text:
    Dorothy Melene WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1150.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Bennett H. Brummer, Public Defender and Ellis S. Rubin, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Dorothy Wright was charged with the premeditated first degree murder of Barbara Hall. A jury found her guilty of second degree murder. She appeals from the court’s judgment and a life term of imprisonment imposed thereon.

Wright contends, inter alia, that (1) she was entitled to the entry of a judgment of acquittal because (a) her uncontradicted grand jury testimony, relied upon by the State to prove her complicity, establishes that she did not shoot at Hall with the intent to kill her, and (b) Wright’s shot did not cause Hall’s death; (2) she is entitled to a new trial because the trial court denied her requested instruction on her defense of duress; and (3) she is, at least, entitled to have her conviction reduced to manslaughter, since the undisputed proof shows that she acted under duress and not with the depraved state of mind required for second degree murder.

The proof at trial essentially consisted of (a) the medical examiner’s testimony that of the three bullets which entered Hall’s body, only the shots to the head and neck were lethal, and the shot to the chest (purportedly the one shot fired by Wright) may not have been lethal; and (b) the defendant’s grand jury testimony. The defendant did not testify at trial.

I.

Wright’s Grand Jury Testimony

Wright testified before the grand jury that she; her separately tried co-defendant, Joe La Rocca; and Barbie Hall worked at the Busy Bee Car Wash in South Miami. On the morning of the murder, approximately January 26, 1979, La Rocca drove Barbie Hall and Wright to work, dropped Barbie off at the car wash, and took Wright to breakfast. At breakfast, La Rocca told Wright that he had to get rid of Barbie because she knew too much. La Rocca and Barbie Hall were living together at the time, and Wright at first thought he meant to throw Hall out of the house. This misconception was short lived. La Rocca said to Wright, “I’m going to have to kill her.” La Rocca then told Wright that she would have to do the killing, so that he could be sure Wright would not say anything, and he threatened to kill Wright if she refused. He also told her that he would get Barbie to go with them after work by telling Barbie that they were going to make a cocaine deal.

Wright understood that when La Rocca said that Barbie Hall knew too much, he was referring to a “contract” he had to kill a woman named Linda Norman. Prior to the day of this breakfast, La Rocca had told Wright that he was being paid to kill Linda Norman. In fact, Wright’ again before the day of the breakfast and the murder of Hall, had accompanied La Rocca when he firebombed a restaurant where Linda Norman worked. Indeed, after the Hall murder, on an occasion when La Rocca “shot up” an apartment in which Linda Norman was supposed to be staying, Wright drove La Rocca to the scene. Wright said she drove the car because La Rocca told her she had to.

After breakfast, Wright went to work at the car wash. There she saw Barbie Hall. She did not warn Hall that her life was in danger or that she and La Rocca planned to kill her that evening. Wright knew that the killing was planned for that evening. During the afternoon, La Rocca was around “off and on,” but Wright was out of his presence for “a couple of hours.” Wright admitted that she did not warn Barbie Hall, attempt to flee, call the police, or do anything to avoid or prevent what she knew was about to occur.

La Rocca picked up Wright and then Barbie around 5:00 or 5:30 p. m. Wright knew that Barbie was under the impression that a cocaine deal was planned. La Rocca, Wright and Hall drove down to a field where, according to Wright, Hall “was going to be killed.” La Rocca had told Wright when he picked her up that he had checked the place out and found it satisfactory. La Rocca stopped the car, and he and Wright got out. Hall was still in the car changing her shirt. La Rocca handed Wright the gun and asked her if she was ready. Wright said, “No, but I guess I have to be”; La Rocca replied, “You’re right,” and Wright said, “Okay.” Hall got out of the car. All three walked for a distance. While Hall was looking in her purse for something, Wright raised the gun and shot her. The shot hit Hall, and she fell to the ground. Wright was not sure how many times she fired, but she remembered once.

La Rocca grabbed the gun, telling Wright he was going to shoot the victim in the face so she would not be recognized. He straddled Hall and fired two or three times. He then told Wright to help him pull the body into the bushes. Wright said, “I can’t.” La Rocca dragged the body into the bushes while Wright stood close by pretending to help.

After the murdér, La Rocca and Wright went to Elaine’s Lounge, where Wright’s mother worked. Wright played a game of pool while La Rocca talked to her mother. La Rocca took Wright to her home.

For at least two weeks after the killing, Wright neither called the police nor sought help for the victim. While Wright thought Hall was probably dead, she was not certain. She testified that she was afraid to tell anyone, because La Rocca said he would kill her or her mother.

During this same period after the murder, Wright told people that Hall had decided to leave and go back to Virginia. Wright explained that she said this because “Joe [La Rocca] told me I had to.” Wright also began wearing Hall’s clothes and gave away certain of Hall’s clothing to others. At first she explained this by: “Joe told me that I was to take the clothes and get rid of them.” Later she explained that at first La Rocca had told her to wear the clothes and say that Hall had left them for her, but then she began giving the clothing away when she could not take it any more. During the two weeks after the murder, at La Rocca’s insistence, Wright went with him to Key Largo for the weekend.

According to Wright, approximately two weeks after the murder, she decided to go to the police and tell her story. Coincidentally, the police had come to her house earlier that day and left a message that they wanted to talk to her. Wright did not speak to any law enforcement officer until after she knew the police were aware of her involvement. She claimed, however, that she had made her decision to go to the police before she knew they were looking for her. This, in essence, was Wright’s testimony before the grand jury.

II.

The Judgment of Acquittal

Distinct from the issue of duress, discussed infra, are Wright’s contentions that (a) the evidence is uncontradicted that she shot Hall without any intent to kill, but only with an intent to wound; and (b) there was insufficient proof to show that Wright’s act proximately caused Hall’s death. She says these contentions entitle her to an acquittal of second degree murder. We disagree.

If Wright’s act caused the death of Hall, then her contention that she intended only to harm, not kill, is unavailing. Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969). See also United States Fidelity & Guaranty Company v. Perez, 384 So.2d 904 (Fla.3d DCA 1980) (“recklessly firing a gun into a crowd of people constitutes second degree murder when a person is killed thereby even though . .. the defendant had no intent to hit or kill anyone”); Berry v. State, 114 Fla. 73, 153 So. 507 (1934); Gavin v. State, 42 Fla. 553, 29 So. 405 (1900); Golding v. State, 26 Fla. 530, 8 So. 311 (1890). Compare Manuel v. State, 344 So.2d 1317 (Fla.2d DCA 1977) (where defendant fires gun in direction where it would not likely result in harm to anyone, but it does, evidence will support culpable negligence only). But assuming, arguendo, that (a) the State’s proof through the testimony of the medical examiner fell short of showing that the bullet which hit Hall’s chest caused her death, and (b) the undisputed evidence was that the only shot which Wright fired hit Hall in the chest, and that, therefore, Wright’s act did not cause Hall’s death, then Wright would be correct that her act of shooting Hall, standing by itself, could not sustain her murder conviction. J.A.C. v. State, 374 So.2d 606 (Fla.3d DCA 1979). Accord, Karl v. State, 144 So.2d 869 (Fla.3d DCA 1962). Wright’s argument overlooks that because she acted in concert with another person, she is responsible, not merely for her own acts, but for his. The evidence, including her own grand jury testimony, indisputably supports her conviction as an aider and abettor in La Rocca’s killing of Hall.

In order for Wright to be convicted of aiding and abetting La Rocca’s crime, the State was required to prove, and did prove, that the crime was committed, that Wright aided in its commission, and that Wright had the intent to participate in the crime. See Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978). The only issue in. dispute was Wright’s intent to participate, which she says was not shown because of her “unrebutted” duress defense, discussed infra. But that defense aside, Wright’s own words, combined with the proof that the crime was committed, are more than adequate to prove that she aided and abetted in the killing of Hall and was not, therefore, entitled to a judgment of acquittal. See Shockey v. State, 338 So.2d 33 (Fla.3d DCA 1976) (upholding first degree murder conviction of defendant who, knowing that one Kirsch planned to kill the victim, drove the victim to train station while Kirsch hid in the back of the car and watched while Kirsch killed the victim); McClamrock v. State, 327 So.2d 780 (Fla.3d DCA 1976) (upholding second degree murder conviction of defendant who, knowing that McClamrock, her husband, intended to kill her ex-husband, Stevens, went with McClamrock to Stevens’ house and asked Stevens to step outside where he was killed by McClamrock). See also Foxworth v. State, 267 So.2d 647 (Fla.1972); Wadsworth v. State, 136 Fla. 134, 186 So. 435 (1939); Smith v. State, 129 Fla. 388, 176 So. 506 (1937); Henry v. State, 81 Fla. 763, 89 So. 136 (1921); I.R v. State, 385 So.2d 686 (Fla.3d DCA 1980).

III.

The Duress Instruction

Wright requested that the jury be instructed:

“I charge you that if you believe from the evidence that at the time of the death of Barbie Hall the defendant Dorothy Wright was then subjected to real, present danger, existent at the time, imminent and not to be avoided, or under all the circumstances shown in the evidence the defendant Dorothy Wright had reasonable grounds to believe that such danger was real, imminent and impending and did so believe at the time of the shooting of Barbara Hall and that the defendant Dorothy Wright shot Barbara Hall because of such belief, then you may find Dorothy Wright not guilty of this charge.”

The trial court denied the instruction, finding that Wright had not made the threshold showing which would entitle her to the instruction. While we agree with this ruling by the trial court, it is our view that even if such a showing had been made, Wright would not have been entitled to the instruction because duress, while available as a defense to other crimes, is not available as a defense to a charge of homicide.

