text:
    James BLAIR, Kathy A. Blair, his wife, and Beatrice Wachowiak, Appellants, v. ROYAL AMC JEEP, INC., and Barnett Bank of Orlando/Winter Park, Appellees.
    No. 80-342.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    William A. Greenberg, Fowler, Williams & Airth, P. A., Orlando, for appellants.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee Royal AMC Jeep, Inc.
   COWART, Judge.

A section of the federal Truth in Lending Act (15 U.S.C. § 1640) provides in part:

(a) ... any creditor who fails in connection with any consumer credit transaction to disclose to any person, any information required under this part to be disclosed to that person, is liable to that person in an amount equal to the sum of
(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000;

The three appellants executed a single Security Agreement-Retail Installment Contract which has been determined to be a consumer credit transaction in which the creditor failed to disclose certain required information. Double the finance charges in the transaction exceeded $1,000. The question is: Under this subsection do the three appellants each recover $1,000 or do they all together recover a total of $1,000? The trial court construed subsection (a)(1) to limit the maximum liability of the creditor to $1,000 without regard to the number of obligors.

The decisions of the federal appellate courts considering this question are in conflict, with the United States Fourth, Ninth and Tenth Circuit Courts of Appeal favoring one maximum recovery of $1,000 for one obligation regardless of the number of obligors and the United States Fifth and Seventh Circuit Courts of Appeal holding that each obligor can recover the maximum $1,000. The federal trial courts and state courts are likewise split.

The courts allowing multiple recoveries where there are multiple obligors make the following points:

(a) The statutory language referring-to “liability to that person” implies that the duty of the creditor runs to each obligor. A failure to disclose is a separate violation as to each obligor; therefore, each obligor should be able to sue and recover.

(b) The creditor’s security increases with each obligor thereby inferring that the creditor’s liability should likewise increáse.

(c) The purpose of the statute is remedial and it should be liberally construed.

Courts allowing but one maximum recovery as to each transaction say:

(a) The legislative history indicates Congress intended but one recovery per transaction.

(b) The statutory language refers to the penalty on the creditor “in connection with any consumer credit transaction” (singular).

(c) Regardless of the number of obligors there is but one debt and the creditor can recover that debt but once.

(d) The applicable statutory section (15 U.S.C. § 1631(b)) and the applicable regulation (Regulation Z) provide that in a transaction where there are multiple obligors, the disclosure statement need only be given to one of them.

(e) The statute is penal and should be strictly construed.

We find no precedent binding on us and note that the language in the penalty subsection states the liability of the creditor “under this paragraph shall not be — greater than $1,000;” for this reason, as well as those in the cases holding similarly, we hold that for a violation of subsection (a)(2) of this section of the federal Truth in Lending Act (15 U.S.C. § 1640), although there are multiple obligors, there is but one recovery of damages for each consumer credit transaction. The final judgment below is

AFFIRMED.

COBB and SHARP, JJ., concur.

      . A subsection of this federal act authorizes actions in any United States District Court or in any other court of competent jurisdiction. This has been held to create a right enforceable in state or federal'courts. See Reliable Credit Service, Inc. v. Bernard, 339 So.2d 952 (4th Cir. 1976), writ den., 341 So.2d 1129, 342 So.2d 215 (La.1977); Lewis v. Delta Loans, Inc., 300 So.2d 142 (Miss.1974). We observe that an obligor, but not the creditor, has a choice of forum, state or federal and, when there is a difference, can choose the most favorable forum.

      . Powers v. Sims and Levin, 542 F.2d 1216 (4th Cir. 1976).

      . Milhollin v. Ford Motor Credit Company, 588 F.2d 753 (9th Cir. 1978), rev’d on other grounds, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980).

      . Hinkle v. Rock Springs Nat Bank, 538 F.2d 295 (10th Cir. 1976).

      . Cody v. Community Loan Corporation of Richmond County, 606 F.2d 499 (5th Cir. 1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2973, 64 L.Ed.2d 846 (1980); Davis v. United Companies Mortgage and Investment of Gretna, Inc., 551 F.2d 971 (5th Cir. 1977).

      . Mirabal v. General Motors Acceptance Corporation, 537 F.2d 871 (7th Cir. 1976); Allen v. Beneficial Finance Co. of Gary, Inc., 531 F.2d 797 (7th Cir. 1970), cert. denied, 429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166 (1976).

      . Cases supporting one recovery per transaction:

        Brame v. Ray Bills Finance Corp., 85 F.R.D. 568, 587 (N.D.N.Y.1979); Vines v. Hodges, 422 F.Supp. 1292 (D.D.C.1976); Gillard v. Aetna Finance Company, Inc., 414 F.Supp. 737 (E.D.La.1976); In re Wilson, 411 F.Supp. 751 (S.D.Ohio 1975); Simmons v. American Budget Plan, Inc., 386 F.Supp. 194, 201 (E.D.La.1974); St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.1974); Rivers v. Century Finance Co., 5 CCH Consumer Credit Guide § 98,771 (N.D.Ga.1974); Burrell v. City Dodge, Inc., 8 CCH Consumer Credit Guide § 98,764 (N.D.Ga.1974); Conrad v. Beneficial Finance Co. of N. Y., Inc., 57 App.Div.2d 91, 394 N.Y.S.2d 923 (4th Dept. 1977).
      Cases supporting multiple maximum recoveries per transaction:

        Tarplain v. Baker Ford Inc., 466 F.Supp. 1340 (D.R.I.1979), rev’d without opinion, 618 F.2d 94 (5th Cir. 1980); Mitchell v. Security Inv. Corp. of Palm Beach, 464 F.Supp. 650 (S.D.Fla.1979); Bird v. Goddards Discount Furniture, 443 F.Supp. 422 (S.D.Ill.1978); Cadmus v. Commercial Credit Plan, Inc., 437 F.Supp. 1018 (D.C.Del.1977); Clausen v. Beneficial Finance Co. of Berkley, 423 F.Supp. 985 (N.D.Cal.1976).

      .H.R.Rep.No. 1040, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong, and Ad.News 1962, 1976, refers to “a maximum penalty not to exceed $1,000 on any individual credit transaction.”

      . See State v. Dwyer, 332 So.2d 333 (Fla.1976).

      . Because it can be argued both ways we do not consider it a factor but we do note that the applicable portion of this federal statute has been amended prospectively (Truth in Lending Simplification and Reform Act, Pub.L. 96-221, § 615, 94 Stat. 168 (1980)) to add a subpara-graph (d) as follows: “When there are multiple obligors in a consumer credit transaction or consumer lease, there shall be no more than one recovery of damages under subsection (a)(2) of this section for a violation of this subchapter.”


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    Marvin Dewitt PURVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-646.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.

      James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

The only evidence presented to the trial court in support of the charge that appellant had violated the condition of his probation that he “live and remain at liberty without violating any law,” was hearsay. Although the rules of evidence are relaxed at probation violation hearings and hearsay evidence may be introduced, a finding of probation violation cannot be sustained on hearsay evidence alone. Combs v. State, 351 So.2d 1103 (Fla.4th DCA 1977); Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977). Evidence of probationer’s arrest, without more, will not support a revocation of probation. Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976).

The order revoking appellant’s probation is vacated and set aside. The judg-. ment and sentence based on the order revoking probation is similarly vacated and set aside. In so doing, we express no opinion on the merits of the underlying charge for which appellant was arrested and on which the probation violation hearing was based.

Order and judgment vacated.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Richard E. KISLING, t/a Rek Group, Appellant, v. Lee WOOLDRIDGE, Appellee.
    No. 80-995.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Kenneth M. Meer and Thomas V. Infanti-no, Winter Park, for appellant.
    Stephen P. Kanar, Winter Park, for ap-pellee.
   ORFINGER, Judge.

The trial court awarded an attorney fee to appellee (defendant below) under the provisions of section 57.105, Florida Statutes (1979), after granting a motion for involuntary dismissal at the close of the plaintiff’s case. Only that portion of the final judgment awarding the attorney fee is appealed. We affirm.

In Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), this court outlined the requirements for the award of attorney’s fees under section 57.105. This case clearly falls within those requirements. In the action brought here, charging tortious interference with an advantageous business relationship, appellant proved none of the essential elements of that tort. Appellant is a builder, who contended that his membership in the Home Builder’s Association is a valuable business relationship, but it is clear that he showed neither an interference with that relationship by appellee nor any damage. The most that can be said is that appellee, for whom appellant built a home, wrote a letter of complaint to the Association, contending that he was unable to get action on some needed corrections. Appellant may have been offended by the letter, but there is no evidence that anything adverse resulted from it. In fact, the contrary is shown.

The trial court was justified in finding the action frivolous and in awarding the fees. See White v. The Montebello Corporation, 397 So.2d 326 (Fla. 5th DCA 1981).

The order appealed from is affirmed. For the reasons expressed here, appellee’s motion for appellate attorney fees under the same statute is granted, and the cause is remanded to the trial court to fix that fee.

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . The record shows that after the letter of complaint was received by the Association and placed on file, appellant was elected treasurer of the Association.


author: GRIMES, Judge.

text:
    Tommy H. DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 80-843.
    District Court of Appeal of Florida, Second District.
    April 29, 1981.

