author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Dwight D. HOLT et al., Appellants, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellee.
    No. 79-1599.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied July 29, 1980.
    Thomas A. Hoadley of Hoadley & Gavi-gan, P. A., West Palm Beach, and James M. Gann, Belle Glade, for appellants.
    Harry A. Schroeder of Brennan, McAli-ley, Hayskar & McAliley, West Palm Beach, for appellee.
   HERSEY, Judge.

State Automobile Mutual Insurance Company issued a policy of insurance to appellant Dwight D. Holt, which provided for uninsured motorist coverage (referred to in the policy as Family Protection Coverage) with limits of $15,000 for each person and $30,000 for each accident. Subsequently, appellants, Dwight D. Holt and Sumie Holt, his wife, and their daughters, Linda and Karen, suffered injuries in an automobile accident caused by the negligence of a third party. Appellants received from the negligent party’s liability insurance carrier the policy limit of $30,000, which amount was apportioned among appellants in a manner not relevant to this appeal. Appellants filed a complaint to require compulsory arbitration of their claim against appellee under the uninsured motorist coverage in their own policy. It is from a final order dismissing this complaint with prejudice that appellants take this appeal.

The trial court concluded that since the appellants received the total amount of benefits available from the tort-feasor’s liability insurance, the limits of which were $15,-000 per person and $30,000 per accident, they were precluded from availing themselves of the benefits that would otherwise have been available under their own uninsured motorist coverage with identical limits. The final order of dismissal with prejudice was specifically based on the Florida Supreme Court’s decision in Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978) and later cases applying the Dewberry rule.

We use the terms underinsured and uninsured as synonyms in this opinion since any distinction is not material to the issues here. The important differences between the two are considered and explained in Williams v. Hartford Accident and Indemnity Co., 382 So.2d 1216 (Fla.1980).

In Dewberry, the insured sought benefits under his own uninsured motorist insurance for the death of his two sons resulting from an automobile accident. The liability insur-anee policy of the negligent third party contained policy limits of $15,000 for injuries or death sustained by one person and $30,000 for injuries or death sustained by all persons in a total accidental occurrence. The liability insurer paid the policy limits of $15,000 for each of the two sons. The Supreme Court held that since the policy limits of the uninsured motorist coverage were identical, that is, $15,000 per person and $30,000 per accident, the insurer was entitled to set off the available amounts of liability insurance against the uninsured motorist coverage, which effectively exhausted the latter coverage. The holding was based upon an interpretation of Section 627.727(1) Florida Statutes (1977), which provides in part:

The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . . . under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle .

The court described the theory of uninsured motorist coverage in the following language:

[UJninsured motorist coverage is meant to compensate the plaintiff for a deficiency in the tort-feasor’s personal liability insurance coverage. Dewberry v. Auto-Owners Insurance Co., at page 1081.

By way of dicta the Supreme Court added the following:

To accept appellant’s contention would require duplicating the benefits the appellant has received from the tort-feasor. Were benefits from the tort-feasor’s liability coverage not available to the appellant, e. g., where the benefits under the tort-feasor’s policy have been exhausted by payment of claims to persons other than the insured, then the appellant would be entitled to “excess over” the tort-feasor’s liability coverage benefits, and the uninsured motorist coverage would then not duplicate the benefits received from the tort-feasor’s coverage. Id. at 1081.

In Dewberry both of the insureds received exactly the same amount under the tort-feasor’s liability coverage as they could have received under the applicable uninsured motorist coverage had the tort-feasor been uninsured. There were no third-party claims to diminish the availability of liability insurance.

In Jones v. Travelers Indemnity Company of Rhode Island, 368 So.2d 1289 (Fla.1979), the applicable liability insurance limit was $15,000 per person, but because of the claims of third parties only $10,000 was available for Jones, whose minor child had been killed in an automobile accident. Jones had uninsured motorist coverage with a limit of $15,000 per person. The insurer was permitted to offset the $10,000 and Jones was entitled to recover the $5,000 difference between the amount collected from the tort-feasor and the limits of the uninsured motorist coverage.

The basic question before us is whether, in the event of multiple insureds whose combined recoveries exhaust the liability coverage of $30,000 per accident, the insurer is entitled to offset that $30,000 against the uninsured motorist coverage which has the same limit of $30,000, thus precluding any recovery under the latter coverage. This precise issue was not present in Dewberry ; however, the court referred in that case to the philosophy underlying uninsured motorist coverage in the following language:

That theory is that uninsured motorist coverage is meant to compensate the plaintiff for a deficiency in the tort-fea-sor’s personal liability insurance coverage. We agree. The statute was only intended to allow the insured the same recovery which would have been available to him had the tort-feasor been insured to the same extent as the insured himself. Supra at 1081.

In the instant case, had there been no liability insurance available, appellants would have been entitled to recover under their own uninsured motorist coverage the policy limits of $15,000 per person or $30,000 per accident, the latter being the operable ceil ing here. As a matter of fact, appellants recovered $30,000 from the liability insurance carrier. They have therefore obtained “the same recovery which would have been available . . . had the tort-feasor been insured to the same extent as the insured . . .”

Under this test appellants are not entitled to recover under their uninsured motorist coverage.

It would be an exercise in semantics to suggest that since the injured wife and children are not “named” insureds they are third parties as that concept was developed in the Jones case, supra. Unless they are “insureds” they do not qualify for benefits under the uninsured motorist coverage. They may not be both insureds and excepted third parties.

We therefore affirm the final order dismissing the complaint with prejudice.

AFFIRMED.

DOWNEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

It appears to me that this case cannot be distinguished from the case of Jones v. Travelers Indemnity Company of Rhode Island, 368 So.2d 1289 (Fla.1979). Under the holding in Jones, since each of the appellants had only a fraction of the tortfeasor’s liability insurance benefits available to satisfy their claims, each should now be entitled to recover under their own policy of underinsured motorist coverage up to the cumulative policy limits of $30,000.00.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Lawrence Joseph HEFFERNAN and Deborah Denise Heffernan, Appellants, v. STATE of Florida, Appellee.
    No. 79-1943.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied July 30, 1980.
    Sheldon M. Schapiro of Stone, Schapiro & Dell, P. A., Hollywood, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellants pled nolo contendere to the charges of possession of cocaine and felony possession of marijuana, specifically reserving their rights to appeal an order denying all of their pre-trial motions, including a motion to suppress illegally seized evidence.

We affirm the trial court’s disposition of the motion.

Following a controlled purchase of narcotics by an informant equipped with a monitoring device, a search warrant was issued directing law enforcement officers to:

[E]nter said premises and search . . . for the aforedescribed illicit narcotics, . . . and the curti-lage thereof, including the persons and their respective vehicles contained within the curtilage, or adjacent thereto, suspected of being connected with said violation. .

The “premises” consisted of a one-family residence located in Hollywood, Florida. The residence was occupied by one Russell R. Clark. Parked next to the residence on the same lot was a collapsible pop-up camper trailer also registered in the name of Russell Clark. The trailer was attached by umbilical cords for electricity and water hook-ups to the residence. The appellants, daughter and son-in-law of Russell Clark, lived in the trailer.

When the officers arrived to execute the search warrant, appellant, Deborah Heffer-nan, and others were in the residence where they were detained until the search could be completed. The trailer was included in the search and narcotics were found in the trailer.

The basis for the motion to suppress illegally obtained evidence was that the pop-up camper trailer was not specifically described in the search warrant. Under the circumstances the search of the trailer was appropriate under either of two rationales. First, the camper trailer was within the curtilage, attached to the principal residence for all practical purposes, and owned by the occupant of that residence. There was no greater right to an expectation of privacy in the camper-trailer than there was in the principal residence. The validly issued warrant authorizing the search of one necessarily authorized the search of the other. Secondly, a camper-trailer is a vehicle. The search warrant specifically authorized a search of vehicles owned by persons in the residence and located within the cur-tilage or adjacent thereto.

We have considered appellant’s additional points on appeal and find them to be without merit.

We therefore affirm the order from which this appeal is taken and the final judgment of conviction.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


author: SHARP, Judge.

text:
    DON SLACK INSURANCE, INC., Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. NN-50/T1-49.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 17, 1980.

      Fred S. Disselkoen, Jr., of Duffett, Seps & Akers, Ormond Beach, for appellant.
    Robert K. Rouse, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Day-tona Beach, for appellee.
   SHARP, Judge.

Don Slack Insurance, Inc., (the third party defendant and appellant) appeals the final judgment entered against it after a jury trial, on a cross claim filed by Fidelity & Casualty Company of New York (the third party plaintiff and appellee). We reverse the judgment because there is no basis in the record to hold the third party defendant liable to the third party plaintiff.

Thomas V. Wicker filed a complaint against Fidelity for insurance benefits due him under an insurance policy issued by Fidelity, after being in an auto accident on February 19, 1977. Fidelity claimed the insurance had been cancelled and was not in effect at the time of the accident. It also filed a third party complaint against Don Slack Insurance, Inc.

Fidelity notified Wicker on August 24, 1976, it intended to cancel his insurance policy for failure to pay premiums. On September 19, 1976, through Don Slack, an independent insurance agency, Wicker sent Fidelity a $50.00 check to reinstate the policy. The check was accompanied by Wicker’s request to issue endorsements changing the vehicles covered under the policy. Fidelity sent Slack two endorsements implementing the requested changes, and Slack sent copies of them to Wicker. The endorsements were effective October 10, 1976 —more than a month after the announced effective date of the cancellation. Wicker received no further communications from Fidelity or Slack, and he assumed the insurance police was reinstated.

