author: HUBBART, Chief Judge.

text:
    DEAN WITTER REYNOLDS, INC., f/k/a Dean Witter & Co., Inc., and Reginald Wagner, Appellants, v. Dr. Samuel LESLIE and Margaret Leslie, his wife, and Gregory Mirabile and Barbara Mirabile, his wife, Appellees.
    Nos. 79-701, 79-1539.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied March 29, 1982.

      Bailey & Dawes, Miami, and Steven M. Meyers, Miami Beach, for appellants.
    Gilbride & Heller and James F. Gilbride, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   HUBBART, Chief Judge.

This is an appeal from a final judgment in favor of the plaintiff stock investors entered upon a jury verdict in a negligence and fraud action brought against a stock-brokerage firm and one of its employee managers. An appeal is also brought from a final summary judgment barring recovery on the defendant stockbroker’s indemnity and contribution claim. For the reasons which follow, we affirm the judgments appealed from in all respects.

I

The facts of the case are as follows. The defendant Dean Witter Reynolds, Inc. is a nationwide stockbrokerage firm which employs the defendant Reginald Wagner as a branch manager of its Fort Lauderdale, Florida office. On April 13, 1977, the defendant Wagner discovered that one of his subordinates, an account executive in the Fort Lauderdale office by the name of Gregory Mirabile, had purchased $62,000 of stock options from the defendant Dean Witter Reynolds, Inc. with checks which had been returned from the bank for insufficient funds. The defendant Wagner, understandably upset with this defalcation by one of his subordinates, gave Mr. Mirabile until 4:00 p.m. that day to make good on the checks or Mr. Mirabile would be fired and the matter would be turned over to the authorities.

Subsequently that day, prior to 4:00 p.m., the plaintiff Dr. Samuel Leslie, Mr. Mira-bile’s father-in-law, stepped forward to make good on the $62,000 of worthless checks written by Mr. Mirabile. The plaintiff Dr. Leslie had a telephone conversation that day with the defendant Wagner confirming this fact. Dr. Leslie further testified as to the balance of this telephone conversation as follows:

“[I] said to Mr. Wagner, ‘Mr. Wagner, if I come up with the money, I expect certain things from you. One, you’re not going to fire Greg. Two, you’re not going to the authorities. Three, you’re to transfer the securities from Greg’s account to my account. And, four, since I don’t know anything about options and you’re the expert, I want you to follow the options and to sell them at the most opportune time so I wouldn’t lose any money or as little as possible.’ ”

Dr. Leslie also testified that the defendant Wagner agreed to these conditions. The $62,000 was subsequently remitted by the plaintiff Dr. Leslie to the defendant Wagner prior to 4:00 p.m. that afternoon.

From that point on, the defendant Wagner managed the stock options in question over a period of several months for the plaintiff Dr. Leslie and his wife, the plaintiff Margaret Leslie, which stock options were transferred from Mr. Mirabile to the account of Dr. and Mrs. Leslie. Moreover, no one else had any responsibility to manage or to assist in managing this stock option account. Eventually, the plaintiffs lost all their money ($62,000) on these stock options when the market gradually dropped over a period of several months rendering the options worthless. During this time, the record reveals that the defendant Wagner, in effect, let the account lie fallow without exercising his discretion to sell the options — although he had ample opportunity to sell said options at little or no loss to the Leslies. Indeed, the plaintiff Dr. Leslie had told the defendant Wagner at one point that he could sell the options at a $5,000 or $6,000 loss, but the defendant Wagner declined to do so.

Moreover, the record reveals that the defendant Wagner made no effort during the months which he managed the account to contact the plaintiff Dr. Leslie to advise him of this slow drop in the stock options market and, indeed, refused phone calls and a personal visit by Dr. Leslie’s daughter Barbara Mirabile, inquiring as to the status of the account — although Dr. Leslie had informed the defendant Wagner that his daughter Barbara was to be his agent for the purpose of delivering messages on the status of the account. • Finally, the record reveals that several options were in fact sold by the defendant Wagner, but apparently for no profit.

The plaintiffs Dr. and Mrs. Leslie filed suit in the trial court against the defendant Wagner and his employer the defendant Dean Witter Reynolds, Inc. in several counts sounding in fraud and negligence for the alleged mismanagement of the discretionary stock option account. Appropriate answers were filed by the defendants denying liability. The defendant Dean Witter also filed a third party complaint for indemnity and contribution against Gregory Mira-bile and Dr. Leslie’s daughter, Barbara Mir-abile. Upon proper motion, the trial court entered a final summary judgment barring the indemnity and contribution claim. The case subsequently went to jury trial on the main claim resulting in a general jury verdict awarding the plaintiffs $62,855 in compensatory damages and $69,855 in punitive damages as against both defendants in this cause. This appeal follows.

II

The defendants raise a plethora of points seeking reversal of the final judgments appealed from on the main claim and the third party claim. We have concluded, however, after a meticulous examination of the record, the briefs and the applicable law, that none of these points merit a reversal.

A

The defendants first contend that the trial court erred in sending the case to the jury on the fraud count. No complaint, however, is made as to the trial court’s decision to send the negligence counts to the jury. As the jury returned a general verdict in the plaintiffs’ favor, it is, therefore, plain that the verdict and judgment must be sustained on the basis of the “two issue” rule. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978); Variety Children’s Hospital, Inc. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980). Moreover, it cannot be said that the defendants here took themselves out of this rule by objecting, after closing argument and the court’s charge to the jury, to the general verdict form used in this cause as on identical facts the Florida Supreme Court has held that this objection comes too late to avoid application of the “two issue” rule. Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980).

B

The defendants next contend that it was error to send the claim for punitive damages to the jury because, it is asserted, this is a breach of contract action for which, concededly, punitive damages are not ordinarily recoverable. Griffith v. Shamrock Village, Inc., 94 So.2d 854, 858 (Fla.1957). The fatal flaw in this analysis, however, is that this is not in any sense a breach of contract action; it is a negligence and fraud action which was pled and tried below as such. It may not now, in our view, be recharacterized on appeal in an effort to avoid the punitive damages award.

It is further asserted that no evidence of an independent tort was shown in this case which would justify a punitive damages award. We are favored with no analysis as to why this is so, but, apparently, based on arguments made elsewhere, it is urged here that no evidence of fraud was presented in support of the fraud count pled herein. The fatal flaw in this position, however, is that evidence of gross negligence was adduced below in support of the negligence counts pled herein, which evidence by itself can sustain a punitive damages award.

The law is well-settled that “[ejxemplary damages are given solely as a punishment where torts are committed with fraud, actual malice or deliberate violence or oppression, or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others.” Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 221 (1936). The evidence in this record is, we think, abundantly sufficient for the jury to have concluded, as it did, that the defendant Wagner acted “with such gross negligence as to indicate a wanton disregard of the rights of others.” The record reveals with unmistakable clarity that the defendant Wagner totally neglected the plaintiff’s stock option account, that he let the subject stock options slowly decline on the market over a period of several months until the options were worthless, that he made no effort during this time to sell the options although he had the discretion to do so, and that he made no effort, indeed, declined, to keep the plaintiffs apprised as to any developments in the account including the slow market decline thereon. It is difficult to imagine a set of facts wherein a stockbroker could have acted with any greater degree of gross negligence as to indicate a wanton disregard of the rights of his client.

We deal here, in our view, with an “entire want of care or attention to duty,” a “great indifference to the persons, property or rights of others,” which has long been sufficient to justify a punitive damages award. Griffith v. Shamrock Village, Inc., 94 So.2d at 858. Indeed, similar acts of gross negligence have been held sufficient, in prior cases, to justify a punitive damages award. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957) (negligent failure to deliver a phone message held sufficient to reverse the trial court’s refusal to send punitive damages claim to jury); Hanft v. Southern Bell Telephone & Telegraph Co., 402 So.2d 453 (Fla. 3d DCA 1981) (negligent failure of telephone company to list a physician in the Yellow Pages for two succéssive years held sufficient to justify punitive damages award). For these reasons, then, we reject the defendants’ attack on the punitive damages award herein.

C

The defendants next present a series of contentions, which we have found somewhat difficult to follow, variously attacking, in general terms, the jury instructions given by the court, other jury instructions which the court refused, and the summary judgment entered on the third party claim, all of which, it is said, directed a verdict, in effect, against the defendants’ asserted “defenses” below. All of these contentions, however, rest on an erroneous premise which the trial court properly rejected. That premise is that Gregory and Barbara Mirabile were, in part, responsible for the losses which the plaintiffs suffered in this case and that they jointly and severally breached some duty owed either to the defendants or the plaintiffs which contributed to these losses. We find no merit in any of these contentions and are cited to no authority to support, on this record, an arguable duty owed by the Mirabiles to either the Leslies or the defendants, which caused, even in part, the losses in this case; indeed, the record establishes without contradiction that Gregory and Barbara Mirabile had no responsibility whatever to manage the Les-lies’ stock option account and cannot, in any sense, be held responsible, even in part, for the gross mismanagement of that account.

D

Finally, we have examined the remaining contentions made by the defendants on this appeal and find no reversible error in any of these points. The judgments under review by this appeal are, accordingly,

Affirmed.

      . The defendant Wagner gave a somewhat different version of this telephone conversation in which he said he agreed to handle the stock options account, but not as a discretionary stock account; otherwise, he said, he did agree to Dr. Leslie’s conditions as stated above. The jury, as it had a right to do, obviously chose to believe Dr. Leslie’s testimony on the subject telephone conversation.

