author: LARRY G. SMITH, Judge.

text:
    Charles FLESCHE, Appellant, v. INTERSTATE WAREHOUSE and U. S. Fidelity & Guaranty Company, Appellees.
    No. AD-327.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Rehearing Denied April 16, 1982.

      Richard A. Barnett, Hollywood, for appellant.
    Anthony J. Beisler, III, Fort Lauderdale, for appellees.
   LARRY G. SMITH, Judge.

Claimant appeals a worker’s compensation order denying his petition for modification based on a change in his wage earning capacity.

The deputy commissioner had previously denied a claim for wage earning capacity loss because of the inadequacy of claimant’s work search evidence. After receiving additional evidence of claimant’s unsuccessful work search at the modification hearing, the deputy denied the modification, ruling that the evidence of claimant’s unsuccessful job search, which he conducted subsequent to the original hearing, should have been presented by the claimant at the original hearing, and the issue was therefore res judicata. Further, the deputy ruled, the claimant’s work search subsequent to the original order was not a proper predicate for a change of condition as contemplated by the modification statute, Section 440.28, Florida Statutes. We must respectfully disagree with these rulings by the deputy commissioner, who was compelled to render his decision on questions some of which, apparently, have not heretofore been clearly addressed by an appellate tribunal in Florida workers’ compensation litigation. We therefore reverse.

The facts, briefly, show that the 57-year old claimant was injured in 1975 while employed as manager for a warehouse storage rental complex, suffering injuries to his back for which he underwent surgery. He received temporary total disability benefits until October 3, 1979, at which time permanent partial benefits were commenced based upon a 35% body as a whole disability rating, voluntarily accepted by the employer/carrier. He then filed a claim seeking permanent total disability, or in the alternative, a disability rating based on wage earning capacity loss in excess of the 35% anatomical rating. These claims were denied after a hearing on January 30, 1980. Claimant conducted a work search from March 19, 1980 to May 8, 1980, contacting some twenty-four prospective employers without success. He then filed his petition for modification, and presented his work search evidence at a hearing on April 27, 1981. Following this hearing, the order appealed was entered.

There can be little doubt that a modification based upon a change in earning capacity is contemplated by the statutes. Section 440.28, Florida Statutes. This was made clear by the Florida Industrial Commission in DuPont Plaza Hotel v. Schiffman, IRC Order 2-2326 (1973), cert denied, 291 So.2d 5 (Fla.1974), overruling the Commission’s decision in Gomez v. Panelfab Products, Inc., 6 FCR 409 (1971), which had declared that a change in condition pursuant to Section 440.28 “refers only to physical condition and that wage earning capacity loss cannot be construed alone as grounds for modification.” Larson’s Workmen’s Compensation Law, Volume III, § 81.31 (quoted in Dupont Plaza, supra), points out that “disability,” has a medical as well as an economic component, and that “a change in claimant’s ability to get or hold employment, or to maintain his earlier earnings level, should be considered a ‘change in condition’ even though claimant’s physical condition may have remained unchanged.” Cases from other jurisdictions have held that a modification based on a change in earning capacity may be ordered without any showing of a change in physical condition. Hunt v. Industrial Commission, 107 Ariz. 569, 490 P.2d 575 (1971); Levesque v. Shorey, 286 A.2d 606 (Me., 1972); Miller v. Argonaut Insurance Company, 136 Ga.App. 101, 220 S.E.2d 89 (1975). The distinction between medical or physical disability and wage earning capacity has been recognized in Florida, Maldonado v. Keller Metal Products, 185 So.2d 702 (Fla.1966), and as Commissioner Slepin so appropriately pointed out in Dupont Plaza, supra, it is not “disability” that is compen-sable, but the resulting loss of earning capacity.

The more critical aspect of this issue is whether a change in earning capacity may be predicated upon work search evidence accumulated subsequent to an initial denial of wage earning capacity loss, where the initial denial was based on an inadequate work search, or no work search. We answer the question in the affirmative. The ultimate issue is one of employability, and the so-called “work search” test is merely the evidentiary vehicle by which employability, or lack of it, is proven. If the claimant’s evidence fails to meet the job search requirements so as to “preclude” consideration of a disability award based upon loss of wage earning capacity in excess of his anatomical disability, then the assumption must be made that no such impediment to employment is present at that time. If the evidence shows that the claimant is in fact unemployed, then the deputy may validly assume, absent evidence to the contrary, that this status will be remedied in the near future. However, we find no basis in logic or reason to prevent a claimant from proving, within the two year period allowed by this statute. Section 440.-28, that although at the initial hearing he was justifiably presumed to have no claim based on loss of earning capacity, at a later time his earning capacity was nonexistent or impaired to a degree which would warrant an increase in his disability payments. We further reject, as contrary to the spirit and purpose of the worker’s compensation law, the suggestion implicit in the employer/carrier’s arguments here that even if claimant was in reality unable to secure employment within his capabilities at the time of the first hearing, he should be precluded from proving that he is unable to do so at the time of his modification hearing, because such proof does not establish a “change in condition.” We find the language of Mr. Justice Ervin in Arnold v. Stroud, 221 So.2d 729 (Fla.1969), particularly appropriate in disposing of this point (Id. at 731):

. . . [T]he evidence presented in support of modification indicates the transpiration of events cogently indicative of the incapability of the prior determination with the real extent of Petitioner’s disabilities. In these circumstances, to hold that Petitioner is not entitled to modification of the earlier determination so as to conform his compensation award to the existing realities of his disability would unduly thwart the liberal purposes sought to be accomplished by F.S. Section 440.28, F.S.A. (emphasis supplied).

We also dismiss any suggestion that a modification based on new job search evidence must be rejected under the rule prohibiting the use of “cumulative evidence” for such purposes. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla. 1963), the case cited by the deputy commissioner in support of his res judicata ruling, does state that it is the responsibility of the claimant to present his evidence to support his claim and, “as in any other proceeding, he is bound by it.” The opinion also recites that “all known evidence” bearing on the claim should be submitted to the deputy, and that if the claimant “fails to produce evidence available to him or produces unreliable evidence,” he cannot thereafter claim that the deputy committed error in relying upon it. Id. at 165. A careful reading of the Sauder opinion, however, reveals that these comments of the court were directed to modification attempts based upon mistake of fact, not change in condition.

The Sauder opinion also contains the observation, in reference to modifications under Section 440.28 based upon mistake in a determination of a fact or change in condition (156 So.2d at 165):

As we said on several occasions, it is not sufficient to support a modification under either provision by merely producing cumulative evidence.

This statement, read in isolation, can be interpreted erroneously, as later indicated by the court in Soloff v. U-Totem, Inc. of Broward, 257 So.2d 31 (Fla.1971), in which the court reaffirmed Dixon v. Bruce Construction Corporation, 160 So.2d 116 (Fla.1963), for the proposition that the so-called “cumulative evidence” rule, while applicable to petitions for modification on mistake of fact, cannot be applied equally and indiscriminately where the petition is based upon a change in condition.

Thus, the deputy commissioner’s and the E/C’s reliance on the Sauder case appears to have been inappropriate. Furthermore, the E/C’s reliance here upon Sonny Boy’s Fruit Company v. Compton, 46 So.2d 17 (Fla.1950), is inapposite, for the same reasons given by the Dixon court for disregarding it in that case, namely, that the attempted modification in Sonny Boy’s was based on alleged mistake of fact. Sonny Boy’s upheld the Industrial Commission’s reversal of a modification based on cumulative evidence showing merely a difference of opinion from that of the witnesses who testified at the first hearing, the court stating (46 So.2d at 18): “It developed nothing new nor did it show that something material had been overlooked by which the rights of the claimant were prejudiced.” We interject here that an adequate work search conducted subsequent to an inadequate one, or none at all, can hardly be characterized as “nothing new;” and, while the evidence of a new job search could not have been earlier “overlooked,” in the sense that something that has not yet occurred cannot be overlooked, such evidence is highly material, and we can think of few circumstances more devastating or prejudicial to the rights of a claimant than to have consideration of his loss of earning capacity claim at an earlier hearing “precluded” by a finding that his job search evidence was considered inadequate.

We have thus far here determined that a change in wage earning capacity, or economic condition, may be the subject of a modification based on change in condition, and that evidence to support such a change consisting solely of new job search evidence is not prohibited under the cumulative evidence rule. Nevertheless, we must yet deal with the E/C’s not unpredictable assertions that the deputy commissioner properly denied the attempt at modification because claimant’s job search should have been conducted “prior to the trial on the merits and not after,” and that the claimant should not be entitled to a reconsideration of his claim when he simply failed to prove his entitlement to benefits “when his day in court arrived.” In other words, is the “second attempt” to prove loss of wage earning capacity in excess of anatomical disability barred by the doctrine of res judicata? We think not.

The doctrine of res judicata, which is equally applicable to the decisions of administrative tribunals and courts, is said to be an obvious rule of expediency, justice, and public tranquility, and further: “Public policy and the interests of litigants alike require that there be an end to litigation, which, without the doctrine, would be endless.” 32 Fla.Jur.2d, Judgments and Decrees, § 100. It is equally clear, however, that there are recognized exceptions in the application of the doctrine, one of which is that it will not be invoked where it will work an injustice. This exception appears well-rooted in the law of Florida, as articulated by Mr. Justice Terrell in Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302, 304 (1946):

Stare decisis and res adjudicata are perfectly sound doctrines, approved by this court, but they are governed by well-settled principles and when factual situations arise that to apply them would defeat justice we will apply a different rule. Social and economic complexes [sic] must compel the extension of legal formulas and the approval of new precedents when shown to be necessary to administer justice.