On November 17, 1976, Slack received a form letter from Fidelity stating it was cancelling Wicker’s policy “pro-rata” because of “nonpayment” of premiums, but without any reference to the endorsements or to Wicker’s check. On December 3,1976, Slack received a “return of premium statement” from Fidelity regarding Wicker, showing $105.00 “earned” premium, $64.00 “unearned premium,” and $40.00 to be returned. On December 10, Slack received a check from Fidelity in the amount of $40.00 payable to Wicker. Slack endorsed the check and deposited it in the business account. At the trial, Slack testified he realized Fidelity was refusing to reinstate the policy for Wicker, and that normally he should have contacted Wicker. He thought he had notified Wicker, but apparently Wicker received no such communication from him.

The jury returned a verdict for Wicker against Fidelity. The basis for this verdict is clear and is adequately supported by the record. Fidelity’s endorsements of the policy after its notice of cancellation, making the requested changes in coverage and showing a new effective date for the endorsements of “10/10/1976 to 2/26/1977,” was tantamount to a reinstatement of the policy. See Prudential Ins. Co. of America v. Seabrook, 366 So.2d 482 (Fla. 1st DCA 1979). Fidelity’s later notice to Slack attempting to cancel the policy was legally ineffective.

The jury also returned a verdict for Fidelity against Don Slack Insurance, Inc., thereby shifting the loss from the insurance company to the independent insurance agent who obtained the policy initially for the insured. In order to sustain this judgment, there must be some basis in the record to sustain the liability of Slack to Fidelity. Food Fair Stores of Florida, Inc. v. Sommer, 111 So.2d 743 (Fla. 3d DCA 1959); Madden v. Gorum, 250 So.2d 342 (Fla. 1st DCA 1971). Fidelity claimed it was entitled to “indemnity” from Slack because of Fidelity’s undertaking to insure Wicker. But insurance agents are not automatically indemnitors for the insurance companies with whom they place insurance coverage for customers, and there is no evidence of any written or oral agreement by Slack to indemnify Fidelity.

Fidelity also argued Slack made negligent misrepresentations to it that Wicker had been informed of Fidelity’s attempted cancellation. Essential elements of the tort of misrepresentation are the making of a false statement by the tort-feasor and reasonable reliance thereon by the injured party. But the record shows no communications or representations were made by Slack to Fidelity after Slack became aware of Fidelity’s attempt to cancel Wicker’s policy for failure to pay premiums a second time.

A person acting in a fiduciary or confidential capacity has a duty to make a full and fair disclosure of material facts to a person reposing confidence in him. Ramel v. Chasebrook Construction Company, 135 So.2d 876 (Fla. 2d DCA 1961). In this case Slack might have owed such a duty to Wicker, but that does not entitle Fidelity to automatically bootstrap onto Wicker’s cause of action.

Two further questions must be answered: did Slack owe Fidelity a duty to forward to the insured a defective notice attempting to cancel the insurance policy and did this failure (if it existed) contribute to Fidelity’s liability to Wicker? The answer is clearly “no” to both. The record shows Fidelity failed to send a proper cancellation notice in the form required by section 627.728(3)(a), Florida Statutes (1979) and the duty to send it to the insured cannot be delegated to an independent insurance agent such as Slack. Cat 'N Fiddle, Inc. v. Century Insurance Company, 213 So.2d 701 (Fla.1968); Hunsucker v. Arrow Insurance, 242 So.2d 205 (Fla. 1st DCA 1970). See also Millers Mut. F. Ins. Co. of Texas v. American Fid. F. Ins. Co., 178 So.2d 742 (Fla. 3d DCA 1965). Even if Slack had sent Wicker the notice and check in November, it would not have altered Fidelity’s liability on the insurance policy to Wicker and Slack’s failures were not in any way the “cause” of Fidelity’s liability to Wicker.

Because there is no plausible basis upon which to permit third party liability in this case that portion of the judgment is reversed. Boling v. Barnes, 198 So.2d 377 (Fla. 2d DCA 1967).

REVERSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, J., concur.

      . § 627.728(3)(a) Fla.Stat. (1979); Martin v. Ritcheson, 306 So.2d 582 (Fla. 1st DCA 1975).

      . There was also no evidence Fidelity directed Slack to cancel the policy, so no direct duty on the part of Slack ever arose. 43 Am.Jur.2d Insurance §§ 171, 172 (1966); see Annot., 106 A.L.R. 1397 (1937).

      . If an insurance company sends a notice of cancellation because of failure to pay premiums, and permits reinstatement, as it did in this case, it must send another proper cancellation notice upon further failure to pay premiums, and if there is no default after the reinstatement, cancellation is improper. Pike v. National Fidelity Life Ins. Co., 377 So.2d 973 (Fla. 3d DCA 1979). The situation in this case is like the one characterized by Judge Schwartz in the Pike case where “the company’s right hand computer did not know what its left hand computer had already done.” Id. at 976.


author: BOARDMAN, Judge.

text:
    Dorothy S. HOFFMAN, Appellant, Cross-Appellee, v. Eloise Sue KOHNS, Personal Representative of the Estate of Herbert L. Kohns, Appellee, Cross-Appellant.
    No. 79-944.
    District Court of Appeal of Florida, Second District.
    June 13, 1980.
    Rehearing Denied July 15, 1980.

      Curtis J. Timm of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellant, cross-appellee.
    Geoffrey Morris of Hazen & Morris, Venice, for appellee, cross-appellant.
   BOARDMAN, Judge.

The instant appeal and cross-appeal arise out of an order concerning the disposition of the estate of the decedent Herbert L. Kohns. Appellant Dorothy Hoffman is Kohns’ niece; appellee Eloise Sue Kohns is his second wife. We affirm in part and reverse in part.

Kohns died on September 13,1976, at the age of 84. Appellee subsequently filed a petition for administration of Kohns’ most recent will, executed on September 26,1975. After this will was admitted to probate, appellant sought revocation of probate on the ground that appellee had procured the will by undue influence. Appellant also attacked the validity of appellee’s marriage to Kohns and Kohns’ subsequent revocation of a certain trust.

Following a bench trial, the trial court found that Kohns was legally competent to make the September 26,1975 will; to enter into a valid marriage contract with appel-lee, whom he married on September 22, 1975; and to revoke on October 3, 1975, a trust he had created in 1969. The court ruled Kohns’ marriage to appellee and his revocation of the trust valid, but ruled the will invalid because of appellee’s undue influence upon Kohns. The trial court subsequently granted appellee’s petition to be determined Kohns’ pretermitted spouse and ruled that she was entitled to Kohns’ entire estate. This appeal and cross-appeal followed timely.

On January 16, 1969, Kohns, then over seventy years old, established a revocable trust of which he and appellant were co-trustees. The trust provided that after Kohns’ death forty per cent of the trust assets would be distributed to appellant’s two children and appellant would have a life estate in the other sixty per cent with the remainder to her children. The assets Kohns then owned were transferred to the trust.

On July 2, 1969, Kohns executed a pour-over will providing for $5,000 bequests to Robert Strauss and another named individual and three charitable bequests. The remainder of his probate estate was poured into the 1969 trust to be distributed under its terms.

After 1969, Kohns’ mental and physical condition gradually deteriorated. He became extremely forgetful, paranoid, and suspicious, expressing distrust of all banks, doctors, trust officers, and others. From 1968 to 1975, Kohns lived alone in rental apartments. Until his stroke in October, 1974, he was able to drive an automobile, but had to have a woman at his bank make deposits and reconcile his checkbook.

When Kohns inherited additional funds in 1972 and 1973, he wanted to put these into the trust and began to think about making some provision for Robert Strauss, an old friend who had become destitute.

On October 13, 1974, Kohns telephoned appellant and her husband Mike Hoffman and requested that they immediately come to Florida because he thought that some of his securities and other papers were missing. The Hoffmans flew to Florida the next day. On October 15, 1974, Kohns and Hoffman inventoried Kohns’ safety deposit box and determined that nothing was missing. That same day Kohns and the Hoff-mans conferred about a minor change to Kohns’ 1969 trust to provide for Strauss. Appellant agreed that she should be eliminated as a life income beneficiary of sixty per cent of the trust and the income from that portion should be paid one-half to Strauss and one-half to her children. Hoffman and Kohns saw Kohns’ attorney, Curtis Timm, who was asked to prepare an amendment to the trust incorporating the agreed-upon change and a new pour-over will deleting the bequest to Strauss. Timm had been Kohns’ attorney for almost ten years. An appointment was set up for execution of the documents the next day.

After seeing Timm, Kohns and Hoffman returned to Kohns’ apartment. Kohns, who had been behaving somewhat strangely, upon seeing that appellant had purchased a supply of food for him, “all of a sudden . decided that [appellant] had no right to go out and buy food and put it in his refrigerator and cook dinner for him.” Kohns then went to his room and refused to come out for dinner, and the appointment with Timm was cancelled. The next day the Hoffmans returned to New York.

