensability has the ultimate effect of awarding such benefits, and we therefore do not consider that the absence of an express award of benefits would make the order interlocutory if it could otherwise be regarded as disposing of all matured issues in controversy between the parties on the claim.


author: FRANK D. UPCHURCH, Jr., Judge. DAUKSCH, Judge,

text:
    James E. WILSON, Jr., Petitioner, v. E. L. EASTMOORE, as Circuit Judge of Putnam County, Florida, and the State of Florida, Respondents.
    No. 82-762.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.
    Rehearing Denied Sept. 27, 1982.

      John W. Tanner, P. A., Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

This is a petition for writ of prohibition directed to the trial judge to prevent petitioner’s retrial as ordered by Judge Susan Black of the United States District Court for the Middle District of Florida.

This story began when petitioner was charged with battery upon a law enforcement officer. He went- to trial for that crime and was convicted of assault upon a law enforcement officer.

Upon appeal, this court held that it was error for the trial judge to have instructed the jury regarding the crime of assault on a law enforcement officer. However, as counsel for the petitioner had failed to make a proper specific objection as required by Florida Rule of Criminal Procedure 3.390(d), we affirmed the conviction. Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980). The evidence at trial apparently supported the assault verdict and judgment. The fact that the information did not allege all of the elements of the assault charge was deemed not fundamental error and the failure of counsel to specifically object waived the defect and the error.

The United States District Court disagreed with this court. In the order granting the petition for writ of habeas corpus, the federal court adopted a magistrate’s report which declared that “the record supports the finding that a timely and sufficient objection was interposed to the proposed assault instruction.” The court then vacated the conviction and ordered that the petitioner be retried. Wilson v. Pellicer, Case No. 81-119 (M.D.Fla. March 24, 1982).

We totally agree with the comments and reasoning of Judge Dauksch in hi's dissent, but we are not inclined to stand in the schoolhouse door to challenge the authority and determination of the federal court. While we bow to its authority and accept its order, we feel bound to accept the entire order including the requirement of retrial. We cannot reject one part any more than we can reject the entire order; however, we shall observe that, in our opinion, the federal court has, in effect, become an intermediate appellate court interposing itself within a state’s appellate process. If all state criminal appellate decisions are to be subject to appellate review by the federal district courts, the citizens of this state could realize a substantial savings in time and money by eliminating criminal appellate jurisdiction now vested in the district courts of appeal and the Florida Supreme Court and by providing an expeditious, direct appeal to the federal district courts.

Writ of Prohibition DENIED.

COBB, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

Somehow finding federal jurisdiction in this case, the District Court for the Middle District of Florida has ordered that petitioner be retried for a crime for which he has been previously acquitted. Although the Federal Constitution in Article V of the Articles in Amendment to that Constitution guarantees that no “person be subject for the same offence to be twice put in jeopardy of life or limb” the federal district court took jurisdiction where I think it should not and where, if the state of Florida had pursued its available remedies, the appellate court most certainly would have said it could not. We are apparently too timid to grant the relief requested by the petition, demanded by the law and compelled by logic. In so doing we are overlooking what the federal court overlooked and are compounding the error by violating our own state constitution which declares in Article I, Section 9 that no person shall “. .. be twice put in jeopardy for the same offense .. .. ”

This story began when petitioner was charged with battery upon a law enforcement officer. He went to trial for that crime and was convicted of assault upon a law enforcement officer. Assault of a law enforcement officer is not a lesser included offense under the charge of battery of a law enforcement officer unless the information charging the accused alleges the elements of an assault, as well as the battery, and the evidence supports the assault allegations.

When this case first came to this court in Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980), we held that it was error for the trial judge to have instructed the jury regarding the crime of assault on a law enforcement officer but that counsel for the accused (petitioner here) had failed to make a proper specific objection as required by Florida Rule of Criminal Procedure 3.390(d) and thus affirmed the conviction. The evidence at trial apparently supported the assault verdict and judgment. The fact that the information did not allege all of the elements of the assault charge was deemed not fundamental error and the failure of counsel to specifically object waived the defect and the error.

The United States District Court disagreed with this court and said in an “Order Granting Petition for Writ of Habeas Corpus” that the judge agreed with a Magistrate’s Report which declared “.. . the record supports the finding that a timely and sufficient objection was interposed to the proposed assault instruction.”

The United States District Court then “vacated and set aside” the conviction and ordered that petitioner be retried. Therein lies the rub — -retried for what?

Can he be retried for battery of a law enforcement officer? No, because the jury acquitted the petitioner of that crime when it found the petitioner guilty of only assault when it was given the chance to convict for the higher crime of battery. The information charged battery, the judge instructed on battery and the jury had a verdict form for battery. It chose to follow the assault instruction and returned its verdict of guilty of assault. So, he cannot be tried again for a crime of which he was acquitted.

Can he be “retried” for “assault of a law enforcement officer?” Obviously not because he has not been charged with that crime — so says the United States District Court:

Assault is a separate and distinct offense from the battery alleged. The essential elements of each differ under Florida. The elements of assault were not alleged in the information charging Petitioner with battery of a law enforcement officer.

Because petitioner cannot be retried for a crime of which he has been acquitted and because he cannot be “retried” for a crime not charged, I would issue the Writ and prevent the trial. If I could, I would transfer the case to the United States District Court for clarification.


author: PER CURIAM.

text:
    Jose L. MEZQUITA, Appellant, v. FLORIDA STEEL CORPORATION and Hartford Insurance Company, Appellees.
    No. AD-251.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Oct. 7, 1982.

      Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellant.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee, Florida Steel Corp.
    No appearance for appellee, Hartford Ins. Co.
   PER CURIAM.

This cause is before us on appeal by the claimant from a workers’ compensation order awarding temporary total and permanent partial disability benefits, payment of certain medical bills to Dr. Turke incurred prior to July 23, 1976, attorney’s fees and costs. Although claimant correctly contends that the deputy erred in relying on an alleged letter of deauthorization which was never admitted into evidence, see, e.g., City of Hallandale v. Jones, IRC Order 2-3440 (1978), we affirm the denial of payment of Dr. Turke’s bills subsequent to July 23, 1976, as there is no evidence in the record showing that Dr. Turke was ever authorized, and claimant was offered alternative medical treatment. See Delta Airlines v. Underwood, 406 So.2d 1188 (Fla. 1st DCA 1981).

Claimant also urges that the deputy erred in failing to adjudicate the issue of claimant’s entitlement to interest and penalties, when such benefits were claimed in the pre-trial stipulation. The order is entirely silent on this issue. However, as the record reveals that the omission was never raised before the deputy within the time available for correction, we affirm. Section 440.25(4)(a), Florida Statutes; Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Genuine Parts Company v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.