Florida has recognized the common law defense of duress as a defense to crimes other than homicide, e. g., Hall v. State, 136 Fla. 644, 187 So. 392 (1939) (perjury); Koontz v. State, 204 So.2d 224 (Fla.2d DCA 1967) (attempted robbery). In a case of first impression in this state, the First District held that the defense is not available in a case of homicide or attempted homicide. See Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). That holding finds support in other jurisdictions. See, e. g. State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979); State v. Taylor, 22 Wash.App. 308, 589 P.2d 1250 (1979) (under Washington statute); Jackson v. State, 558 S.W.2d 816 (Mo.App.1978); State v. Jones, 119 Ariz. 555, 582 P.2d 645 (1978); State v. Toscano, 74 N.J. 421, 378 A.2d 755 (1977) (dicta); State v. Kearns, 27 N.C.App. 354, 219 S.E.2d 228 (1975) (dicta); Annot., 40 A.L.R.2d 908 (1955); 40 Am.Jur.2d, Homicide § 119 (1968); 40 C.J.S., Homicide § 113 (1944).

In Jackson v. State, supra, at 820, the Missouri Court of Appeals stated the rationale for the unavailability of a duress defense to murder:

“The common law has steadfastly refused to recognize any compulsion, even the threat of death, as sufficient to excuse taking the life of another.... Legal recognition of duress as a defense to crimes other than homicide necessarily assumes a working hypothesis that a harm or crime of greater magnitude is avoided when the subjected person succumbs to the duress. This hypothesis disappears when duress is sought to be invoked as a defense in a homicide case.”

The rationale is sound. The paucity of cases which have addressed the issue is, hopefully, a reflection that the rule that duress will never justify the killing of an innocent third party accords with the mores of our society. We unhesitatingly adopt the rule that duress is not a defense to an intentional homicide.

IV.

Duress As Negating State of Mind

Having decided that duress is not a defense to the intentional killing of another, we now address the question of whether evidence of duress, even though imperfect, see n. 6, supra, which serves to show that Wright did not act with a premeditated design to kill Hall or with a depraved mind, requires us to reduce Wright’s conviction for second degree murder to a conviction for manslaughter. The answer to this question depends, in our view, on whether a person such as Wright who aids and abets another in the commission of murder must herself be shown to have the state of mind required for the homicide. Because we find the rule in Florida to be that aiders and abettors may be convicted either upon proof of their own state of mind or upon proof that they knew that the person aided had the requisite state of mind, evidence that the aider and abettor knew that the principal had a premeditated design to kill or a depraved mind, will support the aider and abettor’s conviction for first or second degree murder.

In Savage v. State, 18 Fla. 909, 962 (1882), the court stated:

“[T]o constitute a principal in the second degree there must be not only a presence and an aiding and abetting, but a participation in the felonious design, or at least, the offense must be within the compass of the original intention. This is the doctrine of common law. The charge should be in effect that if [the defendant] was present aiding and abetting [the perpetrator] knowing or believing that [the perpetrator] intended to kill [the victim], or with a ‘premeditated design’ to kill [the victim] aided and abetted [the perpetrator] in his act, he was equally guilty with [the perpetrator].” (emphasis supplied).

Savage is followed in McCoy v. State, 40 Fla. 494, 24 So. 485 (1898), and both are carried forward in Henry v. State, 81 Fla. 763, 89 So. 136 (1921), where the Florida Supreme Court again held that “in order to convict one of murder in the first degree, whether as a principal in the first or second degree, [the State must show] that the defendant actually entertained a premeditated design to kill the deceased, or know that the person aided entertained such design.” (emphasis supplied). Later cases, see e. g., Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); Hutchinson v. State, 309 So.2d 184 (Fla. 1st DCA 1975), citing to Henry and Savage, abbreviate those holdings with the statement that the aider and abettor “must also be a participant in the felonious design with which the killing is done.” To participate in the felonious design is by the Savage definition to act knowing or believing that the principal intended to kill the victim with one one’s own design to kill the victim. Since it is abundantly clear that when Wright aided La Rocca, she knew that La Rocca intended to kill Hall, which knowledge, unlike her own intent, is undiminished by duress, her conviction for second degree murder must stand.

Affirmed.

      . No challenge was made below or is made here to the voluntariness of Wright’s testimony before the grand jury or her signed waiver of immunity.

      . La Rocca’s conviction for first degree murder was affirmed by this court in La Rocca v. State, 401 So.2d 866 (Fla. 3d DCA 1981).

      . A Dade County Public Safety Department detective testified that on February 14, 1979, more than two weeks after the murder, he received an anonymous phone call in which the male caller told him that a girl named Barbara Hall had been shot and murdered by a girl named Dodie Wright. The detective unsuccessfully tried to find the body at the stated location. He then went to the Busy Bee Car Wash, where he asked about Dorothy Wright. Another detective testified that in investigating the matter anonymously communicated to his colleague, he went to Wright’s residence at about 5:30 p. m. on February 15. She was not home. He left his business card with his name and Dade County Public Safety Department, Homicide Section, on it, along with a message for Wright to contact him. Finally, a third detective testified that he spoke to Wright at the police station at approximately 1:00 a. m. on February 16. Wright told him that she had seen Joseph La Rocca murder a girl named Barbie approximately three weeks earlier and that La Rocca had told her that Barbie had to be killed and requested that she kill her. Wright said that she told La Rocca she would not do the killing, but agreed that Barbie needed to be killed and said she would come along. On the occasion of this pre-grand jury statement, Wright said that La Rocca fired all the shots into the victim. She said she would take the officers to where the body was, and directed them there without difficulty. The body of Barbie Hall was discovered.

      . Wright’s self-serving, but uncontradicted, grand jury testimony bearing on this issue includes her statements that (a) “Well, I made up my mind that I wasn’t going to kill her, I was just trying to keep myself alive.”; (b) “He handed me the gun and asked if I was ready ... [I said] no, but I guess I have to be. She was looking in her purse for something, 1 guess it was to get a cigarette or something and when I knew she wasn’t looking, I put the gun up and shot her.”; (c) “I don’t know [where I hit her], but I aimed for her arm and he told me I shot her in the arm, so I took it at that.”; (d) “All I thought about was doing what he said so nobody would get hurt. It didn’t work out that way.”

      . The jury was properly instructed that: “A person may commit a crime by his own personal act or through the act or acts of another person. Any person who knowingly aids, abets, counsels, hires or otherwise procures the commission of a crime is equally guilty with the one who actually performs the criminal act whether he is or is not present at the commission of the offense. However, for one person to be guilty of a crime physically committed by another, it is necessary that he have a conscious intent that the criminal act shall be done and that, pursuant to that intent he do some act or say some word which was intended to and which did incite, cause, encourage, assist, or induce another person to actually commit the crime.”

      . Even were the defense available, it was not established so as to require an instruction. Stevens v. State, 397 So.2d 324 (Fla. 5th DCA 1981); Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980); United States v. Wood, 566 F.2d 1108 (9th Cir. 1978); State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976); State v. Kearns, 27 N.C.App. 354, 219 S.E.2d 228 (Ct.App.1975). Accord, Hall v. State, 136 Fla. 644, 187 So. 392 (1939); Koontz v. State, 204 So.2d 224 (Fla.2d DCA 1967). The evidence did not show that the danger to Wright, had she not succumbed to La Rocca’s threats, was imminent or impending. She worked alongside the victim, Hall, on the afternoon of the murder and could have warned her, but did not; she was outside of La Rocca’s presence for several hours that afternoon; she neither called the police nor told her mother nor attempted to flee. In short, the defendant by her own admission, made no attempt to warn the victim, contact the authorities, or escape from La Rocca’s control, despite ample opportunity to do so. In Hall and Koontz, convictions for perjury and attempted robbery were reversed because the trial court failed to give the very instruction which Wright requested in the present case. The instruction, of course, is proper unless the evidence is such that the trial court can decide, as a matter of law, that the defendant could not reasonably believe that the danger was real or impending. Even if Wright had reasonable grounds to believe that the danger was real, but, as a matter of law, could not reasonably believe that the danger was impending, then the instruction is not required. In this context, the meaning of impending is not merely temporal, i. e., about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime. Thus, while in Hall the threats made against the defendant to send her and her son to the penitentiary were made sometime prior to her committing perjury under the duress of these threats, it could not be said, as a matter of law, despite the lapse of time, that Mrs. Hall had a reasonable opportunity to extricate herself from the danger, because the very threats were made by the State Attorney and the sheriff. An imminent danger is one which cannot be guarded against by calling for the protection of the law. Black’s Law Dictionary 676 (5th ed.1979). In Koontz, while the recited facts indicate that the duress exerted upon Koontz extended over a considerable period of time, it is not clear from the opinion whether Koontz had either time or opportunity from the moment the crime was proposed to escape from the compulsion without committing the actual crime of attempted robbery. However, if Koontz is read to mean that continued threats without regard to their imminence in relation to the crime are enough to warrant the duress instruction, then Koontz stands alone for the proposition that the danger need only be real, not impending, a proposition which finds no support in Hall or the cases cited, supra, and indeed, at least facially, none in Koontz.

      . In Jackson, the defendant claimed that he shot and killed a motel owner during the course of a robbery only because one of his companions threatened to kill him if he did not. The court held that the defense of duress was unavailable as a matter of law.