On October 25, 1974, Kohns, then age eighty-two, was admitted to the hospital. The treating doctors concluded he was suffering from cerebral arteriosclerosis and senility. Dr. VandePolder, a consulting neurologist, determined on October 26, 1974, that Kohns had acute organic brain syndrome. A patient with this condition is not usually considered competent to perform normal tasks or to make decisions. After his discharge from the hospital, Kohns entered a nursing home.

In December 1974, Kohns refused to stay in the nursing home and was returned to his apartment, but required nurses twenty-four hours a day. In January 1975, because of the cost of twenty-four-hour nurses, Timm’s office advertised for and hired live-in housekeepers for Kohns.

Kohns’ housekeepers provided him transportation, purchased all of his food, made meals, kept house, wrote checks for his signature, and generally handled his personal and routine financial matters. His checkbook was reconciled and some of his checks for bills were written by Dera Rahn, an employee in the bookkeeping department of his bank.

Kohns was frail and feeble, disoriented at times, forgetful, sometimes hostile and irate, suspicious and paranoid. He was withdrawn at times, sitting for hours staring into space.

Appellant telephoned Kohns monthly, and he was on pleasant terms with her. Appellant’s last conversation with Kohns was on September 3, 1975.

In the last week of August 1975, appellee, age fifty-five, was hired as Kohns’ housekeeper. Because Kohns was incapable of paying or making an agreement to pay his housekeepers, on September 9, 1975, appel-lee brought Kohns to Timm’s office and told Timm that she had worked for over a week and had not been paid. Timm made arrangements with Dera Rahn to have appel-lee paid $200 for the ten days she had worked and thereafter to be paid weekly. Timm also asked Kohns if he wanted to execute the pour-over will and amendment to his trust that had been prepared on October 15, 1974. These two documents were then executed. Timm certified that at the time of the execution of the will Kohns was of sound mind and memory.

Up to September 9, 1975, the relationship between Kohns and appellee was solely one of employer and housekeeper/nurse. According to appellee nothing significant occurred between September 9 and September 22, 1975, and there was no change in their relationship during this period.

On September 1, 1975, appellee took Kohns to his bank, and his safety deposit box was closed. One previous housekeeper testified that Kohns was not capable of closing a safety deposit box and transferring its contents without assistance. The box contained all of Kohns’ assets, including at least $40,000 worth of bearer bonds.

On September 19, 1975, appellee drove Kohns to Wauchula, applied for a marriage license, and obtained the required blood tests for both of them. On Monday, September 22, 1975, appellee drove Kohns back to Wauchula and had a marriage ceremony performed there by a notary public.

The next day, September 23, appellee took Kohns to attorney Dick Lee to have a new will drawn making her the sole beneficiary. She had previously used Lee as her attorney, whereas Timm had been Kohns’ attorney for ten years. The new will was executed in her presence on September 26, 1975. The attorney who witnessed the will testified that Kohns was alert and responsive. The other subscribing witness testified that Kohns was in command of his faculties and knew what he was doing.

Immediately after the marriage, appellee moved Kohns out of his apartment into a room in her home. Within a week after the marriage, appellee took Kohns to his bank and arranged through Dera Rahn for the withdrawal of $31,405.72 from a Manufacturers Hanover Trust savings account which Kohns had had for many years, transferring all of the funds into joint accounts or joint certificates of deposit in the names of Kohns and appellee.

At that time, it was discovered that the securities in the 1969 trust could not be transferred without the consent of the co-trustee or an amendment or revocation of the trust. On October 3,1975, appellee took Kohns back to Lee’s office, at which time Kohns signed a one-paragraph revocation of the 1969 trust. Marion Eichler, a secretary with the law firm, testified that in her opinion Kohns was in command of his faculties.

During October, November, and December, 1975, all but two issues of securities owned by Kohns individually or in the trust were transferred either to appellee or to appellee and Kohns as tenants by the entir-eties or joint tenants with right of survivor-ship. The transferred securities were returned to appellee’s post office box. The transfer agents refused to transfer two issues in trust without appellant’s signature.

The Hoffmans attempted to contact Kohns on September 27, 1975, but were unable to contact him. They eventually found out that he had been moved to appel-lee’s home. They called there several times in September, October, and November, 1975, attempting to contact Kohns, but each time they were told that he was indisposed or out walking; they were unable to talk to him. Appellee assured them Kohns was feeling much better, but never indicated she had married Kohns. The Hoffmans also wrote letters to him that he apparently never received.

Kohns and appellee did acknowledge their marriage to Dera Rahn and several friends and neighbors.

Dr. Garber, Kohns' regular physician, saw him for the last time in October, 1975. Kohns was brought to Garber’s office by appellee, who indicated she was his housekeeper. Kohns did not mention his marriage. Dr. Garber testified that Kohns was incompetent and had been for some time and that in 1975 “he was incompetent to make any major decisions based on many years of taking care of him and seeing him throughout the years deteriorating.”

Dr. Satya, appellee’s physician, who first examined Kohns on October 1, 1975, testified that he felt Kohns was competent. However, he indicated that he would change his opinion if the medical history given to him was materially incorrect. The medical history given to Dr. Satya on October 1, 1975, indicated that Kohns had been married about one and a half months, had stopped smoking one year ago, and had last been hospitalized in October, 1974. Dr. Sat-ya later prescribed drugs for Kohns’ erratic behavior at appellee’s request.

In late November, 1975, Kohns was hospitalized for prostate surgery. The nurses’ notes, both those made before and those made after the operation, indicate that he was in a confused mental state.

In July, 1976, Kohns underwent a hernia operation. During the operation, he had a stroke and lapsed into a coma. He was comatose thereafter until he died on September 13,1976. The death certificate indicated that Kohns had suffered from hardening of the arteries of years duration.

The evidence overwhelmingly supports the court’s determination that the September 26, 1975, will was procured by undue influence. Moreover, we find merit in appellant’s contention that the trial court’s ruling that the revocation of the 1969 trust and the subsequent transfer of the trust assets to appellee were not procured by undue influence is contrary to the evidence and the court’s own factual findings.

Although we have found no Florida case directly referring to the revocation of a living trust, in Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932), the Florida Supreme Court recognized that a lifetime transfer in the nature of a gift to a nurse was invalid as having been procured by undue influence. The court also held that “the degree of proof necessary to invalidate a will is much greater than that required to set aside a gift inter vivos.” 106 Fla. at 352, 143 So. at 293.

The trial court found that Kohns was “a very lonely, frustrated and extremely troubled octogenarian in poor mental health, probably neurotic but not psychotic nor legally incompetent,” but further found:

However, it further appears that the Respondent did engage in a course of conduct before the marriage and continued it thereafter so as to unduly influence said Herbert L. Kohns so as to completely ignore his prior wishes, his relations to the persons who were or should or might have been the objects of his bounty. Such conduct completely dominated the thinking of the deceased, kept him isolated and out of contact with his family, and the resulting persuasion, coercion and excessive influence dominated his willpower so that he provided only for the Respondent in the will in question.

The revocation of the trust was executed on October 3, 1975, just seven days after the execution of the September 26, 1975, will found to have been procured by undue influence.

The evidence establishes that appellee completely dominated Kohns both before and after September 26, 1975, the date the new will was executed, by taking control of all of his business affairs, taking over the writing of checks and balancing of his checkbook, and changing his attorney, doctor, accountant, and stockbroker. The systematic transfer of all of Kohns’ assets to appellee or into joint tenancy is further evidence of her undue influence. There is no evidence that Kohns made a single independent decision after the marriage.

Kohns’ marriage to a woman thirty years younger than he, whom he had known for less than a month; the complete cancellation of his entire long-standing estate plan; and the changing of his doctor of over fifteen years, his lawyer of ten years, his accountant, and his stockbroker, all within a few weeks, are highly unusual, and the trial court quite properly found that these actions were taken as a result of the undue influence of appellee. The revocation of the trust was part of a continuing pattern begun immediately after the marriage. The trial court could not reasonably find otherwise.

Our holding with respect to the revocation of the trust does not affect the validity of the Kohns’ marriage. A marriage to which the consent of one of the parties is obtained by undue influence is merely voidable. Tyson v. State, 83 Fla. 7, 90 So. 622 (1922). Consequently, it cannot be attacked upon this basis after the death of either of the parties. Annot., 47 A.L. R.2d 1393, 1407 (1956); Annot., 91 A.L.R. 414 (1934). Cf. Savage v. Olson, 151 Fla. 241, 9 So.2d 363 (1942), which held that a showing of gross fraud could be a basis for declaring a marriage void after the death of the defrauded spouse. On the other hand, a marriage may be posthumously set aside as being void because of the mental incompe-teney of one of the marriage partners. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932). Here, however, while the evidence was conflicting, it was sufficient to support the court’s conclusion that Kohns was competent to marry appellee.

This leaves remaining the question of whether appellee was entitled to those of the decedent’s assets which were not already in the trust before he died. The answer appears to lie in the application of Section 732.301, Florida Statutes (1975), which reads:

732.301 Pretermitted spouse. — When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1)Provision has been made for the spouse by marriage contract;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.
The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805.

Because the court set aside Kohn’s September 26, 1975, will, his last valid will was the one which he executed on September 9, 1975, prior to his marriage to appellee. Even though she improperly influenced him to execute the September 26 will, once that will was revoked they were in the same posture as if no will had been made following the marriage. Therefore, since there was no marriage contract and no reference to appellee in the September 9 will, she was entitled under the statute to her intestate share, which would be Kohn’s entire estate because he died without lineal descendants.

