author: DANIEL S. PEARSON, Judge. SCHWARTZ, Judge

text:
    MIDLAND INSURANCE COMPANY and GENWAY, Inc., Appellants, v. Suzanne HOCHBERG, in her capacity as Personal Representative of the Estate of Murray Hochberg, Deceased, Appellee.
    No. 80-696.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 9, 1981.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellants.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The facts are undisputed. Murray Hoch-berg was killed when the car he was driving collided with a car driven by one Cusano, an uninsured motorist. Cusano’s negligence was the sole legal cause of Hochberg’s death.

The vehicle driven by Hochberg was leased by Genway, Inc. to Gem Cabinet Company, Hochberg’s employer. The term of the lease was twenty-six months. As required by the lease, the lessor, Genway, provided liability insurance of $1,000,000 covering itself, the lessee and any person, such as Hochberg, authorized to drive the vehicle. In the insurance policy, obtained from Midland Insurance Company, as well as in a certificate of a master policy issued by Midland, the lessee, Gem Cabinet, was designated a named insured. An endorsement to the policy shows that only Genway, the lessor, rejected uninsured motorist coverage.

Midland properly concedes that by virtue of Section 627.727(1), Florida Statutes (1977), Genway’s rejection of uninsured motorist coverage was ineffective, since the exclusive privilege to reject uninsured motorist coverage was vested in the lessee. That statute, in pertinent part, provides:

“[Wjhen a vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage.” (emphasis supplied).

Midland contends, however, that (1) the lessor’s abortive rejection of this coverage was, ipso facto, a selection of the lowest permissible limit of uninsured motorist coverage under Midland’s rating plan, that is, $10,000; and (2) the lessor’s right to select such a limit was unaffected by the fact that only the lessee had the right to reject uninsured motorist coverage. In support of this contention, it relies on Section 627.727(2), Florida Statutes (1977), which says, in pertinent part:

“The limits of uninsured motorist coverage shall be not less than the limits of bodily injury [protection] ... or such lower limit complying with the company’s rating plan as may be selected by the named insured, ...” (emphasis supplied).

We only address Midland’s second contention, since if, as we now hold, the lessor had no right to select a lower limit of uninsured motorist coverage, we need not reach the question of whether a rejection which is a nullity under the statute is transferred into a selection of the lowest limits of coverage.

The exclusive privilege to reject uninsured motorist coverage given to a long-term lessee of a vehicle who is a named insured is an exclusive privilege, not only to reject such coverage entirely, but, as well, to reject it in part by opting for lesser limits. The right given “the named insured” in Section 627.727(2) to select a lower limit of uninsured motorist coverage is not a right which may be exercised by a lessor who does not have the “privilege to reject” under subsection (1) of Section 627.-727. It is apparent that as between the lessor and lessee of a long-term vehicle lease agreement, it is the lessee who has the only substantial interest in uninsured motorist coverage, and obvious that the legislature recognized that interest when, in Section 627.727(1), it vested in the long-term lessee who is a named insured the exclusive privilege to reject uninsured motorist coverage. To accept Midland’s argument that the legislature intended by Section 627.727(2) to repose in a long-term lessor the right to select the lowest permissible uninsured motorist coverage limits is to ascribe to the legislature an intent to effectively eviscerate the exclusive privilege of rejection. This we will not do.

Mattingly v. Liberty Mutual Insurance Company, 363 So.2d 147 (Fla. 4th DCA 1978), does not, as Midland suggests, dictate a different result. In that case, Mrs. Mat-tingly, who had leased a vehicle from Terry Auto Leasing, Inc., which in turn had leased the vehicle from Ford Motor Company, was held not to be entitled to the full benefits of uninsured motorist coverage because of this sublease arrangement under which she “. . . was neither a named insured nor was she listed on a certificate of a master policy issued to her lessor.” Unlike the lessee in the present case, Mrs. Mattingly did not “have the legislatively created privilege to reject uninsured motorist coverage.” Where, however, one has the legislatively created exclusive privilege to reject, one has the corresponding exclusive privilege to select.

Accordingly, we affirm the trial court’s partial summary judgment entered in favor of the personal representative of Mr. Hoch-berg’s estate which adjudged that the applicable uninsured motorist coverage limits are the equal of the bodily injury liability insurance provided in the policy, that is, $1,000,000.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

While I do not disagree with the court’s opinion, I would base the decision to affirm upon a narrower ground. In my view, the terms of the policy involved in this case provided only for a total rejection of uninsured motorist coverage, which was aborted by Section 627.727(1), Florida Statutes (1977). In no sense did Genway attempt to “select” lower limits pursuant to Section 627.727(2), Florida Statutes (1977). I would therefore not reach the question of whether a long-term lessor has the statutory authority to do so.

      . Our distinguishing of Mattingly is not to be taken as an expression of agreement with the result reached in Mattingly. We do not have before us the case of a person who is not a named insured, and we need not choose between the Mattingly majority and Judge An-stead’s dissent. If Mattingly is read to mean that had Mrs. Mattingly been a named insured, Ford would not have had the privilege of selecting uninsured motorist coverage in a lesser amount, it is perfectly compatible with the result we reach. We believe this to be the correct reading of Mattingly, since if the case meant to declare that Ford had an unequivocal right to select lesser coverage under Section 627.727(2), whether or not Mrs. Mattingly was a named insured would be irrelevant and, presumably, not the subject of discussion in the opinion. But if Mattingly does stand for the proposition that Ford had the right to select even were Mrs. Mattingly a named insured, then we choose not to follow it.


source: Caselaw Access Project

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

license: Public Domain

text:
    Robert M. GIBSON and Martha J. Gibson, his wife, Appellants, v. Sam D. BUICE and Edna L. Buice, husband and wife, and Robert L. Cheezem and Kathleen M. Cheezem, husband and wife, Appellees.
    No. 80-573.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Rehearing Denied March 4, 1981.

      Gene H. Auvil of McGee & Auvil, P. A., Brooksville, for appellants.
    Joseph E. Johnston, Jr., of the Law Offices of Joseph E. Johnston, Jr., Brooksville, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a judgment granting appellees a prescriptive easement over the east twenty feet of land owned by the appellants.

We find that appellees failed to establish their right to the easement and reverse.

To establish an easement by prescription, a claimant must prove actual, continuous and uninterrupted use for the prescribed period of twenty years. Downing v. Bird, 100 So.2d 57 (Fla.1958); Hunt Land Holding Co. v. Schramm, 121 So.2d 697 (Fla. 2d DCA 1960). The use must be adverse under a claim of right with the knowledge of the owner or must be so open, notorious, visible and uninterrupted that knowledge of the use is imputed to the owner. Downing v. Bird; Guerard v. Roper, 385 So.2d 718 (Fla. 5th DCA 1980). Further, the use must be inconsistent with the owner’s use and enjoyment and must not be a permissive use. Any use in common with the owner is presumed to be subordinate to the owner’s title and with the owner’s permission. The burden is on the claimant to show that the use is adverse. City of Daytona Beach v. Tona Rama, Inc., 294 So.2d 73 (Fla.1974); Deseret Ranches of Florida, Inc. v. Bowman, 389 So.2d 1072 (Fla. 5th DCA 1980).

A prescriptive right-of-way cannot be acquired to pass over a tract of land generally but must be confined to a reasonably definite line and limited to the extent of the actual use. Sunnybrook Groves, Inc. v. Hicks, 113 So.2d 239 (Fla. 2d DCA 1959). Thus, to claim a prescriptive easement, one must allege and prove its route, termini and width. Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976).

The amended complaint in the case before us recites that appellees are the owners of certain real property all in Section 35 and that appellants are the owners of lands all in Section 34. The survey furnished by appellees shows that except for a small portion of the road, the existing dirt road, which is the basis for the easement, lies east of Section 34 and therefore not on appellants’ property. Even if appellees had established the other elements necessary for a prescriptive easement, they failed to show appellants’ ownership of the land traversed by the entire road by clear and positive proof. Furthermore, the portion of the existing dirt road shown by the survey to be on appellants’ property appears to have been developed or used only when the original road was impassable due to heavy rains.

REVERSED.

COBB and COWART, JJ., concur.


author: PER CURIAM.

text:
    OKALOOSA COUNTY GAS DISTRICT et al., Appellants, v. Christopher MANDEL, Appellee.
    No. TT-383.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Larry Hill of Sherrill, Moore & Hill, Pensacola, for appellants.
    John L. Myrick of Myrick & McKenzie, P. A., Pensacola, for appellee.
   PER CURIAM.

The employer and carrier appeal the award of attorney’s fees claiming it to be excessive and urge error concerning an award of interest on the amount dating from 21 days after a joint stipulation was approved by order. We reverse only the second point.

On August 21, 1978 the deputy originally awarded a fee of $10,000, deviating only slightly from the statutory formula set forth in Section 440.34, Florida Statutes (1977) because there was nothing particularly unique or novel about the issues in the case and attorney time should not have exceeded 40 hours. (The attorney estimated time spent of 61.76 hours). The Industrial Relations Commission, approving the deputy’s factual findings, reversed, holding that the award was plainly excessive. On remand, the deputy reduced the award to $7,950.00. Under the sliding scale provisions of the statute an award would initially have been set at $11,025.00.

In affirming the first point, we have considered the percentage fee schedule and Lee Engineering factors codified in Section 440.34, effective here after the accident date, but before the time of the deputy’s award. The statute in this regard is not the type of radical or substantive change which would preclude retrospective application. See Florida International University v. Phillips, IRC Order 2-3902 (1979). “The amendment, in effect, merely amplified the case law and altered in certain respects the burden of proof on fee issues by specifying grounds for departure from the stated schedule.” Lawrence Nali Construction Co. v. Price, IRC Order 2-3909 (1979).

