author: FAULKNER, Justice.

text:
    BURBIC CONTRACTING CO., INC. v. CEMENT ASBESTOS PRODUCTS COMPANY, a corp., Hartford Accident and Indemnity Company, a corp., and Robintech Incorporated, a corp. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corp. v. CEMENT ASBESTOS PRODUCTS COMPANY, a corp.
    80-218, 80-218A.
    Supreme Court of Alabama.
    Jan. 8, 1982.

      James W. May of Odom & May, Birmingham, for appellant Burbic Contr. Co.
    Charles E. Sharp, Mac B. Greaves & Catherine E. Crudup of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellant Hartford Acc. & Indemn. Co.
    L. Vastine Stabler, Jr. and Lee E. Bains, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee Cement Asbestos Products.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellee Robintech, Inc.

      . Justice Almon sat at oral argument of this case. He now recuses himself. Justice Jones, who participates in this opinion, heard the tapes of the oral argument.

   FAULKNER, Justice.

Cement Asbestos Products Company (CAPCO), a manufacturer and supplier of pipe, brought suit against Burbic Contracting Company for the price of materials sold to it under an oral agreement. Burbic, in its answer, asserted that the pipes were defective and developed leaks and counterclaimed against CAPCO. CAPCO claimed that the pipe in question was not defective and that the leaks were caused by the improper installation of the pipes by Burbic’s employees. As Burbic’s surety for a portion of CAPCO’s claim against Burbic, Hartford Accident and Indemnity Company was also named as a defendant. Robintech, the manufacturer of the pipe, was joined as a third party defendant.

CAPCO and Burbic made an oral agreement for the sale and purchase of a specified amount of polyvinyl chloride pipe. CAPCO shipped the pipe in several installments. Prior to the initial shipment of the pipe, CAPCO sent a printed acknowledgment form to Burbic. Each shipment also included an invoice on CAPCO’s form. The acknowledgment form contained the following contractual limitation of remedies on the reverse side of the form:

4. WARRANTY: Seller makes no warranties either expressed, implied, or statutory in regard to products or materials sold hereunder by Seller, except, however, if within 90 days from the date of delivery any place is judged by Seller to be defective in material or workmanship, Seller may repair or replace it, but the full measure of Seller’s liability shall be the purchase price paid to Seller for said piece. In no event shall Seller be liable for labor or consequential damages.

The front of the form stated: “ALL SALES SUBJECT TO CONDITIONS OUTLINED ON REVERSE SIDE OF THIS ORDER FORM.”

The trial court found that the limitation of remedies was not a material addition to the contract within the meaning of Code 1975, § 7-2-207. The trial court also found that under the circumstances, Burbic accepted the limitation of remedies. Furthermore, the trial court stated that the leaks in the pipe were caused not by defects in the pipe, but by the improper installation of the pipe by Burbic’s employees. The trial court awarded $78,858.25 to CAPCO, which represents the unpaid amount owed by Burbic for the pipe. Robintech was found not to be liable. The trial court also found in favor of CAPCO against Hartford, and in favor of Hartford against Burbic. Burbic and Hartford appeal from the judgment entered against them in favor of CAPCO. We affirm the judgment of the trial court.

Burbic and Hartford assert that the trial court erred in applying the limitations of remedies clause in the present case. The appellants attack the clause on several grounds. First, the appellants contend that the clause is a material alteration of the contract under Code 1975, § 7-2-207, and therefore is not part of the terms of the contract. Second, the limitation of remedies is attacked on the grounds that the limitation is not effective under Code 1975, § 7-2-719. Furthermore, the appellants argue that under the circumstances of this case, the limitation of remedies is unconscionable. Code 1975, § 7-2-302. Finally, the appellants urge this Court to set aside the finding of the trial court that the leaks in the pipes were attributable to the improper installation of the pipes by Burbic’s employees.

Burbic and Hartford also assert that the trial court erred in failing to admit evidence of subsequent modification of the pipe and evidence of similar claims against CAPCO or Robintech.

Burbic and Hartford attempted to introduce the testimony of another buyer of Robintech’s pipe concerning the buyer’s complaints and troubles with the pipe. In Meadows v. Coca-Cola Bottling, Inc., 392 So.2d 825 (Ala.1981), this Court held that while under certain circumstances evidence of similar defects may be admissible, the party must lay a proper predicate for the testimony. No predicate was laid showing that the witness had sufficient expertise and knowledge to testify as to his opinion. Burbic also failed to establish that the pipe used by the other buyer was the same type pipe sold to Burbic. The trial court’s decision will not be overturned on appeal unless there is a showing of palpable abuse. Id. The trial judge committed no error in refusing to permit the testimony.

The appellants also contend that the trial court erred in refusing to permit testimony concerning the subsequent modification of the pipe to establish CAPCO’s and Robintech’s breach of warranty. As the appellants admit, the general rule in Alabama and other states is that evidence of repairs or modifications made by a defendant after the alleged injury occurs is not admissible to show the defendant’s antecedent negligence. Montgomery v. Quinn, 246 Ala. 156, 19 So.2d 529 (Ala.1944); Bedgood v. T. R. Miller Mill Co., 202 Ala. 299, 80 So. 364 (Ala.1918). The rationale is that admission of such evidence would discourage persons from improving the condition which caused the injury. Id. Burbic and Hartford note that several courts have held that this rationale is not applicable to subsequent modifications in strict liability cases. The appellants urge this Court to extend the exception for strict liability cases to actions for breach of warranty.

“Questions as to the relevancy of testimony is a matter ordinarily within the discretion of the trial court, and unless such discretion has been grossly abused, it will not be considered error on appeal.” Costarides v. Miller, 374 So.2d 1335, 1337 (Ala.1979). Burbic sought to admit evidence that Robintech began producing an improved, more expensive pipe which had special provisions against the problems Burbic’s employees allegedly confronted with the pipe Burbic purchased. The record shows that Robintech still produces the same pipe that CAPCO sold to Burbic. This evidence coupled with the fact that the pipe which Burbic sought to admit was a more expensive, improved pipe, shows that the trial court did not err in refusing to introduce the new pipe into evidence because it was irrelevant.

Section 7-2-201 of Alabama’s version of the Uniform Commercial Code permits a written confirmatory memorandum to satisfy the requirement of the statute of frauds. Thus, the order acknowledgment sent by CAPCO to Burbic is a writing sufficient to satisfy the statute of frauds. Likewise, the fact that the form states additional terms does not affect the enforceability of the contract, given the subsequent dealings of the parties. See Code 1975, § 7-2-207(2). Thus, the preliminary issue is not whether the parties entered into a valid contract, but the issue is what terms are a part of the agreement. Section 7-2-207(2) provides:

(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) The offer expressly limits acceptance to the terms of the offer;
(b) They materially alter it; or
(c) Notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

As noted by several courts, Section 2-207 of the Uniform Commercial Code was not drafted with great clarity and courts often have great difficulty determining its meaning. See Dorton v. Collins & Aikman Corp., 453 F.2d 1161 (6th Cir. 1972); Roto-Lith, Ltd. v. F. P. Bartlett & Co., 297 F.2d 497 (1st Cir. 1962); Valmont Industries, Inc. v. Mitsui & Co., 419 F.Supp. 1238 (D.Neb.1976); Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684, 473 P.2d 18 (1970). The purpose of Section 2-207 was to alter the “mirror” rule of common law, requiring the terms of the offer and acceptance to be identical, or to mirror each other. I. W. Hawkland, A Transactional Guide to the Uniform Commercial Code § 1.090303, at 16 (1964); R. Nordsstrom, Handbook of the Law of Sales, § 37 (1970). An acceptance which contained terms additional to or different from the offer acted as a rejection and a counter-offer. Section 2-207 recognizes that in a commercial setting, the terms of the offer and acceptance will seldom mirror each other. Under Section 2-207 of the Uniform Commercial Code (Code 1975, § 7-2-207), between merchants, proposed terms become part of the contract unless they “materially alter” the contract.

The question before this Court is whether a contractual limitation of remedies is a material alteration of the contract between CAPCO and Burbic. The courts are split on this issue. Compare Roto-Lith, Ltd. v. F. P. Bartlett & Co., 297 F.2d 497 (1st Cir. 1962) and Boese-Hilburn Co. v. Dean Machinery Co., 616 S.W.2d 520 (Mo.Ct.App.1981); with Dorton v. Collins & Aikman Corp., 453 F.2d 1161 (6th Cir. 1972), and Ebasco Services, Inc. v. Pennsylvania Power and Light Co., 402 F.Supp. 421 (E.D.Pa.1975). We hold that the question of whether a limitation of remedies clause materially alters a contract is a question of fact. Dorton v. Collins & Aikman Corp., 453 F.2d 1161 (6th Cir. 1972). Ebasco Services, Inc. v. Pennsylvania Power and Light Co., 402 F.Supp. 421 (E.D.Pa.1975).