      . “[W]e reject the contentions that there was a proper request for a special verdict and a proper objection to the general verdict form. No special verdict, interrogatories or requested written instructions were submitted to the court at the close of the evidence and before the instruction conference, as required by Florida Rule of Civil Procedure 1.470(b). Instead, the request for a special verdict was made after argument by counsel to the jury and after instructions on the law by the court.

      Special verdicts or interrogatories necessarily require explanatory instructions to the jury. In order to properly object to a general verdict form, counsel must therefore submit a special verdict form together with the necessary explanatory instructions in accordance with Florida Rule of Civil Procedure 1.470(b). In the instant case, the request for special verdicts and the implied objection were neither timely nor properly presented to the court.” Whitman v. Castlewood International Corp., 383 So.2d at 619-20.

      . We have no occasion to determine whether Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), decided long after the trial proceedings below, has any application herein as the point involved in that decision was, understandably, not raised at either the trial or appellate level in this cause. See Jessup v. Redondo, 394 So.2d 1031, 1033 (Fla. 3d DCA 1981).

      . These “defenses,” variously described in terms of comparative negligence by alleged agents Gregory and Barbara Mirabile, were never pled below as affirmative defenses. Moreover, the trial court denied a defense motion at the close of the evidence to amend the affirmative defenses to include these defenses, and the defendants have not attacked this ruling on appeal. This would appear to undercut on procedural grounds most of the defendants’ substantive arguments here, but we have nonetheless resolved to address those arguments on the merits.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MOUNT SINAI MEDICAL CENTER OF MIAMI, INC., Appellant, v. FLAGSHIP NATIONAL BANK OF MIAMI, as Personal Representative of the Estate of Martha Marquiz, Deceased, Appellee.
    No. 81-1345.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied March 29, 1982.
    Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash and Frederck J. Damski and Julio Alonso, Miami Beach, and James L. Wall, Miami Springs, for appellant.
    Therrel, Baisden, Stanton, Wood & Setlin and Howard A. Setlin, Miami Beach, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Mt. Sinai Hospital at Greater Miami, Inc., v. Jordan, 276 So.2d 102 (Fla.3d DCA 1973), aff’d, 290 So.2d 484 (Fla.1974).


author: PER CURIAM. DOWNEY, Judge,

text:
    STATE of Florida, Appellant, v. Tom KEEL, Appellee.
    No. 81-1110.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied March 31, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Alien v. Rowley, 390 So.2d 491 (Fla. 1st DCA 1980); Healey v. State, 389 So.2d 278 (Fla. 3d DCA 1980); and State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978).

ANSTEAD and GLICKSTEIN, JJ., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

Appellee, Tom Keel, was arrested April 24, 1980. Thereafter, an information was filed but it was dismissed as being vague and indefinite and Keel was released on June 2,1980. The same day a new information was filed. When Keel failed to appear for arraignment a no-bond capias was issued. In July an investigator for the state attorney’s office attempted to locate Keel at his mother's home, the address listed on Keel’s booking slip. Keel’s mother advised that she was under the impression the charges had been dismissed. In any event, she stated that Keel told her he would be back around Christmas and she thought he was somewhere in Georgia with his grandfather. Finally, in April 1981, Keel was arrested on the pending charge.

On May 22, 1981, Keel moved for discharge on the grounds that 180 days had elapsed since his initial arrest. At the hearing thereon the State opposed Keel’s discharge and submitted as evidence of Keel’s unavailability for trial a report of the state attorney’s investigator tending to show Keel had removed himself from the jurisdiction. However, the trial judge granted the motion for discharge without the adduction of any evidence by Keel, and the State perfected this appeal.

In my judgment the decision in this case does not turn on Keel’s failure to appear at arraignment on the new information or on the adequacy of the State’s attempt to locate him. Rather, it is controlled by whether Keel had been continuously available for trial under the speedy trial rule in effect at that time.

Florida Rule of Criminal Procedure 3.191(e) (1979) is the applicable rule. It provides, in pertinent part:

(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of nonavailability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.
If an accused voluntarily removes himself from the jurisdiction of the court, or otherwise acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the State be voidable by the court in the interests of justice. Upon such accused becoming available for trial and upon notice thereof by the accused or his counsel to both the court having jurisdiction over the trial and to the office of the prosecutor, or upon being retaken into custody, the time within which trial is to commence shall be as herein provided and begin anew.

By its terms the rule provides that if the Staté objects to the discharge of a defendant and presents any evidence tending to show non-availability the burden of proof shifts to the defendant to show continuous availability. It appears to me this rule was violated here because the State presented evidence tending to show that Keel had removed himself from the jurisdiction. The trial court should therefore have required Keel to go forward with proof of availability rather than summarily grant the motion for discharge.

For these reasons I am unable to agree with the majority decision to affirm.


text:
    19838 NW, INC., d/b/a Sportsman Lounge, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGE AND TOBACCO OF the DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellee. DIVISION OF ALCOHOLIC BEVERAGE AND TOBACCO OF the DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. 19838 NW, INC., d/b/a Sportsman Lounge, Appellee.
    Nos. 81-1785, 81-2124.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied March 30, 1982.
    Raymond A. Doumar of Allsworth, Dou-mar, Padula, Cazel & Curtis, Fort Lauder-dale, for 19838 NW, Inc., d/b/a Sportsman Lounge.
    Daniel C. Brown, Staff Atty., Tallahassee, for Dept, of Business Regulation.
   PER CURIAM.

These consolidated cases arose as a result of 19838 NW, Inc., d/b/a Sportsman Lounge’s (Sportsman) being served on October 1, 1981, with an Emergency Order of Suspension of its alcoholic beverage license, which order was issued by the Director of the Division of Alcoholic Beverages & Tobacco, Department of Business Regulation, State of Florida (Division), pursuant to Sections 561.29 and 120.60(7), Florida Statutes (1981).

On October 2, 1981, three significant things happened. First, Sportsman filed a notice of appeal for review of said order and a petition for automatic stay as provided in Section 120.68(3), Florida Statutes (1981). Second, the Division immediately countered with a petition to deny superse-deas. Third, this court entered an order that granted the Sportsman petition for stay and denied the agency’s petition. In addition, this court’s order directed the parties to proceed with a hearing which had been scheduled for October 6, 1981, pursuant to a rule to show cause served upon Sportsman by the Division on October 1st.

Instead of holding the hearing on October 6th, Sportsman demanded a formal administrative hearing, pursuant to Rule 28-5.201 and 28-6.09, Florida Administrative Code, which hearing was scheduled for October 21 and 22, 1981. Prior to the scheduled hearing, Sportsman filed a suit for declaratory and injunctive relief in the Circuit Court of Broward County, asserting therein, among other things, that Section 120.60 was unconstitutional. On October 21,1981, the circuit court entered a temporary stay of administrative proceedings — specifically the hearing set for that date. Thereafter, the circuit court on November 13, 1981, issued an order staying administrative procedures pending resolution of constitutional issues raised in the declaratory judgment action. The Division then perfected an interlocutory appeal from the order granting the temporary injunction, and we consolidated that appeal with the prior appeal from the order of suspension.

From the foregoing it appears that we have denied the Division’s efforts to vacate the stay of its suspension order so that a final administrative hearing could be held and the matter treated on the merits. However, although Sportsman asked for such a hearing, no such hearing has yet been held, and Sportsman has sought other relief in the circuit court.

Ordinarily, when a constitutional attack is made upon administrative proceedings, they should be stayed pending resolution of the validity of those proceedings. E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla. 4th DCA 1980). However, in the present case this court had already accepted jurisdiction of the administrative proceedings as a result of Sportsman’s notice of appeal (which we treat as a petition for review pursuant to Section 120.68(1), Florida Statutes (1981)), to review the Order of Suspension and there was pending our order to proceed with the final administrative hearing of the matter. Thus, the circuit court was without jurisdiction to stay the very proceeding we directed the parties to hold. Accordingly, we reverse the order of the circuit court of November 13, 1981, which stays the final administrative hearing.

In a further effort to dispose of this matter in an orderly fashion, we direct the parties to proceed with the full administrative hearing that Sportsman requested.

Since the constitutionality of Section 120.60(7), Florida Statutes (1981) can be raised for the first time in the District Court of Appeal (Bigler v. Department of Banking & Finance, 394 So.2d 989 (Fla.1981); Peoples Bank, Etc. v. State, Dept. of B. & F., 395 So.2d 521 (Fla.1981)), we believe the constitutional issues raised in the circuit court proceeding should be stayed and those issues may be raised by Sportsman in this court, if, as, and when an appeal is taken to this court from the final agency action on the suspension order.

Accordingly, the order of November 13, 1981, issued by the circuit court is reversed and the constitutional issues raised by Sportsman in the circuit court are hereby stayed pending eventual resolution thereof in this court should such issues be presented to us. The parties are directed to proceed with the final administrative hearing on the suspension order within 30 days from date of this opinion.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


author: ERVIN, Judge.

text:
    FLORIDA COLLEGE and Aetna Casualty & Surety Company, Appellants, v. Arlin WILSHER, Sr., and Michigan Mutual Insurance Company, Appellees.
    No. AB-41.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Richard A. Valeri and Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    John H. Thompson of Watson, Watson, Goldstein, Earle, Douglass & Dubbeld, P.A., St. Petersburg, for Michigan Mut. Ins. Co., appellee.
    H. Guy Smith, Lakeland, for Arlin Wilsher, appellee.
   ERVIN, Judge.