In the 1977 statute, the legislature has approved a modest contingent percentage formula as the starting point for determining a reasonable fee. Under the statutory scheme, the deputy must then consider factors (l)(a)-(h). Using his discretionary judgment, the deputy commissioner may increase or decrease the fee award. See Southern Bell Telephone & Telegraph v. Rollins, 390 So.2d 93 (Fla. 1st DCA 1980); East Coast Tire Co. v. Denmark, 381 So.2d 336, 339-340 (Fla. 1st DCA 1980). Prior to this statutory enactment, it was considered by the courts that the nature of workers’ compensation law was such that the contingent percentage basis was not appropriate. Lee Engineering and Construction Co., 209 So.2d at 458. The validity of this view remains because the legislature also requires consideration of the Lee Engineering factors in addition to the new contingency fee provisions. But because the new statute emphasizes a contingent fee formula as a starting point, we think there may be instances when an award, arguably excessive under Lee Engineering, may now be approved as set reasonably within the deputy’s broad range of discretion. Although under all the circumstances the award here appears high, especially considering its per hour rate, we cannot say that the deputy abused his discretion in resetting the award at $7,950, a reduction of the statutory award by about 27%. See United States Steel Corp. v. Greene, 353 So.2d 86, n.9 (Fla.1977) (Court comments it has previously condemned the practice of computing fee awards as a percentage of the ultimate benefits awarded to the claimant, but subsequently notes that the newly enacted sliding scale guidelines may eliminate the need for remands in future cases). But see Florida International University, supra at p. 7. We conclude that to judge the excessiveness of the award solely on the basis of its per hour rate would be to improperly ignore the new sliding scale provisions in the statute. Accordingly, Point I is affirmed.

As to the second point, in a workers’ compensation case, “interest should run on attorney’s fees from the time they are awarded by deputies.” Stone v. Jeffres, 208 So.2d 827 at 830 (Fla.1968). Attorney’s fees bear interest from the date of the award by a deputy commissioner unless the award is reversed on appeal. Mander v. Concreform Company, 212 So.2d 631 (Fla. 1968). In a joint stipulation the parties agreed here that the deputy would retain jurisdiction for the purpose of determining a reasonable attorney’s fee. We do not think this stipulation, approved by the deputy before the fee hearing, modifies the above rules. In these circumstances, the fee payment was due and payable only when the deputy determined a reasonable fee. Therefore, the interest in this case should run from the date of January 15, 1980, the date of the appealed order.

Affirmed in part and reversed in part.

McCORD, SHIVERS and JOANOS, JJ., concur.

      . The statute in relevant part states:
      440.34
      (1) [TJhere shall, in addition to the award for compensation, be awarded a reasonable attorney’s fee of 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured, and 15 percent of the remaining amount of the benefits secured, to be approved by the judge of industrial claims, which fee may be paid direct to the attorney for the claimant in a lump sum. However, the judge of industrial claims shall consider the following factors in each case and may increase or decrease the attorney’s fee if in his judgment the circumstances of the particular case warrant such action:
      (a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.

        (c) The fee customarily charged in the locality for similar legal services.
      (d) The amount involved in the controversy and the benefits resulting to the claimant.
      (e) The time limitation imposed by the claimant or the circumstances.
      (f) The nature and length of the professional relationship with the claimant.
      (g) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (h) The contingency or certainty of a fee.

      . Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla.1968).


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    John R. LORNITIS and Michael Lornitis, Appellants, v. STATE of Florida, Appellee.
    No. TT-4.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.

      Martin S. Page of Darby, Peele, Page & Bowdoin, Lake City, for appellants.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

John and Michael Lornitis urge that their convictions, John for possession of more than 100 pounds of marijuana with intent to sell or deliver, and Michael for aiding and abetting his brother, were vitiated by the receipt in evidence of incriminating responses improperly elicited from them by deputy sheriff Jones in violation of Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 723 (1966), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). We agree, finding that the brothers’ identification of their luggage in the rear of the truck in which they were traveling was incriminating evidence improperly elicited by deputy Jones after the suspects indicated to him their desire not to be interrogated. We reverse the convictions and remand the defendants for a new trial.

Accompanied by brother Michael as his passenger, John Lornitis drove an Illinois-licensed pickup truck with camper top past a Florida agricultural inspection station in Hamilton County without stopping for the required inspection. Section 570.15, Florida Statutes (1979). An inspector pursued the truck, looked in the rear of the cargo area with John’s consent, smelled marijuana, arrested John for not having stopped for inspection, and returned the truck and passengers to the station. A later search of the cargo area, by warrant, produced 782 pounds of marijuana which was baled, wrapped in burlap or plastic, and covered by a quilt.

After arresting the suspects and advising them of their Miranda rights, deputy sheriff Jones read aloud and asked each of them to sign an “acknowledgment and waiver of rights” form, stating:

The above statement of my rights has been read and explained to me and I fully understand what my rights are. I am ready and willing to answer questions or to make a statement without first consulting with a lawyer or without having a lawyer present during questioning. In waiving my right to remain silent, I wish to state that no promises or threats have been made to me and no persuasion or coercion has been used against me.

The Lornitis brothers refused to sign the waiver forms. Deputy Jones then instructed each of them to identify any personal belongings in the cargo area of the truck. John Lornitis testified at the suppression hearing that when he asked deputy Jones what would happen to personal belongings not claimed, Jones said they would be “disposed of.” John understood that to mean those items would be “throwed away or something.” Deputy Jones did not recall making such a statement. Both brothers then pointed out their luggage in the midst of the marijuana bales. When Michael Lor-nitis pointed out his suitcase, deputy Jones asked him how it had gotten there, and the suspect answered that he did not know. Both Lornitis brothers denied knowledge of how the marijuana bales came to be in the rear of the truck.

Over objection and despite motions for mistrial, the prosecutor was permitted to adduce the incriminating evidence that the Lornitis brothers identified as their own the luggage which was found amidst the marijuana bales in the closed cargo area of the truck, and that Michael Lornitis claimed not to know how his luggage got there. The propriety of the convictions turns on three major issues: (1) By refusing to sign the waiver forms, did the suspects sufficiently indicate a desire not to be questioned? (2) If so, did deputy Jones nevertheless “interrogate” the suspects by instructing them to identify their personal effects in the back of the truck? (3) If so, and if receipt of the evidence was on that account improper, should the convictions nevertheless be affirmed on harmless error principles because of other evidence against these defendants?

Miranda explains how police should govern themselves when questioning suspects in custody:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point , he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Emphasis added, 384 U.S. at 473-74, 86 S.Ct. at 1627-28,16 L.Ed.2d at 723.)

By refusing to sign the waiver forms, did the suspects indicate “in any manner” to deputy Jones that they desired to remain silent and did not wish to be interrogated, signalling that “interrogation must cease”? Certainly so. A refusal to sign a form such as was tendered here is not in all events a conclusive indication that the suspect wishes to remain silent, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), but in the circumstances of this case the import of the suspects’ refusal to sign was that they chose not to be interrogated. In Butler the suspect said, “I will talk with you but I am not signing any form.” Here there was no such spoken consent. The words of the waiver form itself, reciting that the signer was “ready and willing to answer questions or to make a statement without first consulting with a lawyer,” are cogent evidence of the privilege asserted by the refusal to sign. Moreover, deputy Jones had no doubt about the significance of his suspects’ refusal to sign:

Q. Did you understand by [John Lorni-tis’] refusal to sign the acknowledgment and waiver of rights that he did not wish to be questioned any further?
A. Yes sir.
Q. Each one said no, I am not going to sign this thing?
A. That’s correct.
Q. Upon them doing that you wouldn’t say okay boys, what do you know about it, would you?
A. No sir.
Q. Because you understand they didn’t want to be questioned anymore?
A. Right.

Deputy Jones understood that the Lorni-tis brothers did not wish to be interrogated. Evidently the deputy did not consider that he “interrogated” the suspects by instructing them to identify any personal belongings in the rear of the truck. He testified:

Q. The defendants did not desire to be questioned any further?
A. Well, I wasn’t really questioning, I just asked them about personal effects.
Q. What was [the] purpose of asking?
A. Identifying what was theirs in the rear of the vehicle.

Despite deputy Jones’ disclaimer that “I wasn’t really questioning,” the circumstances persuasively suggest that deputy Jones understood and expected that compliance with his instructions, like responses to conventional interrogation, would produce incriminating evidence. Significantly, deputy Jones did not miss the opportunity of asking Michael Lornitis how his luggage “got there” amidst the marijuana:

[By Jones] [H]e identified his personal items in the rear of the vehicle and stated he didn’t know how they got back there. [By Michael Lornitis] He asked me if the suitcase there was mine, I said yes. Then he asked me how it got there, I told him I didn’t know.

Though it may be charitably debated whether deputy Jones knew and intended that his instructions operate as “interrogation” concerning the suspects’ knowledge of marijuana bales in the rear of the truck, the deputy’s perceptions and intentions are not determinative of the issue. Rhode Island v. Innis, supra, 441 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307 (1980) established an objective rather than a subjective standard to define when interrogation occurs:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

While Innis recognizes that the officer’s subjective intent may tend to prove the objective effect of his words or actions, the prescribed inquiry is whether the officer should have known that his words or actions were “reasonably likely to elicit incriminating responses.” When deputy Jones instructed the Lornitis brothers to identify any personal items in the cargo area, he must be held to have anticipated that, if they complied, the suspects would be admitting ownership of articles which had been placed in the very presence of the hidden marijuana bales, thus belying the suspects’ protests that they knew nothing of the marijuana cache. This of course was an incriminating response, recognized as such by the prosecutor’s decision to adduce evidence of it; and the response was precisely that which the improper interrogation was calculated to produce.