      . The employer/carrier chose not to file a cross-appeal as pertains to the award of medical payments to Dr. Turke prior to July 23, 1976. Its failure to do so, however, did not preclude it from advancing reasons different than those given by the deputy to support that portion of the order appealed.


author: BASKIN, Judge.

text:
    FLORIDA KEYS AQUEDUCT AUTHORITY, Appellant, v. Joelsa STEADMAN, Appellee.
    No. 81-222.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Rehearing Denied Oct. 11, 1982.
    Henry Arroyo, West Palm Beach, Hogg, Allen, Ryce, Norton, & Blue and James M. Blue and Paul Platte, Tampa, for appellant.
    Albury, Morgan & Hendrick and Robert P. Duffy, Key West, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Asserting that the abolition of appellee Steadman’s job constituted a layoff rather than a discharge, see Hudson Mohair Co., 11 Lab.Arb. (1948) (Healy, Arb.), the Florida Keys Aqueduct Authority seeks to overturn an order of the Monroe County Career Service Council. The Council decided that ap-pellee’s termination from her employment constituted a discharge and ordered the Authority to reinstate her with back pay and benefits. We reverse upon our holding that the proceedings before the Council involved abolition of a job classification and the evidence was insufficient to support the Council’s finding that Steadman’s job function had not been abolished.

The Career Service Council is empowered to hear appeals pertaining to suspension, discharge, reduction in pay, and demotion. Ch. 69-1321, § 4, Laws of Fla.; Monroe County Career Service Council Rules, Art. Ill, § 2. Since appellee was not the subject of a disciplinary action resulting in suspension, discharge, reduction in pay, or demotion, but was laid off when her payroll clerk position was replaced by a computer, she remains subject to recall if needed.

Section 447.209, Florida Statutes (1979) provides that management may relieve employees from duty when there is a lack of work. See also National Biscuit Co., 55 Lab.Arb. 312 (1970) (Blair, Arb.); Combustion Engineering, Inc., 46 Lab.Arb. 289 (1966) (Murphy, Arb.). Appellee’s limited duties were reassigned to other employees, to be performed in addition to their regular tasks. Those duties are completed in a few hours each week. There was no evidence that the Authority acted arbitrarily or from impermissible motives in reorganizing ap-pellee’s department. See Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977), cert. denied, 355 So.2d 515 (Fla.1978). Furthermore, appellee was advised at the time she took the position of payroll clerk that the Authority intended to phase out her position in the near future.

According to chapter 69-1321, Laws of Florida, as amended by chapter 76-439, Laws of Florida, actions of the Career Service Council are reviewable when a decision does not conform to existing statutes or rules or is not based on substantial evidence. Applying that standard, we hold that the order of the Career Service Council must be reversed.

Reversed.


text:
    QUAYSIDE ASSOCIATES, LTD., Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, INC., Appellee.
    Nos. 81-1333, 81-1334.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Rehearing Denied Oct. 15, 1982.
    Lapidus & Stettin and Richard Lapidus, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ. and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This appeal is from a Final Summary Judgment entered on a petition for declaratory decree determining that appellant is liable to indemnify appellee pursuant to terms of a settlement agreement. We reverse.

• As part of an agreement terminating litigation between the parties Quayside gave Harbour Club Villas Condominium Association, Inc. (Villas) $3,000,000.00 and an indemnification agreement which provided:

Quayside shall indemnify, defend and save harmless Villas and all the Unit owners of Villas from any and all claims, damages, judgments, actions, losses, costs, penalties, liabilities, and/or expenses without limitation (including attorneys’ fees whether incurred in the course of primary or appellate litigation or settlement or otherwise) arising or sustained in any manner and for any reason whatsoever against Villas in connection with or as a result of the payment and receipt of the $3,000,000.00 or against Quayside in connection with the enforcement of this Agreement. . . .

The attorney for Villas who had been paid $3,500.00, by contract, for representing Villas in litigation which preceded the settlement (and who did not participate in the settlement negotiations) brought suit against Villas for additional fees. Villas contends that the additional fees demanded by the attorney is a claim covered by the indemnification agreement. Quayside contends that it had been specifically agreed prior to implementation of the agreement that Villas’ attorneys fees would not be covered by the agreement. The parties petitioned the court for a declaratory judgment and each filed a motion for summary judgment. The trial court entered judgment for Villas on a finding that the settlement agreement, exclusive of parol evidence, was clear and unambiguous.

What is clear to us is that it is unclear whether the demand for additional fees made against Villas for services rendered to it by its attorney prior to the settlement agreement (and paid for) is a claim arising or sustained against Villas in connection with or as a result of the payment and receipt of the $3,000,000.00. The construction of a contract is ordinarily a question of law and belongs to the courts provided that the terms used are unequivocal, clear, undisputed and not subject to conflicting inferences. Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952). Where, as here, the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented which cannot properly be resolved by summary judgment. Goldbloom v. J. I. Kislak Mortgage Co., 408 So.2d 748 (Fla. 3d DCA 1982); Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979).

Summary judgment is reversed and the cause is remanded for further consistent proceedings.


author: ORFINGER, Chief Judge.

text:
    Samuel Thomas DOUGHERTY, Jr., Appellant, v. HERNANDO COUNTY, Auto Owners Insurance Company and State of Florida, Department of Transportation, Appellees.
    No. 81-796.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 20, 1982.

      Edwin J. Bradley of Lloyd, Henniger & Bradley, P. A., St. Petersburg, for appellant.
    Bruce A. Walkley of McClain, Walkley & Stuart, P. A., Tampa, for appellee Hernan-do.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal and Banker, P. A., Tampa, for appellee State of Florida.
   ORFINGER, Chief Judge.

Plaintiff below appeals from an adverse summary final judgment entered in his action for damages caused by personal injuries. We affirm.

Plaintiff was injured when he dove from a bridge into the Weeki Wachee River. The bridge is a part of SR-595, and crosses the river near a recreation area known as Rogers Park. Viewed in the light most favorable to the plaintiff as the non-moving party in the summary judgment proceeding, the record reveals the facts which follow.

Rogers Park is a recreation area owned and maintained by either or both of the defendants for use by the public. It is located on the Weeki Wachee River at or near where Highway 595 crosses it. The bridge over the river is either a part of the highway or a part of the park, and as such is also owned or maintained by one or both of the defendants.

On the day of the accident, the eighteen-year-old plaintiff and a friend drove to the river to go swimming. Plaintiff had been swimming at Rogers Park many times over the previous eight or nine years, and he estimated that he had dived from this bridge 200-300 times in the past, all without incident, most recently the day before he was hurt. He always dove from the bridge at the middle, where the water was deepest, and where he knew it to be about five feet deep. The river was clear, and he could see the bottom on the day in question. There was no evidence that the river was in any different condition on the day of the accident than it had been in the past. Plaintiff had never hit his head on the bottom, nor had to stop himself with his hands. On the day he was injured, he does not know if he hit the bottom, or if he was hurt hitting the water or something else, but he was seriously and permanently injured.

Plaintiff knew that at either end of the bridge were signs reading “No Diving From Bridge.” The signs had been there for as long as he could remember. The bridge is a two-lane wooden vehicular bridge with a pedestrian walkway, and is a part of the highway. Plaintiff admits that in order to dive from the bridge, it was necessary that he walk onto the bridge, and climb over the guardrail along the pedestrian walkway, which guardrail was several feet high. He states, however, that notwithstanding the signs or the guardrail, many people regularly dive from the bridge and that this was well known to defendants.

Plaintiff’s cause of action was essentially predicated on his allegations that the bridge and the diving area under it constituted a hazardous and dangerous condition posing a serious risk of personal injury to persons diving from the bridge; that persons diving from the bridge were not likely to observe or appreciate the risk of injury; that defendants were negligent in not providing a safe place to dive, in failing to give warning of the shallow and unsafe condition of the river, and in failing to prevent persons from diving from the bridge. The trial court granted defendants’ motion for summary judgment, ruling that defendants breached no duty owing to plaintiff and that plaintiff’s acts were the sole proximate cause of his injuries.

