text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. Brenda Lee ROBINSON, Jackson County, and Atlanta & St. Andrews Bay Railroad Company, Appellees.
    No. AM-436.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Jim Smith, Atty. Gen., and Joseph A. Linnehan, Asst. Atty. Gen., and Kenneth McLaughlin, Certified Legal Intern, Tallahassee, for appellant.
    P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellee Brenda Lee Robinson.

      Richard Smoak of Isler, Brown, Smoak, Harrison & Nabors, Panama City, for appel-lee Atlanta & St. Andrews Bay Ry. Co.
    John M. Fite of Barron, Redding, Boggs, Hughes, Fite & Bassett, P.A., Panama City, for appellee Jackson County, Fla.
   WIGGINTON, Judge.

Appellee, Brenda Lee Robinson, filed a complaint for wrongful death in Jackson County, Florida, naming as defendants, the Florida Department of Transportation (DOT), Atlanta & St. Andrews Bay Railroad Company (Bayline), and Jackson County. In her complaint Mrs. Robinson alleged, inter alia, that all three defendants failed to provide adequate or appropriate signal warning devices, as were their respective duties, at the railroad crossing where her husband was killed in a collision with a train operated by Bayline.

Appellant, DOT, filed a motion to dismiss, incorporating an alternative prayer for change of venue to Leon County, Florida, pursuant to its common law home venue privilege. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). On June 1, 1982, the trial court entered an order denying DOT’s motion and finding that venue was proper in Jackson County. Subsequent to that order, Mrs. Robinson and Jackson County entered into a settlement agreement. Because we find DOT’s venue privilege controlling here, we reverse the order of the trial court.

The common law venue privilege provides that, absent waiver or exception, “venue in civil actions brought against the state or one of its subdivisions properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.” Carlile, at 366. That principle has been consistently reaffirmed with few exceptions. See Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940 (Fla.1980); Department of Corrections v. Edwards, 410 So.2d 959 (Fla. 1st DCA 1982); County of Volusia v. Atlantic International Investment Corp., 394 So.2d 477 (Fla. 1st DCA 1981); Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1978); City of Boca Raton v. Walker, 354 So.2d 440 (Fla. 3d DCA 1978).

DOT has not waived its privilege and the circumstances are not so extraordinary as to provide an exception to the privilege. Cf. Grice v. Bd. of County Com’rs of Madison County, 413 So.2d 88 (Fla. 1st DCA 1982), certified question docketed, no. 62,174 (Fla. June 10, 1982). Accordingly, the cause of action, as it affects only the Department of Transportation, should be transferred to Leon County, where DOT maintains its principal headquarters.

MILLS and ERVIN, JJ., concur.

      . We do not by this opinion, however, preclude the parties from moving for the trial court’s consideration of changing venue of the entire action to Leon County for purposes of convenience. See Section 47.122, Fla.Stat. (1981).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. JIMMY HART MASONRY and General Accident Group, Appellees.
    No. YY-374.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Rehearing Denied Jan. 19, 1983.

      Robert M. Mack, Tallahassee, for appellant.
    H.A. Rigdon, Jr., Haas, Boehm, Brown & Rigdon, Orlando, for appellees.
   PER CURIAM.

The Special Disability Trust Fund appeals an order of the deputy commissioner requiring it to reimburse the employer/carrier 50% of the benefits paid to the claimant subsequent to his industrial injury of October 18, 1973. Because we agree that the employer/carrier’s untimely filing of their claim for reimbursement requires reversal, we will not reach the other issues raised by the Fund.

The claimant sustained a compensable injury to his right foot and ankle on October 18, 1973. His employer stipulated that it employed claimant with knowledge of his pre-existing permanent impairment to his left knee. Dr. Kissam, claimant’s treating physician, opined that claimant’s pre-exist-ing injury resulted in a 20% permanent physical impairment of the left leg and that claimant suffered a 30% permanent partial disability to the right leg as a result of the 1973 accident. Claimant was paid temporary total disability benefits and the employer/carrier voluntarily began payment of permanent partial disability benefits for a 60% disability of the right lower extremity. However, claimant continued to experience difficulty with his right ankle. He sought permanent total disability, but the deputy entered an order determining that claimant had not reached maximum medical improvement and was still temporarily partially disabled.

Subsequently, the claimant again sought benefits for a greater degree of disability than that accepted by the employer/carrier. On June 29, 1979, the deputy entered an order finding that claimant had been paid all benefits which were due, agreeing with the employer/carrier’s position that claimant had not suffered a permanent partial disability in excess of the 60% of the right lower extremity accepted by the employer.

The employer/carrier filed their notice of claim for reimbursement against the Fund on August 10, 1979. The Fund controverted the claim contending, among other things, that it was not timely filed in accordance with Section 440.49(4)(g), Florida Statutes (1975). The Fund argues that the claim was not filed within 60 days after the first payment of excess compensation for permanent disability was made as is required by Section 440.49(4)(g). The Fund’s position is that payment of excess benefits, if in fact any was made, began immediately upon completion of the 60 weeks of permanent compensation benefits attributable to the 30% rating for the October 18, 1978 accident considered by itself. Since the employer/carrier accepted the 60% rating to the right leg on February 2,1976, the Fund argues that the 60th week occurred about April 2, 1977. Thus, the Fund concludes, the time for filing the notice of claim for reimbursement began to run on or about April 2, 1977, and the employer/carrier’s claim filed more than two years later on August 10, 1979 was untimely.

On the other hand, the deputy determined that the claim was timely filed, finding that the issue of permanent partial disability was not ultimately decided until his order of June 29, 1979, and that the claim for reimbursement was filed well within sixty days from that date. We must respectfully disagree with the deputy’s reasoning.

Section 440.49(4)(g) is a statute of non-claim and clearly bars any right to reimbursement unless the claim is filed prior to 60 days from the date of the first payment of excess compensation if such payment is made by the employer/carrier without an award. The purpose of the time limitation in Section 440.49(4)(g) is to protect the Fund against stale claims and to provide an opportunity for prompt investigation of the claim. McConnell Wetenhall Citrus Properties v. Special Disability Trust Fund, 304 So.2d 112 (Fla.1974). In Special Disability Trust Fund v. Brevard County Board of Public Instruction, 9 FCR 164 (1975), cert. den. 320 So.2d 392 (Fla.1975), the Industrial Relations Commission held in an analogous situation that where excess permanent compensation is paid by the employer/carrier without an award, the right to reimbursement is barred forever unless the employer/carrier file their claim prior to 60 days from the date of the first payment of excess compensation. In that case, as here, after the employer/carrier voluntarily accepted liability for permanent disability, the deputy entered a subsequent order reaffirming that claimant had been paid the permanent disability benefits that were due. Nevertheless, the Cominission ruled that the operative date for purposes of application of the statute was the date the first payment of voluntary excess compensation was made not the date the deputy entered his order.

Accordingly, because the payment of excess compensation was begun more than 60 days before August 10, 1979, the date the employer/carrier’s claim was filed, we find the claim to be untimely and reverse the deputy’s order requiring the Fund to reimburse the employer/carrier.

MILLS, ERVIN and LARRY G. SMITH, JJ., concur.

      . Section 440.49(4)(g), Florida Statutes (1975), provides in pertinent part:
      (g) Reimbursement of Employer. — The right to reimbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or carrier entitled to such reimbursement with the division at Tallahassee prior to 60 days after the order awarding the excess permanent compensation with respect to which such reimbursement is claimed becomes final or, if payment of such excess permanent compensation is made by the employer or carrier without an award, prior to 60 days añer the date the first payment of excess compensation for the permanent disability was made .... (emphasis supplied)
      We are applying the 1975 statute- which became effective October 1, 1974 rather than the 1973 statute in effect at the time of the injury since Section 440.49(4)(g) is a remedial statute. The usual rule is that after their effective date remedial enactments apply to remedies then invoked for currently accruing liability arising out of earlier events or claims. Myers v. Carr Construction Company, 387 So.2d 417, 418 (Fla. 1st DCA 1980), and cases cited therein.

      . Of course, a finding of a “merger,” as defined in the statute, Section 440.49, subsection (4)(b), paragraphs 2a and b, is essential to reimbursement by the employer/carrier. The Fund contends that no merger occurred, thus no excess payments were made, an issue we are not required to decide in view of our disposition based upon the untimely filing of the claim.

      . There is no record citation given supporting this date as the one on which payment of permanent disability began. However, since the employer/carrier have not contested this date, we will accept as true the statement that payment of permanent partial disability began on this date.


author: SHAW, Judge.

text:
    Nathaniel WHITE, Sr., Appellant, v. Massina ARVANITIS and Allstate Insurance Company, Appellees.
    No. AK-245.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Rehearing Denied Jan. 25, 1983.

      Aaron A. Green, P.A., Gainesville, for appellant.
    Wayne C. McCall of Ayers, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appel-lees.
   SHAW, Judge.

This is an appeal from a directed verdict rendered against the plaintiff/appellant in a personal injury action predicated upon the court’s finding that the appellant failed to meet the threshold requirements of section 627.737(2)(e), Florida Statutes (1977). We disagree with the trial court’s application of the statute and reverse.

Under section 627.737(2)(e) a plaintiff may recover damages in tort if he shows:

A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.

