author: SHARP, Judge.

text:
    John R. FRASER, John Walter Fraser, Joan Elizabeth Fraser, Elaine Fraser, and Virgil Bryan Fraser by Joan Fraser, his mother and next friend, Appellants, v. SOUTHEAST FIRST BANK OF JACKSONVILLE, a national banking corporation, and Margot C. Valcarce, Appellees.
    No. 80-1370.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Rehearing Denied Aug. 3, 1982.
    John F. Corrigan and Courtney Wilder Stanton, of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellants.
    Delbridge L. Gibbs, of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee, Southeast First Bank of Jacksonville.
    No Appearance for appellee Margot C. Valcarce.
   SHARP, Judge.

John R. Fraser and his four children are the present living beneficiaries of a testamentary trust established by Adelene Fraser, John’s mother. They are appealing a partial final summary judgment on Count I of their amended complaint denying them any relief against the Southeast First Bank of Jacksonville and Margot C. Valcarce, the former trustees of the trust. The trial' court held that the beneficiaries’ suit against the trustees for various failings in the administration and management of the trust was barred by principles of res judica-ta because the trustees had sought and obtained judicial settlement or approval of their accountings, for the periods of time involved in this suit — July 5, 1968 to April 30, 1976. Under the facts and circumstances shown in this record, we conclude the trial court was correct in dismissing Count I of their amended complaint.

The Fraser trust was established in 1965 upon the death of Mrs. Fraser. Its primary assets were all of the stock in Fountain of Youth Properties, Inc., a corporation which owned and operated a tourist attraction by that name in St. Augustine, Florida. Under the terms of the trust, Walter Fraser (John’s father) and John were each to receive one-half of the net income of the trust during their lifetimes. One half of the principal could be invaded for Walter’s necessary support, care or medical and hospital needs. The trustees could also pay additional sums for John’s childrens’ support, education and welfare. Upon Walter’s death, the net income was to be paid to John or used for his children. On John’s death’' the trust was to be distributed to his children.

The problems in giving effect to this testamentary plan were, first, resolving a dispute over the ownership of the stock and, second, working out a method of paying income to trust beneficiaries in a situation where the trust itself had no income. The corporation, whose stock was held in trust, was the income producer. These problems were resolved by a judicial compromise which was amended from time to time. Under this arrangement the trustees operated and managed the corporation and paid Walter and John twelve thousand dollars ($12,000) per year (each), calling Walter’s share a “pension” and John’s share a “salary.” After Walter’s death in 1972, John’s receipts increased somewhat, and trust funds were distributed for his childrens’ education and benefit.

The trustees filed six annual accountings covering the fiscal years ending April 30, 1969 through April 30, 1974. These accountings were filed pursuant to section 737.12, Florida Statutes (1973). Notice of these accountings was given to the beneficiaries, including the guardian ad litem for the Fraser children, who were minors. Pursuant to section 737.13 of the Florida Statutes (1973), the notice said the trustees were seeking “approval of all annual accounts then on file not previously approved.” Pursuant to section 737.14 of the Florida Statutes (1973) the beneficiaries had to file their objections to the account-ings within sixty days of service of the notice. No objections were filed. On January 6, 1975, the court approved the first through sixth annual accountings. Similarly, the seventh annual accounting was filed, notice was given, and court approval was obtained on October 17, 1975.

On January 1, 1976, a new law went into effect as part of the Revision of Florida’s Probate Code. The new law, section 737.-407, Florida Statutes (1979), dropped the concept of required, court approved annual accountings. To facilitate the transition from the old to the new law, trustees of trusts being administered under the prior law were required to submit a “Final Accounting” for approval by the court within one year from January 1, 1976. In an effort to comply with the transition law, the trustees filed an eighth accounting covering the fiscal year ending April 30, 1976 on July 3, 1977. John filed objections to this accounting, but he withdrew them. After notice to the Fraser beneficiaries, the court approved the accounts on November 10, 1977. The court’s order said the accounts were approved and the trust was discharged from its supervision, pursuant to Chapter 737 of the Florida Statutes.

Ultimately, the trustees obtained approval for accounting periods subsequent to those involved in this suit. They resigned and were released from liability from any acts relating to the post-1976 accounts. As stated above, the later accountings are not involved in this suit.

The issue involved in this case is whether the court orders approving the prior annual or periodic accounts filed by the trustees bar or estop the appellants from bringing this suit. The Frasers argue that the old law made a distinction between the conclusive effect of a court order approving a final accounting in contrast with one approving a periodic or annual accounting. The statute covering final accountings said:

Prior to the final distribution of the trust, the trustee shall file a final account in the same form as an annual account, and give notice thereof to all beneficiaries .... If the court finds that the trustee has properly administered the trust, an order shall be entered approving the final account and all unapproved annual accounts and directing distribution; and upon filing of proper receipts showing distribution as directed, an order shall be entered finally discharging the trustee and the sureties on his bond, which order shall be conclusive, subject only to the right of appeal.

§ 737.16, Fla.Stat. (1973). Admittedly a final accounting pursuant to this law did not take place in this case because the trust continued past the repeal date of section 737.16.

The section applicable to periodic or annual accountings provided:

If notice of the filing of an annual account has been given or waived, the court may, after the time for filing objections has expired, or at the hearing on any objections, enter an appropriate order on such account and on all unapproved annual accounts previously filed.

§ 737.15, Fla.Stat. (1973). Although section 737.15, unlike section 737.16, did not expressly state the court order was “conclusive,” its notice and service requirements, and the provision of a sixty day time period in which to file an objection, clearly show some binding or conclusive effect was intended.

Because we have been unable to find any Florida case in point, we adopt the view, which the later statute promulgates, that there should be no distinction made between whether or not an accounting is periodic, annual or final for purposes of giving res judicata or a conclusive effect to a court order approving it. In the early decision of Gadsden v. Jones, 1 Fla. 332 (1847) the Florida Supreme Court considered the effect of an executor’s final discharge. It held a final discharge by the county court barred a creditor’s subsequent suit against him for failure to pay a claim. The court relied on a statute which barred such claims after five years following discharge. It said:

One of the primary rules laid down by the sages of the law for the construction of Statutes is, that “there are three facts to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy,” — that is, how the common law stood at the time of making the act, what the mischief was for which the case did not provide, and the remedy the Parliament hath provided to cure the mischief. (Citation omitted).

Id. at 340-41. The court said the old law was that an executor could never be discharged from his duties and the mischief was he remained, theoretically, forever liable. The evil was that no competent person of substance wished to undertake such an office. And the remedy was to secure a speedy and certain release for executors from their duties.

The mischief and evil sought to be remedied in the trust accounting context is similar to that of probate, except the need for the conclusive effect for periodic account-ings is perhaps even greater for trusts because they may continue for much longer periods of time. As the court said in In Re Van Deusen’s Will, 24 Misc.2d 611, 196 N.Y. S.2d 737 (Sur.Ct.1960):

The application of any other Rule [than res judicata], in our judgment, would result in a maelstorm of uncertainty, lack of judicial finality and ultimate chaos. Without some safeguards, no fiduciary could ever rest secure after his supposed acquittance. Hence we cannot conceive the prior accounts, and the decrees settling them, as constituting useless gestures which may be lightly brushed aside at the caprice of interested parties years after persons involved and records required are no longer available to dispute attacks made on them.

Id. 196 N.Y.S.2d at 743.

Most jurisdictions conclude that a judicial settlement of a trustee’s accounts, as to persons who receive notice and are subject to the court’s jurisdiction, bars subsequent litigation seeking to raise defaults or defects with the matters shown or disclosed in the accountings. It is a modified kind of res judicata, based in part on statute and in part on case law. It is different from the traditional concept of res judicata because, assuming there is due notice to all beneficiaries, courts say the beneficiaries are barred from questioning later matters which are disclosed by the accounting, but not those not disclosed. In traditional res judicata, a party is barred from raising not only issues which were litigated, but those that might have been discovered and litigated. Further, unlike traditional res judicata concepts, the beneficiary may accept the trustee’s accountings as complete and truthful. Thus, causes of action against a trustee are not barred by prior judicial orders or settlements for a trustee’s malfeasance not shown by the accounts, such as self-dealing, fraud, and bad faith. Also, issues not encompassed by the accounting or discharge, such as the proper construction of a will or the liability of the dower portion of an estate for its share of estate taxes, which was not passed on by the probate court, will not be barred in subsequent suits.

In applying this modified res judicata, it becomes necessary to determine first the nature of the complaint asserted, and second whether or not these matters were disclosed by the prior accountings. The Frasers’ amended complaint sets out six grounds of attack on the performance of the appellees as trustees:

1.They failed to pay Walter Fraser the net income of his trust, and failed to pay him funds he needed for his support, medical and health care. John’s deposition established that Walter incurred $100,000.00 in medical bills which John paid by selling property in his father’s estate.
2. They failed to pay the net income of the trusts to John after Walter’s death.
3. They failed to distribute the ‘statutory’ minimum income based on the value of the principal. (No statute in effect for these accounting periods was cited to this court requiring such a distribution).
4. They breached their duties as Trustees by not expeditiously liquidating the corporation, the principal asset of the trust; and in recent years acted against the interests of the beneficiaries by building up extensive retained earnings, thereby creating large potential income tax liabilities when it is dissolved.
5. They failed to dispose of the corporation, and breached their trust duties by retaining an under-productive asset.
6. They failed to properly operate, manage and maintain the physical grounds and properties which belonged to the corporation — the Fountain of Youth attraction.

There is no allegation that notice was not properly given to all of the beneficiaries, or that the trustees in any way acted in bad faith, or that they concealed or failed to disclose any matters of substance.