The only colorable issue in this workmen’s compensation case concerns the manner in which permanent disability benefits from two successive industrial accidents are to be paid when there are different carriers responsible for payment of the benefits attributable to each accident. The application and interpretation of Section 440.-15(5)(b), Florida Statutes (1977), is required.

Claimant and appellee Arlin Wilsher worked for appellant Florida College from 1973 to 1978, during which period he suffered two compensable industrial accidents. He suffered a back injury in 1975. Reaching maximum medical improvement (MMI) in September 1977, he was rated 25% permanently and partially disabled (PPD) to the body as a whole. Appellee Michigan Mutual Insurance Company promptly commenced payment of these payments.

However, good fortune did not favor the claimant because he suffered a second com-pensable accident on January 31, 1978. He slipped and injured his back while replacing a water faucet washer in a bathtub at work. The claimant reached MMI from this accident on June 25, 1980 and was rated as permanently and totally disabled (PTD) by the deputy commissioner. During the time between claimant’s. first and second compensable injuries, the employer’s relationship with its carrier, Michigan Mutual, was terminated. A new carrier, Aetna Casualty and Surety Company, was called upon to provide workers’ compensation coverage. Because Aetna was the carrier at the time of the claimant’s second accident, the deputy commissioner ordered it to immediately commence payment of PTD benefits as of the date of MMI for the second injury.

Aetna now contends that Michigan Mutual paid PPD benefits only until the claimant became temporarily and totally disabled due to his second injury. As a result there are unpaid PPD benefits due to the claimant from Michigan Mutual. Aetna maintains that Michigan Mutual should be required to fulfill its obligation prior to the start of Aetna’s obligation for the payment of PTD benefits.

In support of its contention Aetna relies on Section 440.15(5)(b), Florida Statutes (1977), which states:

• 440.15 Compensation for disability.
* * * * * *
(5) SUBSEQUENT INJURY—
* * # * # *
(b) If any employee receives a permanent injury as specified in this section, after having previously sustained another permanent injury in the employ of the same employer, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation. When the previous and subsequent injuries received in the same employment result in permanent total disability, compensation shall be payable for permanent total disability.

As written, this statute applies to successive permanent injuries incurred while working for the same employer. Because the claimant was working for Florida College at the time of both of his permanent injuries, this case falls within the ambit of the statute.

The statute also indicates that both injuries are fully compensable. The question is whether both the PPD benefits, payable by Michigan Mutual, and the PTD benefits, payable by Aetna, should be paid at the same time.

The statute requires that “the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation.” Applying the plain meaning rule of statutory construction to this statute, it is clear that while both injuries are compensable, both the PPD and PTD benefits in this case are not payable concurrently.

Professor Larson in his treatise on workmen’s compensation law presents a plausible rationale for this view.

There is both a theoretical and a practical reason for the holding that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxi-ma for total disability. The theoretical reason is that, at a given moment in time, a man can be no more than totally disabled. The practical reason is that if he is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it may be more profitable for him to be disabled than to be well — a situation which compensation law always studiously avoids in order to prevent inducement to malingering.

2 Larson Workmen’s Compensation Law § 59.41 at 10-508; 10-511 to 10-512 (1981) (footnote cites omitted).

To solve the problem of paying compensation for both injuries without exceeding the weekly maximum level for benefits Larson notes that the benefits for these injuries should be laid “end-to-end”. Id. at § 59.42 at 10-517. This approach seems to be in total agreement with the statutory requirement of compensating “by extending the period and not by increasing the amount of weekly compensation.”

Consequently, Michigan Mutual’s obligation to compensate for the permanent partial disability should be fulfilled first, at such time as compensation from the first injury has been paid; Aetna’s obligation to compensate for permanent and total disability, stemming from the second compensable injury, would then be generated. Accord, Walls v. Hodo Chevrolet Co., Inc., 302 So.2d 862, 868 (Miss.1974).

The deputy commissioner has ordered Aetna Casualty to begin making PTD benefit payments. Because it appears that Michigan Mutual may not have completed making all PPD benefit payments due, we REMAND this case so that the deputy commissioner may make all alterations in his order required by Section 440.15(5)(b), Florida Statutes. However, the order is AFFIRMED as to all other points raised in this appeal.

SHAW and WENTWORTH, JJ., concur.

      .Michigan Mutual argues that the parties had stipulated that it “had paid” all PPD benefits due the claimant, but the stipulation appears to be only to the extent that Michigan Mutual commenced payment of PPD benefits. How much of its obligation Michigan Mutual may have fulfilled we are unable to determine from the record. For the purpose of this opinion, we will assume that Michigan Mutual has not fulfilled all of its obligation for the payment of PPD benefits due.

      . Application of § 440.15(5)(c), Florida Statutes (1977), would be improper, because that sub-section is applicable to cases involving successive injuries causing a claimant to be permanently and partially disabled. Leight v. Aladdin Moving Co., 381 So.2d 258, 260 (Fla. 1st DCA 1980).

      . An unambiguous statute must be accorded its plain and ordinary meaning. Rowe v. State, 394 So.2d 1059 at 1059 (Fla. 1st DCA 1981); Carson v. Miller, 370 So.2d 10, 11 (Fla.1979); 30 Fla.Jur. Statutes § 87 (1974).

      . Professor Larson’s viewpoint has been cited with approval by the Florida Supreme Court in a case that is factually distinguishable. See Dennis v. Brown, 93 So.2d 584, 587 (Fla.1957).


author: WENTWORTH, Judge.

text:
    POMPANO ROOFING CO., INC., Appellant, v. Freddie O’NEAL, Appellee.
    No. AC-101.
    District Court of Appeal of Florida, First District.
    March 8, 1982.

      . Walter E. Beisler, Beisler & Wells, West Palm Beach, for appellant.
    Emil Jaczynski, Fort Lauderdale, for ap-pellee.
   WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order which we affirm except as to the award of wage loss benefits subsequent to the determined date of maximum medical improvement. No claim was made for such benefits and claimant’s attorney expressly conceded that “permanency” was not at issue. The deputy in the circumstances of this case may not rule on issues which are beyond the agreed scope of the hearing, and it was therefore error to order payment of wage loss benefits subsequent to the date of maximum medical improvement. Cf., Bordo Citrus Products v. VarnaDore, IRC Order 2-3541 (Sept. 20, 1978), cert. denied, 372 So.2d 466 (Fla.1979).

Employer/carrier also contends that the deputy erred by “deeming,” in accordance with § 440.15(4)(b), Florida Statutes (1979), minimum wage as the amount claimant was able to earn during his period of temporary partial disability. Section 440.-15(4)(b) was properly invoked, in the circumstances of this case, upon the deputy’s determination that claimant failed to conduct an adequate work search or otherwise sufficiently attempt to return to work. Cf., Leffler v. Grand Union Co., 409 So.2d 1145 (Fla. 1st DCA 1982). Employment market conditions are generally not cognizable by judicial notice, see United States Sugar Corporation v. Hayes, 407 So.2d 1079, (Fla. 1st DCA 1982), and the record in the present case lacks an evidentiary predicate for the deputy’s minimum wage finding. However, the record also lacks any eviden-tiary predicate which would support a conclusion that claimant was capable of securing more remunerative employment. We conclude from the provisions of the cited statute that the burden of proof in this regard must be carried by employer/carrier. Having failed to satisfy this burden in the present case, employer/carrier has failed to demonstrate error in the deputy’s finding that claimant was able to secure minimum wage, rather than more remunerative, employment. Claimant has not cross-appealed this finding.

The order appealed is amended so as to delete the language ordering payment of wage loss benefits subsequent to the date of maximum medical improvement, and the order is hereby affirmed as amended.

MILLS and THOMPSON, JJ., concur.


text:
    ALTON BEVERAGES, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO of the State of Florida, Appellee.
    No. 81-1164.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Sy Chadroff and Lane Abraham, Miami, for appellant.
    Harold F. X. Purnell, Tallahassee, for ap-pellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla.3d DCA 1976).


author: ORFINGER, Judge.

text:
    ST. CLOUD UTILITIES, Appellant, v. Erick S. MOORE, a minor, etc., et al, Appellees.
    No. 81-513.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.
    H. R. Thornton, Jr., St. Cloud; Lefferts L. Mabie, Jr., and Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellant.
    No appearance for appellee Moore.
    Robert W. Kieffer of Sanders, McEwan, Mims & McDonald, Orlando, for appellee Arthur Cassell d/b/a Cassel’s Garage.
   ORFINGER, Judge.

The issue presented by this appeal is how long the trial court continues to have jurisdiction to entertain a motion for contribution under section 768.31(4) of Florida Statutes (1979), the Uniform Contribution Among Tortfeasors Act, after the final judgment determining liability is rendered.

Appellant and appellee were among defendants held liable for damages in a corrected final judgment entered October 13, 1978. On October 5, 1979, appellant paid the entire final judgment and on April 4, 1980, appellant filed a motion in the original action seeking contribution from appel-lee. The order appealed from struck the motion for contribution on the ground that the court lacked jurisdiction to entertain it. We affirm.

The trial court relied on Johns-Manville Sales Corporation v. The Zack Company, 374 So.2d 1150 (Fla. 3d DCA 1979), which simply held that contribution under the statute must be sought either by a motion filed in the original action within thirty days of the rendition of the judgment for the plaintiff, or by a separate action commenced within one year of the rendition of the final judgment for plaintiff, if the moving party has not appealed. While the statute prescribes a time limitation within which to file a separate action where a judgment has been entered against the tort feasor seeking contribution, no time is specified within which a motion for contribution may be filed. Section 768.31(4)(b) states:

When a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants, by motion upon notice to ail parties to the action. (emphasis added).