      Jack Douglas Hoogewind, Dade City, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The state charged appellant with attempted first degree murder, and a jury convicted him of the lesser included offense of aggravated battery. On this appeal he contends that a certain statement made by the court constituted an improper comment upon his failure to testify. He also argues that the court erred in refusing to instruct the jury on aggravated assault.

In the course of asking a prospective jur- or whether he could make a decision on the question of intent, the prosecutor pointed out that intent exists inside a person’s head and that since a jury cannot “actually get into someone’s skull, that we have to, in determining what someone’s intent was, we have to rely on the circumstances, ...” Shortly thereafter the prosecutor addressed another juror as follows: “I trust you heard the question I asked Mr. Morrison about intent and recognizing that none of us are going to be able to get into that man’s head today?” Defense counsel interrupted with an objection and, out of the presence of the jury, made a motion for a new jury'venire. After hearing argument of counsel, the court denied the motion.

Sometime later, after the prosecutor had finished his opening statement, the following events transpired:

THE COURT: Mr. Hoogewind, does the defendant desire to make a statement at this time or to reserve it?
MR. HOOGEWIND: Your Honor, may we approach the bench?
THE COURT: Yes, sir.
(Thereupon, the following proceedings were had at the bench:)
MR. HOOGEWIND: Your Honor, I am sure it was unintentional by the Court, but I will have to ask for a mistrial at this time based upon what Your Honor just said.
Your Honor said: Would the defendant wish to make a statement at this time. I don’t know how to answer that. I know Your Honor didn’t mean it. It happened nonetheless. I don’t know how to answer that. If I say, no, I don’t know what the jury is going to think. We can have it read back, but that is what Your Honor said.
I know it was a mistake, but it happened, and I don’t know how to respond to it in the presence of the jury.
THE COURT: Well, Mr. Hoogewind, your motion is denied.
(Thereupon, the following proceedings were had in open court:)
THE COURT: Do you wish to make a statement at this time?
MR. HOOGEWIND: No, Your Honor.
THE COURT: Do you wish to reserve it?
MR. HOOGEWIND: Yes.

Appellant argues that the court’s inquiry as to whether the defendant wished to make a statement, particularly coming as it did after the prosecutor’s comment about getting into the defendant’s head, had the inadvertent effect of being an improper comment upon appellant’s constitutional right to refuse to testify. The state responds by pointing out that the court had earlier advised the jury that both lawyers would have the right to make opening statements which the jury was not to consider as evidence. Thus, the state says, it was obvious to everyone that the court’s question was addressed to the defendant’s representative in court, his attorney. We agree with the state. Admittedly it would have been more prudent for the court to ask if “defense counsel” wished to make a statement. Yet, when considered in light of the fact that the court had previously told the jury that both attorneys would be permitted to make an opening statement, appellant’s argument loses much of its force. The common sense interpretation of the judge’s statement indicates that he was referring only to the defendant’s lawyer. This is buttressed by the court’s later question, addressed directly to defense counsel, concerning whether he wished to make a statement at that time. Viewed in this context, the court’s inquiry was not reasonably susceptible of being interpreted by the jury as referring to appellant’s failure to testify. See David v. State, 369 So.2d 943 (Fla.1979). The much earlier dispute over the prosecutor’s remark about getting into the defendant’s head was so unrelated to the judge’s comment as to be irrelevant.

Appellant also contends that the court’s failure to give his requested instruction on aggravated assault constituted reversible error. The information under which the state tried appellant read as follows:

Tommy H. Dunn ... did unlawfully and from a premeditated design to effect the death of Alice Dunn, a human being, actually and intentionally or knowingly cause great bodily harm, permanent disability or permanent disfigurement, by stabbing the said Alice Dunn, by the use of a deadly weapon, to wit: a knife, intending thereby to cause the death of the said Alice Dunn.

The evidence reflected that Alice Dunn, appellant’s wife, was preparing dinner for her family and a friend, Bill Deaton. Before dinner, she got into an argument with Mr. Deaton and asked him to leave. Appellant objected, and he and his wife then argued over Deaton’s presence. Finally, Deaton was permitted to stay and Mrs. Dunn served dinner. After dinner, Deaton left, and appellant fell asleep. He awoke about two hours later. Observing that the leftovers from his dinner were cold, he asked his wife to reheat them. She told him that he should have finished his food earlier, but, nevertheless, she began to comply with his request.

According to Mrs. Dunn, while she was reheating the food, appellant complained that he was very hungry. She told him that the food was on the stove and that if he wanted it faster, he could argue with the stove. While this exchange was occurring, appellant was sitting on the edge of a bed in front of the dinner table upon which there was silverware. When Mrs. Dunn next saw her husband, he was standing, holding a knife in his hand. Their daughter, Terry, asked him why he had the knife, and he responded, “What knife?” About ten minutes later Mrs. Dunn decided to check on whether the food was completely cooked. She said that as she walked past appellant, who was then standing, he suddenly stabbed her with the knife.

After the stabbing, appellant picked up his wife and tried to attend to her wound. When police arrived, he urged them to obtain immediate medical attention for her and said that he had stabbed her by accident. He later made a statement to the police that, as he was sitting at the foot of a bed eating dinner, he made a “backward motion” with his hand while holding a steak knife and accidentally struck his wife in the chest. A policeman testified that after Mrs. Dunn was taken to the hospital, she told him that the stabbing took place while appellant was sitting on the bed.

Appellant did not testify.

Appellant is correct that if aggravated assault is a lesser included offense of the crime charged in the information, the court committed reversible error by failing to give his requested instruction. Lomax v. State, 345 So.2d 719 (Fla.1977). Clearly, aggravated assault is not a category (3) necessarily lesser included offense because not all of its elements are elements of the greater offense of attempted murder. Brown v. State, 206 So.2d 377 (Fla.1968). The question remains, however, as to whether the wording of the information and the evidence in the case were such that it could be considered a category (4) lesser included offense under Brown.

Appellant relies primarily upon Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978), in which the court reversed the defendant’s conviction of attempted murder in the second degree on a charge of attempted first degree murder with a firearm for the failure of the trial judge to give requested instructions on aggravated assault and simple assault. The information alleged that the defendant had attempted to unlawfully kill a human being and did shoot him with a firearm. The state argued that because the victim never saw the gun before he was shot, he was not placed in fear of imminent violence which is an essential element of assault. The court held that this ignored the fact that five other shots were fired at the victim and that it was reasonable to believe that the victim was placed in fear between the first shot and the subsequent shots.

Appellant’s reliance on Kimb--rough is misplaced. Admittedly, it is not always necessary for the victim to testify that he was afraid in order to sustain a conviction of assault. However, in this record until the moment of her injury, there is no evidence from which it could be inferred that Mrs. Dunn was ever placed in fear. She had no prior warning that appellant would stab her. The minor arguments which occurred earlier in the evening gave her no apprehension of being attacked. The fact that she saw appellant with a knife before the stabbing was of no consequence because he was preparing to use the knife to eat his supper. Finally, the dispute over whether appellant was standing or sitting at the time of the attack was irrelevant to the issue of placing his wife in fear. Since the facts were not susceptible of an interpretation that the victim had a well-founded fear of imminent violence, there could have been no conviction for aggravated assault. See State v. White, 324 So.2d 630 (Fla.1975). Hence, the court correctly refused to charge the jury on this crime.

AFFIRMED.

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

      . Section 784.011, Florida Statutes (1979), defines assault to include the “doing of some act which creates a wellfounded fear in such other persons that ... violence is imminent.” Section 784.021, Florida Statutes (1979), specifies that aggravated assault consists of assault plus the enumerated aggravating circumstances.

      . Because the facts of this case are different from Kimbrough, we need not pass on whether we agree with our sister court that an information which merely recites an attempted murder by way of a shooting sufficiently alleges the element of well-founded fear for purposes of charging a lesser included offense of aggravated assault. Cf. State v. Dye, 346 So.2d 538 (Fla.1977), in which the supreme court held that no essential elements of a crime should be left to inference in an information.


author: McCORD, Judge.

text:
    C. A. CARROLL CONSTRUCTION COMPANY and Fidelity & Casualty Company of New York, Appellants, v. Gerald LONG, Appellee. Gerald LONG, Appellant, v. BRUCE LITTLE PLUMBING COMPANY and Seaboard Fire & Marine Insurance, Appellees.
    Nos. SS-156, SS-203.
    District Court of Appeal of Florida, First District.
    April 30, 1981.

      J. Nixon Daniel, III, Beggs & Lane, Pensacola, for appellants (Case No. SS-156).
    Dale E. Rice, Crestview, for appellee (Case No. SS-156).
    C. Douglas Brown, Isler, Brown, Smoak & Watson, Panama City, for appellees (Case No. SS-203).
   McCORD, Judge.

Both appellants, employer/carrier, and appellee/claimant,' appeal from a workers’ compensation order which awarded certain benefits to appellee. The appeals have been consolidated for consideration by this Court. We affirm in part and reverse in part.