      . Wright was charged with and defended against first degree murder by premeditated design, which, of course, involves an intent to kill. Where duress is offered as a defense to first degree murder under a felony murder charge, a different question is presented, since duress is a recognized defense to the underlying felony, and the rationale of the rule prohibiting the duress defense in the crime of homicide appears inapplicable. See Jackson v. State, supra; People v. Merhige, 212 Mich. 601, 180 N.W. 418 (1920). We need not decide this question in the present appeal. We note, however, that in the case of intentional homicide, duress is no more available to an aider and abettor than it is to the principal, since the intention of the aider and abettor to participate in the homicide must be shown. State v. Dissicini, 66 N.J. 411, 331 A.2d 618 (1975).

      .It has been suggested that while an intentional killing of an innocent third party is always criminal, duress should serve at least to mitigate it to something less than murder. Several states by statute allow the duress defense to reduce murder to manslaughter. W. LaFave & A. Scott, Jr., Criminal Law, § 77, at 585 (1972). In the present case, because the State introduced evidence of duress through Wright’s grand jury testimony, she had the benefit of this evidence being heard by the jury and was likely the recipient of a jury pardon when convicted of the lesser offense of second degree murder. However, consistent with our holding, supra, that duress is not an available defense to an intentional killing, and our holding, infra, that it is not available to an aider and abettor of an intentional killing, evidence of duress in such a prosecution is inadmissible.

      . Compare e. g., Rizzolo v. Commonwealth, 126 Pa. 54, 17 A. 520 (1889), where the court held that the jury was properly instructed to ■consider duress as it affected the aider and abettor’s premeditated intent to commit murder.

      . Principals in the second degree have been abolished. The modern-day concept of aiding and abetting includes former principals in the second degree and accessories before the fact which were distinguished by the fact that the principal was present at the scene of the crime. Today all aiders and abettors are equally responsible as principals. See Prather v. State, 182 So.2d 273 (Fla.2d DCA 1966).

      . In McCoy v. State, supra, the court held that “[i]n order to hold one guilty [as an aider and abettor] he must not only be present but he must be aiding, abetting, advising, encouraging or assisting such third person to commit the crime, having himself a premeditated design to effect the death of the person killed, or knowing or believing that such person intended to kill the deceased." 24 So. at 487 (emphasis supplied).

      . In Killingsworth v. State, 90 Fla. 299, 105 So. 834 (1925), the court, citing Savage, McCoy and Henry, stated, in dicta, that in the case of murder, premeditated design must be proven against a principal in the second degree. If the court meant to say felonious design, the dicta is correct; if not, the dicta is simply wrong as omitting the alternative proof that the aider and abettor knew of the principal’s design.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Alvaro PALACIO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1845.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Palacio was charged with three felonies: (1) shooting at an unoccupied vehicle, in violation of Section 790.19, Florida Statutes (1977); (2) attempted first degree murder with a firearm, in violation of Sections 782.-04 and 777.04(1), Florida Statutes (1977); and (3) unlawful possession of a firearm while engaged in the commission of the aforesaid felonies, in violation of Section .790.07(2), Florida Statutes (1977). The jury found Palacio not guilty of shooting at an occupied vehicle and, instructed that improper exhibition of a firearm, a first degree misdemeanor under Section 790.10, Florida Statutes (1977), was a lesser offense of the attempted first degree murder charge, it found Palacio guilty of this misdemeanor, thereby effectively finding him not guilty of attempted murder. But despite the absence of a finding of guilt on either of the underlying felonies, the jury found Palacio guilty of the crime of unlawful possession of a firearm while engaged in the commission of these felonies.

We are compelled by Mahaun v. State, 377 So.2d 1158 (Fla.1979), to set aside this unlawful possession conviction. See Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981). Our reversal on this count means that Palacio stands convicted of a misdemeanor only, rendering moot his dubious arguments that he was wrongfully denied classification as a youthful offender and wrongfully sentenced for both offenses. As to Palacio’s remaining points on appeal, which concern evidentiary matters, we find the asserted errors (the most serious of which is exclusively relevant to the reversed count) to be harmless in light of our disposition of this case.

The defendant’s conviction for improper exhibition of a firearm is affirmed; the defendant’s conviction for unlawful possession of a firearm while engaged in the commission of a felony is reversed.

Affirmed in part; reversed in part.

      . Any doubt about the continued vitality of Mahaun as applied to the present case was set at rest in State v. Redondo, 403 So.2d 954 (Fla.1981).

      . We have examined the record to determine whether our decision in McCray v. State, 397 So.2d 1229 (Fla.3d DCA 1981), can sustain this conviction. We find McCray inapplicable, because Palacio’s jury, like McCray’s, instructed that the defendant could be found guilty of possession of a firearm while “committing or attempting to commit” the charged felonies, unlike McCray’s, was also instructed that it could find Palacio guilty of the lesser included offense of attempted shooting at an occupied vehicle, a third degree felony, for which offense the jury acquitted Palacio. We cannot, as we did in McCray, rationalize the inconsistency of the verdicts.


author: NESBITT, Judge. BASKIN, Judge

text:
    The AETNA LIFE INSURANCE COMPANY, Appellant, v. Cherise WITTERS, a minor, by and through her father, and next friend, Richard C. Witters and Richard C. Witters, individually, Appellees.
    Nos. 80-505, 80-530.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Lanza, Sevier & Womack and Mel Lame-las, Coral Gables, for appellant.
    Charles B. Patrick, Miami, for appellees.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

These are consolidated appeals emanating from a summary final judgment which: (1) awarded damages to the father and next friend of the minor-plaintiff, Cherise, for expenses incurred for remedial education in a special school for children with learning disabilities; and (2) denied plaintiff attorney’s fees. Finding that there was no coverage afforded, we reverse the judgment entered in favor of the plaintiff and against The Aetna Life Insurance Company (Aetna) which moots the cross-appeal concerning attorney’s fees.

Cherise, while riding a bicycle, accidentally fell and was injured resulting in permanent brain damage which affected her learning ability as well as her speech capacity. A pediatric neurologist and a clinical psychologist recommended a special school geared for remediation of learning disabilities suitable for Cherise’s educational needs. The curriculum was basically the same as taught in regular educational institutions; however, the methodology was geared toward the particular needs of these students.

Aetna, the insuror under a hospitalization plan issued to Cherise’s father while he was employed by Connecticut Mutual Life Insurance Company, refused payment for these expenses. Although there is some confusion, we perceive that Cherise’s father never saw a copy of the master policy or any renewal certificates. Instead, Cherise’s father received a summary of the benefits provided by the policy. Though it is not clear whether that summary was prepared by Connecticut Mutual Life Insurance Company or by Aetna, our disposition of the matter makes that point immaterial. The pertinent portions of the summary which set forth the covered medical expenses are as follows:

MEDICAL EXPENSES. Medical expenses for Participants will include expenses arising from both occupational and non-occupational accidents and diseases. However, Agency Employees’ and any Dependents’ medical expenses will include only those which arise from a non-occupational accident or disease.
Medical expenses included under the plan are the reasonable charges which a Participant is required to pay for the following services and supplies for the treatment of accidents and diseases:
(1) The services of a legally qualified physician.
(2) The services of a registered graduate nurse (R.N.)— ....
(3) The charges of a hospital for board and room and other necessary hospital services and supplies— ....
(4) The charges for the following services and supplies:
(a) Drugs and medicines obtainable only upon the prescription of a legally qualified physician.
(b) Diagnostic X-ray and Laboratory examinations.
(c) X-ray, radium, and radio-active isotopes therapy.
(d) Anesthetics and oxygen.
(e) Rental of iron lung and other durable medical equipment for therapeutic treatment.
(f) Artificial limbs and eyes — but not hearing aids, eye glasses, or routine eye examinations.
(g) Professional ambulance service when used to transport the individual from the place where he is injured by an accident or stricken by a disease to the first hospital where treatment is given — but no other charges for transportation or travel.
(5) Expenses which represent charges made by a home health care agency
(6) Expenses, as listed above, in connection with cosmetic surgery necessary for the prompt repair of injuries caused by an accident occurring while insured — but no other expenses for cosmetic surgery are included.
(7) Expenses, as listed above, in connection with dental work necessary for the prompt repair of injuries caused by an accident occurring while insured
(8) Expenses, as listed above, in connection with surgical operations for either extra-uterine pregnancy or complications requiring intra-abdominal surgery after termination of pregnancy
(9) Expenses incurred in connection with the treatment of mental or nervous conditions are co-insured at 50% (which includes psychologist’s charges provided the Participant or Dependent is under the supervision and direction of a qualified psychiatrist except in those states where a properly certified psychologist is considered a physician as defined in Part IX under “Definition of a Physician”) unless the Participant or his Dependents are confined as inpatients in a hospital or similar institution in connection with mental or nervous conditions. In that case, qualified claims are covered at 80% during confinement and a period of five years immediately following the termination of any such confinement.'

Based upon the familiar rule that all ambiguities in insurance contracts are to be construed most favorably to the insured and against the insuror, Zautner v. Liberty Mutual Insurance Company, 382 So.2d 106 (Fla. 3d DCA 1980), the trial court found that paragraph (9), quoted above, afforded coverage. While we adhere to that proposition concerning construction of insurance contracts, we do not feel that its application is pertinent to the disposition of this matter.