The Zack court in holding that such motion must be filed in the original action within thirty days of the rendition of the final judgment, undoubtedly considered that trial court jurisdiction continued during that 30-day period. Whether we agree with that statement or believe that the jurisdiction of the trial court ends at an earlier date is not essential to our decision, because the motion was filed long after the thirty-day period had expired, but we do agree that the trial court must have jurisdiction or it cannot consider the motion for contribution. Here, the motion was filed more than one year after the judgment became final, and under any view, the trial court jurisdiction had ended.

Since the trial court had lost jurisdiction of the action, there was no error in striking the motion. The order appealed from is

AFFIRMED.

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

      . No facts are stated in Zack, so we cannot determine which of the two alternative procedures were involved there. Sub judice, since contribution was sought by motion filed in the original action, we do not discuss any issue which might be raised with regard to the filing of a separate action for contribution, and specifically, when the right to file such action terminates.

      . § 768.3l(4)(c), Fla.Stat. (1979):
      If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.

      . The Zack court may have extended the jurisdiction of the trial court for thirty days following rendition of the final judgment because of the language in section 768.3 1(4)(c) which permits the filing of a separate action for contribution within one year after the judgment has become final by lapse of time for appeal or after appellate review. No similar language is contained in section 768.3 1(4)(b). Additionally, the Supreme Court has already dispelled the notion that the time within which an appeal may be taken from a final judgment has anything to do with continued jurisdiction of the trial court. Shelby Mutual Insurance Company of Shelby, Ohio, v. Pearson, 236 So.2d 1 (Fla.1970). The trial court loses jurisdiction, except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540, when the time for filing a motion for rehearing or new trial has expired, or if such motion has been timely filed, when it is ruled upon. Shelby; The Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965).


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

text:
    Patricia W. FERRÉ, Appellant, v. George A. FERRÉ, Appellee.
    No. 81-684.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.

      Fred A. Ohlinger, Ocala, for appellant.
    Eugene H. Johnson of Wagner & Simmons, Ocala, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Pursuant to the final judgment of divorce entered in 1971, the husband was required to pay $1,000 per month as permanent alimony and $200 per month per child as child support. The judgment also provided that the payments would be increased or decreased according to the Consumer Price Index using 1971 as the base year.

On March 16, 1976, the husband petitioned for modification of the alimony provision. On April 12, 1976, the motion was granted and the alimony payment was reduced to $750 per month. One month later, the wife moved to hold the husband in contempt for failing to pay the cost of living increase as provided in the final judgment. On June 28, 1976, Judge Smith entered an order which held that the wife was entitled to the cost-of-living increase on the reduced alimony award of $750 after April 12,1976. By implication, the order eliminated the cost-of-living increase prior to April 12, 1976 and changed the base year for calculating the increase from 1971 to 1976.

In 1979, the parties filed another round of petitions: the husband filed a petition to modify the final judgment and the wife filed a motion seeking to hold the husband in contempt for failure to pay the cost-of-living increases and to comply with other provisions of the judgment.

On April 27, 1981, Judge Sturgis entered the order being appealed. This order assessed the cost-of-living increases for alimony and child support for the years 1972 through 1979. For the year 1972, Judge Sturgis multiplied the alimony and child support awards in the amounts as originally provided in the final judgment ($1,000 per month for alimony and $200 per month per child for child support) by the percentage increase in the cost-of-living index from 1971 to 1972. For the year 1973, Judge Sturgis took the alimony and child support awards in the amounts as originally provided in the final judgment unadjusted by the prior increase and multiplied these unadjusted figures by the percentage increase in the cost-of-living index from 1972 to 1973. For the remaining years, the judge continued to multiply the unadjusted alimony and child support awards by the cost-of-living increase measured from the preceding year rather than from the base year.

On appeal, the wife claims that the court incorrectly calculated the cost-of-living increases. The husband has cross-appealed from the order claiming that the court erred in awarding the cost-of-living increase associated with the alimony award for the years 1972 to April 12, 1976.

The purpose of the cost-of-living adjustment was to guarantee the wife in future years the buying power of the original alimony and child support awards. To properly calculate this figure, the original alimony and child support awards must be multiplied by the percentage increase measured from the base year and not from the preceding year. The base year for calculating the cost-of-living adjustment for the child support is 1971.

The base year for calculating the cost-of-living adjustment for the alimony award is 1976. Because of the order entered by Judge Smith, the cost-of-living adjustment applies only after April 12, 1976, and the wife is not entitled to any increases prior to this date. If Judge Smith erred in his calculations of the arrearages in his order, that question should have been raised on appeal at that time, not five years later. See DiMartino v. DiMartino, 360 So.2d 1133 (Fla.3d DCA 1978).

We therefore REVERSE and REMAND for determination of the arrearages.

DAUKSCH, C. J. and COBB, J., concur.

      . The exact language was:
      ORDERED AND ADJUDGED that the payments for alimony and child support ordered herein shall be increased or decreased as the case may be with the cost of living as published by the U.S. Department of Commerce each year, said increase or decrease shall be made annually when the statistics are released by the U.S. Government. Said payments are to be increased or decreased by the percentage of increase or decrease using 1971 as the base year.

      . Because the husband had not moved to reduce the child support provisions, we construe the order entered April 12, 1976, as modifying only the cost-of-living adjustment and base year associated with the alimony provision of the final judgment of divorce.


author: COWART, Judge.

text:
    Henry James DENARD, a/k/a Henry Lowe, Appellant, v. STATE of Florida, Appellee.
    No. 81-751.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

A defendant must file a notice of appeal in a criminal case between rendition of the final judgment and thirty days following the entry of a written order imposing sentence. Fla.R.App.P. 9.140(b)(2). The notice of appeal in this case was filed on June 10, 1981, thirty-two days after the corrected judgment and sentence and approximately two and one-half months after the original judgment and sentence, and was, accordingly, not timely filed.

Effective January 1, 1981, Florida Rule of Criminal Procedure 3.590 was amended to provide that motions for new trial or in arrest of judgment “may be made within 10 days after the rendition of the verdict or the finding of the court.” In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980). The verdict in this cause was rendered on January 20, 1981. The tenth day thereafter was January 30, a Friday. Both appellant’s motion for new trial and his motion in arrest of judgment were filed on February 2, thirteen days after rendition of verdict. Since the motion for new trial was not timely, it was insufficient to delay rendition for purposes of filing a notice of appeal. Fla.R.App.P. 9.020(g). Therefore, the untimely motion for a new trial did not cause the rendition of the final judgment to be postponed beyond the original time limitation of thirty days following entry of the written order imposing sentence. This court has no jurisdiction to hear this appeal and the trial judge’s order purporting to delay rendition of the judgment and sentence until disposition of the motion for a new trial is ineffective to accomplish that purpose and to vest this court with jurisdiction. Accordingly, this appeal is

DISMISSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Daniel Dennis DERATANY, Appellee.
    No. 81-861.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    H. S. Henderson, III, Melbourne, for ap-pellee,
   SHARP, Judge.

The State appeals from the trial court’s order discharging Deratany because the “speedy trial” time of one hundred eighty (180) days had expired before he was brought to trial. We reverse because the record shows less than one hundred eighty (180) days had passed following Deratany’s arrest when he made his motion for discharge.

The question in this case, as in State v. Van Winkle, 407 So.2d 1059 (Fla. 5th DCA 1981), is when the one hundred eighty (180) day time period began to run. On October 11, 1980 Deratany made a report to a police officer and on October 15, 1980 he presented an insurance claim, both relating to jewelry he claimed had been stolen. Deratany was charged with making a false report to a police officer, and he appeared and answered the charge on December 17, 1980. Later the State nolle pressed this charge. Deratany was arrested on April 12, 1981 on the charge of presenting a false insurance claim. He filed a motion for discharge on June 22, 1981. The one hundred eighty (180) day period had run if calculated from December 1980, but it had not if calculated from April, 1981.

We conclude that, as in Van Winkle, this defendant was charged with two separate and distinct crimes committed at different times. His arrest or being held to answer charges on the first crime had no impact, for Speedy Trial Rule purposes, on his arrest for the second crime. The one hundred eighty (180) day period began to run on the second crime when Deratany was arrested on April 12, 1981, and it had not run when he filed his motion for discharge.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

      . Fla.R.Crim.P. 3.191(a)(1).


text:
    Margaret JOHNSON, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 81-975.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.

      Edward A. Nagel, Winter Park, for appellant.
    Reinald Werrenrath, III, of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   ORFINGER, Judge.

Appellant, plaintiff below, appeals a final order dismissing her action for failure to comply with an order of court. We affirm.

Appellant had filed suit against her own insurance carrier seeking benefits for loss of earning capacity resulting from an automobile accident. The carrier had paid other benefits, but had denied that there had been a loss of earning capacity.

As the matter proceeded, appellee propounded written interrogatories to appellant, among which was one requesting information as to the method by which appellant calculated her loss of earning capacity. Dissatisfied with the response which it considered incomplete and evasive, appellee moved for an order to require a better answer, which motion was granted. Appellant then responded in a manner which appellee deemed to be not in compliance with the original order and filed a second motion to compel a better answer. After hearing, a second order was entered requiring an additional answer to the interrogatory, outlining the court’s interpretation of the applicable statute, section 627.736(1)(b), Florida Statutes (1979), as it related to loss of earning capacity. This second order required appellant to state, within thirty days, the dollar amounts claimed and the method of calculation of earning capacity to the date of the answer.