Appellant suffered moderately severe cervical and mild lumbrosacral strains as a result of a June 8, 1978, automobile accident. Range of motion tests administered by his treating physician, Dr. Fuessner, shortly before and after the ninety-day statutory period indicated a normal range of motion but continued pain on rotation of the head to the left. The doctor testified that this continued pain was consistent with his diagnosis of cervical strain. Dr. Fuessner testified that in his opinion the appellant had a continuing medical problem resulting from his injury and was not malingering. When queried as to whether the appellant’s injuries would affect his ability to perform his duties as a mail carrier and his lifestyle generally for at least ninety days following the injury, the doctor replied:

Yes, I believe that the injury that he had was significant enough to interfere with his usual activities and in his particular occupation it could very easily interfere with his work and the length of time involved, 90 days, is frequently encountered as a period of time when people have difficulty from this type of neck injury. So it’s not unusual for someone to go that long with symptoms from this type of neck injury.

Record on Appeal at 130-131. The trial court nonetheless found that the appellant produced insufficient evidence of medically or scientifically demonstrable signs of injury at the end of the statutory ninety-day period.

This Court has interpreted “medically or scientifically demonstrable” to require a showing of objective signs of injury rather than subjective statements of pain. Howard v. Newman, 363 So.2d 65 (Fla. 1st DCA 1978). We found the Howard test satisfied when the straight leg raising test, a standard medical procedure, was used to substantiate the patient’s subjective complaint of pain. Snowden v. Sprouse, 375 So.2d 901 (Fla. 1st DCA 1979). The point at which Mr. Snowden’s test indicated pain was consistent with the physician’s diagnosis of low back strain.

Dr. Fuessner based his diagnosis in the present case on more than the appellant’s subjective complaints of pain. The doctor administered a range of motion test and found that pain on rotating appellant’s neck to the left was consistent with the injury appellant sustained and could very easily have interfered with his lifestyle and work for the ninety-day statutory period. We have here more than the unsubstantiated testimony of the plaintiff/appellant that he had residual pain at a certain time. In addition to the appellant’s statement, we have the medical testimony of a doctor that, in his opinion, based upon a medically approved test, the appellant’s complaint of pain was consistent with and likely to occur with the type of injury he sustained.

Upon reviewing the order granting a directed verdict, we must consider the evidence in the light most favorable to the party moved against and indulge every reasonable inference on that party’s behalf. Bradley v. Peaden, 347 So.2d 455 (Fla. 1st DCA 1977). A verdict should not be directed for the defendant at the close of the plaintiff’s evidence unless it is clear that there is no evidence whatever that could in law support a verdict for the plaintiff. If there is room for a difference of opinion between reasonable persons as to the inferences that might be drawn from conceded facts, the matter should be submitted to a jury. Budgen v. Brady, 103 So.2d 672, 674 (Fla. 1st DCA 1958). Applying these standards to the present case, a jury could find that appellant’s injury was medically demonstrable at the end of the ninety-day period. Consistent with our belief that a jury question was presented on the question of whether the appellant satisfied the threshold requirement of the statute, we reverse and remand for further proceedings.

REVERSED and REMANDED.

LARRY G. SMITH and JOANOS, JJ., concur.


text:
    William J. WINDSOR and Martha S. Windsor, his wife, Appellants, v. James B. GIBSON, as Public Defender of the Seventh Judicial Circuit, In and For ST. JOHNS COUNTY, Florida, Appellee.
    No. AL-123.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.

      John W. Frost, II, of Frost, Purcell & Lilly, P.A., Bartow, for appellants.
    Jim Smith, Atty. Gen., Joseph A. Linne-han, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

This is an appeal from a dismissal of appellant’s complaint with prejudice on the grounds that the doctrine of judicial immunity precludes bringing a malpractice suit against the public defender’s office. We reverse and certify the question.

In his complaint, appellant alleged that the public defender’s office represented him in the defense of a worthless check charge. On the advice of an assistant public defender, appellant pled guilty to the charge in return for the state’s recommendation that he be sentenced to a probationary period. The trial judge agreed to the bargain. Six months later, appellant appeared for sentencing represented by .another member of the public defender’s office. This assistant made no mention of the previously accepted plea bargain, and as a result, appellant was sentenced to two years in prison. Fortunately, appellant was able to obtain new counsel who secured his release after eighty-six days of incarceration. Thereafter, appellant filed his complaint, the dismissal of which prompts this appeal.

Appellee has provided us with no reason the public defender should not be required to respond to appellant’s complaint and our own research has revealed none. Those courts which have considered the question of public defender’s liability for malpractice have held there is no immunity. We agree.

Considerations which require that a judge and prosecutor be immune from liability for the exercise of duties essential to the administration of justice, do not require that the same immunity be extended to the public defender. While the prosecutor is an officer of the state whose duty it is to see that impartial justice is done, the public defender is an advocate, who once appointed owes a duty only to his client, the indigent defendant. His role does not differ from that of privately retained counsel.

Because we recognize the serious impact our holding today may have on Florida’s public defender system, we certify the following question to be of great public importance:

Does the doctrine of judicial immunity preclude the bringing of a suit against the office of the public defender by a former client for malpractice committed by the public defender or one of his assistants in the course of representing the former client on criminal charges?

REVERSED and REMANDED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.

      . Reese v. Danforth, 486 Pa. 479, 406 A.2d 735, 6 ALR 4th 758 (1979); Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). Similarly, appointed counsel in federal criminal prosecutions have been held not immune under federal law, Ferri v. Ackerman, 444 U.S. 193, 62 L.Ed.2d 355, 100 S.Ct. 402 (1979), or state law, Donigan v. Finn, 95 Mich.App. 28, 290 N.W.2d 80 (1980).

      . Reese v. Danforth, 486 Pa. n. 1, 406 A.2d 735. See also, Ferri v. Ackerman, 444 U.S. at 204, 100 S.Ct. at 409; Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509, 516.

      . 1980 figures show that Florida is third among the states in total costs of indigent defense services, behind only California and New York, and sixth in per capita expenditures. Lefstein, Criminal Defense Services For The Poor (May 1982).

      . Fla. Const. art. V, section 3(b)(5).


text:
    FLORIDA BEVERAGE CORPORATION, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Department of Business Regulation, Glenmore Distilleries Company, and Foreign Vintages, Inc., Appellees.
    No. AL-416.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Wilbur E. Brewton and J. Riley Davis of Taylor, Brion, Burker & Green, Tallahassee, for appellant.
    Roy C. Young of Young, Van Assenderp, Varnadoe & Benton, Tallahassee, and Elliot S. Kaplan and Barry G. Reed of Robins, Zelle, Larson & Kaplan, Minneapolis, Minn., for appellees Glenmore Distilleries Co. and Foreign Vintages, Inc.
   PER CURIAM.

This cause is before us on appeal from a declaratory statement wherein the agency, construing Section 565.095(5), Florida Statutes, pertaining to withdrawal of a registered brand or label, determined that the appointment by the manufacturer of a second distributor for a given brand or label was not shown to constitute a constructive withdrawal. The agency's declaratory statement is, in pertinent part, as follows:

The Division stated in General Wholesale Company of Florida v. Division of Alcoholic Beverages and Tobacco, Somerset Imports, Ltd. and Glenmore Distilleries Corp., November 13, 1978, at page 7:
There is nothing in the statute to preclude the establishment of multiple distributors if no withdrawal occurs. There may be instances when the establishment of a second distributor may result in a constructive withdrawal from the first, (emphasis added)
The Division concludes that Petitioner has failed to show or even allege that Respondents intended to formally withdraw Felipe Segundo pursuant to Section 565.095(5), Florida Statutes. The Division further concludes that Petitioners have failed to show or even allege that its orders for Felipe Segundo were not adequately filled by Respondents. If Respondent had refused to fill Petitioner’s order for the product in a reasonable and timely fashion a “constructive” withdrawal would be possible or even probable. There is no showing in the record that this occurred.
The Division further concludes that even if Petitioner’s projections are correct concerning diminished profits resulting from the appointment of Hartley and Parker, the most Petitioner has established is that competition from Hartley and Parker will reduce its profits. Section 565.095(5), Florida Statutes, was not intended to stifle competition or to prohibit dueling in circumstances such as these. As the Division noted in General Wholesale Company, supra:
The act does not express an intent to restrain the industry to a zero growth potential nor does the statute have such effect.
There is nothing in the statute to indicate that its purpose is to protect profit margins by eliminating or preventing competition in the sale of a product. Accordingly, the Division finds that no actual or constructive withdrawal has occurred and that Petitioners’ requested relief must be denied.

On consideration of the record and briefs, we find that the agency’s interpretation of the statute is persuasive and not contrary to the intent and meaning of the statute. Accordingly, the declaratory statement is affirmed.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    FRED McGILVRAY, INC., Appellant, v. The DELPHIAN GROUP, INC., Appellee.
    No. 81-129.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 27, 1983.
    Stephens, Lynn, Chemay & Klein and Robert M. Klein, Miami, for appellant.