This cause involved two different work-related accidents, in which appellee injured his lower back. At the time of the first accident, on April 19, 1976, appellee was employed by Bruce Little Plumbing Company. Appellee reached maximum medical improvement from that accident in May, 1977, sustaining a 10% permanent partial impairment according to one of his treating physicians, Dr. Hartsfield. After the first accident, appellee worked intermittently for other employers until he was hired by appellant, C. A. Carroll Construction (Carroll), in October 1976. In March 1977 he was laid off because of a slow-up in the construction industry. He worked for others until he returned to work for Carroll in November 1977. He worked continuously for Carroll until his second back injury occurred on May 13, 1978. He testified that before the second accident he was able to perform his work, although he did suffer some back and leg pain at times. He testified that he was never refused work between the first and second accidents because of his back problem.

Because of the second injury, he missed the next two weeks of work and was fired by Carroll. He did not work again until June 1978 when he worked for a brief period but was unable to hold a job because of his back problem. After the second injury, he was unable to obtain or keep the types of jobs which he had been able to perform prior to the second accident. However, at the time of the hearing, aplpellee was working at a job in which he was making more money than he had made prior to the second accident, but he testified that he did not expect that job to last more than several weeks. Dr. Hartsfield saw appellee after the second injury and concluded that his findings were “essentially the same as on 5-23-77. There is a 10% permanent partial impairment, which remains.”

The deputy commissioner found that ap-pellee had suffered two distinct injuries as a result of the two accidents. He found that appellee’s intermittent work schedule after the first accident was due to erratic construction jobs rather than to back problems. He noted appellee’s testimony that the pain was much the same after both accidents. However, he also considered that other evidence, including appellee’s steady work at Carroll Construction Company from October 1976 until March 1977, indicates that after the first accident, ap-pellee was on the road to recovery and was working regularly considering his 10% impairment. He recognized that after the second injury, appellee had more difficulty finding work, and for the first seven months of 1979, his income decreased dramatically. He found that due to his injury, appellee is limited in the types of jobs he can hold in the future and that he will have difficulty obtaining work where a pre-em-ployment physical examination is required. As a result of those considerations, the deputy commissioner found that appellee had sustained a 20% permanent partial disability of the body as a whole due to a loss of wage-earning capacity.

The deputy commissioner went on to state in his order that:

The second injury, while not causing any increased impairment, did cause more disability. In this sense, the two injuries merged to cause a greater disability than the second injury standing alone.

The deputy commissioner assessed Carroll for the increased disability.

Appellants argue that the deputy commissioner erred in finding merger and an increase in permanent partial disability when he specifically found that the second accident did not produce any increased permanent partial impairment. We agree. For merger to occur, the claimant must have suffered a permanent impairment attributable to each of the two separate and distinct accidents. See § 440.15(5)(b). Also, before assessing a disability rating based on loss of wage-earning capacity, a deputy commissioner must have made a finding of physical impairment. Agrico Chemical Co. v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980); Owens v. John F. Kennedy Memorial Hospital, 7 FCR 217 (1972). Therefore, we reverse the deputy commissioner’s finding of an increased disability without an increased impairment and remand the case for reconsideration and a redetermination as to whether or not appellee suffered an increased impairment due to the second accident which contributed to an increased loss of wage-earning capacity.

We have considered the points raised by appellee and find them to be without merit.

Affirmed in part, reversed in part, and remanded for reconsideration consistent with this opinion.

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


author: SHAW, Judge.

text:
    Ronnie T. STUDSTILL, Appellant, v. STATE of Florida, Appellee.
    No. UU-43.
    District Court of Appeal of Florida, First District.
    April 30, 1981.

      Michael J. Minerva, Public Defender, Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Charles Stampers, Asst. Atty. Gen., for appellee.
   SHAW, Judge.

Appellant seeks review of judgments of conviction and corresponding sentences upon charges of burglary of a dwelling and grand theft. Among other contentions, he argues that the trial judge’s failure to instruct the jury upon request as to the applicable penalties necessitates reversal.

The jury was given Florida Standard Jury Instruction 2.15:

“You are to disregard the consequences of your verdict. You are empanelled and sworn only to find a verdict based upon the law and the evidence. You are to lay aside any ideas you may have about the wisdom or lack of wisdom of any particular law or procedure touching upon this case. You are to consider only the testimony which you have heard along with the other evidence which has been received and the law as given to you by the Court. You are to lay aside any personal feelings you may have in favor of or against the State and in favor of or against the defendant. It is only human to have personal feeling or sympathy in matters of this kind but any such personal feeling or sympathy has no place in the consideration of your verdict.
You are not to be concerned with the imposition of any penalty in the event you reach a verdict of guilty, just as the determination of guilt or innocence of the accused rests solely and absolutely with you, so also does the determination of the extent of punishment within the limits prescribed by law rest solely with the Court.
When you have determined the guilt or innocence of the accused, you have completely fulfilled your solemn obligation under your oath.”

The appellee argues that in light of this instruction, the failure to give an instruction on the applicable penalties was harmless error. We disagree. Florida Rule of Criminal Procedure 3.390(a) provides that upon request of either the state or the defendant the judge shall include in his charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial. The Supreme Court of Florida in Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied February 27,1981, held that this rule is mandatory rather than directory. The dissenting opinion expresses the view that a mandatory penalty instruction is inconsistent with Florida Standard Jury Instruction 2.15, and that failure to instruct on maximum and minimum sentences is harmless error. This view was rejected by the majority of the court. It would seem, therefore, that the issue has been resolved by the supreme court in favor of the appellant’s contention. We, therefore, reverse the convictions and remand for further proceedings.

The Fifth District Court of Appeal has certified this very issue to the supreme court in Johnson v. State of Florida, 394 So.2d 1121, Gray, Jr. v. State, (Fla.App.) 400 So.2d 468; and Haislip, Jr. v. State, (Fla.App.) 400 So.2d 473. We join the Fifth District and certify the following question to the Florida Supreme Court: and the appellate court determines the error could not have affected the verdict?

Can an appellate court apply the harmless error doctrine, section 924.33 and section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Rule 3.390(a), Florida Rules of Criminal Procedure, if the appellant’s guilt is clearly established

ERVIN and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    M. J. M, a child, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. UU-208.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Gilbert A. Schaffnit, Asst. Public Defender, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Carolyn Snurkow-ski and Gregory C. Smith, Asst. Attys. Gen., for appellee.
   PER CURIAM.

In October of 1979 the appellant was adjudicated a dependent child and placed under the supervision of the Division of Social and Economic Services of the Department of Health and Rehabilitative Services. Her behavior was monitored and resulted in a subsequent petition for adjudication of dependency based upon allegations of truancy. A hearing was scheduled for November 19, 1979, at which time the court entered an order of dependency and warned the appellant that if she did not go to school pursuant to order of the court she would be held in contempt of court, adjudicated a delinquent child and possibly committed to the Department for placement in a training school for delinquent children. Present at the November 19th hearing were representatives from the Office of the State Attorney and the Department of HRS, the appellant’s parents and the appellant. On November 27, 1979, a petition for detention was filed by the Department, and the Office of the Public Defender was appointed to represent the appellant. An order of detention was entered at appellant’s detention hearing, and she was ordered confined to the North Florida Regional Juvenile Detention Center for delinquent children. In December, 1979, the trial court entered an order to show cause why M. J. M. should not be held in indirect criminal contempt of the court for failure to attend school as ordered. The child was subsequently released from the detention center to temporary HRS custody, but on January 12,1980, the court found her in contempt and adjudicated her delinquent pursuant to Chapter 39, Florida Statutes (1979). Based on the delinquency adjudication, M. J. M. was committed to HRS custody on February 28, 1980.

M. J. M. argues that the November 19th hearing was a critical first step towards her delinquency determination and that she should have been afforded counsel at that stage. We disagree. The hearing could very well have been the child’s last experience with the juvenile authorities. A delinquency adjudication was not the inevitable result of the judge’s warning. We find that there has been no denial of the juvenile’s right to counsel.

We recently held in J. M. J. v. State, 389 So.2d 1208 (Fla. 1st DCA 1980), that a delinquency adjudication is void where there has been no petition filed by the State Attorney to initiate delinquency proceedings as required by § 39.05(1), Florida Statutes. That case, however, did not deal with the inherent power of the court to punish for contempt. The power of the court to find a juvenile in contempt for violating its orders was affirmed in R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1981).

The appellant further argues that it was error to deny bail pursuant to Florida Rules of Juvenile Procedure 8.280(3) (1977). For practical purposes, the issue has been rendered moot by release of the juvenile. Under the circumstances we find the error harmless.

The cause is remanded to the judge for vacation of the delinquency adjudication and reconsideration of the commitment based upon that adjudication.

MILLS, C. J., and SHAW and JOANOS, JJ., concur.


author: SHAW, Judge.' THOMPSON, Judge, WENTWORTH, Judge,

text:
    BELAM FLORIDA CORPORATION; Federal Insurance Company, Appellants, v. Dallas DARDY, Appellee.
    No. VV-483.
    District Court of Appeal of Florida, First District.
    April 30, 1981.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    R. Cory Schnepper of Ser, deCardenas, Levine, Busch & Allen, Miami, for appellee.
   SHAW, Judge.'

The claimant sustained a compensable accident arising out of and in the course of his employment on June 8, 1978, when he injured his left shoulder, left foot and, as a consequence thereof, developed thrombo-phlebitis. Temporary benefits were timely paid. The claimant reached maximum medical improvement on December 28, 1978, with a 35.5% permanent partial disability to the body as a whole. The record discloses that the payment of temporary total disability compensation may have continued for 9 weeks and 3 days beyond the date of maximum medical improvement. Based upon his belief that payments made as temporary total disability compensation should not be reallocated to permanent partial disability compensation and allowed as a credit against future payments of the same, the Deputy Commissioner refused to determine the amount of overpaid temporary benefits and to allow the carrier a credit against permanent benefits found due.