Further, in Universal Const. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla.1953), the court expressed the view that:

[W]hen a choice must be made we apprehend that the State, as well as the courts, is more interested in the fair and proper administration of justice than in rigidly applying a fiction of the law designed to terminate litigation.
‡ sfc # sfc #
. . . Indeed, this very court, among others, has announced the salutary principle that the doctrine of res judicata should not be so rigidly applied as to defeat the ends of justice.

We conclude that to apply the doctrine of res judicata under the circumstance presented here would result in injustice. Our holding does not affect the application of the doctrine in other contexts, as in Florida Division of Corrections v. Morgan, 397 So.2d 1026 (Fla.1981), and cases therein cited, and City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla.App.1981).

We are convinced that a “sink-or-swim” approach to the job search requirement has not and will not serve the interests of the employer/carrier, the claimant, nor the fair and equitable administration of the worker’s compensation law. It has encouraged, even compelled, a species of job-seeking, for evidentiary purposes, that probably bears little resemblance to job-seeking generally. Consider the dubious decisions a claimant must make, for example, on whether to appear for a job interview using a crutch or cane, or wearing a cervical collar or a brace, or whether to disguise or obviously display a limp, pain, or restriction in bodily movements. The more truthful and candid the measurably impaired job applicant might be, the less likelihood of success in obtaining employment. On the other hand, a claimant who bears no visible or obvious signs of disability may yet be severely limited or restricted in his working ability, so that there might be many job opportunities open to him, but none that he could safely undertake, or competently perform, if hired. Not the least of the claimant’s difficulties is that concealment of past injuries or present disabilities might increase the chances of being hired, but — besides being basically dishonest — this might also operate to deprive him of needed medical or other benefits in event of a re-injury or aggravation of an existing condition. Martin Co. v. Carpenter, 138 So.2d 400 (Fla.1961).

Additionally, it has been our observation that the claimant is often required to conduct a job search in an atmosphere of uncertainty as to just what, in the way of physical activity, may ultimately be expected of him. This was recently illustrated by the plight of the claimant in Dan’s Plumbing and CNA Insurance v. Smith, 410 So.2d 941 (Fla. 1st DGA 1982), in which the claimant relied upon a treating physician, who advised him not to return to work, only to be confronted later by a ruling of the deputy commissioner, accepting the opinion of an examining physician to whom claimant had been referred by the carrier, that the claimant during the same period of time was free from any disability.

A casual examination of this court’s published opinions over the past approximately two and one-half years discloses that this court has repeatedly been called upon to review, and frequently reverse, job search decisions by the deputy commissioners. We believe we can safely say, without overstating it, that of this court’s decisions in worker’s compensation cases, with and without written opinions, those in which no job search issue was raised by one side or the other would represent the exception, rather than the general rule. The incidence of litigation on this one aspect of worker’s compensation cases is not surprising, however, for we find, in spite of the plethora of written opinions on this subject, that it is impossible to find a single, definitive statement of what constitutes an “adequate” job search that will serve as a guide for the adjudication of this issue under all the variables presented by these cases. Furthermore, it appears to us to be virtually impossible for the uncounseled claimant — or for that matter, the counseled claimant — in many instances to be able to predict, with any degree of certainty, just what is required of him in the way of a job search, or indeed, if any is required.

Job search evidence is unique in itself, in that it depends entirely upon the development or “creation” of extrinsic evidence by the claimant, and to some extent, by the E/C. In this respect this type of evidence differs radically from the other evidence, such as the evidence relating to the accident, the nature and extent of injuries and disabilities, and even the evidence as to other factors considered in determining the economic consequences of a claimant’s disability.

More importantly, however, we detect from our experience with the hundreds of worker’s compensation cases that have been lodged in this court since the 1979 amendments conferred review jurisdiction, that the requirement of a single “trial” on the work search issue places an unrealistic and unreasonable demand upon the deputy commissioner, who often must make a decision that will spell bonanza or forfeiture for one party or the other, based upon evidence which at best is frequently speculative and conjectural.

In summary, it is our considered opinion that there are so many variables connected with the job search requirement that a “false reading” often results from the initial hearing on this issue. We think a far better result can be reached and the justice of worker’s compensation adjudication substantially improved, by allowing any deficiencies in a claimant’s job search effort to be remedied and corrected by means of a modification petition. We further surmise that this procedure will allow the deputy commissioner to insure that, when the E/C defends on the ground that employment within the claimant’s capabilities is available, there will be ample opportunity for the E/C to produce a prospective employer or employers and thereby eliminate the necessity or grounds for a modification petition. Such a result would be entirely in keeping with the remedial purpose and spirit of the law, which is to provide for the disabled worker, and to return the injured or disabled worker to useful employment as soon as practicable.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C. J., and WIG-GINTON, J., concur.

      . In the order following this hearing the deputy commissioner found that claimant made no “in person” applications, made telephone calls from newspaper ads on only three days, and submitted no applications for employment; and further, claimant allowed his real estate license to lapse, sought no work as an inside insurance adjuster, work he had previously done, and made no contact with available rehabilitation programs. This order was not appealed.

      . In his order following the modification hearing, the deputy commissioner acknowledged that the claimant gave a list of twenty-four companies where he had applied for work, in slightly less than a two month period, and referred to claimant’s testimony that the jobs sought were in a managerial or managerial trainee catagory, many with requirements of heavy lifting, but that he was not offered a job, and from May 8, 1980, made no further attempts to secure work. The deputy commissioner made no ruling on the adequacy of claimant’s job search, and, since the cause is not before us on the merits, we are not called upon to do so.

      . Exxon Co. v. Alexis, 370 So.2d 1128, 1132 (Fla.1978), reiterated the requirement that in order to justify an award based upon a diminution of wage-earning capacity, “a claimant must show that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement.” However, there are a number of criteria by which wage-earning capacity must be measured, and “no single factor is conclusive.” Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971). Of course, claimant’s physical or mental condition may be such that the absence of a job search is reasonable and justified. Chicken-'N'-Things v. Murray, 329 So.2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976).

      . See, for example, Commercial Union Assurance Co. v. Hyman, 379 So.2d 456 (Fla. 1st DCA 1980), and Pantry Pride v. Gonzalez, 382 So.2d 818 (Fla. 1st DCA 1980).

      . See Section 440.15(3)(u), Florida Statutes (1977), providing that “disability,” means either physical impairment or diminution of wage-earning capacity, whichever is greater.

      . The assumption would be one arising by operation of law, however, rather than from the evidence, and the factual realities of claimant’s employability might be just the opposite.

      . These declarations must be read in context with the entire opinion and the specific issues to which they relate. As this court has recently had occasion to point out, workers’ compensation proceedings are inherently and uniquely “piecemeal” in nature, for the simple reason that various aspects of a claimant’s entitlements “mature” at different times. Hunt v. International Minerals and Chemical Corporation, 410 So.2d 640 (Fla. 1st DCA 1982).

      . Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960); and 32 Fla.Jur.2d, Judgments And Decrees, § 99.

      . See, 32 Fla.Jur.2d, Judgments And Decrees, § 97, and cases cited therein, notes 19, 20, 21.

      . By rough count, for the years 1980 and 1981, and 1982 to date, there were some 44 written opinions touching on some aspect of the work search requirement. See Workers' Compensation, “Employment Search,” Florida Law Weekly.

      . In addition to the criteria listed in Walker v. Electronic Products & Engineering Co., supra, footnote 3, which naturally vary widely from person to person, the condition of the economy and the locale in which the work search is conducted may create a wide disparity in the extent of the search that might be termed “adequate” or “inadequate.” What might be properly considered adequate in Clewiston might well be totally inadequate in Miami, for comparable claimants similarly injured.

      . We particularly take note of the increasing emphasis upon the requirement that benefits to which a claimant is entitled be made available without requiring the claimant to seek the services of an attorney at every hand. See Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

      .Common sense tells us, for example, that there may be many reasons why a particular person may not be hired for a particular job, and there is no guarantee that the job applicant will be able to learn, much less testify at the hearing, to the real reason why he was not employed. Established case law requires the claimant to show that his inability to secure work is due to his injury, or that because of his injury, he is suffering a loss of wage-earning capacity as to work he is capable of performing. Montgomery Ward and Company v. Hayes, 172 So.2d 581 (Fla.1965). The nature of these and other work search requirements as a practical matter calls for a great deal of opinion and “hearsay” evidence. It is obviously not practical for a claimant to subpoena 57 different employers to testify why the claimant did not secure a job for which there was an opening. We note in the case before us that, upon objection by the E/C’s attorney, the deputy commissioner restricted the claimant’s testimony concerning the reasons given by his prospective employers as to why he was not given a job.