      Schoninger, Jankowitz, Siegfried & Kip-nis, P.A. and Steven M. Siegfried, Miami, for appellee.
    Before HUBBART, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The defendant Fred McGilvray, Inc. (“McGilvray”) appeals an adverse final judgment entered upon a jury verdict in a suit for a brokerage commission brought below by the plaintiff mortgage broker, The Delphian Group, Inc. (“Delphian”). The suit below was originally brought on breach of contract and quantum meruit theories, but at the outset of trial, the plaintiff Delphian abandoned its breach of contract count and proceeded solely on its quantum meruit count. The ensuing verdict and final judgment were therefore based entirely on a quantum meruit theory. The defendant McGilvray urges as its central argument on appeal that the trial court erred in denying a defense motion for a directed verdict because a quantum meruit recovery was barred in this case as a matter of law. Upon full study of the record and applicable law, we cannot agree with this contention.

There was ample evidence adduced at trial that no express contract was ever entered into between the parties; indeed, Mr. Oscar Calleja, executive vice-president of the defendant McGilvray, conceded as much during his testimony below. It therefore follows that quantum meruit recovery was not barred in this case, as urged, on an express contract theory. Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 857-58 (1928). Southern Bell Telephone & Telegraph Co. v. Acme Electrical Contractors, Inc., 418 So.2d 1187 (Fla. 4th DCA 1982). There was also sufficient evidence adduced below that the plaintiff Delphian conferred a benefit upon the defendant McGilvray which was compensable on a quantum me-ruit theory. Although the evidence is in dispute, there was substantial competent evidence upon which a jury could have concluded that the plaintiff Delphian produced a loan offer from a reputable bank for the defendant McGilvray on terms which McGilvray stated it wanted. As such, the plaintiff Delphian as the broker was entitled to recovery for services rendered on a quantum meruit basis. Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876 (1944); Mead Corp. v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967); National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964). Finally, there was sufficient evidence adduced below to establish an appropriate measure of damages in this case. The invalid contract herein, although not agreed to by the parties, was properly looked to below in measuring the value of the services rendered. Hazen v. Cobb, supra, 117 So. at 858. (“[T]he invalid or otherwise inadmissible express contract may be introduced in evidence on the question of the value of the services performed or the goods furnished.”); 12 S. Williston, A Treatise on the Law of Contracts § 1478 (1980) (Invalid contract may be evidence of the value of services rendered to the defendant on a quantum meruit basis.)

The defendant McGilvray raises other points upon this appeal which we have examined and found to be insufficient to upset the judgment under review. See e.g., Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 680 (Fla. 3d DCA 1980); § 90.702, Fla.Stat. (1981). The final judgment under review is, accordingly,

Affirmed.


text:
    Cabrales G. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1700.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.

      Bennett H. Brummer, Public Defender and Howard Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

The appellant was not denied a “public” trial under the United States Constitution, Sixth Amendment and the Florida Constitution Article 1 Section 16 by a trial judge excluding, for a limited purpose of taking the testimony of a victim in a prosecution for aggravated assault and sexual battery, a portion of the public from the courtroom during her testimony. Douglas v. State, 328 So.2d 18 (Fla.1976); Robertson v. State, 64 Fla. 437, 60 So. 118 (1912); Bivins v. State, 313 So.2d 471 (Fla. 4th DCA 1975).

Therefore, the conviction, adjudication and sentence are affirmed, except that portion retaining jurisdiction over the first one-third of the life sentence, which is hereby stricken. Corero-Pena v. State, 421 So.2d 661 (Fla. 3d DCA 1982).

Affirmed as modified.

      . The order excluded all spectators with the exception of the news media. The victim and the defendant were permitted to remain in the court room and the jury was unaware of the limited exclusion order.

      . The victim was a 33 year old school teacher who requested that her testimony be taken in private because of personal embarrassment. It also appears that as her testimony was being taken there were school children in and about the courthouse and the trial court was of the opinion that the incident might get back to the victims school by word of mouth, thereby adversely affecting the victim.


author: SCHWARTZ, Judge.

text:
    CROWN LIFE INSURANCE COMPANY, Appellant, v. Faustino GARCIA and Ela Garcia, Appellees.
    No. 82-346.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 28, 1983.

      Lyons & Farrar and Marsha Lyons, Coral Gables, for appellant.
    Mark King Leban, Miami, Ivan M. Tobi-as, Coral Gables, for appellees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

This case involves a claim for the cost of the hospitalization of a dependent child under the Major Medical Expense Benefits of a group medical insurance policy issued by Crown Life to the employer of the child’s father. Crown denied liability, claiming that because the child was afflicted by Down’s syndrome, a congenital condition with devastatingly adverse and permanent mental and physical consequences, he was “disabled” and thus disqualified under the emphasized portions of the following policy exclusion:

[Wjith respect to insurance under the MAJOR MEDICAL EXPENSE BENEFIT ... insurance for a dependent ... who is disabled on the date he would otherwise become insured shall not become effective until the earlier of the date immediately following his subsequent completion of a period of thirty-one consecutive days during which he was not disabled, or the date evidence of insura-bility is approved by Crown Life, .... For the purposes of this subsection ... a dependent shall be considered to be disabled if he is prevented by any sickness, bodily injury, or mental infirmity from performing or engaging in his normal and accustomed duties or occupations ... or from performing or engaging in duties or activities, household or otherwise, which reasonably could be considered to be normal for a person of the same age and sex. [e.s.]

Although there was uncontradicted testimony that Vicente Garcia was indeed entirely unable to engage in virtually all of the activities of a normal seven-year-old boy, the trial judge entered summary judgment for his parents on the ground that the provision in question did not unambiguously exclude coverage. While we affirm the order, we do so on quite a different ground.

Under the definition invoked by the carrier, medical expenses otherwise payable would not be afforded only because Vicente is permanently and irremedially disabled by a condition with which he was born and thus can never be eligible to receive them. We hold, however, that the clause is invalidated by a specific provision of the Florida law which forbids discrimination against the handicapped in affording such benefits. Section 627.6576, Florida Statutes (1981), which is deemed incorporated into every relevant policy of insurance, Sentry Insurance v. Brown, 424 So.2d 780 (Fla. 1st DCA 1982), and cases cited; and which applies to the one before us, states:

Discrimination against handicapped under policies of group, blanket, or franchise insurance prohibited. — No insurer offering a policy or policies of group, blanket, or franchise disability insurance shall refuse to provide, or charge unfairly discriminatory rates for, disability coverage for a person solely because he or she is mentally or physically handicapped. Nothing in this section should be construed as requiring an insurer to provide insurance coverage against a person’s handicap which the applicant or policyholder has already sustained, [e.s.]

It is clear that, by virtue of this section, payments cannot be denied on the sole ground that Vicente is handicapped. Since this is the undeniable effect of the pertinent definition of “disabled,” it cannot be enforced — and coverage must therefore be provided. The carrier argues that the reference to “disability coverage” does not include the major medical benefits now in question. This position is belied by the statutes themselves. Section 624.603, Florida Statutes (1981) unequivocally states:

‘Disability insurance’ defined.—
‘Disability insurance,’ also known as ‘health insurance,’ is insurance of human beings against bodily injury, disablement, or death by accident or accidental means, or the expense thereof, or against disablement or expense resulting from sickness, and every insurance appertaining thereto. Disability insurance does not include workers’ compensation coverages. [e.s.]

The thus-manifest applicability of Sec. 627.-6576 to the present controversy requires that the judgment below be

Affirmed.

      . We are unable to discern any uncertainty or ambiguity either in the alternative definition of “disabled” itself, Prudential Ins. Co. of America v. Wynn, 398 So.2d 502 (Fla. 3d DCA 1981), or the clear application of that clause to the unfortunate facts of this case. Puente v. Arroyo, 366 So.2d 857 (Fla. 3d DCA 1979), cert. denied, 376 So.2d 75 (Fla.1979). On the contrary, the conclusion that the policy terms provide coverage can be achieved only by changing the disjunc-five word, “or,” between the two separate exclusionary definitions of “disabled” to the conjunctive “and.” Prudential Ins. Co. of America v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980). Courts are forbidden, however, from engaging in any such rewriting process, even in the guise of “interpreting” an insurance policy against the company. Griffin v. Speidel, 179 So.2d 569 (Fla.1965).

      . Sec. 627.644, Fla.Stat. (1981) is identical, except that it applies to all disability insurers.

      . Though the appellees actually agree with this position, our obligation to affirm the judgment upon any ground supported by the record and the applicable law, even if not relied upon below, In re Estate of Yohn, 238 So.2d 290 (Fla.1970), requires that this improvident concession be disregarded. See Penthouse, Inc. v. Saba, 399 So.2d 456, 458 (Fla. 2d DCA 1981), rev. denied, 408 So.2d 1095 (Fla.1981); 5 C.J.S. Appeal and Error § 1464(1), n. 63.5 (1958).

      . The parties apparently believe that “disability coverage” means only “disability income protection insurance.” That this is not the case is demonstrated, not only by Sec. 624.603, but by Sec. 627.643(2), Fla.Stat. (1981), which is contained within Part VI of the Insurance Code, covering “disability insurance policies,” and which includes disability income protection, as just one of several different types of “accident and health insurance” listed in the subsection. Sec. 627.643(2)(f), Fla.Stat. (1981).

      . The legislature’s intent to include medical payment insurance within the ambit of Sec. 627.6576 is further demonstrated by its later clarifying amendment of that provision. See Florida Patient’s Compensation Fund v. Mercy Hospital, Inc., 419 So.2d 348 (Fla. 3d DCA 1982). It now states

        Discrimination against handicapped under policies of group, blanket, or franchise health insurance prohibited. — No insurer offering a policy of group, blanket, or franchise health insurance shall refuse to provide, or shall charge unfairly discriminatory rates for, health insurance coverage for a person solely because the person is mentally or physically handicapped. Nothing in this section should be construed as requiring an insurer to provide insurance coverage against a handicap which the applicant or policyholder has already sustained, [e.s.]
      Sec. 627.6576, Fla.Stat. (Supp.1982).