It should be borne in mind that the policy is a group hospitalization plan. The categories of allowable medical services and supplies are specifically enumerated. However, paragraph (9), upon which the trial court necessarily relied, does not independently confer coverage. The scope of coverage is set forth by the previous paragraphs and subparagraphs whereas paragraph (9) merely refers to those categories of medical expenses and defines the manner and mode of payment as well as the division of payment between co-insurors. Compare Aetna Life Insurance Company v. Benjamin, 206 So.2d 444 (Fla. 1st DCA 1958) and Aetna Life Insurance Company v. Hare, 47 Ala.App. 478, 256 So.2d 904 (1972). Consequently, the trial court improvidently focused upon the alleged ambiguity between the master policy and the summary of the benefits in order to find coverage and assess liability against Aetna.

The summary final judgment in favor of the plaintiff is reversed. As stated, our disposition of this matter makes it unnecessary to pass upon the denial of the plaintiff’s requested attorney’s fees.

Reversed and remanded.

BASKIN, Judge

(dissenting).

Cherise Witters sustained a severe head injury when she fell off her bicycle. She suffered organic brain damage and motor nerve damage which affected her ability to speak. Her mental age dropped from that of a nine year old child to that of a child of age four years and nine months. Doctors recommended that she attend the McGlan-nan School to receive treatment and to improve her mental and nervous condition.

Paragraph nine of the policy summary states:

(9) Expenses incurred in connection with the treatment of mental or nervous conditions are co-insured at 50% (which includes psychologist’s charges provided the Participant or Dependent is under the supervision and direction of a qualified psychiatrist except in those states where a properly certified psychologist is considered a physician as defined in Part IX under “Definition of a Physician”) unless the Participant or his Dependents are confined as in-patients in a hospital or similar institution in connection with mental or nervous conditions. In that case, qualified claims are covered at 80% during confinement and a period of five years immediately following the termination of any such confinement.

The language of paragraph nine clearly entitles Cherise Witters to recover from her insurer 50% of “expenses incurred in connection with the treatment of mental or nervous conditions.” I would reject Aetna’s contention that the expense of the school does not constitute a medical expense because the policy summary refers only to “treatment’ and not to medical treatment. In my view, paragraph nine independently confers coverage and covers the treatment afforded Cherise. The trial court award of 80% should be reduced in accordance with the policy language to 50%. I would affirm the award upon its reduction.

I would reverse the decision of the trial court insofar as it pertains to the denial of attorneys’ fees. § 627.428, Fla.Stat. (1975).


author: PER CURIAM.

text:
    ORANGE BLOSSOM HILLS, INC. and Homette Corporation, Appellants, v. Hazel Rothwell VICE and Charles B. Vice, Appellees.
    No. 81-448.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Shackleford, Farrior, Stallings, & Evans and Michael S. Rywant, Tampa, for appellants.
    Greene & Cooper and Marc Cooper and Sharon L. Wolfe, Sams, Gerstein & Ward, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Defendants in the trial court, Orange Blossom Hills, Inc. and Homette Corporation, bring this interlocutory appeal from orders denying their motion to dismiss or to transfer for improper venue.

An action was instituted by Hazel and Charles Vice for personal injuries arising out of a claimed injurious exposure to formaldehyde gas while living in a mobile home in Lake County, which home was manufactured by defendant Homette and sold by defendant Orange Blossom. The defendants moved to dismiss or transfer for improper venue on the bases (a) that Hom-ette is an Indiana corporation with Ocala, Marion County, as its principal place of business in Florida; (b) that the mobile home was manufactured in Ocala; (c) that the mobile home was shipped to Leesburg, Lake County, a distance of about 25 miles; (d) that the mobile home was sold in Lees-burg; (e) that the mobile home was financed by a Leesburg bank; (f) that Hom-ette has no employees, agents, facilities or representatives in Dade County; (g) that Orange Blossom has its principal place of business in Broward County and has not had a business office in Dade County since September 10, 1980, nor does it have agents, representatives or employees in Dade County.

We reverse. The injury occurred in Lake County, allegedly because of negligence in the design or manufacture of the mobile home in Marion County. The defendant-manufacturer is situated in Marion County. The defendant-seller operates in Lake County and sold the mobile home in Lake County, although it also has an office in Broward County, Florida. For the convenience of the parties, the appropriate forum would be either Lake County or Marion County, as all the witnesses as to design and manufacture and/or maintenance of the mobile home would reside in either of these two counties (which are adjoining counties). Peterson, Howell and Heather v. O’Neill, 814 So.2d 808 (Fla. 3d DCA 1975); Gaboury v. Flagler Hospital, 316 So.2d 642 (Fla. 4th DCA 1975); Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Kelly-Springfield Tire Company v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978); Kilpatrick v. Boynton, 374 So.2d 557 (Fla. 4th DCA 1979); Sec. 47.122, Florida Statutes (1979).

Reversed and remanded, with directions to the trial court to allot the plaintiffs a limited time to make an election to have the cause transferred to either Lake County or Marion County, and in lieu thereof the cause should be dismissed without prejudice.

Reversed and remanded with directions.

      . The filing of the complaint was subsequent to September 10, 1980.


text:
    LIVE SUPPLY, INC., Appellant, v. C & S PLUMBING, INC., Presidential Construction, Inc., C & S Plumbing of Florida, Inc., Wolfe Building Corporation, and Flagler National Bank of the Palm Beaches, Appellees.
    No. 80-318.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 14, 1981.

      John L. Avery, Jr., West Palm Beach, for appellant.
    Michael Puder-Harris, North Palm Beach, for appellee, C & S Plumbing of Florida, Inc.
   PER CURIAM.

This is an appeal from an order dissolving writs of garnishment. We affirm.

Appellant obtained a final judgment against C & S Plumbing, Inc., in the sum of $34,929.35 and subsequently filed three motions for post-judgment writs of garnishment wherein it alleged that C & S Plumbing, Inc. was doing business as C & S Plumbing of Florida, Inc. The writs issued thereon required the named garnishee to file an answer “stating whether said Garnishee is indebted to the Defendant, C & S Plumbing, Inc., a/k/a C & S Plumbing of Florida, Inc.”

C & S Plumbing of Florida, Inc. filed a motion for intervention and an unsworn pleading entitled “motion denying writ of garnishment and seeking dissolution of the writ of garnishment.” In the letter motion C & S Plumbing of Florida claimed to be a separate corporation from the original defendant, C & S Plumbing, Inc., and on that basis sought dissolution of the writs as they applied to the debtors of C & S Plumbing of Florida, Inc. The trial court granted both motions of C & S Plumbing of Florida, Inc., and dissolved the writs in question based on the court’s conclusion that they were prejudgment garnishments.

Appellant contends that Section 77.16(1), Florida Statutes (1979) requires of C & S Plumbing of Florida, Inc. to file an affidavit or sworn pleading claiming that any of the subject debts were due it and not due C & S Plumbing, Inc. in order for the trial court even to consider dissolution of the writ on that basis. The statute provides:

If any person other than defendant claims that the debt due by a garnishee is due to him and not to defendant, or that the property in the hands or possession of any garnishee is his property and shall make an affidavit to the effect, the court shall impanel a jury to determine the right of property between the claimant and plaintiff unless' a jury is waived. (Emphasis added.)

However, the abovementioned statute is not applicable here for two reasons. First, the writs named C & S Plumbing of Florida, Inc. as the defendant. Therefore,' C & S Plumbing of Florida, Inc. cannot be a person other than the defendant. Second, in light of several cases decided since the enactment of Section 77.16(1) which have held prejudgment garnishment statutes unconstitutional, we believe the aforementioned statute must be given a narrow construction. It does not apply to a situation where the trial court expressly orders garnishment of debts due to an entity named in the writ which is not even a party to the lawsuit. We believe that all this non-party entity need do to initiate dissolution of the writ against it is to alert the court by motion of the impropriety of the writ because of the independent identity of the entity.

In this case appellant had the burden to show at an evidentiary hearing on its motions for writs of garnishment that C & S Plumbing, Inc., was doing business as C & S Plumbing of Florida, Inc. Its unsworn motions for writs of garnishment and the issuance thereof ex parte were insufficient; and the trial court was correct in dissolving the writs once it was notified of its error by appellee. Accordingly, we affirm.

AFFIRMED.

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

      . See e. g. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Ray Lein Construction, Inc. v. Wainwright, 346 So.2d 1029 (Fla. 1977).

      . The statute at issue undoubtedly contemplates a situation where the writ provides for the garnishment of a judgment debtor’s property and a third unrelated entity also has an interest in that property. In that event, the unrelated entity would have to file an affidavit pursuant to the statute. Since Section 77.16(1) is not at issue, we express no opinion as to its constitutionality.


author: HERSEY, Judge.

text:
    OCEANIC INTERNATIONAL CORPORATION, a Washington, D. C., Corporation, Appellant, v. LANTANA BOATYARD, a Florida Corporation, Appellee.
    No. 80-1051.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 9, 1981.

      John L. Avery, Jr., West Palm Beach, for appellant.
    David H. Baker, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for ap-pellee.
   HERSEY, Judge.

This was an action for commissions alleged to be due appellant for procuring a purchaser for boats to be constructed by appellee. The trial court found that appellant had been paid in full and entered the final judgment from which this appeal is taken.

The correctness of the judgment depends upon factual findings made by the trial court. Only if those findings are unsupportable do questions of law arise. Consequently we outline first the uncontroverted facts.

On October 1, 1976, Delex Incorporated entered into a marketing agreement with appellee, Lantana Boatyard, Inc. This written contract was for a term of one year and included the following provisions material to the issues raised in this lawsuit:

1. For marketing services and expenses related to sales both foreign and U. S. Government, DI [Delex Incorporated] will be paid by Lantana Boatyard, Inc. a monthly retainer of $1,000.00.
2. For marketing services and expenses related to sales both foreign and U.S. Government, DI will be paid 5% of the F.O.B. Lantana Boatyard, Inc. price, exclusive of sales tax for sales procured by DI or re-orders of the same except where otherwise specifically agreed....
4. DI agrees not to represent directly or indirectly a competitive line, and shall adhere to, cooperate with, and comply with manufacturer’s sales policies and programs. All orders submitted to DI shall be subject to final acceptance or rejection by LBY.