The trial court must have examined the annual accountings filed for the time periods in question, as have we. They are attached as exhibits to the appellees’ motion for summary judgment in support of their answer, which raises the settlements as a bar to this suit. The accountings show in a summary fashion all expenditures, income earned, and income distributions from the trust to the beneficiaries. They also show generally, the corporation’s net income, the amount of earned surplus for each year, major corporate expenditures, and amounts paid by way of dividends on the corporate shares held by the trust. In arriving at its decision that the prior accountings sufficiently disclosed the matters sought to be raised in this lawsuit so as to bar them, the lower court’s decision comes to us clothed with the presumption of correctness. We cannot say it erred in this regard.

As to the first three items, the accountings clearly show the amounts of income earned by the trust and corporation, and the sums distributed to the beneficiaries. The correctness of the amounts distributed, as well as the fact of their distribution are concluded by the prior accountings. Further, as to item one, we doubt the standing of any of these beneficiaries to assert Walter’s right to increased distributions in the past.

As to the last three items complained of, the accountings also appear to us as adequate to show that the corporation was being maintained and operated, rightly or wrongly, as the primary trust asset, and that it was earning the stated net income and retaining the stated earned surplus, whether too much or too little. Whether retention of the trust asset was a breach of the trustee’s fiduciary duty appears to us to be barred by the accountings, because retention was fully disclosed.

The trustees’ alleged mismanagement of the corporation by letting the physical property of the attraction deteriorate is a closer question. However, there is no suggestion in the record that the beneficiaries were barred from coming upon the property, and in fact they did so. They lived in the same town. Further, there is no suggestion that the trustees hid or concealed any facts or records, corporate or trust related, from the beneficiaries. John retained an accountant to assist him in reviewing the corporate records from time to time. We conclude that these charges of mismanagement are likewise barred by the judicial settlements in this ease.

For the reasons stated in this opinion, the lower court’s partial final summary judgment is

AFFIRMED.

COBB and COWART, JJ., concur.

      . The lower court left standing Count II of the Frasers’ amended complaint which dealt with the liability of the defendants as directors of a corporation, a separate entity from the trust involved in Count I. Count II, as a distinct and severable cause of action, is not involved in this appeal. Mendez v. West Flagler Family Ass’n, Inc., 303 So.2d 1 (Fla.1974).

      . In an unrelated appeal these same beneficiaries sought an accounting and similar relief against the trustees for periods of time after April 30, 1976. We noted in that case the major complaints related to earlier periods of time and we said, “We do not suggest that such relief might have been available or appropriate, if it had been sought. The trial court in this litigation considered only what was presented to it for determination.” Fraser v. Southeast First Bank of Jacksonville, 395 So.2d 1187 (Fla. 5th DCA 1981).

      . This section provided:
      Every trustee shall file an annual account within ninety days after the expiration of the immediately preceding full calendar year or fiscal year of the administration of the trust .... Each annual or other periodic account shall contain an inventory of the trust fund at the end of the accounting period, ... whether in cash or other property, and any other information which the trustees may desire to submit. All disbursements and distributions shown upon the account shall be supported by receipts or vouchers showing the purpose therefor whenever the court or any beneficiary shall so request.

      . This was formerly section 738.151, Florida Statutes (1975).

      . § 737.201, Fla.Stat. (Supp.1974).

      . § 737.407, Fla.Stat. (1979).

      . We do not rely on the conclusive effect of the new law, section 737.307, Florida Statutes (1979), in this opinion because the accountings in this suit were not, except for the last one, filed while it was in effect. That section of the new law provides:
      Unless previously barred by adjudication, consent, or limitations, an action against a trustee for breach of trust is barred for any beneficiary who has received a final, annual, or periodic account or other statement fully disclosing the matter unless a proceeding to assert the claim is commenced within 6 months after receipt of the final, annual, or periodic account or statement. In any event and notwithstanding lack of full disclosure, all claims against a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of the records for his examination are barred as provided in chapter 95.

      .§ 737.14, Fla.Stat. (1973).

      . § 737.307, Fla.Stat. (1979).

      . Cf. Beck v. Beck, 383 So.2d 268, 272 (Fla. 3d DCA 1980) (“The Probate Code of 1976 is largely declaratory of the prior decisional law.”). This court has previously used a subsequent statute to arrive at the proper statutory construction of a predecessor statute. See Foremost Insurance Co. v. Medders, 399 So.2d 128 (Fla. 5th DCA 1981); Stafford v. State, 380 So.2d 538 (Fla. 5th DCA 1980).

      . Carten v. Carten, 153 Conn. 603, 219 A.2d 711 (1966); Jackson v. United States Trust Co., 361 Mass. 333, 280 N.E.2d 187 (1972); In Re Swart’s Estate, 332 Mich. 404, 51 N.W.2d 903 (1952); Estate of Gray, 9 Mich.App. 262, 156 N.W.2d 594 (Ct.App.1967); In Re Bailey’s Trust, 241 Minn. 143, 62 N.W.2d 829 (1954); Dickerson v. Camden Trust Co., 1 N.J. 459, 64 A.2d 214 (1949); In Re Van Deusen’s Will, 24 Misc.2d 611, 196 N.Y.S.2d 737 (Sur.Ct.1960); 3 A. Scott, Trusts § 220, at 1765 (3rd ed. 1967); Restatement (Second) of Trusts § 220 comment a (1959); G. Bogert, Trusts and Trustees § 974 (2d ed. 1975).

      . See also Central Farmers’ Trust Co. v. Pink-ham, 119 Fla. 444, 161 So. 273 (1935).

      . But see Mims v. Valley Nat’l Bank, 14 Ariz. App.1980, 481 P.2d 876 (Ct.App.1971) (decision grounded on the strictly in rem aspects of the Arizona probate statute).

      . Krivitsky v. Nye, 155 Fla. 45, 19 So.2d 563 (1944); Estate of Sewell, 487 Pa. 379, 409 A.2d 401 (1979).

      . See In Re Marine Midland Bank-New York, 77 Misc.2d 543, 354 N.Y.S.2d 332 (Sur.Ct.1974); In Re Van Deusen’s Will, 24 Misc.2d 611, 196 N.Y.S.2d 737 (Sur.Ct.1960); 90 C.J.S. Trusts § 416 (1955).

      . In Re Swart’s Estate, 332 Mich. 404, 51 N.W.2d 903 (1952); Estate of Gray, 9 Mich. App. 262, 156 N.W.2d 594 (Ct.App.1967); In Re Enger’s Will, 225 Minn. 229, 30 N.W.2d 694 (1948); In Re Marine Midland Bank-New York, 77 Misc.2d 543, 354 N.Y.S.2d 332 (Sur.Ct.1974); G. Bogert, supra note 11.

      . Restatement (Second) of Trusts, supra note 11.

      . Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143 (1942).

      . Nat’l Academy of Sciences v. Cambridge Trust Co., 370 Mass. 303, 346 N.E.2d 879 (1976); In Re Enger’s Will, 225 Minn. 229, 30 N.W.2d 694 (1948).

      . 3 A. Scott, supra note 11, § 220.

      . In Re Enger’s Will, 225 Minn. 229, 30 N.W.2d 694 (1948); In Re Weinberg’s Will, 63 N.Y.S.2d 472 (Sur.Ct.1946).

      . Nat’l Academy of Sciences v. Cambridge Trust Co., 370 Mass. 303, 346 N.E.2d 879, 880 (Mass.1976).

      . Kittel v. Simmonite, 152 So.2d 817 (Fla. 3d DCA 1963).

      . Hudson v. Lindsay, 13 Mich.App. 671, 164 N.W.2d 731 (Ct.App.1968), rev’d on other grounds, 383 Mich. 126, 174 N.W.2d 822 (1970).

      . Dacus v. Blackwell, 90 So.2d 324 (Fla.1956).

      . In Re Bailey’s Trust, 241 Minn. 143, 62 N.W.2d 829 (1954); In Re Weir’s Will, 182 Misc. 845, 46 N.Y.S.2d 551 (Sur.Ct.1943).

      . Jackson v. United States Trust Co., 361 Mass. 333, 280 N.E.2d 187 (1972).

      . Hudson v. Lindsay, 13 Mich.App. 671, 164 N.W.2d 731 (Ct.App.1968), rev’d on other grounds, 383 Mich. 126, 174 N.W.2d 822 (1970); In Re Swart's Estate, 332 Mich. 404, 51 N.W.2d 903 (1952); In Re Peck’s Estate, 323 Mich. 11, 34 N.W.2d 533 (1948); Estate of Gray, 9 Mich.App. 262, 156 N.W.2d 594 (Ct.App.1967); In Re Bailey’s Trust, 241 Minn. 143, 62 N.W.2d 829 (1954); In Re Chapin’s Estate, 171 Misc. 783, 14 N.Y.S.2d 91 (Sur.Ct.1939).

      . In Re Weir's Will, 182 Misc. 845, 46 N.Y. S.2d 551 (Sur.Ct.1943).

      . See Jackson v. United States Trust Co., 361 Mass. 333, 280 N.E.2d 187 (1972); In Re Weinberg’s Will, 63 N.Y.S.2d 472 (Sur.Ct.1946); In Re Weir’s Will, 182 Misc. 845, 46 N.Y.S.2d 551 (Sur.Ct.1943); Dickerson v. Camden Trust Co., 1 N.J. 459, 64 A.2d 214 (1949).

      . Carten v. Carten, 153 Conn. 603, 219 A.2d 711 (1966); In Re Marine Midland Bank-New York, 77 Misc.2d 543, 354 N.Y.S.2d 332 (Sur. Ct.1974); In Re Van Deussen’s Will, 24 Misc.2d 611, 196 N.Y.S.2d 737 (Sur.Ct.1960).


source: Caselaw Access Project

author: DOWNEY, Judge. HURLEY, Judge,

license: Public Domain

text:
    UNIGARD INSURANCE COMPANY, Appellant, v. Gary E. YERDON and Janice Yerdon, his wife, State Auto Group, a foreign corporation authorized to do business in the State of Florida and State Automobile Mutual Insurance Company, Appellees.
    No. 79-2242.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Rehearing Denied Aug. 11, 1982.
    Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for appellant.
    Pyszka, Kessler & Adams, Fort Lauder-dale, and Larry Klein, West Palm Beach, for appellees.
   DOWNEY, Judge.