      .The record is unclear as to whether the particular affliction, diabetes ketoacidosis, which required the hospitalization in issue here was associated with Vicente’s Down’s syndrome. This uncertainty does not preclude the affirmance of the summary judgment because, although Sec. 627.6576 does not itself prevent a carrier from denying coverage “against a person’s handicap which [he] has already sustained,” the instant policy contains no such exclusion. The only one it does have provides for a total disentitlement of any benefits for a permanently handicapped person — even if they are totally unrelated to the handicap — and is, therefore, as we have seen, invalid.


text:
    Jose MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-734.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 26, 1983.
    Don S. Cohn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Mower v. State, 308 So.2d 586 (Fla. 1st DCA 1975); Sumner v. State, 289 So.2d 434 (Fla. 1st DCA 1974); Kelly v. State, 254 So.2d 22 (Fla. 1st DCA 1971).


author: JOANOS, Judge.

text:
    Charles BARNETT, Appellant, v. William R. BARNETT, individually and as trustee, Donna B. Knauer, Downing Nightingale, Jr., Yvonne B. West, Carolyn B. Bryan, Nadia N. Allen, Jane B. Gordon, Madeline C. Franklin, and Mahoney, Hadlow & Adams, P.A., a Florida professional corporation, Appellees.
    No. AI-415.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 26, 1983.

      C. Harris Dittmar and Michael D. Whalen of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellant.
    John F. Corrigan and Lori E. Terens of Ulmer, Murchison, Ashby, Taylor & Corri-gan, Jacksonville, for appellee William R. Barnett.
    Adam G. Adams, II of Adams & Adams, Jacksonville, and Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   JOANOS, Judge.

Charles Barnett (Charles) appeals a final judgment dismissing his complaint and finding that William R. Barnett (William) acted as a prudent trustee, that there was no underdistribution to Charles Barnett or no overdistribution to the other beneficiaries. We agree and affirm the trial court’s judgment.

William was trustee to the Barnett trust established by Charles’s grandfather Bion Barnett (Bion). The trust provided that upon termination, the then-existing trust assets would be distributed in four equal shares to Bion’s surviving children. Barnett Bank stock comprised the bulk of the trust. There was a provision that should a child not survive until the termination of the trust, that child’s surviving blood issue would take the one-fourth share. Should the child die without surviving blood issue, the one-fourth share would be divided among Bion’s other surviving children or their blood issue. The trust was extended past its original termination date to continue until the death of the last surviving child. At the time the trust terminated, it was judicially determined that Charles was not a blood issue and that the trust should be distributed free of any claim by Charles. Upon the trust’s attorney’s advice, William divided the trust into four equal shares in kind and distributed three of the shares to the undisputed beneficiaries. The fourth share was held in trust pending the outcome of Charles’s appeal. William also kept upward of $55,000.00 in a non-interest bearing checking account to meet possible litigation expense. By the time Charles was determined to be a blood issue, the value of the Barnett Bank stock held by William had dropped from $48/share, when it was distributed to the undisputed beneficiaries, to $22/share. During the litigation, the stock price had fluctuated between $60/share and $9/share.

Charles contends that William underdis-tributed Charles’s share of the Barnett trust and breached his fiduciary duty by holding trust assets of stock in a falling market and by holding upward of $55,000.00 in a non-interest bearing checking account.

When a trust contains fungible property, there’s a reasonable inference of in-kind distribution. Scott on Trusts, § 347.2 (3d ed.1967). The Barnett trust consisted of shares of various corporations and William was authorized to make an in-kind distribution. There was no error in the trial judge’s apparent determination that William’s dividing the trust assets into four equal parts, distributing the three undisputed shares and retaining the disputed share were reasonable actions, considering the trust had terminated and Charles’s inevitable appeal.

Charles cites numerous cases in which valuation was required at distribution. However, in those cases valuation was necessary due to the diversified assets involved. Such valuation is not required here as the stock could be equally divided without reference to value. The trial court did not err in concluding that Charles received his equal share of the Barnett trust.

Under the exculpatory provision of the Barnett trust, William could be held liable only for willful negligence, default, malfeasance or misfeasance, and not for honest errors of judgment made in good faith. William’s holding the Barnett Bank stock in a declining market would not be in bad faith considering the tradition of holding Barnett Bank stock in the trust since its inception. Charles would have us reverse and hold William liable for not knowing when to sell high. This we cannot do as the record supports the trial court’s contrary conclusion. Also, William’s holding cash in a non-interest bearing checking account would not be in bad faith considering the probability of litigation expenses. Under the circumstances, the trial judge could con-elude that William acted as a reasonable, prudent trustee. He is, therefore, not liable for the drop in stock value or the mistake in business judgment which caused a loss of interest.

Accordingly, the final judgment is AFFIRMED.

LARRY G. SMITH and SHAW, JJ., concur.

      . Knauer v. Barnett, 360 So.2d 399 (Fla.1978).

      . Boston Safe Deposit and Trust Company v. Stone, 348 Mass. 345, 203 N.E.2d 547 (1965); Sanderson v. Bigham, 40 S.C. 501, 19 S.E. 71 (1894); Moore v. Baker, 224 N.C. 498, 31 S.E.2d 526 (1944); In Re Will of Wickman, 289 So.2d 788 (Fla. 2d DCA 1974).


author: SHIVERS, Judge.

text:
    SEAMCO LABORATORIES, INC., and Federal Insurance Company, Appellants, v. William S. PEARSON, Appellee.
    No. AK-351.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 25, 1983.

      Clifford L. Somers of Miller, McKendree & Somers, Tampa, for appellants.
    Stephen L. Rosen of Morris & Rosen, P.A., Tampa, for appellee.
   SHIVERS, Judge.

Employer/Carrier appeal workmen’s compensation order finding statute of limitations has been tolled by the rendering of medical care to claimant by authorized physician.

The employer/carrier ask us to reverse the deputy commissioner because the employer/carrier were not notified that this medical care was being furnished or were not requested to pay for it within a two-year limitation period. We find the deputy did not err and affirm.

Claimant sustained a compensable injury on December 22, 1978, and was treated by Richard P. Molloy, M.D. The employer/carrier terminated compensation benefits on January 15, 1979, when claimant reached maximum medical improvement. Subsequently, however, claimant’s respiratory condition resulting from the injury worsened. On July 7,1980, claimant returned to Dr. Molloy, his authorized treating physician, who hospitalized him. Employer/Carrier admit in their brief that Dr. Molloy did not lose his status as claimant’s authorized treating physician.

Although claimant requested that Dr. Molloy send his medical bills and reports to the employer/carrier, Dr. Molloy failed to do so within the two-year period following the termination of compensation benefits on January 15, 1979.

On August 10, 1981, claimant filed a claim for further compensation benefits. The deputy commissioner rejected the employer/carrier defense that the claim was barred by the statute of limitations and found that the statute of limitations had been tolled by the rendering of treatment by the authorized physician.

Appellants correctly point out the two pertinent statutes: section 440.19(1)(a), Fla.Stat. (1977) and section 440.13(3)(d), Fla.Stat. (1978 Supp.).

Section 440.19(l)(a) reads:

The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within 2 years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.

Section 440.13(3)(d) reads in part:

All rights for remedial attention under this section shall be barred unless a claim therefor is filed with the division within 2 years after the time of injury, except that if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer; ...

The case here is similar to the case of Vincent v. Tropicana Products, IRC Order 2-3103, cert. den., 351 So.2d 409 (Fla.1977). There it was held that treatment by an authorized physician within the two-year period was sufficient to toll the running of the statute and the employee was not obligated to first obtain further authorization for the treatment. Vincent held that a discharge by the treating doctor does not eliminate or shorten the two-year protective period. The deputy commissioner in the case sub judice correctly noted that even though Dr. Molloy did not submit a bill or a report to the employer/carrier within the two-year period, as the Vincent physician did, he rendered remedial treatment before the expiration of the two-year period. It is the remedial treatment that tolls the statute, not the report of the treatment.

In Johnson v. Division of Forestry, 397 So.2d 761 (Fla. 1st DCA 1981), we held:

The statutory language is clear that it is the last furnishing of such remedial treatment or payment of compensation from which the two-year limitation is measured.

The claim was timely filed within two years from the furnishing of remedial treatment by an authorized physician.

AFFIRMED.

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


author:
THOMPSON, Judge.
      WENTWORTH, Judge,

text:
    CINTAS CORPORATION and CNA Insurance Company, Appellants, v. William E. PRICE, Appellee.
    No. AL-328.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 25, 1983.
    Wendell J. Kiser, P.A. and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    John Marshall Kest of Wooten, Honeywell, Kest & Martinez, Orlando, for appel-lee.
   THOMPSON, Judge.

This is an appeal from a compensation order awarding wage loss benefits pursuant to § 440.15(3)(b), Fla.Stat. We reverse upon our determination that the record is devoid of competent substantial evidence which could support the finding of the deputy commissioner (deputy) that claimant sustained a permanent impairment as the result of his industrial accident.