      . We observe that the Supreme Court of Florida has quite recently and explicitly reemphasized the rule that when the claimant affirmatively demonstrates that “some effort” was made to obtain employment within his limitations, the burden shifts to the employer to demonstrate that suitable work is in fact available. Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981). It follows that when the burden has properly been shifted to the E/C, and the E/C has failed to carry that burden at the initial hearing, then an award based on wage earning capacity loss is justified. In that event, the E/C may utilize modification proceedings to establish a change in circumstances by demonstrating that suitable employment is available to the claimant which would require a reduction in wage earning capacity benefits. Dupont Plaza Hotel v. Schiffman, supra; City of Miami v. Watkins, IRC Order 2-3726 (1979) (and see earlier proceeding, IRC Order 2-3010 (1976)); Gibson v. Minute Maid Corporation, 251 So.2d 260 (Fla.1971). It should also be noted that the receipt of additional evidence bearing on matters in controversy is within the discretion of the deputy commissioner on remand, unless the court directs otherwise, Tampa Electric Company v. Crosby, 168 So.2d 70 (Fla.1964); Brock v. Sey Construction Corp., 237 So.2d 160 (Fla.1970); and the courts on occasion have specifically directed that the parties be given the opportunity to present additional evidence on the issues of claimant’s employability. Taylor v. Brennan Construction Company, 143 So.2d 320 (Fla.1962); Trieste v. Anchell, 143 So.2d 673 (Fla.1962); Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981); Pearson v. City of Miami Beach, 399 So.2d 1135 (Fla. 1st DCA 1981).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rose COLLETTI, Appellant, v. Ralph COLLETTI, Appellee.
    No. 81-1547.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied April 13, 1982.

      Leib & Martinez and Pamela Olson Scott, Coral Gables, for appellant.
    Levey & Cowan and Judy D. Shapiro, Miami, for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

With the exception of the alimony award, we find no abuse of discretion with respect to the trial judge’s rulings in this dissolution action. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Although designated as permanent periodic alimony, the award is structured to cease when the wife reaches the age of seventy. Since there is no showing that Mrs. Colletti, now fifty-six, is presently able to support herself or has a reasonable prospect of doing so in the future, termination of alimony at that point was erroneous. See Colucci v. Colueci, 392 So.2d 577 (Fla. 3d DCA 1980); Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980). Accordingly, the judgment below is reversed and remanded with directions to strike the provision terminating alimony when Mrs. Colletti reaches age seventy. In all other respects the judgment appealed is affirmed.

Affirmed in part, reversed in part and remanded with directions.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    OAK CREST ENTERPRISES, INC. and United States Fidelity & Guaranty Company, Appellants, v. Barbara J. FORD, Appellee.
    No. AC-490.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    Rehearing Denied April 13, 1982.

      Jack A. Langdon of Jones & Langdon, P. A., Gainesville, for appellants.
    Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellee.
   THOMPSON, Judge.

The employer and carrier (E/C) appeal a compensation order awarding wage loss benefits, contending that the deputy commissioner (deputy) erred: (1) in failing to make express findings that claimant had permanent impairment and had reached maximum medical improvement (MMI) on a date certain; and, (2) in finding that claimant had carried her burden of demonstrating entitlement to wage loss benefits. Claimant cross-appeals, contending first that the deputy’s order was insufficient in that it included no express findings of permanent impairment and MMI date. Claimant’s second point on cross-appeal charges as error the deputy’s failure to order the E/C to pay for the services of a physician chosen by claimant after the E/C had refused her request for a change of physicians. The question whether the deputy’s order included insufficient findings of ultimate fact is mooted by our determination that claimant has failed to demonstrate her entitlement to wage loss benefits.

Claimant’s industrial accident occurred on September 5, 1979, when she slipped and fell, injuring her coccyx. She initially received conservative treatment from a general practitioner but when her symptoms persisted she was referred to Dr. Parr, an orthopedic surgeon. Dr. Parr diagnosed coccygodynia, and administered injections of steroids and xylocaine. Claimant subsequently reported that the injections were not providing any relief so on February 18, 1980, Dr. Parr hospitalized her and surgically removed her coccyx. Although Dr. Parr had expected that claimant would be able to return to work about two months after the surgery, she continued to complain of pain so in August Dr. Parr readmitted her to the hospital and excised a portion of her sacrum. Claimant’s condition improved after the August surgery and on September 5, 1980, Dr. Parr discharged her to return to work without limitation. Claimant subsequently consulted an attorney who referred her to Dr. Freed, another orthopedist. When she first saw Dr. Freed on October 29, 1980, he determined that she had already reached MMI and that there was no medical reason why she should not return to work. Drs. Parr and Freed both testified that the coccyx is a vestigial anatomic structure and that its removal does not affect anatomic function.

The law applicable to this case is Section 440.15(3)(b), Florida Statutes (1979):

(b) Wage-Loss Benefits
1. Each injured worker who suffers any permanent impairment . . . may be entitled to wage-loss benefits under this subsection. Such benefits shall be based on actual wage-loss .... Such wage-loss benefits shall be, subject to the maximum compensation rate as set forth in s. 440.-12(2), equal to 95 percent of the difference between 85 percent of the employee’s average monthly wage and the salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improvement ....
2. The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensa-ble injury, (emphasis supplied).

Although claimant’s treating physician released her on September 5, 1980 to return to work without limitation, she made no effort to look for work until sometime after October of 1980. Claimant testified that she applied for work with several retailers but the record is devoid of evidence that her inability to obtain work with these retailers was a result of compensable injury. Claimant further testified that in February 1981 she obtained a position as a motel maid but that she was unable to handle the work due to her physical problems. In view of the fact that both physicians who testified in the case were of the opinion that claimant could work without limitation and was in need of no additional medical treatment, the claimant’s testimony that she could not work is wholly inadequate to prove her entitlement to wage loss benefits. Lake County Commissioners v. Walburn, 409 S.W.2d 153 (Fla. 1st DCA 1982). Accordingly, the award of wage loss benefits is reversed.

Upon being discharged from the care of Dr. Parr on September 5, 1980 claimant filed a claim for benefits, asserting, inter alia, that she was dissatisfied with Dr. Parr’s services and desired a change of physicians. When the E/C failed to select and authorize another physician to treat claimant, claimant’s attorney sent her to Dr. Freed. Claimant, by cross-appeal, now assigns as error the deputy’s failure to order the E/C to pay Dr. Freed’s bills. Claimant argues in support of this contention that § 440.13(2), Fla.Stat. (1979), places the burden upon the E/C to offer alternative medical care or to obtain from the deputy a ruling that a change in medical care would not be in the best interest of the claimant. While claimant’s interpretation of § 440.13(2) may be correct, her argument is unavailing since the statute deals only with change of physicians, and is inapplicable in this case. Claimant here accepted the services of Dr. Parr over a period of approximately eight months and through the performance of two surgeries. At the time she expressed dissatisfaction with Dr. Parr and requested a change of physicians, she had reached MMI, had already been released from his care, and was not, in fact, under the care of any physician. A claimant who has reached MMI and has been released by her physician is not ordinarily entitled to further medical treatment. Under the circumstances of this case, the burden was on the claimant to obtain a ruling from the deputy requiring the E/C to furnish additional medical treatment. The deputy correctly found that Dr. Freed’s treatment was unauthorized and that the E/C should not be held responsible for payment of his charges.

Affirmed in part and reversed in part.

MILLS, J., concurs.

WENTWORTH, J., dissenting.

WENTWORTH, Judge,

dissenting.

I would affirm on all issues except for the patent error of the deputy in applying § 440.13, Florida Statutes, to require claimant “to ask for a hearing” in order to get either a change of physician, or new authorization if the majority has correctly viewed Dr. Parr’s release as a termination of his care. Termination of remedial treatment in this case plainly did not end the need for medical supervision, evidenced by continued prescribed medication as well as claimant’s need for an accurate rating. The order correctly notes that Parr released claimant on September 8,1980, with a conclusion she had no permanent impairment, and following Dr. Freed’s conflicting conclusion “Dr. Parr was ultimately forced to concede ... a 5% rating pursuant to [the AMA] Guide.” That conclusion, and related findings that claimant’s temporary disability continued until September 8, 1980, adequately adjudicate the date of MMI and existence of permanent impairment. Escarra v. Winn Dixie Stores, Inc., 131 So.2d 483 (Fla.1961).

I would also conclude that the competent substantial evidence standard for appellate affirmance is amply met by the record substantiation of the deputy’s findings in support of wage loss:

8. For the month of September and thereafter, the claimant filed BCL-13B or wage loss forms for each of the months from September 1980 through and including February of 1981. As to the claimant’s claim for wage loss benefits, the undersigned notes that the claimant is 21 years of age, and has graduated from the tenth grade with a C-D-F grade average. Subsequent to her schooling and having a child, she began to work at Oak Crest Enterprises gathering eggs. This was the claimant’s first and only job prior to her slip and fall on the concrete which resulted in her surgeries and subsequent disability. It is apparent that she has no transferable skills from past employment and experience. The nature and extent of the claimant’s injury and disabilities were discussed above. Subsequent to her injury, the claimant has looked for work which was appropriate to her and has actually located and tried to work at Vital Industries and later at a further job she found in the newspaper at the Holiday Inn performing maid type duties. This later job claimant was unable to continue for longer than approximately five weeks due to the continuous standing, lifting, repetitive bending type activities required of her. Claimant re-applied but was refused employment with the instant employer. The claimant testified and it is uncontroverted that she could physically perform the jobs at Oak Crest Enterprises, Vital Industries, or at the Holiday Inn were it not for the residual pain and problems she experiences subsequent to her two surgeries in the sacral area. The undersigned finds that the claimant is entitled to wage loss over the past time period indicated by her wage loss forms from September of 1980 through February of 1981, inclusive. How the claimant’s condition progresses in the future and whether it meets the doctor’s predictions is a matter for future consideration.


text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. BLOUNT PONTIAC-GMC, INC., Appellee.
    No. AF-249.
    District Court of Appeal of Florida, First District.
    March 18, 1982.