In Roto-Lith, Ltd. v. F. P. Bartlett & Co. and Boese-Hilburn Co. v. Dean Machinery Co., the additional term was a warranty disclaimer. Both courts held that a warranty disclaimer per se is a material alteration of the contract and thus acceptance of the contract is expressly conditional on assent to the additional term. Both cases are unclear, partially because the courts confuse the issue of whether the additional term prevents the formation of a contract under § 2-207(1) of the UCC with the issue under 2-207(2) of whether the term becomes a part of an existing contract. These courts and the appellants rely heavily on comment 4 to § 2-207, which provides that “a clause negating such standard warranties as that of merchantibility or fitness for a particular purpose” materially alters a contract. While this comment may clearly be applicable to a warranty disclaimer, a limitation of remedies is distinguishable. A buyer who is unlikely to be agreeable to a clause negating even the most basic warranties may not object to a reasonable limitation of remedies.

Comment 5 to § 2-207 gives examples of clauses that do not materially alter a contract. Those examples include “a clause limiting the right of rejection for defects which fall within the customary trade tolerances for acceptance with adjustment or otherwise limiting the remedy in a reasonable manner (see Section 7-2-718 and 7-2-719).” The question of whether a clause negates standard warranties or limits remedies in a reasonable manner is question best resolved by the trier of fact. Dorton v. Collins & Aikman Corp., 453 F.2d 1161 (6th Cir. 1972); Ebasco Services, Inc. v. Pennsylvania Power and Light Co., 402 F.Supp. 421 (E.D.Pa.1975).

The trial judge in his order stated that the contractual limitation of remedies was not a material addition to the contract. The findings of fact of a trial judge, sitting without a jury, will not be reversed unless the result is clearly erroneous or manifestly unjust. There is clear evidence to support the finding that the clause in CAPCO’s form limits Burbic’s remedy in a reasonable manner, and thus does not materially alter the contract. Code 1975, § 7-2-207, Comment 5.

Appellant also attacks the limitation of remedies clause on the ground that the limitation fails in its essential purpose. Code 1975, § 7-2-719(2). Section 7-2-719(1) and (2) provides:

(1) Subject to the provisions of subsections (2) and (3) of this section and of section 7-2-718 on liquidation and limitation of damages:
(a) The agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
(b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.

It should be noted that § 7-2-719 is only one way a seller may limit his or her liability. A seller may also limit his or her liability by a warranty. A limitation of remedy and a warranty may in substance be the same, but conceptually the two terms are different. See Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978). A warranty reduces the number of circumstances in which the seller will be liable for his or her breach of the contract. A limitation of remedies restricts the remedies available once a breach is established. In the present case, a warranty and a limitation of remedy are both present. The seller made no warranties except “if within 90 days from the date of delivery any place is judged by Seller to be defective in material or workmanship.” The warranty clause is not challenged here. The limitation of remedies clause further limits CAPCO’s liability for breach to repair or replacement and limits damages to the purchase price of the goods sold. This is the clause challenged by Burbic. The clause expressly limits Bur-bic’s remedies to repair and replacement of the defective goods. Thus, Burbic may not assert that the remedy is merely cumulative as is the presumption in Code 1975, § 7-2-719(l)(b). See Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978).

The factfinder must find that a limitation of remedies clause fails in its essential purpose or is unconscionable before it can award damages other than as provided in the limitation. A limitation of remedies to repair or replace goods fails in its essential purpose if the seller does not provide goods which conform to the contract within a reasonable time. Polycon Industries, Inc. v. Hercules, Inc., 471 F.Supp. 1316 (E.D.Wis.1979); Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978). The record shows that CAPCO replaced any pipe that was defective in material or workmanship. Furthermore, the trial court found that the defects in the disputed pipe were caused by the employees of Burbic, not by the defective nature of the pipe. The findings of a trial judge sitting without a jury are presumed to be correct. Langley v. Beasley, 399 So.2d 836 (Ala.1981), Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980). The evidence in the record supports the findings of the trial court.

Burbic also claims that the limitation of remedies is unconscionable. Burbic did not raise this issue at the trial level, and thus is precluded from belatedly asserting the issue for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979); Brown v. Robinson, 354 So.2d 272 (Ala.1977).

The other contentions of the appellants are without merit. The findings of fact and of law of the trial court are affirmed.

AFFIRMED.

JONES , EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.

      . See Robbins v. Farmers Union Grain Terminal Ass’n., 552 F.2d 788 (8th Cir., 1977), for an examination of the rationale of these decisions.


source: Caselaw Access Project

author: ADKINS, Justice. OVERTON, Justice,

license: Public Domain

text:
    Reubin O’D. ASKEW, et al., Appellants, v. Stephen R. SONSON, et ux., Appellees.
    No. 53843.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Feb. 18, 1982.
    Jack W. Pierce, Tallahassee, and Henry Dean, Gen. Counsel, S. Sherman Weiss, Richard P. Ludington, Director, Division of State Lands, Dept, of Natural Resources/Bd. of Trustees of the Internal Improvement Trust Fund, Tallahassee, for appellants.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, Miami, for appel-lees.
    Jim Smith, Atty. Gen., J. Kendrick Tucker, Deputy Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for Attorney General, amicus curiae.
    Paul J. Stichler, Orlando, for Lawyers’ Title Guaranty Fund, amicus curiae.
    J. Richard Harris of Scott, Burk, Royce, Harris & Loucks, Palm Beach, for the Real Property, Probate and Trust Law Section of The Florida Bar, amicus curiae.
    Jim Smith, Atty. Gen., David K. Miller, Asst. Atty. Gen., and Herbert D. Sikes, Tallahassee, for State Bd. of Ed., amicus curiae.
    Peter Guarisco, Tallahassee, for Florida Land Title Ass’n, Inc. and Florida Title Underwriters Bureau, amicus curiae.
    Chesterfield Smith and Wofford H. Stid-ham of Holland & Knight, Tallahassee, for Mobil Oil Corp., amicus curiae.
   ADKINS, Justice.

This is a direct appeal from a partial summary final judgment quieting title in favor of appellees (hereinafter referred to as plaintiffs) against the appellants (hereinafter referred to as defendants) based upon the application of the Marketable Record Title Act (chapter 712, Florida Statutes).

Plaintiff’s complaint alleged their “root of title” had remained of record and unchallenged for a period in excess of thirty years and requested that the court foreclose any claim of defendants as Trustees of the Internal Improvement Fund. Defendants, by affirmative defenses, contended that the application of the Marketable Record Title Act against defendants would be unconstitutional since the lands involved were section sixteen lands which are designated for school purposes. The summary judgment entered for plaintiffs rejected defendants’ argument that chapter 712, Florida Statutes, was unconstitutional as applied to the facts of the case and the land in question, and extinguished defendants’ claims. This appeal resulted. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The land involved was granted to the state by act of Congress in 1845, the year Florida was admitted to the Union. In 1917 drainage taxes were assessed against the property by the Southern Drainage District pursuant to chapter 7599, Laws of Florida, Acts of 1917. The land was sold to the District for the taxes due. This tax sale was held invalid under a previous decision of this Court. Southern Drainage District v. State, 93 Fla. 672, 112 So. 561 (1927).

Plaintiffs’ claim is not based upon the tax sale. The “root of title” goes back to the following: A warranty deed from Edwards to Malón Holding Company in 1926; a warranty deed from West to McKool in 1928; and a warranty deed from Lawrence to McKool in 1927. Since the last “root of title” no instrument contradicting plaintiffs’ claim has been placed of record for more than thirty years and no notice of claim pursuant to section 712.05, Florida Statutes (1975), has been filed by the defendants which would protect their rights under the Marketable Record Title Act.

The purported unconstitutional proceedings against school lands for the collection of drainage taxes (which resulted in the tax sale) were concluded in 1922. If the root of title in the instant case was based upon a “wild deed” the prior tax proceedings would be rendered irrelevant. We have held that “initially void tax title claims” can ripen into incontestable title through the Marketable Record Title Act. See Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.), cert. denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970).

We must determine whether the Marketable Record Title Act may constitutionally divest the state of title to lands which were granted for school purposes, including the sixteenth section in each Township.

After deliberating on this issue we decided to request additional briefs on the following question: “Are state properties affected by the marketable record title act, and if so, what categories are affected?”

We were furnished excellent briefs by amici curiae and the parties. The order requesting additional briefs restated and broadened the questions initially presented, so as to include the application of the marketable record title act to all state lands, of which section sixteen lands are merely one category. The question framed by the Court encompasses all categories of state properties, including sovereignty lands. Among the other categories of state properties are internal improvement lands, swamp and overflow lands, railroad lands, indemnity lands, and Murphy Act lands. The amici curiae urge the Court to reserve ruling on those arguments until they are presented in the context of a proper controversy. In other words, they urge us to confine our ruling to the question initially presented.

It is a wise rule that courts will only determine issues which are based on a genuine controversy, supported by a sufficient factual predicate. This rule is particularly appropriate where complex issues of great public interest are concerned. This Court has stated that it will not address issues, particularly those of constitutional import, which are neither directly presented nor necessary to the resolution of the dispute at hand. See e. g., Pace v. King, 38 So.2d 823, 827 (Fla.1949); W. S. Badcock Corp. v. Kunze, 126 Fla. 725, 171 So. 657, 658 (1936). See also Daggett v. Willey, 6 Fla. 482, 511-512 (1855).

Chapter 78-288, Laws of Florida, amended chapter 712 (marketable record title act, hereinafter referred to as MRTA), so as to provide that the MRTA should not affect or extinguish “[sjtate title to lands beneath navigable waters acquired by virtue of sovereignty.” § 712.03(7), Fla.Stat. (Supp.1978).