Unigard Insurance Company appeals from an amended final judgment which ordered Unigard to pay its Class I insured from his stacked uninsured motorist policies. Since the trial court’s order did not expand Unigard’s total exposure, but merely assured that certain Class II insureds would receive coverage, we affirm.

The undisputed evidence reflects that Coenen was the owner/driver of an automobile which was involved in an accident with an uninsured motorist on December 7th, 1975. Yerdon, Krickovich and Walter were passengers in the Coenen vehicle. All four riders were injured.

At the time of the accident, Coenen owned two automobiles which were insured by Unigard. The uninsured motorist coverage on each vehicle was $50,000 per person, $100,000 per accident. Passenger Yerdon also owned two vehicles which were insured by State Automobile Mutual Insurance Company. The uninsured motorist coverage for each of Yerdon’s vehicles was $100,-000 per person, $300,000 per accident.

As a result of the injuries sustained in the December 7th accident, Yerdon and his wife filed a claim against their insurer, State Auto. The claim was arbitrated and they received $150,000. State Auto then filed a claim against Unigard, contending that Yerdon was entitled to $50,000 coverage under the Coenen/Unigard policy and, consequently, Unigard should pay a pro rata portion (Véth — $30,000) of the Yerdons’ arbitration award. Unigard responded that it had already paid out $94,861.53 in uninsured motorist benefits to Coenen, and the other two passengers, Krickovich and Walter. The monies were divided as follows:

Coenen $45,758.20
Krickovich 18,383.33
Walter 30.770.00
$94,861.53

Since the Unigard policy provided uninsured motorist coverage of $50,000 per person, $100,000 per accident, Unigard took the position that only $5,138.47 remained available for distribution. Accordingly, it issued a draft in this amount to State Auto.

Unsatisfied, State Auto pursued its complaint for declaratory relief and ultimately prevailed. The trial court held that Uni-gard should have factored in Coenen’s right to stack his two policies before declaring that the coverage had been exhausted. The court reasoned that since Coenen had paid separate premiums for uninsured motorist coverage on each of his two automobiles, he had a right to stack coverage and, thus, an aggregate sum of $100,000 was available to satisfy his claim. In essence, the court ruled that the $45,758.20 which Unigard had paid to Coenen should have been deducted from the stacked portion of Coenen’s coverage. Utilizing this procedure, the court held that sufficient funds remained available to satisfy all of the State Auto/Yerdon claim.

Among the four injured persons only Coe-nen was a Class I insured vis-a-vis the Uni-gard policy because Coenen, the owner of the two automobiles insured under the Uni-gard policy, had paid the additional premium for uninsured motorist coverage. The other three injured persons (not being members of Coenen’s family residing in his household) were Class II insureds under the Unigard policy. See, Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971); Cox v. State Farm Mutual Automobile Insurance Company, 378 So.2d 330 (Fla. 2d DCA 1980).

Unigard takes the position (quite properly) that it furnished only $100,000 in uninsured motorist coverage for injuries to Class II insureds (Krickovich, Walter and Yerdon) and that only Coenen, as a Class I insured, was entitled to stack the second policy if his damages exceeded $50,000. Unigard then reasons (we think improperly) that since it had already paid from one policy the sum of $94,861.53, including the claim of Coenen, there remained only $5,138.47 available to Yerdon, who, as a Class II insured, was not entitled to stack Coenen’s second policy. State Automobile and Yerdon, on the other hand, contend that in the situation presented by these facts there was available from Unigard a total of $150,000. Thus, if Unigard had paid the claims of the Class II insureds first ($18,000 to Krickovich, $30,000 to Walter, and $30,000 to Yerdon), Coenen’s claim could still have been paid in full by utilizing the coverage available to him under his second policy.

Unigard concedes that had the Class II insureds all been paid first,' Coenen would be entitled to be paid his $45,758.20 by stacking his second policy. Thus, if Uni-gard prevails the result will be that the amount of coverage available in a case where several classes of insureds are injured will fluctuate, depending upon the order in which the insurer elects to pay the claims.

We are cognizant of the general rule which allows an insurer in a multiclaim situation to make reasonable settlements with some of the claimants even though, in so doing, the insurance coverage is exhausted and other claimants are not paid. Harmon v. State Farm Mutual Automobile Insurance Company, 232 So.2d 206 (Fla. 2d DCA 1970). We note, however, that the cases espousing the Harmon rule appear to involve insurers whose exposure was a fixed amount. The distinguishing factor in this case is that Unigard’s exposure is not a fixed sum; it will fluctuate depending upon the order in which Unigard pays the various claims. Here, the available coverage was not exhausted; only the coverage under the single policy from which Unigard elected to make all payments was exhausted.

If Unigard’s position is to be the law of the land, the consequences are readily predictable. Every insurer with multiple claims involving different classes of uninsured motorist coverage will invariably follow the practice of delaying settlement of Class II claims until after disposition of any claims by Class I insureds, payment of the latter being made from the only policy which provides coverage for Class II insureds. Granted, the settlements must be in good faith, but that is of little solace to the claimant whose available coverage is reduced or exhausted by the insurer’s first paying the very person who has other coverage available. Moreover, proving a lack of good faith would be, in most cases, extremely difficult.

The better rule in such situations would be to require the insurer to allow stacking by the Class I insureds, if necessary, so that the Class II insureds will have the maximum coverage available to them. There is much to commend this position. It does not expose the insurer to any greater liability than that already contemplated by its policies since the Class I insured has paid for the privilege of stacking as part of his premium; it does not allow the Class II insureds to stack the named insured’s policies; it does not preclude the insurer from settling with any claimant at any time it chooses; and it provides the maximum claim for indemnity for all claims under the policy. Cavalier Ins. Corp. v. Myles, 347 So.2d 1060, 1061 (Fla. 1st DCA 1977). In short, it conforms to the contractual undertaking, provides maximum coverage to all insureds, reduces the opportunities for questionable settlement techniques, and, above all, it reaches a more equitable result.

The judgment appealed from accomplished this result and, thus, we affirm.

HERSEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

The trial court’s resolution, now ratified by the majority, is undeniably attractive for it permits the widest possible coverage without subjecting the insurer to greater liability than might have been anticipated. Nonetheless, I respectfully dissent because, in my view, the majority decision runs afoul of two well established principles of insurance law.

First, in Harmon v. State Farm Mutual Automobile Insurance Co., 232 So.2d 206 (Fla. 2d DCA 1970), the court restated this widely accepted maxim:

It is generally held that where multiple claims arise out of one accident, the liability insurer has the right to enter reasonable settlements with some of those claimants, regardless of whether the settlements deplete or even exhaust the policy limits to the extent that one or more claimants are left without recourse against the insurance company.

Id., at 207-08. Since there was no suggestion in the case at bar that the settlements negotiated by Unigard were unreasonable or made in bad faith, Unigard was fully justified in settling the claims of Messrs. Coenen, Krickovich and Walter.

Second, it is now beyond peradventure that only a “class one insured,” (the vehicle owner and relatives who reside in his household), is entitled to stack uninsured motorist coverage. A “class two insured,” (any other person occupying the insured vehicle at the time of the accident) is not entitled to stack the owner’s uninsured motorist coverage. Lumbermens Mutual Casualty Co. v. Martin, 399 So.2d 536 (Fla. 3d DCA 1981); Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980); Liberty Mutual Insurance Co. v. Searle, 379 So.2d 131 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976), cert. denied, 351 So.2d 407 (Fla.1977).

The rationale supporting this dichotomy was set forth in Travelers Insurance Co. v. Pac, supra (quoting Cunningham v. INA, 213 Va. 72, 189 S.E.2d 832, 836 (1972)):

The purpose of uninsured motorist insurance is to provide compensation to the innocent victim of the uninsured motorist. The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, this argument and reasoning does not apply to a permissive user of a vehicle who pays no premium and does not receive the broader uninsured motorist coverage of a named insured.

Id., at 399.

In the case at bar, Mr. Coenen, a “class one insured,” did not need to stack because the settlement, which came from the unstacked portion of his uninsured motorist coverage, fully satisfied his claim. Thus, the trial court’s order, although purporting to stack for the benefit of Mr. Coenen, in reality requires stacking for the benefit of Mr. Yerdon, a “class two insured.” In other words, the trial court’s order does indirectly what it could not do directly. In my view, we should not sanction such a facile avoidance of settled case law. Accordingly, I respectfully dissent.

      . $100,000 per accident limit of one policy, and $50,000 per person limit of the second policy, the latter available only to Coenen.

      . This is exactly the practice which was followed by State Farm Mutual Automobile Insurance Company in the case of Palombo v. Brous-sard, 370 So.2d 216 (La. 3d Cir.Ct.App.1979), in which case, on its facts, the court found the settlements to have been made in bad faith.

      . Cf. Palombo v. Broussard, 370 So.2d 216 (La. 3d Cir. Ct.App.1979).


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Michael KATZ, Respondent.
    No. 82-446.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.
    Rehearing Denied Aug. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner.
    Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hayes & Hoft, Tampa, for respondent.
   BOARDMAN, Acting Chief Judge.

The state petitions for writ of certiorari, asserting that the trial court departed from the essential requirements of law when it granted a change of venue from Pasco to Hillsborough County. We grant certiorari.

A Pasco County grand jury charged respondent Katz with first-degree murder. The indictment alleged venue solely in Pas-co County, but the trial court granted respondent’s motion for change of venue to Hillsborough County. We hold that this order violates the essential requirements of law.

The trial court relied on Article I, Section 16 of the Florida Constitution, which provides that if the county where the crime was committed is not known, “the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties he will be tried.” In this case, however, the indictment charged venue in only Pasco County. We hold that pursuant to Article I, Section 16, and its express terms, venue need not be charged conjunctively, and the accused does not have the right to request a change of venue pursuant to this section if the charging instrument does not allege conjunctive venue.