When no response was forthcoming, ap-pellee again moved for sanctions, and after hearing, the court denied the motion for sanctions, but again ordered a response to the interrogatory within thirty days, this time stating that the action would be dismissed upon failure to respond. When there was again no response to the third order within the time specified, the order of dismissal was entered.

Appellant seeks reversal by arguing that the trial court misconstrued the meaning and intent of the statute under which recovery was sought, but that argument completely misses the point of what is involved here. This action was dismissed not because of the court’s interpretation of the statute, but because appellant completely ignored two valid orders of the court requiring a response to an interrogatory. Appellant says that she answered the question the best way she could, which may or may not be so, but this does not condone completely ignoring two court orders requiring that she do something more.

If a party fails to properly serve answers or objections to interrogatories, the trial court may enter an order to compel discovery. Fla.R.Civ.P. 1.380(a)(1) and (2). If the party does not comply with the order, the court may then impose sanctions, one of which is dismissal of the action. Fla.R. Civ.P. 1.380(b)(2)(c) and 1.380(d). Appellant says that the penalty here is too harsh because there is no showing that the refusal to comply was wilful. See Ramos v. Sanchez, 375 So.2d 51 (Fla.2d DCA 1979). Appellant did not respond to the second order, and despite a motion for sanctions by appel-lee, the court gave appellant another opportunity, and entered a third order requiring a response within thirty days, or else the complaint would be dismissed. Appellant still did nothing. Certainly, the trial court had the right to interpret this last failure to reply as wilful and intentional.

A party may not ignore a valid order of court except at its peril. There are avenues of redress by appellate review for orders which may be erroneous, but so long as such orders are entered by a court which has jurisdiction of both the subject matter and the parties, they cannot be completely ignored without running the risk that an appropriate sanction may be imposed. The court had the discretion to dismiss the action under the circumstances shown here, and we cannot say that such discretion was abused.

AFFIRMED.

COBB and COWART, JJ„ concur.


author: RYDER, Judge.

text:
    Horace Lee SPEED, Appellant, v. STATE of Florida, Appellee.
    No. 81-1059.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant’s counsel filed an Ander’s brief in this case where appellant was sentenced to seventy-five years for first-degree burglary and seventy-five years for sexual battery, both sentences to run concurrently. However, for reasons expressed below we vacate his seventy-five year sentence for sexual battery while affirming his convictions for burglary and sexual battery.

Burglary may be a first, second, or third-degree felony, depending upon the allegata and probata. § 810.02, Fla.Stat. (1979). To convict a defendant of first-degree felony burglary, the state must plead and prove not only the essential elements of burglary as defined in section 810.02(1), but also that, in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon.

Here, the state charged appellant with first-degree felony burglary by including in the charging language the allegation that, during the course of the burglary, appellant made an assault, to wit: sexual battery upon the victim. In order to convict appellant of the charged offense, the state had to prove that appellant committed a sexual battery upon the victim. Thus, the finding that appellant committed a sexual battery was indispensable to the first-degree felony burglary conviction.

Our supreme court recently held in State v. Hegstrom, 401 So.2d 1343 (Fla.1981), that where the crime of first-degree murder committed during the course of a robbery requires, by definition, proof of the predicate robbery, the latter is necessarily an offense included within the former. The court then reasoned that Hegstrom could not be sentenced both for felony murder and for the underlying felony under the legislative intent test used in Whalen v. United States, 445 U.S. 684, 63 L.Ed.2d 715, 100 S.Ct. 1432 (1980), and section 775.021(4), Florida Statutes (1979), which states:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode. ...

The court concluded that while Hegstrom was barred from multiple sentences, there was no bar to multiple convictions. See also Sands v. State, 403 So.2d 1090 (Fla.3d DCA 1981).

In our case, appellant cannot be sentenced both for first-degree felony burglary and sexual battery, but can be convicted and adjudicated guilty of both. By doing this we recede from that portion of McRae v. State, 383 So.2d 289 (Fla.2d DCA 1980), which holds that a person cannot be convicted of both burglary and sexual battery when the sexual battery is indispensable to the first-degree burglary conviction.

Accordingly, appellant’s convictions and judgments of guilt for first-degree burglary and sexual battery are affirmed, as is the sentence of seventy-five years imprisonment for first-degree burglary, but his concurrent sentence of seventy-five years for sexual battery is vacated.

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

      . In the instant case, the public defender’s office filed this brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there was no meritorious argument to show the trial court committed reversible error.


author: SCHEB, Chief Judge.

text:
    Richard YUSK and Georgia Yusk, husband and wife, individually, and as parents and next friends of Chad Yusk, a minor, Appellants, v. Charles E. WRIGHT and the St. Paul Fire & Marine Insurance Company, Appellees.
    No. 81-1583.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellants.
    Gregory W. Hootman of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellees.
   SCHEB, Chief Judge.

Plaintiffs, Richard and Georgia Yusk, individually, and as parents and next friends of their son, Chad Yusk, sued to recover for injuries sustained by Mrs. Yusk and their son who were injured in an automobile accident. After a nonjury trial the court found the defendants liable but held Mrs. Yusk twenty-five percent negligent. Plaintiffs’ counsel requested the court to enter separate awards for each plaintiff. However, the court awarded the plaintiffs a single judgment of $17,949.74.

The one contention by the Yusks that has merit concerns the court’s failure to enter a separate judgment for Mr. and Mrs. Yusk on behalf of their son Chad, age 10. While the court should have entered a separate judgment on each of the plaintiffs’ claims, it was not reversible error in this case for the court to enter a common judgment for . Mr. and Mrs. Yusk. It was reversible error, however, for the court to have failed to enter a separate judgment for the Yusks on behalf of their minor son as they requested. Tucker v. Shelby Mutual Insurance Co., 343 So.2d 1357 (Fla.14st DCA 1977). The separate judgment is essential because the sum awarded on the minor’s behalf must be accounted for by the parents. See Cicero v. Paradis, 184 So.2d 212 (Fla.2d DCA 1966). Additionally, the minor’s award cannot be reduced by the twenty-five percent comparative negligence of Mrs. Yusk since a driver’s negligence cannot be imputed to a passenger where, as here, the passenger had no authority or control over the car or driver. Bessett v. Hackett, 66 So.2d 694 (Fla.1953); Singletary v. National Railroad Passenger Corp., 376 So.2d 1191 (Fla.2d DCA 1979).

We have examined the other contentions raised by the plaintiffs, and find them to be without merit. Accordingly, we vacate the final judgment, and remand for entry of a judgment to comport with this opinion.

GRIMES and DANAHY, JJ., concur.


text:
    Hiram L. CHAMBERS, Appellant, v. ST. REGIS PAPER COMPANY, KRAFT DIVISION, Jacksonville, Florida, Appellee.
    No. ZZ-145.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Ray L. Wilson, Jacksonville, for appellant.
    William G. Cooper of Kent, Watts, Dur-den, Kent & Mickler, Jacksonville, for ap-pellee. .
   ERVIN, Judge.

Chambers appeals from a final order which denied his claim for declaratory relief and compensatory damages. We affirm.

The appellant was employed by the St. Regis Paper Company when an industrial accident occurred in 1974. St. Regis paid temporary workers’ compensation benefits, and by 1978 the parties were negotiating a lump-sum settlement for permanent benefits. Meanwhile, in February of that year, Chambers formally applied for the company’s early retirement/disability pension benefits. A few days after he filed this application, the parties agreed to a workers’ compensation settlement representing compensation benefits, future medical expenses and attorney’s fees.

Subsequently, St. Regis notified Chambers that he would not receive his first retirement/disability check until 1984 because the company was taking a setoff in the amount of compensation benefits paid under the settlement agreement. Chambers then brought this action in circuit court, seeking a declaratory statement of the parties’ rights and requesting damages in the amount of his retirement/disability benefits.

In this appeal and in the non-jury trial below, Chambers has argued that the employer’s action has impermissibly diminished his workers’ compensation benefits and that he was not given adequate notice of the company’s intent to take an offset. We disagree.

Plainly, Chambers will receive the workers’ compensation benefits for which he bargained. Nothing in the Florida Workers’ Compensation Act precludes an employer from taking a setoff under the circumstances of this case. See City of Miami v. West, IRC Order 2-2647 (May 22, 1974) cert. denied, 310 So.2d 304 (Fla.1975). Notice was adequately provided by the terms of the pension plan, quoted in the judge’s order, which explained to employees that “your Plan benefits will be reduced by any other disability benefits for which the Company contributes — either directly or indirectly.”

Accordingly, the order of the trial court is AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


text:
    LAGO WEST 84, INC. and American Casualty Company, Appellants, v. Marvin HINES, Appellee.
    No. AC-418.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Law Offices of Peter G. Stassun, Coral Gables, and Flynn, Niemoeller, Stieglitz & Downs, Miami, for appellants.
    Dennis M. Usdan of Nolan & Usdan, Fort Lauderdale, for appellee.
   PER CURIAM.

Because the deputy commissioner did not have the benefit of our decision in Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981), at the time she entered her order, we reverse and remand so that she may make a finding relative to the amount and reasonableness of the basis for any overpayment of compensation pursuant to the dictates of Dardy.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    CHAIN OF LAKES GROVES and Florida Farm Bureau Insurance Company, Appellants, v. McKinley GIDDENS, Appellee.
    No. AD-335.
    District Court of Appeal of Florida, First District.
    March 11, 1982.