It is clear that in no case does the MRTA serve to protect a private party’s title to sovereignty lands if title had not been perfected prior to the effective date of the 1978 amendment. We do not now pass on the question of whether a private owner’s title to what had been sovereignty lands could be perfected by the MRTA prior to the effective date of the 1978 amendment. See Odom v. Deltona Corp., 341 So.2d 977, 988 (Fla.1976).

In the case we are now considering we limit our discussion to the question of whether the MRTA may constitutionally divest the state of title to lands which were granted for school purposes, including the sixteenth section in each township.

By an act of Congress on March 3, 1845, entitled “An Act Supplementary to an Act for the Admission of Florida and Iowa into the Union, and for Other Purposes,” the state of Florida was granted the. sixteenth section in every township for the use of the inhabitants of such township for the support of public schools. This grant was made in consideration of concessions made by the state of Florida.

The grant contained a provision for giving other land in lieu of the sixteenth section. Prior to the grant, portions of the territory of Florida had been encumbered in the Articles of Cession and other portions by Congress in the fulfillment of public obligations. This interfered with the general policy of setting apart the sixteenth section for school purposes.

In some instances, settlements with a view to preemption or homestead had been made in the sixteenth section; some of the sixteenth sections were mineral land or embraced within a military, Indian, or other reservation; and some sixteenth sections were fractional in quantity, or wanting by reason of the township being fractional, or from natural cause. For these reasons Congress passed what is known as the “Lieu Land Statute” which authorized the state to select unappropriated government lands in lieu of the deficiency in the short sections. See 43 U.S.C.A. § 851 (1976); Hampton v. Matheson, 121 Fla. 768, 164 So. 714 (1935).

By an act of the legislature, section 6.01, Florida Statutes, approved July 25, 1845, the state assented to the terms of admission into the union and to the provisions of the acts of Congress respecting the public lands of the United States in this state. When, by survey, a sixteenth section, or fractional part thereof, was ascertained to exist in any township, the grant immediately attached thereto without a patent and related back to the date of the act of Congress. State ex rel. Kittel v. Jennings, 47 Fla. 302, 35 So. 986 (1904).

This grant of school lands was an absolute grant, vesting title in the state of Florida. The nature of the title was discussed in Hampton v. State Board of Education, 90 Fla. 88, 105 So. 323 (1925). This was a suit by Hampton against the State Board of Education seeking specific performance of a contract to sell school lands. The Court held that the suit was predicated directly upon a contract made by state officers representing the state and was in effect a suit against the state without its consent. The suit was therefore properly dismissed. The Court, in its opinion, said:

By sections 602, 603 and 3798, Revised General Statutes, 1920, the state retains the title to all state school lands and merely authorizes the state board of education to take possession of, to manage, to preserve and to fix the terms of sale, and to convey the title to “all lands granted to or held by the state for educational purposes.” Under these statutes the title remains in the state and the state officers have no title, but a mere power of agency to sell the lands, not for trust purposes of an administrative nature, but such sales are for “the principal of the state school fund” which “shall remain sacred and inviolate.” Sections 4 and 5, art. 12, Constitution. In view of these organic and statutory provisions, a suit brought against the state officers to enforce a contract for the sale of state school land, is in effect a suit against the state, since it relates to land the title to which is in the state for the benefit of a “sacred and inviolate” school fund, and the state has not by statute directed the contract to be made, and has not by law authorized a suit against the state.

105 So. at 327.

Whitfield’s Notes-Division II, Governmental, Legal, and Political History of Florida, Florida Statutes, Volume III, Helpful and Useful Matter (1941), contains a discussion of the origin of land titles in Florida. The following discussion relates to the “state school fund”:

The constitution of 1868 provided that “the common school fund ***** shall be derived from the following sources: The proceeds of all lands that have been or may hereafter be granted to the State by the United States for educational purposes; ***** twenty-five per centum of the sales of public lands which are now or may hereafter be owned by the State;” and that “the principle of the common school fund shall remain sacred and inviolate.” (§§ 4, 6, art. VIII, const. 1868). The constitution of 1885 makes the same provision as to the state school fund. (§ 4, art. XII, const.). On October 22, 1907, the state board of education adopted a resolution calling upon the trustees of the internal improvement fund to account to the school fund for twenty-five per cent of the proceeds from sales of public lands made by the trustees.
On February 6, 1908, Attorney General William H. Ellis rendered to Governor Napoleon B. Broward an opinion that “The term ‘public lands’ as used in the constitutions of 1868 and 1885, designated a class of lands distinguished from those granted by the United States to the State of Florida for public school purposes, all the proceeds of the sales of such lands constituting part of the School Fund, while only twenty-five per cent of the proceeds of the sales of ‘public lands’ * * was to be paid into the School Fund. The public lands consisted, among others, of the sixteenth section in every township granted by Act of Congress of March 3, 1845, for school purposes; five hundred thousand acres granted by Act of Congress of September 4, 1841 for Internal Improvement, and the swamp and overflowed lands granted by Act of September 28, 1850. ***** The lands designated in the Act of 1855, Chapter 610, Laws of Florida, did not lose their character as public lands by being pledged in trust to aid in the construction of certain objects of improvement. The legislature by that act simply designated some object of improvement to be constructed first and to postpone others ***** Section 4, Article VIII, Constitution of 1868, which was carried into and became a part of the Constitution of 1885, so far as it provides that the Common or State School Fund should consist in part of the twenty-five per cent of the sales of public lands which were then owned or thereafter acquired by the State, operated as an amendment to Chapter 610, Laws of Florida * * * * * and is a limitation or inhibition upon the Legislature from diverting more than seventy-five per cent of the sales of the public lands designated in the act to purposes other than increasing the Common or State School Fund. Section 4, Article VIII, Constitution of 1868, was not applicable to the sales of the lands which were sold for the purpose of discharging the lien of the bondholders of the railroads which acquired the right of the provisions of the act prior to 1868. The constitutional provisions could not, of course, have the effect of impairing the obligations of contracts nor depriving those persons of vested rights acquired under an Act of 1855.” (Citing, Newhall v. Sanger, 92 U.S. 761, 23 L.Ed. 769; 10 Fla. 112, 125; Gormley v. Bunyan, 138 U.S. 623, text 625, 11 S.Ct. 453 [454,] 34 L.Ed. 1086; Trustees I. I. Fund v. St. Johns Ry. Co., 16 Fla. 531).
In an opinion rendered January 3,1920, by Glenn Terrell, as counsel for the trustees of the internal improvement fund, it is held: (1) that the “public lands” of the state are those state lands that are open to sale and disposition under general laws, citing Bardon v. Northern Pac. R. Co., 145 U.S. 535, text 538, 12 S.Ct. 856 [857,] 36 L.Ed. 806; and Newhall v. Sanger, 92 U.S. 761, 762, 23 L.Ed. 769; (2) that at the date of the adoption and ratification in 1868, of the organic provisions that the school fund “shall be derived from the following sources: The proceeds of all lands ***** granted to the State by the United States for public school purposes ***** twenty-five per centum of the sales of public lands ***** owned by the State,” the only public lands owned were those held under grants by congress (a) of the sixteenth sections of lands for school purposes, (b) of lands for internal improvement purposes, (c) of swamp and overflowed lands; (3) that in adopting and ratifying the quoted provision as to twenty-five per cent of the sales of public lands, the convention and the electors could have had in mind no other lands than the internal improvement lands and the swamp and overflowed lands, since the whole of the sixteenth sections belonged to the state school fund; (4) that the state could apply to the state school fund twenty-five per cent of the sales of the internal improvement lands and the swamp and overflowed lands in the absence of objection by the United States, the grantor of such lands; (5) that the statutory vesting of the title of the internal improvement lands and the swamp and overflowed lands in public officers as trustees, was subject to future changes in the law and the beneficial ownership of the lands remained in the state; (6) that the organic provision operated as a self executing amendment of the statute, chapter 610, laws of Florida, defining the trust purposes of the lands vested in the state trustees; (7) that since the constitution of 1868 became effective the state school fund is entitled to receive twenty-five per cent of the internal improvement lands and of the swamp and overflowed lands held by the state trustees, provided no obligations or vested right against the internal improvement fund that existed prior to the effective date of the constitution of 1868 is thereby impaired. (Citing, Mills County v. Burlington & M. R. Co., 107 U.S. 557, 565, 2 S.Ct. 654 [661,] 27 L.Ed. 578; Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; U. S. v. State of Louisiana, 127 U.S. 182, 187, 8 S.Ct. 1047 [1050,] 32 L.Ed. 66; American Emigrant Co. v. Adams County, 100 U.S. 61, 25 L.Ed. 563; Trustees of Internal Imp. Fund v. Root, 59 Fla. 648, 51 So. 535; Trustees of Internal Imp. Fund v. Bailey, 10 Fla. 112, 125, 81 Am.Dec. 194; Lainhart v. Catts, 73 Fla. 735, 75 So. 47).
Lands under bodies of navigable waters and tide lands in the state, known as sovereignty lands, belong to the state; and statutes may require all as well as twenty-five per cent of the proceeds of permissible sales of such sovereignty lands to be paid into the state school fund, that “shall remain sacred and inviolate.” Chapter 12016, acts 1927, relating to the internal improvement fund, expressly recognizes the organic right of the state school fund to receive twenty-five per cent of all sales of internal improvement lands and of swamp and overflowed lands held by the trustees of the internal improvement fund.