It is clear to us that plaintiff, although an invitee while upon the pedestrian walkway of the bridge, became something less when he climbed over the guardrail and used the bridge as a diving platform, when it was obviously (and so known to him) not designed or intended to be used for that purpose. In that activity he was, at best, an uninvited licensee; at worst, a trespasser. Since he testified that defendants were aware of the use of the bridge for diving purposes, we assume for this discussion that the defendants were aware of plaintiff’s presence on the bridge. The distinction between the duty owed by a landowner to these two classes is hazy (if a distinction exists), but the labels have been preserved. Wood v. Camp, 284 So.2d 691 (Fla.1973). The duty owed by a landowner to an uninvited licensee or a discovered trespasser is essentially the same: to avoid willful and wanton harm to him, and to warn him of a defect or condition known by the landowner to be dangerous when such danger is not open to ordinary observation by the licensee or trespasser. Post v. Lunney, 261 So.2d 146 (Fla.1972).

No claim is made that the defendants acted in a willful and wanton manner to cause injury. Neither does the record show a dangerous condition known as such to the owner. Plaintiff himself dove under similar conditions 200-300 times before. So had numerous others. Nothing in the record shows that the “owners” were aware of any previous injuries. Plaintiff testified that he had heard that someone else had been hurt in a similar incident in the past, but he said that he did not know if this was true. Even if we were to consider the conditions to be dangerous, the record shows that plaintiff was fully aware of them, and probably had greater knowledge of the hazards than did the defendants. The bridge was designed and maintained to carry vehicular and pedestrian traffic. The signs and the guardrail told plaintiff he was not to dive from the bridge. The defendants were under no duty to post a guard to physically restrain plaintiff when he refused to heed the warning, nor were they required to build an “unclimbable fence” (which would probably only serve as an additional challenge to those who were determined to run the risk). The defendants here breached no duty to plaintiff. See Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla. 3d DCA 1961). Cf. Savignac v. Department of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981).

The judgment is AFFIRMED.

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

      . Although ownership of the bridge by D.O.T. was not admitted, for the purposes of this appeal D.O.T. is willing to assume that it is the owner.


text:
    BUNNELL MEDICAL CLINIC, P. A., Appellant, v. Eduardo BARRERA, M.D., Appellee.
    No. 81-1172.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 24, 1982.

      Stephen P. Sapienza, Flagler Beach, for appellant.
    Robert K. Rouse, Jr., of Smith, Schoder & Rouse, P. A., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant medical clinic and appellee physician entered into an employment contract in 1976 wherein appellee agreed to furnish medical services in appellant’s emergency room. When an action for malpractice was filed against appellee for an incident which occurred in 1977, he requested that appellant provide him with a defense and indemnify him against any judgment for damages because, so appellee alleged, appellant had breached a provision of the employment contract which required appellant to provide malpractice insurance for appellee. When appellant refused, ap-pellee sued to recover damages because of the alleged breach. The trial court determined the contract to be unambiguous and granted appellee’s motion for summary judgment as to liability. Appellant appeals from this partial summary judgment. We reverse.

The contract provision in question says: “Company shall during the term of this contract, perform the following obligations and undertakings:
(a) Furnish and carry adequate malpractice insurance to cover the activities of Barrera, provided he is insurable by company’s insurer.”

Appellant’s answer to the complaint admitted that it was obligated to pay for appellee’s malpractice insurance, but alleged affirmatively that, because of the personal nature of malpractice insurance, appellee was required to personally apply for and obtain such insurance, which he failed to do; that appellant could not furnish the insurance unless appellee applied for it, and that this was the customary procedure followed in the appellant’s business.

Supporting appellee’s motion for partial summary judgment was his affidavit stating that his qualifications for malpractice insurance coverage in 1976 and 1977 had not changed from those in 1979 and that his 1979 application for malpractice insurance had been approved. Sworn answers to written interrogatories by a representative of the insurance carrier stated that the company never received an application for insurance from appellee for 1976 or 1977, but assuming that his qualifications were the same in those years as they were in 1979, appellee would have been insurable by that company. Implicit in these answers, however, is the apparent requirement that an application for insurance be filed, and admittedly no application was filed for the period in question here.

In opposition to the motion for summary judgment, appellant produced testimony that in 1976 all emergency room physicians, including appellee, had been reminded of the importance of applying for malpractice insurance, that industry practice required each physician to make the application and secure the insurance, and that appellant would pay the premium when insurance was obtained; that in 1976, when appellee became a member of the local medical society, he had secured the signature of the secretary of the medical society on an insurance application, and was aware of the practice.

The court entered the partial summary judgment for appellee, finding that there was no ambiguity in the contract, that there was no genuine issue as to any material fact on the issue of liability, and that appellee was entitled to partial summary judgment as a matter of law on the issue of liability. After rehearing was denied, this appeal followed.

Interpretation of a contract is generally a question of law for the court, rather than a question of fact. Peacock Construction Co., Inc., v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977). However, when the wording of an agreement is ambiguous and the parties present different interpretations, the issue of proper interpretation can become one of fact, thus precluding summary judgment. Griffin Builders Supply, Inc. v. Jones, 384 So.2d 265 (Fla. 2d DCA 1980); Westchester Fire Insurance Co. v. In-sinkerator, 252 So.2d 856 (Fla. 4th DCA 1971).

It is clear from the agreement here that appellant agreed to provide insurance for appellee, but the agreement is silent on the question of how and by whom that insurance is to be applied for or by whom and by what means Barrera’s insurability would be determined. This appears to create a latent ambiguity in the agreement. A latent ambiguity has been defined as one where the language in a contract is clear and intelligible and suggests a single meaning, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two possible meanings. Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980); Drisdom v. Guarantee Trust Life Insurance Company, 371 So.2d 690 (Fla. 3d DCA 1979).

If, as asserted, insurance could only be obtained by appellee’s personal application, then it would be an unfair and inequitable interpretation to hold appellant liable for failure to obtain the insurance when appellee’s own failure to act prevented the happening of the required event. A contract should be interpreted in a manner that produces a fair and equitable result. Hunt, 381 So.2d at 1197.

Because of the latent ambiguities in the agreement, parol evidence was admissible to show the intent of the parties, Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976), and the existence of issues of fact and conflicting inferences to be drawn from the evidence precluded summary judgment. Burris v. Jacobson, 417 So.2d 787 (Fla. 5th DCA 1982); Kirsch v. Mannen, 393 So.2d 63 (Fla. 3d DCA 1981).

The summary judgment determining liability in favor of appellee is reversed, and the cause is remanded for further proceedings.

REVERSED and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Fla.R.App.P. 9.I30(a)(3)(C)(iv).


text:
    GREAT SOUTHWEST FIRE INSURANCE COMPANY and C A F Industries, Inc., Appellants, v. Everett E. BIDDLE and Ethel Biddle, his wife, Appellees.
    No. 82-190.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Rehearing Denied Oct. 4, 1982.
    Emory C. Teel, III, of Fee, Fee, Koble-gard, Teel & Kenney, P. A., Fort Pierce, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellees.
   PER CURIAM.