There was no evidence whatever that deputy Jones’ instructions to the suspects was part of a booking or inventory process routinely followed by the sheriff’s office; nor, even if that were the case, could the deputy’s instructions or questions be equated with “neutral” non-investigative inquiries such as for name, address, date of birth, and marital status, which are permitted in booking and other administrative processes. Compare Williams v. United States, 391 F.2d 221 (5th Cir. 1968), cert. den., 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968); United States v. Menichino, 497 F.2d 935 (5th Cir. 1974); and see, generally, Kamisar, Brewer v. Williams, Massiah, and Miranda: What is Interrogation? When Does It Matter?, 67 Geo.L.J. 1, 7 (1978).

The State argues that the defendants freely and voluntarily complied with the deputy’s instruction and thereby waived the right of interrogation-free silence which they had just asserted, and were understood to have asserted, by refusing to sign the waiver form. We reject that view because it exploits the suspects’ failure to recognize, for what it was, the subtle form of interrogation to which they were subjected. The suspects conceived, as reasonably they might considering that deputy Jones apparently acquiesced in their refusal to be questioned, either that complying with his instructions had no evidentiary significance or that complying, being administratively necessary (in the opinion of an officer who evidently respected their election not to talk), was for that reason privileged against use as evidence. Michael Lornitis testified:

Q. I think you said you understood your rights, what did you understand about talking? Did you understand anything you said could be used against you?
A. Yes sir.
Q. What did you understand by anything you said?
A. Well, I figured it meant by direct questioning by the deputy.
Q. Did you understand that ... asking you to identify your personal effects would be constituted or would constitute something that could be used against you?
A. No sir, not at all.

The validity of a waiver “depends on it being voluntarily, knowingly, and intelligently made.” Franklin v. State, 324 So.2d 187, 189 (Fla. 1st DCA 1975). Without regard for whether the suspects “voluntarily” gave the incriminating response relied on by the State, or instead simply acquiesced in the apparent authority of deputy Jones to instruct them concerning the identification of their belongings, the suspects’ response cannot have constituted a knowing and intelligent waiver of their right, already reserved by them moments before, not to be interrogated.

We conclude, therefore, that the identification evidence was the result of improper interrogation and was inadmissible.

Finally, we have considered and rejected the possibility of affirming these convictions on harmless error grounds. We readily assume that the convictions may survive if the constitutional error was in fact harmless, but harmless error cannot be found under the standard stated in Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977):

Reviewing courts may not regard constitutional error as harmless if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

We think, as did the prosecutor in preparing the trial testimony of deputy Jones, that there is more than “a reasonable possibility” that Jones’ testimony concerning the defendants’ luggage identification would and did contribute to their convictions. There was other incriminating evidence: a trace of marijuana found in a paper bag on the floorboard of the passengers’ cab, and an operable window between the cab and the cargo area, which however was found closed and curtained from the cargo side. The record also reveals an admission by John Lornitis that he owned the truck; but that admission to both the agricultural inspector and deputy Jones was not adduced before the jury, and the admission to deputy Jones may have been elicited by him during the same flawed interrogation we have discussed. Disregarding the possible effect of the ownership admission by John Lornitis, the admissibility of which may be determined by the trial court on a new and clearer record in light of our holding here, viable hypotheses of innocence survived the State’s proof, and the error we have found contributed substantially to the convictions, which therefore are

REVERSED. The cases are REMANDED for a new trial.

SHAW, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I would affirm the judgments of conviction below. The jury correctly viewed the overwhelming evidence of defendants’ possession of 15 bales of marijuana and rejected as incredible the defense that defendants were not aware of its existence. The trial court correctly ruled that evidence of defendants’ identification of their luggage among the bails of marijuana was not in violation of the right to remain silent.

      . Innis at fn. 7:
      This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.

      . If we correctly decided Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981), the Florida Supreme Court applies a different rule, reversing “without consideration of the doctrine of harmless error,” when the issue is the propriety of comment on the accused’s custodial silence instead of the admissibility of his custodial statements elicited in violation of Miranda. Bennett v. State, 316 So.2d 41, 44 (Fla. 1975); Shannon v. State, 335 So.2d 5 (Fla. 1976).


author: ROBERT P. SMITH, Jr., Judge.

text:
    Genovevo Rolando RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. TT-66.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied March 18, 1981.
    Carlton P. Maddox, of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Appealing from judgments and sentences for marijuana marketing offenses, Ramos urges that evidence taken against him by telephone wiretap should have been suppressed on the ground that the affidavit on which the intercept order was issued was insufficient to show probable cause to believe Ramos was engaged in such offenses by use of the specified telephone. On review of the lengthy affidavit, disregarding recited evidence which was based on another intercept, since found in other proceedings to be unwarranted, we find that the affidavit as a whole contains sufficient competent material, particularly in the affi-ant’s eye-witness recitals of paragraph E, to support the intercept order.

AFFIRMED.

MILLS, C. J., and WENTWORTH, J., concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. John ANDERSON, Zelindo Biagianti and Dawn Biagianti, Appellees.
    No. 79-1968.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Rehearing Denied March 20, 1981.
    Spencer & Taylor and W. Thomas Spencer, Miami, for appellant.
    Frank A. Howard, Jr. and Phyllis 0. Douglas, Krupnick & Campbell and Richard A. Barnett, Ft. Lauderdale, for appellees.
    Before HUBBART, C. J., and HENDRY and PEARSON, DANIEL, JJ.
   PER CURIAM.

The final declaratory decree rendered in this cause is reversed and the cause remanded to the trial court with directions to enter a final decree in favor of the appellant Allstate Insurance Company finding no coverage under the subject insurance policy for the appellee John Anderson based on the authority of General Insurance Company of America v. Reid, 216 So.2d 41 (Fla. 4th DCA 1968), cert. denied, 222 So.2d 752 (Fla.1969), which, in our view, directly controls this case on the insurance coverage issue. See also McCrae v. Snelling, 303 So.2d 670, 672 n.4 (Fla. 4th DCA 1974); Allison v. Imperial Casualty & Indemnity Co., 222 So.2d 254 (Fla. 4th DCA 1969). We have carefully and laboriously examined the authorities contained in the appellee’s brief, as well as conducted extensive independent research, but are nonetheless unpersuaded that an ambiguity existed in the subject insurance policy sufficient to confer the requisite insurance coverage upon the ap-pellee Anderson.

Reversed and remanded.


text:
    Joan Adkins FICKLE, etc., Appellant, v. Milton R. ADKINS, Appellee.
    Nos. 79-2168, 79-2196.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Lane, Mitchell & Harris and Byron B. Mathews, Jr. and Charles George, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Michael Winer, Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We reverse in its entirety the trial court’s Order Disposing of All Pending Matters entered on October 23,1979, upon a holding that this order was entered in derogation of the due process rights of the parties in that (1) it determined matters not noticed for hearing and not the subject of appropriate pleadings, Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Barreiro v. Barreiro, 377 So.2d 999 (Fla.3d DCA 1979); Matthews v. Matthews, 376 So.2d 484 (Fla.3d DCA 1979); (2) to the limited extent that it determined matters noticed for hearing and properly before the court, it was entered without providing the parties a full and fair opportunity to be heard and present evidence, Christiansen v. Christiansen, 354 So.2d 1254 (Fla. 4th DCA 1978); Pelle v. Diners Club, 287 So.2d 737 (Fla.3d DCA 1974). We reject Adkins’ contention that the trial court’s order was agreed to by Fickle, since we will not imply such an agreement from a party’s silence in response to a court’s suggestion or, a fortiori, a party’s acquiescence to the court’s portent. Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla.1978); Walter E. Heller & Company, Southeast v. Pointe Sanibel Development Corporation, 392 So.2d 306 (Fla.3d DCA 1980); Arnold v. Arnold, 292 So.2d 384 (Fla.3d DCA 1974).

Reversed and remanded.

      . All parties to this appeal seek reversal of this order in whole or in part. The law firm of Sinclair, Louis, Siegel & Heath is a party to this appeal. See Fickle v. Adkins, 385 So.2d 1141 (Fla.3d DCA 1980). The firm received no notice of the hearing at all. It was entitled to notice because at the time of the hearing, a charging lien, previously ordered in favor of the discharged firm, remained unchallenged.

      . The court told Mrs. Fickle: “If you fool around like that I am going to have a custody issue here. You don’t want that to happen. I am trying to tell you something.”


text:
    Alan STOLER, D.D.S., Appellant, v. Martin LEVINSON, P.A., Appellee.
    No. 80-337.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Rehearing Denied March 13, 1981.
    George, Hartz & McNary and Charles Michael Hartz, Amy Shield Levine, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to order a new trial in this cause solely as to the plaintiff’s malicious prosecution and abuse of process claims. The trial court, in our view, committed reversible error in granting the defendant’s motion for directed verdict with respect to these claims. We cannot say, as the trial court concluded, that as a matter of law no damages were proven at trial on these claims. Although we agree that the proof of business losses in this case was, as presented, somewhat vague, we are nonetheless convinced that the other items of damages were sufficiently shown as to attorney fee costs, nominal damages and punitive damages so as to send this case to the jury. Adler v. Segal, 108 So.2d 773 (Fla.3d DCA), cert. denied, 113 So.2d 834 (Fla.1959); Burchell v. Bechert, 356 So.2d 377 (Fla. 4th DCA), cert. denied, 367 So.2d 1122 (Fla.1978); compare Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980).