Id. at 236-37.

In adopting the constitution of 1968, the people of the state of Florida obviously recognized that the purposes of the section sixteen grant had been accomplished and deleted from the 1968 constitution reference to the grant as a source of the state school fund. The only reference to the state school fund is in article IX, section 6, Florida Constitution (1968):

The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.

Although the source of these lands was a grant from the United States government, once the lands vested in the state of Florida, the state was authorized to deal with these lands in any manner not inconsistent with the Florida Constitution. In 63 Am. Jur.2d, Public Lands, § 107 (1972), it is said:

Following a grant, the lands and the proceeds thereof are under the control of the state legislature, and it may deal with them in any manner not inconsistent with the express commands of the state constitution. Through properly designated boards or officers it may control and manage the lands, and in a proper case they may be sold, or leased. As trustee, the state is required to administer the trust estate under the rules of law applicable to trustees acting in a fiduciary capacity.

(Footnotes omitted.)

The only provision in the Florida Constitution relating to the disposition of public lands is found in article X, section 11, Florida Constitution (1968), which reads as follows:

The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

Sovereignty lands are not involved in this litigation, so we are not concerned with the provisions of this section of the constitution.

After the grant from the United States, all sixteen-section lands were owned by the state. By an act of the legislature, the State Board of Education was empowered to convey school lands. See section 3798, Revised General Statutes (1920). Commencing September 1,1967, all lands held in the name of the state or any of its boards, departments, agencies, or commissions, were deemed to be vested in the Board of Trustees of the Internal Trust Fund for the use and benefit of the state. By October 1, 1967, any board, commission, department, or agency holding title to any state lands used for public purpose was required to execute all instruments necessary to transfer such title to the Board of Trustees of the Internal Improvement Trust Fund. Lands which reverted to the state under the commonly known “Murphy Act” for nonpayment of taxes were excepted from this statute. § 253.03(6), Fla.Stat. (1979).

The state of Florida acquired a fee simple title to the lands and the legislature had the sole power of disposition of the lands. State officers vested with power to direct, control, and dispose of the public lands of the state can exercise the power vested in them only in accordance with the state constitution and statutes and not otherwise. See Thompson on Real Property (1978), Vol. 5B, § 2720, page 364.

It is argued that it would be unconstitutional to apply the MRTA to section sixteen school lands. This Court has previously considered an argument that the application of the MRTA to constitutionally protected homestead interests would be unconstitutional. In ITT Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla.1977), we rejected this argument. In the opinion we quoted with approval from ITT Rayonier v. Wadsworth, 386 F.Supp. 940, 943 (M.D.Fla.1975) as follows:

Section 712.03 delineates specifically the interests which are not subject to extinction by the Act, and the statutory interest of homestead beneficiaries which vested prior to the root of title is not among them. Thus, the only reasonable assumption to be drawn from the express terms of the Act is that the Legislature did not intend to except therefrom such interests of persons claiming under the homestead statute (now F.S.A. § 731.27).

The attorney general also argues that estoppel acts such as the MRTA should not apply to the state of Florida but should apply only to private citizens. This Court held to the contrary in Daniell v. Sherrill, 48 So.2d 736 (Fla.1950), where the facts of the case raised an equitable estoppel against the state in a suit to quiet the title to land as against parties claiming under tax deeds issued by the state.

In Trustees of Internal Improvement Fund v. Bass, 67 So.2d 433 (Fla.1953), swamp and overflow lands were erroneously placed on the tax rolls. The lands were sold for delinquent taxes in 1908. The Trustees of the Internal Improvement Fund brought ejectment proceedings against the grantee of the tax deed holder. This grantee acquired title in 1941 and had been in possession for eleven years, fencing and improving the property, as well as paying taxes each year. We held that, even though the grantee’s title was not good by adverse possession, the state was estopped to question it. See also Lobean v. Trustees of the Internal Improvement Fund, 118 So.2d 226 (Fla. 1st DCA 1960).

There are no provisions in the Florida Constitution which prohibit the Florida legislature, in some instances, from subjecting the state to the same laws it imposes on the people. The legislature has made the statute of limitations applicable to the state. § 95.011, Fla.Stat. (1977). It has not excluded the state from the recording act. A 1977 statute required all laws which purport to convey title to real property from one government agency or political subdivision to another to be recorded in the public records of the county or counties in which the property is located. § 695.015, Fla.Stat. (1977).

In City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla.1978), we described the MRTA as follows:

The Marketable Record Title Act is a comprehensive plan for reform in conveyancing procedures. It is a curative act in that it may operate to correct certain defects which have arisen in the execution of instruments in the chain of title. Curative statutes reach back on past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended. They operate to complete a transaction which the parties intended to accomplish but carried out imperfectly.
The Marketable Record Title Act is also a statute of limitations in that it requires stale demands to be asserted within a reasonable time after a cause of action has accrued. It prescribes a period within which a right may be enforced.
The Marketable Record Title Act is also a recording act in that it provides for a simple and easy method by which the owner of an existing old interest may preserve it. If he fails to take the step of filing the notice as provided, he has only himself to blame if his interest is extinguished. The legislature did not intend to arbitrarily wipe out old claims and interests without affording a means of preserving them and giving a reasonable period of time within which to take the necessary steps to accomplish that purpose.

(Emphasis added.) We held the MRTA to be constitutional.

Under our constitution the legislature is not prohibited from making the Marketable Record Title Act applicable to the state. Whether it has done so must be determined from the act.

In 1963 the legislature enacted the Marketable Record Title Act for the express purpose of simplifying and facilitating land title transactions by allowing interested parties to rely on a record title as described in the act. The legislature expressly directed that the act be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title “as described in s. 712.02 subject only to such limitations as appear in s. 712.03.” § 712.10, Fla.Stat. (1977). Section 712.01, Florida Statutes (1977) reads as follows:

As used in this law:
(1) The term “person” as used herein denotes singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes.

(Emphasis added.) By including the state and any political subdivision or agency thereof as a “person” the legislature clearly intended for the MRTA to affect state properties as well as that of private citizens.

The interests extinguished by the MRTA are described in section 712.04, Florida Statutes (1977), which reads as follows:

Subject to the matters stated in s. 712.-03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not he deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title.

(Emphasis added.) One important exception for governmental entities is any right, title, or interest reserved in the patent or deed by which it parted with the title. Section sixteen lands, or school lands, could not be included in this exception or the exceptions to marketability listed in section 712.-03, Florida Statutes (1977).

In Sawyer v. Modrall, 286 So.2d 610, 613 (Fla. 4th DCA 1973), cert. denied, 297 So.2d 562 (Fla.1974), the court said:

With, reference to § 712.04, all interests, whether they are private or governmental, are void except and only where any right, title or interest is reserved in the deed. The 1890 deed from the Trustees was outside plaintiff’s thirty year chain of title and contained no reservation in the deed. It is the defendant’s contention that we should read § 712.04 as to include implied state governmental reservation of title to sovereign lands. In our view, and considering the purposes of the statute and the provision that it should be “liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely” on a record title, the statute should be interpreted so as to require an explicit reservation on the state’s part.

(Emphasis added.)

In Odom v. Deltona Corp., 341 So.2d 977, 989 (Fla.1977), this Court said:

It seems logical to this Court that, when the Legislature enacts a Marketable Title Act, as found at Chapter 712, Florida Statutes, clearing any title having been in existence thirty years or more, the state should conform to the same standard as it requires of its citizens; the claims of the Trustees to beds underlying navigable waters previously conveyed are extinguished by the Act. Stability of titles expressly requires that, when lawfully executed land conveyances are made by public officials to private citizens without reservation of public rights in and to the waters located thereon, a change of personnel among elected state officials should not authorize the government to take from the grantee the rights which have been conveyed previously without appropriate justification and compensation. If the state has conveyed property rights which it now needs, these can be reacquired through eminent domain; otherwise, legal estoppel is applicable and bars the Trustees’ claim of ownership, subject to rights specifically reserved in such conveyances.

(Footnotes omitted).

After Odom v. Deltona Corp., supra, subsection (7) was added to section 712.03, Florida Statutes (1977), so that state title to land beneath navigable waters acquired by virtue of sovereignty was excepted from the provisions of the MRTA. Thus, with the adding of subsection (7), the legislature, for the first time, made an exception for state lands, and then only for submerged lands beneath navigable waters acquired because of sovereignty. The essence of the MRTA is that if a person, as defined in section 712.01, Florida Statutes, holds a chain of title going back over a period of thirty years and no other person or governmental entity has filed a notice of claim to the property during the thirty-year period, then all conflicting claims based upon any title transaction prior to such thirty-year period are extinguished. The only exceptions to the MRTA not extinguished are those found in section 712.03 and 712.04, Florida Statutes (1977). The lands involved in this litigation are not included in these exceptions.

Appellants rely upon Board of Public Instruction of Dade County v. Little River Valley Drainage District, 119 So.2d 323 (Fla.3d DCA 1960), to the effect that public school lands are not subject to execution or levy for improvement liens. This decision has no applicability to the facts in the case under consideration. The Sonsons are not presenting a claim based upon a tax sale, but upon “roots of title” which have remained unchallenged for over thirty years.