The trial court also relied on Sections 910.02 and 910.03, Florida Statutes (1981). These statutes, however, also require the charging instrument to allege venue con-junctively.

We conclude that the trial court departed from the essential requirements of the law by misapplying the plain language of the constitutional and statutory sections it relied on.

Accordingly, we grant certiorari, quash the order granting change of venue, and remand the cause to the trial court for further proceedings consistent with this opinion.

OTT, C. J., and SCHOONOVER, J., concur.

      . If venue is not charged conjunctively, however, the state must prove that the crime was committed in the county named in the charging instrument, Mounter v. State, 178 So.2d 714 (Fla.1965), unless section 910.05, which provides that if the acts constituting one offense are committed in two or more counties, the offender may be tried in any county in which any of the acts occurred, is applicable to the facts here. See Smith v. State, 42 Fla. 605, 28 So. 758 (1900).


author: PER CURIAM. SHARP, Judge,

text:
    Judith Ann MINCE, Appellant, v. Bernard Ladon MINCE, Appellee.
    No. 81-223.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    M. Brice Corder of Harvey C. Poe, Jr., P. A., Melbourne, for appellant.
    Edward J. Richardson and Richard E. Gordon of Saxon & Richardson, P. A., Melbourne, for appellee.
   PER CURIAM.

AFFIRMED.

COBB and COWART, JJ., concur. SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The wife appeals from a final judgment of dissolution. Because I agree with the appellant that the trial court clearly abused its discretion by refusing to award the wife an undivided one-half interest in the marital domicile as lump sum alimony, I dissent.

At the time of the dissolution the parties had been married for sixteen years. The husband was thirty-nine and the wife was thirty-five. Neither brought substantial assets to the marriage, and their earnings during the marriage were the source of the parties’ assets at the time of this dissolution. They married just as the wife was graduating from high school. For the next six years the wife worked full-time as a secretary, helping to keep the family afloat as the husband developed his various business ventures. During the next seven years the wife remained in the home to raise the parties’ two children, John and Stephanie, who were ten and seven years of age respectively at the time of this dissolution. During the last three years of the marriage the wife had been employed full time outside the home earning a gross weekly wage of approximately two hundred forty dollars ($240) as a personnel specialist for a corporation.

The husband was involved in a variety of business ventures including a used car lot, a restaurant and lounge. He currently owns and operates a mail order business called U. S. I. Corporation (actually a sole proprietorship) which sells electronic countermeasure devices. The husband keeps no business records other than his checking account. Available data indicates his U. S. I. Corporation has gross sales of at least one hundred fifty thousand dollars ($150,000) per year. The husband is the only full time employee of the business. At the time of the dissolution the husband estimated his gross income at five hundred twenty dollars ($520) per week.

During the marriage the family enjoyed a comfortable lifestyle. They occupied a marital domicile (which was totally paid for) containing more than three thousand square feet of living space. It was nicely furnished with appointments valued at more than twenty thousand dollars ($20,-000). The parties were members of the local yacht club and entertained there frequently, sometimes for large numbers of guests. The husband took frequent fishing trips to the Bahamas where the family’s twenty-four foot fishing boat is kept on a permanent basis. He also enjoyed moose and elk hunting trips to the far west. The wife had weekly maid service in the home and regular babysitting services.

The family owned two late model automobiles, a 1978 Buick and a 1980 Corvette, which were purchased by the husband in the name of Don Mince Auto Sales to avoid the payment of sales taxes. During the latter years of the marriage the wife’s income was spent on consumables, primarily for herself and the children. It could not be traced into any specific asset. At the time of the dissolution, the marital home, (valued at one hundred twenty-five thousand dollars $125,000) was in the husband’s sole name. The parties purchased the property as tenants by the entireties in 1972 and built the marital home on it. However, during a period of marital discord in 1975, the wife conveyed her one-half interest in the home to the husband.

The trial court awarded the wife the Buick as total lump sum alimony. It granted primary custody of the son to the father and primary custody of the daughter to the mother, and awarded the wife two hundred sixty dollars ($260) per month child support. The court also awarded the wife three thousand dollars ($3,000) in attorney’s fees. The major assets the parties acquired during the marriage, together with their valuation ranges, were divided as indicated below.

Assets
Awarded to Wife
Marital home (lien free)
Gun collection Pishing boat Money market funds
1980 Corvette (subject to lien)
1978 Buick $3,500
Household $10,000
furnishings
Silver $10,000 to $12,000
Jewelry $5,000 to $20,000
Credit Union $3,500
Account balance
Stock $1,000
Savings Ac- $1,250
count _
Value range $34,250 to $51,250
of Assets:
Awarded to Husband $125,000
$4,575 to $20,000
$5,000
$10,000
$11,000
$10,000
$1,250
$166,825 to $182,250

In this case, the trial court’s failure to award the wife a more equal share of the assets acquired by the parties during their marriage appears to me as an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). Returning to her a one-half interest in the residence would have roughly equalized the distribution of marital assets. Simply because title to the home was in the husband at the time of the dissolution does not bar this remedy under principles of equitable distribution. Canakaris; Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981).

I have searched this record to find a basis for the trial court’s refusal to make a more equitable distribution of property and find none. The court awarded the wife no periodic alimony; and there was no evidence that either the wife or the husband was more or less at fault for the break-up of the marriage. Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). Further, the husband’s income appears to be more than adequate to justify an award of alimony — either periodic or lump sum. Although he reports a modest amount of income, the husband has managed to accumulate substantial assets, and has supported his three dependents in a style which indicates considerable other resources. In such cases the lifestyle maintained is a more accurate indicator of actual income. See Lutgert v. Lutgert, 362 So.2d 58 (Fla.2d DCA 1978). The standard of living for the husband will continue unchanged, but for the wife and daughter, it will drastically reduce. These factors are why I think the trial court abused its discretion in this case. Klein v. Klein, 413 So.2d 1297 (Fla. 4th DCA 1982) [1982 F.L.W. 1086]; Weeks v. Weeks, 416 So.2d 811 (Fla. 4th DCA 1982) [1982]; O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982).

      . Value ranges are given because there was a substantial disparity in testimony by the parties regarding the value of certain assets and no expert testimony was presented.

      . The figure is based upon a 1975 appraisal.

      . The disparity in division of marital assets is actually much greater than these figures show. But for the husband’s conviction in Federal Court, apparently for conduct involving the illegal sale of automatic weapons and avoidance of federal taxes several months before the dissolution, which resulted in the payment of a ten thousand dollar ($10,000) fine and thirty-eight thousand dollars ($38,000) in attorney’s fees, his net assets would have totalled in excess of two hundred thousand dollars ($200,000). Further, no value is given here for the husband’s businesses established during the marriage.

      . The “Equitable distribution” concept does not require an equal division of assets acquired during the marriage; however, an equal division will be a good starting point in most cases. Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).


author: McCORD, Judge.

text:
    Michael GAINS, Lonnie Williams and Joseph Edward Williams, a/k/a Milton Kearney, Appellants, v. STATE of Florida, Appellee.
    Nos. AC-117, AC-119 and AC-120.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Rehearing Denied Aug. 19, 1982.

      Michael Allen, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant Gains.
    Thomas D. Treece of Bartlett & Treece, Jacksonville, for appellant Lonnie Williams.
    Ronald F. Bennett, Jacksonville, for appellant Joseph Edward Williams.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

In this consolidated appeal Michael Gains, Lonnie Williams, and Joseph Edward Williams, a/k/a Milton Kearney, appeal from their respective convictions, after a jury trial, of two counts of armed robbery. Lonnie Williams additionally appeals from a third conviction for armed robbery and a conviction for attempted murder. We affirm as to Gains and Lonnie Williams and reverse as to Joseph Williams.

All three appellants present the following points in this appeal: (1) that the trial court erred in denying their motion for mistrial in that the prosecutor improperly commented on their constitutional right to remain silent; (2) that the trial court erred in failing to instruct the jury that intent to permanently deprive is an essential element of the charge of armed robbery; (3) that the trial court erred in convicting them on the second armed robbery count because that count and the first armed robbery count charged only a single offense; (4) that Section 947.16(3), Florida Statutes, is unconstitutional; (5) that the trial court erred in failing to state with individual particularity why it was retaining jurisdiction over their sentences; and (6) that the trial court erred by imposing sentences upon the appellants based, in part, on their refusal to speak to and cooperate with law enforcement authorities. Michael Gains and Lonnie Williams also assert that they were improperly given a three year mandatory minimum sentence on the second armed robbery count because there was no proof at trial that they actually possessed the pistol which caused the bank teller to part with the victim bank’s money. Similarly, Lonnie Williams urges that he may not be given a three year mandatory minimum sentence for the first robbery count as there is no proof he possessed the weapon which caused that bank teller to part with the-bank’s money. Joseph Williams separately urges error in the trial court’s denial of his motion for judgment of acquittal on the two armed robbery counts.

This appeal rises out of a criminal episode which occurred on October 1, 1980, at the Florida First National Bank on Merrill Road in Jacksonville, Florida. At approximately 11 a. m. on that date, three black males, Michael Gains, Lonnie Williams, and a third juvenile (not tried in this cause) entered into the bank and, while brandishing pistols, took approximately $1,065 of the bank’s money from the custody of one bank teller, Betty Jean Cook, and something over $26,000 of the bank’s money from a second teller, Bonnie Thompson. Thompson and Cook were working at different bank teller windows at the time of the robbery. The testimony of the various witnesses reveals that Lonnie Williams and the juvenile took the money from Cook and that the juvenile and Michael Gains took the bank money from Thompson. While the robbery was in progress, a mailman, John R. Osterhout, unfortunately entered the bank on personal banking business. Lonnie Williams put a gun to his head, forced him to the floor, and took his wallet and its contents.