The employer sought, at the pretrial conference, to have the overpayment reclassified as permanent partial disability compensation. This attempt at reclassification resulted from fear that the Deputy Commissioner would disallow a credit as between different classes of benefits based upon the supreme court’s decision in Schel v. City of Miami, 193 So.2d 170 (Fla.1967). A review of the following decisions postdating Schel appear to absolutely prohibit such credit. Total Appliance Repairs v. Nelson, 382 So.2d 1333 (Fla. 1st DCA 1980); Desfosses v. Carillon Hotel, 389 So.2d 228 (Fla. 1st DCA 1980); The Boeing Co. v. Bailey, IRC Order 2-3869 (July 30, 1979); Tampa Wholesale Co. v. Gores, IRC Order 2-3720 (February 26,1979); Perkins v. Heller Bros. Packing Corp., IRC Order 2-3542 (September 20, 1978); Diplomat Hotel v. Badini, IRC Order 2-3494 (August 2, 1978). The employer concedes that the Deputy’s denial of credit finds support in these cases, but hastens to add that the decisions result from a misinterpretation of the following paragraph from the Schel decision:

Rule 9, relied on by the commission, provides only for reimbursement “to the extent of the compensation paid.” We think this provision, in the language of the statute, implies a limitation both as to the intent with which advance payments are made and as to surrounding circumstances permitting or preventing characterization of such payments as “payments of compensation” within the theory of the compensation law. In accord with the apparently prevailing view of courts construing similar provisions, we conclude that reimbursement for voluntary advance payment of permanent partial disability compensation must be limited to payments in the amount of and within the time for disability compensation of that class ultimately found to be due, (e. s.)

The underlined portion has led to the faulty conclusion that under no circumstances can an overpayment of one class of compensation be taken as a credit against compensation of another class ultimately found to be due. Upon reflection we conclude that Schel does not pose such a proscription. The thrust of the decision was to point out that in allowing credit for voluntary advance payments the Deputy must consider the intent with which the payments were made and the surrounding circumstances permitting or preventing the characterization of such payments as “payments of compensation,” e. g., where credit is to be given for wages paid in lieu of compensation the amount of credit is not the amount of wages paid, but the amount of compensation due for the particular week, and the dollar excess cannot be carried over as a credit against other weeks of liability. Diplomat Hotel v. Badini, supra is often, cited for the proposition that voluntary advance payment of compensation is gratuitous except to the extent of payment “in the amount of and within the time for disability compensation of that class ultimately found to be due.” Read out of context the statement is confusing and even misleading. The reason a credit was not allowed in Badini was that there was no carrier liability for additional permanent disability compensation and there was no order requiring the payment of additional temporary disability compensation covering the period of the asserted overpayment. The Commission correctly determined that there was no basis for credit and the overpayment was therefore a gratuity.

Schel, Badini and their progeny have apparently fostered the faulty impression that under no circumstances can overpayment of compensation in one class be applied as credit against compensation found to be due in another class. Such an ironclad rule has been shown to result in inequities. A more moderate approach, and one that we hereby adopt, presumes that any overpayment of compensation is a gratuity in the absence of a finding that a reasonable basis exists for the overpayment. If the Deputy finds such a basis the presumption is dissipated and he may allow the overpayment to be applied as a credit against compensation ultimately found to be due even though the compensation may be of another class. We expressly receded from any decision by this court to the contrary.

The failure of the Deputy to make a finding relative to the amount and reasonableness of the basis for the overpayment was error. The order is accordingly reversed and the cause is remanded for further proceedings consistent with this opinion. The award of attorney’s fees should be reconsidered in light of this reversal. The remaining point on appeal is affirmed.

MILLS, C. J., and McCORD, ROBERT P. SMITH, Jr., ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, and JOANOS, JJ., concur.

WENTWORTH, J., specially concurring with opinion.

THOMPSON, J., concurring with opinion.

THOMPSON, Judge,

concurring.

I concur with the majority opinion that Schel v. City of Miami, 193 So.2d 170 (Fla.1967) does not require that an overpayment of compensation in one class can never be applied as a credit against, or reclassified as, compensation in another class found to be due.

In Schel, the claimant was paid his full salary while he was temporarily totally disabled, pursuant to a resolution adopted by the employer. As stated by the court, that resolution provided

for continuing wages during limited periods of temporary disability; providing further that all such payments “in excess of the amount the employee would otherwise be entitled to” under the [Workers’ Compensation] Act shall be reimbursed to the employer out of any unpaid “installments of compensation due for any class of disability.” .(E.S.)

193 So.2d at 171. The Industrial Relations Commission (“the IRC”) characterized all payments made pursuant to the resolution as being advance compensation, and ordered that $577.70 paid in excess of allowable temporary total disability (“TTD”) compensation should be credited against a subsequent award of permanent partial disability (“PPD”) benefits. Thus, it is clear that the compensation (in the form of wages) that was paid in excess of the TTD benefits that were due, was treated by the IRC as being an advance payment of PPD benefits.

The Supreme Court reversed the IRC’s Order, simply holding that if an employer pays TTD compensation in the form of wages, and those wages exceed the amount of TTD compensation that is actually due, the excess cannot be recouped by the employer via a credit against any future payments of PPD compensation.

The Supreme Court concluded that “reimbursement for voluntary advance payment of [PPD] compensation must be limited to payments in the amount of and within the time for disability compensation of that class ultimately found to be due.” 193 So.2d at 172. Thus, assuming that the IRC had properly characterized the wages in excess of TTD benefits as being “advance payments of PPD benefits,” the employer would not be entitled to reimbursement for those payments because they were not made during the time that PPD compensation was ultimately found to be due. Only if wages had been paid during a period that was subsequently determined to be one of PPD, would the employer have been entitled to an appropriate credit against PPD benefits. As noted in Schel, just before the court’s conclusion therein,

The amount of credit is not the amount of wages paid but the amount of compensation due for the particular week [;] thus if the wages paid was $30.00 and if the compensation due for the week was. $20.00 the credit is for $20.00 only. In other words, the credit is for the week not for the number of dollars, and the excess cannot be carried over as a credit as against other weeks of liability.

193 So.2d at 172 n.11, citing 2 Larson, The Law of Workmen’s Compensation, § 57.47 (emphasis supplied). Thus, if it was ultimately found that a claimant was entitled to 50 weeks of PPD benefits, and the employer had paid wages during the first 20 weeks of that period (in an amount equal to or greater than the PPD compensation due for each week), the employer would be credited with having paid only 20 weeks of PPD benefits, with 30 weeks still due. Any payments in excess of the amount of PPD compensation due for each week would be gratuitous.

Schel simply pointed out that if it was subsequently determined that a certain amount of benefits were due for a certain time, the employer would be entitled to a reimbursement only to the extent that it had provided advance payments (i. e., payments made before the benefits were actually determined by the Deputy) up to the amount of benefits that were due, during the time such benefits were due. Any excess amounts paid by the employer (beyond the amount of compensation actually due) are a gratuity and would not be reimbursed. The employer in Schel had paid, in the form of wages, more compensation for TTD each week than was actually due, and then erroneously attempted to credit the excess over the TTD compensation rate against future payments of PPD compensation.

If a deputy ultimately determines that PPD benefits were due from a given date, in a certain amount, any payments of compensation made during that time, up to the amount of PPD compensation actually due, should be treated as PPD compensation, regardless of how those payments were denominated. In this sense, Schel supports the position taken by the appellants herein.

There is no detriment to the claimant in allowing the employer/earrier to administratively reclassify any TTD benefits paid past the date of MMI to PPD benefits (as the appellants attempted to do in this case). Thus, if the Deputy ultimately determines that PPD benefits were due from a given date, and the employer/earrier has paid TTD benefits during part of that period, they would be allowed to reclassify those TTD benefits to PPD benefits. Of course, in accordance with Schel, there would be two limitations to such a reclassification: First, only TTD payments that were paid when PPD compensation was actually due (as ultimately determined by the Deputy) would be subject to reclassification. Second, the reclassification of these TTD benefits to PPD benefits would be limited to the extent that the employer/earrier had actually paid (as TTD benefits) the amount of PPD benefits ultimately found to be due. If the employer/carrier paid TTD benefits past the date of MMI, in excess of the amount of PPD compensation that is ultimately found to be due, such an excess could not be reclassified, but instead, would constitute a gratuitous payment to the claimant. Likewise, if the employer/carrier paid TTD benefits past the date of MMI, but such payments were less than the amount of PPD compensation that is ultimately found to be due, the employer/carrier would have to make up this deficiency, although they could still reclassify those TTD benefits to PPD benefits. Finally, there is a third limitation: There must have been a reasonable basis for denominating payments made past the date of MMI (as that date is determined by the Deputy) as TTD payments, rather than as PPD payments. Based on the record in this case, there was a reasonable basis for such a denomination.