We reverse the trial court’s ruling which upheld the revocation of the 1969 trust. In all other respects we affirm the judgment and remand the case for proceedings to compel the return of the appropriate assets to the trust and for such other matters as are consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur.


author: McCORD, Judge.

text:
    CITY OF GAINESVILLE, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, Appellee.
    No. NN-203.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Rehearing Denied Aug. 8, 1980.

      J. T. Frankenberger, City Atty., and David LaCroix, Deputy City Atty., for appellant.
    Charles G. Felder of Clayton, Duncan, Johnston, Quincey, Felder, & Gadd, Gaines-ville, for appellee.
   McCORD, Judge.

This appeal is from an amended final judgment invalidating a special assessment levied by appellant, City of Gainesville, against the property of appellee, Seaboard Coastline Railroad Company. We reverse.

The Railroad filed this action below as a suit for declaratory judgment seeking to have the court determine the validity of two special assessments levied by the City against the Railroad’s property for the paving of a part of Northeast 31st Avenue in the City of Gainesville. Prior to January 15, 1971, the Railroad owned a planned and platted industrial park in the City of Gainesville which abutted the north line of a platted 80-foot right-of-way for Northeast 31st Avenue. At that time, the City already owned a parcel of property in the shape of a parallelogram 200 feet on each side which abutted the north line of the platted right-of-way and jutted into the industrial park at its southwest corner. A small sewer lift station of the City was located in the parallelogram. On January 15, 1971, the City purchased from the Railroad in fee simple a 100-foot wide strip of land off the south end of the Railroad's industrial park property to use for electric transmission lines. Thus, the City then became the owner of this 100-foot strip plus the previously owned 200-foot parallelogram all lying between the right-of-way and the Railroad’s industrial park. With the sale to the City, the Railroad reserved one 30-foot wide easement and two 60-foot wide easements across the 100-foot strip which gave it access from its industrial park property to the right-of-way of Northeast 31st Avenue. The City then erected on the 100-foot strip three permanent utility poles for transmission lines, each pole being 26 inches in diameter. Also, a drainage ditch crosses the strip at right angles to the right-of-way. The 100-foot strip remained otherwise unused. Adjoining this property on the west, the City owned two adjoining strips of land totaling 170 feet in width running westerly to Northeast 15th Street. With this purchase by the City from the Railroad, the Railroad’s industrial park no longer abutted on the platted right-of-way, but the three easements which it had reserved gave it access to the right-of-way.

Thereafter, in October 1973, the City was presented with a street-paving petition for that part of Northeast 31st Avenue between Waldo Road and Northeast 15th Street (along the property above alluded to). The City Commission held a preliminary public hearing on the matter in January 1974. At the hearing, an attorney representing the Railroad appeared and objected to any assessment against it for this paving except for 209.04 feet which comprised the three easements and a short spur track. After referring the matter to the Public Works Committee of the City for study and recommendation, the City Commission met again in February 1974 to consider the issue. Following the recommendation of the Public Works Committee at that meeting, which was concurred in by the City Manager, the General Manager of Public Utilities, and the City Attorney, the City Commission voted to dedicate all of the city-owned property on the north side of Northeast 31st Avenue to public use “to allow the City to assess the properties on the north side of the right-of-way.” Thereafter, on March 4, 1974, the City Commission adopted a resolution to the above effect. Thus, the 100-foot-wide strip which the City purchased from the Railroad, the 200-foot parallelogram containing the sewer lift station, and the 170-foot strip to the west, which was already owned by the City, and which connected the right-of-way to Northeast 15th Street, were all dedicated as public rights-of-way. This increased the right-of-way for Northeast 31st Avenue from 80 feet to 180 feet, where it adjoined the Railroad’s property, and again the Railroad’s property shared a common boundary with the right-of-way for Northeast 31st Avenue.

In January 1975 the City Commission passed an ordinance authorizing the paving of Northeast 31st Avenue and authorizing special assessments for that improvement against abutting properties. At a hearing in February 1975 the Commission adopted a resolution adjusting and equalizing the special assessments and declaring them to be liens on the abutting properties. At that hearing, the City Commission read a letter submitted by the Railroad’s attorney objecting to the Railroad being assessed for the improvements since “they do not own property abutting the right-of-way for the street.” Pavement of the avenue was begun by the City in April 1975.

Testimony at trial showed that Northeast 31st Avenue is designated as a “major collector” on the City’s Major Thoroughfare Plan, which required 70 feet of right-of-way. Testimony indicated that if the designation of Northeast 31st Avenue were upgraded in the future to a “through-fare,” a total of 80 feet of right-of-way would be required, the same width which existed prior to the dedication of the 100-foot-wide strip.

The trial court, by its amended final judgment, invalidated the assessment against the Railroad except for the 209.04 feet comprising the easements and the spur track. The court predicated this action upon the following “discussion of law” in its judgment:

The court should not and does not concern itself with the individual “motive” of a Commissioner as to why the City dedicated its property acquired for transmission of its electricity to a “public use” but in the case sub judice, the city officials caused to be recorded in its records the reason as stated in Paragraph 5, supra, which causes the Court to be concerned with the ultimate result as herein-above found and stated.
Therefore, the City’s action amounted to fraud in contemplation of law, was arbitrary, unreasonable, resulted in the improper exercise of its police power and would be confiscatory without due process of law were it sanctioned by this Court. Atlantic Coastline Railroad Company v. City of Winter Haven, 151 So. 321 (Fla.1933), and Schauer v. City of Miami Beach, 112 So.2d 838 (Fla.1959).

Paragraph 5 of the Court’s judgment referred to in its discussion of law quoted above, states as follows:

5. On February 11, 1974, the Chairman of the Public Works Committee reported to the City Commission that the Committee had received a recommendation from the City Manager “that the City dedicate all of the city-owned property on the north side of Northeast 31st Avenue to ‘public use’ to allow the City to assess the properties on the north side of the right-of-way . . .’’At the February 11, 1974, meeting of the Gainesville City Commission, the Commission approved the recommendation.

Thus the entire predicate and rationale for the trial court’s ruling was its finding that the City’s action as above related “amounted to fraud in contemplation of law, was arbitrary, unreasonable, resulted in the improper exercise of its police power and would be confiscatory without due process of law.” We respectfully disagree with the learned trial court’s conclusion of law as applied to the facts which it found. The City’s action would only be confiscatory if the Railroad’s property is not benefitted by the improvement to the extent of the assessment or if only incidental benefit results to the property improved and the primary benefit is to the public. See City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97 (1928). The trial court made no findings on the question of benefits.

We are unable to find fraud in the City’s action. The dedication of the City’s 100-foot strip, on which its electric transmission lines were located, as additional 31st Avenue right-of-way would enable the City to assess the Railroad’s property for its fair share of the paving costs, commensurate with the benefits the Railroad’s industrial park would receive by virtue of such paving if the primary benefit was to the Railroad’s property with only incidental benefits to the public. It is common for utility lines to be located on street rights-of-way. Expert testimony presented was that the Railroad’s property experienced an increase in value at least to the extent of the amount of the assessment.

We have considered the two authorities cited by the able trial judge in support of his ruling, which are also relied upon by the Railroad. The Supreme Court, in Atlantic Coastline Railroad Company v. City of Winter Haven, 151 So. 321 (Fla.1933), cited by the trial court, held that:

. a local assessment may so transcend the limits of equality and reason that its exaction would cease to be a tax or contribution, and become extortion and confiscation, in which cases it then becomes the duty of the courts to protect the person or corporation assessed from robbery under color of a better name.

There the question was whether or not the answer filed by the Railroad to the complaint of the City seeking foreclosure of the street-paving assessment liens stated an adequate defense. In upholding the answer, the Supreme Court said:

According to the facts set up in the answer of the railroad company, the application of the “front footage” rule to its properties involved in these cases, dedicated to public use solely for railroad purposes in carrying on its transportation business through the city of Winter Haven, amounts to an abuse of power by the governing authority of the city, in that the application of such rule to its properties results in an arbitrary imposition of a burden not at all based on any just proportion of benefits that it could possibly derive from the execution of the work involved in the improvement for which assessments have been spread. (Emphasis supplied.)

That decision has no relation to the circumstances of the case sub judice since the trial judge made no finding as to the benefits.

Schauer v. City of Miami Beach, 112 So.2d 838 (Fla.1959), also cited by the trial court, dealt only with the motive of a city councilman (his interest in the property affected) in his voting for a zoning ordinance amendment. The court held that the action of the city council was a legislative function, and the motives of councilmen in voting for the amendment were not proper subjects for judicial inquiry. It further held that the fact that the councilman had a selfish, interest in voting for the zoning ordinance amendment would not amount to fraud or overreaching. The Supreme Court, therefore, did not disturb the ruling of the District Court of Appeal, Third District, which reversed the trial court’s ruling which had declared the zoning ordinance invalid. If anything, the Supreme Court’s opinion in Schauer lends support to the validity of the assessment in the case sub judice. We have considered the other cases cited by the Railroad in support of its position on this point but find them to be inapplicable to the situation presented in this case.

REVERSED and remanded with directions to the trial court to re-evaluate the evidence on the question of benefits.