The contract was negotiated on behalf of Delex by Michael Infante who was a one-third owner and vice-president (ultimately president) of that corporation. It was In-fante who was actually to undertake marketing of vessels for Lantana and he did in fact accomplish sales of a number of bridge erection boats to the government of Argentina.

Infante introduced the Lantana people to an individual named Dell’Orto who acted as a go-between with the Argentinian government. Through him there were authenticated sales of thirty-three bridge erection boats: an original order for ten boats with an option for six more (which eventually was taken up for a total of sixteen) at $98,000 per boat; a second order for ten boats at $116,750 per boat; and a third order for seven at $146,923 per boat. Additional orders of the same type of craft were contemplated by all parties involved, at least to the extent of an additional order for seven boats.

Before concluding the recitation of undisputed facts it is necessary to treat two areas in which the facts and the legal effect of those facts are disputed, in order to understand the significance of subsequent events.

Just prior to submission of the first bid to the Argentinian government for bridge erection boats, there was at least one conference to discuss commissions that would have to be taken into account in computing the bid. Michael Infante was present for Delex, Dell’Orto represented himself and Elliott Donnelly, president of Lantana Boatyard, Inc., represented that corporation. It is undisputed that Dell’Orto, who had a written contract which entitled him to a seventeen percent commission, agreed to reduce this to fifteen percent. It was Donnelly’s testimony that Infante agreed to accept three thousand dollars per boat in lieu of the five percent commission called for in the Delex marketing agreement. In-fante denies any such modification of the written contract. The reason given by Donnelly for the reductions was to permit his corporation to make a bid that would be competitive. When the initial figures were eventually revised and a firm bid submitted, Dell’Orto actually received more money from his fifteen percent than he would have received under the original pricing with his seventeen percent commission intact. On the second order for ten boats Dell’Orto was paid commissions of twenty-two percent. On the third order of seven boats, thirty-five percent was paid to Dell’Orto. Interestingly, not only did his percentage increase tremendously, but the price of the vessels increased from $98,000 to $116,750 to $146,923 on the respective orders. Thus, DelPOrto was paid a commission of $14,700 on the first boat sold and $51,423 on the last boat sold.

Delex, on the other hand, would have earned $4,900 and $7,346 respectively but for the purported modification to a set $3,000 per vessel.

We note again that the reason for the alleged modification was to enable Lantana to submit a competitive bid. It is a little difficult to accept at face value that the success or failure of the bid depended on a $1,900 per boat differential in the Delex commission in view of the Dell’Orto commissions. We also note that appellee, Lan-tana, has billed roughly $4,200,000 for bridge erection boats as a direct result of the initial contact made by and through Infante as the controlling principal of De-lex.

The second point of contention involves the demise of Delex and the substitution of appellant, Oceanic, as marketing representative of Lantana. The extent and effect of that attempted substitution is strenuously contested in the record.

Subsequent to finalization of the initial order for sixteen boats, Delex became involved in a potential guilt by association situation unrelated to the boat sales. In order to avoid possible repercussions In-fante approached Donnelly with the suggestion that Delex be phased out as marketing representative and another corporation controlled by Infante, appellant, Oceanic, be substituted in its place. Infante insists that what was intended and what was accomplished was an assignment of the entire interest of Delex in the marketing agreement to Oceanic. Donnelly, on the other hand, testified that it was his intention to agree to pay to Infante, through Oceanic, only the commission remaining due and owing on the first order of boats. In Donnelly’s view the total commission was $48,000, some of which had been paid. Infante contends that the give percent was due from the initial order, together with commissions for subsequent sales by virtue of assignment of the contract to Oceanic.

Á letter of termination was written to Delex in 1977. Infante testified that termination was effected at his suggestion to accomplish the substitution of Oceanic. A new, but substantially identical, marketing agreement was submitted by Oceanic to Lantana for signature. It was never signed.

Lantana, apparently on the advice of counsel, insisted upon a general release from Delex before it would agree to pay Oceanic. Such a release running to Infante and Lantana was obtained from Delex by Infante and submitted to Lantana.

Thereafter Lantana made monthly retainer payments, actually advances against commissions, directly to Oceanic.

The point in dispute is whether Oceanic succeeded to the entire interest of Delex under the original marketing agreement, including entitlement to commissions for future orders from the same customer for the same type of vessel, or whether, upon receipt of an amount which, when added to sums previously received by Delex, totalled $48,000, the liability of Lantana to Oceanic was fully satisfied.

The final major controversy involves that portion of the original marketing agreement which prohibited Delex from representing “... directly or indirectly a competitive line .... ” It is appellee’s position that appellant violated that covenant so that, even if otherwise entitled to commissions on sales after the first order, that entitlement was forfeited by virtue of the violation.

In order to complete the picture, mention of certain additional undisputed facts is necessary.

There is no serious dispute concerning the payment by Lantana to Delex and Oceanic of the sum of $48,000'. The books of Lanta-na, however, apparently reflect $1,000 still unpaid.

On April 28, 1978, Lantana directed a letter of termination to Oceanic “... to terminate the marketing agreement with your firm.” Payment of commissions earned was to be made, but “. . . our current arrangement for your services will terminate June 1, 1978.”

Statements of account were rendered to Oceanic by Lantana on at least two occasions in 1978 showing total commissions due of $48,000. These were not promptly objected to by Oceanic.

On these facts the trial court entered a final judgment containing the following conclusions pertinent to the issues on appeal:

5. At no time did DELEX INCORPORATED ever assign to OCEANIC INTERNATIONAL its rights under the October 1, 1976, agreement with LANTA-NA BOATYARD, INC.
6. At no time did Defendant, LANTA-NA BOATYARD, INC., ever enter into a written agreement with OCEANIC INTERNATIONAL CORPORATION for the marketing services and sale of boats.
7. Following the termination of the agreement with DELEX INCORPORATED, LANTANA BOATYARD, INC., received an order from the Argentine government for 16 boats in November, 1977.
8. LANTANA BOATYARD, INC., through a check dated February 23, 1978, in the amount of $4,000.00 paid OCEANIC INTERNATIONAL CORP. monthly retainer payments due it for the months October, 1977, through January, 1978. Contained in that letter was a statement of account showing total commissions due of $48,000.00 for the sale of boats. Another check was sent OCEANIC INTERNATIONAL CORP. by LANTANA BOATYARD, INC., on May 10, 1978, in the amount of $4,000.00 for monthly retainer payments for the months February, 1978, through May, 1978. On May 2, 1978, LANTANA BOATYARD, INC., sent OCEANIC INTERNATIONAL a check for $5,500.00 for commissions due and further sent a statement as of that date showing the total amount of commissions due on future shipments of the boats sold to the Argentine government. LANTANA BOATYARD, INC., later issued a check dated September 1, 1978, in the amount of $18,000.00 to OCEANIC INTERNATIONAL for payments due as commissions for the sale of boats. Parties stipulated that a total amount of $48,000.00 has been paid by LANTANA BOATYARD, INC., to OCEANIC INTERNATIONAL CORPORATION.
9. Plaintiff has failed to prove the existence of any agreement entitling it to more than $48,000.00, and this Court finds that the Plaintiff has been paid in full all sums due and owing to it.

For the sake of clarity we restate the issues that, in our view, are determinative of this appeal. The first is whether there was a modification of the written agreement reducing commissions to $3,000 per boat. The second is whether there was an assignment of the Delex interest in the written contract to Oceanic. We do not reach the third issue involving violation of the covenant not to compete, since it was never reached and consequently, was never ruled on by the trial court, although we will refer to this issue in another context.

It is the function of the trial court to evaluate and weigh the testimony and other evidence in order to arrive at findings of fact to which the rules of law are then applied. The appellate court has no opportunity to observe the witnesses and thereby to judge their credibility. For this and other good reasons certain rules of review have been formulated that define and limit the appellate function. In Shaw v. Shaw, 334 So.2d 13 (Fla.1976) the court succinctly deals with those limitations in the following language:

It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, supra, is whether the judgmént of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject “inherently incredible and improbable testimony or evidence,” it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court. Id. at 16. (Footnote omitted).

A more exhaustive and extremely illuminating statement of the principles involved is set out by the court in In re Estate of Donner, 364 So.2d 742, 748 (Fla. 3d DCA 1978) where, in discussing findings of fact and the appellate function, the court said:

These findings of fact come to this court clothed with the presumption of correctness and will not be disturbed upon appellate review absent a showing that they are clearly erroneous or totally without any substantial evidence in their support. Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); Courshon v. Fontainebleau Hotel Corp., 307 So.2d 901 (Fla. 3d DCA 1975). We are not however bound by the trial court’s legal conclusions where those conclusions conflict with established law. Holland v. Gross, 89 So.2d 255 (Fla.1956).
“A finding of fact by the trial court in a non-jury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. 3 Am.Jur. 471. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is ‘clearly erroneous’ and the appellate court will reverse because the trial court has ‘failed to give legal effect to the evidence’ in its entirety.” Id. at 258.