There is no reason not to allow a reclassification in this case, since such a reclassification would result in both the appellants and the claimant being afforded their legal rights. Claimants would receive the. amount of compensation to which they are legally entitled, without any reduction of PPD benefits, while employers and their carriers would pay only the amount of compensation which they are legally responsible for. Accordingly, when an employer/carrier pays TTD benefits beyond what is later determined to be the date of MMI, the employer/carrier should be able to reclassify those benefits to PPD benefits, subject to the limitations discussed above. To hold otherwise would be to exalt form over substance; allow claimants to garner windfalls by claiming a late MMI date that is subsequently determined to have been reached earlier in time; and encourage employers to cut off TTD payments as quickly as possible, to avoid a double payment. Our decision should encourage employers to pay TTD benefits as they become due, thereby facilitating one of the goals of the Workers’ Compensation Act: the prompt and efficient payment of benefits to injured workers so that they will have some means of support while they are unable to work.

WENTWORTH, Judge,

specially concurring.

I agree with the court’s conclusion remanding for determination of a reasonable basis for reclassification of benefits paid. The preliminary decision of the majority to order hearing en banc, however, does not in my opinion observe the rule’s limitation that “[e]n banc hearings .. . shall not be ordered” unless a conflict in this court’s decisions must be resolved to maintain deci-sional uniformity. Rule 9.331, 1977 Florida Rules of Appellate Procedure. Clarification and amplification of earlier precedent or dicta, including Supreme Court opinions, would apparently remain the proper province of the court’s panels as constitutionally prescribed.

      . Cf. Air International, Inc. v. Benton, 7 FCR 241 (1972), cert. den. 272 So.2d 819 (Fla.1973) (Benton is inversely analogous: there, the employer/carrier paid PPD benefits during a period that was subsequently reclassified as one of TTD, and the IRC allowed an appropriate credit.)


text:
    SCHERER & SONS, INC. et al., Appellants, v. Eduardo HOEPELMAN, Appellee.
    No. TT-236.
    District Court of Appeal of Florida, First District.
    April 30, 1981.

      H. George Kagan, of Miller, Hodges & Kagan, P. A., Miami, for appellants.
    Stephen Marc Slepin, of Slepin, Slepin & Lambert, Tallahassee, and Edward G. Rubi-noff of Preddy, Kutner & Hardy, P. A., Miami, for appellees.
   PER CURIAM.

Substantial competent evidence supports the deputy’s award of permanent partial disability benefits, and in that respect the order is AFFIRMED. The deputy disallowed the employer.and carrier reclassification and credit, on account of permanent partial disability benefits due and unpaid, for temporary total disability benefits which were not due but were paid by the carrier and accepted by claimant after claimant returned to the same work at the same salary. Insofar as the order denies reclassification of and credit for those benefits paid, the order is REVERSED and the case REMANDED to the deputy for further consideration in light of this court’s decision in Belam Florida Corp. v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981). Moreover, because there was a failure of compliance with Section 440.13(1), Florida Statutes (1977), and no showing of circumstances excusing compliance with that requirement for a request to the employer/carrier for medical services, and requiring medical reports to the carrier, the deputy erroneously required payment of the bill submitted by Dr. Mims, and in that respect the order is also REVERSED. Contrast Paradise Inn v. Regedus, 389 So.2d 342 (Fla. 1st DCA 1980).

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERT P. SMITH, Jr., and THOMPSON, JJ., and WOODIE A. LILES, (Retired), Associate Judge, concur.


text:
    John Frank JOHNSON, Appellant, v. DIVISION OF FORESTRY, and Travelers Insurance Company, and Kemper Insurance Company, Appellees.
    No. WW-29.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Rehearing Denied May 21, 1981.

      Charles R. Rowe, of Rowe & Singbush, P. A., Ocala, for appellant.
    Daniel L. Hightower, Ocala, Robert C. Cooper and Steven Rissman, Orlando, for appellees.
   OWEN, WILLIAM C., Jf. (Retired), Associate Judge.

The issue in this workers’ compensation case is the applicable statute of limitations for filing a claim for compensation and remedial medical attendance where, following a compensable accident, the employer, without an award, has paid compensation and furnished remedial treatment.

The statutes with which we are concerned are Section 440.13(3)(b), Florida Statutes (1975), relating to claims for remedial attention, and Section 440.19(l)(a), Florida Statutes (1975), relating to claims for compensation, each of which provides that rights are barred unless a claim is filed within two years after time of injury, but each of which contains the following exception:

“... except that if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer.” (e. s.)

Claimant suffered two unrelated, com-pensable accidents while working for the same employer. The first, an injury to the neck in April, 1972, occurred while the employer was covered by the Travelers Insurance Company. The second, an injury to the wrist in June, 1974, occurred while the employer was covered by Kemper Insurance Company. Travelers paid permanent partial disability benefits and paid for medical benefits from the date of the initial accident through September 20, 1974. After the latter date, claimant continued at periodic intervals to visit his treating physician, but the medical bills and reports, indicating treatment only with respect to the 1974 wrist injury, were furnished only to Kem-per. However, on November 1,1977, claimant, complaining to the treating physician of neck pain, received remedial treatment to the extent of being furnished with a soft neck collar. The doctor’s bill for that treatment was submitted to and paid by Kem-per. Claimant’s subsequent visits to his physician, all of which concerned his wrist injury, were likewise billed to and paid by Kemper, with the last such payment being made on or about April, 1978.

On October 15, 1979, claimant filed claim for compensation as to both injuries. The compensation order denied all benefits, the deputy commissioner finding that all benefits due in respect to the wrist injury in 1974 had been paid, and that the claim in respect to the neck injury in 1972 was barred by the statute of limitations. We are concerned here only with that part of the compensation order pertaining to the 1972 neck injury.

Although the remedial treatment furnished to claimant on November 1,1977, for the 1972 neck injury was actually billed to and paid by Kemper (which had the coverage only for the 1974 wrist injury), the furnishing of such remedial treatment was on behalf of the employer, Iowa National Mutual Insurance Co. v. Webb, 174 So.2d 21 (Fla.1965), to whom the injured employee has the right to look for compensation without regard to the identity of the insurance carrier. Since the claim was filed within two years after the date of this last remedial treatment furnished by the employer, under the literal reading of the plain language of the above-quoted exception to the statute, the claim would be timely filed.

In Miller v. Brewer Company of Florida, Inc., 122 So.2d 565 (Fla.1960), the Supreme Court held that a claim for further remedial treatment was barred by Section 440.-13(3)(b), Florida Statutes (1957), after the expiration of two years following payment of the last compensation pursuant to an award, notwithstanding that subsequent thereto the carrier voluntarily furnished further remedial treatment and the claim was then filed within two years after the further remedial treatment had been voluntarily furnished. However, in the later case of Watson v. Delta Airlines, Inc., 288 So.2d 193 (Fla.1973), the court distinguished the Miller case, pointing out that subsequent to the Miller decision, Section 440.13(3)(b) had been amended to include the same exceptions as then existed in Section 440.19(l)(a), Florida Statutes. The Watson court then went on to say, at page 194:

“The employer’s voluntary compliance in Miller (prior to the 1963 amendment) ‘did not operate to revive the right of the claimant to remedial treatment under the [old] statute.’ This was of course true where the old statute did not have the exception which it now does to provide for the two-year ‘extended’ statute of limitations from such voluntary remedial treatment or payment of compensation.”

The Miller case, which of course involved compensation paid pursuant to an award, has been rather broadly cited from time to time as authority for the general proposition that once a claim is barred by the expiration of two years following the last remedial treatment furnished (or compensation paid) by the employer, the claimant’s right to file a claim is not thereafter revived by the carrier’s or employer’s voluntary furnishing of further remedial treatment, e. g., Mangurians v. Johnson, IRC Order 2-3464 (June 28, 1978), cert. denied, 268 So.2d 1370 (Fla.1979); Hunt v. Southland Plumbing, IRC Order 2-3352 (February 14, 1978); McGuire v. Spinoza, Inc., 394 So.2d 1116 (Fla. 1st DCA 1981). We believe that in view of the Supreme Court’s decision in Watson v. Delta Airlines, Inc., supra, the Miller case, supra, is no longer authoritative for that proposition in workers’ compensation cases where remedial treatment or compensation has been furnished by the employer “without an award”, and that the clear language of the statute controls.

Travelers argues that this Court’s decision in Ken Lones Landscaping, Inc. v. J. B. Tucker, 382 So.2d 1368 (Fla. 1st DCA 1980), holds, at least by implication, that the test regarding the running of the statute of limitations is whether any continuous two-year time period existed during which no remedial treatment was provided, pointing out that the record in this case does disclose a gap of more than two years during which claimant did not receive remedial treatment for the neck injury. The Ken Lones Landscaping case, supra, did not so hold, and we hereby, seek to remove any misconception to the contrary. The Court merely noted “.. . [N]o two-yeár period passed from the time of the accident until the time of the claim during which Tucker did not receive remedial medical treatment”, thereby pointing out that under the facts of the case it was unnecessary to decide the effect, if any, of a two-year gap between the filing of the claim and the last remedial treatment furnished or compensation paid. The statutory language is clear that it is the last furnishing of such remedial treatment or payment of compensation from which the two-year limitation is measured.

No error is alleged or shown as to the compensation order denying benefits for the wrist injury of June, 1974, and that portion of the compensation order is affirmed. In all other respects, the order is reversed and this cause remanded for further proceedings consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, AND, REMANDED.