MILLS and SHIVERS, JJ., concur.


author: PER CURIAM. SHIVERS, Judge,

text:
    CHARLES BASSETT & ASSOCIATES, INC., a corporation, Appellant, v. BESSENT, HAMMACK & RUCKMAN, INC., a Florida Corporation, and Sea Pines Plantation Company, Appellees.
    No. PP-166.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Rehearing Denied July 29, 1980.
    John T. Trekell of Trekell & Hould, Jacksonville, for appellant.
    Arthur I. Jacobs of Jacobs, Burgess & Poole, Fernandina and Stephen H. Durant of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and LARRY G. SMITH, J., concur.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting:

Appellant Charles Bassett & Associates, Inc. (Bassett) brought suit against Appellee Bessent, Hammack & Ruckman, Inc. (BHR) and Appellee Sea Pines, Inc. This is an appeal by Bassett from the trial court’s dismissal of Bassett’s action against BHR for failure to prosecute [RCP 1.420(e)]. The trial court refused to dismiss Bassett’s action against Sea Pines for failure to prosecute.

Much time and effort has been invested in this contested case. The Record on Appeal alone consists of 453 pages. On October 24, 1977, Defendant BHR moved to dismiss Bassett’s Fourth Amended Complaint. On November 7, 1977, Defendant Sea Pines moved to dismiss Bassett’s Fourth Amended Complaint. (Neither of these motions to dismiss were based on a failure to prosecute.) On November 7, 1977, Sea Pines filed and served Motion for More Definite Statement. On November 8, 1977, Bassett called “All Pending Motions” on for “argument before, and disposition by” the trial court on December 1, 1977, with notice shown to attorneys for appel-lees.

On December 1, 1977, the Court denied the motions to dismiss. Although Appellant’s Brief does not comment on this, the Record on Appeal reflects no disposition by the trial court of the Motion for More Definite Statement. Since hearing was scheduled on all pending motions, it is presumed this motion was taken under advisement and remains undetermined.

Subsequent to the December 1 hearing a number of pleadings were filed. Between May 9, 1978 and May 9, 1979, the only activity of record was an Order entered March 12, 1979, by the trial court allowing Bassett’s attorneys to remove the court file from the courthouse. Although not filed of record in the Clerk’s office during this period, mail and telephone correspondence between the parties confirms settlement negotiations during February 1979. Change of attorneys also took place during this period.

On May 18, 1979, BHR filed an Amended Motion to Dismiss for Failure to Prosecute (amending its similar May 17, 1979 motion) on the grounds that the last activity of record was an Amended Notice of Deposition served April 24, 1978, which deposition was taken May 9, 1978.

On May 21, 1979, Bassett filed Motion to Set for Trial. On June 1, 1979, Sea Pines filed its Motion to Dismiss for failure to prosecute. The trial court granted BHR’s motion to dismiss and denied the Sea Pines motion to dismiss. At issue is whether the trial court erred in dismissing Bassett’s cause of action against BHR for failure to prosecute as provided in RCP 1.420(e).

Strader v. Morrill, 360 So.2d 1137 (Fla. 1st DCA 1978) stated that the purpose of RCP 1.420(e) is twofold:

1) To require prompt and efficient prosecution of the case up to the point of submission for disposition or determination by the judge or the jury.
2) To prevent the clogging of the dockets of the trial courts with litigation that has been, essentially, abandoned for the stated period.

In Strader we held that the action of the trial court in studying and determining motions for summary judgment although it might not be represented by record entry on the docket represented activity directed toward concluding an important step in litigation so the fact that no other activity had taken place in over a year since the motions for summary judgment were filed did not provide a basis for dismissal for failure to prosecute.

Although the apparently undetermined motion for more definite statement was filed by the appellee Sea Pines and not by the appellee BHR, this should not change the result. In Smith v. St. George Is. Gulf Beaches, Inc., 343 So.2d 847 (Fla. 1st DCA 1976) we held that plaintiff’s obligation is only to show progress in the case, not progress between himself and each defendant. See also DeVaney v. Rumsch, 247 So.2d 69 (Fla. 1st DCA 1971).

The dismissal of a case because a technical rule of procedure was technically breached is a harsh sanction that should be used only in extreme cases. In Houston v. Caldwell, 359 So.2d 858 (Fla.1978), the Supreme Court of Florida held that:

The dismissal of a suit is a drastic remedy which should be ordered only under the most compelling of circumstances.

Here it is clear this case had not been abandoned for the stated period but was being prosecuted and was moving toward judgment on the merits. Dismissal of a live case with these several evidences of record and non-record activity is fundamental error.

Man was not made for the courts. The courts were made for man. I would reverse and remand so this case can continue to proceed to judgment on the merits.


author: PER CURIAM.

text:
    E. B. ELLIOTT, Jr., Individually and as one of the last officers and directors of Spruce-Up Corporation, a dissolved Florida Corporation and as one of the last officers and directors of Automatic Vending Service, Inc., a dissolved Florida Corporation, Appellant, v. SHERIDAN, INC., a Foreign Corporation, Appellee.
    No. 79-1416.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 31, 1980.

      Robert L. Bell, Miami, for appellant.
    Hodges, Gosset, McDonald & Wakefield and Stephen J. McDonald, Hollywood, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellee, Sheridan, Inc., brought suit for damages against the appellant, E. B. Elliott, Jr., individually as guarantor of leases sued upon, and as one of the last officers and directors of two dissolved foreign corporations, Spruce-Up Corporation, and Automatic Vending Service, Incorporated. Appellee claimed, as lessor, the full amounts called for under the lease agreements, which provided for the rental of equipment and supplies used in the operation of appellant’s/lessee’s barber shops and beauty salons, located on numerous United States military bases.

Appellant’s failure to maintain the terms of his concession agreements with the government resulted in cancellation of those agreements, closing of the shops and salons, and government seizure of the equipment. The government has declined appellee’s request for return of the property; neither party to this action has sought enforcement of its interests against the government in court.

In the non-jury trial below, the Circuit Court in and for Dade County found that appellee was entitled to recovery of the full amount of the rental payments owed under the lease agreement, plus attorney’s fees and costs, as provided in the agreements.

Appellant contends that, absent agreement or negligence, a bailee is not responsible for destruction, injury or loss of the bailment. Adelman v. M & S Wrecking Shop, 105 So.2d 802 (Fla. 3d DCA 1958). Appellee concedes the validity of that statement, but correctly notes that the lease agreement provides, “Lessee assumes the entire risk of loss or damage to the equipment, whether or not covered by insurance, and no such loss shall relieve Lessee of its obligation hereunder.” The provision is enforceable; a bailee may properly agree to a greater responsibility than the law requires. Williamson v. Phillipoff, 66 Fla. 549, 64 So. 269 (Fla.1914).

Alternatively, appellant argues that the taking by the federal authority rendered the lease agreements impossible of performance. But appellant agreed to pay a rental fee for the equipment and supplies, and if he was rendered incapable of doing so without the revenue generated by the bailments, it was because he failed to pay the concession fee.

[A] contracting party will not be relieved from his agreement to perform because of an inability that develops which could have been prevented or avoided, and a promisor will not be permitted to take advantage of an obstacle to performance which he has created or which lay within his power to remove or avoid.

Metropolitan Dade County v. Babcock Co., 287 So.2d 139, 142 n. 1 (Fla. 3d DCA 1973).

We have carefully considered all points raised in light of the record on appeal (containing the lease agreements), as well as the briefs and arguments of counsel, and have concluded that no reversible error has been demonstrated. Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., 464 F.2d 267 (5th Cir. 1972); Vacation, Inc. v. Southeast First Leasing, Inc., 358 So.2d 105 (Fla.App.1978); Gilbraltar Financial & Leasing, Inc. v. Gonzalez, 353 So.2d 898 (Fla. 3d DCA 1977), cert. denied 360 So.2d 1248 (Fla.1978).

Affirmed.

      . We do not reach the question of whether, in the absence of agreement, the rule would afford appellant relief, where loss of the equipment was occasioned by his failure to keep up his payments under the terms of the concession agreements.


author: ANSTEAD, Judge.

text:
    Joseph SCHEUER and Harriet Rubin, Appellants, v. Richard P. WILLE, Sheriff of Palm Beach County; Dale Allen; and William F. Howard, d/b/a Howard Funeral Home, Appellees.
    No. 78-2357.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Aug. 5, 1980.

      Richard G. Lubin of Nason, Gildan, Yeager & Lubin, P. A., West Palm Beach, for appellant.
    D. Culver Smith, III, of Adams, Coogler, Watson & Smith, West Palm Beach, for appellees Wille and Allen.
    Richard H. Gaunt, Jr., Law Offices of Frank G. Cibula, Jr., West Palm Beach, for appellee William F. Howard, d/b/a Howard Funeral Home.
   ANSTEAD, Judge.

Appellants, plaintiffs below, appeal the entry of an adverse final summary judgment on their complaint charging appellees with the intentional infliction of emotional distress.

The appellants, brother and sister, are residents of New York. When their mother, a widow, died in a Florida hospital, the hospital requested that the local sheriff make arrangements for the removal of the body to a funeral home. After being unable to contact the appellants who were in transit to Florida at the time, Dale Allen, a deputy sheriff, requested, pursuant to a standard procedure of the sheriff’s office, that the body be picked up by the Howard Funeral Home whose name was selected from a rotation list prepared by the sheriff’s office for such purposes. The funeral home, without attempting to ascertain or contact the deceased’s next of kin and with some knowledge of the religious beliefs of the deceased in connection with death and burial, immediately embalmed the body, in violation of the religious tenets of the deceased.