      Jim Smith, Atty. Gen. and Gerald B. Cur-ington, Asst. Atty. Gen., Tallahassee, for appellant.
    C. Valentine Bates of Bates & Costello, Gainesville, for appellee.
   PER CURIAM.

The Florida Department of Corrections (DOC) appeals from a final summary judgment granting a writ of replevin for a fire truck in favor of appellee Blount Pontiac-GMC, Inc. (Blount). We reverse.

On May 4, 1978, DOC sent out invitations to bid for a fire truck meeting certain state specifications. Ward LaFrance Truck Corporation of Elmira, New York, through its Florida agent/distributor Eagle Fire Trucks, Inc., made the low bid and was awarded the contract on May 31, 1978. Upon receiving the contract, Eagle bought a 1978 GM Series 3500 chassis and cab from Blount Pontiac-GMC, Inc.

Eagle did not immediately pay Blount for the chassis and cab. Rather, pursuant to its usual commercial practices in such transactions, Blount retained the manufacturer’s statement of origin (MSO) pending payment. The MSO is essentially a document issued by the manufacturer to whomever purchases the vehicle directly from the manufacturer. By retaining the MSO Blount was able to postpone for Eagle and other similarly situated customers payments to General Motors Acceptance Corporation (GMAC) for a period of up to 120 days while the vehicle was being modified. This practice insures savings for both the immediate customer and the ultimate consumer.

Eagle then sent the chassis and cab to Ward LaFrance, which modified the chassis and cab according to the bid specifications. Ward LaFrance then delivered the fire truck, as modified, to DOC on January 10, 1979. Without making any investigation into the state of the fire truck’s title, DOC made full payment to Ward LaFrance on January 17, 1979. According to usual practice, Ward LaFrance at this point would have paid Blount for the chassis and cab and Blount would then have transferred the MSO to Eagle for delivery to DOC. However, after Ward LaFrance was paid by DOC but before it settled its account with Blount, it went bankrupt. Since it had not received payment for the fire truck, Blount instituted this action for replevin against DOC.

Blount argues that his case is governed by the provisions of Section 319.21(1), Florida Statutes:

No manufacturer, distributor, dealer or other person shall sell or otherwise dispose of a new motor vehicle to a distributor, dealer or other person without delivering to such distributor, dealer or other person a manufacturer’s statement of origin duly executed and with such assignments thereon as may be necessary to show title in the purchaser thereof, on forms approved by The Department of Highway Safety and Motor Vehicles; nor shall any distributor, dealer or other person purchase, acquire or bring into the state, except for temporary use and not for sale, a new motor vehicle without obtaining from the seller thereof such manufacturer’s statement of origin . . . (emphasis supplied)

Blount urges that DOC’s failure to strictly comply with the underscored passage prevents it from taking title to the truck. On the other hand, DOC argues that it received valid title to the fire truck as a good faith purchaser for value under the Uniform Commercial Code (§ 672.403, Fla.Stat.). We find DOC’s argument to be correct.

It is clear that the provisions of Chapter 319 take precedence over any provision of the UCC which may be inconsistent or in conflict with Chapter 319. § 680.-104(2)(h), Fla.Stat. However, it has been consistently held that Section 672.403 is not in direct conflict with the provisions of Chapter 319, in particular Sections 319.21 and 319.22. Harmony Homes, Inc. v. Zeit, 260 So.2d 218 (Fla. 1st DCA 1972); Stroman v. Orlando Bank & Trust Co., 239 So.2d 621 (Fla. 4th DCA 1970); Correria v. Orlando Bank & Trust Co., 235 So.2d 20 (Fla. 4th DCA 1970). These cases also hold that, if the owner of a motor vehicle entrusts it with a dealer who deals in the sale of motor vehicles, that dealer has the power to pass on valid title, although not marketable title, to a buyer in the ordinary course of business even though a title certificate is retained by the original owner and never delivered to the buyer. Murray, Commercial Law, 30 U.Miami L.Rev. 63, 100-101 (1975). In other words, Section 319.22(1) provides that a purchaser shall not acquire a “marketable” title until the certificate of title is issued to him; however, it does not prevent valid title from being passed. Correría, at 24.

Under Section 671.201(9), a “buyer in ordinary course of business” is “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.” Here, while DOC could have done more to ascertain the nature of Eagle’s property interest in the fire truck, the purchase was still made in good faith and without knowledge that ownership rights were in Blount. DOC knew nothing of the commercial arrangement between Eagle and Blount regarding the disposition of the fire truck. Compare O’Neill v. Barnett Bank of Jacksonville, 360 So.2d 150 (Fla. 1st DCA 1978).

Blount, however, contends that DOC cannot be a buyer in the ordinary course of business because the sale was not made out of Eagle’s “inventory”. The Uniform Commercial Code provides the following definition of inventory:

(Goods that) are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment.

§ 679.109(4), Fla.Stat. Blount would have us construe this passage as referring to goods that are present at the merchant’s place of business rather than goods which are usually carried but are not in stock at the time of the sale. Under this line of reasoning, since the fire truck was a special order, it could not have come out of Eagle’s “inventory.” We decline to accept such a circumscribed view of the term. Comment 3 to UCC 9-109 [§ 679.109] states:

The principle test to determine whether goods are inventory is that they are held for immediate or ultimate sale. Implicit in the definition is the criterion that the prospective sale is in the ordinary course of business.

This fire truck certainly falls within that definition. Further, Blount’s view is contrary to the manifest statutory intent of the UCC, the provisions of which are to be “liberally construed and applied to promote its underlying purposes and policies.” § 671.102(1) Fla.Stat. By Blount’s argument, for example, any time an auto buyer ordered a car with special options from a franchised dealer, that car, when delivered by the manufacturer, would not be deemed a part of the franchised dealer’s inventory because it was not on the lot but was special-ordered. Grafting such an interpretation upon Section 679.109(4) would gut the purpose of Section 672.403, which purpose is to protect buyers in due course:

In Section 2-403 of the Code [§ 672.403, Fla.Stat.], the bold decision is made to apply in a limited form at least the commercial or mercantile theory to goods. Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him the power to transfer all rights of the entruster to a buyer in the ordinary course of business. The buyer in the ordinary course is one who in good faith buys goods from a person in the business of selling goods of that kind. . . The effect of these provisions is that when goods are sold in an unquestionably commercial setting, they are to be given a high degree of negotiability. (Emphasis supplied).

Warren, Cutting Off Claims of Ownership under the Uniform Commercial Code, U.Chi.L.Rev. 469, 472 (1962), cited favorably in Correría, at 23. Blount must be held to this standard. Indeed, it created the situation by entrusting its cab and chassis to Ward LaFrance and Eagle. Having done so, it must bear the onus of Ward La-France’s bankruptcy. To hold otherwise would only frustrate the easy flow of commercial transactions, a result which is antithetical to the purposes of the Code.

Accordingly, the final summary judgment is REVERSED and the cause is REMANDED with directions to enter a judgment in favor of DOC and against Blount Pontiac-GMC, Inc.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    Pamela M. LEWIS and the Florida Department of Health and Rehabilitative Services, Appellants, v. Sammuel MACK, Appellee.
    No. 81-943.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.

      Geraldyne H. Carlton of Carlton & Carlton, Lakeland, for appellants.
    No Appearance for appellee.
   PER CURIAM.

Reversed. The trial court did not have jurisdiction when it set aside a final judgment of paternity more than one year after its rendition absent fraud upon the court. Florida Rule of Civil Procedure 1.540(b); Pilz v. Pilz, 395 So.2d 591 (Fla. 2d DCA 1981). The court was not authorized to reopen proceedings and relitigate matters previously finally resolved Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981). Moreover, when a final judgment has been rendered, a second judge may not redecide the same case. Boeing Co. v. Merchant, 397 So.2d 399 (Fla. 5th DCA 1981).

Accordingly, Judge Strickland’s order setting aside Judge Stokes’ final judgment of paternity is REVERSED and the cause REMANDED with directions to reinstate the original final judgment.

SCHEB, C. J., and BOARDMAN and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    Howard Lee BRICE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1005.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.

      Philip M. Gerson, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was placed on probation by the Circuit Court of Collier County after a guilty plea to a third-degree felony charge of possession of cocaine in violation of section 893.13(l)(e), Florida Statutes (1981).

There were at least two modifications or extensions of the original probation period and conditions due to appellant’s failure to consistently report to the Collier County jail for weekend incarceration, as required by one of the conditions of probation.

The events leading to this appeal began with appellant’s arrest in Dade County on a misdemeanor marijuana charge. Based thereon, appellant’s probation officer filed the first affidavit of probation violation for failure to secure permission to leave Collier County and for failure to live within the law (the misdemeanor charge). The Dade County arrest occurred on September 18, 1980, and the affidavit based thereon was filed on December 12, 1980.

On January 21,1981, a second affidavit of probation violation was filed by appellant’s probation officer, adding four new narcotics violations: three separate sales to undercover officers and a possession charge for contraband seized under a search warrant— all having very recently occurred in Collier County.

The revocation hearing was held on February 23, 1981. At the hearing, it affirmatively appeared that appellant’s trial counsel (public defender) had not been served with a copy of the second affidavit of violation and personally was totally unaware of the inclusion of the four new narcotics violations. He moved for a continuance, which was denied. The trial judge held, however, that since appellant had been arraigned on the new Collier County narcotics charges some two weeks before the revocation hearing, trial counsel was charged with notice thereof even though he was not personally present — appellant having been represented at this arraignment by another member of the public defender’s office.