Appellants’ reliance upon State v. New Orleans Land Co., 143 La. 858, 79 So. 515, cert. denied, 248 U.S. 577, 39 S.Ct. 19, 63 L.Ed. 429 (1918), is misplaced since that case dealt with the validity of an execution sale on school lands after the creditor had reduced its claim to judgment. The question of judicial sales is not involved in this appeal since the Sonsons’ root of title does not include the judicial sale.

The task of defining which state lands, if any, are to be excluded from the operation of the MRTA is a legislative function in view of the clear language and purpose of the act. In addition to amending the MRTA in 1978 to provide an exception for sovereignty lands, the legislature at the same session enacted chapter 78-301, Laws of Florida, creating a state land study committee. It is apparent that the legislative branch of government has come to grips with the issues resolved by this Court in prior MRTA decisions and has left the framework of the act intact. Substantive rules governing the law of real property are peculiarly subject to the principles of stare decisis. United States v. Title Insurance and Trust Company, 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924); Alta-Cliff Co. v. Spurway, 113 Fla. 633, 152 So. 731 (Fla.1933). The legislative experience and the doctrine of stare decisis mandate the answer that the MRTA extinguishes the state’s interest in the section sixteen school lands in question. The decision of the lower court is affirmed.

BOYD, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs in result only.

OVERTON and ENGLAND, JJ., dissent.

MOTION FOR REHEARING

Upon consideration of the Motion for Rehearing filed by attorneys for Appellants,

IT IS ORDERED by the Court that said motion be and the same is hereby denied.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I would grant rehearing and vacate our original opinion. I initially dissented to the majority opinion without explaining my reasons, but now I believe on rehearing it is necessary to express my views so that the legislature may have a better perspective of a contrary interpretation of Florida’s Marketable Record Title Act when making a determination of whether corrective legislation is necessary to protect state-owned section sixteen lands.

The majority opinion construes the Marketable Record Title Act (MRTA) in a manner which allows the state to be stripped and divested of its title to section sixteen lands without any action or conveyance on the state’s part, other than the legislature’s initial passage of the act itself. In my view, this is totally contrary to the trust for which the United States Government granted these lands to the State of Florida. I find no legislative intent for MRTA to be used as an instrument of conveyance of unidentified section sixteen lands to individual owners unknown to the state, who, by happenstance, are the beneficiaries of a thirty-year-old interloper deed as root of title.

As expressed in the majority opinion, Florida received section sixteen lands from the federal government in 1845, the date of Florida’s admission into the Union, to be held in trust for the people. The land grant was to benefit the public school system and the proceeds from any sale of these lands was strictly for public school purposes. This Court has previously and clearly held that title to section sixteen lands is vested in the state for the benefit of the “sacred and inviolate” school fund, and that state officials may not convey such lands without a statute expressly directing such for school benefit. See Hampton v. State Board of Education, 90 Fla. 88, 105 So. 323 (1925).

In these proceedings, the state argues that the lands claimed by respondent were never conveyed out of the public domain, and that, in accordance with the purpose behind section sixteen lands, title remains in the State of Florida. This view is supported by all evidence of title which remains presently in the public land office established by the trustees of the internal improvement trust fund at Tallahassee. See § 253.031, Fla. Stat. (1979). I totally agree with this argument.

To say that the questioned lands have, in fact, been conveyed by the operational effect of MRTA is not, in my view, a reasonable interpretation of that act, particularly when another reasonable construction exists which does not defeat the act’s purpose. I recognize the purpose of MRTA is to simplify land title transactions and to allow reliance upon roots of title in existence for thirty years or more. And I agree that the act applies to lands that the state previously conveyed, even if it did so erroneously, such as swamp and overflow lands or Murphy Act Deed properties. See, e.g., Odom v. Deltona Corp., 341 So.2d 977 (Fla.1977); Sawyer v. Modrall, 286 So.2d 610 (Fla. 4th DCA 1973). I cannot agree, however, that the legislature in any manner intended that MRTA apply to lands which the state never conveyed. To so interpret the act would defeat its purpose and deprive the state of funds for the benefit and support of its school system.

The portion of MRTA principally relied on by this Court’s majority for its decision is section 712.04, Florida Statutes (1977), which reads as follows:

Subject to the matters stated in s. 712.-03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title.

By my interpretation, the interest of “governmental” bodies extinguished by the above-quoted portion of the statute is any claim a governmental body makes after the government has initially conveyed publicly-owned land. I cannot read that section to act as an instrument which actually conveys unknown state lands to unknown persons. The exceptions contained in section 712.04 in my view prohibit such a result. I construe the section as creating three categories of exceptions to which MRTA has no application: (1) unconveyed lands of the United States which exist in Florida; (2) unconveyed lands of the State of Florida; and (3) certain governmental rights which have been expressly reserved in the patent or deed made by the United States or the State of Florida, such as the reservation of mineral rights. My construction places section sixteen lands not previously conveyed within the second exception.

Further, it necessarily follows that the legislature had no intent to place uncon-veyed state property within the application of MRTA. For example, section sixteen lands, as well as other sovereignty lands, are only legally placed of record in the county of their location when the state, by appropriate official action, conveys the land to private or other public ownership. The lands in the instant case were never legally placed of record. Rather, they were illegally entered into the official records by an interloper deed and not by any overt act of the state. In this regard, the state is not like a private party who knows he will receive a tax bill each year, and, if he does not, knows he must investigate or subject himself to possible loss of the property through adverse possession. The state does not receive tax bills on its property. Moreover, it would be virtually impossible for the state to check the official records every year in all 67 counties to determine if any interloper deeds have been filed attempting to claim title to state-owned properties.

I strongly believe the legislature had no intent by enactment of MRTA to divest the state of its title to section sixteen lands. To do so without receiving funds for the property is a clear violation of the sacred trust for which the state has held these lands.

In view of the majority’s construction of the Marketable Record Title Act, I strongly dissent and recommend that the legislature amend chapter 712 to protect all presently state-owned lands.


author: BOYD, Justice.

text:
    DEPARTMENT OF REVENUE, etc., et al., Appellants, v. FLORIDA BOATERS ASSOCIATION, INC., etc., et al., Appellees.
    No. 60825.
    Supreme Court of Florida.
    Dec. 17, 1981.
    Rehearing Denied Feb. 23, 1982.

      Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, and W. Gray Dunlap, County Atty. and Helen K. Hobbs, Asst. County Atty., Clear-water, for appellants.
    Guyte McCord, III and Cynthia S. Tunni-cliff of Spector, Tunnicliff & McCord, Tallahassee, for appellees.
   BOYD, Justice.

This cause is before the Court on appeal from a decision of the district court of appeal holding a state law unconstitutional. Florida Boaters Association, Inc. v. State, 400 So.2d 1006 (Fla. 1st DCA 1981). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Article VII of the Florida Constitution excludes boats from ad valorem taxation and empowers the Legislature to define “boats” for the purposes of the exclusion:

Motor vehicles, boats, airplanes, trailers, trailer coaches and mobile homes, as defined by law, shall be subject to a license tax for their operation in the amounts and for the purposes prescribed by law, but shall not be subject to ad valorem taxes.

Art. VII, § 1(b), Fla.Const.

Part I of chapter 371, Florida Statutes (1979), is the Florida Boat Registration and Safety Law. In section 371.021(1) thereof, the Legislature has undertaken to define “boats” as it is constitutionally authorized to do. The subsection provides in part:

“Vessel” is synonymous with boat as referenced in s. 1(b), Art. VII of the State Constitution and means a motor or artificially propelled vehicle registered as provided herein as property and includes every description of watercraft, barges, and air boats, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

Chapter 79-334, section 23, Laws of Florida, amended section 371.021(1) by adding the following language:

However, live-aboard vessels are expressly excluded from the term “boat” for purposes of s. 1(b), Art. VII of the State Constitution and for purposes of license fees imposed by this part, if assessed as tangible personal property.

The 1979 enactment also added to section 371.021 subsection (18), which provides:

(18) “Live-aboard vessel” means:
(a) Any vessel used principally as a residence; or
(b) Any vessel represented as a place of business, a professional or other commercial enterprise, or legal residence, and providing or serving on a long-term basis the essential services or functions typically associated with a structure or other improvement to real property, and, if used as a means of transportation, said use is clearly a secondary or subsidiary use; or
(c) Any vessel used by any club or any other association of whatever nature when clearly demonstrated to serve a purpose other than a means of transportation.
Commercial fishing boats are expressly excluded from the term “live-aboard vessel.”

§ 371.021(18), Fla.Stat. (1979).

James McKillop resides aboard a 38-foot sailboat. He and the Florida Boaters Association filed an action for declaratory judgment, naming the State of Florida Depart-mént of Revenue, the Pinellas County Property Appraiser, and the Pinellas County Tax Collector as defendants. The lawsuit challenged the constitutionality of chapter 79-334, section 23, Laws of Florida. Upon the motion of the Department of Revenue for judgment on the pleadings, the court granted judgment for the Department.

The district court of appeal reversed, holding section 23 unconstitutional for failing to provide a reasonable definition of the term “boats” as used in article VII, section 1(b), Florida Constitution. We agree with the reasoning of the district court and therefore affirm.