Appellants seek review of a judgment awarding appellees, Everett E. Biddle and Ethel Biddle, his wife, $170,000 and $25,000, respectively, as damages resulting from the husband’s fall on property controlled by appellant, C A F Industries.

Appellants pose nine points for our consideration, each of which we have separately considered, and we conclude that reversible error has not been demonstrated. None of the points presented is frivolous; each of the points presents an arguable question. However, from our study of the briefs and record, we are unable to find any judicial error that would require reversal of the judgment.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: DANAHY, Judge.

text:
    Richard JOHNSON, M.D., Appellant, v. Franklin G. SCHNEEGOLD, as personal representative of the Estate of Steven M. Schneegold, a minor, deceased, and on behalf of the survivors, Franklin G. Schneegold, individually, and Judith Schneegold, his wife, parents of Steven M. Schneegold; Morton F. Plant Hospital Association, Inc., and John Patrick Hanley, M.D., Appellees.
    No. 81-2027.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 22, 1982.

      Kenneth C. Deacon, Jr., of Harris, Barrett & Dew, St. Petersburg, for appellant.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appel-lee Schneegold.
   DANAHY, Judge.

Appellee Schneegold brought this suit as personal representative of the estate of his minor child, Steven, and on behalf of Steven’s survivors (his parents) to recover damages for alleged medical malpractice resulting in Steven’s death. The jury returned a verdict for the defendants. The defendants sought to tax costs against the survivors individually, but the trial judge awarded costs only against Schneegold in his capacity as personal representative of Steven’s estate. The estate has no assets. One of the defendants brings this appeal from the judgment for costs, arguing that costs are taxable against the unsuccessful beneficiaries of a cause of action for the wrongful death of a minor. We affirm.

Costs are taxable only pursuant to a statute or rule. Lake Region Paradise Island, Inc. v. Graviss, 323 So.2d 610 (Fla. 2d DCA 1975). We find no statute or rule authorizing recovery of costs by a successful defendant against individuals who are represented by the plaintiff but who are not actually parties to the litigation. Section 57.041, Florida Statutes (1981), authorizes recovery of costs by a party recovering judgment, but does not state against whom costs may be awarded. The statute is entitled “Costs; Recovery From Losing Party.” Costs generally are not recoverable against persons who are not parties to an action. Cf. Moore v. Hunter, 153 Fla. 158, 13 So.2d 909 (1943) (costs may not be awarded against defendant who disclaims any interest in subject of litigation).

The appellant bottoms his argument on principles of equity, justice and logic stemming, he contends, from the provisions of the wrongful death statute. Until 1972, Florida’s wrongful death statute required that an action for the death of a minor child be brought by his parents. § 768.03, Fla. Stat. (1971). In 1972 the legislature amended the act to provide that an action for wrongful death must be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate. Ch. 72-35, § 1, Laws of Fla.; § 768.20, Fla.Stat. (1981). There is a provision in the wrongful death statute for the deduction of litigation expenses from awards made to survivors, but there is no provision authorizing recovery of costs against such survivors by a successful defendant.

No authority has been cited to us, nor have we found any, which supports the proposition that in the absence of an authorizing statute, costs may be recovered against persons represented in an action who are not actually parties to that action. The only judicial decision known to us allowing recovery of such costs from represented persons was based on a statute clearly authorizing that recovery. Aronson v. McDonald, 248 F.2d 507 (9th Cir. 1957).

The appellant’s position points out an apparent legislative oversight in the 1972 revision of the wrongful death act. It does seem unfair to deny recovery of costs in this action against the individuals for whom the representative plaintiff brought the action. However, this court cannot judicially extend the statute beyond its perimeter.

For the foregoing reasons, we AFFIRM.

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


text:
    Robert Lee SMART, Appellant, v. TIME INSURANCE COMPANY, Appellee.
    No. AI-395.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Rehearing Denied Oct. 4, 1982.
    George G. Phillips, Pensacola, for appellant.
    David T. Johnson, Jr., of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for appellee.
   PER CURIAM.

The appellant, Robert Lee Smart, sued the appellee, Time Insurance Company, for its failure to honor his claim for benefits as beneficiary of a $50,000 life insurance policy issued to his daughter less than four months prior to her death from leukemia. Appellee defended on the ground that insured made material misrepresentations of fact on the application for insurance and that the policy would not have been issued at that time or, if issued, would have been issued at a much higher premium if insurer had known the truth. The trial judge granted summary judgment in favor of appellee. We affirm.

Appellee’s affirmative defense was based upon its allegations that the insured failed to disclose, as required by specific questions on the application for insurance, that she had been treated by a Dr. Jankauskas due to nervousness, pain in the upper abdomen and elevated blood pressure one day before the application was submitted. Medication was prescribed for each condition. The insured also failed to disclose, as required, that she had been seen by Dr. Jankauskas numerous times since 1976 to the date of application for nervousness, headaches and associated problems and listed a Dr. Augustus, whom she had not seen in years, as her regular physician. Dr. Jankauskas’ name does not appear anywhere on the application form, although a space was provided for the furnishing of details, dates, name and address of doctor and results of any treatment rendered.

Although the evidence indicates some dispute as to whether the application was completed and signed at the agent’s office in appellant’s presence or at the insured’s home outside appellant’s presence, or whether insured mentioned Dr. Jankauskas’ name, the uncontradicted evidence shows that the insured, whose signature appears on the application, did not inform the agent of her reasons for seeing Dr. Jankauskas since 1976. It is that omitted information which constitutes the material misrepresentation that caused appellee to issue the policy. Given the absence of any factual dispute as to those matters, the order of summary judgment is affirmed.

MILLS, BOOTH and THOMPSON, JJ., concur.


text:
    Daniel P. DUSKA, Appellant, v. STATE of Florida, Appellee.
    No. 81-2071.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 6, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979).

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: McCORD, Judge.

text:
    DETROIT MARINE ENGINEERING, INC., and Sheller-Globe Corporation, Appellants, v. Carolyn MALOY, as Personal Representative of the Estate of Aubrey Maloy, Deceased, Appellee.
    No. AC-100.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 5, 1982.

      Robert P. Gaines of Beggs & Lane, Pensacola, for Detroit Marine Engineering, Inc., appellant.
    Charles J. Kahn, Jr., and Louis K. Ro-senbloum of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for Sheller-Globe Corp., appellant.
    Stephen S. Foche, Shalimar and Henry T. Courtney, Miami, for appellee; George W. Chesrow, Miami, of counsel.
   McCORD, Judge.

Detroit Marine Engineering, Inc. (Detroit Marine) and Sheller-Globe Corporation (Sheller-Globe) appeal from a final judgment, rendered after a jury trial, in favor of Carolyn Maloy as the personal representative of the Estate of Aubrey Maloy in a wrongful death action. The personal representative was awarded compensatory damages against both defendants of $50,000 for the estate, $500,000 for herself, and $600,-000 for her daughter. Also assessed were punitive damages for the estate of $50,000 against each of the two appellants.

While appellants raise a multiplicity of issues, this appeal essentially stands or falls on their contention that the trial court erred in failing to grant their motions for directed verdict on the issue of liability. Accordingly, the following are the facts in the light most favorable to the Estate, considered for the purpose of determining whether Detroit Marine and Sheller-Globe were entitled to a directed verdict upon liability.