The trial judge proceeded to revoke probation on the following specific grounds:

(3) Leaving the county without consent of the probation officer.
(5) Five counts of failure to live and remain at liberty without violating any law. (Misdemeanor marijuana, three separate sales to narcotics officers, and contraband found pursuant to a search warrant.)
(6) Using intoxicants to excess.

At the sentencing hearing about a month and a half later, the trial judge sentenced appellant to 15 years and a $10,000 fine.

Of the various points raised on this appeal, we find merit in two only.

Initially appellant contends that he was given an inadequate notice and opportunity to defend on the four Collier County narcotics charges which were alleged in the second affidavit. We agree. Due process, as interpreted in Gagnon v. Searpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), requires that a probationer receive reasonable and adequate notice of the alleged probation violations prior to a probation revocation hearing and in sufficient time to prepare a proper defense. The state’s contention that Brice was adequately notified of these charges because of the previous arraignment is without merit. A transcript of the proceedings indicates that Brice’s counsel at the probation revocation hearing was only prepared to defend the allegations contained in the first affidavit, i.e., the misdemeanor marijuana charge and leaving the county without permission. If counsel at the probation revocation hearing and the arraignment had been one and the same, we would be inclined to find any deficiencies in the notice harmless. See Hines v. State, 358 So.2d 183 (Fla.1978), and Van Cleaf v. State, 328 So.2d 568 (Fla.2d DCA 1976).

Appellant next contends that the trial judge erred in the sentence. Following the revocation proceedings, the trial court imposed a sentence of 15 years in addition to a $10,000 fine. The sentence was purportedly for the underlying offense of sale, delivery, or manufacture of a controlled substance, which would be a violation of section 893.13(l)(a)l, Florida Statutes (1980). This crime is a second-degree felony punishable by up to 15 years incarceration under section 775.082(3)(c), Florida Statutes (1979). However, the underlying crime to which the probationer had previously pled guilty and been placed on probation was a third-degree felony offense of possession of a controlled substance under section 893.13(l)(e), Florida Statutes (1980). Section 775.082(3)(d), Florida Statutes (1979), provides that the maximum prison term for a third-degree felony is five years. The Florida Supreme Court has repeatedly stated that a sentence imposed upon probation revocation must be within the statutory maximum for the underlying offense. See State v. Jones, 327 So.2d 18 (Fla.1976), and State v. Holmes, 360 So.2d 380 (Fla.1978). We therefore find the sentence to be excessive.

We find no merit in the remaining grounds urged on this appeal.

We therefore strike the words “three separate sales to narcotics officers, and contraband found pursuant to a search warrant” appearing in specific ground number five of the court’s order of revocation. Since other substantive violations remain, the order of revocation and judgment of guilt are affirmed.

We VACATE the illegal sentence and REMAND for resentencing.

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

      . The following six essential elements were mandated by the court in Gagnon, supra: (1) written notice of claimed violation; (2) disclosure of evidence against probationer; (3) an opportunity to be heard and present witnesses and evidence; (4) the right to confront witnesses in most instances; (5) a neutral and detached hearing body; and (6) a written statement by the fact-finder as to evidence relied on and reasons for revocation.


author: THOMPSON, Judge.

text:
    AETNA INSURANCE COMPANY, Appellant, v. Michael R. HOUCK, Guettler & Sons and Florida Power & Light Company, Appellees.
    No. AD-8.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Rehearing Denied April 16, 1982.

      Herbert A. Langston, Jr., of Driscoll, Langston, Layton & Kane, Orlando, for appellant.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee Houck.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellee Guettler & Sons.
    Alfred A. Green, Jr., Daytona Beach, for appellee Florida Power.
   THOMPSON, Judge.

Aetna Insurance Company (Aetna) raises numerous issues in this appeal from a compensation order requiring it to provide coverage on behalf of the employer Guettler and Sons (Guettler), and for the benefit of the injured employee, Michael Houck. Because the deputy commissioner (deputy) ruled in the order that Florida Power and Light Company (FP&L) would bear alternative responsibility for payment to Houck of all benefits due him under the workers’ compensation law, FP&L joins appellees Guettler and Houck in resisting Aetna’s appeal of the order. Only two of the many issues raised by Aetna merit our attention.

The record reveals that for over 23 years Guettler had placed all his business and personal insurance, including workers’ compensation insurance, with the Haynes and Haynes Insurance Company (Insurance Agency), an independent agent for a number of carriers, including Aetna. Pete Guettler, owner of Guettler and Sons, and Louis Haynes, president of the Insurance Agency, were personal friends and over the years had established a course of credit dealing whereby Haynes would automatically renew all of Guettler’s insurances and pay the premiums thereon with an Insurance Agency check. Guettler would make irregular lump sum payments to the Insurance Agency which Haynes would then alio-cate to the various policies he had written for Guettler. For a period of at least 23 years, Haynes never failed to renew Guett-ler’s insurance policies and Guettler never failed to pay any debt he owed to the Insurance Agency. Haynes and Guettler both testified that Guettler relied totally on Haynes to handle all of his insurance needs and keep his coverage in force.

In August 1977 Haynes was for the first time unable to place Guettler’s workers’ compensation insurance in the voluntary market and was forced to resort to the assigned risk pool. Haynes prepared and signed the application for the assigned risk insurance and tendered his agency’s check in payment of the premium. The Florida Compensation Rating Bureau assigned the risk to Aetna which issued its policy providing coverage from August 26, 1977 to August 26, 1978. In June 1978 Aetna notified Haynes that it was willing to renew the policy and notified both Haynes and Guett-ler of the amount and due date of the renewal premium. A few days after Aetna issued these notices, Guettler paid Haynes some $4,000 to be applied to his account. In early July 1978, Guettler paid Haynes an additional $1200. Haynes did not apply any of these funds to renewal of the workers’ compensation policy and on July 24, 1978 Aetna notified Haynes, Guettler and the Bureau of Workers’ Compensation that coverage would terminate on August 26, 1978. On September 1, 1978 appellee Houck was seriously injured while acting in the course and scope of his employment with Guettler.

In this appeal, Aetna urges principally that the deputy erred in finding that Aetna did not comply with the statutorily mandated procedure for terminating a policy, and in ruling that Aetna was bound by the acts of its agent notwithstanding that its agency agreement with Haynes did not apply to insurance written through assigned risk pools. We agree that Aetna did everything it was statutorily required to do to terminate the policy on its expiration date and that by the terms of the agency agreement, Haynes had no actual authority to bind Aetna with respect to an assigned risk policy. However, we also agree with the deputy’s finding that Aetna, by its conduct, gave Haynes apparent authority to act on Aetna’s behalf with respect to this assigned risk policy. Haynes was an authorized agent for Aetna with respect to regular policies and he signed or countersigned the application for insurance, the policy itself, and a subsequently-issued certificate of insurance, all without objection by Aetna or notification by Aetna to Guettler or Haynes that Haynes was exceeding his authority. The record contains competent substantial evidence to support the deputy’s finding that Guettler did not understand that the premium payment requirements for an assigned risk policy were different from the payment requirements with respect to a regular policy, and that Haynes would not extend credit on the renewal premium. In view of their 23 year course of credit dealing, Guettler’s reliance on Haynes to renew the policy and bill him later was clearly reasonable, and we believe that Aetna had clothed Haynes with apparent authority to handle the renewal in that fashion. Fidelity and Casualty Company of New York v. Britt, 393 So.2d 41 (Fla. 3d DCA 1981); American Casualty Company of Redding v. Castellanos, 203 So.2d 26 (Fla. 3d DCA 1967). A carrier may not deny coverage where the coverage has lapsed through the fault of its agent rather than through the fault of the insured. American Fidelity Fire Insurance Company v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965).

Although we determine the coverage question adversely to appellant, Aetna, we find merit in Aetna’s contention that the deputy erred in retaining jurisdiction for the purpose of determining and awarding a fee to the employer’s attorney. Section 440.34, Fla.Stat. does not authorize an award of attorney’s fees to anyone other than the claimant’s attorney, and § 627.428, Fla.Stat., authorizing attorney’s fees for insureds who successfully sue their insurers, does not apply to workers’ compensation cases. Great American Indemnity Company v. Smith, 156 Fla. 662, 24 So.2d 42 (1945).

The order is affirmed in part and reversed in part with instructions to the deputy to delete from the order his finding that Aetna is responsible for payment of the employer’s attorney’s fees.

MILLS and WENTWORTH, JJ., concur.


author: BERANEK, Judge.

text:
    Timothy Nelson McGUIRE, Appellant, v. STATE of Florida, Appellee.
    No. 80-293.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Rehearing Denied April 22, 1982.
    Richard L. Jorandby,’ Public Defender, and Anthony Cavello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison and Sharon Lee Sted-man, Asst. Attys. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged and convicted of burglary of a conveyance and sexual battery. Defendant pled not guilty and was convicted after a jury trial in which he testified. Although placed in the physical area of the crime, defendant took the stand and denied his involvement. He raises four points on appeal, one of which, the admission of impeachment evidence without a proper predicate, is dispositive of the matter.

After arrest, a police officer interviewed defendant while in jail. She requested he make a formal statement, which he refused to do. She then asked if he would talk informally, leading appellant to believe that an informal admission would not be used against him. Defendant, who obviously had a very low intelligence level, denied his guilt but made several very damaging admissions. Defendant stated that on the day in question he had seen another individual who was his “twin.” This “twin” was dressed exactly the same, had exactly the same hairstyle, and was even wearing the same shoes and sunglasses. Defendant stated to the police officer that he was sure this “twin” had committed the crimes for which he was being blamed. In the same, off-the-record, informal statement, defendant stated that he had been drinking beer and smoking marijuana all day and that he could not remember the day very well, and might be guilty. The police officer did not reduce these statements to writing.