The trial court denied the funeral home’s motion to dismiss but granted its motion to strike a claim for punitive damages on the basis that the allegations of the complaint were insufficient to sustain such an award. Subsequently, summary judgment was entered in favor of all of the appellees.

We have reviewed the record and believe that summary judgment was properly entered in favor of the sheriff and his employee. However, we believe the entry of summary judgment in favor of the funeral home was erroneous.

To state a cause of action for the intentional infliction of emotional distress a complaint must allege facts which, if proven, would also support an award of punitive damages. Rupp v. Jackson, 238 So.2d 86 (Fla.1970); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Kimple v. Riedel, 133 So.2d 437 (Fla.2d DCA 1961). These decisions, supra, have recognized such a cause of action in a variety of factual situations involving the care of dead bodies and are exemplified by the following statement set out in Kirksey v. Jernigan, supra:

The right to recover, in such cases is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed but indeed is frequently the only injurious consequence to follow from it. Id. at 189

Howard contends that summary judgment was mandated because the trial court had stricken appellants’ claim for punitive damages. Howard reasons that if the allegations do not state a claim for punitive damages they cannot state a claim for intentional infliction of emotional distress. While we agree with this reasoning, we do not agree that the entry of summary judgment is appropriate in such circumstances. The sufficiency of the allegations of the complaint should be determined on a motion to dismiss, not by summary judgment. General Portland Development v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978).

We also are of the view that there was an issue of fact as to the funeral home’s knowledge of the adverse consequences of its decision to immediately embalm the body. In addition, both sides have cited various regulations governing the conduct of funeral homes that give rise to factual issues as to the authority of the funeral home to act as it did under the circumstances of this case.

For all of the above reasons we believe it was premature and erroneous to enter summary judgment for the funeral home. Accordingly, the judgment is hereby affirmed in part and reversed in part and remanded with directions for further proceedings in accordance with this opinion.

DOWNEY and MOORE, JJ., concur.

      . In answer to an interrogatory the funeral home stated that it was aware that the deceased was of the Jewish faith and because of such knowledge it had saved two bottles of blood to be buried with her. It is alleged that the removal of blood from the deceased’s body was a sacrilege resulting in serious spiritual harm to the soul of the deceased as well as emotional distress to the appellants.


author: DOWNEY, Judge.

text:
    Harold OPPENHEIM, Appellant/Cross-Appellee, v. JULES JERGENSEN CORPORATION, a corporation, Appellee/Cross-Appellants.
    No. 79-132.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied July 29, 1980.

      Paul R. Lipton, North Miami Beach, for appellant/cross-appellee.
    Lee B. Gartner of Sobo & Wellens, Fort Lauderdale, for appellee/cross-appellant.
   DOWNEY, Judge.

Appellant seeks reversal of a final judgment for appellee finding appellant personally liable on four promissory notes.

The evidence reflects that appellant was the President of Oppenheim Distributors, Inc., which operated a jewelry business in Dade County. Over a period of five or six years the corporation purchased merchandise from appellee, Jules Jergensen Corporation, and paid for it out of the corporation’s bank account. On March 10, 1973, appellant prepared four promissory notes in the principal sum of $2237.35, payable to appellee. On the lines provided for the maker’s signature each note contained the following:

Oppenheim Distributors, Inc.

Harold Oppenheim

The name of the corporation was typed and appellant’s name was signed.

When the notes became due and were unpaid appellee commenced this suit to recover the principal and interest due thereon. Appellant admitted the execution of the notes, but alleged he had executed them not as an individual but in his capacity as President of the Oppenheim Distributors, Inc. At trial appellee proved the existence of the notes, the amount due, and rested. Appellant testified in his own behalf that the notes were executed by him as President of Oppenheim Distributors, Inc.; that the corporation executed notes from time to time in payment for merchandise; and that he had never been asked to sign any corporate obligation in an individual capacity.

Thus, the only proof in the record bearing on the intention of the parties as to appellant’s individual liability as opposed to corporate liability was appellant’s testimony. Appellee objected to the admission of parol evidence of the intention of the parties regarding the maker of the notes; however, the court overruled the objection and we think correctly so. Section 673.403(2), Florida Statutes (1977), (which adopts verbatim the provisions of the U.C.C. § 3-403(2), Florida Statutes (1977), (which adopts verbatim the provisions of the U.C.C. § 3-403) provides:

“673.403 Signature by authorized representative.—
******
(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

The official comments to the Uniform Commercial Code make clear that where the instrument shows two names in the spot designated for payors’ signature, thus creating an ambiguity, parol evidence is permitted to ascertain whether one signature was affixed in a representative capacity. The comments contain the following example and explanation:

(e) ‘Peter Pringle
Arthur Adams’.
[T]he section admits parol evidence in litigation between the immediate parties to prove signature by the agent in his representative capacity.

Parol evidence was therefore admissible in this case because the manner in which the maker signed the notes creates an ambiguity justifying the admission of parol evidence. Schwartz v. Disneyland Vista Records, 383 So.2d 1117 (Fla. 4th DCA 1980).

Appellee contends that there was no ambiguity because the notes read “we promise to pay to the order of Jules Jurgensen Corp.” Appellant testified that in preparing the notes he thought the proper way to refer to the corporation was by the pronoun “we.”

On the record presented here it is our conclusion that appellee failed to prove the appellant was liable on the notes in question. See: Speer v. Friedland, 276 So.2d 84 (Fla. 2d DCA 1973). Accordingly, the judgment appealed from is reversed and the case remanded with directions to enter judgment for appellant.

REVERSED AND REMANDED with directions.

ANSTEAD and MOORE, JJ., concur.


author: LETTS, Chief Judge.

text:
    AMERICAN BUSINESS CREDIT CORPORATION, INC., a Florida Corporation, Appellant, v. The FIRST STATE BANK OF LANTANA, a Florida Banking Corporation, Appellee.
    No. 79-160.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Edna L. Caruso, West Palm Beach, and Lewis, Vegosen, Koeppell & Rosenbach, P. A., Palm Beach, for appellant.
    Theodore A. Jewell of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellee.
   LETTS, Chief Judge.

At issue is a trial judge’s holding that the president of the appellant Corporation had authority to pledge his Corporation’s assets as security for a personal loan from a Lender Bank. We reverse.

The directed verdict was predicated on a resolution set forth in the minutes of the organizational meeting of the Corporation, as follows:

Resolved, that the President, [has] the power and authority to execute a Shareholder’s Agreement, with all other Stockholders having the power and authority to pledge the Corporation as an Indemnitor, and execute an Indemnification Agreement on the Corporation’s behalf, and to otherwise execute any and all documents, on the Corporation’s behalf, which, in his opinion and judgment, will benefit the Corporation, emphasis supplied.

Were the foregoing resolution the only one to be considered we might agree with the trial court, because while a corporate officer cannot normally pledge assets of his corporation to secure a loan unless he is authorized to do so by the articles of incorporation or by his board, Section 607.237, Florida Statutes (1977); see Section 673.-304(2), Florida Statutes (1977) and G. E. C. Leasing Corp. v. Berkshire Life Insurance Company, 226 So.2d 231 (Fla. 4th DCA 1969), he can do so under certain circumstances. Thus, standing alone, we believe the wording of the above quoted paragraph might relieve any Lender Bank of the duty to inquire into such authority. See Section 673.304(2), supra.

In the case at bar, however, these organizational minutes did not stand alone and they were not drawn up with a view to borrowing money or executing documents at this particular Lender Bank; indeed, it is another bank which is referred to in said minutes. To the contrary, this particular Lender Bank caused the Corporation to have specific resolutions applicable to it (the Bank) filled out on a standard corporate form provided for the purpose and certified to by the Corporate secretary. In the various resolutions set forth on this corporate form which are germane to pledging, securing or hypothecating of corporate assets, the wording employed limits such pledging, securing or hypothecating only to “the benefit of the corporation.” There is no additional language authorizing the President in his individual opinion and judgment to conclude what will benefit the corporation, such as was found in the minutes of the organizational meeting.

Under the facts of this case we must, therefore, conclude that the Lender Bank had a duty to inquire into the authority of the president to pledge corporate assets as security for a personal loan and secure the approval of the Corporation’s Board of Directors. Having failed to do so, the Corporation is entitled to a return of the assets pledged. This cause is remanded for the entry of a judgment in accordance herewith.

REVERSED AND REMANDED.

ANSTEAD and HURLEY, JJ., concur.

      . These minutes do not constitute the actual articles of incorporation which is another document in the record.

      .Surprisingly this particular statute is not cited to us and had it been cited to the trial court this appeal would probably never have taken place.

      . See 62 A.L.R.2d 712 et seq.

      . See statutes and cases supra.


author: MOORE, Judge.

text:
    Wilbur R. HANSEN and Peter Kim Van Nymegen, Appellants, v. STATE of Florida, Appellee.
    No. 79-513.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Aug. 6, 1980.

      Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, and David Roth of Cone, Owen, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty., Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellants entered pleas of nolo conten-dere, specifically reserving their right to appeal the denial of their motions to suppress. Thereafter, the trial court adjudicated both appellants guilty of the felony offenses of possession of marijuana. Appellants appeal their convictions and we reverse.