While the constitution gives the Legislature the authority to define “boats” and the other species of property excluded by article VII, section 1(b) from ad valorem taxation, the authority is not unlimited and must be exercised in a reasonable manner. The flexibility thus granted to the Legislature does not empower it to depart from the normal and ordinary meaning of the words chosen by the framers and adopters of the constitution. See, e.g., State v. Florida State Improvement Commission, 47 So.2d 627 (Fla.1950); City of Jacksonville v. Glidden Co., 124 Fla. 690, 169 So. 216 (1936). The definitional flexibility was provided because it is conceivable that floating structures might be endowed with characteristics which completely differentiate them from the historic and popularly understood concept of a “boat.” The Legislature’s definitional attempt, however, has failed to make such a reasonable differentiation. It has simply decreed that when the transporta-tional or navigational use of a boat is secondary to other uses, the boat will be subject to ad valorem taxation instead of a license tax.

In Palethorpe v. Thomson, 171 So.2d 526 (Fla.1965), this Court declined to accept the Legislature’s determination that house trailers were included within the definition of motor vehicles for purposes of the constitutional exclusion from ad valorem taxation.

The use of the terms “house trailer” and “housing accommodations” imputes connotations contrary to the status of an exempt motor vehicle. In our opinion the language employed falls short of language sufficient to bring house trailers eo nomine into the constitutionally exempt class per se. In reaching this conclusion, we necessarily take into consideration common knowledge concerning the nature and use of house trailers.

Id. at 531. In the instant case, the legislative words fall short of language sufficient to take “live-aboard vessels” out of the constitutionally excluded class.

We approve the reasoning of the district court that the Legislature’s definition of “live-aboard vessels” has not successfully created a concept that differentiates such vessels from the term “boats” as used in the constitution. The constitutional exclusion may not be denied to floating structures that are used, or are capable of being used, for transportation or navigational purposes on water. If a floating structure, ostensibly a “boat” as ordinarily understood, is somehow rendered incapable of such uses, then the Legislature may, under article VII, section 1(b), declare that it is not a “boat.”

The decision of the district court is affirmed and the case is remanded for further proceedings in accordance with the district court’s mandate.

It is so ordered.

SUNDBERG, C. J., and ADKINS and OVERTON, JJ., concur.

McDONALD, J., concurs in result only.

ALDERMAN, J., dissents.

      . See Art. IX, § 13, Fla. Const. (1930). In 1965, after Palethorpe, the constitution was amended so that house trailers were included in the definition of motor vehicles. The 1968 revision brought about the present language excluding motor vehicles, boats, airplanes, trailers, trailer coaches, and mobile homes from ad Valorem taxation. Art. VII, § 1(b), Fla.Const.


author: ALDERMAN, Justice. SUNDBERG, Chief Justice,

text:
    Gabriel A. SANCHEZ, M.D., et al., Petitioners, v. Morris WIMPEY and Elsa Wimpey, Respondents.
    No. 59762.
    Supreme Court of Florida.
    Jan. 14, 1982.
    James F. Page and Philip H. Trees of Gray, Adams, Harris & Robinson, Orlando, and G. William Bissett, Jr. of Preddy, Kut-ner & Hardy, Miami, for petitioners.
    R. Fred Lewis of Kuvin, Klingensmith & Lewis, Miami, and Charles Rubenstein of Grossbard & Rubenstein, Davie, for respondents.
   ALDERMAN, Justice.

We granted review of the decision of the district court in Wimpey v. Sanchez, 386 So.2d 1241 (Fla. 3d DCA 1980), because the District Court of Appeal, Third District, in deciding that the jurisdiction of the medical mediation panel terminates ten months from the date the claim is filed, notwithstanding that no hearing was commenced within six months of the filing, has created conflict with Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla.2d DCA 1978), approved, 384 So.2d 151 (Fla.1980), as well as other decisions recognized by the district court in the present case as being contrary to its decision. Recently, in Aguilar v. Community General Hospital, 396 So.2d 149 (Fla.1981), we again made it clear that where no hearing is begun within six months after the mediation claim was filed, the jurisdiction of the mediation panel terminates after six months. We therefore quash that portion of the district court’s opinion holding that jurisdiction terminated after ten months and its concomitant holding that the statute of limitations was therefore tolled for ten months.

Alternatively, the district court held that, even if the jurisdiction of the medical mediation panel terminated six months after the claim was filed and the statute of limitations was tolled for six months rather than ten, the trial court’s dismissal of the cause was error because the record did not establish as a matter of law that the malpractice action was filed untimely. Although petitioners now attempt to argue the merits of this holding, they do not assert and we do not find that this holding conflicts with any decision of this Court or another district court of appeal. In the exercise of our discretion, we decline to consider the merits of this issue. There is no reason for us to allow petitioners a second appeal on this issue. In Jenkins v. State, 385 So.2d 1356 (Fla.1980), we emphasized the finality of district court decisions and quoted with approval the following excerpt of Ansin v. Thurston, 101 So.2d 808 (Fla.1958), authored by Justice Drew, which we described as setting the tone for the 1980 revision of article V, section 3, Florida Constitution:

We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420; Sinnamon v. Fowlkes, Fla., 101 So.2d 375. It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.
To fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy.

385 So.2d at 1357-58.

Accordingly, the decision of the district court is quashed in part, and this cause is remanded for further proceedings.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

Although I concur in the holding of the majority on the issue disposed of by the majority opinion, I respectfully, but firmly, dissent from the majority’s refusal to consider the merits of the alternative holding by the district court. Such a piecemeal approach to our review function is not only a poor utilization of judicial resources, of which there are precious few, but it is totally inconsistent with the traditional policy of this Court to fully dispose of a case once jurisdiction vests in the Court. This policy is based on sound logic and fairness to the litigants as well as the promotion of the efficient and expeditious administration of justice.

The author of Ansin v. Thurston relied on by the majority, had this to say about the proper scope of our review once jurisdiction attaches:

The second contention that we are limited in our review to the “question” is seen to be without merit by a simple analysis of the constitutional provision itself. In each of the three instances mentioned where we may exercise our judgment to review by certiorari the subject of the sentence is “any decision of a district court * * A decision encompasses the opinion and judgment and is generally regarded as determinative of the case, not merely a part of it. It is not the question of great public interest in a decision that we are concerned with but the decision that passes upon such a question. Needless steps in litigation should be avoided wherever possible and courts should always bear in mind the almost universal command of constitutions that justice should be administered without “sale, denial or delay.” Piecemeal determination of a cause by our appellate court should be avoided and when a case is properly lodged here there is no reason why it should not then be terminated here. In the Lissenden case we said, with respect to appeals and in discussing an analogous matter “[mjoreover, the efficient and speedy administration of justice is * * * promoted” by doing so.

Zirin v. Charles Pfizer & Co., 128 So.2d 594, 596 (Fla.1961) (footnotes omitted). This decision dealt with a petition for certiorari predicated on conflict as well as a question certified to be of great public interest. It is clear from the opinion that the policy considerations discussed in the context of certified question jurisdiction are equally applicable to the other forms of discretionary review lodged in this Court by article V of the constitution.

In the same year, Justice Hobson, writing for the Court, articulated the policy of complete review in the context of a conflict certiorari case:

Since we have concluded that, on the face of the subject opinion of the District Court, it appears there can be no doubt about the question' of direct conflict with many of our prior decisions, as well as the decision of the District Court of Appeal, Third District, in Martin v. Rivera, 99 So.2d 617, it becomes our duty and responsibility to consider the case on its merits and decide the points passed upon by the District Court which were raised by appropriate assignments of error as completely as though such case had come originally to this court on appeal. We will now assume that responsibility and perform the duty which devolves upon us.

Tyus v. Apalachicola Northern Railroad, 130 So.2d 580, 585 (Fla.1961) (footnotes omitted). The policy of entertaining all issues raised in the case was reaffirmed by the Court as recently as 1977 in Bould v. Touchette, 349 So.2d 1181 (Fla.1977), where there was conflict only as to one question of law, but the Court rejected the suggestion by one of the respondents that review be limited to that question.

The same principle concerning the scope of review has obtained in cases which come to the Court on direct appeal. P. C. Lissenden Co. v. Board of County Commissioners, 116 So.2d 632 (Fla.1959).

A court in at least one other jurisdiction has reached the same conclusion respecting the duty to entertain the entire case once jurisdiction vests. Under statutory jurisdictional authority similar (for our purposes) to that of our Court under article Y of the Florida Constitution, the Supreme Court of Texas concluded:

Carefully weighing all the terms of the 1917 act, we have no doubt that, in a case coming within its appellate jurisdiction under subdivisions 1 to 5 of article 1521, the Supreme Court is not only clothed with the power, but is charged with the duty, to determine all properly presented questions of law requisite to a correct decision of the case.

Holland v. Nimitz, 111 Tex. 419, 430-31, 239 S.W. 185, 188 (1922). See also Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949).

Furthermore, the very language of our jurisdictional authority implies that the entire decision of the district court is to be reviewed and not just particular issues within the decision. Article Y, sections 3 and 4, Florida Constitution (1980), provide that the Supreme Court:

(3) May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.
(4) May review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance, or that is certified by it to be in direct conflict with a decision of another district court of appeal.