The trial court granted appellant’s motion to suppress his statements; however, at trial the court ruled the statements could be used for purposes of impeachment. Appellant took the stand and during cross-examination was asked numerous times whether he had made any prior inconsistent statements. His answer each time was that he did not understand the words being used. Eventually, he said he could not remember. The questions on cross-examination did not include the content of the prior statements. After appellant rested his case, the State called the police officer as a rebuttal witness, and she testified to the appellant’s “informal” statements which were contrary to his trial testimony.

The statements made by appellant were voluntary and were admissible for impeachment purposes pursuant to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Nowlin v. State, 346 So.2d 1020 (Fla.1977). However, the trial court erred in permitting the State’s rebuttal witness to testify to appellant’s prior inconsistent statements over his objection that he had not been given the opportunity to admit, deny, or explain the prior statements. Section 90.614(2), Florida Statutes (1979), provides that a prior inconsistent statement is inadmissible unless a witness is first afforded the opportunity to explain or deny the statement. In the case of Hutchinson v. State, 397 So.2d 1001 (Fla. 1st DCA 1981), the First District reached the same conclusion in a situation where the prior inconsistent statement was that of a witness. Appellant here presents a far more compelling case in that the statements were his own and tended to both impeach and incriminate him. We, therefore, reverse and remand for a new trial.

We further note that the comment made by the prosecutor during closing argument, “It is not my job to prosecute innocent people,” was an improper remark and should not be repeated on retrial. Buckhann v. State, 356 So.2d 1327 (Fla. 4th DCA 1978); Price v. State, 267 So.2d 39 (Fla. 4th DCA 1972). The matter is remanded for a new trial.

REVERSED AND REMANDED.

DOWNEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    The SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. William J. ANDERSON, Appellee.
    No. 80-541.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.

      Clifford I. Hertz, West Palm Beach, for appellant.
    Richard A. Henry of Sims & Henry, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment entered in conformance with a jury verdict in a wrongful death action brought by ap-pellee, the deceased’s father. Appellee sought recovery for appellant’s negligence in failing to protect the deceased on its premises from criminal attack by a third person. At the conclusion of appellee’s case in chief, appellant moved for a directed verdict, alleging the evidence on an essential element of the case was lacking. At the close of all the evidence, appellant renewed its motion. The jury returned a verdict in favor of appellee, and appellant sought to set it aside and have the judgment entered in its favor in accordance with its motion for a directed verdict. The trial court denied the motions. Finding no error, we affirm.

In May of 1976 two former students of Palm Beach Gardens High School, Brian Anderson, a white, and Gregory Ransom, a black, went to the school during lunchtime. Anderson was in the parking lot talking with a group of his friends when Ransom approached him. An altercation ensued, resulting in Ransom going to the trunk of his car, removing a handgun, and returning to where Anderson and the others were standing. Ransom fired three shots, inducing Anderson to reach in his car for a soda pop bottle. Ransom fired again, fatally wounding Anderson. An off-duty custodian was the only school official on campus at the time of the shooting. Adequate school supervision, according to appellee, could have prevented the occurrence.

At trial appellant made motions for a directed verdict and a post-trial motion in accordance therewith, all of which were denied. Appellant argues the motions should have been granted because there was no evidence that it knew of a dangerous condition or could have known of one by the use of reasonable care.

Undoubtedly, appellant owed to the deceased, who admittedly was an invitee, the duty of keeping the premises in a reasonably safe condition and of guarding against dangerous circumstances of which it was cognizant or might reasonably have foreseen. McNulty v. Hurley, 97 So.2d 185, 187 (Fla.1957). This court’s opinion in Rely ea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980), represents the current law on a landowner’s responsibility to protect an invitee from criminal attack:

As a basic principle of law, a property owner has no duty to protect one on his premises from criminal attack by a third person.... Even though one’s negligence may be a cause in fact of another’s loss, he will not be liable if an independent, intervening and unforeseeable criminal act also causes the loss.... If, however, the criminal attack is reasonably foreseeable, a duty may arise between a landowner and his invitee. But it must be borne in mind that a landowner is not an insurer of the safety of his invitees and is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate. . . .
In order to impose a duty upon a landowner to protect an invitee from criminal acts of a third person a plaintiff, invitee, must allege and prove that the landowner had actual or constructive knowledge of prior, similar criminal acts committed upon invitees. The landowner is not bound to anticipate criminal activities of third persons where, as here, the wrongdoers were complete strangers to the landowner and to the victims, and where the incident occurred precipitously.

Id. at 1382-83 (citations omitted). In Re-lyea we relied on the absence of proof that any prior assaults had been committed in the area where the murder of the victims took place to affirm the final judgment in favor of the appellee insurance company. The trial court properly entered judgment because appellants failed to prove a duty to protect.

The record in the present case, unlike the one in Relyea, reflects a history of serious crime on the school campus. The prior incidents involved an attempted robbery of and a battery on a white student by two blacks in the school parking lot on October 22, 1975, an assault with a knife in the loading zone on November 19, 1975, an on-campus threat with a knife by a nonstu-dent directed toward a student on March 3, 1976, and an attack upon a student by four nonstudents in front of the school on May 11, 1976. Witnesses also testified about other fights and riots between blacks and whites.

Given the history of racial incidents, there was sufficient evidence to raise a jury question of notice of prior, similar attacks upon invitees. Accordingly, we affirm the trial court’s denial of appellant’s motions.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.

      . Anderson, a nonstudent, was on campus to get his records.

      . The fact that several of the previous incidents may have been precipitated by racial overtones does not mean that appellee would not have prevailed had the participants here been members of the same race. Our reference to different races in some of the earlier altercations Was for the sole purpose of demonstrating not just that appellant was or should have been on notice as to previous disputes, but also that the problem may have been more acute because the disputes may have been racially motivated and not solely the product of adolescence.


text:
    Lois R. RAY, Appellant, v. Robert L. RAY, Appellee.
    No. 80-1858.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Rehearing Denied April 23, 1982.

      Susan J. O’Hara and Edna L. Caruso, West Palm Beach, for appellant.
    Larry Klein and Donald Sinclair, West Palm Beach, for appellee.
   BERANEK, Judge.

The wife appeals a final judgment of dissolution of marriage. Before their marriage, the wife worked as the husband’s executive secretary at two TV stations for nine years. Subsequently, the husband started an advertising business, and the wife came to work for him performing typing, shorthand, bookkeeping, and receptionist duties. When the parties married, the wife ceased drawing a salary. All profits from the enterprise went to the parties’ joint savings account and were used to buy investment properties. Also prior to marriage, the parties purchased a restaurant. The husband contributed $10,000 and the wife invested $5,000 in cash, with an agreement to satisfy the remainder in time and services at the restaurant. All evidence indicates that this was an equal partnership and, when the restaurant was sold after the marriage, the proceeds were split equally and reinvested. For the first four months of marriage, the couple resided in a house held by the wife. The house was later sold for $30,000, which was placed in their joint bank account and later invested in property. After nine years of marriage, the husband filed a petition for dissolution against the wife. The wife filed an answer and counter-petition claiming special equity in the husband’s one-half interest in certain jointly held property and in her husband’s advertising business. The final judgment awarded the wife rehabilitative alimony and a $15,000 special equity in the joint assets. The wife’s claim for special equity in her husband’s business was denied.

On appeal the wife asserts that she was entitled to a special equity or lump sum alimony interest in the husband’s business and that her two-year alimony award was insufficient. We find these issues to have been within the discretion of the court and decline to interfere. Canakaris v. Canamaris, 382 So.2d 1197 (Fla.1980).

The wife also contends that the court erred in granting her only a $15,000 special equity. The parties stipulated that as to all joint assets the wife had a special equity of $30,000 by virtue of the sale of her house, and the husband had a special equity of $5,000 from an inheritance. This left the wife with a special equity of $25,-000. The court then reduced this to $15,000 by viewing the husband’s $10,000 contribution toward the restaurant as a special equity. We regard the award of this $10,000 special equity as error. As stated above, the husband and wife were equal partners in the restaurant. The husband contributed cash and the wife contributed her time and services and a lesser amount of cash. The proceeds were split equally and reinvested in joint property and we find it was error to give the husband a $10,000 special equity and ignore the wife’s corresponding special equity. The wife is entitled to a total special equity of $25,000. The matter is remanded for entry of a judgment awarding the additional special equity.

REVERSED AND REMANDED.