We first apply these principles to the finding set out in paragraph five of the final judgment which determined that no assignment was ever made by Delex to Oceanic of its rights under the marketing agreement. A careful review of the entire record discloses that this conclusion is simply not supportable. The burden of proof was on plaintiff-appellant to prove the assignment. Apparently, the trial court felt that this burden was not met. However, there was no evidence of non-assignment. Donnelly testified as to what he intended to permit Delex to assign, but this would be material only to the executory and not to the executed part of the contract. Delex procured a buyer for boats and by the terms of the contract became entitled to a commission not only on the initial order but, according to the agreement, on all subsequent “re-orders of the same.” Thus, Delex became a creditor of Lantana to the extent of commissions due and to become due by virtue of sales of bridge erection boats to the Argentinian government. This was an assignable chose in action and the assignment was binding upon Lantana whether or not it “approved” or “agreed to” the assignment. Certainly neither Donnelly nor anyone else connected with Lantana would be in a position to testify that Delex did not assign its rights to Oceanic. Moreover, there was evidence that Lantana did acknowledge an assignment and Lantana was not in a position to dictate (or to assume) that less than all of the commissions were assigned. That Lantana did acknowledge the existence of an assignment is at least inferentially established by the following.

First, there is undisputed testimony that before any payments were made to Oceanic, Lantana insisted on a complete release from Delex. It seems reasonable that if only a partial assignment had been contemplated, then a partial release would have been utilized. Otherwise, what would become of commissions due and to become due on resales if Delex had released Lantana but Oceanic was not an assignee as to those? Lantana prepared and furnished this release.

Secondly, payments to Oceanic after De-lex had been terminated evidence a further acknowledgment of some kind of assignment.

Thirdly, in April of 1978 a letter was sent by Lantana to Oceanic “... to terminate the marketing arrangement with your firm.” It would make no sense for such a letter to have been written if (1) the marketing agreement was never assigned to Oceanic; or (2) the marketing agreement expired by its own terms in 1977, or (3) in either event the only interest Oceanic had was to collect the balance of the $48,000 which was being paid in any event. There would have been nothing to terminate.

In our view the evidence establishes an assignment by Delex to Oceanic of commissions due and to become due as a consequence of sales of bridge erection boats to the government of Argentina.

While not an element in our analysis, we would point out in passing that Delex, at the insistence of Lantana, gave a general release to the latter corporation. Lantana thus would be unjustly enriched to the extent of commissions due on subsequent sales if Oceanic is not permitted to recover (unless other circumstances exist which bar a recovery by Oceanic).

We next consider the finding which is stated in conclusory fashion in paragraph nine of the judgment that Oceanic has been paid in full. Implicit in this conclusion is a finding that Delex agreed to a reduction in commissions from five percent to $3,000 per boat. At the time this modification to the written contract was purportedly made, Delex was the marketing representative. The party who alleges that a contract has been modified has the burden of proving it. Newkirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979). Thus, the burden of proof was on Lantana to show oral modification of the terms of the written contract between Lantana and Delex. The subsequent assignment and its effect is immaterial to this issue.

While at least one other agent of Lanta-na testified to some modification, the only competent evidence produced in support of modification was the testimony of Donnelly and the copies of documents sent to Oceanic in 1978 which referred to total commissions due of $48,000 on the first Argentinian order. Infante steadfastly maintained, on behalf of Oceanic, that he never agreed to such a modification.

Taking the written evidence first, there are several plausible explanations for the failure of Oceanic to promptly object to the figures referred to in the accountings. For example, the original order was for ten boats (with an option for six which was later exercised). A full commission of five percent on ten boats with a selling price of $98,000 per boat would be $49,000. The account submitted to Oceanic dated January 31, 1978 recited: “Commission on Total Contract $48,000.” This is an even more interesting coincidence when we recall that Oceanic stipulated that it had received $48,000 and the books of Lantana showed an additional $1,000 still due and owing, a total of $49,000. Additional factors to be taken into account in assigning appropriate weight to this evidence is the fact that during the period in question In-fante was traveling much of the time and, as reflected by the correspondence, there had been almost a complete breakdown in communications between Infante and Lan-tana at this point. In any event, mere failure to object in this instance did not constitute an account stated. The basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums constituting the debt are correct, not the existence of the debt itself. Nicolaysen v. Flato, 204 So.2d 547 (Fla. 4th DCA 1967). Likewise, a statement of account rendered without objection cannot establish the nonexistence of a debt. In the present case, Oceanic did not dispute the $48,000 debt resulting from transactions between the parties; rather it asserted the existence of an additional debt. Accordingly, Lantana did not establish an account stated for all transactions between the parties.

The testimony of Donnelly is similarly unpersuasive on this issue. Nowhere does he directly testify that Infante or anyone else on behalf of Delex said, in so many words, “I agree to a modification.” He was not even able to testify as to when such a conversation might have taken place. Prudence if not necessarily the law, would seem to dictate that a modification of this magnitude should be put in writing. The fact that it was not suggests that such a modification was never firmly established between the parties. We are left to speculate as to whether the supposed reduction was to apply only to the first order on which the bid was being computed, or on subsequent re-orders (at greatly increased prices and entirely different cost structures) or on all sales in which Delex became entitled to a finder’s fee.

On balance, we find precious little to support a finding that appellee sustained its burden of proof on this issue. We none-the-less stop short of substituting our judgment for that of the trial court on this mixed question of fact and law.

We are not unaware of the fact that the credibility of Infante was severely impeached in the area of violation of the covenant prohibiting Delex from representing a competitive line. Perhaps the trial court was influenced by this factor in assigning credibility to the various witnesses. We nevertheless have concluded that the result reached on the second issue, assignment of rights under the marketing agreement, is erroneous and requires a new trial. Since, on remand, violation of this covenant against competition may become relevant, we discuss it here briefly.

Appellee takes the position that if in fact Oceanic violated the covenant then, even if the assignment from Delex to Oceanic is recognized, Oceanic forfeited its rights to commissions, relying on Ross v. Calamia, 153 Fla. 151, 13 So.2d 916 (1943). We read the case differently. In our view, commissions already earned (due and to become due on reorder) are not forfeited by a subsequent violation of the covenant.

Having previously concluded that the final judgment is erroneous, we reverse and remand for a new trial on the issue of the amount due appellant by virtue of the assignment to it of the entitlement of Delex under the marketing agreement as modified by substituting a commission of $3,000 per boat for the original 5% per boat.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


author: COBB, Judge. SHARP, Judge,

text:
    CARRIGAN & BOLAND, INC., Appellant, v. Bryce K. WORROCK; Undine Worrock; Russell E. Bauer; Mary Bauer; George Henry Siebern, Sr.; Shirley E. Siebern; Walter H. Nolin; Penelope M. Nolin; Erich M. Nagel, Jr.; Joanne E. Nagel; John J. Montgomery; Carol A. Montgomery; Robert N. Hill; Sandra L. Hill; Robert M. Webb; Robert D. Webb; Russell T. Smith; Wanda J. Smith; John E. Mellick; Audrey L. Mellick; Flora P. Spencer; Marcel J. Kniedler; Evelyn Rita Kniedler; Lewis R. Pearce; Patricia A. Pearce; John G. Higdon; Betty D. Higdon; William E. Weeks; Gloria G. Weeks; Rosemary T. Arriens; Jack C. Taylor; Marjory J. Taylor; Peter G. File; Carol S. File; Joeseph H. Birnbaum; Lois Birnbaum; Clifford L. Gurr; Barbara W. Gurr; James E. Weir; Judith C. Weir; Robert W. Sullivan; Mary L. Sullivan; Keith M. Pricer; Nancy A. Pricer; Candace M. Kight; Judith M. Gioia; Horace J. Kight; Claramond B. Kight; Martin Wuisman; and Maaike Wuisman, Appellees.
    Nos. 79-309, 79-491.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.

      Spielvogel & Goldman, P.A., Merritt Island, and Edna L. Caruso, West Palm Beach, for appellant.
    Robert T. Westman of Stromire, West-man, Lintz, Baugh, McKinley, Antoon & Pearch, Cocoa, for appellees.
   COBB, Judge.

Carrigan & Boland, Inc., the developer/grantor of Riverside Landing subdivision, sought a declaratory judgment that it was the sole fee simple owner of Lot 35 in the Riverside Landing subdivision. Defendants, the thirty-four lot owners within the subdivision, counterclaimed for declaratory and injunctive relief, claiming a Vm interest in the lot.

Riverside Landing is a subdivision located on Merritt Island, Florida. It contains thirty-five lots, one of which is on the river and thirty-four of which are not. The developer originally intended to reserve Lot 35, the river lot, for construction of a dock with thirty-four boat slips. Each lot owner was to. have his own private boat slip. The developer checked with the county commissioner for Merritt Island and was advised there would be no problem in gaining approval for the dock. The developer made an initial application to the state, county, and federal governments in an attempt to obtain approval for building the dock and boat ramp in the subdivision. The developer needed approval from the county zoning board, the county commission, the Trustees of the Internal Improvement Fund of the State of Florida and the U.S. Corps of Engineers.