(Emphasis supplied.) The constitution states that we may review “decisions,” not issues within decisions. Hence, even though it be only a single issue within a decision which vests us with jurisdiction, nonetheless, it is the decision which is before us for review. For constitutional purposes “decision” has been construed to comprehend both the opinion and the judgment. Seaboard Air Line Railroad v. Branham, 104 So.2d 356 (Fla.1958). If that be so then all issues encompassed (and properly raised) within the opinion or judgment of the district court were intended for review by this Court when article V was adopted by the citizens of this state. It should be noted that this direction to review “decisions” of the district courts has not been altered since its inclusion in the judicial article of our constitution in 1957.

Finally, the obligation to review the second issue in the instant case seems particularly compelling since it is the alternative holding for the district court’s judgment. The policy considerations which were persuasive to those judges who preceded us and hammered out the significance and reach of the jurisdictional framework wrought in 1957 still pertain. In my judgment they dictate that we review and render judgment on all of the issues in this case.

ADKINS, J., concurs.

       101 So.2d 808 (Fla.1958).


author: PER CURIAM.

text:
    INTERNATIONAL RESORTS, INC., Petitioner, v. Fern E. KALB, Respondent.
    No. 81-1123.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 5, 1981.
    Leonard S. Englander of Schrader, Eng-lander & Schachter, P.A., St. Petersburg, for petitioner.
    John T. Allen, Jr., of John T. Allen, P.A., St. Petersburg, for respondent.
   PER CURIAM.

Appellants have alleged that this appeal is properly before the court as a review of a nonfinal order determining the issue of liability in favor of a party seeking affirmative relief. Fla.R.App.P. 9.130(a)(3)(C)(iv). We disagree and convert the appeal into a petition for writ of certiorari. However, appellant has not demonstrated any departure from the essential requirements of law, and so we deny the petition.

SCHEB, C. J., and HOBSON and GRIMES, JJ., concur.


author: PER CURIAM. COBB, Judge,

text:
    Jim D. BAKER, Appellant, v. DeLAND STATE BANK AND TRUST, Appellee.
    No. 81-62.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    R. K. Roberson of Roberson & Roberson, Deland, for appellant.
    David L. Thomas of Martin, Stanley, May & Thomas, P. A., Deland, for appellee.
   PER CURIAM.

AFFIRMED.

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

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

The plaintiff, Jim D. Baker, sued the DeLand State Bank for conversion of a Chevrolet automobile which he had financed via security agreement in 1977. This loan was Instalment Loan No. 30-412274. Ultimately, that loan was fully paid by Baker and the security agreement stamped by the bank as “Paid.” Prior to that pay-off, however, Baker bought a Dat-sun truck from the bank in April, 1979, and the parties entered a second security agreement at that time.

The security agreement for the financing of the Datsun contained the following provision:

The Borrower having pledged, assigned, conveyed, deposited, or granted a security interest under the Uniform Commercial Code (Florida) to the Bank as collateral security for the payment of this note and any note given in extension or renewal hereof, and as security for the payment of any and all liability of the Borrower to the Bank, whether now existing or hereafter arising, in the following property, viz:
1978 Datsun Truck Ser. # KHL620290488 and Cross-Pledged to Instalment Loan # 30-412274.

This language is clear and unambiguous. See American Restaurant Supply Co. v. Wilson, 371 So.2d 489 (Fla. 1st DCA 1979). It cross-pledges the Datsun truck as security for the 1977 loan. It does not pledge, and cannot reasonably be construed to pledge, the Chevrolet automobile as collateral for the 1979 loan. It was not modified by any subsequent agreement for any additional consideration.

Nevertheless, when the Datsun loan went into default, after that vehicle developed mechanical problems, the bank seized the Chevrolet and converted it to satisfy the 1979 loan. Plaintiff moved for summary judgment and, on what appears to me to be an unequivocally clear question of law, was entitled to it. The trial court erroneously denied it, and ultimately entered judgment for the bank. I would reverse, vacate the judgment, and remand for entry of summary judgment for the plaintiff on the issue of conversion- and trial on the damages.


author: PER CURIAM. WENTWORTH, Judge,

text:
    John DOE (Hamby McCaskill), Appellant, v. STATE of Florida, Appellee.
    No. WW-153.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1981.
    On Rehearing Jan. 28, 1982.
    Rehearing Denied Feb. 23, 1982.

      Jack Behr, Public Defender, Terry D. Terrell, Asst. Public Defender, Pensacola, for appellant.
    Jim Smith, Atty. Gen., A. S. Johnston and Miguel Olivella, Jr., Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

McCaskill seeks review by appeal of an order granting the state’s application for surgical removal of a bullet from McCas-kill’s leg. Although appeal is an inappropriate procedure, we grant certiorari to address the issue presented. We conclude that, in the circumstances of this case, surgical removal of the bullet, without McCas-kill’s consent, would constitute an unreasonable search and seizure prohibited by the Fourth Amendment of the United States Constitution and Article I, Section 12, of the Florida Constitution.

The state contends that on the evening of June 25,1976, in the course of an attempted armed robbery of a gas station, the attendant was murdered. Prior to being killed, the victim fired four shots from a 32-caliber pistol. Police officers subsequently received information identifying the persons involved in the robbery, and directing the officers to the hospital at which one of the assailants allegedly received treatment for a gunshot wound. Hospital records establish that on June 26, 1976, McCaskill received treatment for such a wound. X-rays taken at that time, and x-rays taken in 1980, indicate that a 32-caliber bullet is lodged near the groin of the left leg about V2 inch beneath the skin surface, and that the bullet is neither fragmented nor distorted. The bullet was not removed.

Identification of a bullet is made by comparing its fine rifling striations with the barrel of a particular gun, or with another bullet fired from the same gun. However, x-rays are not capable of revealing rifling striations on a bullet, and expert testimony in this case suggested that the fine rifling striations may have been altered or obliterated by the chemical effect of body fluids upon the bullet. The testifying expert was unable to express an opinion as to whether the bullet in McCaskill’s leg retains any of the fine rifling striations intact; the expert indicated that such an opinion would “border on speculation,” and that only by microscopic examination of the bullet could a determination be made as to its evidentiary value.

After considering the evidence, the trial judge found probable cause to believe that McCaskill was involved in the armed robbery and murder of the gas station attendant and that the bullet in McCaskill’s leg was fired from the attendant’s pistol and would be “material and relevant as evidence in this cause.” The judge further found:

That the location of the projectile in Hamby McCaskill, Jr.’s, left thigh is located one-half inch below the skin and can be removed by minor surgical procedure with the use of a local anesthesia; that there is little or no risk of any permanent injury or any residual harm; that the evidence herein could not be obtained in any other manner except by surgery.

On the basis of his findings the judge ordered surgical removal of the bullet “in accordance with accepted medical and professional practices. .. . ”

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the U.S. Supreme Court considered non-consensual body intrusions in the context of the Fourth Amendment search and seizure provisions. The Court indicated that Fourth Amendment protections “forbid any such intrusions on the mere chance that desired evidence might be obtained,” and require “a clear indication that in fact such evidence will be found.... ” While Schmerber approved a compulsory blood test in the circumstances of that case, the Court cautioned:

That we today hold that the Constitution does not forbid the State minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Since the decision in Schmerber, other courts have considered, within the context of Fourth Amendment search and seizure provisions, surgical intrusions into a defendant’s body to procure evidence of crime. One state court has adopted a rule that any compulsory surgical removal of a bullet is per se unconstitutional. See Adams v. State, 260 Ind. 663, 299 N.E.2d 834 (1973), cert. denied, 415 U.S. 935, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974). Other courts have declined to adopt a per se rule of unconstitutionality, but have nevertheless found that the Fourth Amendment precludes compulsory surgical removal of a bullet in the particular circumstances before those courts. See State v. Overstreet, 551 S.W.2d 621 (Mo.1977); also see Bowden v. State, 256 Ark. 820, 510 S.W.2d 879 (1974); Bloom v. Starkey, 65 App.Div. 763, 409 N.Y.S.2d 773 (App.Div.1978); People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909 (S.Ct.1974). And other courts have held that the Fourth Amendment does not preclude compulsory surgical removal of a bullet in appropriate circumstances. See U. S. v. Crowder, 543 F.2d 312 (D.C.Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); Creamer v. Georgia, 229 Ga. 511, 192 S.E.2d 350 (1972), cert. dismissed, 410 U.S. 975, 93 S.Ct. 1484, 35 L.Ed.2d 709 (1973); Allison v. State, 129 Ga.App. 364, 199 S.E.2d 587 (1973); State v. Richards, 585 S.W.2d 505 (Mo.App.1979).

None of the cited cases involve any suggestion that the requested surgery could be undertaken without a “clear indication” that evidence of the requisite character would be obtained. In the present case expert testimony showed that the bullet in McCaskill’s leg is only speculatively of any evidentiary value, due to the possible alteration of rifling striations by the chemical effect of body fluids over a four year time span. In these circumstances we conclude the evidence established that there was only a chance that the bullet would be of eviden-tiary value, and absent the clear indication required by Schmerber, a compulsory surgical intrusion into the appellant’s body would be an unreasonable search and seizure prohibited by the Fourth Amendment of the United States Constitution and Article I, Section 12 of the Florida Constitution.

Accordingly, certiorari is granted and the contested order is hereby quashed.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Our initial opinion was based upon the questionable evidentiary value of striation marks likely to be found upon a bullet some five years after it entered the body of the accused. In its motion for rehearing the State convincingly points out that aside from striation marks the projectile itself is relevant to the prosecution. (Physical examination of the bullet would provide positive confirmation as to its caliber.)