On April 30, 1977, the deceased took a boat borrowed from his wife’s uncle to Lake Silver to test it before taking the boat to Louisiana for a planned vacation and fishing trip with his family. According to his usual practice, Aubrey Maloy told his wife and children to wait on the shore of Lake Silver while he took out the boat and tried it first. He told his wife and children that if everything was alright with the boat, he would come back in a few minutes, pick them up, and take them for a ride.

Within three to five minutes after Maloy had left shore in the boat, an onlooker standing at the launching ramp, James Watford, first became aware that there was a problem with the boat. Watford saw Aubrey in the water with the boat circling about him. According to another onlooker on the dock, Dr. Robert Fountain, Aubrey was trying to dodge the boat, which was coming close to him, “turning in fairly tight circles” in the middle of the lake. Upon realizing Aubrey’s predicament, Fountain and Watford went out into the lake in Fountain’s boat. When they reached the area where they thought Maloy had gone down the last time, Fountain put on a mask and fins and dove into the water; however, he was unsuccessful in his search due to the murkiness of the water. Marking the location with buoys, they returned to shore and called the sheriff’s department and an ambulance. After a deputy arrived, Fountain got his scuba equipment, went back into the lake, and shortly afterwards located Maloy’s body. He also recovered part of the steering wheel, the rim, very near the body. Once the boat had run itself ashore, it was discovered that the hub was still intact on the steering column of the boat and that the driver’s seat had been overturned. Otherwise there was no indication as to what had caused Maloy to be thrown from the boat. Nobody on the shore had been watching him at the time of this unfortunate incident.

Upon this basic overlay of facts, the plaintiff sought to prove that the steering wheel was defective and that its fracturing was the cause of Maloy’s death. The history of this particular steering wheel is thus of crucial importance in resolving the issues presented by this appeal.

Sheller-Globe’s primary business is manufacturing steering wheels. Until 1968, all of the plastic steering wheels manufactured by it had a metal insert inside of them. The metal insert consisted of a steel hub to which steel spokes and a rim are welded together. The metal insert is then placed in a mold and plastic is injected around the steel insert. However, sometime prior to 1968, the president of Detroit Marine approached Sheller-Globe about manufacturing a cheaper wheel because Detroit Marine desired a wheel that could be purchased for less than $2.00. This led to the development of an insertless wheel, the only apparent advantage of which is that it could be made more cheaply.

Sheller-Globe began production of these insertless marine steering wheels in 1968. Detroit Marine’s president gave Sheller-Globe’s designer the details as to the styling of the insertless wheel. The mold for the wheel was designed by a Canadian company and was owned by Detroit Marine. Detroit Marine also supplied the diecast hubs to Sheller-Globe for use in the manufacture of the wheel. This manufacture occurred despite the opposition of Paul Weitzman, who was responsible for the production of plastic steering wheels for Sheller-Globe. Weitz-man questioned the reliability of an all-plastic steering wheel and felt that such a wheel would have only a limited use on small boats in inland lakes but not on a racing craft or on an application where unusual torque requirements would exist and that the wheel would be subject to deterioration in the sun.

Donald Bowser, who was the manager of engineering at Sheller-Globe’s plant where the insertless wheels were manufactured, was also critical of the insertless plastic wheels. He, too, felt that the wheel was not strong enough. Another former mechanical engineer for Sheller-Globe, Herbert McKen, also testified that from 1968 to 1978, the insertless wheels were not “a reliable product” and “shouldn’t be put on the market.” By 1978, however, improved engineering processes and better knowledge of plastics had resulted in a significantly improved insertless wheel. In 1972, when the subject wheel had been manufactured, adequate process control equipment had not yet been invented and it was “very difficult to determine whether (the company) had a good product or not.”

Plaintiff also presented the crucial testimony of Lawrence J. Broutman. Dr. Broutman had a PhD in plastics engineering at MIT and is a professor of engineering at the Illinois Institute of Technology, among other impressive credentials. Brout-man testified that the wheel was defective in several respects. First, it was defectively designed. For one, the areas where the spokes of the steering wheel attached to the hub were too thin. Further, the most severe design defect was that there was absolutely no attempt in this wheel to round off corners. Broutman explained that in designing a plastic product, two walls or sections of the plastic should never meet so as to form a sharp corner. He directly attributed the wheel’s fracture to this very defect.

Broutman also felt that there were several manufacturing defects which caused the steering wheel to be brittle and weak. He noted that the plastic used, known as ABS, was a combination of polystyrene and rubber. The rubber was utilized to add ductility to the plastic. However, upon exposure to ultraviolet rays, such as sunlight, the ABS would become brittle and subject to deterioration. Broutman also felt that the ABS had deteriorated because of excessive heating of the plastic prior to injection into the mold and because of the addition of regrind material. The addition of regrind was a problem because it had already been subjected to elevated temperatures and had thus somewhat deteriorated. The overall effect was to lower the quality of the ABS. Moreover, Broutman testified that x-rays showed the steering wheel to have substantial numbers of airpockets, or voids, which were caused by the mold temperature being too cold to get a proper injection of plastic into the mold. Thus, more pressure was needed to inject the plastic, which pressure caused overpacking in the hub area and weakness in the steering wheel.

Upon these basic facts Detroit Marine and Sheller-Globe contend that in reaching the verdict, the jury impermissibly had to pyramid inference upon inference in order to infer from circumstantial evidence, not only that a defect in the steering wheel caused the wheel to break, but also that the breaking of the wheel caused the injury to Mr. Maloy. See, e.g., Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla.1954); Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). They contend that the evidence shows reasonable inferences that could have resulted in undue stress being placed upon the wheel, causing it to break.

The Estate correctly notes that it did not rely primarily on circumstantial evidence to prove that the steering wheel on the boat was defective at the time it left the manufacturer and at the time of the accident. Dr. Broutman testified that the sharp corners where the spoke met the hub of the steering wheel (the place of the fracture) were elementary design defects and should never have been incorporated into the design of the wheel. He directly attributed the fracture to that deficiency. Further, as previously noted, the steering wheel was negligently manufactured, and thus brittle, because of excessive heating of the plastic before it was injected into the mold, the additive of regrind as a cost-saving device, and internal stresses created in the hub of the wheel caused by the mold temperature which was too cold to allow for proper injection of the plastic into the mold. Broutman’s testimony was buttressed by three former engineers at Sheller-Globe who were involved in the production of the wheel and who concurred in Broutman’s opinion that the wheel was unreliable.

The jury’s resolution of the issue of legal causation between the defective steering wheel and Maloy’s injury is supported by the evidence. Dr. Fountain testified that after the fatal accident the broken rim of the steering wheel was found in the water next to Aubrey Maloy’s body. The logical and permissible inference to be drawn from this fact is that Maloy was holding onto the defective wheel when it broke and that this fracturing of the wheel was the cause of his death. Although there may be other conflicting inferences which could be drawn from these facts, the jury’s resolution of the evidentiary issues in the Estate’s favor is not subject to reversal:

(I)f the circumstances established by the evidence be susceptible of a reasonable inference or inferences which would authorize recovery and are also capable of an equally reasonable inference, or inferences, contra, a jury question is presented.

Voelker, at 406.

Detroit Marine separately argues that it is entitled to a directed verdict on the issue of liability because it relied entirely upon the skill and expertise of Sheller-Globe and did not participate in the manufacture of the steering wheel. Alternatively, it argues that the verdict is against the manifest weight of the evidence and that it is entitled to a new trial.