On the night January 10, 1978, Detective McDonald of the Fort Lauderdale Police Department had a house in Fort Lauderdale under surveillance pursuant to information received one week earlier from a confidential informant. The informant told the detective that marijuana was being stored in and sold from the house, that a BMW automobile was parked in the driveway of the house, and that appellant-Hansen was involved in drug transactions connected with the house. Detective McDonald had received information from this informant for approximately five years. Although information provided by the informant had purportedly proved reliable in the past, no arrests or warrants had resulted from such information. Prior to his surveillance McDonald discovered that Hansen had a record of arrests and that a BMW automobile matching the description given by the informant was parked in the driveway of the house. Thus, although surveillance began as a result of the information received from the confidential informant, McDonald had no information to indicate an expectation of specific criminal activity by the occupants of the house.

That night McDonald observed two unrecognized occupants exit the house, enter an El Camino, and proceed on Sunrise Boulevard to Interstate 95, where they then proceeded north in the direction of West Palm Beach. McDonald summoned the assistance of Detectives Treutle and Ornora-to, who were in a separate vehicle, and both vehicles followed the El Camino. At the Belvedere Road exit of 1-95 McDonald met with Officers Hagen and Siciliano of the West Palm Beach Police and set up a monitoring post. Treutle and Ornorato followed the vehicle to a residence at 822 Ardmore Road where the vehicle was parked on the street. They attempted to obtain permission to set up a surveillance post from the residents of 828 Ardmore (the house immediately west of 822 Ardmore), but they were unsuccessful as apparently no one was home. Nonetheless, the officers conducted their surveillance by placing Treutle at the south end of the driveway of the 828 Ard-more residence and Ornorato and the north end. Treutle observed the activities of the residence at 82272 Ardmore (a small cottage behind 822) by looking over a chain link fence and hedge of bushes that served as the border between 82272 and 828. From this vantage point, Treutle observed the activities that actually took place in a driveway and lawn area between 822 and 82272 Ardmore Road. While on the 828 property, Treutle observed an occupant of the El Camino enter the cottage. He then observed two men whom he could not identify leave 82272 Ardmore carrying two “bundles” which were placed on the ground approximately 20 feet from the doorway of 82272. A man then exited the cottage and placed the bundles into the El Camino. Two men then exited the cottage, entered the El Camino and drove off. The record is not clear as to how many persons were involved in these activities.

All of these observations by Treutle were orally communicated to Ornorato, who then communicated them to McDonald, Hagen, and Siciliano via radio. Treutle testified that he suspected the bundles contained marijuana, although he stated that he never actually saw any marijuana.

The El Camino proceeded to a gas station near the corner of Belvedere Road and Parker where it stopped. At this time the activities of the occupants were being monitored by McDonald and another unit comprised of Officers Hagen and Siciliano of the West Palm Beach Police. These officers had been advised of the situation by McDonald and were privy to Ornorato’s radio transmissions. After the El Camino stopped, one of the occupants exited the car and went over to a phone booth and apparently made a call. The El Camino proceeded west on Belvedere, turned around, and came back to the gas station. The occupant who made the call again entered the vehicle and it pulled out of the station. At this time the vehicle stopped. The occupants were arrested by Patrolman Robb Robertson of the West Palm Beach Police pursuant to directions from his superior, Hagen. Robertson was assisted in the arrest by Siciliano. Robertson was also privy to the communications from Treutle and Ornorato at Ardmore Road and had also been advised of the situation by Detective McDonald. Following the arrest Robertson then conducted a search of the El Camino. The search produced a ten pound parcel of marijuana wrapped in a garbage bag, a twenty pound parcel of marijuana located inside a cardboard box, a briefcase containing some weighing scales, and a briefcase containing about $8,000 in U.S. currency.

The sole issue in this case is whether there was probable cause to make an arrest of the appellants and conduct the subsequent search of their vehicle. In determining the existence of probable cause in this case, we must analyze the quantum of information as it existed in the minds of the Fort Lauderdale Police. The information and knowledge of the West Palm Beach Police, derived from their Fort Lauderdale colleagues, must also stand or fall under this same analysis.

In suspecting the Fort Lauderdale house as an area of criminal activity, Detective McDonald relied upon information from an unidentified informant. The informant told McDoanld that Hansen, who seemingly resided at the house, was involved in drug transactions and the storage of marijuana at the house. The informant never proffered any specific information relating to past occurrences or future possibilities of any identifiable drug transactions. All the informant told McDonald was that the he somehow knew these facts to be true. At the suppression hearing McDonald did not provide any specifics as to the reliability of his informant in the past, nor did he provide the trial court with any underlying rationale that might have led him to believe that a specific drug transaction was about to take place. All that is reflected in the record is (1) McDonald believed the informant to be reliable (without articulating any specifics), (2) the informant told him that at some vague time in the past marijuana was stored and possibly sold from the Fort Lauderdale house, and therefore, (3) McDonald suspected criminal activity. The house in question was then placed under surveillance. The record reflects no attempt by the police to obtain a search warrant during the week between the time McDonald received his information and the date of arrest. While surveilling the house McDonald observed two unidentified and unrecognizable males depart the premises, enter an unknown vehicle, and drive away. These facts are insufficient to constitute probable cause that a crime was about to be committed.

In Olivera v. State, 315 So.2d 487 (Fla. 2nd DCA 1975), the Court held that, even assuming that exigent circumstances necessary for a search without a warrant exist, the probable cause requirements for a warrantless search are not less than those for the issuance of a search warrant. Thus, a police officer must have information that indicates with particularity the place where criminal activity is afoot, the persons involved, and the nature of the offense. When the officer relies on information from a third party these same requirements of particularity, probability and reliability still apply. Such a receipt of third party information exists in this case. In Aguilar v. Texas , 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court affirmed the use of hearsay information as a basis of probable cause for a warrant. The Court stated, however, that the issuing magistrate must be informed of some underlying circumstances from which the informant concluded that his information was correct, and the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed , was “credible”, and his information reliable. The transcript of the suppression hearing in the present case reveals nothing other than McDonald’s general assertions of belief in his informant and that the informant told him of some nonspecific drug trafficking. There are no statements of names, dates, transactions, etc., that would give McDonald a basis for establishing his informant’s prior track record for reliability and his present credibility.

This case presents a scenario similar to that of Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) in which the police arrested the petitioner based on generalized “information”, “reports”, “police pictures” and the information of unnamed informants. After the arrest, the petitioner’s auto was seized and searched and incriminating evidence was found. The Supreme Court reversed the conviction stating that a generalized belief or suspicion that a person is involved in a criminal activity is insufficient to validate an arrest. There must be an underlying and articulable basis to establish probable cause. Shepard v. State, 319 So.2d 127 (Fla. 1st DCA 1975), represents this same principle; that the police cannot lawfully transform their mere suspicions into action that involves searches or seizures of individuals.

In Raffield v. State, 351 So.2d 945 (Fla.1977), the Court held that where the police had placed a farm under surveillance in early December and had made no attempt to procure a warrant, a warrantless search of the defendant’s farm on December 24th was not reasonable, even if exigent circumstances and probable cause had existed on that date. Although no search of the appellant’s purported residence occurred in this case, the principle of Raffield should apply nonetheless. The record reveals that McDonald received his information concerning the house and appellant-Hansen on January 3rd. The police had not attempted to procure a warrant the following week and elected instead to “tail” the appellants on the night of January 10th, without any information as to any criminal activities that would or even might transpire.

The foregoing analysis of the facts and applicable law clearly indicates that the Fort Lauderdale Police did not have probable cause to arrest appellants for any activities in Broward County on the night of January 10. They proceeded to follow the appellants to Palm Beach County under what could only be called a suspicion. In fact, any “suspicion” which the police could have had was only a general suspicion of the appellants’ possible criminal character and not a well founded suspicion of actual criminal conduct. It must be remembered that McDonald did not even know who the exact occupants of the vehicle were. Thus, even a reasonable belief in Hansen’s criminality could not suffice to validate further police action since both the vehicle and its occupants were unknown to McDonald. Assuming, arguendo, that the Fort Lauderdale Police had a sufficiently reasonable suspicion of the appellants’ criminal activity to justify a crossing of county lines to continue their surveillance, we must then consider the observations of the police at the Ard-more Road residence. Two factors should be kept in mind: (1) the Fort Lauderdale police were completely out of their lawful jurisdiction, and (2) there was nothing to indicate or support a “hot pursuit” theory so as to give the police extra jurisdictional powers under Section 901.25 Florida Statutes (1978).

We reject the State’s contention of a “plain view” theory to justify Treutle and Ornorato’s observations from 828 Ard-more Road. The “plain view” doctrine as defined in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) consists of three basic requirements that must be satisfied in order for a valid seizure of evidence to result from a plain view observation conducted without a warrant. These requirements are aptly set forth in Pomerantz v. State, 372 So.2d 104, 110 (Fla. 3rd DCA 1979):

In a long line of cases, the Florida and federal courts have held that it is not a search for the police to discover evidence in plain sight. The warrantless seizure of such evidence is constitutionally permissible providing three requirements are met: (1) the police must observe the evidence in plain sight without the benefit of a search [i. e., without invading one’s reasonable expectation of privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation, and (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime, [citations omitted].