The victim, before expiring, discharged a .32 caliber weapon at his assailants several times. The following day the accused was treated by a physician for a gunshot wound which he claims was inflicted by a .22 caliber rifle. Without removing the bullet ballistics experts are only able to opine that “it probably is a .32.” This is a step removed from the positive confirmation that the State seeks to establish and that removal and examination of the projectile will produce.

Florida Rule of Criminal Procedure 3.220(b)(1)(vii) permits the taking of samples of blood, hair, and other materials of the body which involves no unreasonable intrusion thereof. Where, as in this instance, there is evidence before the trial judge that the object sought to be removed is relevant and the surgical procedure required to remove it will entail only minor intrusion into the body with negligible risk of harm or injury to the accused, the intrusion neither violates the right of privacy nor the prohibition against unreasonable intrusion into the body. In the instant case there was evidence that the bullet sought to be removed is approximately one-half inch below the surface of the skin and can be removed by minor surgery involving the use of a local anesthetic. The pain involved would be minimal, and the surgery is not the type that would result in permanent injury to the accused. Despite whatever misgivings we might have relative to the questionable evidentiary value of the striation marks, we have reconsidered our position in light of the State’s assertion that the projectile itself has evidentiary value and is relevant to the prosecution’s case.

The motion for rehearing is granted, and the order authorizing surgical removal of the bullet is affirmed.

SHAW AND THOMPSON, JJ., concur.

WENTWORTH, J., dissenting with opinion.

WENTWORTH, Judge,

dissenting.

I would deny rehearing because the newly asserted indispensability of the bullet to any prosecution of appellant or to adequate caliber identification was not alleged in the trial court or in the brief here in support of the order. That omission may be explained by the marginal merit of such a contention in the face of clear evidence available without surgery which excludes every other reasonably possible caliber identification, e.g., unequivocal radiologist’s testimony that the bullet in McCaskill’s body “can’t be a thirty-eight or a twenty-two.” The application and amended application for surgical removal instead state only a need for striation identification, i.e., “the bullet in McCaskill’s left thigh is needed to determine if it was in fact fired by Felton Robitzsch. The .32 caliber pistol . .. could be sent to the lab along with the bullet ... to determine if in fact the bullet was fired from Mr. Ro-bitzsch’s pistol.”

The trial judge therefore did not have before him even the doubtful merit of the argument now made, and his order permitting surgery should in my opinion be reversed because the application was deficient for the reasons stated in the original opinion in this cause.

      . See Fla.R.App.P. 9.140.

      . See Fla.R.App.P. 9.040(c).


author: DANIEL S. PEARSON, Judge.

text:
    Deborah KWECHIN, Appellant, v. INDUSTRIAL FIRE & CASUALTY CO., a foreign corporation, Appellee.
    No. 80-572.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Opinion Amended on Motion for Rehearing and Suggestion for Certification; Certification Granted Feb. 15, 1982.

      Horton, Perse & Ginsberg, Michael Nuz-zo, Miami, for appellant.
    Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We hold that an insurer which knows that a prospective insured does not have other collateral insurance or benefits, and despite such knowledge sells to the prospective insured a personal injury protection policy containing deductibles, is liable to the insured under the policy as if the policy contained no deductible.

In October 1978, Deborah Kwechin contacted Industrial’s agent for the purpose of obtaining personal injury protection (P.I.P.) coverage. It is undisputed that prior to writing a P.I.P. policy containing a $4,000 deductible, the agent was informed by Kwechin that she did not have other insurance coverage, and, in fact, she did not.

About ten days after the policy was written, Kwechin was injured in an accident. She filed a claim with Industrial, which promptly refused to pay any of her medical expenses below $4,000, the deductible amount. Kwechin sued, asking the trial court to declare that the deductible was offered by Industrial in violation of Section 627.739, Florida Statutes (1977), and was thus ineffective. Both parties moved for summary judgment, and from a summary judgment entered in favor of Industrial, Kwechin appeals.

Section 627.739, Florida Statutes (1977), provides, in pertinent part:

“In order to prevent duplication with other private or governmental insurance or benefits for senior citizens and others with access to such insurance or benefits, each insurer providing the coverage and benefits described in s. 627.736(1) shall offer to the named insureds modified forms of personal injury protection as described in this section. Such election may be made by the named insured to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household. Any person electing such modified coverage, or subject to such modified coverage as a result of the named insured’s election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by ss. 627.730-627.741. Premium reductions for each modification or combination of modifications shall be adequate to recognize the reduction in hazard and shall be subject to the approval of the Department of Insurance.
“(1) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, and $4,000, said amount to be deducted from the benefits otherwise due such person subject to the deduction, and shall explain to each applicant or policyholder that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles or other modifications as provided in subsections (1), (2), and (3).” (emphasis supplied).

In defense of the trial court’s judgment, Industrial claims that its only statutory duty is to affirmatively offer the deductibles, and that, contrary to Kwechin’s contention, Industrial is not prevented from selling a policy with deductibles when it is informed no such collateral coverage exists. Industrial says that the statute, read in its entirety, supports this interpretation in that (1) the language “and others with access to such insurance” necessarily contemplates insureds who merely have access to, but not actually in force, additional coverage; (2) the statute prevents insureds from suing third persons to recover the deductible, an implicit recognition by the Legislature of the existence of people not collaterally covered who would select a deductible and sue to recover non-covered losses; and (3) if it had been the Legislature’s intent to preclude persons without collateral coverage from selecting a deductible, that intent could have been better expressed by a clause announcing that no P.I.P. deductible may be offered to persons not having collateral coverage. In essence, then, Industrial argues that the sole purpose of the statute is to prevent duplication of coverage, that is, to assure that persons with collateral coverage will not unknowingly be burdened with unnecessary insurance and higher premiums.

We cannot construe the statute as Industrial urges. In our view, the overriding purpose of the statute is to assure complete insurance coverage for injuries. To accomplish that purpose, the Legislature has in no uncertain terms restricted the availability of deductibles to only those persons who have other “coverage under private or governmental disability plans.” It follows that an insurer which, as here, is on notice that the applicant for insurance is without collateral coverage, sells a P.I.P. policy containing deductibles, cannot later rely on the deductibles in refusing or reducing payment of medical expenses to the insured.

Accordingly, we reverse the summary judgment entered for Industrial and remand the case with directions to enter summary judgment as to liability for Kwechin.

ON MOTION FOR REHEARING AND SUGGESTION FOR CERTIFICATION

We grant the appellee’s Suggestion for Certification and add to our earlier opinion the following:

We hereby certify that our decision passes upon a question of great public importance in holding that an insurer which sells to a prospective insured a personal injury protection policy containing deductibles, knowing that the prospective insured does not have other collateral insurance or benefits, is liable to the insured under the policy as if the policy contained no deductible.

Except as provided herein, we adhere to our original opinion.

      . Kwechin counters Industrial’s argument that she was free to choose the deductible even though she was without collateral coverage by saying that any such reading of the statute would render it unconstitutional under Kluger v. White, 281 So.2d 1 (Fla.1973) (statute which permits insured, by his own knowing election, to forego insurance, and concomitantly denies to insured a right of access to the courts for redress for his injury, is unconstitutional in failing to provide a reasonable alternative to the loss of access). Because we hold that under Section 627.739, Florida Statutes (1977), an insurer may not offer deductibles to a person it knows to be without collateral coverage, we have no occasion to address this constitutional argument. Moreover, this appeal does not involve the issues (a) whether the requirement of collateral coverage is a reasonable alternative to the loss of access to the courts, see Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981) compare Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974), and (b) whether an insurer who satisfies the statutory duty to explain to the prospective insured that he may elect deductibles only if he has other coverage, and is not on notice that the insured is without collateral coverage, may effectively issue a P.I.P. policy containing deductibles and thereafter refuse payment of medical expenses to the insured within the deductible amounts. See Staley v. Florida Farm Bureau Mutual Insurance Company, 328 So.2d 241 (Fla. 1st DCA 1976).

      . Because it is undisputed that Industrial’s agent knew Kwechin did not have collateral coverage, it is unnecessary to address Kwech-in’s separate contention that the agent’s explanation to her did not satisfy the insurer’s duty under the statute and the insurer would be liable even if not informed that Kwechin did not have other coverage. The agent’s explanation, according to the agent, was:
      “... that by taking a deductible against such coverage she could save on her premium dollars, with higher deductibles resulting in greater premium dollar savings and further that if she had other insurance that covers the same items that the Personal Injury Protection coverage relates to, the deductible would make sense insofar as she could save premium dollars without losing actual insurance coverage.”
      Thus, the agent did not, by his own admission, inform Kwechin as the statute requires, that she could not avail herself of the deductible unless she had other coverage. In effect, he told her that the deductible was available in any event, but would be particularly beneficial, as non-duplicative, if she had other coverage.

      .Assuming that the insurer sold the policy to Kwechin at a reduced premium because of the deductibles, see § 627.739, Fla.Stat., it would be entitled to offset from any amounts due Kwechin the difference between the higher premium which it would have charged had there been no deductibles and the premium charged. Of course, the amounts due Kwechin will be “the benefits otherwise due,” § 627.739(1), Fla. Stat. (1977), that is, the eighty per cent called for by § 627.736, Fla.Stat. (1977), but with no deductible.