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

      . These statutes, with minor revision, are now numbered 440.19(2)(a) and (b), F.S. (1979), respectively.


text:
    AFFILIATED OF FLORIDA, INC., a Florida Corporation, Petitioner, v. U-NEED SUNDRIES, INC., Richmond Wholesale Company, Inc., an Indiana corporation, Alvin R. Scheidt and Irma A. Scheidt, Respondents.
    No. 80-2361.
    District Court of Appeal of Florida, Second District.
    May 1, 1981.
    Marvin E. Barkin and Robert H. Buesing of Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neill, P. A., Tampa, for petitioner.
    Philip Greenstein of Andrews, Shames & Greenstein, St. Petersburg, for respondents.
   GRIMES, Judge.

By a petition for a writ of certiorari, the defendant in the court below assails a discovery order which, it contends, violates its attorney-client and accountant-client privileges.

U—Need Sundries, Inc., Richmond Wholesale Company, and Alvin and Irma Scheidt, the respondents in this court, filed suit against petitioner, Affiliated of Florida, Inc., for breach of an oral contract to purchase a business known as Sun City Wholesale. The amended complaint alleged that the parties entered into this oral contract at the conclusion of a two-day meeting held in October 1976. After instituting this action, respondents subpoenaed Daniel J. Bartz, Affiliated’s certified public accountant, for deposition. At the deposition, Mr. Bartz, who had been present at the October 1976 meeting, testified concerning the meeting. However, when respondents’ counsel attempted to question him about a confidential memorandum concerning the meeting which he prepared for Affiliated, he refused to answer on instructions from Affiliated’s counsel, claiming that the memorandum was privileged.

Subsequently, respondents filed a request for production of documents, seeking Mr. Bartz’ memorandum as well as all materials contained in the files of Affiliated’s attorneys which related to the proposed purchase of Sun City by Affiliated. Affiliated refused to produce the Bartz memorandum, claiming accountant-client privilege. It also refused to turn over a portion of its attorneys’ files on the grounds of attorney-client privilege. In response to Affiliated’s actions, respondents filed a motion for an in camera inspection of documents. They asked the court, pursuant to section 90.510, Florida Statutes (1979), to inspect the documents which Affiliated had withheld and to strike from Affiliated’s amended answer to their complaint those defenses which the documents would rebut.

The court held a hearing on the motion at which it ruled that section 90.510 was inapplicable since the Florida Evidence Code applies only to civil actions accruing after July 1, 1979, and respondents’ cause of action accrued before that time. However, at respondents’ request, the court permitted them to present authorities under precode law. After an exchange of memoranda, the court then entered an order granting the motion for an in camera inspection of the Bartz memorandum. Though not quite so clear, the in camera inspection seems also intended to include any documents from the attorneys’ files which might be in the hands of Affiliated. The court ruled, however, that it would not inspect the documents in the hands of the attorneys because they had not been served with a subpoena duces te-cum. The order contained no reference to the legal merit of Affiliated’s claims of privilege.

Affiliated filed a petition for writ of certiorari seeking review of the court’s order. We will entertain the petition because certiorari is a proper remedy where a party seeks protection from discovery orders compelling disclosure. E. g. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942). We hold that the documents which Affiliated seeks to protect from disclosure are privileged. Further, we hold that under the law as it existed prior to the evidence code, the court would have no authority to strike Affiliated’s defenses for failure to produce the privileged documents. Accordingly, there is no justification for an in camera inspection.

Section 473.141(1), Florida Statutes (1975), protects communications between certified public accountants or public accountants and their clients. It reads as follows:

(1) All communications between a certified public accountant or public accountant and the person for whom such certified public accountant or public accountant shall have made any audit or other investigation in a professional capacity, and all information obtained by a certified public accountant and public accountant in his professional capacity concerning the business and affairs of a client, shall be deemed privileged communications in all of the courts of this state, and no such certified public accountant or public accountant shall be permitted to testify with respect to any of said matters, except with the consent in writing of such client or his legal representative.

Clearly under this section, Affiliated could refuse to produce the confidential memorandum which Mr. Bartz, acting as its accountant, prepared for it. Respondents submit, however, that Affiliated has waived its right to the privilege because it allowed Mr. Bartz to testify on deposition concerning the October 1976 meeting. This argument is without merit since there were many questions which Mr. Bartz was obligated to answer. Because respondents were present at the crucial meeting in October of 1976, Mr. Bartz had no basis for invoking a privilege about what occurred at that time.

There is also an attorney-client privilege which would protect confidential communications between Affiliated and its attorneys. Roberts v. Jardine, 366 So.2d 124 (Fla.2d DCA 1979); Anderson v. State, 297 So.2d 871 (Fla.2d DCA 1974). The fact that some of the documents containing those communications may be in Affiliated’s possession instead of that of its attorneys makes no difference. “The privilege rule would be of no value if it might be evaded by compelling the client to disclose that which the attorney is bound to withhold.” 3 S. Gard, Jones on Evidence 766 (6th ed. 1972). Cf. Associated Medical Institution, Inc. v. Trube, 394 So.2d 563 (Fla.3d DCA 1981), in which the court held that a party could not be compelled to produce his attorney’s work product.

Respondents do not suggest that the communications between Affiliated and its attorneys were not confidential. However, they contend that Affiliated waived the privilege because it allowed its attorneys to produce a part of their files. As with respondents’ earlier waiver argument, this one also misses the mark. Clearly, Affiliated’s attorneys had a duty to disclose any portions of their file which the attorney-client privilege did not protect. This could not constitute a waiver of their right not to disclose documents which were privileged.

Respondents also contend that even under precode law, the court had the authority to strike those of Affiliated’s defenses to which the privileged documents related. The respondents reason by analogy to certain civil cases in which the courts have stricken the pleadings of a party who refused to respond to discovery on grounds of self-incrimination. E. g. Stockham v. Stockham, 168 So.2d 320 (Fla.1964). This argument is without merit because there is a substantial distinction between a person claiming the right to refuse to incriminate himself and claiming a privilege not to disclose confidential communications with his attorney or accountant. The first is predicated upon the guarantees of the fifth amendment while the latter is designed to carry out the public policy of being able to consult an attorney or accountant without fear that the resultant communications may become public.

We grant certiorari and quash the order for an in camera inspection.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

      . 90.510 Privileged communication necessary to adverse party. — In any civil case or proceeding in which a party claims a privilege as to a communication necessary to an adverse party, the court, upon motion, may dismiss the claim for relief or the affirmative defense to which the privileged testimony would relate. In making its determination, the court may engage in an in camera inquiry into the privilege.

      . § 90.103(2), Fla.Stat. (1979).


text:
    James JONES, Appellant, v. CLING ELECTRIC, INC., Old Republic Insurance Company, and the Division of Workers Compensation, Appellees.
    No. TT-464.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    John F. McMath, Miami, for appellees.
   McCORD, Judge.

Appellant/claimant appeals from the deputy commissioner's refusal to assess penalties against appellee, employer/carrier, for appellee’s failure to timely pay benefits due on appellant’s claim after those benefits were affirmed on appeal by this Court. 376 So.2d 481. We reverse.

The deputy commissioner’s original order was entered in this case on February 16, 1979, as a result of appellant’s claim for workers’ compensation benefits. The deputy commissioner ordered employer/carrier to pay the following benefits: certain temporary total disability benefits, 5% permanent partial disability benefits, payment of interest, payment of an attorney’s fee, and payment of a doctor’s bill and his expert witness fee. Appellees appealed that order, raising three points: the issue of temporary total disability benefits, whether or not there was a new accident, and employer/carrier’s responsibility regarding payment of the doctor’s medical bills. This Court reversed the temporary total disability award but affirmed on the other two points and remanded the cause to the deputy commissioner for further proceedings consistent with that opinion, dated November 9, 1979. That opinion became final on November 26, 1979.

On December 12, 1979, appellant’s attorney wrote a letter to the deputy commissioner indicating that his client was due a 20% penalty because of employer/carrier’s failure to pay the benefits which this Court had affirmed. Although a hearing was never held regarding that issue, on January 23, 1980, the deputy commissioner, in compliance with this Court’s opinion, entered an order providing that employer/carrier should pay all compensation awarded by its February 16,1979, order, with the exception of the award of temporary total disability benefits. The deputy commissioner’s order stated further that appellant’s claim for penalties was denied since the district court’s remand for further proceedings consistent with its opinion stayed the time for compliance with the February 16, 1979, order until the further proceedings were conducted by the deputy commissioner.

Appellant asserts that the award of the medical bill, permanent benefits and interest in the deputy commissioner’s February 1979 order was not disturbed by this Court and, therefore, when this Court’s order became final, payment was due on those benefits without further delay. We agree. In Stauffer Chemical Company v. Jacobs, 9 FCR 64 (1975), the Industrial Relations Commission declared that when one issue in a workers’ compensation case is still pending in the appeal process, the other benefits which a claimant is justified in receiving should not be delayed until that issue is determined on appeal. The Commission stated that such a delay is not within the intent of the act. Similarly, in a case such as the one sub judice, when certain benefits are affirmed on appeal by this Court, even if other benefits are reversed and remanded, payment of the affirmed benefits becomes due upon finality of this Court’s order. If those benefits are not paid within 20 days after they become due, the claimant shall be entitled to a 20% penalty. Section 440.20(8), Florida Statutes. Because employer/carrier did not pay the affirmed benefits within 20 days of finality of this court’s opinion in this case, appellant is entitled to the 20% penalty.