As the three robbers left the bank, they walked slowly across the parking lot and calmly got into a car. This car had been parked far away from the bank at the end of the parking lot facing outward. While in the parking lot, the three men were not seen to be carrying guns, the masks worn during the robbery, or money. The driver, Joseph Williams, had not been inside the bank and sat casually in the car as the others got in. The car pulled slowly out of the lot, stopping because of traffic and obeying traffic signals.

Meanwhile, a customer at one of the bank’s drive-in windows noticed the commotion inside the bank. She followed the car as it left the parking lot and entered into a residential neighborhood, still obeying traffic signals and not speeding. This witness waved down a police car which immediately gave chase.

When the police tailing the appellants first observed their car, it was not violating any traffic laws. As the police pulled closer, the officer noted that the passengers, Gains, Lonnie Williams, and the juvenile, did something unusual:

.... (They) saw me coming down Townsend Boulevard and they turned and starting talking to the driver.
At that point, when they’d made a complete turn onto Townsend Boulevard, the two in the back and Lonnie Williams in the front all laid down inside the vehicle as they approached my patrol car, which at that time I was still northbound coming up on them.

At this point, the officer turned on his lights and pulled in front of the car. The driver initially eluded the officer by driving up into a yard, and a chase ensued. This officer never lost sight of the vehicle during the two-minute chase which was concluded when the car being pursued crashed into another car at the intersection of Lone Star and Samontee. During the chase Lonnie Williams fired his pistol at the officer approximately 15 times, and on several occasions reached into the back seat as if getting aid or ammunition.

Since Joseph Williams’ argument regarding the insufficiency of the evidence stands in a somewhat different stead than the other arguments offered by him and the other appellants, we find it appropriate to address this argument first. In the commission of the crime, both the actor and the one who aids and abets him are principals in the first degree and may be charged and convicted of the crime. § 777.011, Fla.Stat. It is not necessary that the aider or abettor be physically present aiding and abetting his partner or partners in the crime. However, he must be sufficiently near or so situated as to aid or encourage or to render assistance to the actual perpetrator. Pope v. State, 84 Fla. 428, 94 So. 865 (1923).

The guilt of an aider or abettor, of course, can be established by circumstantial evidence; however, that evidence must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968); Davis v. State, 90 So.2d 629 (Fla.1956). Here, it is apparent that Joseph Williams was not an active participant in the armed robbery. Rather, the prosecution’s theory implicitly rests on the assumption that he was the “wheel-man” for the crime. The evidence that, as the driver of the car, he was a knowing participant in the crime is circumstantial and thus more is needed than a suspicion or belief that under the circumstances, he knew what was occurring. Espinoza v. State, 183 So.2d 560 (Fla. 3d DCA 1966). The mere fact that he fled from the scene after the crime “does not exclude the reasonable inference that (he) had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.” J. H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979). Applying these standards to the facts elicited by the prosecution, we find that Joseph Williams’ conviction cannot be sustained on the basis of circumstantial evidence. Considered in a light most favorable to the state’s case, the evidence merely places Joseph Williams in the automobile outside the scene of the crime. There is no evidence that he had seen his companions carrying guns [see Williams v. State, 206 So.2d at 449] or that he had heard them discussing the crime prior to its inception. There is no evidence that he could see into the bank and thereby have ascertained the apparent intentions of his companions. There is no showing that he acted as a lookout for the trio. See Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980). Further, he drove out of the parking lot at normal speeds while obeying traffic signals. He did not attempt to elude the police until, as we can fairly infer from the evidence, his companions informed him of something. Pack, supra. Moreover, upon being apprehended, he did nothing to resist arrest. Thus, the evidence in this case just as reasonably supports the inference that, although Joseph Williams may have been in the general vicinity of the crime, he had no knowledge of his companions’ intentions and attempted to flee only upon being apprised of their actions while in the bank.

The State relies upon Enmund v. State, 399 So.2d 1362 (Fla.1981), to support the conviction of Joseph Williams. Enmund v. State was a robbery-murder case which construed Section 782.04, Florida Statutes (1973). The court ruled that there was no direct evidence that Enmund was present with the accomplices at the back door where the robbery and murder took place; that the only evidence of the degree of his participation was the jury’s likely inference that he was the person in the car by the side of the road near the scene of the crime; that the jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the money. The court, therefore, held there was sufficient evidence that Enmund was a principal in the second degree, constructively present aiding and abetting the commission of the crime of robbery and, therefore, guilty of murder in the first degree under Section 782.04(l)(a). Unlike the case sub judice, there was evidence in Enmund v. State that Enmund had been at the scene of the crime on an earlier occasion and had commented on the large amount of money carried by the victim. Also, as contrasted to the circumstance that Joseph Williams was parked in the parking lot of a bank in the late morning business hours, Enmund was parked on the side of a rural highway in early morning hours near the scene of the robbery-murder, a scene, as above stated, which he had visited earlier and had commented on the victim’s money. Also, unlike the evidence in the present case, there was evidence that the Edmund car drove from the scene “pretty fast” with one or two passengers lying across the back seat.

The evidence adduced at trial sub judice fails to exclude a reasonable hypothesis of innocence and is thus inadequate to convict Joseph Williams as an aider and abettor to the armed robberies. He should have been charged, if at all, as an accessory after-the-fact. See, e.g., Ferguson v. State, 321 So.2d 139 (Fla. 4th DCA 1975). Since the evidence was not sufficient, his convictions for the armed robberies are reversed. Moreover, because the retrial of a defendant whose conviction has been reversed for insufficiency of the evidence would violate the double jeopardy clause of the United States Constitution, which is fully applicable to state criminal proceedings, we have no choice but to direct that he be discharged from further custody for this alleged crime. Chaudoin v. State, 362 So.2d 398, 402 (Fla. 2d DCA 1978). Accord Tibbs v. Florida,-U.S.-, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

We now turn to the remaining points raised by this appeal. During his closing argument, the prosecutor made the following statement:

We have heard at this point from all of the defense attorneys at least once and one thing is clear to me and I am sure that is clear to you, that they, meaning the defense attorneys want to talk to you about some of the witnesses and their identification and they take pride in one of them saying it was a green shirt and it turns out to be green pants. I think things like this that they have taken real pride in themselves, (sic) But the one thing they don’t want to talk to you about and the one thing that they have avoided is not once has anyone explained to us where the sunglasses in the car where they came from; where the baseball cap, the racing hat, the three pistols.

Appellants immediately moved for a mistrial on the grounds that the prosecutor’s argument was a direct or indirect comment on the appellants’ failure to testify at trial. While noting that these comments were getting dangerously close to improperly commenting on the fact that the appellants did not testify, the trial court denied the motion for mistrial.

We find it necessary to put the above comments in a proper perspective. Officer Taylor, an evidence technician with the Jacksonville Sheriff’s Office, testified that he took the following items from the vehicle in which the appellants fled the police:

One stopwatch, three masks, four hats, various colors, one green duffle bag, assorted clothing, shirts, .... three firearms, a wallet that belonged to Mr. John Osterhout and ... in the green duffle bag $28,472.45.

He also recovered bank papers, sunglasses, a baseball cap, and a racing hat, all of which were introduced into evidence by the state, as were the three pistols.

We find no error in the trial court’s denial of the motion for mistrial. “It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue.” White v. State, 377 So.2d 1149, 1150 (Fla. 1980). Moreover, it is patent from the content of the remarks that the prosecutor was referring, not to the appellants’ right to remain silent, but to defense counsel’s previous statements, a practice which is permitted. See State v. Bolton, 383 So.2d 924 (Fla. 2d DCA 1980). In Bolton, the Second District Court of Appeals adopted the appropriate test for measuring such a remark:

The test in determining whether such transgression has occurred is whether the remark is manifestly intended or was of “such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” (Citations omitted.)

We adopt this test and find that, in view of the evidence and the context in which the disputed remarks were made, they did not constitute comment on the failure of the appellant to take the stand, particularly in light of the court’s standard instruction to the jury as to appellants’ not testifying.

Appellants next argue that the trial court erred in refusing to instruct the jury on specific intent, i.e., the intent to permanently deprive the owner of property, as an element of the crime of armed robbery. There would appear to be some merit in this argument, for the Florida Supreme Court has held that specific intent is still a requisite element of the crime of robbery. Bell v. State, 394 So.2d 979 (Fla.1981). Citing Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), the state urges that the failure to do so is harmless error. Williams, however, does not so hold. While dicta, in that opinion does imply a harmless error test, the strict holding of that case is that the failure to instruct the jury as to specific intent is not fundamental error, thus permitting it to be urged on appeal though not properly preserved in the trial court. Holmes v. State, 412 So.2d 429 (Fla. 4th DCA 1982) (Owen, dissenting). Here, the issue was properly preserved for review. Thus, we are squarely presented with the issue of whether the failure to instruct as to specific intent can be deemed harmless error. Considering the circumstances of this case, we find that such error was harmless.

Ordinarily, the trial court has the duty to fully instruct the jury as to each essential element of the offense. McClendon v. State, 196 So.2d 905, 906 (Fla.1967). However,

It appears to be generally, although not universally, established that an omission from the charge in a criminal case of a particular element of the offense or an erroneous instruction with respect thereto will not be regarded as reversible error if from the pleadings and the evidence in the case it is clear that there was no issue between the parties with respect to such element.

Annot., Comment Note — Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged, 169 ALR 315 (1947), cited approvingly in Williams, at 545. We adopt this view and find there was no genuine issue as to the appellants’ intent to permanently deprive the bank of its funds. No defense was proffered by the defendant which would serve to negate this specific intent, unlike Bell.

In Bell itself the omission of a charge on intent was raised below and was directly material to the issues in the case, since the trial judge ... refused to permit evidence or argument concerning the defendant’s alleged intoxication on the ground that it was irrelevant to what was thought to be a non-specific intent crime.