DELL, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    MILITARY PARK FIRE CONTROL TAX DISTRICT NO. 4, Appellant, v. David DeMAROIS, Daniel Kraemer, and Military Park Professional Fire Fighters Union, Local 2741, Iaff, Appellees.
    No. 81-195.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Rehearing Denied April 19, 1982.
    Ronald Sales of Sales & Weissman and Edna L. Caruso, West Palm Beach, for appellant.
    Edward F. O’Connor of O’Connor, Baylor, Callas & Elliott, Palm Beach Gardens, for appellee David DeMarois.
    Steven Bloom of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, P.A., and Joseph C. Segor, Miami, for appellees Kraemer and Military Park Professional Fire Fighters Union, Local 2741, I.A.F.F.
    J. W. Cheatham, Staff Counsel, Tallahassee, for Public Emp. Relations Com’n.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

This is an appeal from a final administrative order entered by the Public Employees Relations Commission (“PERC”) finding that appellant had wrongfully terminated certain employees, and ordering their reinstatement with back pay together with an award of attorneys’ fees. We affirm. The agency order is based upon findings which are supported by competent, substantial evidence in the record. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977); § 447.504(2), Fla.Stat. (1979). The award of attorneys’ fees under Section 447.503(6)(c), Florida Statutes (1979), has not been shown by appellant to have been an abuse of discretion by PERC. International Brotherhood of Painters v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Raymond George MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-988.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Rehearing Denied April 21, 1982.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was convicted of criminal solicitation to commit murder in the first degree. At issue is the denial of his motion to suppress various tape recordings of his conversations. We affirm. In May, 1979, appellant saw an ad placed by Jerry Baker of California in Soldier of Fortune Magazine. He wrote to Baker stating that he was divorced, required to give 40% of his military retirement pay to his former wife, and was looking for a solution to his problems. Baker replied in writing giving a telephone number to call. Appellant called Baker from a pay phone on June 16, 1980, and unbeknownst to him, Baker recorded this call in the presence of a California police officer. Arrangements were made for Baker to come to Florida. When he arrived on July 1, 1980,-Baker cooperated with local authorities who had been contacted by the California police, and agents of the Bro-ward County State Attorney’s Office furnished him a motel room. Baker, acting with police approval and cooperation, called appellant and held a brief conversation which was taped by the agents. In this conversation, Baker advised he was in town and suggested a meeting. Later in the day, appellant went to the motel to meet Baker. The room had been wired by the police with Baker’s consent so that the conversation could be taped. As he left the motel room, appellant was arrested. The various taped conversations plus other evidence supported the charge that Baker was being solicited by Miller.to kill Miller’s former wife.

Appellant contends that his conversation taped by Baker in California on his own initiative as a private citizen was inadmissible as evidence in Florida under Section 934.03(2)(d), Florida Statutes (1979), because both parties had not consented to the recording of the conversation. This section provides that a wire or oral communication may be intercepted when all of the parties to the communication have consented. The State argues that since the conversation was recorded in California, it should be governed by California law. In California, recordings made by private individuals without the consent of the other party are admissible when they are made to obtain evidence relating to the commission of a crime of violence against a person and are voluntarily surrendered to the police. Cal. Penal Code § 633.5; People v. Ayers, 51 Cal.App.3d 370, 124 Cal.Rptr. 283 (Cal.Ct.App.1975). We need not reach this conflicts of law issue as we hold the tape recording of the conversation was admissible under Section 934.03(2)(c), Florida Statutes (1979). That section provides:

(c) It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception, and the purpose of such interception is to obtain evidence of a criminal act.

Upon receipt of appellant’s letter, Baker contacted the California police and presented them with a copy of the letter. He told the police that appellant would be calling him on June 16, 1980. A police officer was present during the taping of the conversation. We believe that the presence of the officer was sufficient to bring this recording within the purview of the above statute.

Regarding the other two conversations, appellant maintains that they were inadmissible because the State Attorney’s Office failed to obtain a warrant. Although Section 934.03(2)(c), Florida Statutes (1979), does not require a warrant, appellant contends that under the holding of State v. Sarmiento, 397 So.2d 643 (Fla. 1981), police officers must seek a warrant where time exists to do so. We view Sar-miento more narrowly as holding that a communication transmitted from a person’s home under the supervision of law enforcement officers and intercepted by a witness outside the home is not admissible in evidence. Morningstar v. State, 405 So.2d 778 (Fla. 4th DCA 1981). Sarmiento is inapplicable in a situation where one of the parties to a telephone conversation is located outside the person’s home and is acting pursuant to Section 934.03(2)(c), Florida Statutes (1979). As to the conversation in Baker’s motel room, clearly the limitation expressed in Sarmiento is inapplicable as both parties were located outside the home and a motel room is not the functional equivalent of a home. Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981). We thus hold the recordings of the telephone conversations between appellant and Baker and the conversation in the motel room were both admissible.

AFFIRMED.

DOWNEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    STATE of Florida, Appellant, v. Michael A. MILLIGAN, Appellee.
    Nos. 81-1251, 81-1252.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   DELL, Judge.

The State appeals from the trial court’s order granting appellee’s motion to suppress evidence and statements. We reverse.

Appellee was charged by information with violating Sections 893.03(2)(a)4 and 893.13(l)(a)3, Florida Statutes, by actual or constructive possession of cocaine. Appel-lee filed motions to suppress the physical evidence of a tin foil packet and the self incriminating statement he made to police about dropping the packet in a parking lot.

It was determined at a hearing on the motion to suppress that the probable cause affidavit had been prepared by one police officer but signed by another. Both officers took part in the events leading up to and including the arrest of the appellee. There was no showing by the appellee that there had been any irregularity in the manner in which the statement was obtained or in the manner in which the evidence was seized. The trial judge commented that he had no problem with the credibility of the witnesses but that he was concerned with the credibility of the police department in permitting the probable cause affidavit to be executed in the manner in which it was.

While we agree with the trial judge that the actions of the Plantation Police Department in the preparation and execution of the probable cause affidavit should not be condoned, we cannot agree with his order granting the defendant’s motion to suppress the evidence and the statements. As the trial court noted,

It has nothing whatsoever to do about whether Michael Milligan did or did not have or possess cocaine and did or did not confess or anything. It has nothing to do with that except that it goes as to the credibility of your police department.

Although the trial judge was correct in his observations as far as the poor police procedures, it did not affect the propriety of the seizure of the cocaine and the statements which were obtained. It was inappropriate for the trial judge to sanction the Plantation Police Department by granting the motion to suppress. The appellee’s statement was made after he had been fully informed and understood his Miranda rights and there was no showing that the cocaine was seized in violation of the Fourth Amendment prohibition against unreasonable search and seizure. No search occurs when police retrieve property voluntarily abandoned by a suspect in an area where the latter has no reasonable expectation of privacy. State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979); Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980); Riley v. State, 266 So.2d 173 (Fla. 4th DCA 1972).

The order of the trial court granting the appellee’s motion to suppress the evidence and statements is reversed.

REVERSED.

ANSTEAD and HURLEY, JJ., concur.


author: JOANOS, Judge.

text:
    Herbert C. ANDERSON and Joan Anderson, Appellants, v. Sam BELL, George Bell and James E. Estes, Appellees.
    No. XX-279.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    W. J. Oven, Jr., of Oven, Gwynn & Lewis, Tallahassee, for appellants.
    Gordon D. Cherr of Frates, Jacobs, Far-rar, Novey, Blanton & Poole, Tallahassee, for appellees.
   JOANOS, Judge.

Appellants seek review of a declaratory judgment in which the lower court determined they did not have exclusive rights to a man-made lake and the subsequent denial of an injunction which would have prohibited appellees from using that portion of the lake which overlies the land owned by appellants. We affirm.

In 1965, appellants purchased a large tract of land containing a small non-navigable creek which led to the center of the property where a low swampy area was located. Appellants excavated the area, cleared the land, secured an easement from adjacent land owners, and constructed an earthen dike across the creek. The flooding that resulted became a lake that has existed for fourteen years. The resulting lake inundated a large part of appellants’ property as well as a portion of the property owned by the adjacent land owners. In the easement deed the adjoining land owners retained “title to and beneficial use of all said lands .. . except for the right to flood portions, thereof . . . . ” Appellee George Bell now owns the adjoining land so inundated. The lake bed is therefore, currently owned by appellants and George Bell.

Appellees Sam Bell and James Estes do not own any land on the lake but use the lake for fishing by entering the lake from George Bell’s property presumably with his permission. At some point appellants requested that appellees stop using the lake. Appellees refused. Subsequently, appellants filed a declaratory action seeking definition of their right to exclusive use of the lake and for an injunction prohibiting ap-pellees’ use of that portion of the lake which overlays appellants’ flooded property. The trial court determined appellants do not have the right to exclude others who have lawful access from the portion of the lake overlying appellants’ property and, therefore, declined to issue the injunction.

In Florida, the law as to non-navigable natural lakes has been clear. Owners of property with portions including part of a lake bottom have a right to use all of the waters of the lake so long as they do not unreasonably interfere with the rights of others. Duval v. Thomas, 114 So.2d 791 (Fla.1959). While it is not quite as clear, our study of Silver Blue Lake Apartments, Inc. v. Silver Blue Lake Home Owners Association, 245 So.2d 609 (Fla.1971) convinces us that the same law has been extended to include man-made artificial lakes.

In Silver Blue Lake, the Supreme Court found valid a restrictive covenant limiting use of an artificial lake to members of a homeowners association. However, the court also stated:

In our view, as an abstract proposition, the right of owners of a portion of the bed (of an artificial lake, which is found as a fact from the evidence to be a non-navigable lake,) to rent their rights to use of the water surface to tenants of an apartment complex on the land including a portion of the lake bed, is only the right of lawful and reasonable use not detrimental to other owners or lawful users

Id. at 612.

We consider the Supreme Court’s opinion to reflect that were it not for the restrictive covenants, the apartment tenants in that ease would have had access to the entire surface of the artificial and non-navigable lake because their landlord owned some of the submerged lake bed. Thus, it is implicit in the opinion that the same rights pertaining to use of a lake exist in regard to artificial lakes as well as natural lakes.