In December 1976, claimant sustained back and neck injuries in a noncompensable automobile accident, and in February 1977, he sought treatment of these injuries from Dr. Tucker, an orthopedic surgeon. In August 1979, Dr. Tucker determined that claimant had reached maximum medical improvement (MMI) with respect to the injuries sustained in the automobile accident. Dr. Tucker was of the opinion that as of August 1979, claimant had a 5% permanent impairment of the back and an additional 5% permanent impairment of the neck.

On May 9, 1980, claimant reinjured his back as a result of a compensable industrial accident, and again sought treatment from Dr. Tucker. After a lengthy course of treatment, Dr. Tucker determined that claimant reached MMI with respect to the industrial injuries on August 19, 1981. After again examining claimant on September 23, 1981, Dr. Tucker noted that claimant’s condition remained unchanged since the pri- or impairment rating was assigned in 1979.

At the hearing, claimant testified that his condition had worsened significantly as a result of the industrial accident, and that he had been able to return to work with a new employer in August 1981 only because his new job amounted to sheltered employment. This testimony does not constitute competent evidence of the existence of an accident related permanent impairment. Because soft tissue back injuries, such as the one at issue here, are not susceptible of evaluation by a lay person, it was incumbent upon the claimant to adduce medical evidence tending to prove the existence of an accident-related permanent impairment. §§ 440.02(21), .15(3)(b)2, Fla.Stat.; Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982). The only medical evidence in the record is that of Dr. Tucker, the treating physician.

Dr. Tucker, testifying in deposition and in response to direct examination by claimant’s counsel, stated that claimant had sustained a 5% permanent impairment. This testimony, if considered only in the context of the immediately preceding questions and responses, could arguably be interpreted as evidence that the industrial accident had caused claimant to sustain permanent impairment in addition to the pre-existing impairment which resulted from the 1976 automobile accident. However, after stating that the claimant did have a permanent impairment, Dr. Tucker continued his testimony with a reference to the 5% impairment rating assigned in 1979, and at no time did he expressly associate the 5% impairment rating with the industrial accident. Furthermore, at no time did Dr. Tucker opine that claimant had a permanent impairment of the back in excess of 5%. Dr. Tucker affirmatively testified that the limitations he placed on claimant’s activities as a result of the industrial accident were the same as the limitations imposed after the auto accident, and that the complaints claimant voiced subsequent to the industrial accident were essentially the same as the complaints he had after the auto accident. Furthermore, as noted above, the doctor’s office note dated September 23, 1981, unambiguously states that claimant’s condition was unchanged since the prior rating was assigned in 1979.

After careful consideration of the entire record in this case, we are unable to sustain the deputy’s determination that claimant suffered permanent impairment as a result of the industrial accident. Although we are mindful of our obligation not to usurp the fact-finding role of the deputy, we note that this is not a case where the deputy was obliged to choose the testimony of one expert over that of another, based on his assessment of the expertise and credibility of each witness. Rather, it appears that the deputy, having properly accepted Dr. Tucker’s evidence as competent, thereafter fell into error by failing to consider Dr. Tucker’s evidence in its entirety. Because none of the medical evidence was presented live, this court is not at any disadvantage in assessing and evaluating this evidence. Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA), pet. for rev. den., 402 So.2d 609 (Fla.1981).

Based on the above-referenced authorities, and on our review of the entire record, we conclude that claimant has failed to carry his burden of proving that the industrial accident caused any permanent impairment. Because the award of wage loss benefits and costs, and the reservation of jurisdiction to determine entitlement to attorney’s fees were predicated on the deputy’s finding of an accident related permanent impairment, our determination that said finding was without record support requires that the order be, and it hereby is, REVERSED in its entirety.

BOOTH, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

The order appealed states:

I specifically note Dr. Tucker’s opinion that Mr. Price had some pre-existing physical problems but find the disability rating he assigned in his deposition is as a result of this particular industrial accident. I make this finding based on my reading and interpretation of the doctor’s deposition, coupled with my personal observation of the claimant and his testimony as to his condition at the present and his condition after his 1979 accident.

I would conclude against reversal for many reasons, one of which is the impropriety of equating old and new permanent impairment ratings on a simple numerical basis when the doctor’s reports compared current impairment only with that existing at the former maximum medical improvement date more than two years earlier, and not with that existing at the time of the last compensable accident, which followed a period of employment not covered by the medical reports. A more elemental reason for my disagreement, however, is a reluctance to translate ambiguous testimony, by deposition or otherwise, contrary to the translation accorded by the deputy. I would affirm.


author: THOMPSON, Judge. BOOTH, Judge,

text:
    IDLE ASSETS, INC., an Indiana Corporation, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE, Appellee.
    No. AL-393.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 19, 1983.

      Edward S. Jaffry and William L. Gros-senbacher of Home, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, for appellant.
    Gabriel Mazzeo, Dept, of Ins., Tallahassee, for appellee.
    J. Robert McClure, Jr., and David S. Dee of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, as amicus curiae for Florida Ass’n of Life Underwriters.
   THOMPSON, Judge.

Idle Assets, Inc. appeals from a declaratory statement of the Insurance Commissioner finding its investment plan to be in violation of §§ 626.112(1), .051, Fla.Stat., and administrative rules governing the insurance business. We affirm.

Idle Assets, Inc. offers a plan through which owners of small whole life insurance policies can profit from the investment of the accrued cash value of their policies in certificates of deposit (CDs). The plan operates through lending institutions (banks) which encourage customers to borrow the cash value of their whole life policies paying the low interest rate specified in the policies and to reinvest the proceeds in CDs sold by the bank which pay a higher interest rate. The plan’s attractiveness to owners of whole life policies is enhanced by the plan’s provision for group term life insurance in an amount equal to the policy loan for each individual who participates in the plan. The customer would therefore continue to have life insurance protection in the full face amount of the whole life policy although the value of the whole life policy has been diminished by the borrowing. The owner of the group term policy is the Idle Assets’ Trust, which pays the premium on the term insurance with monies received from the participating banks. No specific identifiable charge is made to the customer for the term insurance. However, the Idle Assets’ CDs earn a slightly lower rate of interest than banks ordinarily pay on CDs and which an individual, who is not a member of the plan, could obtain by the investment of his or her cash value. The plan therefore does involve a cost to participants to that extent.

Idle Assets, Inc. enrolls banks in its program by persuading the banks that their participation in the plan will cause them to receive large amounts of new, long-term deposits through the sale of 30-month Idle Assets’ CDs. Idle Assets, Inc. provides the banks with forms and brochures necessary to advertise and administer the program, and sends a representative to the bank to train a bank employee to act as the bank’s in-house administrator of the plan. It also provides a Dale Carnegie course for bank employees, who then attempt to “sell” bank customers on the advantages of participate ing in the plan. The training provided for the bank’s in-house administrator consists primarily of teaching him or her to compute the cash value of whole life insurance policies. Presumably the training is provided so that the bankers can make a tentative determination as to whether the cash value of the customer’s policy exceeds the $1,000 minimum needed to purchase an Idle Assets’ CD.

A bank customer who decides to join the plan executes an application card for the term life insurance and a limited assignment of the whole life policy to the bank. On the basis of the assignment the bank applies for and obtains directly from the insurance company the loan of the policy’s cash value. When the loan proceeds are received by the bank, it issues an Idle Assets’ CD in an amount equal to the amount of the loan. At the same time the bank forwards the application for the term insurance to the Idle Assets’ Trust which returns the certificate of insurance to the customer. Although the bank does solicit and transmit the application for the term insurance, it receives no commission on the sale of the insurance. The only way the bank profits by participating in the plan is through the receipt of new long-term deposits. The profits of Idle Assets, Inc. are derived from the service fees it charges the bank for administering the program.

Idle Assets, Inc. petitioned the Department of Insurance for a declaratory statement that its plan did not violate certain Florida statutes and rules pertaining to the insurance business. In his recommended order, the hearing officer found that the Idle Assets plan was in violation of certain statutes and regulations, most notably §§ 626.112(1), .051, Fla.Stat. The Insurance Commissioner adopted the recommendations of the hearing officer and issued his declaratory statement finding that the plan of Idle Assets, Inc. would violate certain laws and rules, including §§ 626.-112(1), .051, Fla.Stat.

Section 626.112(1) prohibits unlicensed persons from acting as insurance agents. Section 626.051 provides in part:

(2) [N]o person shall, unless licensed therefor as an agent:
(a) Solicit insurance or annuities or procure applications therefor; or
(b) In this state engage or hold himself out as engaging in the business of analyzing or abstracting insurance policies or of counseling or advising or giving opinions to persons relative to insurance or insurance contracts....

There is competent substantial evidence to support the findings of the hearing officer and the Insurance Commissioner that the execution of the plan by the banks and Idle Assets, Inc. violates the laws and rules which prohibit a person unlicensed as insurance agent from engaging in the business of analyzing or abstracting insurance policies or of counseling or advising or giving opinions to persons relative to insurance or insurance contracts. The construction placed on a statute by officials charged with the duty of executing it should not be disregarded or overturned by an appellate court except for the most cogent reasons and unless clearly erroneous. King v. Seamon, 59 So.2d 859 (Fla.1952); ABC Liquor Stores, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). The plan contemplates that bank employees that are not licensed as insurance agents will review insurance policies of customers, actively encourage them to borrow the cash value of their life insurance policies, take an assignment of the policy for this purpose, invest the loan proceeds obtained in CDs yielding a lower than normal rate of interest, and replace the insurance coverage lost with term insurance, the application for which they take from the customer. The Insurance Commissioner’s determination that such activity would violate the statutes prohibiting persons unlicensed as insurance agents from “... counseling or advising or giving opinions to persons relative to insurance or insurance contracts ...” is not clearly erroneous.