      James M. Hess of Driscoll, Langston, Layton & Kane, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal the deputy’s findings that claimant suffered a compensa-ble accident and that the value of transportation furnished by claimant’s supervisor to and from work without the employer’s knowledge was includable in the calculation of claimant’s average weekly wage. We affirm the finding of compensability but reverse the finding regarding the value of the transportation.

The record contains unrefuted evidence that the employer had no knowledge that claimant’s crew leader was providing transportation for his crew to and from work. Also, the crew leader was not reimbursed for any of the expenses connected with this transportation. See George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980). This case is factually distinguishable from those cases which hold that a claimant is in the course of employment when he is traveling to and from work in transportation under the control of the employer or in transportation provided by a supervisor who is reimbursed for this expense by the employer. See Lee v. Florida Pine and Cypress, 157 So.2d 513 (Fla.1963); Larson, 1 Workmen’s Compensation Law, § 17.00 et seq. (1978).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Jean D. MURRAY, as Personal Representative of the Estate of Sherri Lynn Bloodworth, Deceased, Appellant, v. SACRED HEART HOSPITAL OF PENSACOLA, Neil E. McWilliams, M.D., and John H. Whitcomb, M.D., Appellees.
    No. AE-376.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    James F. McKenzie of Myrick & McKenzie, P.A., Pensacola, for appellant.
    Charles C. Sherill and H. Edward Moore, Jr. of Sherrill, Moore & Hill, Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
   PER CURIAM.

AFFIRMED on the authority of Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

MILLS and WENTWORTH, JJ., and OWEN, WILLIAM C., Associate Judge, concur.


author: THOMPSON, Judge.

text:
    Mitchell B. BAILEY, Appellant, v. HAWES CHRYSLER-PLYMOUTH and Lynn Underwriting Company, Appellees.
    No. AC-381.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    R. Dennis Comfort of Sieg, Comfort, Hawk, LaCroix & Reid, Gainesville, for appellant.
    John P. Brooks of Jones & Langdon, P. A., Gainesville, for appellees.
   THOMPSON, Judge.

The claimant appeals a compensation order, contending that the deputy commissioner (the deputy) erred in failing to rule on his claim for temporary partial disability (TPD), in failing to award rehabilitation services, and in failing to award a fee to his attorney. We agree the deputy erred in failing to rule on the TPD claim and reverse on that issue.

The deputy’s order awarded additional medical benefits but denied temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, rehabilitation services, and a fee to claimant’s attorney. .The employer/carrier (E/C) contend that the denial of PPD benefits was merely a scrivener’s error, that the intended reference was to TPD benefits, and therefore the deputy did rule on and deny TPD benefits. If the E/C were of that opinion, they should have requested the deputy to make that correction before the compensation order became final. This court cannot make that assumption on appeal. The issue of TPD was ripe and should have been decided by the deputy.

The deputy did not err by denying rehabilitation services to the claimant. Section 440.49, Fla.Stat. provides that where an employer does not voluntarily offer rehabilitation services, the employee must apply to the Division of Workers’ Compensation for a rehabilitation evaluation before seeking an award of such services from the deputy. The claimant has not applied for a rehabilitation evaluation and his claim for these services was properly denied by the deputy.

The deputy correctly determined that claimant’s attorney was not entitled to a fee for his recovery of additional medical benefits. Section 440.34(2)(a), Fla.Stat. (1979) provides that the claimant can recover a reasonable attorney’s fee from a carrier or employer against whom he has successfully asserted a claim for medical benefits only, if the claimant has not filed or is not entitled to file a claim for disability or certain other benefits. Here, the claimant filed a claim for disability in addition to the claim for medical benefits and § 440.-34(2)(a) is not applicable. However, both parties agree that claimant’s attorney is entitled to a reasonable fee, and for that reason only we reverse and remand on this issue for the deputy to award claimant’s attorney a reasonable fee.

Reversed and remanded for further proceedings consistent with this opinion.

MILLS and WENTWORTH, JJ., concur.


text:
    AMERICAN BAKERIES and Liberty Mutual Insurance Company, Appellants, v. Clifford D. WEIDNER, Appellee.
    No. AD-130.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Donna L. Bergh, Walker, Buckmaster, Miller & Ketcham, Orlando, for appellants.
    James M. Hess, Driscoll, Langston, Lay-ton & Kane, Orlando, for appellee.
   PER CURIAM.

There being no showing of causal connection between claimant’s alleged misrepresentation on his employment application and his subsequent heart attack, the employer/carrier’s Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961) defense must fail. The order of the deputy commissioner finding that claimant suffered a compensa-ble heart attack is affirmed.

ROBERT P. SMITH, Jr., C. J., LARRY G. SMITH and WIGGINTON, JJ., concur.


text:
    WEST FLORIDA DISTRIBUTORS, INC. and Chubbs Group, Appellants, v. Anderson JOHNSON, Appellee.
    No. AD-359.
    District Court of Appeal of Florida, First District.
    March 15, 1982.

      J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellants.
    Roderic G. Magie, of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.
   PER CURIAM.

The award of an attorney’s fee to claimant’s counsel is REVERSED because there was no outstanding contest of compensability at the time the services were rendered, that having previously been finally determined by the deputy’s prior order finding the accident compensable and awarding counsel a fee. Section 440.34(2)(c), Florida Statutes (1979). No other ground for awarding a fee was urged to the deputy. Contrast Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

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


text:
    Thomas KELSEY, Appellant, v. STATE of Florida, Appellee.
    No. AE-173.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appel-lee.
   THOMPSON, Judge.

Kelsey appeals a final judgment of guilt of the crime of manslaughter, contending it was error for the trial judge to refuse to reinstruct the jury on excusable homicide and justifiable homicide when the jury twice requested reinstruction on the crime of manslaughter. We agree and reverse.

At the conclusion of the trial, the court instructed the jury on all degrees of unlawful homicide, and on excusable and justifiable homicide. After deliberating for an hour and a half, the jury came out and requested that the definitions of second degree murder and manslaughter be repeated. Appellant’s counsel moved for reinstruction on justifiable and excusable homicide as well, but the court denied this motion. After deliberating for approximately two-and-one-half more hours, the jury again requested an additional instruction as to “the complete definition of manslaughter.”

Again, appellant’s counsel asked that the jury be reinstructed on justifiable and excusable homicide. The state did not object to appellant’s request for the reinstruction but nonetheless the court denied appellant’s request. In Hedges v. State, 172 So.2d 824 (Fla.1965), our Supreme Court held that “in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.” Justifiable homicide and excusable homicide are exclusions to unlawful homicide. When the jury asked for “a complete definition of manslaughter”, it was error for the trial judge to deny appellant’s request that they also be instructed on the definitions of excusable and justifiable homicide.

The state contends that the conviction should be affirmed on the authority of Henry v. State, 359 So.2d 864 (Fla.1978), in which the jury asked for reinstruction on the difference between first and second degree murder. The trial court gave the rein-struction without instructing as to any of the other degrees of homicide. On appeal, the Florida Supreme Court approved the trial judge’s action in reinstructing only as to the crimes the jury specifically asked about. However, the Henry opinion cannot be read as a grant of approval for the giving of a less than full and complete instruction as to any particular crime. See, e.g., Hunter v. State, 378 So.2d 845 (Fla. 1st DCA 1979), and Hysler v. State, 85 Fla. 153, 95 So. 573 (Fla.1923). Manslaughter, unlike first and second degree murder, is a residual offense which is actually defined by reference to what it is not. In this case, the jury’s request specified “the complete definition of manslaughter.” This request is controlled by Hedges and requires not only the definition of manslaughter but of the other degrees of homicide, including justifiable and excusable homicide.

The appellant contends that the trial judge also erred in failing to give a requested instruction on circumstantial evidence. Under the facts of this case, the trial judge’s refusal to give such an instruction was not an abuse of his discretion. Neither did the trial judge err in failing to grant appellant’s motion for mistrial because of the prosecutor’s improper closing arguments. The remarks objected to by appellant were clearly improper and though they were perhaps not sufficient to warrant reversal in this case, we caution counsel that an otherwise valid conviction may be reversed because of overzealous prosecutorial misconduct.

REVERSED.

MILLS and WENTWORTH, JJ., concur.


author: JOANOS, Judge.

text:
    Terry WICKHAM, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AG-372.
    District Court of Appeal of Florida, First District.
    March 15, 1982.

      Terry Wickham, in proper person, for appellant.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   JOANOS, Judge.

Terry Wickham appeals from a final order of the Parole and Probation Commission setting his presumptive parole release date. The record indicates that he was convicted of robbery and in the course of committing the robbery carried a deadly weapon, to wit: a firearm, contrary to Section 812.-13(2)(a), Florida Statutes (1979). There is sufficient information in the record to support a determination that in the course of the robbery he struck the victim.

The Parole and Probation Commission’s action form showed the offense of conviction as robbery and included aggravations of four months for the use of the firearm during the offense and fourteen months because the victim was struck several times during the offense.

Wickham filed for review of the presumptive parole release date (PPRD), asserting that he was convicted of armed robbery and not, as stated on the action form, robbery. He also contended that since the use of a weapon is included within the definition of armed robbery, it was improper for him to be aggravated for that factor. Rule 23-19.03(l)(a), F.A.C. Furthermore, he urged that since the act of force or violence is within the definition of armed robbery, the striking of the victim may not be used as an aggravation. Finally, Wickham contended that since the Commission committed “an irreversible error” by placing him in a lower category of the offense severity rating than is proper, it could not upon review raise the severity level. The Commission adhered to its original action and this appeal was taken with Wickham raising the same issues here as had been raised to the Commission.