The trial court, however, was eminently correct in granting the defendant’s motion for directed verdict with respect to the negligence claim in this action. In our view, no prima facie case of negligence was established herein.

Reversed and remanded for a new trial as to appellant’s malicious prosecution and abuse of process claims.


author: DANIEL S. PEARSON, Judge.

text:
    Charles A. KOHLER and Kenneth Poteet, Appellants, v. PROPRIETORS INSURANCE COMPANY, Appellee.
    No. 80-542.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Rehearing Denied March 20, 1981.
    Manners, Amoon, Whatley & Tucker and Sidney S. Margrey, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Owen Ricker, Jr., Miami, for appellee.
    Edna L. Caruso, West Palm Beach, McClure & Gay, Fort Lauderdale, for Leonard A. Stiller and Bonnie Stiller as amicus curiae.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the summary final judgment in favor of Proprietors Insurance Company, issuers of an aircraft hull and liability policy. The policy, under which Kohler and Poteet, co-owners of the aircraft, claimed a loss when the aircraft was taken by one Stiller, excluded from coverage any operation of the aircraft “for which a charge is made.” It is undisputed that Kohler and Poteet required Stiller to make an hourly payment of $125.00 for use of the plane. The agreed-upon payment was a prerequisite to the use of the plane, not a gratuitous reimbursement of flight expenses, compare Pacific Indemnity Company v. Acel Delivery Services, Inc., 485 F.2d 1169 (5th Cir. 1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1979), with Houston Fire & Casualty Insurance Co. v. Ivens, 338 F.2d 452 (5th Cir. 1964), and Fidelity & Casualty Co. of New York v. Marion L. Crist & Associates, Inc., 248 Ark. 1010, 455 S.W.2d 904 (1970), and, therefore, a charge within the language of the policy. That the required charge was to be paid to a third-party charitable organization does not affect the result. See Restatement of Contracts § 75(d)(2) (1932); Guaclides v. Kruse, 67 N.J.Super. 348, 170 A.2d 488 (1961).

In light of this disposition, we find it unnecessary to address whether the loss claimed was otherwise excluded from coverage.

Affirmed.

      . Stiller went south with the plane: according to Kohler and Poteet, figuratively, see H. Went-worth and S. Flaxner, Dictionary of American Slang (2d Supp.Ed.1975), p. 505; according to Stiller, literally (the plane was seized in Barranquilla by Colombian authorities).


text:
    Anthony JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-116.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Rehearing Denied March 20, 1981.
    Mark King Leban, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    CAPTAIN PERRY’S SEA CHEST, INC., a Florida Corporation and Ernest Goodman and Sylvia Goodman, his wife, Appellants, v. Robert R. FRANK, Personal Representative of the Estate of Anne Frank Teitch, Deceased, a/k/a Anne F. Teitch, and Jabe, Inc., a Florida corporation, Appellees. Robert R. FRANK, as Personal Representative of the Estate of Anne Frank Teitch, Deceased, Appellant, v. CAPTAIN PERRY’S SEA CHEST, INC., a Florida Corporation, etc., et al., Appellees.
    Nos. 79-1633, 79-1656.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 19, 1981.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Ivan S. Benjamin, P. A., Miami, for appellants/cross-appellees.
    Peter Strelkow of Frank, Strelkow & Gay, North Bay Village, for appel-lee/cross-appellant Robert Frank.
   PER CURIAM.

The summary final judgment entered by the trial court is hereby affirmed except that the provision in the judgment ordering a stay of execution thereon is reversed.

ANSTEAD and MOORE, JJ., concur.

GLICKSTEIN, J., dissents without opinion.


author: HURLEY, Judge.

text:
    Mary Louise BAKER, Appellant, v. Ralph E. BAKER, Appellee.
    Nos. 79-1968, 80-317.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 20, 1981.

      Edna L. Caruso, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellee.
   HURLEY, Judge.

Appellant/former wife appeals the denial of a motion for relief from judgment wherein she asked the court to set aside a property settlement agreement. We reverse.

On March 3, 1978, in anticipation of divorce, Mr. and Mrs. Baker executed a property settlement agreement. Shortly thereafter, on March 30, 1978, the parties were divorced and the settlement agreement was incorporated by reference into the final judgment of dissolution. On January 22, 1979, Mrs. Baker filed a motion for relief from judgment, contending that portions of the final judgment of dissolution should be vacated because the settlement agreement had been obtained through fraud or overreaching. The trial court empaneled an advisory jury which returned a verdict for appellee/former husband. The court adopted the jury’s findings and denied the motion for relief from judgment. This appeal followed.

Appellant has cited several errors in jury instructions, but we have not considered these matters for trial counsel either failed to object, or in one instance, expressly acquiesced in the instruction. Thus, appellate review of these matters is foreclosed. Safeco Insurance Co. of America v. Albriza, 365 So.2d 804 (Fla. 4th DCA 1978); Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977). Our approach to this case has been guided by the principle set forth in Miller v. Miller, 149 Fla. 722, 7 So.2d 9 (Fla.1942), Underwood v. Underwood, 64 So.2d 281 (Fla.1953), and Zakoor v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970), that property settlement agreements which relate to alimony or to an adjustment of the property rights of the parties made by husband and wife in good faith and free from fraud, deceit, coercion, or trickery, though made in contemplation of divorce, should be upheld by the courts. We are also mindful that it is not within the province of an appellate court to substitute its judgment for that of the trier of fact. On the contrary, the findings of the trial court come to this court clothed with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Kirk v. Edinger, 380 So.2d 1336 (Fla. 5th DCA 1980); Zutell v. Sunrise Oldsmobile, Inc., 252 So.2d 822 (Fla. 1st DCA 1971).

To modify or set aside a property settlement agreement, it is incumbent upon the party seeking to abrogate the agreement to allege and prove fraud, duress, deceit, coercion or overreaching by the other party. Zedeck v. Zedeck, 334 So.2d 87 (Fla. 3d DCA 1976). Case law suggests two methods, one direct and one indirect. The direct method involves affirmative proof of fraud, misstatements, deceit, etc. The indirect method allows the party seeking to invalidate a property settlement agreement to prove that the agreement is unreasonable on its face. Thereupon, a presumption arises that the opposite party concealed his assets. This, in turn, shifts the burden of proof to the defending party to establish the validity of the agreement. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).

The case at bar illustrates the direct approach for here the former wife attacked the property settlement agreement by alleging that her former husband misrepresented and concealed his assets. Accordingly, we have not considered the question whether the property settlement is facially unreasonable, but have limited our inquiry to whether appellant/former wife established fraud and deceit, sufficient to vitiate the agreement, by uncontradicted testimony and evidence. In this regard, we wish to note the unusual evidentiary posture of the case. Although the former wife testified at length on direct and cross-examination, the former husband did not. He testified briefly about his May 14,1977 personal financial statement but did not contradict any of the wife’s assertions.

Turning to the evidence, Mrs. Baker testified that her husband led her to believe that his annual gross salary was $60,000, one-half of which had to be set aside for taxes. She conceded that her knowledge of family finances was sketchy since her husband paid most of the bills. Though she knew very little about the business aspects of his professional association, she was aware that her husband received a monthly check for $2,500. This was deposited into a cheeking account on which only Mr. Baker was authorized to draw funds and from which he gave her $400 per month for groceries and incidental expenses. To further underscore her lack of knowledge regarding family income, Mrs. Baker testified that it was her usual practice to sign the blank annual joint income tax return prior to its preparation. This practice was corroborated by the family accountant’s testimony.

At some point before signing the settlement agreement, Mrs. Baker learned that her husband actually received two monthly paychecks: one for $2,500 which was used for family expenses, and one for $3,000. Shortly thereafter, she confronted her husband with this information. According to Mrs. Baker, he responded by saying:

Louise, you don’t understand the corporate setup. The second check — who do you think pays the payments on that machinery in that office? I do. It’s in my name. So Radiology Associates pays me every month for that, and that is what that amount of money is for, that twenty-five. That does not enter into our private income. That $2,500, that is our personal income. (Tr.40). (Emphasis supplied.)

Again, we note that the foregoing testimony was uncontradicted. More importantly, it was shown to be inaccurate. Testimony revealed that the former husband is a radiologist and the sole shareholder of a professional association. His gross salary in 1976 was $126,476.00; it rose to $136,667.00 in 1977. On May 14,1977, Dr. Baker signed a personal financial statement setting his net worth at $475,000.00.

To test the accuracy of appellee’s statement that his second check from the professional association did “... not enter into our private income,” we need only look at the transactions of 1977. A tax return and an accountant’s testimony set Dr. Baker’s salary at $136,667.00. He paid $57,816 in taxes. Thus, the family’s personal income for 1977 was $78,851.00. From this sum, Dr. Baker drew monies (the second check) to repay loans for his x-ray equipment and office building. Significantly, both loans were in joint names. Thus, it was inaccurate to state that the monies represented by the second check were not part of the family’s income and to suggest further that the family had no interest in the equipment or the office. Both assets were purchased with monies from loans for which both parties are individually liable. Equally important, family income has been utilized to reduce the indebtedness. Thus, it would seem that the family has an interest in both assets.