Reversed and remanded for entry of an order assessing the penalty against employer/carrier.

SHIVERS and JOANOS, JJ., concur.


author: BOOTH, Judge.

text:
    STATE of Florida, Appellant, v. Robin L. ROBSON and Jan Pozin, Appellees.
    No. UU-80.
    District Court of Appeal of Florida, First District.
    May 4, 1981.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellant.
    Harry L. Shorstein of Shorstein & Roma-nello, Jacksonville, for appellees.
   BOOTH, Judge.

The State of Florida appeals from a Circuit Court order dismissing the indictments charging the defendants, Robin L. Robson and Jan Pozin, with grand theft. The indictments, following the language of Florida Statutes, Section 812.014, are all in substantially the same form, varying only as to date and the particulars of the charge, as follows:

[Appellees], in the County of Clay and State of Florida, did knowingly obtain or use or endeavor to obtain or use money of a value of One Hundred Dollars ($100.00) or more but less than $20,000.00, the property of CLAY COUNTY, BOARD OF COUNTY COMMISSIONERS, pertaining to money toward the employment of ROBIN L. ROBSON, with intent to deprive the other person of a right to the property or benefit therefrom, or with intent to appropriate the property to their own use or to the use of any person not entitled thereto, contrary to the provisions of Section 812.014, Florida Statutes.

The trial judge found that dismissal was required by Dilworth v. State, 381 So.2d 1125 (Fla. 1st DCA 1979), which held that the information charging unemployment fraud in the language of the statute was insufficient because it failed to set out the specific acts constituting the fraud.

Subsequent to the trial judge’s dismissal in the instant case and pending appeal in this court, the Florida Supreme Court, in State v. Dilworth, 397 So.2d 292 (Fla.1981), quashed the decision of this court in Dilworth and held that the indictment tracking the statutory language was sufficient. The Supreme Court in Dilworth, supra, holds:

With the advent of Florida’s liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document. ... [A]n information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy.

The present indictments satisfy the foregoing requirements.

Accordingly, this case is reversed and remanded for further proceedings consistent with this opinion.

ERVIN and JOANOS, JJ., concur.

      . Information in Dilworth, supra, charged violation of § 443.22(1), Florida Statutes (1975), in 15 counts virtually identical except for dates, as follows:
      [The defendant] on the 17th day of April, 1976, in the County of Gadsden and State of Florida, did then and there knowingly make a false statement or representation, or knowingly fail to disclose a material fact, to obtain or increase unemployment benefits for himself from the Bureau of Unemployment Compensation, to which he was not lawfully entitled at such time, contrary to Section 443.-22(1), Florida Statutes.


text:
    HENDERSON SIGNS, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. WW-15.
    District Court of Appeal of Florida, First District.
    May 4, 1981.

      Charles M. Wynn, Marianna, for appellant.
    Philip S. Bennett, Tallahassee, for appel-lee.
   PER CURIAM.

On appeal in this case is an order of the Secretary of the Department of Transportation which, in effect, modified the hearing officer’s findings of fact without first determining from a review of the complete record, and stating with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.-57(l)(b)9, Florida Statutes (1979). We reverse and remand to the Department with directions to reinstate the order of the hearing officer.

On August 3, 1978, the Department of Transportation filed a notice of violation of Sections 479.07 and 479.11, Florida Statutes, and Rules 14-10.04 and 14-10.05, Florida Administrative Code, directed to Henderson Signs. An inspection made sometime before August 3, 1978, and reinspection on May 2, 1979, revealed that several of appellant’s signs located along Interstate 10 did not carry the required permits. Henderson Signs requested a formal hearing under Section 120.57(1), Florida Statutes, and a hearing officer from the Division of Administrative Hearings was assigned. The hearing initially scheduled was cancelled pursuant to DOT’s motion for a continuance. Another hearing was scheduled, and as a result of that hearing, the hearing officer on June 4, 1979, entered an order recommending that no action be taken against Henderson Signs because DOT failed “to produce evidence that a place known as Interstate 10 was open to the public for purposes of vehicular travel” on the date of reinspection, May 2, 1979. The hearing officer found this element essential to the violations alleged because the term “highway” appears both in Section 479.07 and in Section 479.11. The term highway is defined in Section 479.01(4): “ ‘highway’ means every way or place of whatever nature open to the use of the public for purposes of vehicular travel in this state.”

Neither party filed exceptions to the findings of fact or conclusions of law in the recommended order issued on June 4, 1979. On June 14, 1979, however, counsel for the Department filed with the Secretary of the Department a motion to supplement the record. Accompanying the motion was an affidavit which would have established that the pertinent part of 1-10 was open to the public on the date of reinspection. The Secretary denied the motion to supplement the record. The Secretary did, however, enter an “Order of Remand,” purporting to remand the cause to the hearing officer in order to permit both parties to produce evidence on the issue of whether the portion of 1-10 in question was open to the public on the relevant date. In that order, the Secretary noted that no procedure exists in Chapter 120 for the head of a department to remand a cause to a hearing officer, but stated that the procedure seemed proper and “it would seem that substantial justice would not be done to require all of the previous testimony, together with the witnesses’ and parties’ time, to resolve the one fact that appears to be determinative.” The hearing officer denied remand due to lack of statutory authority for that procedure. He also stated:

It is as inherent in the administrative process as it is in the judicial process that eventually proceedings must come to an end. It works a substantial and unfair hardship on a Respondent to permit the agency by trial and error to perfect piecemeal its case against a Respondent. It is a denial of due process for the agency to proceed in such a manner.

A petition for certiorari review of the denial of remand filed with this court by the Department was denied.

Subsequently, the Secretary of DOT held a hearing, over Henderson Signs’ objection, at which the missing element of proof was established. The Secretary then entered a final order declaring the signs to be public and private nuisances and ordering their removal.

Henderson Signs appealed, contending that the Secretary had no authority to hold the supplemental fact finding proceeding or to modify the hearing officer’s findings of fact on grounds other than those set forth in Section 120.57 (l)(b)9, i. e., that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. DOT responded that the holding of the supplemental proceeding was in furtherance of the Secretary’s duty to enforce the outdoor advertising provisions of Chapter 479, and that rather than modifying a finding of fact, the Secretary had merely supplied a missing finding, thus the requirements of Section 120.57(l)(b)9 had not been violated. In addition, the Department as appellee cites as authority Henderson Sign Service v. Department of Transportation, 390 So.2d 159 (Fla. 1st DCA 1980), in which this court stated that judicial 'notice could be taken that I—10 “was and is part of the federal highway system,” asserting that the hearing officer could have taken official notice of the status of 1-10 and should have done so. In essence, the Department contends that despite the unauthorized procedures employed by the Secretary, the correct result was obtained.

First, with regard to the argument that official notice should have been taken of the status of 1-10 by the hearing officer, we note that the essential element lacking in this case, of which appellee would have had official notice taken, differs from the fact judicially noticed in Henderson Sign Service v. DOT, supra. Here we are concerned with whether a specific portion of I—10, along which appellant’s signs are located, was open to the public on a date that, according to the Department’s witnesses, the signs did not carry the required permits. If on that date that particular portion of I—10 was not open to the public, it was not a “highway” within the statutory definition and there could be no violation of Chapter 479. DOT was unable to establish that fact before the hearing officer, and the hearing officer was reluctant to continue the proceedings a second time.

With regard to the Secretary’s attempt to remand the case to the hearing officer after receiving the recommended order, we look to the recent case of Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981) for authority. It was conceded in the instant case, as in J.W.C. Co., that no statutory authority exists for a remand to the hearing officer. DOT apparently made an argument in J.W.C. Co. similar to the argument made here: that the authority to remand is inherent in the nature of the agency and the functions it is empowered to perform. We conclude, as we did in J.W.C. Co., that this case presents no exceptional circumstances under which a remand can be justified, and the hearing officer acted within his authority in denying the remand. “Substantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing.” (Citations omitted.) J.W.C. Co. at 786.

With regard to the supplemental proceeding conducted by the Secretary after the attempt to remand to the hearing officer was refused, we also stated in J.W.C. Co. that no provision in the statutes or rules of procedure authorizes or permits an agency head to “reopen” a hearing. Upon receiving the recommended order of the hearing officer, the agency is limited to the alternatives set forth in Section 120.-57(l)(b)9, Florida Statutes (1979). Under that section the agency may adopt the recommended order as its final order or the agency may issue a final order rejecting or modifying the conclusions of law and interpretation of administrative rules in the recommended order, but the agency may not reject or modify findings of fact unless it determines from the record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence, or that the proceedings on which the findings were based did not comply with the essential requirements of law.

The Department argues that in the supplemental proceedings it did not reject or modify any finding of fact, rather it merely supplied a fact which was missing. The hearing officer made his findings of fact based on the record before him, which did not include information as to the date the particular segment of I—10 involved became open to the public. “Neither [Chapter 120] nor the model rules of procedure suggest the procedure urged by DOT of allowing the agency to receive additional or cumulative evidence on matters as to which evidence has already been received and evaluated by the hearing officer.” J.W.C. Co. at 784 (footnote omitted).