Williams, at 543, f.3. Since there was no genuine evidentiary defense, such as intoxication, in this case, we find that appellants have raised but a paper issue in this regard. In reaching this conclusion, we adopt the well-reasoned dissenting opinion of Judge William Owen (Retired) in Holmes, supra. That case, too, involved the charge of robbery with a weapon and a properly preserved request for a jury instruction that intent to deprive the victim is an essential element of the crime. Judge Owen observed:

.... (O)nce the jury concluded (as it obviously did) that appellant and his co-defendant were the culprits and had taken money or other property of value from the person or custody of Mr. Klein by force, violence, assault or putting in fear, it is totally inconceivable and beyond all comprehension that the jury could have failed to find from the evidence that appellant and Morris (co-defendant) had every intent to permanently deprive the victim of the possession, use and enjoyment of the property. I am satisfied beyond all doubt, from an examination of the entire case, that the jury’s verdict would necessarily have been the same had the court concluded in its instruction the element of intent to deprive. (Emphasis in original.)

Id., at 431. We, too, find it “totally inconceivable and beyond all comprehension that the jury could have failed to find from the evidence that” appellants had every intent to permanently deprive the bank of its funds. Accordingly, we affirm the judgment of the trial court on this point.

Appellants have also argued the two counts of armed robbery charged only a single offense because the money taken from the two tellers during the robbery was money that belonged to a single victim, the bank. We have recently rejected such an argument. See Brown v. State, 413 So.2d 1273 (Fla. 1st DCA 1982). Appellants’ argument regarding the constitutionality of Section 947.16(3), Florida Statutes, has also been conclusively rejected. Borden v. State, 402 So.2d 1176 (Fla.1981); Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981). We have considered the remaining issues on appeal and find them to be without merit.

The convictions and sentences of Lonnie Williams and Michael Gains are affirmed. Joseph Williams’ conviction is reversed and the case is remanded with directions that he be discharged from custody.

ERVIN and SHAW, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Joan W. STEIN, Martin Stein, Martin Stein, Jr., Richard W. Stein and Robert L. Stein, as all of the partners in Regency Square, a Florida general partnership, Appellants, v. MISS FRANIE’S, INC., a corporation, d/b/a Annie Tiques, William E. McLaughlin and Frances A. McLaughlin, Appellees.
    No. AH-120.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    J. Michael Lindell, Ulmer, Murchison, Ashby, Taylor & Corrigan, for appellants.
    William H. Jeter, Jr., Adams & Adams, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

This appeal presents for review the trial court’s order dismissing two counts of appellants’ complaint with prejudice, upon a finding that the written guaranty agreement sued upon is unambiguous on its face, and is patently a corporate guaranty, rather than an individual guaranty binding appel-lees William E. McLaughlin and Frances A. McLaughlin.

The facts briefly are that appellants leased a portion of the shopping center, by written lease agreement, to the appellee, Miss Frame’s Inc. A written “Guarantee of Lease” was signed by the McLaughlins. This “Guarantee of Lease,” was executed by the McLaughlins as follows:

CORPORATE GUARANTOR
By: /s/ Frances A. McLaughlin President
Attest: /s/ William E. McLaughlin Secretary (Corporate Seal)
Individual and/or joint Guarantor(s)

Litigation ensued between the landlord and tenant, and resulted in a judgment which was affirmed by this court, Miss Franie’s, Inc. v. Stein, 411 So.2d 388 (Fla. 1st DCA 1981). The present controversy grows out of appellants’ further efforts to recover damages for breach of the lease between the parties, and Counts II and III seek recovery damages from the McLaughlins, individually, based upon their execution of the “Guarantee of Lease.”

Appellants contend that the trial court erred in determining, as a matter of law, that the guaranty executed by the McLaughlins was a corporate guaranty, and not the personal guaranty of the McLaugh-lins. We agree with appellants’ position for several reasons. First, the so-called “corporate guarantor” is not identified in the written “Guarantee of Lease,” nor in the lease itself, nor in other documents forming a part of the transaction.

Secondly, if the guarantor and the corporate tenant, Miss Frame’s Inc., are one and the same as urged by appellees, then the “Guarantee of Lease” would serve no purpose whatever, and its execution would be a useless gesture. Furthermore, the specific language of the guaranty itself is inconsistent with the idea that the tenant and the guarantor are one and the same. See, Manufacturers’ Leasing Ltd. v. Florida Development & Attractions, Inc., 330 So.2d 171 (Fla. 4th DCA 1976).

Thirdly, paragraph 29 of the lease agreement provides:

The submission of this lease for examination does not constitute an offer to lease, and this lease shall be effective only on execution hereof by Landlord and Tenant, and upon execution of the Guarantee Agreement annexed hereto by William Edward McLaughlin.

Mr. McLaughlin’s name was inserted as it appears in the foregoing paragraph in the lease by typewriting, in a space provided for that purpose.

Appellants argue that the McLaughlins are individually bound on the guaranty as a matter of law. There is some ease law to support this view, but it is a minority one. See, Annotation, 70 ALR3rd 1276,1280, § 4 at 1284. The Florida courts have generally followed the majority rule, that is, where it is uncertain whether the instrument was intended to bind the person in an individual or representative capacity, parol evidence is admissible to explain the ambiguity. See, Landis v. Mears, 329 So.2d 323 (Fla. 2nd DCA 1976). We follow the majority rule.

It should be noted that the Landis court, although it recognized the rule differentiating between “patent” and “latent” ambiguities in respect to admitting parol evidence, determined that this distinction does not apply where the court is simply attempting to determine the capacity of the parties who entered into the agreement, rather than in varying or supplying any terms to the agreement. 329 So.2d at 325, 326. In our view, the Landis decision is consistent with early Florida Supreme Court decisions which held parol evidence admissible to show the capacity in which parties signed, especially where the litigation was between the parties to the agreement. See, Falsten Realty Co. v. Kirksey, 103 Fla. 225, 137 So. 267 (Fla.1931); Hazlett v. Willaume, 76 Fla. 514, 80 So. 309 (Fla.1918).

On remand the trial judge should determine the capacity in which the individual appellees signed their names based upon the instrument itself, the underlying lease agreement and any other contemporaneous documents, and parol evidence relevant to the transaction between the parties.

REVERSED and REMANDED for further proceedings consistent with this opinion.

JOANOS and THOMPSON, JJ., concur.

      . We note this rule also to be consistent with the Uniform Commercial Code, Section 673.-403(2)(b), Florida Statutes (not applicable to this case), which provides, in part, that “[E]xcept as otherwise established between the immediate parties ...,” an authorized representative who signs his own name is personally obligated if the instrument does not name the person represented but does show that the representative signed in a representative capacity. This provision contemplates parol testimony to resolve the issue. Dynamic Homes, Inc. v. Rogers, 331 So.2d 326 (Fla. 4th DCA 1976).


author: SHIVERS, Judge.

text:
    Forest Lee RICHARDSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-436.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Rehearing Denied Aug. 18, 1982.

      Forest Lee Richardson, pro se, for appellant.
    Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   SHIVERS, Judge.

This appeal challenges action by the Florida Parole and Probation Commission establishing a presumptive parole release date. This court has emphasized the Commission’s statutory and rule obligation to adequately explain its decision to aggravate a prisoner’s presumptive parole release date. Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980); Battis v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). This appeal arose primarily because the Commission initially did not explain its decision to aggravate. We affirm the Commission’s action only because it provided a marginally acceptable explanation of its action in an amendment one day before appellant filed his notice of appeal. The Commission is directed to comply with the letter and spirit of the statute and rules requiring an adequate explanation of its decisions.

McCORD and JOANOS, JJ., concur.


author: DOWNEY, Judge.

text:
    Marton B. GROSSMAN and Leopold Cohen, Appellants, v. Emma J. SELEWACZ, individually and as Personal Representative of the Estate of William Selewacz, Deceased, Appellee.
    No. 81-1861.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 23, 1982.

      Victor K. Rones and M. Mark Margulies, P. A., North Miami Beach, for appellants.
    Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellants, Grossman and Cohen, sued appellee, Ellen J. Selewacz, individually and as personal representative of the Estate of William Selewacz, deceased, seeking a declaration of their rights under an option agreement with the decedent.

Appellants’ complaint alleges that they entered into an agreement with William Selewacz, the decedent, to purchase 20,400 shares of common stock in a named corporation at a price of ten cents per share. The option could be exercised by appellants if the corporation made a profit of $100,000 or more at any time within two years after commencement of operations. The option was to lapse if the corporation’s profit did not amount to at least $100,000 in the first two years of operation.

William Selewacz died and thereafter the appellee notified appellants that individually and in her capacity as personal representative of her deceased husband’s estate she was withdrawing the “offer” contained in the above mentioned option agreement. That letter precipitated this suit for declaratory relief to determine appellants’ rights under the agreement.

The complaint alleges the agreement between appellants and William Selewacz; that William Selewacz was deceased; and that appellee was appointed personal representative of William’s estate. It is further alleged that, although the option period does not expire until 1985, appellee, individually and as personal representative, has attempted to unilaterally terminate the contract. The appellee, in her dual capacity, moved to dismiss the complaint on grounds that 1) she was not a party to the agreement; 2) the court lacked jurisdiction; and 3) the claim is barred by the statute of non-claim. The trial court granted the motion to dismiss with leave to amend; however, appellants declined to amend.

The first point presented is that the trial court erred in granting the motion to dismiss for lack of jurisdiction because the complaint was filed in the civil division of the circuit court rather than the probate division. The order granting the motion to dismiss is silent as to the ground therefor. However, if the dismissal was based upon lack of jurisdiction because the suit was filed in the civil division instead of the probate division, the order would be erroneous. In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977). There we pointed out that, while the circuit court is divided into divisions for efficiency in administration, all judges of the circuit court exercise the court’s jurisdiction, and cases filed in the wrong division should be transferred to the proper division. In any event, this being a suit for declaratory relief, it was properly filed in the civil division. There appellee could plead the statute of non-claim as a bar just as any other defendant might plead a statute of limitation.