The declaratory statement of the Insurance Commissioner is AFFIRMED.

WENTWORTH, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting:

I respectfully dissent from the majority’s affirmance of the order below. I cannot agree that the Idle Assets program violates Section 626.051 and/or Section 626.112(1), Florida Statutes.

There was no evidence that persons who were not licensed agents gave advice or counsel concerning insurance as part of the investment program in question. On the contrary, the Department’s position is that the failure to give advice or counseling, where same should be given in connection with acquiring group term insurance, violates Section 626.051(1). At oral argument, the Department abandoned any serious contention that the giving of a tentative opinion as to the cash surrender value of a customer’s whole life policy by one not licensed as an insurance agent was violative of any statute or rule. There is no issue here of sale of life insurance by anyone other than licensed agents and no violation found in that regard.

Under the circumstances, the Department’s asserted right to prohibit the investment program as presently organized is based on an extremely tenuous and, in my opinion, unwarranted construction of the statutes in question. The power to regulate can only be exercised where clearly given by statutory authority. That authority being lacking, the order below should be reversed.


author:
MILLS, Judge.
      ERVIN, Judge,

text:
    MONROE COUNTY SHERIFF’S DEPARTMENT/BOARD OF COUNTY COMMISSIONERS, Monroe County Florida and Gallagher Bassett Insurance Service, Appellants, v. Charles RUTH, Appellee.
    No. AM-332.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 26, 1983.
    Joseph V. Niemoeller of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for appellants.
    Ramon Malea of Malea & Prager, P.A., Miami, for appellee.
   MILLS, Judge.

In this appeal of a workers’ compensation order, the deputy did not err in permitting claimant to pose a hypothetical question to a doctor.

The deputy did err in finding that claimant’s attorney was entitled to a fee and reserving jurisdiction to set the amount of the fee only.

Claimant was injured in an accident occurring on 20 July 1980. The award of an attorney’s fee is controlled by Section 440.-34(3)(a), (b), (c), Florida Statutes (1981).

Claimant did not contend in either his claim or prehearing stipulations or contentions that the employer/carrier denied com-pensability or were guilty of bad faith or that he sought medical benefits only. The deputy did not find in his order that the employer/carrier denied compensability or were guilty of bad faith or that claimant sought medical benefits only.

In the absence of a contention that one of the criteria is claimed [ (a), (b), or (c) ] and proof of its existence, the deputy has no authority to hold that an attorney’s fee is due claimant.

Affirmed in part and reversed in part.

WIGGINTON, J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge,

concurring and dissenting.

I concur in that portion of the majority’s opinion affirming the deputy’s order relating to the hypothetical question posed. I respectfully dissent to that part of the opinion reversing the deputy’s reservation of jurisdiction to determine the reasonableness of an attorney’s fee. In my judgment, such reservation is a non-final, non-appealable order; hence one that should not be entertained on appeal. See Sunny Pines Convalescent Center v. Walters, 422 So.2d 1079 (Fla. 1st DCA 1982), which specifically so holds.

Since, however, the majority has reached the merits of the propriety of the deputy’s reservation of jurisdiction, I too will address it, and find it sustainable. The appel-lee’s claim for benefits was couched in the following language:

1. Medical care including hospitalization, surgical care at John Hopkins Medical Institute at Baltimore Maryland.
2. Follow-up medical care following the surgery.
3. Temporary Total Disability benefits and/or Temporary Partial Disability benefits from the date the claimant is admitted to the hospital for surgery.
4. Attorneys fees, costs, and interest and penalties.

The facts reveal that the employee suffered injuries to his head as a result of a fall while in the course and scope of his employment. The e/c did not controvert the accident as compensable. It did, however, deny that the accident aggravated claimant’s preexisting condition of Mucopo-lysaccharidosis, Type Six. The pretrial stipulation divulges that the primary contention between the carrier and the claimant was the request for medical care at Johns Hopkins Institute, where claimant had previously been treated for his condition, as well as for surgery and follow-up care. The carrier’s position was that no medical treatment was necessary after July 25, 1980, following the accident which occurred on July 21, 1980.

The majority’s opinion sustains the deputy’s order directing the carrier to provide the claimant with the requested medical care at Johns Hopkins, together with temporary total disability benefits upon admission to the hospital (no temporary partial disability benefits were ordered); yet it reverses the order as it relates to the reservation of jurisdiction for the purpose of determining a reasonable attorney’s fee. I think one can justifiably conclude that the employee’s claim was essentially one for medical benefits as well as incidental disability benefits following the importuned surgery.

A claim for temporary total disability benefits following certain requested surgery has been held to be part of a claimant’s essential medical care, and as such not to disqualify an award of attorney’s fees under Section 440.34(2)(a), Florida Statutes (1979). As we stated in Landers Construction v. Delauder, 417 So.2d 989 (Fla. 1st DCA 1981):

The inclusion of a claim for “continuing temporary total disability benefits after said surgery” is part of claimant’s essential medical care and does not disqualify the claim under Section 440.34(2)(a). Nor does the claim for interest, penalties, attorney’s fees and costs disqualify the claim as being one for “medical expenses” only, since these items are statutorily provided once the Deputy has determined that medical benefits due claimant have not been properly paid.

Id. at 989.

In the present case, the claim for disability benefits was dependent upon and a consequence of the claim for medical benefits. Only if the claim for the requested surgery were granted would the claim for disability benefits be pertinent. Therefore, consistent with Landers, the claim before the deputy was in essence one for medical benefits, and since the employee prevailed on that claim, he should be entitled also to an assessment of attorney’s fees against the carrier. Accordingly, if we must address the merits of the deputy’s reservation of jurisdiction to determine the reasonableness of attorney’s fees, I would also affirm it.

      . Although Landers involved an interpretation of the 1979 statute, the 1980 statute, which applies to the claim before us, since the accident occurred on July 21, 1980, is identical to that portion of its predecessor in permitting a claimant to recover an attorney’s fee from a carrier or employer “[a]gainst whom he successfully asserts a claim for medical benefits only.” Section 440.34(3)(a), Florida Statutes (Supp.1980).


author: HURLEY, Judge.

text:
    SAFECO INSURANCE COMPANY OF AMERICA, Appellant, v. Lawrence Aaron WARE, Appellee.
    No. 81-1077.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 26, 1983.
    Joe N. Unger of Law Offices of Joe N. Unger, P.A., and Thompson & Clark, Miami, for appellant.
    K. Jack Breiden of E. Louis Fields, P.A., Fort Lauderdale, for appellee.
   HURLEY, Judge.

The question in this case is whether to apply the law of Florida or that of New Jersey to determine the effect of an insurance contract made in New Jersey, but with notice that it would be performed, at least in part, in Florida. We affirm and hold that Florida law is applicable.

The undisputed, relevant facts are as follows: On December 21, 1978, the plaintiff, Lawrence Aaron Ware, was injured in an automobile accident that occurred in Bro-ward County, Florida. Ware was driving an automobile owned by and registered to Bill Jax Scaffolding, Inc. Because Ware was driving with the express consent of the owner, he was protected by an insurance policy issued to Bill Jax Scaffolding, Inc., by the defendant, Safeco Insurance Company of America. This insurance agreement was negotiated, executed and delivered in New Jersey. Although disputed, the record further indicates that when the insurance was purchased, Safeco was on notice that the vehicle would be principally garaged in Florida.

Florida and New Jersey have different statutory provisions for uninsured motorist coverage. Without detailing the specifics of the varying provisions, suffice it to say that under Florida law Safeco would be liable for $90,000 whereas, under New Jersey law, Safeco would be liable only for $5,000. The trial court applied Florida law for reasons set forth in its final declaratory judgment:

D. The aforementioned insurance agreement was negotiated, executed and delivered in the State of New Jersey. However, notwithstanding the significance of locus of the contract urged by Defendant, SAFECO, the Court is of the opinion that Florida has a significant relationship to the insurance contract at issue so as to determine that this is not an appropriate case for the application of comity principles. The Court’s opinion is based upon an evi-dentiary demonstration revealing that:
1. The covered vehicle was garaged and/or in constant use in Florida for at least six (6) months prior to the accident.
2. That the Defendant, SAFECO, had appropriate notice of the exposure to a Florida risk, at least since June of 1978 (the time of entering into the contract, and some six months prior to the accident).
3. The Plaintiff, LAWRENCE AARON WARE, was at all times material to the cause of action a resident of the State of Florida.
4. The accident occurred in Broward County, Florida.
5. The risk of the policy as to the vehicle concerned, was centered in Florida and only minimal contacts with New Jersey existed in terms of actual risk.

Since the above findings are supported by competent substantial evidence, we affirm on the authority of Gillen v. United Service Automobile Ass’n, 300 So.2d 3 (Fla.1974) and Decker v. Great American Insurance Co., 392 So.2d 965 (Fla. 2d DCA 1980).

AFFIRMED.

GLICKSTEIN and DELL, JJ., concur.