Addressing the former argument first, we find that the evidence amply supports the jury’s finding of negligence by Detroit Marine. The company owned the mold that was used by Sheller-Globe to manufacture the wheel, supplied Sheller-Globe with the diecast hubs incorporated into all of these plastic steering wheels, directly communicated with the engineers at Sheller-Globe concerning the development and eventual production of the wheel, and sold the wheels which were manufactured exclusively for Detroit Marine as its own product. Detroit Marine’s secondary argument that the verdict is against the manifest weight of the evidence is without merit.

Appellants also urge that the trial court erred in failing to admit the results of tests by Sheller-Globe on 14 Black Dolphin steering wheels of varying dates that had been used on boats in Florida and some mock-up wheels made by Sheller-Globe in connection with this litigation. “Dolphin” is the name ascribed to the subject steering wheel, of which there were two basic models, a black one and a white one. The black model is virtually identical to the white model in all respects, save its color, which is due to the addition of carbon black. Certain witnesses for the appellants asserted that the addition of carbon black was sufficient to protect the ABS plastic from ultraviolet deterioration. Testifying for the Estate, Dr. Brout-man expressed a contrary view.

When appellants attempted to introduce into evidence the results of tests upon the black Dolphin wheels gathered from boats in Florida, counsel for the estate argued that the defense had not established the requisite similarity between these steering wheels and the subject steering wheel. The evidence reveals that subsequent to the manufacture of the wheel involved in this case, Sheller-Globe in September of 1972 changed plastics from Uniroyal K-3144 ABS to K-2996 ABS plastic. K-2996 has a higher and broader temperature range and therefore could be used more easily in the molding process. Further, the mold was changed to improve the design of the steering wheel by rounding off the sharp corners. Considering these factors, the trial court ruled that it would allow testimony on any wheels that were manufactured pri- or to the production of the wheel in this case and any wheels that were manufactured up to the time of the change-over in materials.

Upon these facts, appellants urge that the trial court should have allowed the test into evidence because of “substantial similarity” between the 14 Dolphin wheels and the subject wheel. See, e.g., Mutual Life Ins. Co. of New York v. Bell, 147 Fla. 734, 3 So.2d 487 (1941). The determination of the similarity of circumstances must be left to the sound discretion of the trial court and absent an abuse of discretion its ruling will be upheld. Morton v. Hardwick Stove Co., 138 So.2d 807 (Fla. 2d DCA 1962), cert. denied 149 So.2d 48 (Fla.1962). We find no abuse of discretion. Appellants’ expert witness, Dr. Riley, testified that he did not know when the steering wheels from Florida were manufactured. Moreover, he did not know whether these steering wheels were made out of the same material as the subject wheel. Except for one of these wheels, appellants were never able to establish that any were manufactured prior to or at the same time as the wheel involved in this case or before the change-over in materials. Although they were able to establish that one of these steering wheels was manufactured prior to the wheel involved in this case, Sheller-Globe’s witness did not know when the wheel arrived in Florida, how long it had been on the boat from which it came, how the boat was used, whether the boat had been subjected to sunlight, or any of the conditions surrounding the use of the wheel. Considering these facts in a light most favorable to the trial court’s ruling, as we must, we are unable to find an abuse of discretion in its determination that a requisite substantial similarity was not shown.

We conclude that the trial court correctly excluded the test on the mock-up wheels prepared by Sheller-Globe for this litigation. These mock-ups were made from a different plastic. Further, Sheller-Globe failed to establish that the molding process used to manufacture the mock-up wheels was similar to the process which was in use in 1972, the date of manufacture of the steering wheel in dispute. Appellants’ expert witness admitted that in 1972 the insertless wheels were not very reliable because the manufacturer was not able to assure “very good repeatability in molding.” This witness had earlier testified that in 1972 the manufacture of insertless plastic wheels was a new art but that by 1978 better materials, engineering, equipment, and more knowledge was available. Since the evidence affirmatively establishes that these mock-up wheels were manufactured under different circumstances and conditions and made with different materials than the wheel involved in this accident, the requisite substantial similarity was not established. To have admitted them into evidence would have raised collateral issues that would only confuse the jury. See Auto Specialties Manufacturing Co. v. Boutwell, 335 So.2d 291 (Fla. 1st DCA 1976), cert. denied 341 So.2d 1080 (Fla.1976).

Appellants also urge that the trial court erred in admitting into evidence four specific exhibits. The first is a letter dated September 29, 1969, from the president of Detroit Marine to Sheller-Globe referring to over 100 of the insertless wheels made of butyrate that were in several customers’ plants which were sent back by dealers in a “distorted condition.” Specifically, appellants urge that this document should not have been admitted because the subject wheel was made from ABS plastic and not butyrate. Error, if any, in the admission of this document is harmless, for the same information was already before the jury without objection in the form of testimony by Paul Weitzman, a former engineer at Sheller-Globe. See Farmer v. B. F. Goodrich Co., 252 So.2d 593, (Fla. 2d DCA 1971), cert. denied 255 So.2d 686 (Fla.1971). Similarly, we find no reversible error in the admission of a Sheller-Globe memorandum dated April 30,1981, which stated that during tests performed on the white insertless wheel, two wheels failed deflection tests and passed torque and axle tests. The contents of the memorandum and the results of the test were already before the jury without objection prior to appellant’s objection to the entry of the document itself. Thus, any error is harmless and the document itself is merely cumulative. Id.

Appellants also objected to the admission of two other documents, a Sheller-Globe memorandum dated July 19, 1972, to Donald Bowser requesting a report on the breakage of a white insertless Dolphin wheel and a letter of June 27, 1972, from Sheller-Globe to Detroit Marine’s president acknowledging receipt of the hub and spoke section of a white insertless Dolphin wheel returned to Detroit Marine by Chrysler.

The trial court initially sustained the appellant’s objection to the memorandum of July 19, 1972, on the ground that plaintiff had presented no evidence to show that the white insertless wheel and the black insert-less wheel were the same. Subsequent testimony, however, confirmed that the configuration and mold for the white and black wheels were exactly the same. Further, Dr. Broutman testified that carbon black is added to ABS plastic to make the black wheel and titanium dioxide is added to ABS plastic to make the white wheel. Both coloring agents are added in small concentrations, ranging from 1-half to 1%. Brout-man explained that in small concentrations such as this, the additions of pigments to ABS did not affect the properties of the plastic. Given the evidence of the identical design of the white and black insertless wheels, and Dr. Broutman’s testimony regarding the effect of the additives on the ABS plastic, we find that the plaintiff established the requisite similarity between the two so as to render the document relevant.

Appellants subsequently established that the black and white wheels were made of two different types of ABS plastic. However, such a ground for rejecting the document was not specifically offered at the time of its admission into evidence. Therefore, the argument that the document should not have been admitted due to the dissimilarity of the plastics has not been properly preserved for appellate review. See Castor v. State, 365 So.2d 701 (Fla.1978). In any event, the jury was properly apprised of such fact and could attach the appropriate weight to the previously admitted memorandum. The letter of June 27, 1972, stands in the same stead.