Although there is no finding below that this lake is non-navigable, appellants admit the area in its natural state is a small, non-navigable creek which traverses a low swampy area. The test for navigability in Florida is whether the waterway in its natural state can potentially provide for commercial use. Odom v. Deltona Corp., 341 So.2d 977 (Fla.1977). This area obviously could not so provide.

In following the logic enunciated in Silver Blue Lake, we conclude that a land owner whose land adjoins an artificial lake and includes a portion of the lake bed enjoys the right to reasonable, lawful use of the entire lake. We further hold that fishing and boating are reasonable uses of the lake provided that those uses do not interfere with the rights of others similarly situated to enjoy use of the area.

We are aware that our rationale here may conflict with the reasoning set forth in Publix Super Markets, Inc. v. Pearson, 315 So.2d 98 (Fla. 2nd DCA 1975). In the Publix case, the Second District Court of Appeal refused to regard Silver Blue Lake as extending the Duval principle of riparian rights to a body of water created by the digging of some limestone pits. That Court sought to distinguish Silver Blue Lake from the situation before them on the basis that the Supreme Court case was concerned with a factual situation in which “. . . the water body was specifically incorporated into the subdivision and the deeds of conveyance to the property owner fronting the water contained deed restrictions allowing said owners to use the lake.” 315 So.2d at 100. We question whether the Supreme Court’s opinion can be so restricted. However, we are not required to answer that question. The Publix case dealt with a property owner’s desire to fill in some water filled phosphate pits and thereby cut off a neighboring property owner’s access to the surface waters of some of those pits. Our opinion here does not involve the issue set forth in Publix which was brought above when an owner sought to fill in his property which had been submerged artificially. We note specifically that Appellees here do not challenge and have even conceded that Appellants could fill in their land so there is no more lake. They merely assert and we agree that so long as the lake exists Appellants cannot prevent adjoining land owners who own a portion of the lake bottom and their guests from reasonable, lawful use of the entire lake. We believe that the Silver Blue Lake case compels that result.

Accordingly, the final judgment below is AFFIRMED.

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


author: McCORD, Judge.

text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellant, v. SUWANNEE LUMBER MANUFACTURING CO., INC., Leroy E. Evans and Ronald Evans, Appellees.
    No. AG-14.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    R. Franklin Ritch of Ritch & Graves, Gainesville, for appellant.
    J. Doyle Thomas, Cross City, for appel-lees.
   McCORD, Judge.

Southeastern Fidelity Insurance Company (Southeastern) appeals from a final judgment holding that an insurance policy issued by Southeastern covered a loss sustained by Suwannee Lumber Manufacturing Company (Suwannee). We reverse.

The material facts to this appeal are essentially undisputed. At some time prior to October 1977, Suwannee purchased a certain piece of equipment, referred to as a “skidder,” for use in its logging operations. This skidder was then “transferred” in October of 1977 to Eddie Earl and Howard Rhodes. At that time, Henry Parrott, an agent for Suwannee, went to an insurance agent for Southeastern and obtained a policy of insurance in the Rhodes’ name. At Parrott’s request, Suwannee was shown on the face of the policy as holding the lien on the skidder. Several months later, the Rhodes sold the equipment to Howard and Ronald Evans. Receiving the skidder from Su-wannee and not from the Rhodes, the Evans executed a security agreement in favor of Suwannee. Among other things, the security agreement provided for the Evans to purchase insurance on the equipment, which they did not do. Subsequently, the skidder was involved in a fire, the residual parts for which were sold for approximately $3,000. Its value prior to the fire was from $11,000 to $12,000, and it was insured in the amount of $6,800. Neither Southeastern nor the insurance agent were notified of the change of ownership until after the skidder was involved in the fire. When Southeastern refused to pay for the damages suffered, Suwannee brought this action below.

Suwannee argues that, as a lienholder, it is entitled to recover under the policy. Alternatively, it argues that the policy was vague as to the intent of the contracting parties and that the trial judge could use additional evidence to interpret or construe that intent in Suwannee’s favor. We disagree on both counts.

As mentioned above, the policy on its face shows that the named insureds were the Rhodes and that Suwannee was merely listed as a lienholder. As such, Suwannee clearly had an insurable interest in the skid-der, but it was not a named insured in the policy.

The general rule that an insurance policy should be strictly construed in favor of the insured and against the insurer does not apply where the language used in the policy is so plain and unambiguous as to leave no room for construction. Travelers Ins. Co. v. C. J. Gayfers & Co., 366 So.2d 1199 (Fla. 1st DCA 1979). Along these lines, the courts of Florida have consistently held that the term “named insured” has a restricted meaning and does not apply to persons not specifically named in the policy. See, e.g., Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3rd DCA 1966), cert. den. 200 So.2d 813 (Fla.1967). Here, the named insureds are Eddie Earl Rhodes and Howard Rhodes and no one else. There is no ambiguity on the face of the policy, nor does Suwannee’s status as a lienholder serve to create any such ambiguity permitting the trial court to reconstruct the policy and conclude that Suwannee is inferentially an intended beneficiary.

Suwannee also argues that it could collect as a third-party beneficiary under the contract. This particular insurance policy, however, does not have any such effect. It is not a liability policy, the classic situation regarding third-party beneficiaries. Compare Maxwell v. Southern American Fire Insurance Co., 235 So.2d 768 (Fla. 3rd DCA 1970). Suwannee failed to obtain insurance for the owners of the equipment with a “loss payee” clause or a lienholder’s endorsement. Compare Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Co., 281 So.2d 373 (Fla. 3rd DCA 1973). In short, Suwannee has cited us no cases, and our research reveals none, to the effect that its mere listing as a lienholder on the face of the policy, without more, makes it a third-party beneficiary under that contract. As the policy admits of no clause showing that Suwannee had a secured insurable interest, it can effect no recovery.

Accordingly, for the reasons expressed above, we reverse the ruling of the trial court and remand with directions that Su-wannee’s case be dismissed with prejudice.

ERVIN and SHAW, JJ., concur.

      . If a logger cannot afford to buy a piece of equipment, Suwannee purchases that equipment and transfers it to the logger, who then makes appropriate payments to Suwannee.


text:
    Gailon M. McHANEY, Appellant, v. Betty J. McHANEY, Appellee.
    No. AG-63.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    Theodore J. Troxel of Kinsey & Troxel, Pensacola, for appellant.
    J. LaDon Dewrell of Dewrell, Blue & Brannon, Fort Walton Beach, for appellee.
   PER CURIAM.

Affirmed. Cullen v. Cullen, 413 So.2d 1192 (Fla. 1st DCA 1982); and Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

McCORD, ERVIN and SHAW, JJ., concur.


author: GRIMES, Judge.

text:
    Collins SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-715.
    District Court of Appeal of Florida, Second District.
    March 26, 1982.
    Kenneth C. Glover, Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant pled nolo contendere to charges of possession of a controlled substance with intent to sell or deliver, possession of narcotics paraphernalia, and carrying a concealed firearm. He reserved the right to appeal the denial of his motion to suppress evidence.

At the hearing on the motion to suppress, Detective Street of the Lakeland Police Department testified that he received a telephone call from a confidential informant who told him that two black males would be leaving the north side of Lakeland in a 1977 278 Gran Prix with a gray body and a red top. The informant said that the two men were headed toward Bartow and that they were carrying cocaine with them. Street testified that he had used the confidential informant “quite a few times” in the past on drug cases and gambling cases and that the informant had always been reliable. Following his conversation with the informant, Street immediately put out a BOLO containing the reported information.

Approximately ten to fifteen minutes after hearing the BOLO, Officer Korn stopped a car travelling south on the Bar-tow highway near the Lakeland city limits which met the informant’s description. Appellant was one of the occupants. Korn notified Detective Street and held the vehicle pending Street’s arrival. When Street arrived about thirty seconds later, he ordered the men out of the car, searched it, and found cocaine. The remaining items which appellant sought to suppress were discovered during a subsequent inventory search.

Appellant contends that the police did not have probable cause to search his automobile because the informant’s tip failed to meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). He correctly posits that they only had a right to search his car if they could have legally obtained a warrant based upon the information known to them at the time. He is also correct in his assertion that the tip did not fully measure up to the standards of Aguilar and Spineili because there was no showing of how the informant obtained access to the information he was imparting to the police. However, appellant fails to reckon with the rationale of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

In Draper, the government’s confidential informant did not tell how he had obtained his information, but he reported that Draper would be travelling to Denver by train with some heroin in his possession on one of two s[>ecified mornings and described with particularity the clothing that Draper would be wearing upon his arrival at the station. The Supreme Court upheld Draper’s arrest on the premise that since the law enforcement officers had corroborated so many details of the tip, it was reasonable for them to believe that the unverified portion relating to Draper’s possession of heroin was also true. Draper predated Spinel-li, but in the Spineili opinion, the Court explained how in some cases the application of the Draper doctrine can serve to make a confidential informant’s tip valid for purposes of proving probable cause when the tip would otherwise fall short under Aguilar and Spineili. Thus, in Spineili the Court said:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
The detail provided by the informant in Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329 (1959), provides a suitable benchmark.

393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.

In the present case, the informant gave Officer Street precise information concerning the description of the vehicle and its occupants, the place where they would be, and the time when they would be there. The police were able to verify these details in every particular. Thus, it can be reasonably inferred that the informant gathered his information in a reliable way. Accordingly, the court could properly conclude that the police had probable cause to stop and search appellant’s automobile.

AFFIRMED.

SCHEB, C. J., and SCHOONOVER, J., concur.