The issue then is whether the foregoing representations by the husband were so misleading as to constitute fraud and deception sufficient to vitiate the property settlement agreement. We answer in the affirmative. While a marital relationship remains in a non-adversarial stance, each party has fiduciary-like responsibility to the other. As noted by the court in Del Vecchio v. Del Vecchio, supra, 143 So.2d at 21:

The relationship between the parties to an antenuptial [or postnuptial] agreement is one of mutual trust and confidence. Since they do not deal at arm’s length they must exercise a high degree of good faith and candor in all matters bearing upon the contract.

The fact that Mrs. Baker was unrepresented by counsel, only underscores the necessity for full compliance with the fiduciary responsibilities inherent in the marital relationship. See Fuller v. Fuller, 68 So.2d 177 (Fla.1953); Zakoor v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970).

Thus, we conclude from the uncontradict-ed testimony and evidence presented below that the property settlement agreement was so tainted with fraud and deception that it was an abuse of discretion to deny appellant’s motion for relief from judgment. Accordingly, we reverse with instructions to grant appellant’s motion for relief from judgment, to vacate and set aside those portions of the final judgment of dissolution which incorporate the property settlement agreement, to vacate and set aside the entire property settlement agreement, to permit the parties to replead and thereafter to conduct further proceedings in accord with the principles set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Reversed and remanded with instructions.

ANSTEAD, J., and WARREN, LAMAR, Associate Judges, concur.

      . “In weighing the fairness and reasonableness of the provision for the wife the courts will consider the relative situation of the parties, their respective ages, health and experience, their respective properties, their family ties and connection, the wife’s needs and such factors as tend to show whether the agreement was understandingly made.” Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962).

      . “A valid antenuptial [or postnuptial] agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband’s worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband’s property. The term ‘approximate’ is, for this purpose, held synonymous with ‘near’, ‘close to’ or ‘approaching’.” Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962).

      .The standards established in Del Vecchio as they apply to antenuptial agreements have been supplanted by § 732.702, Fla.Stat. (1975). In re Estate of Reed, 354 So.2d 864 (Fla. 1978). Yet they continue to apply to postnuptial agreements. Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974).


author: DOWNEY, Judge.

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Fred A. PRUESS, Appellee.
    Nos. 79-2220, 79-2462.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 19, 1981.

      Joseph C. Murphy, of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for appellant.
    Gilbert E. Theissen, of Walsh, Theissen & Boyd, P. A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

After being injured in an airplane accident appellee sued appellant, United States Fire Insurance Company, to recover as an insured under United’s policy covering the aircraft. From a final summary judgment in favor of appellee the insurance carrier perfected this appeal. We affirm.

There was no genuine issue of material fact involved in the trial court. The issue to be decided there and here is one of law. The facts as set forth in appellant’s brief are:

At that time the Appellee FRED PRUESS was flying in an AA1B Grumman TR-2 aircraft, serial # AA1B0270, registration # N99791 with William Adams. PRUESS was in the aircraft in order to provide a Federal Aviation Administration required checkout flight for Adams in order that Adams might secure his private pilot license. At that time, William Adams had rented the aircraft from BELLEARO, INC., [sic] and the aircraft was insured by a policy of Aviation Liability Insurance issued to BEL-LAERO by UNITED STATES FIRE INSURANCE COMPANY. Prior to the flight PRUESS had informed Adams that he reserved the right to take control of the aircraft at any time and that upon request Adams was to relinquish control of the aircraft to him immediately. Further, PRUESS at certain times did control the aircraft and in fact was operating and controlling the aircraft immediately prior to the accident upon which this suit is predicated.

Appellee sued United, claiming to be an insured under a policy of insurance issued by United to Bellaero, Inc., the named insured. United denied coverage on the grounds that appellee was not a person included within the definition of an insured because the policy contained what is known as a “Renter Pilot Exclusion” provision. Appellee moved for summary judgment supported by an affidavit which stated that appellee “did not rent from, sign any rental agreement with, or provide any remuneration as a result of any rental agreement to Bellaero, Inc. for the aircraft in question.” The error assigned'is not that there was an issue of fact involved, but that the trial court erred in deciding the legal question.

The policy in question was issued to Bel-laero, Inc., as the named insured. Paragraph III of the policy defined the term, insured, as:

Definition of “Insured.” The unqualified word “Insured” wherever used in this Policy ... includes not only the Named Insured but also any person while using or riding in the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the Named Insured.

Immediately following that definition of “insured” in Paragraph III the policy sets forth three exceptions to the definition as follows:

The provisions of this paragraph do not apply:
(a) ...
(b) ...
(c) to any person operating the aircraft under the terms of any rental agreement or training program which provides any remuneration to the Named Insured for the use of said aircraft.

Appellant contends that the provision of Paragraph III which includes in the term insured “any person while using or riding in the aircraft” is modified by the exclusion in subparagraph (c) which excludes from coverage any person operating the aircraft under the terms of any rental agreement providing remuneration to the named insured. Appellant argues that at the time of the accident appellee was operating the aircraft under the terms of the rental agreement signed by Adams which agreement did provide remuneration to the named insured, Bellaero, Inc.

Both parties are in agreement that the exclusion involved is a “renter pilot exclusion” clause. They disagree, however, on the intended effect of this provision; that is, who is excluded from coverage thereunder. We conclude that the renter pilot involved here is Adams, not appellee. Acceptance of appellant’s construction would place outside the realm of coverage all occupants of an airplane when the craft is being operated pursuant to a rental agreement which provides remuneration to the named insured.

It is a general rule of law that terms of an insurance policy must be construed to promote a reasonable, practical and sensible interpretation consistent with the intent of the parties. General Accident Fire and Life Assurance Corp. v. Liberty Mutual Insurance Co., 260 So.2d 249 (Fla. 4th DCA 1972). We hold the more reasonable interpretation of this policy, and in particular the exclusion contained therein, is that it covers any person while using or riding in the aircraft unless that person is operating the aircraft pursuant to a remunerative rental agreement between that person and the named insured. Therefore, a person who pays rent to the named insured for use of an airplane which he is operating is excluded from coverage — thus the characterization of the exclusion as a “renter pilot exclusion.”

Both parties have contended that the policy provisions in question are unambiguous, and the case was presented to us on that basis. We have treated the case as presented. However, if the terms employed were ambiguous, we would perforce construe the provision strictly against the insurer and in favor of coverage. Moore v. Connecticut General Life Insurance Company, 277 So.2d 839 (Fla. 3rd DCA 1973), cert. denied 291 So.2d 204 (Fla.1974).

Appellant finds comfort in two cases involving identical policy provisions. However, we find the cases inapposite due to differing factual situations. In both cases the claimant was a “pilot renter” and the operator of the plane at the time of the accident. Those courts thus held the claimant fell within the exclusion. Those facts do not pertain here.

In view of the foregoing, we affirm the judgment appealed from.

ANSTEAD and HURLEY, JJ., concur.

      . Melton v. Ranger Insurance Company, 515 S.W.2d 371 (Tex.Civ.App.1974); Buestad v. Ranger Insurance Company, 15 Wash.App. 754, 551 P.2d 1033 (1976).


text:
    Joseph COLLINS, individually, and Joseph Collins, as Administrator Ad Litem for the Estate of Helen K. Cummings, Appellant, v. Harry STOLL et ux., et al., Appellees.
    No. 80-663.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 24, 1981.
    William L. Ranaghan of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellant.
    Myron H. Burnstein of Salter, Yeslow & Burnstein, Hollywood, for appellees.
   PER CURIAM.

AFFIRMED. See Williamson v. Kirby, 379 So.2d 693 (Fla.2d DCA 1980).

LETTS, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    BROWARD COUNTY PARAPROFESSIONAL ASSOCIATION, Appellant, v. Harry McCOMB, Acting Superintendent of Schools and the School Board of Broward County, Florida, Appellees.
    No. 80-906.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 24, 1981.

      John J. Chamblee, Jr., of Law Offices of Frank, Chamblee & Kelly, P. A., Tampa, for appellant.
    Paul C. Heidmann of Muller, Mintz, Kornreich, Caldwell & Casey, P. A., Miami, for appellees.
   PER CURIAM.

This is an appeal from a final judgment which approves in part and disapproves in part an arbitration award entered to resolve a dispute between the parties over the terms of a collective bargaining agreement. We affirm.

The appellant first disputes the finding of the trial court that the arbitrator exceeded his authority in concluding that certain employees were covered by the collective bargaining agreement despite a final and binding determination by the Public Employees Relations Commission to the contrary. The appellant was also a party to the proceedings before the Commission, and, under the circumstances of this case, we believe bound by the holding of the Commission which was neither appealed or otherwise challenged.

The appellant also claims the trial court erred in failing to set aside a provision of the arbitrator’s award. An arbitrator’s award is entitled to a high degree of conclusiveness and should be disturbed only when a clear showing has been made that the arbitrator has exceeded the authority granted to him. Bankers & Shippers Insurance Company v. Gonzalez, 234 So.2d 693 (Fla. 3d DCA 1970). The provision of the award challenged by appellant involves the construction and application of a provision of the bargaining agreement. After examining the provision in question and the arbitrator’s findings we are unable to conclude that the arbitrator acted beyond his authority. We, therefore, affirm the trial court’s judgment on this issue.