      . Compare § 627.727, Fla.Stat. (1981), with N.J.S.A. § 39:6B-1 and N.J.S.A. § 39:6A-3. See also Gorton v. Reliance Insurance Co., 77 N.J. 563, 391 A.2d 1219 (1978).


author: GLICKSTEIN, Judge. WALDEN, Judge,

text:
    Edward COLINA, Jr., Appellant, v. Blanche A. COLINA, a/k/a Blanca A. Tatum, Appellee.
    No. 81-1814.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 26, 1983.
    William H. Pruitt, West Palm Beach, for appellant.

      Michael A. Slivka of O’Connell, Cooper, Parrish & McBane, P.A., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The appellant/former husband seeks review of a final summary judgment awarded the appellee/former wife. We reverse and remand.

The former husband was awarded the use and possession of the marital home in 1970. There is no transcript of the final divorce hearing and no purpose for such award expressed in the final judgment. Accordingly, we are left with only the parties’ depositions taken prior thereto and the resulting speculation that is derived from their review.

One month after entry of the final judgment, the former wife moved for modification, seeking partition of the real property and division of tangible and intangible personalty owned by the parties together. She also sought alimony, claiming the prayer for same in her counterclaim, at the time of final hearing, was “left pending the outcome of negotiations between the parties.” The trial court denied the motion for lack of jurisdiction as to all of her claims. There apparently was no appeal from the denial.

Within a few months the former wife had remarried in California; and the parties stipulated to the former husband having temporary custody of the parties’ children during the summer months. However, the former husband’s motion for full custody of both children, filed shortly after the divorce, was not resolved by the stipulation and remained in a pending status until 1972. At that time, he abandoned his motion as to the daughter; and the trial court denied the motion as to the son. Over the years, the parties fought over visitation and support.

In February, 1981, the former wife filed a “Supplemental Complaint for Modification” in which she alleged a substantial change in circumstances affecting the former husband’s use and possession of the property; namely, the fact that the minor son — as-sumably then 17 — no longer resided at all with the former husband. The former husband’s answer denied the foregoing allegation and alleged that the claimed change was insufficient to warrant modification. The former wife tendered interrogatories to the former husband, who answered, saying he had been married in 1973 and divorced in 1980. Thereafter, she moved for summary judgment, alleging that since the award of use and possession must have been an incident of support to the former husband, his remarriage in 1973 terminated that obligation and his right to use and possession. The trial court entered a one sentence order, granting the motion. It then rendered a summary final judgment which modified the final judgment and recited only that the former husband “shall no longer have the sole use and possession of the marital home.” No transcript of any hearing in 1981 has been included in the record.

We have no way of knowing on which ground the trial court entered summary judgment because of its brief order. The complaint alleged one ground and the motion alleged another. We believe the ground asserted in the motion is farfetched and the one asserted in the supplemental complaint, which seems sensible and reasonable, was not sworn to by the former wife and denied by the former husband. Accordingly, the entry of summary judgment was improper whichever ground occasioned it.

On remand the trial judge should flesh out this case by requiring appropriate pleadings and testimony or affidavits upon which an appropriate order for the use and possession of the property can be based. Once use is determined, disposition then can be sought in separate proceedings.

DELL, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting.

I would affirm because, as reflected in the majority opinion, appellant (former husband) has not furnished this Court with a transcript of the hearing in question and has in no-wise demonstrated error on the part of the trial court with reference to the appealed decision. See 3 Fla.Jur.2d Appellate Review § 316.

      . In Duncan v. Duncan, 379 So.2d 949 (Fla.1980), the supreme court subsequently held that the award of exclusive possession of marital property to one of the parties in a final judgment “must serve a special purpose.”

      . The former wife’s deposition reflects that as a result of the parties’ separation prior to final hearing, she and the parties’ two minor children had moved to Miami; and the former husband had remained in the marital home in Palm Beach County.

      . A daughter, then 11 and a son, then 6.

      . The former husband’s complaint for divorce did not seek alimony for himself and none was awarded. He did seek possession of the home; and the former wife did not.

      . We have no difficulty with the use of modification as the procedural vehicle in this case. The award of use and possession in 1970 did not divest the former wife of her interest in the real property. See Banks v. Banks, 98 So.2d 337 (Fla.1957).

      . See Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977).


text:
    ST. AUGUSTINE POOLS, INC., Appellant, v. JOHNSON & BAILEY ALUMINUM AND CARPET, INC., etc., and Richard A. Caputo, Appellees.
    No. 82-120.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 6, 1983.
    William A. Hart and Richard L. Gumo, Holly Hill, for appellant.
    John D. Bailey, Jr., of Upchurch, Bailey & Upchurch, P.A., St. Augustine, for appel-lees.
   PER CURIAM.

This is an appeal in an action to determine if a general contractor was liable to an aluminum company for material and services provided as part of an improvement and whether the construction was subject to defects.

Appellant constructed a pool for appellee homeowner. Appellee aluminum company constructed a screened enclosure over the pool. The homeowner, claiming defects in the enclosure, withheld partial payment. Appellee aluminum company sued appellant pool company. The pool company denied liability for the sum due plaintiff for the enclosure but also filed a third-party complaint against the homeowner. The case was tried and submitted to a jury on a special verdict. While the special verdict form was not prepared so as to clearly submit the pleaded issues to the jury, the jury did find that appellant pool company was liable to the aluminum company and that the screen enclosure was not defective. The ambiguities in the special verdict resulted in an ambiguous final judgment.

From an examination of the record we find that under the issues framed by the pleadings, the verdict returned, and the facts and law in the case final judgment should be entered in favor of the aluminum screening company, Johnson & Bailey Aluminum and Carpet, Inc., and against the pool company, St. Augustine Pools, Inc., for $4,176.36 and $724.50 costs, or $4,900.00, and that judgment on the third-party complaint should be entered in favor of the pool company, St. Augustine Pools, Inc., and against the owner, Richard A. Caputo, for the same amount and costs.

REVERSED AND REMANDED for entry of judgment as directed.

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


author: SHIVERS, Judge. WENTWORTH, Judge,

text:
    Larry Edward JOHNSON, Appellant, v. METROPOLITAN DADE COUNTY; Broward County Board of County Commissioners; and Town of Pembroke Park, Appellees.
    No. AE-426.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 27, 1983.
    Albert E. Harum, Jr., of Harum & Ha-rum, Miami, for appellant.
    Robert A. Ginsburg, Dade County Atty., and Marilyn Strauss, Asst. County Atty., for appellee Metropolitan Dade County.
    C. Randal Morcroft, Fort Lauderdale, for appellee Broward County Bd. of County Com’rs.
    H. George Kagan, of Miller, Hodges and Kagan, P.A., Miami, for appellee, Town of Pembroke Park.
   SHIVERS, Judge.

Larry Edward Johnson, a Dade County police officer, appeals workers’ compensation order denying him benefits.

Johnson claims the deputy commissioner erred: (I) in finding that his injuries were not sustained within the course of his employment with Dade County, and (II) in finding that Johnson was not an employee concurrently of Broward County and the Town of Pembroke Park at the time of the accident.

Claimant Johnson was driving to his home in Broward County at approximately midnight when he observed what appeared to be a breakin at a convenience store. The store was located a few hundred feet outside of Dade County within the Town of Pembroke Park, Broward County. Observing no police cars in the vicinity, claimant stopped to investigate. Claimant identified himself as a police officer and a chase of the suspects ensued, resulting in an altercation in which claimant received a broken nose and other facial injuries.

A claim was filed against Dade County, Broward County and the Town of Pembroke Park. The deputy commissioner entered an order finding that claimant had left the jurisdiction of Dade County and was, therefore, not within the scope of his employment with Dade County, but was acting as a “volunteer” when the injuries occurred. The deputy commissioner found that claimant was not assisting any police agency, “nor was he engaged in an emergency” at the time of his injuries and that the theory of implied employment did not apply to either Broward County or the Town of Pembroke Park.

We conclude that claimant was injured in an accident arising out of an implied employment relationship with the Town of Pembroke Park and reverse.

The essential question on Point I is whether claimant’s employer, Dade County, imposed any duties or obligations on him, outside his jurisdiction, which would make Dade County responsible for any injuries he sustained while performing his duties. Johnson claims that the Dade County departmental directives, plus the fact that he was required by the department to be armed at all times, made him obligated or duty-bound to respond when he witnessed an apparent robbery in progress in Broward County.

While some of the provisions of the Law Enforcement Code of Ethics seem to encourage police officers to respond in such situations, the directives relating to on-duty and off-duty officers outside of their jurisdiction, make it clear that their authority is limited to fresh pursuit, prisoner transportation, and carrying a concealed weapon. Any other law enforcement-type action is not sanctioned by law and is undertaken as a “private citizen.”

The fact that claimant was required to carry a gun at all times does not necessarily indicate he was expected or required to use it outside his jurisdiction. In City of Miami Beach v. Valeriani, 137 So.2d 226 (Fla.1962), a Miami Beach police officer was assaulted approximately a mile from Miami Beach city limits while attempting to make an arrest before he had reported to work. The Supreme Court held that Officer Valeriani’s injury did not arise out of his employment with the City of Miami Beach. In the case sub judice, claimant was not authorized to take the action he took outside of his jurisdiction. His injuries, thus, did not arise within the course and scope of his employment with Dade County.