On appeal, the Commission concedes that the offense severity rating for armed robbery should have been assigned rather than that for robbery and that when the prisoner has an offense severity rating based on a conviction of armed robbery, the Commission cannot further aggravate the person for the fact that he was armed. The question which is presented, then, is whether the Commission may now simply correct the scoring. We agree with the Commission that it may. The purpose of an appeal, whether administrative or judicial, is to correct error, and in this case the Commission acknowledges that it has committed an error. Our holding here is not contrary to this court’s holding in McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). In McKahn this court ordered the Commission to reduce the prisoner’s offense characteristic and to reduce the erroneous PPRD previously assigned to the prisoner. Instead of complying with this court’s order, however, the Commission in McKahn added an aggravating factor and awarded the same PPRD as the Commission had previously set. This is distinguishable front the situation here where the Commission is requesting that it be allowed to correct the very errors which have been called to its attention.

As for the aggravation for striking the victim, Wickham was charged with robbery “by force, violence, assault or putting in fear.” For conviction, it is not necessary that the victim be struck. The circumstances here seem comparable to those present in Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980), wherein the prisoner complained, among other things, that an aggravation for “shots fired” on an armed robbery conviction was cumulative to the offense severity rating. In that case, this court specifically held that the actual use of the gun is more serious than the threat of its use because the possibility of serious bodily injury or death is greater when shots are fired than when a weapon is merely possessed during the course of the robbery. Similarly, in the instant case, the possibility of injury to the victim could reasonably be considered to be greater when the victim is struck than when the victim is only threatened with violence. Accordingly, it was not error for the Commission to add an aggravation for the striking of the victim.

Concerning the aggravation for the use of the firearm, this opinion should not be construed to mean that one may never be aggravated for the use of a firearm when one is convicted of armed robbery. In fact, Baker holds to the contrary. If there is some way in which the firearm is used which distinguishes it from simply being “carried,” which is all that is required by Section 812.13(2)(a), and the Commission specifies that use with a written explanation which contains “individual particularities” which distinguish the aggravating circumstance relied on from the factors which determine the offense characteristic and the salient factor score, then aggravation may be appropriate. In the instant case, the Commission has conceded that the aggravation for the use of a firearm was improper because of the “armed robbery” conviction and has not asserted that the use of the firearm involved anything more than carrying it during the robbery.

AFFIRMED in part, REVERSED in part, and REMANDED for the corrections noted in this opinion.

BOOTH and SHIVERS, JJ., concur.


text:
    James Watson GENTRY, Appellant, v. STATE of Florida, Appellee.
    No. AH-480.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. However, the provisions of the judgment imposing $12 in costs on appellant, previously adjudged indigent, are stricken. Cox v. State, 334 So.2d 568 (Fla.1976).

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


text:
    TRAVELERS INDEMNITY COMPANY, etc., Appellant, v. Lucille CHAVIS, Appellee.
    No. 79-1045.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, George P. Telepas, Miami, for appel-lee.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN, (Ret), Associate Judge.
   PER CURIAM.

Affirmed. Travelers Insurance Co. v. Rodriguez, 387 So.2d 341 (Fla.1980), affirming, 367 So.2d 687 (Fla.3d DCA 1979); Florida Farm Bureau Mutual Insurance Co. v. Quinones, 409 So.2d 97 (Fla.3d DCA 1982).


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Nivia SARDUY, Appellee.
    No. 80-734.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Alfred D. Bieley, Miami, for appellant.
    Wolfson, Appel & Brown and Anthony J. Brown, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL  and SCHWARTZ, JJ.

       Barkdull, J., participated in this decision but did not hear oral argument in this case.

   PER CURIAM.

Affirmed. See: Florida Farm Bureau v. Quinones, 409 So.2d 97, (Fla. 3d DCA 1982); Castillo v. State Farm Mutual Automobile Insurance Company, 328 So.2d 567 (Fla. 3d DCA 1976).


text:
    Tony ROUNDTREE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1076.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Bennett H. Brummer, Public Defender, and Charles I. Poole, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and PEARSON, DANIEL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980); Franklin v. State, 356 So.2d 1352 (Fla.2d DCA 1978).


text:
    Tony ROUNDTREE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1313.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.

      Bennett H. Brummer, Public Defender, and Charles I. Poole, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Scheel v. State, 350 So.2d 1120 (Fla. 3d DCA 1977).


text:
    Eugene T. FOUST, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2081.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Bennett H. Brumer, Public Defender, and James R. Gailey, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Eugene Foust has perfected his appeal from an order entered by the circuit court, by which his probation was revoked and thereupon he was sentenced to serve a period of years of imprisonment.

Upon a careful reading of the record, we conclude that the evidence offered by the State to support its charge that Foust violated the terms and conditions of his probation is legally insufficient to support the order of revocation entered by the trial court. It therefore follows that the order revoking probation is reversed and the cause remanded with directions to the trial court to vacate the judgment and sentence imposed upon Eugene Foust, and reinstate his original probation orders.

Reversed and remanded with directions to proceed in harmony with the views herein expressed.


author: BASKIN, Judge.

text:
    PROPRIETORS INSURANCE COMPANY, Appellant, v. Yetta SIEGEL, Appellee.
    No. 80-2108.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.

      Hayden & Milliken and John D. Kallen, Miami, for appellant.
    Greenfield & Duval and Joseph Robert Miertschin, Jr., Fort Lauderdale, for appel-lee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Proprietors Insurance Company seeks reversal of a summary judgment which established that Yetta Siegel’s yacht, the Carole, was covered by Proprietors’ $100,000 policy, insuring it against perils of the sea and negligence of the charterers, when it sank. Our examination of the record before us discloses an absence of genuine issues of material fact; we therefore affirm the trial court’s decision.

Appellee contended that she was entitled to recover for the loss of the Carole under the policy issued to her by Proprietors. The policy provided coverage for perils of the sea and negligence of the charterer for a one-year period during which the Carole was to be used for commercial and charter sport fishing. In affirmative defenses, Proprietors asserted that the loss of the Carole was not the result of an enumerated peril and that Yetta Siegel had failed to obtain Proprietors’ consent before chartering the yacht. Proprietors also contended that Mrs. Siegel had breached express warranties of seaworthiness by failing to take appropriate action when she first learned of the damage to the yacht. Upon motion, the court entered summary judgment in favor of appel-lee, finding that the policy provided coverage in the amount of $100,000 and that Proprietors was liable for the loss.

In determining whether the court ruled, correctly, we must consider whether affidavits filed in support of the motion for summary judgment established that appellant’s affirmative defenses failed to create any genuine issue of material fact; whether Yetta Siegel proved that the loss of the Carole was the result of an insured peril; whether appellee breached her express warranty to exercise due diligence and maintain the Carole in a seaworthy condition; and whether appellee’s failure to obtain Proprietors’ written consent prior to chartering the Carole voided the policy. We shall consider each issue separately.

Turning first to the sufficiency of the affidavits filed in support of the motion for summary judgment, we reiterate the basic principle that the movant must establish the non-existence of genuine issues of material fact in order to prevail. Arlen Realty, Inc. v. Penn Mutual Life Insurance Co., 386 So.2d 886 (Fla. 1st DCA 1980). The plaintiff must either disprove affirmative defenses or establish their legal insufficiency. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla.2d DCA 1979); Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So.2d 905 (Fla.3d DCA 1976). The burden of proving the existence of triable issues does not shift until the movant has met his burden of proving the non-existence of genuine triable issues. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

In the sworn complaint and affidavits, Yetta Siegel averred that she owned the vessel when it was lost at sea; that the vessel was insured; that Harry Siegel, Yet-ta’s agent, notified Proprietors of the loss; and that the vessel was seaworthy when it was transferred to the charterer. Yetta Siegel’s sworn proof of loss stated that two weeks after the Carole left Miami, she received notice that the propellers had been damaged when the Carole struck some rocks. A few days later, she was informed that the damage was greater than had at first appeared and that the boat had been beached, requiring hull repairs in order to return to Miami. Mrs. Siegel stated that she was advised that the Travel Man, a boat owned by David Travels and captained by Judd Bergen, had been hired by the charterer to tow the Carole back to Miami and that the Travel Man had towed the Carole into deep water where it sank. She was unable to obtain information concerning repairs made by the charterer. Proprietors, however, filed no affidavits in support of its affirmative defenses. Reviewing appel-lee’s sworn complaint, sworn proof of loss, affidavits, and other documents filed in support of her motion, we find that she established the absence of genuine issues of material fact and was entitled to summary judgment.

Next, we consider whether the loss of the Carole resulted from an insured peril. Proprietors contends that Mrs. Siegel did not have personal knowledge of the exact cause of the sinking and was therefore precluded from proving that the loss was caused by a peril within the policy’s coverage.

Appellee claimed that the sinking was caused by a peril of the sea, namely, negligence of the charterer. Her exhibits disclosed that at the time she transferred the Carole to the charterer, the Carole was seaworthy. Thus, she maintains, the charterer’s failure to return the Carole gave rise to a presumption that he was negligent. Rojas v. Robin, 230 La. 1096, 90 So.2d 58, 65 A.L.R.2d 1218 (1956). Negligence of the charterer is listed as an insured peril in Proprietors’ policy, distinct from perils of the sea.