Finally, the appellant disputes the trial court’s interpretation of another provision of the arbitrator’s award which determined that employees were entitled to include their lunchtime as a portion of the employee’s standard workday as defined in the bargaining agreement. The arbitrator found that the appellee had been erroneously computing the hourly rate of compensation of employees by excluding the one-half hour lunch period, and he directed that this computation be corrected to include the lunchtime as part of the workday. We are not certain as to the arbitrator’s intentions as to the effect of this computation on particular employees and apparently no effort was made to seek a clarification of his ruling. However, we are unable to conclude on the record before us that the trial court erred in failing to direct that all employees should receive additional compensation, beyond the amounts provided for in their annual contracts, for their lunchtime service. The appellee has conceded in its brief that some employees would be entitled to compensation but no specific employee's claim was presented to the arbitrator or the trial court.

Accordingly, the judgment of the trial court is affirmed.

LETTS, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Tommy W. WHITE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION et al., Appellees.
    No. 80-1309.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied March 25, 1981.

      Tommy White, pro se.
    Malcolm S. Greenfield, General Counsel, Tallahassee, for appellees.
   PER CURIAM.

Appellant was charged with and convicted of robbery. The trial court sentenced him on December 21, 1976, to a term of forty-five years and we affirmed.

Thereafter appellee caused a hearing examiner on September 27, 1979, to hold an initial interview with appellant pursuant to Section 947.172(1), Florida Statutes (1979). The examiner recommended on the Objective Parole Guidelines Worksheet that appellant’s presumptive parole release date be set at November 27, 1979. Appellee rejected the recommendation and set November 20, 1984, as appellant’s presumptive parole release date pursuant to Section 947.172(3), Florida Statutes (1979), Fla.Admin.Code Rule 23-19.03.

Following commission review, appellant filed a petition for writ of mandamus, attacking the following circumstance which appellee concluded as warranting thirty-six (36) additional months of incarceration:

The offender refused to cooperate in recovery of the stolen money although he had the capability to do so, and was offered sentencing concessions by the State if he would assist in the recovery.

Appellant argues that the foregoing aggravating circumstance violated his right to remain silent.

What appellant overlooks is Fla.Admin. Code Rule 23-19.03(l)(c)(l) which expressly provides that in decisions above the matrix time-frames contained in the Objective Parole Guidelines Worksheet, one of the reasons related to the Aggravating Offense Factor is the following:

The person has failed or refused to make restitution where he was able to do so.

The evidence at appellant’s trial established that $54,110 was taken from a Brinks’ employee en route from a department store to the Brinks’ truck. The employee identified appellant as the armed offender who stated to him, “All right. This is it. Let me have the bag.” The totality of the circumstances shows that appellant had control of the stolen money. That he failed or refused to make restitution is a factor which is completely and directly within the foregoing rule of the appellee-commission. Having no quarrel with the application of the rule in this case, we affirm.

AFFIRMED.

LETTS, C. J., and MOORE and GLICK-STEIN, JJ., concur.


author: McCORD, Judge.

text:
    Willie Milton BENTON, Appellant, v. STATE of Florida, Appellee.
    No. SS-262.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Rehering Denied March 18, 1981.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction of strong armed robbery and aiding and abetting an aggravated battery. We affirm.

In his first point on appeal, appellant contends the trial court erred in denying his motion to quash the arrest and to suppress evidence seized because the stop of the vehicle that he was driving was predicated upon mere suspicion, not well-founded suspicion or probable cause. We disagree. Under the facts of this case, the officers predicated their stop of appellant’s vehicle upon at least a well-founded suspicion.

In his second point, appellant contends that he is entitled to a new trial since transcripts of the charge conference and closing argument of counsel are not available for this Court to review. Appellant points to Florida Rules of Judicial Administration 2.070(a) and (b), which provide that all criminal proceedings required by law to be reported at public expense shall be reported and that when trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement. As explained in Wilson v. State, (Fla. 1 DCA 1980) [1980 FLW 2155], we view Florida Rule of Judicial Administration 2.070 as directory and not mandatory. Because appellant has made no allegation of error occurring in the closing arguments or in the charge conference, no reversible error has been shown in the failure to report them.

AFFIRMED.

MILLS, C. J., and THOMPSON, J., concur.


author: MILLS, Chief Judge.

text:
    MELWEB SIGNS, INC., and Kansas Fire and Marine, Appellants, v. Earl WRIGHT, deceased, Mary Wright and Jay Wright, Appellees.
    No. SS-119.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Rehearing Denied March 18, 1981.
    Bernard I. Probst of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Edward R. Downing, Miami, for appel-lees.
   MILLS, Chief Judge.

We affirm the award of dependency benefits to the deceased employee’s parents by the Judge of Industrial Claims.

Mary and Jay Wright were the parents of Earl Wright, age 20, who died as the result of an admittedly compensable accident on 12 October 1976. The son lived with his parents and regularly contributed $225 per month to them. The parents’ income as reported on their income tax returns, rounded to the nearest whole dollar, was as follows: 1975, $3,886; 1976, $9,810; 1977, $7,484; and 1978, $5,201. The father retired in 1978 and now receives $355 per month in pension and social security and is on food stamps. The mother was employed until April of 1977 when the company she worked for went bankrupt. At that time, she earned approximately $120 per week.

The parents’ oldest son had lived with them and helped with family expenses until he married, and this is what was being done by Earl.

Earl rented his own apartment in June of 1976, paying $160 per month rent, a security deposit of $160, and a utility bill of $35 to $50 per month.

The Judge of Industrial Claims stated in his order that although the tax returns indicate that the parents could have been self-sustaining, more credible testimony indicates that Earl did in fact contribute to his parents’ support. Thus, he ruled:

“The claimants are dependents based on all the facts and circumstances presented and pursuant to the statutory law of Florida and the basic decisional law under Panama City Stevedoring Co. v. Padgett, 147 Fla. 687, 6 So.2d 822, which sets forth the criteria for dependency determination.”

He specifically held that the evidence that Earl had an apartment and paid for its utilities did not rebut the testimony of the parents that they were partially dependent upon their son for support. We agree.

Workers’ compensation law does not require a showing that the claimants were totally dependent on their son, but only that they were partially dependent. Mac-Don Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960).

In Panama City Stevedoring Co. v. Padgett, supra, the Supreme Court set forth the following test for dependency:

It must be shown that the claimant is from physical or mental incapacity, or lack of means, dependent on the deceased for support, that actual and substantial support must have been received by claimant from deceased, that such support must be shown to have been made regularly with reasonable expectation to be made in the future and that casual gifts at irregular intervals will not support a claim based on dependency.

In this case, there is competent substantial evidence to support the finding that the parents were dependent on their son and that they regularly received the sum of $225 per month for more than a year and expected to continue to receive that amount in the future. Although there were vague references that the son might move out, marry, and cease to contribute to their support, there is no evidence that he had any actual plans to do this. The fact that the parents did not expect that the contributions would continue forever does not negate the fact that they did expect the contributions to continue in the future.

Another factor which must be considered is set forth in MacDon Lumber Co., supra:

That if the contributions are made by a child to a parent with whom the child is living and from whom the child is receiving board, lodging, or other accommodations of value, it must be shown that the contributions paid the parent exceed, in substantial amount, the reasonable value of the board, lodging, or other accommodations received by the child from the parent; ...

Appellants urge that Earl’s contributions did not exceed the reasonable value of the board, lodging, or other accommodations received by him from his parents. The record supports a finding to the contrary. Considering the evidence of household expenses, some of which were fixed expenses and others of which would fluctuate based on the number of people present in the household, the evidence supports a finding that the son was paying more than one-half of the expenses of a family of three.

The evidence that Earl was maintaining an apartment elsewhere while living with his parents is more relevant to the question of whether he was dependent on his parents, not whether they were dependent on him. If the evidence is intended to go to the question of the value of the accommodations he received, we point out that the test is not whether he could get room and board and other accommodations somewhere else for the amount he paid, but whether the value of what he received at his parents’ home was exceeded by his contributions. We note, for example, that an evaluation of the value of what he received would have to include the fact that living space and expenses were shared, whereas an evaluation of the value of the apartment would not.

The parents’ attorney included an application for appellate attorney’s fees in the answer brief. This court has held that attorney’s fees must be requested by filing a separate motion. Florida Department of Commerce v. Davies, 379 So.2d 1313 (Fla. 1st DCA 1980); Wallace v. Walton Context Building, 383 So.2d 729 (Fla. 1st DCA 1980); Documation, Inc., 390 So.2d 1248 (Fla. 1st DCA 1980). Accordingly, the application for attorney’s fee is DENIED.

The order appealed from is AFFIRMED.

McCORD and THOMPSON, JJ., concur.


text:
    COUNTY OF VOLUSIA, Appellant, v. ATLANTIC INTERNATIONAL INVESTMENT CORP. et al., Appellees.
    No. UU-342.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Rehearing Denied March 18, 1981.

      Daniel D. Eckert, Deland, for appellant.
    Peter J. Winders of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellees.
   PER CURIAM.

Appellant, County of Volusia, appeals from an order of the trial court denying its motion to dismiss for improper venue or in the alternative to transfer venue to Volusia County. We affirm in part and reverse in part.

Atlantic International Investment Company (AIIC) filed a complaint against Volu-sia County and other state agencies on February 7, 1975 in an action for declaratory judgment and additional relief regarding an alleged breach of its contract with Volusia County. Thereafter, Volusia filed motions to dismiss on March 5, 1975, and April 14, 1975, to the complaint and amended complaint. These motions to dismiss did not raise the defense of improper venue. Volu-sia answered the complaint on February 9, 1976 and also failed to raise improper venue as a defense.