In their second point appellants contend the trial court erred in granting the motion to dismiss based upon Section 733.702, the statute of non-claim, because said statute should have been pleaded as an affirmative defense rather than as a ground for a motion to dismiss. Unquestionably, defenses of this nature must be pleaded affirmatively unless they appear on the face of the complaint. See, e.g., Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973). However, appellee argues that this pleading requirement was waived in this case because counsel for appellants conceded in the trial court that the time for filing claims has long since passed. We observe also that the pleading requirement was not raised by appellants in the trial court. Thus, we hold that the trial court was entitled to consider whether appellants’ claim remained viable since no claim had been filed in the proceeding probating the Estate of William Sele-wacz, deceased.

This brings us to appellants’ primary point that the trial court erred in dismissing appellants’ complaint on the ground that the claim was barred by the statute of non-claim, Section 733.702, Florida Statutes (1979).

Appellants contend that the non-claim statute does not apply to their demand for the stock because the stock they seek is specifically identifiable property; and one who asserts a claim to specifically identifiable property from an estate need not file a claim therefor. As support for their position appellants cite numerous cases in which a demand for specific property has been held to be outside the scope of the non-claim statute. What appellants fail to realize is that the basis for the rule regarding specifically identifiable property being exempt from operation of the non-claim statute is that the person demanding the property must allege facts which show that he holds equitable title to the specifically identifiable property and thus that property does not constitute part of the decedent’s estate. Fisher v. Creamer, 332 So.2d 50 (Fla. 3d DCA 1976), cert. dismissed 336 So.2d 600 (Fla.1976).

The complaint in this case alleges that appellants are owners of an option to purchase a certain number of shares in a corporation if certain events come to pass. Having a mere option, the appellants allege no interest, legal or equitable, in the property in question. Wolfle v. Daugherty, 103 Fla. 432, 137 So. 717 (1931); Matthews v. Kingsley, 100 So.2d 445; 33 Fla.Jur., Vendor and Purchaser, § 16. Furthermore, an option to purchase 20,400 shares in a corporation is not an option to buy specific identifiable property. Accordingly, appellants’ claim under the option contract is not one exempt from the purview of Section 733.-702, Florida Statutes (1979), and appellants’ failure to file a claim before the statute of non-claim has run renders the claim unenforceable.

In view of the foregoing, we conclude the order dismissing appellants’ complaint with prejudice upon their failure to amend was correct, and that order is hereby affirmed.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    Bertha M. STRICKLAND, Appellant, v. CENTRAL BANK AND TRUST COMPANY, etc., et al., Appellees.
    No. 81-2138.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 23, 1982.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., and Gary W. Roberts, West Palm Beach, for appellant.
    Howard K. Chema of Preddy, Kutner & Hardy, Miami, for appellees.
   PER CURIAM.

The final summary judgment for the ap-pellees is hereby reversed on the authority of Burmeister v. American Motorists Insurance Company, 403 So.2d 541 (Fla. 4th DCA 1981). We believe there was sufficient evidence in the record to create an issue of fact as to whether the appellee bank had constructive knowledge of the broken pieces of a concrete parking stop located in its parking lot upon which the appellant fell.

REVERSED.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


text:
    Susan GWYNN, Appellant, v. Marie HIRTLER, Appellee.
    No. 81-2251.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 20, 1982.
    Stephen F. Kessler, Miami, for appellant.
    Robert W. Crawford, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a judgment awarding damages to a lessee of a restaurant on account of the alleged misrepresentation of the lessor as concerns certain parking facilities.

We have reviewed all the evidence from the appellate stance and conclude that such evidence is totally insufficient as a matter of fact and law to establish that the appellant lessor was guilty of fraud or misrepresentation.

We reverse and remand with instructions to enter judgment in favor of defendant/appellant, Susan Gwynn, upon authority of Gaddis v. McComas, 391 So.2d 706 (Fla. 4th DCA 1980). See also: Hauben v. Harmon, 605 F.2d 920 (5th Cir. 1979); Heis-ley v. First Bond and Mortgage Co., 103 Fla. 171, 138 So. 81 (1931); Tischler v. Robinson, 73 Fla. 638, 84 So. 914 (1920); In Re Estate of Donner, 364 So.2d 742, Fla. 3rd DCA 1978; and Aspell v. Campbell, 64 App. Div. 393, 72 N.Y.S. 76 (1901).

REVERSED and REMANDED.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    TREND MANAGEMENT, INC. and St. Paul Fire & Marine Insurance Company, Appellants, v. Joan BOYD, Appellee.
    No. AG-367.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Rehearing Denied Aug. 20, 1982.

      J. Ernest Collins of Collins & Thompson, Panama City, for appellants.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellee.
   PER CURIAM.

This is an appeal from an order awarding wage loss benefits from February 19 through August 18, 1981. Appellants recognize claimant’s substantial and unsuccessful job search but submit she is not entitled to wage loss benefits because she confirmed her ability to work but was unable to find a job which she was capable of performing with her qualifications, citing Ball v. Mann, 75 So.2d 758 (Fla.1954), and Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). We affirm because we conclude that the record substantiates the deputy’s determination, extracted below, that the claimant established a wage loss resulting from the compensable injury.

Claimant is 54 years old with a college degree in English literature. After college, she devoted full time to her family and did not work. Later, she worked as a substitute teacher and as a sales clerk for a few months. At the time of her injury, she was employed as a leasing agent and assistant manager for an apartment house complex. This job required a variety of skills, including some basic familiarity with typing. She fell and injured her left arm at work on July 8, 1980, suffering a comminuted fracture which required surgical repair. The deputy found:

While still in the cast, she attempted to return to work but found herself unable to perform satisfactorily.... [S]he reached maximum medical improvement and had a 10% permanent partial impairment of the left arm. Because of the injured arm, Dr. Hartsfield thought she should avoid work involving frequent lifting or prolonged overhead work. To complicate matters, the Claimant injured her right thumb lifting a suitcase at home. The Claimant stated that her weakened left arm caused her to injure her thumb. ... Claimant tried to get her old job back but was told the position was filled.... Since reaching maximum medical improvement, she has made an extensive and sincere work search. Her old job with the Employer became available. Even though it was known that she was seeking work, no job was offered to her. The Carrier made no attempts at rehabilitation nor job placement. In spite of her efforts, the Claimant has been unable to find work. The Employer/Carrier ... take the position that the Claimant is qualified to do a number of jobs. As such, they contend that she really has not lost any wage earning capacity as a result of her injury.
Under the Workers’ Compensation Act existing before August 1, 1979, the Employer/Carrier’s position would probably merit serious consideration.... F.S. 440.15(3)(b) concerns present entitlement to compensation for permanent injury. The only threshold requirement to entitlement ‘... shall be based on actual wage loss . . . ’ F.S. 440.15(3)(b)2 goes on to say that the measurement of the wage loss is determined to be the amount the Claimant is able to earn after reaching maximum medical improvement and shall be in no case less than the sum actually being earned by the employee, including earnings from sheltered employment. This subsection further requires the Deputy Commissioner to take other factors into consideration, including whether the Claimant has voluntarily limited his or her income .... The current law attempts to bring about a more objective standard tied to the economic impact of the injury upon the Claimant ....
There is little doubt that the Claimant is presently capable of light sedentary work .... [Tjhe question under the present Worker’s Compensation Act is whether her injury has had an economic impact on her ability to work .... The injury took her out of the job market. She has since been unable to return. Her age, previous work experience and her physical impairment have combined to severely handicap her ability to find another job. Theoretically, a new claim arises each month. In this manner, the Employer/Carrier is entitled to review the Claimant’s right to benefits monthly. Likewise, the Claimant remains under some degree of pressure to continue in her pursuit of employment. If she is not permanently and totally disabled, she must constantly make a sincere job search. All parties are thereby afforded some degree of protection from potential abuses under the system.... [T]he Worker’s Compensation Law is not a substitute for unemployment insurance. But, the evidence in this case does not present a picture of a worker who is the victim of an economic slump. The Employer would not hire her back. The employment agency counsellor, ... did not even send her for any job interviews although she was ‘qualified’ for ten or 15 jobs that turned up during the past three months. The only thing that has changed significantly since the Claimant’s injury is her physical impairment. Otherwise, she is the same person who was hired by the Employer and who apparently fulfilled the requirements of her job until the date of her injury. She is entitled to wage loss benefits for the months claimed.

The order properly retained jurisdiction for a separate hearing on fees, and is therefore affirmed.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: JO ANOS, Judge.

text:
    INTERNATIONAL MEDICAL CENTERS, H. M. O., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. ASOCIACION CUBANA, INC., H. M. O., d/b/a C. A. C. Health Plan, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    Nos. AG-443, AH-275 and AH-251.
    District Court of Appeal of Florida, First District.
    July 14, 1982.

      C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, and Robert L. Koeppel of Koeppel, Stark & Newmark, and Gary C. Matzner of Hayt, Hayt & Landau, Miami, for International Medical Centers, H. M. 0., appellant.
    Joe N. Unger of Law Offices of Joe N. Unger, P. A., and Charles B. Patrick, P. A., Miami, for Asociación Cubana, Inc., H. M. O., d/b/a C. A. C. Health Plan, appellant.
    Donna H. Stinson, Gen. Counsel, and Charles T. Collette and Susan B. Kirkland, Asst. Gen. Counsels, Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellee.
   JO ANOS, Judge.

In this consolidated appeal, International Medical Centers, HMO, (IMC), and Asocia-ción Cubana, Inc., HMO, d/b/a C. A. C. Health Plan (CAC), challenge the Department of Health and Rehabilitative Services’ (HRS) denial of their requests for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1979). We reverse.