Finally, appellants argue that the trial court erred in failing to grant a directed verdict on the issue of punitive damages. It is true, as appellants acknowledge, that punitive damages may be awarded in a products liability case. American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981). Nevertheless, while the evidence in this case, does support the jury’s finding of negligence on the part of Detroit Marine and Sheller-Globe, this evidence does not amount to a showing that appellants’ actions or inactions amount to willfulness, wantonness, maliciousness, recklessness, oppression, or outrageous conduct. Id. Accordingly, the award of punitive damages is stricken.

We have considered the remaining point on appeal and find it to be without merit.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.

ERVIN and SHAW, JJ., concur.


author: SHAW, Judge.

text:
    HARTFORD LIFE INSURANCE COMPANY, Appellant, v. Nancy M. HICKS, Appellee.
    No. AJ-68.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 7, 1982.

      Gerald B. Sternstein of McFarlain, Bobo, Sternstein, Wiley & Cassedy, P.A., Tallahassee, for appellant.
    L. Lee Williams, Jr. of Peeples, Earl, Moore & Blank, P. A., Tallahassee, for ap-pellee.
   SHAW, Judge.

The parties agree that there was a misunderstanding and a misrepresentation to the court regarding the issue of attorney’s fees. Based on this misunderstanding, the award of attorney’s fees is reversed and the cause is remanded for reconsideration of this issue. The order is otherwise affirmed.

Having prevailed on appeal, the insured is entitled to an appellate fee pursuant to section 627.428, Florida Statutes, (1981). Appellee’s petition for attorney’s fees is granted and the cause is remanded to the trial judge for the purpose of establishing and awarding an appropriate fee.

REVERSED in part, AFFIRMED in part, and REMANDED for the purposes set forth above.

SHIVERS and WIGGINTON, JJ., concur.


author: JOANOS, Judge.

text:
    H & S CITRUS, INC. and Florida Farm Bureau, Appellants, v. Annie REVELS, Appellee.
    No. AJ-98.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 4, 1982.
    Bernard F. Grail, Jr., Vero Beach, for appellants.
    Vincent A. Lloyd of Lloyd, Brown, Hos-kins & Becht, Fort Pierce, for appellee.
   JOANOS, Judge.

The employer/carrier (E/C) appeals a deputy commissioner’s (DC) order awarding $13,000.00 in attorney’s fees. We reverse.

The sole issue on appeal is whether the E/C accepted Revels as permanently totally disabled (PTD) within twenty one days after notice of the claim as provided in Section 440.34(1), Florida Statutes (1977). Mr. Lloyd, attorney for Revels, filed a claim for PTD benefits on December 30, 1980, but Revels had not reached MMI at that time. In a letter written on January 27, 1981 to the E/C’s attorney, Dr. Turmail, the authorized treating physician, stated, “I think Mrs. Revels will have reached maximum medical improvement as of about February 19, 1981.” Revels last visited Dr. Turmail on February 2, 1981. On the same day, the doctor wrote to a medical disability examiner that “[t]he patient has not reached MMI as yet.” At a deposition on February 19, 1981, Dr. Turmail stated that Revels had reached MMI. The E/C voluntarily accepted Revels as permanently totally disabled on February 27, 1981. The foregoing evidence does not support a February 2, 1981 MMI date as found by the DC.

In the absence of evidence indicating that Revels reached MMI more than twenty-one days before the E/C voluntarily accepted her as permanently totally disabled, the E/C would not be liable for attorney’s fees as provided in Section 440.34(1), Florida Statutes. White Electrical Construction Company v. Blacker, 392 So.2d 1009 (1st DCA 1981).

Revels contends that Smith v. Dixie Packers, Inc., 384 So.2d 709 (1st DCA 1980) and Roberts v. Georgia Pacific Corporation, 394 So.2d 1093 (1st DCA 1981) support the award. In Smith, this court reversed a denial of attorney’s fees where the E/C had ignored the claimant’s request for increased benefits filed months before acceptance, ignored complaints of a worsening condition, failed to provide medical attention and would never have had claimant reexamine or increased the disability rating, without the assistance of claimant’s counsel. In Roberts, this court reversed a denial of attorney’s fees where the E/C ignored the claim and had no contact with the physician that the claimant sought for an evaluation and paid two months after the claim was filed when it received the doctor’s report of a permanent impairment. In this case, the E/C had maintained communications with Dr. Turmail before and after the request for PTD, receiving indications of a February 19, 1981 MMI date. Dr. Turmail was the authorized treating physician before and after the claim for PTD was made in December, 1980, so there was no request or need for another doctor to make a permanency determination after the claim was filed. As of February 16,1981, eleven days before the E/C voluntarily accepted Revels as PTD, Mr. Lloyd, attorney for Revels, wrote counsel for the E/C stating that “[i]t looks as though Annie may not have reached MMI and he [Dr. Turmail] may be contemplating more surgery.” Clearly the holdings in Smith and Roberts are inapplicable when the E/C has maintained communications with the claimant and treating physician, relied upon the information supplied by both and voluntarily accepted the claimant as PTD within twenty-one days of notice of MMI.

Accordingly, the DC’s judgment is REVERSED.

McCORD and ERVIN, JJ., concur.


text:
    William IVORY, Appellant, v. STATE of Florida, Appellee.
    No. 82-136.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1982.
    Rehearing Denied Sept. 20, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal in this case, we find that the appellant has failed to demonstrate any reversible error, and therefore the judgments and sentences appealed from are affirmed. However, that portion of the judgment ordering the appellant to pay court costs totaling $490 and $10 to the Crimes Compensation Fund is stricken because the appellant was insolvent at the time of sentencing. Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981); Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

GRIMES, A. C. J., and RYDER and SCHOONOVER, JJ., concur.


text:
    CROYDEN ARMS APARTMENT HOTEL CORP., a Florida corporation, Appellant, v. SEASIDE REALTY, INC., Appellee.
    No. 81-138.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.
    Eli Breger and Samuel B. Pearlman, Miami Beach, for appellant.
    Charles L. Ncustein, Miami Beach, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final judgment awarding a commission to a real estate broker for allegedly producing a buyer ready, willing and able to buy certain property on terms specified by the seller. We have carefully and painstakingly examined the evidence in the record of the trial below to determine whether sufficient evidence exists to support this judgment. We have concluded after an exhaustive review of the record that no such evidence exists and reverse.

The fatal flaw in the real estate broker Seaside Realty’s case below is that it had only a vague, verbal listing agreement to sell a Miami Beach hotel from the owner, Croyden Arms Apartment Hotel Corporation. This was clearly a complex transaction and many details concerning the sale had to be worked out by negotiation between the owner and any prospective purchaser; the verbal listing agreement here omitted these details. When the negotiations for the sale of the hotel in the instant case broke down, the seller Croyden Arms Apartment Hotel Corporation was under no obligation to pay a brokerage commission. McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957), cert. dismissed, 102 So.2d 727 (Fla.1958); Fenton v. Bancroft Hotel Associates, Inc., 265 So.2d 67 (Fla. 3d DCA 1972). The final judgment under review is, therefore, reversed and the cause is remanded to the trial court with directions to enter a final judgment for the defendant Croyden Arms Apartment Hotel Corporation.