The owner of a seaworthy ship need not prove the specific cause of loss as a prerequisite to recovery. When no other cause of loss is shown, a presumption that the loss was occasioned by a peril of the sea attaches. Boston Insurance Co. v. Dehydration Process Co., 204 F.2d 441 (1st Cir. 1953); Fireman’s Fund Insurance Co. v. Globe Navigation Co., 236 F. 618 (9th Cir. 1916); Mattson v. Connecticut Fire Insurance Co., 80 F.Supp. 101 (D.Minn.1948); Rojas v. Robin, supra; Land v. Franklin National Insurance, 225 S.C. 33, 80 S.E.2d 420 (1954); Glens Falls Insurance Co. v. Long, 195 Va. 117, 77 S.E.2d 457 (1953); Zillah Transportation Co. v. Aetna Insurance Co., 175 Minn. 398, 221 N.W. 529 (1928); Massey S. S. Co. v. Importers & Exporters Insurance Co., 153 Minn. 88, 189 N.W. 415, 31 A.L.R. 1372 (1922); contra, Klein v. Globe & Rutgers Fire Insurance Co., 2 F.2d 137 (3rd Cir. 1924); see Pacific Dredging Co. v. Hurley, 65 Wash.2d 394, 397 P.2d 819 (1964). Recovery is denied if the vessel was unsea-worthy from a cause other than those named in the Inchmaree Clause.

In Tropical Marine Product v. Birmingham Fire Insurance Co. of Pennsylvania, 247 F.2d 116 (5th Cir.), cert. denied, 355 U.S. 903, 78 S.Ct. 331, 2 L.Ed.2d 260 (1957), the court discussed the interaction of the “perils of the sea” and Inchmaree clauses in a marine insurance contract. In Tropical Marine, the Sea Pak left Miami in a seaworthy condition and was anchored at Long Key in fifteen feet of water when she began to take on an unusual quantity of water. The Sea Pak headed for harbor but drifted and sank outside the 100 fathom curve where the depth of the water prevented salvage. No explanation for the leak which caused the sinking could be found. The trial court denied coverage, but the appellate court reversed, stating:

When, as the Court found, the unseawor-thy condition (leak) developed, after the vessel was at sea and there were then no means by which to remedy it, what happens to the insurance? Does it terminate at the very moment it is needed most? Cf. Henjes v. Aetna Insurance Co., 2 Cir., 132 F.2d 715, 1943 A.M.C. 27, certiorari denied, 319 U.S. 760, 63 S.Ct. 1316, 87 L.Ed. 1711.
Indeed, far from voiding the policy, it was as to just such unseaworthiness that the policy was meant to apply. The In-chmaree clause insures against damage or loss occasioned by latent defects in machinery or hull. Of course, a defect in machinery or a defect in a hull means that the vessel is thereby unsea worthy since, with such defect, the machinery or hull, cannot comply with the classic definition of ‘reasonably suitable’ for the purposes intended. The Silvia, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241; Compania de Navegacion, etc., v. Fireman’s Fund Insurance Co., 277 U.S. 66, 48 S.Ct. 459, 72 L.Ed. 787. The only limitation on this is that the defect be latent and one not known or discoverable by the owner or one in privy with him. This is so because, as we held in Spot Pack Saskatchewan Government Insurance Office v. Spot Pack, Inc., supra, [5 Cir., 242 F.2d 385], the phrase ‘Provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners, or Managers of the Vessel’ does not include acts of the master or crew members merely imputed on notions of respondeat superior.

Id. at 120-21.

Similarly, we conclude that unless a lack of due diligence by Yetta Siegel or her agents has been shown, the loss of the Carole is conclusively presumed to be the result of an insured peril.

Proprietors contends that Harry Siegel failed to exercise due diligence when he permitted the Carole to be towed back to Miami after he learned that it had been beached. Whether due diligence was exercised must be determined from the facts and circumstances of each case. Founders Insurance Co. v. Rogers, 305 F.2d 944 (9th Cir. 1962). Here, the question of due diligence depends on whether Harry Siegel, as agent for Yetta Siegel, turned a “blind eye” when he learned the boat had been beached because it had sustained a hole in its hull. Harry Siegel had been told that the boat needed only a plywood patch prior to being towed back to Miami. He learned that the Travel Man was to tow the Carole and later learned that the Carole sank fifteen or twenty minutes after it had been towed out to sea. When he learned of the sinking, Siegel hired a plane and went to look for the Carole.

“Turning a blind eye” means refraining from inquiry.

To disentitle the shipowner, he must, ... have knowledge not only of the facts constituting the unseaworthiness but also knowledge that those facts rendered the ship unseaworthy, that is, not reasonably fit to encounter the ordinary perils of the sea. [This means] not only positive knowledge but also the sort of knowledge expressed in the phrase ‘turning a blind eye’. If a man, suspicious of the truth, turns a blind eye to it, and refrains from inquiry — so that he should not know it for certain — then he is to be regarded as knowing the truth. This ‘turning a blind eye’ is far more blameworthy than mere negligence. Negligence in not knowing the truth is not equivalent to knowledge of it.. .. [I]f the shipowner satisfies the Court that he did not know the facts or did not realize that they rendered the ship unseaworthy, then he ought not to be held privy to it, even though he was negligent in not knowing.

Compania Maritima San Basilio S.A. v. Oceanus Mutual Underwriting Association, [1976] 2 Lloyds Law Reports 171, 179 (C.A.) (per Lord Denning, M. R.). Siegel’s actions cannot be described as “turning a blind eye.” We hold that the owner of the Carole exercised due diligence to keep the vessel seaworthy.

We note that at the time the Carole sank, it was in the charterer’s care. Acts of the charterer may not deprive the owner of coverage. Saskatchewan Government Insurance Office v. Spot Pack, 242 F.2d 385 (5th Cir. 1957). We therefore conclude that Proprietors may not defeat liability on that ground.

Next, we consider whether Mrs. Siegel’s failure to obtain written consent from Proprietors before chartering the Carole rendered the policy void.

The policy provides:

This insurance shall be void in case this policy or the vessel named herein, shall be sold, assigned, transferred or pledged, or if there be any change of management or charter of the vessel, without the previous consent in writing of this Company.

In her application for insurance, appellee stated that she sought to obtain coverage for “uses: Commercial including Charter Sport fishing.” The application formed the basis of the insurance contract. Proprietors was clearly informed concerning the vessel’s use.

Section 627.409(2), Florida Statutes (1977) provides that a breach of any provision of a wet marine insurance policy or insurance contract shall not render the policy or contract void or constitute a defense unless the breach increased the hazard by any means within the control of the insured. Proprietors has not argued that Mrs. Siegel’s failure to obtain its consent prior to chartering the vessel increased the hazard. We therefore reject its contention that the policy was void. See Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955).

In conclusion, we hold that appellee sustained her burden of proving that the loss arose from an insured peril and that appellant failed to furnish the court with competent evidence disclosing the existence of genuine issues of material fact. For these reasons, we affirm the summary judgment entered by the trial court.

      . The policy defines as perils:
      Touching the adventures and perils which this Company is contented to bear and take upon itself, they are of the waters named herein, fire, lightning, earthquake, assailing thieves, jettisons, barratry of the master and mariners and all other like perils that shall come to the hurt, detriment or damage of the vessel named herein.

      . In a provision known as the Inchmaree Clause, a provision designed to expand protection to shipowners, the policy provides:
      This insurance also covers loss of or damage to the vessel named herein directly caused by:
      Accidents in loading, discharging or handling cargo, or in bunkering;
      Accidents in going on or off, or while on drydocks, graving docks, ways, marine railways, gridirons or pontoons;
      Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, (excluding the cost and expense of replacing or repairing the defective part);
      Breakdown of or accidents to nuclear installations or reactors not on board the vessel named herein;
      Contact with aircraft, rockets or similar missiles, or with any land conveyance:

        Negligence of charterers and/or repairers, provided such charterers and/or repairers are not assured(s) hereunder;
      Negligence of master, mariners, engineers or pilots;
      provided such loss or damage has not resulted from want of due diligence by the assured, the owners or managers of the vessel, or any of them, (emphasis added).

      . Proprietors relied upon the deposition of Judd Bergen. In its final summary judgment, the trial court found:
      The Court has reviewed the pleadings, the affidavits and exhibits attached including the policy of insurance, and the depositions, particularly the deposition of JUDD BERGEN, the deposition claimed by PROPRIETORS to be material to this motion. No affidavit has been filed by PROPRIETORS nor are its pleadings sworn. The Court has heard argument of counsel for all parties, memoranda of law have been filed by the Plaintiff and the Defendant, PROPRIETORS, which have been reviewed and considered by the Court.
      The Court being fully advised in the premises finds that the policy of insurance # 09-022-04 issued by PROPRIETORS to YETTA SIEGEL was in full force and effect at the date of the loss. PROPRIETORS has raised no issue of fact by answer, pleadings, affidavit, deposition or in any other way as to its liability to the Plaintiff under and pursuant to the clear provisions of the policy of insurance which provides coverage to the Plaintiff in the amount of $100,000.00 for loss of the vessel, less a TWO THOUSAND FIVE HUNDRED ($2,500.00) DOLLAR deductible provision.
      Bergen’s deposition established that Bergen was the captain of the Travel Man, owned by David Travels, Inc., and that he never attempted to repair or tow the Carole. The deposition did not shed light on any issue involving Proprietors although it exculpated Bergen and David Travels from responsibility for the loss of the Carole. The trial court entered final summary judgment on their behalf.

      . Although the affidavits filed by Yetta and Harry Siegel contained some hearsay statements, they were admissible to prove that the Siegels exercised due diligence.

      . Repealed effective October 1, 1982, by 1981 Fla.Laws, ch. 81-318 § 2.