Injuries sustained by employees when going to or returning from their regular place of work are not generally deemed to have been incurred in the course and scope of their employment. Police officers, though, are often excepted from this rule. Here, however, claimant was out of his jurisdiction and was not covered under the police officer exception to the “going and coming rule.” See, City of Coral Gables v. Williams, 389 So.2d 1212 (Fla. 1st DCA 1980).

Claimant contends, in Point II, that by swiftly reacting to the emergency situation, he was engaged in an implied employment relationship with both Broward County and the Town of Pembroke Park. He asserts that although his assistance was not specifically requested, the emergency nature of the situation was sufficient to create an implied contract of employment with Broward County and the Town of Pembroke Park. By preventing the completion of a robbery as well as the escape of the thieves, he maintains he was carrying out the duties of either a Broward County or a Town of Pembroke Park police officer when he sustained his injuries.

A Mutual Aid Emergency Force Plan had been agreed upon by Broward County and the Town of Pembroke Park.

The Town of Pembroke Park argues that claimant was acting merely as a private citizen and that the Town of Pembroke Park does not desire to have its citizens intervene in such situations.

We observe that a police officer, on his way home from work, who witnesses a felony in progress would feel a greater sense of obligation to respond to the incident than would a private citizen. It would seem that the public and the employer would have a greater expectation that a police officer take some action, since he is a public servant, specially trained and equipped to handle such situations. The officer here acted reasonably and well. There was no opportunity to notify the local authorities in time to prevent the apparent crime. Claimant undertook to handle the situation as best he could.

In Dade County Board of County Commissioners v. Picharello and Broward County Board of County Commissioners, Airport Police, IRC Order 2-3163 (Fla., May 20, 1977), an off-duty Dade County detective was at the Broward County airport to meet his parents. While there he saw a Broward County Airport police officer trying to take a man into custody. The man had knocked down several persons, including two airport police and had struggled with one for his pistol. A firearm had been discharged and the man was moving away from the Airport Police one of whom the man had wrestled to the ground. The Dade County detective assisted by stopping the subject, but was injured in doing so. The Commission held that the Dade County detective not being engaged in the course of employment with Dade County could not recover from Dade County. However, the Commission held that the Dade County detective was injured in an accident arising out of and within the course of an implied employment relationship with Broward County Airport Police.

Under the Mutual Aid Emergency Force Plan, Broward County ordinarily would not be called in a situation like this. We affirm the deputy’s finding that the theory of implied employment did not apply to Broward County.

However, the facts here support a finding that claimant Johnson was injured in an accident arising out of and in the course of an implied employment relationship with the Town of Pembroke Park. The Town of Pembroke Park is considered the employer and shall provide proper compensation for claimant’s injuries.

REVERSED and REMANDED.

ERVIN, J., concurs.

WENTWORTH, J., concurs and dissents, with opinion.

WENTWORTH, Judge,

concurring and dissenting in part.

I agree with the majority opinion insofar as it holds that the claimant’s injury arose out of and in the course of employment, but would find that the employment relationship was with Dade County.

Extensive evidence pertaining to claimant’s duties as a Dade County police officer is contained in the record on appeal. Without reciting that evidence in detail, it is clear that claimant would have been acting within the scope of his employment with Dade County had the incident occurred within that county’s borders. He was required to carry a gun at all times; he was expected to cooperate with the law enforcement officers of other agencies; and he was required to use force when necessary to effect an arrest. In short, the evidence demonstrates that claimant was expected and encouraged to respond as he did here.

Dade County seeks (and the decision of the majority effectively grants) shelter from liability under the section of the Department’s manual which asserts that a law enforcement action, taken outside the county limits by an off-duty officer, “does not have the sanction of law, such action is in the nature of a private citizen.” However, that provision is followed with: “Therefore, first consideration, should be given to having appropriate action initiated by the concerned law enforcement agency.” In my opinion, Dade County’s message to its officers is that they are expected to behave as public officers at all times and places within the state, although deference to the presiding agency should always be a primary concern. Where, as here, it is not possible to have the “concerned” agency initiate the appropriate action, the officer must use his own training and judgment to determine what the appropriate action is. My interpretation of this directive finds further support in the next section which categorically and expressly forbids engaging in police activities outside the state unless in performance of their duties as agents of the county, or as provided for in the Uniform Act on Fresh Pursuit. If Dade County intended a similar restriction beyond the boundaries of the county, it could have, and should have, indicated that intention in similarly unambiguous language.

In contrast, the majority opinion extends the basis for workers’ compensation liability beyond that reasonably attributable to an agency which in no way consents or participates in law enforcement action by a volunteer. Its rationale could logically be applied to an untrained civilian taking the same actions as claimant did here.

As Commissioner Canaday pointed out in his special concurrence to Dade County et al. v. Picharello, IRC Order 2-3163 (Fla. May 20, 1977), neither geographic boundaries nor specific hours should be the determinative guide for scope of employment. And in this case the question of who or what was the intended beneficiary of the claimant’s actions is not dispositive. Rather, determinations of the scope of employment must flow from the responsibilities of employment, particularly when that employment requires inherently dangerous activity for which the employee is specially trained, equipped, and enjoined to perform within and beyond regular scheduled hours. In my opinion, the activity in which claimant was engaged at the time of his injury was such dangerous activity, for which he was specially trained and which he reasonably understood his employer expected him to perform. I would find Dade County responsible for compensation coverage under these circumstances.

      . See also Clinton v. State, 421 So.2d 186 (Fla. 2d DCA 1982), affirming an order of the circuit court finding that two municipal police officers were engaged in the lawful performance of their duties when they were battered by the defendant outside of their jurisdiction. The court noted that the scope of an officer’s official duties is not coextensive with his power to arrest, and that an officer is engaged in the performance of his official duties when he is acting within the scope of what he is employed to do.

      . There would appear to be no conceivable basis on which a carrier for such agency could anticipate or compute the actuarial risk of providing such benefits, while that problem is minimized with respect to actions of employed officers acting pursuant to written guidelines such as those prescribed by Dade County. In that situation there is access to all pertinent information concerning the employees covered, including such data as number of officers, their residence (in this case claimant lived outside Dade County and within the county where the injury occurred), and employer’s instructions as to job performance.


author: DELL, Judge.

text:
    Diane Carol HENRY, Appellant, v. BEACON AMBULANCE SERVICE, INC., d/b/a Beacon Medical Supply Co.; Jefferson Insurance Company of New York; Mount Vernon Fire Insurance Company and Insurance Company of North America, Appellees.
    No. 81-1664.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 26, 1983.

      J. Jay Simons of Simons & Schlesinger, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, and Pysz-ka & Kessler, Fort Lauderdale, for appel-lees-Beacon Ambulance Service, Inc., d/b/a Beacon Medical Supply Co. and Jefferson Ins. Co. of New York.
   DELL, Judge.

Diane Henry appeals the denial of her motion for new trial following a jury ver-diet in favor of the appellee Beacon Ambulance Service, Inc. (Beacon).

Appellant suffered personal injuries when her automobile collided with a vehicle operated by James Enick, Jr. Beacon responded to the scene where, according to appellant, Beacon’s ambulance attendants caused or aggravated her injuries by improperly removing appellant from her car. Prior to the Beacon trial appellant settled her claim against Enick. During closing argument in the Beacon case, appellees’ counsel informed the jury of the settlement between appellant and Enick. The trial court sustained appellant’s objection and instructed the jury to disregard the objectionable comments but failed to expressly rule on appellant’s motion for a mistrial. The jury found in favor of Beacon on the issue of negligence.

Appellant contends the trial court should have granted a mistrial after defense counsel disclosed the prior settlement between appellant and Enick. We agree.

Appellees’ disclosure to the jury of the settlement with Enick violated Section 768.041(3), Florida Statutes (1981), which states:

The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

Testimony as to the fact of a settlement is inadmissible and if allowed warrants a new trial. Taylor Imported Motors, Inc. v. Armstrong, 391 So.2d 786 (Fla. 4th DCA 1980); City of Coral Gables v. Jordan, 186 So.2d 60 (Fla. 3d DCA 1966), affirmed, 191 So.2d 38 (Fla.1966). This rule should apply with equal or greater force where, as here, no evidence of a settlement with Enick came out during trial and the jury first learned of the settlement from counsel during closing argument. To make the disclosure of settlement even more egregious, the trial court had already admonished appellees’ counsel not to pursue the settlement issue during the trial.

We are not persuaded by appellees’ argument that appellant “opened the door” when he opined that, “Enick had an ax to grind,” and that defense counsel was simply explaining that Enick did not have an ax to grind because his claim with appellant had been settled. Although the settlement may have removed Eniek’s financial concerns, it did not remove any bias which he may have had as a result of the accident or the ensuing litigation. The comment made by appellant’s counsel had some basis in the evidence. On the other hand, we cannot excuse the disclosure which appellees’ counsel made after being expressly admonished not to pursue the settlement during trial.

Appellees also contend that appellant waived her objection to the improper closing argument when she failed to obtain a specific ruling on her motion for mistrial. We need not reach this issue as we find the curative instruction given after appellant made her motion for mistrial was insufficient to counteract the effect of appellees’ improper argument. The trial court should have either granted appellant’s motion for mistrial as an adequate cure for appellees’ improper argument or granted appellant’s motion for new trial for the same reason.

Accordingly, we reverse and remand for a new trial on all issues.

REVERSED and REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.