Reversed and remanded.


text:
    NATIONAL BULK CARRIERS, INC., a Delaware corporation, Petitioner, v. DADE COUNTY, Florida, a political subdivision of the State of Florida, Respondent.
    No. 82-891.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Rehearing Denied Oct. 12, 1982.
    Michael R. Storace, Coral Gables, for petitioner.
    Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., Miami, Fla., for respondent.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Petitioner, National Bulk Carriers (NBC), seeks certiorari review of an order of the Dade County Circuit Court rendered in its appellate capacity. The order, which affirmed, without prejudice to NBC to file a separate inverse condemnation action, the decision of the Dade County Board of Commissioners (Board) to deny NBC’s application for a dredge and fill permit and grant the County’s application to downzone the property from “heavy industrial” to “open space,” states:

The denial by the Appellees of the application for an unusual use permit for excavation and filling of Appellant[’]s property was correct; as was the granting of the application for a district boundary change filed by the County’s professional staff. Both actions are affirmed. However, nothing in the County’s action approved here or in this opinion shall be construed as a denial of the Appellant’s right to claim, in a separate action, that the actions taken by the County constituted a taking of Appellant’s property for a public purpose without compensation.

We have jurisdiction. Fla.R.App.P. 9.030(b)(2)(B).

Based upon careful examination of the briefs, record and argument in this case, we agree with the parties that the Circuit Court departed from the essential requirements of law in failing to rule on the inverse condemnation issue. Section 373.-617(2), Florida Statutes (1981), provides that circuit court review of agency action with respect to a permit “shall be confined solely to determining whether final agency action is an unreasonable exercise of the state’s police power constituting a taking without just compensation.” See also Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1977). As the proper forum for resolution of this issue, the Circuit Court erred in requiring NBC to file a separate action. Accordingly, we grant the writ, quash that portion of the order allowing NBC to maintain a separate action, and remand the case to the Circuit Court for a determination of whether the Board’s action constitutes a taking without just compensation. Sec. 373.617(3), Pla.Stat. If the court so determines, it shall remand the matter to the Board for further action in accordance with section 373.617(3). The remainder of the Circuit Court’s order is affirmed.


author: WALDEN, Judge.

text:
    Lucille WEASEL, Petitioner, v. George E. WEASEL, Jr., Respondent.
    No. 82-1545.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 12, 1982.
    Robert S. Levy, P.A., West Palm Beach, and Larry Klein, West Palm Beach, for petitioner.
    Don Beverly of Beverly & Freeman, West Palm Beach, for respondent.
   WALDEN, Judge.

Dissolution of marriage action. The trial court entered an order of bifurcation, that is to say, it determined to immediately try and enter judgment on the issue of dissolution, and, at some later date, try the remaining issues of alimony, property rights, etc. The wife being aggrieved has petitioned this Court for common law certiorari. We grant certiorari, quash the bifurcation order, and remand.

We make these observations as a basis for our finding that the order in question represents a departure from the essential requirements of law which cannot be remedied by subsequent appeal.

A. The husband is worth allegedly twenty million dollars or more and is heavily involved in complex financial affairs to include a venture in the one hundred million dollar class.

B. The husband has some kind of relationship with a girl friend.

C. The husband is 56 years of age.

D. The trial court earlier denied the husband’s application for bifurcation after hearing the husband’s presentment (and without hearing the wife’s evidence and argument), saying:

THE COURT: Well, Mr. Levy, it’s not going to be necessary to hear from your side because I’m going to deny the motion. And in so doing let me just remark that I’ll give Mr. Beverly and his side of the case credit for a thoughtful, well presented, imaginative presentation.
And I’d just like to comment I used to be pretty liberal about granting these bifurcated hearings, used to think it could do some good and probably little harm could result. But after having heard Clauten, I think I understand the reasons of the Supreme Court, and their opinion is that the split procedure should be used only when it is clearly necessary for the best interests of the parties or the children. That’s a rather heavy burden. And I just don’t feel like it’s been met in this case.

E. At a hearing on the wife’s motion for continuance of the trial, which motion was necessitated by a heart attack suffered by her counsel, the husband renewed his earlier motion for bifurcation and same was summarily granted without taking additional testimony. The wife has never had an opportunity to present her testimony or evidence in opposition.

F. The order of bifurcation imposed no conditions or restrictions upon the husband. It did not enjoin him from re-marriage or from disposing of his assets. It in nowise attempted to preserve the status quo.

G. The parties had agreed that the marriage was irretrievably broken and husband’s counsel estimated that the dissolution hearing would only require five minutes. Foreseeably, the remaining issues would require substantial time to try.

H. The case has been pending in the trial court since April 24, 1981.

I. The main reasons asserted by the husband for requiring bifurcation were these

a. The suit was causing the husband emotional distress and diminished his effectiveness as a businessman. (We note in passing our wonderment how the five minute hearing on an uneontested issue would eliminate this distress when the contested financial matters remain unresolved and subject to a protracted trial.)

b. Prospective investors would be wary because of the possibility of the wife having a claim against a business begun during the marriage.

J. Bifurcation in the manner here reflected exposes the wife to hazards and prejudice which may not be correctable by subsequent appeal. Without detailing, the happening of any of these events in the interval between dissolution and a determination of the other issues could severely damage the wife’s remaining claims:

a. death of husband
b. re-marriage of husband
c. the husband encumbers, conceals or disposes of his property.

There are other potential disadvantages and hazards which are significant. For a detailed evaluation of the problems created by bifurcation, see Miller, Bifurcation of Dissolution of Marriage Actions: Part One, 10 Fla. B.J. 755-757 (1981); Miller, Bifurcation of Dissolution of Marriage Actions: Part Two, 11 Fla. B.J. 831-834 (1981).

K. A trial court has the power to bifurcate. However, such procedure should be employed with caution and will be the exception rather than the rule. Hyman v. Hyman, 310 So.2d 378 (Fla. 2d DCA 1975), cert. discharged, 329 So.2d 299 (Fla.1976). In Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), the parties agreed to bifurcation. However, the Claughton court warned

Although we approve the granting of this final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues, we believe trial judges should avoid this split procedure. The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal. Splitting the process can cause multiple legal and procedural problems which result in delay and additional expense to the litigants. This split procedure should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use.

Id. at 1062.

And in Glazer v. Glazer, 394 So.2d 140 (Fla. 4th DCA 1980), this Court noted, “It is only in exceptional circumstances that a trial court should exercise its discretion to bifurcate the case.” We would add our views and further emphasize that to be entitled to bifurcation it must be a most exceptional case reflecting at least equal or more hardship on the movant resulting from a non-bifurcation when compared to the damages and complications arising from bifurcation. Moreover, if the trial court is inclined to bifurcate, it should use measures to eliminate or effectively minimize the hazards of bifurcation — measures designed to maintain the status quo as concerns the financial affairs of the parties and the other party’s (and the court’s) access to full relief in the ultimate final judgment. Without undertaking to catalog all the tools available, these singularly or in combination may be helpful: lis pendens, injunctions against remarriage or property disposal, escrow arrangements, appointment of receivers or trustees, and use of indemnity bonds.

L. Upon weighing all of the reasons advanced by the husband in favor of splitting the issues so as to award him an immediate dissolution of his marriage against the mentioned problems to the wife created by the court order, we decide without difficulty that the order granting bifurcation was an abuse of the trial court’s discretion to a degree reachable by common law certiorari.

Accordingly, certiorari is granted, the order of bifurcation is quashed, and the cause is remanded for further proceedings consistent herewith.

LETTS, C. J., and ANSTEAD, J., concur.