On August 3, 1979, AIIC filed an amended and supplemented complaint pursuant to court order which consolidated the above contract cause of action with another suit by AIIC against various state agencies, divisions, and subdivisions, including Volusia County. This second cause of action contended that the defendant’s actions through a series of numerous independent and inconsistent acts constituted the unlawful taking of the plaintiff’s property without due process or just compensation.

On October 12, 1979, Volusia filed a motion to dismiss and strike the amended and supplemented complaint alleging as one of its grounds improper venue. On February 22, 1980 the trial judge denied several of Volusia’s motions including the motion to dismiss for improper venue.

Volusia appealed the denial of the motion regarding improper venue, relying on Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977), arguing that as a state political subdivision it had the right to be sued at the principal place of its headquarters, Volusia County. Carlile, supra held that absent waiver or exception, venue in civil actions brought against the state or one of its agencies or subdivisions properly lies in the county where the state, agency, or subdivision, maintains its principle headquarters. However, in this case, Volusia County waived its venue privilege by failing to raise the defense of improper venue in its motions to dismiss the contract action on March 5,1975 and April 14, 1975.

Under Florida Rule of Civil Procedure 1.140 the failure to raise improper venue in a motion to dismiss filed under the rules waives any right to have the cause dismissed on venue grounds. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So.2d 100 (Fla.1955) ...

Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980). See also Straske v. McGillicuddy, 388 So.2d 1334 (Fla. 2d DCA 1980).

However, Volusia argued on appeal that since the contract action was consolidated with the action for inverse condemnation, it may now raise its venue privilege to the contract action in addition to its venue privilege for the inverse condemnation action. This contention is not correct. “A motion directed to an amended pleading cannot raise objections to retained portions of an original pleading when such objections were available and not urged or unsuccessfully urged on motion to the original pleading.” Beach Development Corp. v. Stimson, 159 So.2d 113 (Fla. 2d DCA 1964). Having failed to timely object to improper venue concerning the contract action, Volu-sia County may not now do so.

Regarding the count as to inverse condemnation, Volusia has not waived its right to assert its venue privilege. Therefore, Volusia County, as a state political subdivision, is entitled to be sued in the county where it maintains its principal headquarters — Volusia County. Florida Public Service Commission v. Triple “A” Enterprises, 387 So.2d 940 (Fla.1980); Carlile v. Game and Fresh Water Fish Commission, supra; Lake County v. Friedel, 387 So.2d 514 (Fla. 5th DCA 1980).

AIIC argues that the actions of Vol-usia were joint with those of the other state agencies and, therefore, this cause of action is not severable. However, the complaint alleges only that the actions of Volusia County and of the agencies taken in the aggregate amounted to a taking. There are no allegations of a concert of action generally recognized in a “joint” theory of liability. See, Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (1913).

We recognize that allowing Volusia to exercise its venue privilege will necessitate two trials, but as the court in State Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1978) stated: “This, of course, necessitates the plaintiff’s maintaining two suits instead of one, which is certainly not ideal but the remedy perhaps lies with the legislature.”

Since transfer, not dismissal, is the favored remedy for improper venue, Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980), we instruct the trial judge to transfer the cause for inverse condemnation against Volusia County to the circuit court for Volusia County. Accordingly, the order is affirmed in part and reversed in part. This cause is remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    Puriegton (Purie) HOWANITZ, Appellant, v. Curt BLAIR, Richard Kerr, William (Billy) Freeman, and Paul E. Esquinaldo, Appellees.
    No. 79-2075.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.
    Cunningham, Albritton and Lenzi and Franklin D. Greenman, Marathon, for appellant.
    Cates, Winter and Zuelch and Michael H. Cates, Edward B. Johnson, Key West, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment entered against an unsuccessful political party candidate who contested the outcome of the election. We find the summary final judgment to have been improperly granted and reverse.

Puriegton Howanitz was the unsuccessful candidate and Curt Blair was the successful candidate for County Commissioner, District Two, Monroe County, in the first Democratic primary election conducted September 12, 1978. After the absentee ballots were tabulated, the margin of Blair’s victory was only one vote.

Howanitz, timely and properly filed a verified complaint pursuant to Section 102.-168, Florida Statutes (1977) to contest his failure to be nominated as a party candidate. The thrust of his complaint was to challenge casting, computation, and tabulation of certain absentee ballots. The trial court entered summary final judgment in favor of the appellees relying upon Section 101.68(2), Florida Statutes (1977) which provides:

If any elector or candidate present believes that any absentee ballot is illegal due to any defect apparent on the Voter’s Certificate, he may, at any time before the ballot is removed from the envelope, file with the canvassing board a protest against the canvass of such ballot, specifying the precinct, the ballot, and the reason he believes such ballot to be illegal. No challenge based upon any defect in the Voter’s Certificate shall be accepted after the ballot has been removed from the mailing envelope.

Factually, it appears that 612 envelopes purporting to contain absentee ballots, affecting this particular contest, had been received by the Supervisor of Elections pri- or to the canvass. Fourteen of those envelopes containing the Voter’s Certificate were rejected prior to being opened, leaving 598 envelopes believed to contain absentee ballots. After the envelopes containing the Voter’s Certificates, required by Section 101.64(1), Florida Statutes (1977), were removed and the votes tabulated, it was determined that only 597 ballots had been cast.

Two of the absentee elector ballots were submitted and counted, purportedly from electors who later testified that they did not vote. One of these electors could neither read nor write. The other elector testified that, although she had executed the Voter’s Certificate, thereby making it valid on its face, she had not completed the ballot.

Another absentee ballot was initially properly rejected by the canvassing board pursuant to Section 101.68(1), Florida Statutes (1977) because it appeared that the elector had voted in person. Through discovery, it was determined that this elector had, in fact, been absent from the county and had not voted in person but that another elector with a similar name was the one who had actually voted.

In its written order articulating reasons for granting summary judgment, the trial court found that the assault made upon these alleged irregularities was foreclosed by Section 101.68(2), supra. We, however, agree with the appellant that the construction placed upon the cited statute by the trial court was overly stringent. By its terms, the statute only prohibits a challenge to an absentee ballot once it is removed from its envelope, when the challenge is based upon a defect which was apparent on the face of the Voter’s Certificate. Flack v. Carter, 392 So.2d 37 (Fla.lst DCA 1970). The construction placed upon Section 101.-68(2), supra, by the trial court, renders it impossible to determine the presence or absence of fraud, gross negligence, intentional wrongdoing, or other irregularities, in the ballot itself, capable of affecting the outcome of the election. Such a construction also makes it impossible to determine whether there had been substantial compliance with the requirements of the absentee voting laws and whether the irregularities complained of adversely affected the sanctity of the ballot and the integrity of the election. Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976).

As stated in Barber v. Moody, 229 So.2d 284, 287 (Fla.1st DCA 1969), cert. denied, 237 So.2d 753 (Fla.1970):

The election laws make it impossible for a contestant to know of his own personal knowledge any or all irregularities that took place in an election and how they occurred. Under statutes such as ours it is generally held that if upon investigation a contestant learns of mistakes, errors, or frauds effectuating a declaration of an improper result of an election, and if he believes such information, he may proceed by making allegations upon information and belief that such statements are true.

In this case, the irregularities complained of were not apparent on the face of the Voter’s Certificate and were not waived for failure to challenge before the ballot was removed from the mailing envelope.

The courts of this state have always been alert to remedy irregularities that impact upon the validity of an election. Rinehart v. State ex rel. Whitley, 145 Fla. 612, 200 So. 218 (Fla.1941); Spradley v. Bailey, 292 So.2d 27 (Fla.1st DCA), cert. denied, 296 So.2d 51 (Fla.1974).

Without indicating any disposition about the outcome of this election, we are of the unqualified opinion that the trial court prematurely entered summary judgment. Consequently, we, reverse the summary final judgment and remand the cause to the trial court for further proceedings.

Reversed and remanded.


author: NESBITT, Judge. HENDRY, Judge SCHWARTZ, Judge

text:
    TRAVELERS INDEMNITY COMPANY, a Foreign Corporation, Appellant, v. NATIONAL GYPSUM COMPANY, a corporation, Appellee.
    No. 79-2375.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    August, Pohlig and Milstein and Rosemary J. Michael and R. C. Milstein, Miami, Deutsch and Spring and Lionel M. Spring, New York City, for appellant.

      Britton, Cohen, Kaufman, Benson and Schantz and J. Robert Olian, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The issue before us is whether a material-man may recover against a surety on a construction bond absent compliance with a condition precedent requiring written notice be given within ninety days after the claimant has furnished the materials for which the claim is made. We hold that the mate-rialman’s failure to comply with the notice provision of the bond precludes recovery and reverse the judgment of the trial court.

In 1977, appellee, National Gypsum Company (National Gypsum) filed a suit against Goodnow Company of Florida, Inc. (Good-now), a subcontractor to whom it had supplied material. The amended complaint also named Travelers Indemnity Company (Travelers), the surety on the labor and material payment bond, as a defendant. A default was entered against Goodnow. Travelers then moved to dismiss the action against it for failure by National Gypsum to meet the notice provisions set forth in the bond and because the amended complaint “laid improper venue in that the doctrine of forum non conveniens [was] applicable ...” The trial court denied the motion to dismiss. Pleadings were filed and memoranda were submitted. Motions for summary judgment were subsequently filed by both Travelers and National Gypsum. The trial court granted National Gypsum’s motion for summary judgment and this appeal ensued.

The notice provision of the bond provided as follows:

3. No suit or action shall be commenced hereunder by any claimant,
(a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelop addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer, [emphasis supplied].