Even if we can assume that the appellants had no reasonable expectation of privacy where they were located , and that the police had a right to be on the property at 828 Ardmore, the police did not have probable cause to believe that the “bundles” they observed were the “fruits”, “instru-mentalities”, or “evidence” of a crime. Treutle testified that he never saw any marijuana, only that he suspected that the bundles contained marijuana. Recent decisions have held that a police officer’s observation of the outer packing of a suspected parcel of marijuana, standing alone, is insufficient to constitute probable cause. Harris v. State, 352 So.2d 1269, 1270 (Fla. 2nd DCA 1977); Carr v. State, 353 So.2d 958, 959 (Fla. 2nd DCA 1978). The mere observation of such parcels could at most raise a suspicion of wrongdoing. Additional, specific information was needed to escalate this suspicion to probable cause. As previously stated, the record here indicates that none of the officers had any information concerning specific drug transactions. Furthermore, there is nothing to indicate that the parcels were packaged in a manner that is customary to marijuana packaging in general. This being the case, and no marijuana being plainly visible, the police did not have the requisite probable cause to make an arrest or search.

The arrest in this case was effectuated by the West Palm Beach Police who were acting under the advice of Detective McDonald and the radio transmissions from Officer Ornorato. Although a police officer may make a warrantless arrest without firsthand knowledge of a crime if he receives a communication from another officer who has probable cause, a deficiency in initial probable cause cannot be rectified by the products of a search conducted after arrest. Compare, McRae v. State, 245 So.2d 133 (Fla. 1st DCA 1971); Crawford v. State, 334 So.2d 141 (Fla. 3rd DCA 1976); State v. Harrington, 307 So.2d 466 (Fla. 2nd DCA 1974); and United States v. Trabucco, 424 F.2d 1311 (5th Cir. 1970) with Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). The validity of the arrest in this case is dependent upon the existence of probable cause within the minds of Treutle and Ornorato since they are the only persons with personal knowledge of the activities at Ardmore Road. Since Treutle and Ornorato did not have probable cause, based upon their observations of the activities at Ardmore Road, the arrest which was based upon the communication of their personal knowledge to the arresting officers was invalid, and the subsequent search of the vehicle violated the appellants’ fourth amendment rights.

Accordingly, the judgments of convictions and sentences and the order denying the motion to suppress are reversed. This cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.

      . See also, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

      . In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), information given by an unnamed and unidentified informant was held sufficient to support a warrant-less arrest under exigent circumstances. In Draper, however, the informant had a demonstrably excellent prior record of reliability and there was an underlying factual basis for his present accuracy. His past reliability and present accuracy were supported by specific details of fact.

      . See also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) expressly declaring a right of privacy in a back yard. While it is apparent that neither of the appellants resided at 822'/2 Ardmore Road, their testimony that they were “houseguests” was not disputed. As noted in Katz, the realm of “privacy” is not a static concept. “Privacy” can be anywhere as long as the defendant has a reasonable and justifiable expectation so as to warrant protection.

      . This is a doubtful proposition, since Officers Treutle and Ornorato, who were beyond their territorial jurisdiction and not in “hot pursuit”, had no greater right or privilege than other ordinary citizens. An ordinary citizen could only be considered a trespasser if they were on the premises of 828 Ardmore without the consent of the owners.


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Robert G. BEANE, Individually and as father and next friend of Roberta K. Beane, a minor, American States Insurance Company, and Matthew Francis Carroll, a minor, by his guardian and next friend, Mary Alice Carroll Hall, Appellees.
    No. 79-769.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Aug. 5, 1980.

      Donald J. Beuttenmuller, Jr., and Steven A. Stinson of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    Cecil H. Albury of Albury, Webb & Park, West Palm Beach, for appellees.
   HERSEY, Judge.

The minor plaintiff, Roberta K. Beane, was injured in an accident while a passenger in an automobile being operated by the minor defendant, Matthew Francis Carroll. In the ensuing litigation the minor plaintiff, joined by Robert G. Beane, individually and as father and next friend, sought damages against the minor defendant and Mary Alice Carroll Hall, mother, guardian and next friend of the minor defendant. Also joined as defendants were the two insurance companies.

American States Insurance Company was the issuer of two insurance policies, one of which provided primary coverage in the amount of $250,000.00 to Carolyn Beane. The minor plaintiff, using the automobile with her mother’s permission, had permitted the minor defendant to drive the automobile and consequently the minor defendant was an additional insured under this policy. The other American States policy provided $1,000,000.00 excess coverage in the nature of an umbrella policy. Aetna had issued a $50,000.00 excess coverage policy insuring Mary Alice Carroll Hall and members of her household, thus including the minor defendant, Matthew Carroll.

The trial resulted in a jury verdict in the amount of $10,470.19 for Robert G. Beane and $572,279.50 for Roberta K. Beane. A final judgment was entered against Matthew Carroll and his mother, Mary Hall. Entry of judgment against the insurance carriers was withheld pending resolution of coverage issues.

Before those coverage issues had been resolved, a partial settlement was effected. American States paid to plaintiffs $525,-000.00 in consideration of a full and final release, an assignment of judgment, and a satisfaction of judgment. Included in the release and satisfaction were Matthew Carroll and his mother.

Aetna then filed a motion for relief from the jury verdict on the basis that the release of its insured prior to the entry of a judgment against Aetna relieved it of all liability. This motion was denied and final judgment was rendered requiring that American States satisfy the first $250,-000.00 of liability, that Aetna satisfy the next $50,000.00 and that American States satisfy the balance by virtue of its umbrella coverage. From this final judgment Aetna appeals.

Aetna takes the position that the release of Matthew F. Carroll by plaintiffs and satisfaction of the judgment against him had the effect of extinguishing any liability that might otherwise have accrued against Aetna. Conceding that the release of one joint tort-feasor no longer acts as a relaease of all joint tort-feasors, by virtue of Section 768.041, Florida Statutes (1977), appellant contends that a different rule prevails as to joint and several obligors, placing itself in that category. Penza v. Neckles, 344 So.2d 1282 (Fla.1977), is correctly cited for that proposition. Appellant contends that since the liability of an insurer depends upon the liability of its insured and that an insurer’s obligation extends only to the legal obligations of the insured, the release of Aetna’s insured effectively extinguished Aetna’s liability. Russell v. Orange County, 237 So.2d 192 (Fla. 4th DCA 1970) and Allstate Insurance Company v. Royal Guardian Insurance Company of Canada, 314 So.2d 14 (Fla. 4th DCA 1975).

The flaw in the logic of appellant’s position is that the liability of the insured arises in the context of commission of a tort whereas the insurer’s liability arises by virtue of third-party beneficiary principles of contract. While the insurer and the insured are not joint tort-feasors, neither are they joint obligors under a contract. See Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). Because the parties are neither joint tort-feasors nor joint and several obligors, neither the statute nor the common-law rule offers support to appellant’s position on this point.

Further, it is clear that the parties to the settlement had no intention of releasing Aetna, as demonstrated by the assignment of judgment.

Had Aetna’s insured personally satisfied the judgment against him and obtained a release and satisfaction of judgment, absent some prohibition in the policy, Aetna would not thereby have been relieved of liability. The right of plaintiff under the judgment would enure to the insured’s benefit and entitle him to recover against the insurer.

What happened in the instant case is little different in fact and no different in legal effect. Aetna remains liable.

Appellant Aetna also claims that even if the release and satisfaction do not enure to its benefit, any recovery against Aetna is precluded by a fundamental defect in the pleadings which is incapable of being remedied. Aetna relies on Spurgeon v. State Farm Mutual Insurance Company, 169 So.2d 343 (Fla. 1st DCA 1964), for the proposition that in order to state a cause of action against an excess insurer a complaint must allege that plaintiff has exhausted all legal remedies against the primary insurers in an effort to collect a judgment or that the judgment was not collectible. However, in view of Shingleton v. Bussey, supra, which held that insurance carriers may be joined as tort-feasors in one action, the requirement of Spurgeon, supra, no longer obtains in Florida. An amendment to the complaint in the instant case alleged that damages far exceeded the policy limits of primary coverage. Accordingly, we find that the pleading as amended was not deficient in this respect.

Finally, relying on Motor Vehicle Casualty Company v. Atlantic National Insurance Company, 374 F.2d 601 (5th Cir. 1967), appellant maintains that the excess coverage policies are mutually repugnant, so that any recovery beyond the primary policy limits should be prorated between the two carriers. The pertinent provision of Aetna’s policy states:

[t]he insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.

The relevant portion of the excess (umbrella) policy written by American States provided:

If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder (except insurance purchase to apply in excess of the sum of the retained limit and the limit of liability hereunder), the insurance hereunder shall be in excess of, and shall not contribute with, such other insurance, (emphasis supplied).

The trial court found that these policy provisions were not mutually repugnant. The American States policy provides not only that its coverage is in excess of other available insurance coverage, but also that the coverage “shall not contribute with such other insurance.” So long as the requirements of law have been met, parties to contracts are free to shift the burden of loss. Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). Florida’s financial responsibility laws were satisfied in this case. After comparing the language of the two policies, the trial court correctly determined that the excess coverage should not be prorated.

The final judgment is therefore affirmed. AFFIRMED.

ANSTEAD, J., and FAGAN, OSEE, R., (Associate Judge), concur.