On June 12, 1981, HRS invited qualified Health Maintenance Organizations (HMOs) to submit a response to a request for proposal seeking bids for providing prepaid health care services to refugees in Dade County. The request unequivocally asserted, “It is the intent of the Department to utilize a Health Maintenance Organization (HMO) qualified under Chapter 641, Part II as the provider of service for this group. Only one contract will be awarded.” The “Background” portion of the request contained a discussion of the fee-for-service provision of health care which was then being used and contrasted that method for providing health services with that of HMOs, noting in particular the cost savings which were expected to occur with the HMO contract.

Within the request for proposal, HRS set forth the criteria and procedures which would be used in selecting the winning bid. HRS did not include a provision reserving the right to reject all bids, a provision which had been in prior HRS invitations to bid. Four HMOs submitted bids, and those four bids were narrowed down to three possible winners under the terms of the proposal. Based on one interpretation of the criteria to be used, IMC would have been the winner and based on another interpretation of the criteria, CAC would have been the winner. After having narrowed down the bids, evaluated each of the three finalists, conducted site visits, and held final interviews by the secretary with each of the finalists, HRS announced that it was rejecting all bids and was withdrawing the request for proposal.

In the public announcement concerning the fact that all bids were being rejected, the Secretary of HRS stated that the Department did not believe it would be in the public’s best interest to award a contract for two reasons: they question the financial stability of the lowest bidders and they had reason to doubt the accuracy of certain claims made in some of the proposals. The statement further asserted that the “Department established and followed all appropriate procedures to insure a professional and ethical bid process, although certain bidders attempted to go around this process. This decision does not preclude future efforts by the Department to promote the HMO concept in Florida.” HRS announced that it would not, therefore, enter into a contract with an HMO but would pay on a fee-for-service basis to individual providers.

Both IMC and CAC requested an administrative hearing pursuant to Section 120.57 concerning HRS’ decision to reject all bids and to withdraw the request for proposal. HRS denied the requests and characterized them as attempts to compel HRS to contract with the petitioners. HRS asserted that its decision was distinguishable from the cases relied upon by the petitioners because in this case there was an agency decision not to contract at all, whereas in the cases relied upon, the agencies intended to go on with the contracting process and eventually award a bid. Since HRS contends that it cannot be compelled to contract with a private bidder where it has made a decision not to contract at all, HRS concluded that there was no reason to grant a hearing.

The first question to be addressed is that of standing. We have no difficulty in deciding that IMC and CAC were parties whose substantial interests were determined by the agency’s decision to reject all bids and to withdraw the RFP, holding as they did the first and second positions as successful bidders had the contract been awarded. Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978); United States Service Industries-Florida v. State, Department of Health and Rehabilitative Services, 385 So.2d 1147 (Fla. 1st DCA 1980).

The second question to be addressed is whether IMC and CAC are entitled to an administrative hearing concerning HRS’s decision to reject all bids and to withdraw the request for proposal. We hold that they are.

Appellants urge, and we agree, that HRS has by its words and actions here established two incipient policies. The first is that it may reject all bids and cancel its request for proposal even if the request fails to explicitly reserve the right to do so. Secondly, HRS had announced its commitment to the HMO concept. When HRS rejected all bids and withdrew the RFP, the result was not that money would not be spent and health care would not be provided; it was that health care would be provided by way of the explicitly disfavored fee-for-service method. Thus, HRS’s actions constituted a deviation from the non-rule policy. The discontinuance of prior policy is the equivalent of the adoption of incipient policy. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980).

As stated in State, Department of Administration, Division of Personnel v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1978):

To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to “expose and elucidate its reasons for discretionary action.”

HRS’s contention that since it cannot be compelled to contract with a private bidder where it has made a decision not to contract at all, there is no reason to grant a hearing, misses the point. Even if appellants do not have the right to compel HRS to contract, they do have a right under Chapter 120 to have a hearing wherein they have an opportunity to change the agency’s mind, Couch Construction Co., Inc. v. Department of Transportation, and to require HRS to defend its policy and give the basis for it. State, Department of Administration, etc. v. Harvey. This is particularly true where there are questions as to the integrity of the bidding process. Solar Energy Control, Inc. v. State of Florida, Department of Health and Rehabilitative Services, 377 So.2d 746 (Fla. 1st DCA 1980).

Accordingly, we reverse the order denying a request for an administrative hearing and remand for further proceedings consistent with this opinion. As for the contentions of IMC and CAC that this court should award the contract at issue to one of them, we decline to do so. Such a decision would be premature since the propriety of HRS’s actions in rejecting all bids and can-celling the RFP has yet to be considered on the merits.

REVERSED and REMANDED.

BOOTH and SHIVERS, JJ., concur.

      . HRS, in contrast with some other agencies, has not adopted a rule concerning the right to reject all bids. See, e.g., Rule 6C-18, 11, Florida Administrative Code (Board of Regents) and Rule 13A-1.02, Florida Administrative Code (Department of General Services).

      . We do not here decide whether HRS can be compelled to enter into a contract. But see, Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Nor do we here decide whether the award of a contract is the sole possible remedy. But see,

        Baxter's Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981).


text:
    Martin GONZALEZ, Appellant, v. SEA AIR TOWER RESTAURANT and Old Republic Insurance Company, Appellees.
    No. AI-52.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Rehearing Denied Aug. 16, 1982.
    Jonathan Gaines of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    John McMath, Miami, for appellees.
   SHIVERS, Judge.

Appellant appeals the order of the Deputy Commissioner denying his claim for wage loss and TPD benefits for the months of June and July, 1980, and for wage loss benefits for the period from January 5, 1981, to May 28, 1981.

The Deputy Commissioner’s denial of wage loss benefits for the January to May, 1981, period is supported by competent and substantial evidence, and we affirm. However, we reverse as to the denial of benefits for the months of June and July, 1980. The record is devoid of any evidence which suggests that claimant was employable during the months of June or July 1980. The testimony of Dr. Gervin, which represents the only medical evidence in the record concerning claimant’s ability to work before his operation, indicates that claimant was unable to work during the months of June and July, 1980. The Deputy Commissioner’s finding that claimant was observed inside the Sea Air Tower Restaurant giving orders to waitresses on April 30, 1981, is supported by competent and substantial evidence, but that finding does not provide competent and substantial evidence to support the finding that claimant was able to work during June and July of 1980. The denial of benefits for the months of June and July, 1980, is reversed.

We remand the case for a determination of benefits.

McCORD and JOANOS, JJ., concur.


author: WIGGINTON, Justice.

text:
    U. S. ELECTRIC COMPANY and Liberty Mutual Insurance Company, Appellants, v. SISK ELECTRIC SERVICE, INC. and St. Paul Insurance Company, Appellees.
    No. AI-291.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Rehearing Denied Aug. 24, 1982.

      Anthony J. Beisler, III, of Anthony J. Beisler, P. A., Fort Lauderdale, for appellants.
    Frank E. Maloney, Jr., of Frank E. Malo-ney, Jr., P. A., Macclenny, for appellees,
   WIGGINTON, Justice.

Appellants, U. S. Electric Company and Liberty Mutual Insurance Company, appeal from a workers’ compensation order in which they were directed to reimburse ap-pellees, Sisk Electric Service, Inc. and St. Paul Insurance Company, for all benefits paid by that employer/carrier. We reverse.

The pertinent facts are that claimant sustained two compensable injuries, one while in the employ of U. S. Electric Company, and the other while in the employ of Sisk Electric Service, Inc. Regarding the first injury, Liberty Mutual compensated the claimant at the rate of $130.00 per week. Shortly thereafter, claimant began working for Sisk Electric Service, Inc., where he was injured a second time. St. Paul voluntarily compensated claimant, pursuant to Section 440.42, Florida Statutes, at the rate of $190.00 per week, based on claimant’s higher average weekly wage, but sought reimbursement under that section against Liberty Mutual at the subsequent hearing brought by the claimant. At that hearing, although the deputy found the second injury compensable, he determined it to be merely an exacerbation of the first injury. Accordingly, the deputy ruled that appellants were solely responsible for the payment of “all benefits” due claimant and ordered reimbursement of those payments made by St. Paul under the provisions of Section 440.42(3). Appellants appealed that order and this Court affirmed.

Pursuant to the mandate, Liberty Mutual reimbursed St. Paul, but only at the rate of $130.00 per week as computed for the first accident. St. Paul subsequently filed a Motion to Determine Amount of Reimbursement and the deputy ruled that Liberty Mutual was required to reimburse St. Paul for the full amount of $190.00 per week. This appeal followed.

Appellants argue that the deputy’s order imposes liability in excess of the statutory liability and that appellees’ payments in excess of the statutory liability of appellant were gratuitous. We agree.

The deputy’s order was premised on this Court’s affirmance of his previous order but reflects his misinterpretation of that mandate. The previous order awarded reimbursement pursuant to Section 440.-42(3). That section, however, does not require all benefits voluntarily paid by one carrier must be reimbursed to it by the other carrier. Rather, the carrier bearing primary responsibility must make reimbursement for only that amount of compensation it owes to the claimant. Any compensation exceeding that amount voluntarily paid to the claimant by the second carrier is merely a gratuity. Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981).

The determinative factor in placing liability under Section 440.42(3) is whether the second compensable accident causes injury which is independent from or an exacerbation of that from the first compensa-ble accident. Section 440.42(3) thereafter allows the deputy to divide liability according to each carrier’s responsibility. Seasons From Sarasota v. O'Day, 379 So.2d 1024 (Fla. 1st DCA 1980); Rowe & Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1st DCA 1980).

In the instant case, although the deputy found that the claimant sustained a compensable accident, he also specifically found that the second accident “did not result in any additional permanent disability, permanent aggravation, or any treatment related to said accident,” and that appellants were solely responsible for payment of compensation. Accordingly, appellants were only responsible for compensation computed on the basis of the first injury, i.e. $130.00 weekly. That is the amount for which appellees are to be reimbursed.

This cause is therefore reversed and remanded for recalculation in accordance with this opinion.

BOOTH and WENTWORTH, JJ., concur.