Admittedly, National Gypsum, the materialman, failed to give the required notice. In W. F. Thompson Construction Co. v. Southeastern Palm Beach County Hospital District, 174 So.2d 410 (Fla.3d DCA), cert. denied, 180 So.2d 659 (Fla.1965), we construed an identical provision in a statutory bond given on a public project and upheld similar notice requirements. Parties enjoy the fundamental principle to make contracts and have them enforced without being re-written by the courts. Century Federal Savings and Loan Association v. Madorsky, 353 So.2d 868 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1217 (Fla.1978). It follows then, with greater force of reason, that parties in a purely common law bond are entitled to have such a plain and unambiguous notice provision enforced. Consequently, we align ourselves with Balboa Insurance Company v. Alpha Electric Supply, Inc., 373 So.2d 391 (Fla. 1st DCA 1979) and our own decision in W. F. Thompson Construction Co. v. Southeastern Palm Beach County Hospital District, supra. Admittedly, we cannot harmonize this decision with our earlier and conflicting decision in Carnival Cruise Lines, Inc. v. Financial Indemnity Company, 347 So.2d 825 (Fla. 3d DCA 1977) and consequently we recede from that decision.

Carnival Cruise Lines, Inc. provided that a surety must show actual damages resulting from failure to give notice to relieve it from its obligation on the bond and that the failure to give the surety notice of a principal’s default did not relieve the surety where such failure resulted in no loss. While it is true that sureties are in the business of writing bonds for profit, it is equally true that they may contract for notice as a condition precedent to trigger the responsibility on the bond. Notice provisions help sureties determine the amount of reserves they must keep on hand for potential claims. The amount of reserves required are one of the factors which determine the premium rates on the bond. If proper notice is given, as contracted for, the surety may have an opportunity to intervene on the project and attempt to utilize its business or legal remedies and thereby minimize potential losses and ultimately keep premium rates down. Forcing a surety to prove up actual damages may leave the surety in the difficult or impossible position of trying to demonstrate how much of the loss he could have prevented.

When businessmen or other parties enter into contracts, they bargain for a bundle of rights against which are imposed certain obligations. In this case, Travelers was obligated to keep certain reserves on hand and to pay those claims, if any, which arose as a result of the principal’s default. In exchange, certain obligations were imposed on those seeking to benefit from the construction bond. Those included payment of a specific premium as well as written notice within ninety days. As we have stated, it is a long-standing principle that parties have the right to have their contracts enforced without being re-written by the courts. The rule enunciated in Carnival Cruise Lines would require the surety to maintain increased reserves for undetermined claims. This would ultimately increase the cost of procuring a bond and the resulting increased cost would assuredly be passed on to all consumers. Consequently, the better rule is the one which enforces the contract as written while leaving available to the subcontractor or materialman the right to seek reformation of bonds where otherwise permitted. National Gypsum’s failure to meet the condition precedent, of giving written notice within ninety days as required under the bond, precludes recovery.

For the foregoing reasons, we find the trial court improvidently entered summary judgment in favor of National Gypsum and erroneously denied Travelers’ cross-motion for summary judgment. Accordingly, we reverse the judgment appealed from with directions to grant Travelers’ motion for summary judgment.

Reversed and remanded with directions.

HENDRY, Judge

(dissenting).

I respectfully disagree with the holding of the majority.

The disposition of the surety’s appeal turns upon the legal effect of a provision in the bond which requires, as a precondition of the surety’s performance under the bond, that a party claiming a right of payment thereunder to notify, within a certain period, any two of the group comprised of the owner, the contractor, and the surety. It is agreed that such notice was not given.

Appellant urges that, by reference to Balboa Insurance Co. v. Alpha Electric Supply, Inc., 373 So.2d 391 (Fla. 1st DCA 1979), and W. F. Thompson Construction Co. v. Southeastern Palm Beach County Hospital District, 174 So.2d 410 (Fla. 3d DCA), cert. denied 180 So.2d 659 (Fla. 1965), we must find that the notice requirement was a condition precedent to appellant’s performance, and that appellee’s recovery under the bond must be refused. I cannot agree.

In Balboa, a supplier to a subcontractor brought suit against the contractor’s surety on a labor and material payment bond. It alleged in its complaint that all conditions precedent to its right to payment by the surety had been fulfilled. The surety affirmatively challenged that allegation by claiming that the bond’s ninety-day notice provision had not been complied with.

The court held that, irrespective of whether the bond was a statutory bond or a common law bond, “[i]f [the notice provisions of the bond] are not met, then the supplier may not recover.” Balboa, supra, 373 So.2d at 392.

Similarly, in W. F. Thompson Construction, supra, 174 So.2d at 414,

[t]he plaintiffs admitted that they did not comply with the provision which required notice to be given pursuant to the conditions of the bond. The failure of the plaintiffs to comply with that condition should therefore bar their cause against the defendant. A provision to give notice of default is, of course, valid provided it is reasonable, and is a condition precedent to an action so based, [citations omitted]

The court went on to find that the notice provision, which was virtually identical to that we consider sub judice, was both reasonable and a condition precedent to the surety’s duty to perform. Cf., Board of Public Instruction of Sarasota County v. Fidelity and Casualty Co. of New York, 184 So.2d 491, 494 (Fla. 2d DCA 1966), and United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971): Where the issued bond was not a statutory bond, but rather was a common law bond, it could not require, in the absence of its own time limitation for effective notice, any limit short of that provided by the statute of limitations.

Appellees point to the decisions in Carnival Cruise Lines v. Financial Indemnity Co., 347 So.2d 825 (Fla. 3d DCA 1979), and Maule Industries, Inc. v. Gaines Construction Co., 157 So.2d 835 (Fla. 2d DCA 1963), for the contrary conclusion: “[A]ctual damage resulting from failure to give notice must be pleaded and proved as a defense ...” Maule Industries, supra, 157 So.2d at 837.

The decision in Maulé Industries was based upon a distinction between accommodation sureties and compensated sureties. We acknowledged that distinction in Carnival Cruise Lines, supra, 347 So.2d at 826:

There is no question that Financial is a compensated surety in the business of writing bonds for profit. The established law with respect thereto is that actual damage resulting from failure to give notice must be pled and proved as a defense, and that failure to give a compensated surety notice of a principal’s default as required in the bond does not relieve the surety where the failure results in no loss to it.
Having raised the defense of untimely notice in its answer, Financial had the burden of proving prejudice as a result thereof.

The caselaw on this narrow question creates conflict among the several districts. However, we must choose between two decisions in our own district which announce contrary rules.

I would follow the rule announced in Carnival Cruise Lines because it is our latest expression of the law in this district, and because it appears to me to best conform to the general rule that an insurance carrier may absolve itself of contractual duty only to the extent that another’s breach of the contractual terms causes demonstrable injury to its interests subsumed under the contract. I recognize that, in following this rule we would force insurers to maintain increased reserves for undetermined claims; nonetheless, I am convinced that the better path lies with Maulé Industries and Carnival Cruise Lines.

I would reverse and remand for a determination of the extent, if any, to which appellant surety was damaged by appellee’s failure to conform to the notice provision of the bond.

SCHWARTZ, Judge

(specially concurring).

While I agree with the conclusion reached by Judge Nesbitt and with much of his opinion, I think it goes further than is necessary or appropriate to dispose of the issues presented. In my view, the holding that compliance with a notice provision is indispensable to recovery on a bond should be — and, in this case, need be — confined only to would-be beneficiaries of bonds which secure the performance or payment of building and construction contracts. In this area, as is said in 17 Am.Jur.2d Contractors’ Bonds, § 30 at 212 (1964), “[a] provision to give notice of default is, of course, valid provided it is reasonable, and is a condition precedent to an action so based.”

The construction industry is well-acquainted with the statutory necessity of giving timely notice in a variety of lien and bond contexts, and with the invariably fatal consequences of a failure to do so. W. F. Thompson Construction Co. v. Southeastern Palm Beach County Hospital District, 174 So.2d 410 (Fla. 3d DCA 1965), cert. denied, 180 So.2d 659 (Fla.1965) is only one of countless examples of decisions which apply these propositions. And, like Balboa Ins. Co. v. Alpha Electric Supply, Inc., 373 So.2d 391 (Fla. 1st DCA 1979), and Judge Nesbitt in this case, I see no reason why a subcontractor or materialman should be in a superior position concerning a bond which has been fortuitously posted and as to which it is merely a donee third-party beneficiary, than with respect to a bond which is specifically required by statute to be maintained for its benefit. If anything, the reverse should be true.

This limitation of our holding distinguishes Carnival Cruise Lines, Inc. v. Financial Indemnity Co., 347 So.2d 825 (Fla. 3d DCA 1977), which involved an action between the obligee and the surety on an undertaking akin to a fidelity bond, and from which I would therefore not now recede. Moreover, it allays the concern expressed by Judge Hendry that reversal jeopardizes the rule that, as to insurance policies in general, the carrier must show that a failure to give required notice has been prejudicial. 18 Fla.Jur. Insurance, § 789 (1971). With the narrow exception delineated in this opinion, that doctrine remains entirely intact.

      . The construction site was in Aruba, Netherlands Antilles. Travelers, though not a resident of Florida, is authorized to do business in the state. However, Goodnow, the subcontractor, who was a defendant in this action, is a Florida resident. Therefore, Travelers’ contention that the action was brought in the wrong forum and should be dismissed under the doctrine of forum non conveniens is without merit. Houston v. Caldwell, 359 So.2d 858 (Fla. 1978).