The hearing officer acted within his authority in requiring proof that the road was open to the public on the date in question. A violation of Chapter 479 subjects the sign owner to having his signs declared nuisances and ordered removed, obliterated, or abated. Section 479.17, Florida Statutes (1979). Thus we are concerned with a statute which is penal in nature. Although dealing specifically with the matter of competent substantial evidence to support a finding of fact in an administrative proceeding with penal ramifications, the following comment is of significance in this case: “[T]he violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as ‘substantially’ on a scale suitable for evidence as the penalty does on the scale of penalties.” Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The hearing officer in the instant case was authorized to require that DOT offer proof commensurate with the potential penalty.

The Secretary of the Department of Transportation acted beyond the scope of his authority in attempting to remand the case to the hearing officer and, failing that, in holding his own supplemental proceeding and entering a final order based on evidence not in the record before the hearing officer. The Department does not contend that the hearing officer’s findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.

The case is remanded to the Secretary with directions to reinstate the recommended order of the hearing officer as the final order in this case.

McCORD and SMITH, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, (Retired), concur.

      . Section 479.07, Florida Statutes (1979) provides: “Any person who shall construct, erect, operate, use, or maintain, or cause or permit to be constructed, erected, operated, used, or maintained, any outdoor advertising structure, outdoor advertising sign, or outdoor advertisement along any federal aid primary highway or interstate highway within any incorporated city or town shall apply for a permit on a form provided by the department.” Section 479.11, Florida Statutes (1979) provides: “No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained: (1) Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in S.479.111, or within 15 feet of the outside boundary of any other federal or state highway....”

      . Appellee contends that the hearing officer incorrectly stated in his recommended order that no request for taking official notice was made, because counsel for DOT at one point in the proceedings said: “Mr. Hearing Officer, I believe that you can take official recognition of a road, the only one of its kind, that is identi-tied as an Interstate 10 in this area commonly used as such, traveled by you and me and widely known and accepted to be an interstate highway.” Obviously this statement did not address the issue of whether the highway was open for public vehicular traffic on a particular date.


text:
    Ernest JENKINS, Esquire, and American Mutual Insurance Company, Appellants, v. Jane E. WILSON, Appellee.
    No. WW-45.
    District Court of Appeal of Florida, First District.
    May 4, 1981.

      Kenneth L. Olsen of Miller, Mckendree & Somers, Tampa, for appellants.
    Jeffrey R. Fuller, Williams, Earle, Bras-field & Wertz, St. Petersburg, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s order finding that appellee/claimant’s injury arose out of and in the course and scope of her employment. We affirm.

Appellee was employed by appellant law firm as a secretary. She usually arrived at work before 9 a. m. and left by 5:30 p. m. On September 15,1978, she left work about 5:50 p. m. after the other employees were gone. She went out of the building, as always, by the rear door. An alley separated the building from the parking lot where her car was parked. The parking lot was leased by employer for the exclusive use of its employees. As appellee crossed the alley and was about to get into her car, she was accosted by an unknown assailant who abducted her from the premises and then raped her. Although the assailant was apprehended and convicted, his motive for selecting appellee as his victim remains unknown. Appellee filed this workers’ compensation claim against employer, seeking compensation for physical and psychiatric injuries.

The deputy commissioner found that, although employer’s employees were not required to park their cars in the parking lot in question, it was beneficial to the employee and to the employer that employees use that parking facility; that employer knew that appellee did park her car in that parking area during the working day; that if appellee had not been employed by employer on the date in question, appellee would not have been on the premises at the time the incident occurred and, therefore, the assault and rape would not have occurred; that, therefore, the assault and rape occurred as a direct result of appellee’s employment and, therefore, all of the injuries sustained by appellee as a result of the assault and rape did arise out of and were in the course of her employment. He thereupon found the claim to be compensable.

Appellants concede that appellee was injured by accident “in the course of” her employment, but they assert on appeal that the injury did not “arise out of” her employment, and, therefore, is not compensa-ble, pursuant to § 440.09, Florida Statutes. However, in Fernandez v. Consolidated Box Company, 249 So.2d 434 (Fla.1971), an employee was assaulted as he attempted to fix the tire on his automobile, which was parked on a public street that ran between two sections of the employer’s premises. The deputy commissioner found that the public street upon which the car was parked was part of the employer’s premises and that, when attacked, the employee was performing a service growing out of and incidental to his employment. The Supreme Court found that competent substantial evidence sustained the deputy commissioner’s finding as to the character of the street and the compensability of the claim.

Appellants attempt to distinguish the Fernandez decision on the ground that there the court did not discuss the “arising out of” aspect of the claim. Nevertheless, by ruling as it did, the court implicitly found that under those circumstances, the injury “arose out of” the employment. Similarly, competent substantial evidence supports a finding in this case that the injury arose out of appellee’s employment.

Appellants rely on Walk v. S. C. Orbach Company, 393 P.2d 847 (Okl.1974), which involved a female employee being assaulted and robbed as she walked across the parking lot where all employees were required to park their cars. The court, while conceding that she was injured by accident “in the course of” her employment, denied her claim on the basis that she was not injured by accident “arising out of” her employment in that there was no evidence to show that the work environment increased the risk of assault or that the assault was motivated by something related to her employment. The court declared that for an injury to have arisen out of the employment, it must be apparent that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury.

The Walk decision also indirectly supports affirmance in this case. Competent substantial evidence has established that appellee’s employment created a hazard from which her injury arose. She stayed late at work on the afternoon in question and, as a consequence, was alone in the parking lot at that later hour. Therefore, as a result of her employment, she was more susceptible to such an attack.

Having found competent substantial evidence to support the deputy commissioner’s ruling, we affirm.

SMITH, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellants, v. ED SOULES CONSTRUCTION COMPANY, INC., Appellee.
    No. VV-397.
    District Court of Appeal of Florida, First District.
    May 5, 1981.
    Earl T. Brushwood of Nohrr, Nohrr, Brushwood & Howze, Tallahassee, for appellants.
    No Appearance for appellee.
   McCORD, Judge.

Appellant, Nationwide Mutual Insurance Company (Nationwide), appeals from the trial court’s summary judgment entered in favor of appellee, ruling that appellee is not liable to appellant Nationwide for earned premiums attributable to classifications of operations not stated in the classification of operation section of a workers’ compensation policy, which is the subject matter of this action. We reverse.

In October 1975, Nationwide and appellee entered into an insurance contract, whereby Nationwide would provide workers’ compensation insurance coverage for the employees of appellee for one year. Nationwide wrote the policy of insurance and estimated the premium on a rate applicable to a classification of operations entitled “carpentry” based on its initial understanding of the exposure involved in issuing a workers’ compensation policy for appellee’s business. In August 1976, Nationwide canceled the policy. Subsequently, Nationwide became aware and confirmed through an audit of the records of appellee’s business that it had had exposure far greater than that originally compensated due to the fact that numerous operations of appellee’s business and its subcontractors had not been included in the original computation of the premium, even though Nationwide, under Florida law, was bound to provide workers’ compensation coverage for all employees of appel-lee and its various nonexempt uninsured subcontractors. The audit disclosed that appellee’s subcontractors were engaged not only in the classification “carpentry,” but also various separate classifications. Nationwide determined that the additional exposure called for an additional earned premium of $5,254. Appellee denied liability for that premium, and Nationwide brought this suit. The facts are undisputed and both sides moved for summary judgment.

The trial court, in granting summary judgment for appellee, relied upon Maryland Casualty Company v. Jinks, 144 Fla. 373, 198 So. 17 (1940). In that case, the court ruled that the insured was not liable for payment of premhims attributable to classifications of operations not specifically designated in the policy of workers’ compensation insurance.

The insurance policy in question sub judi-ce contains the following condition:

The premium stated in the Declarations is an estimated premium only. Upon termination of this policy, the earned premium shall be computed in accordance with the rules, rates, rating plans, premiums and minimum premiums applicable to this insurance in accordance with the manuals in use by the Company. If the earned premium thus computed exceeds the premium previously paid, the insured shall pay the excess to the company, if less, the company shall return to the insured the unearned portion paid by the insured. (Emphasis supplied.)

The policy further provided:

The Company and any rating authority having jurisdiction by law shall each be permitted to examine and audit the Insured’s payroll records, general ledger, disbursements, vouchers, contracts, tax reports and all other books, documents and records of any and every kind at any reasonable time during the policy period and any extension thereof and within three years after termination of this policy as far as they show or tend to show or verify the amount of remuneration or other premium basis, or relate to the subject matter of this insurance.

Thus, the policy clearly provided that the stated premium was an estimated premium only and that, subject to audits and examinations of appellee’s records, the true earned premium could be computed at a later date and appellee would be liable for any additional premium found to be due as a result of computations made in that manner.

The holding in the Jinks case does not override the specific terms of the policy in the case sub judice. The Jinks opinion does not relate the specific facts of that case nor does it relate the provisions of the policy involved there. Under the facts of this case and under the terms of the policy in question, Nationwide is entitled to the earned premium due. Compare Tropical Roofing Company v. Charnow, 134 So.2d 32 (Fla.2d DCA 1961).

Reversed.

SHIVERS and JOANOS, JJ., concur.