In November of 1965 the developer recorded the plat of Riverside Landing. The plat did not contain any restrictive covenants. In a separate document the developer also recorded restrictive covenants. The covenants involved in this suit are set out as follows:

16. The owner is constructing a dock on the riverfront and lot thirty five (35) of said subdivision is the riverfront lot. Said lot thirty-five (35) shall be owned by all of the owners of lots in said subdivision. As each lot is sold by the owner, the purchaser of said lot shall immediately be vested with a one thirty fifth (V35) interest in and to said lot thirty-five (35) and the said one thirty fifth (Vfe) interest in said lot thirty-five (35) shall thereafter follow the ownership of lots in said subdivision as the ownership shall change. Carrigan & Boland, Inc., shall retain a one thirty fifth (V35) interest in said lot thirty-five (35).
All of the owners of lots in said subdivision shall keep the said lot thirty-five (35) properly landscaped and shall keep the dock in a neat and orderly condition and in a proper state of repair, and each owner shall be obligated for one thirty fifth (V35) interest in and to the said lot thirty-five (35), and in the event the owners of lots in said subdivision shall fail to keep the said lot thirty-five (35) properly landscaped and the dock in a neat and orderly condition and in a proper state of repair for a period of three (3) months, the title to said lot thirty-five (35) shall revert and become vested in Carrigan & Boland, Inc., and said lot thirty-five (35) shall be used for residential purposes only.
19. The dock shall be for the exclusive use of the residents of said subdivision and cannot be leased or used by anyone other than the owners of Lots in said subdivision ...
These restrictions may be amended only by the consent of the owners of fifty percent (50%) of the lots in this subdivision, except as to restriction number sixteen (16), which can be amended only with the permission and consent of the Board of County Commissioners of Bre-vard County....

The developer initially advertised that all residents of Riverside Landing would have access to the intercoastal waterway and the Indian River via the dock and boat ramp. From November 1965 to December 1967 the developer sold six lots. During that period the developer pursued the plans to • gain approval for building the dock and boat facilities. However, the developer could not gain approval for building the dock. When the developer realized it would not be able to develop the boat facilities, it still owned more than 50% of the lots. Therefore, the developer amended the restrictive covenants pursuant to paragraph 19 and deleted paragraph 16. The amendment stated that Lot 35 would be subject to all other restrictions. This amendment to the restrictive covenants was recorded, along with the Board of County Commissioners’ consent to the amendment as required by paragraph 19. The developer sought to purchase any interest the original six purchasers might have in Lot 35, but was unsuccessful. Following this amendment the developer did not advertise that residents would have available docking facilities. None of the deeds expressly conveyed an interest in Lot 35 from the developer to the lot owners. The developer paid the taxes on Lot 35 for the next eleven years. The developer never demanded that the lot owners pay any taxes on Lot 35. Lot 35 was never improved or landscaped and the maintenance of the lot was shared sporadically by the developer and the lot owners.

The trial court granted a summary judgment to the six original lot owners, finding that as a matter of law they had received a Vss interest in Lot 35 when they purchased their lots. The summary judgment was timely appealed by the developer.

The trial court ruled that each of the remaining lot owners also had a I/35 interest in Lot 35, holding the reverter provision contained in the restrictions unenforceable and the amendment to the restrictions invalid. The developer timely appealed that ruling.

The three points on appeal are set forth by appellant as:

POINT I
THE TRIAL COURT ERRED IN RULING THAT THE REMAINING TWENTY-EIGHT LOT OWNERS AND THE DEVELOPER EACH HAD A Vas INTEREST IN LOT 35 SINCE THE POSSIBILITY OF REVERTER PROVISION CONTAINED IN THE NOTICE OF RESTRICTIONS WAS UNENFORCEABLE AND THE AMENDMENT TO THE RESTRICTIONS WAS INVALID.
POINT II
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF SIX OF THE DEFENDANT-LOT OWNERS, RULING THAT THEY HAD RECEIVED A Vfe INTEREST IN LOT 35 AS A MATTER OF LAW, AND IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEVELOPER AGAINST ALL THE LOT OWNERS.
POINT III
THE TRIAL ERRED IN NOT ALLOWING INTO EVIDENCE AND CONSIDERING, EVIDENCE THAT THE TWENTY-EIGHT LOT OWNERS, PRIOR TO THIS LAWSUIT, HAD OFFERED TO PURCHASE THE DEVELOPER’S INTEREST IN LOT 35.

We will consider the points on appeal in reverse order. The third point raised is the contention of the appellant, Carrigan & Bo-land, Inc., that the trial court erred in rejecting an evidentiary proffer of a letter wherein the twenty-eight lot owners offered to purchase the developer’s interest in Lot 35, for a specified price. The appellant urges that this letter constituted an admission by the twenty-eight lot owners that they recognized the ownership interest on Lot 35 by the developer, and was sent prior to the development of a controversy or dispute in this regard, and therefore was not an inadmissible offer of settlement as held by the trial court. Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 775 (Fla.1976); Miller Yacht Sales, Inc. v. Lee, 368 So.2d 916 (Fla.4th DCA), cert. denied, 378 So.2d 347 (Fla.1979). This point is rendered moot by reason of our disposition of the first point on appeal.

In regard to the second point raised on appeal, we have no difficulty in affirming the judgment of the trial court in favor of the six original lot owners who purchased prior to the developer’s amendment to the restrictive covenants. The recorded restrictive covenants specifically provided that purchasers of each of the subdivision lots were immediately vested with a V&5 interest in Lot 35 at the time of the conveyance to them. The restrictions were incorporated by reference in the deeds to the original six, who relied on this representation of record. McCorquodale v. Keyton, 63 So.2d 906 (Fla.1953).

On the first point, we cannot agree with the trial court’s invalidation of the developer’s amendment deleting paragraph 16. A grantor has the right to amend, alter, modify or change restrictive covenants if he reserves that right, as did the developer in the instant case, and the reservation is reasonable. Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974); Johnson v. Three Bays Properties #2, Inc., 159 So.2d 924 (Fla. 3d DCA 1964). The amendment in the instant case did not unreasonably destroy “a general scheme of development.” Bay Island Towers, Inc. v. Bay Island-Siesta Association, 316 So.2d 574 (Fla. 2d DCA 1975). In the instant situation, the evidence clearly shows that the developer made diligent and earnest attempts to gain the requisite permission for construction of the docking facilities, and that the amendment was based on the principle of impossibility of performance. See Osius v. Barton, 109 Fla. 556, 147 So. 862 (1933). At the time of purchase by the subsequent twenty-eight lot owners, there was no reliance on paragraph 16 of the recorded covenants because it had been formally deleted of record. We conclude that the trial court erred in ruling the amendment invalid.

We therefore affirm the judgment of the trial court in respect to the six original lot owners and reverse the judgment in favor of the subsequent twenty-eight owners based upon the erroneous invalidation of the amendment, and remand for entry of judgment for appellant, Carrigan & Boland, Inc., in regard to its ownership of a interest in Lot 35.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, J., concurs.

SHARP, J., concurs in part, dissents in part, with opinion.

SHARP, Judge,

concurring in part and dissenting in part.

I agree with the majority’s affirmance of the judgment in favor of the six (6) original lot owners. However, I disagree with their reversal of the judgment in favor of the twenty-eight (28) subsequent lot owners.

A general building scheme exists where a tract of land is divided into lots to be sold and uniform restrictions are imposed on the lots. Hagan v. Sabal Palms Inc., 186 So.2d 302 (Fla. 2d DCA), cert. denied, 192 So.2d 489 (Fla.1966). Carrigan & Boland, Inc. initially advertised that all residents of the subdivision Riverside Landing would have access to the Indian River and the inter-coastal waterway. The restrictive covenants, before amendment, provided that lot 35, the one riverfront lot, would be owned by all of the residents of the subdivision. Thus a general plan existed for a residential development with access to the river and intercoastal waterway.

A grantor may reserve the right to alter or amend restrictive covenants. Flamingo. Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665 (Fla. 4th DCA 1974). However, this power to amend is only valid as long as it is exercised in a reasonable manner and does not destroy the general scheme. Id. Carrigan & Boland’s amendment deleting the reservation of lot 35 to the subdivision owners completely destroyed the general scheme. Lot 35 has now become, by virtue of the amendment and the majority opinion, partially owned by the six (6) original lot owners and the developer, who no longer owns any lots. The provisions for payment of taxes and maintenance no longer are equitable or practical. Why should the developer pay any portion of the taxes and maintenance on lot 35, much less ^/foths of them?

I would affirm the lower court’s judgment in favor of the twenty-eight (28) subsequent lot owners because the reservations clause was not exercised in a reasonable manner and the amendment is not valid.


author: MILLS, Judge.

text:
    George JOHNSON, Appellant, v. R. H. DONNELLY COMPANY and Hartford Insurance Group, Appellees.
    No. XX-316.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Rehearing Denied Sept. 11, 1981.

      Jerold Feuer, Miami, for appellant.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellees.
    Michael J. Rudicell, Lakeland, for amicus curiae Department of Labor and Employment Security.
    Mary Ann Stiles, Boca Raton, for amicus curiae Associated Industries of Florida.
   MILLS, Judge.

Appealing from the deputy commissioner’s denial of a joint settlement agreement, appellant-claimant, George Johnson, challenges the constitutionality of Section 440.-20(12)(a), Florida Statutes (1979), which prohibits the release of an employer-carrier’s liability for future medical expenses. The grounds asserted in the challenge are that the statute unconstitutionally prohibits the parties from settling their differences, thus, violates the access to courts provision of the Florida Constitution and the impairment of contract provisions of both the Florida and the United States Constitutions. Finally, it is asserted that the statute is an improper exercise of the state’s police power. We affirm the deputy commissioner’s denial and hold that Section 440.20(12)(a), Florida Statutes (1979), is constitutional.

Three procedural notes need to be made. First, when the appeal was initially filed in this case, R. H. Donnelly Company and Hartford Insurance Group were appellants and George Johnson was appellee. Subsequently, Donnelly, Hartford and Johnson filed a joint brief urging the unconstitutionality of the statute. Then, shortly before oral argument was to be heard, the then-appellants filed a notice of voluntary dismissal and the then-appellee filed a motion for realignment of parties. We granted Johnson’s motion for realignment of parties and redesignated Johnson as appellant and treated Donnelly and Hartford’s motion as a motion for voluntary dismissal as appellants, granted it, and realigned and redesig-nated Donnelly and Hartford as appellees. Donnelly and Hartford chose not to participate in oral argument.

Second, upon determining the importance of the issue raised in this case to workers’ compensation litigants in the state, this court issued an order inviting interested parties to participate in this appeal as ami-cus curiae. Associated Industries of Florida accepted that invitation and has assisted the court by filing a brief and presenting oral argument, taking the position that the subject statute was constitutional.

Third, the Department of Labor and Employment Security entered this cause as a party appellee pursuant to Section 440.271, Florida Statutes (Supp.1980). However, the language in Section 440.271 which provides that the Department shall be a party to appeals to this court from orders of deputy commissioners was enacted as Section 10 of Chapter 80-236, Laws of Florida, and was, by the terms of Section 29 of Chapter 80-236, Laws of Florida, applicable to all claims for injury arising out of accidents occurring on or after July 1, 1980. Since the date of accident in the instant case is August 20, 1979, we have determined that the Department is not properly a party appellee in this action. We have chosen to treat the Department’s very helpful brief and its oral argument in support of the constitutionality of the statute as those of an amicus curiae.

ACCESS TO COURTS

Johnson urges that Section 440.20(12)(a) violates the access to courts provision of Article I, Section 21, of the Florida Constitution. We disagree.

Access to courts guarantees the continuation of common law causes of action and those causes of action may be altered only if there is a reasonable substitution which protects the persons protected by the common law remedy. Kluger v. White, 281 So.2d 1 (Fla.1973). In Kluger, the court specifically held:

Workmen’s compensation abolished the right to sue one’s employer in tort for a job-related injury, but provided adequate, sufficient, and even preferrable safeguards for an employee who is injured on the job, thus satisfying one of the exceptions to the rule against abolition of the right to redress for an injury. 281 So.2d at 4.

The subject statute does not deprive the parties of a cause of action or a right to sue without other remedy; it in no way deprives the employee of a right to compensation for a work-related accident, nor does it deprive the employer of the protection against suit in tort by the employee because of a work-related accident.

In Kluger, supra, the no-fault statute prohibited a right of action in tort for property damage in the amount of less than $550 and was held unconstitutional because it was a complete deprivation of the right of a party to sue for such injury and was not simply the replacement of one remedy for another. Similarly, in Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977), the Florida Supreme Court struck down a statutory provision which prohibited a third party tortfeasor from suing the employer because it deprived the third party tortfeasor of all rights of indemnity when the employee is injured in an industrial accident. Finding that the statute gave benefits and protections to the employee and the employer, but that it did not extend any benefits or protections whatsoever to the third party tortfeasor, the court held the statute unconstitutional as a deprivation of access to courts.

On the other hand, in cases where the statutes have put limitations on causes of action, they have not been found unconstitutional. For example, in McMillan v. Nelson, 5 So.2d 867, 149 Fla. 334 (Fla.1942), the Supreme Court found that the guest statute was not an unconstitutional deprivation of access to courts because although it did place a high degree of care on a driver relative to a paying passenger as opposed to a gratuitous one, it did not bar the right to sue altogether and the court found that the classification was neither unreasonable nor arbitrary. Similarly, in Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967), the court held that a statutory provision that a subcontractor is deemed to be the same person as the employer and that workers’ compensation was the exclusive remedy for injuries to employees was not unconstitutional because under the common employment doctrine the immunity of the subcontractor was based upon or reasonably related to liability for injury. The court also held that the provision did not violate the constitutional due process clauses or the requirement of equal protection of the laws because it was based on legitimate classifications and did provide for a remedy against any injury. For a thorough and insightful discussion of the access to courts provision of the Florida Constitution, see Note, Article I, Section 21: Access to Court in Florida, 5 F.S.U.L.Rev. 871 (1977).

In the instant case the subject statute does not preclude settlement based on all factors other than future medical needs and does not prohibit compensation to the employee for future medical needs but simply requires that it be paid on a periodic, as needed, basis.

IMPAIRMENT OF CONTRACT

Johnson’s second contention is that Section 440.20(12)(a) violates the “right to contract” clauses of both the federal and state constitutions because it deprives the parties of the right of compromise and settlement of a claim.

Article I, Section 10, of both the Florida Constitution and the United States Constitution prohibits any law which is an ex post facto law or a law “impairing the obligation of contracts.” A reading of the exact wording indicates that the constitutions do not provide a “right to contract,” that is, the right of individuals to enter into any contract that they wish and then have the state enforce it, rather they simply prevent the state from imposing a law which impairs the obligation of contracts. As stated in Manning v. Travelers Insurance Co., 250 So.2d 872 (Fla.1971),

In order for a statute to offend the constitutional prohibition against enactment of laws impairing the obligation of contracts, the statute must have the effect of rewriting antecedent contracts, that is, of changing the substantive rights of the parties to existing contracts. [Cites omitted] The guaranty of liberty of contract was never intended to withdraw from legislative supervision the making of contracts or deny the government the power to provide restrictive safeguards. 250 So.2d at 874.

In the instant case, the statute at issue is not a retroactive law changing rights under existing contracts because the amendment to the workers’ compensation law at issue applied only to accidents occurring on or after the effective date of the act. Ch. 79-40, § 127, Laws of Fla. This is consistent with the ruling in Sullivan v. Mayo, 121 So.2d 424 (Fla.1960), that the acceptance of the workers’ compensation law constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury.

Having determined that the subject statute does not impair contracts, we need not decide whether the compelling state interest test would be applicable if it did constitute impairment of contracts. Suffice it to say that none of the cases cited by Johnson in support of his contention that compelling state interest is the proper test is a contract case. The cases cited involve access to courts, equal protection, Sunspan Engineering and Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975), and attempts by the state to destroy private property without payment of compensation. Brazil v. Division of Administration, State Department of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977); Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957), modified, 101 So.2d 371 (Fla.1958).

POLICE POWER

Johnson’s third contention is that the subject statute is an improper exercise of the state’s police power. Conceding that workers’ compensation in general is a proper subject for the application of the police power, Johnson urges that such action is allowed to be only regulatory, not confiscatory, and that the subject statute is confiscatory.

Regarding the standard by which the court must measure the exercise of police power, in Larson v. Lesser, 106 So.2d 188 (Fla.1958), the Florida Supreme Court stated that there is no absolute freedom of contract but nevertheless freedom of contract is a general rule and restraint is the exception and the exercise of police power must be based on the necessity to protect the public morals, health, safety or welfare. Contrasted with this, in Sunspan, supra, talking about an abolition of a right to sue, the Supreme Court stated that Kluger set forth an overpowering or compelling necessity requirement. Since there is no denial of access to courts, it does not appear the compelling necessity test is applicable in this case. Accordingly, the test to be applied is whether the regulation is necessary for the public welfare.

In his treatise on workers’ compensation, Professor Larson discusses the public interest in restrictions on settlements, pointing out that in workers’ compensation law one is not interested solely in the independent rights of the litigants, but one needs to realize that the entire system is set up and paid for by the public and has been set up for the protection of the public by avoiding having “the disabled victims of industry thrown on private charity or public relief.” For this reason, Larson states, “It follows, then, that the employer and employee have no private right to thwart this objective by agreeing between them on a disposition of the claim that may, by giving the workman less than this amount, make him a potential public burden.” 3 A. Larson, Law of Workmen’s Compensation, § 82.41 (1976). Larson further points out that it may never be in the claimant’s best interest to wash out future medical benefits and that, in fact, the model workers’ compensation law does not permit such a washout. Larson, § 82.50.

The Department urges the ban on washouts serves a dual public purpose: (1) it forces the injured worker and the carrier to litigate claims where the true issue in dispute is compensability (the public has an interest in seeing that only claims which are compensable are paid), and (2) it prevents the worker from waiving future medical benefits during a period of good health with the result that eventually he becomes a burden on society.

Furthermore, another statement of the reason for the prohibition of lump sum settlement of medical benefits is set forth in Sadowski, Herzog, Butler and Gokel, The 1979 Florida Workers’ Compensation Reform: Back to Basics, 7 F.S.U.L.Rev. (1979): “Just as it was illogical to base compensation upon prospective wage earning capacity under the prior law, it is illogical to pay a lump sum benefit shortly after an injury has occurred when the future effects of the injury are unknown.” The article points out the potential problem which would occur if the lump sum settlement resulted in overpayment of claims or a payment of unjustified claims, as well as underpayment for the most serious injuries. The authors assert, “Proceeding on the theory that workers’ compensation is intended to supplement the lost wages of an injured worker, the new law states that, as a matter of public policy, it is in the best interest of an injured worker to receive disability payments on a periodic basis.” See 440.-20(12)(a), Fla.Stat. (1979).

Our review of the authorities cited to us and discovered by us, as well as the statement of public policy in the law itself convinces us that the determination to prohibit washout settlements of future medical benefits was a policy decision that was within the authority of the Legislature to make as being necessary to protect the public welfare. We reject Johnson’s contention that the subject statute is confiscatory; it does not affect the right to make or receive compensation but simply controls the manner in which medical benefits shall be paid, namely, on a periodic rather than a lump sum basis.

Accordingly, we hold that Section 440.-20(12)(a), Florida Statutes (1979), is constitutional.

ERVIN, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.