author: BOARDMAN, Judge.

text:
    Geraldine SECRIST, Appellant/Cross-Appellee, v. NATIONAL SERVICE INDUSTRIES, INC. d/b/a National Linen Service, Appellee/Cross-Appellant.
    No. 80-1092.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.

      David H. Simmons and Hal K. Litchford of Dempsey & Slaughter, Orlando, for appellant/cross-appellee.
    Philip O. Allen and Gerald W. Medeiros of DeVane, Munson, Anderson & Allen, Lakeland, for appellee/cross-appellant.
   BOARDMAN, Judge.

Defendant Geraldine Secrist appeals and plaintiff National Service Industries, Inc. (NSI) cross-appeals the final judgment rendered by the trial court. We reverse the interest assessment contained in the final judgment, but affirm in all other respects.

NSI filed a complaint against Secrist d/b/a Bishop Court Nursing Home for an outstanding balance due of $4070.48 on a contract between the parties and for liquidated damages for Secrist’s subsequent breach (unlawful termination) of the contract. Secrist filed an answer and counterclaim seeking damages of $3737.61, which NSI had agreed to pay Secrist for her inventory, which NSI had picked up from Secrist at the time services under the contract began.

Following a bench trial, the trial court entered its final judgment. The court awarded NSI $4212.54 plus 10% interest from April 29, 1977, for past services performed by NSI for Secrist. The court found the liquidated damages provisions of the contract to be valid but excessive because they included 30% recovery for overhead after fifteen months of the contract period had been completed; the court found the sum of $2964 for lost profits, together with interest from April 29, 1977, to be reasonable. The court awarded Secrist $1500 on her counterclaim. The court therefore ruled that NSI was to recover from Secrist $5676.54 plus $1702.95 interest and $750 attorney’s fees. This appeal and cross-appeal followed timely.

The pertinent facts are that in December, 1975, Secrist and NSI entered into a contract under which NSI was to provide laundry and linen service for Secrist for a three-year period. Secrist continued using the linen service until March, 1977, when she unilaterally terminated the agreement without NSI’s consent.

The parties stipulated that $4070.48 was the amount of NSI’s last bill to Secrist and that this amount had not been paid. However, Barton Hill, an NSI employee, testified without objection that the amount of the last bill was actually $4212.54.

Paragraph 13 of the written contract between the parties provided for liquidated damages in the event of an unlawful termination of service by the customer of 40% of the gross receipts under the contract for the unexpired term — 30% for overhead and 10% for profits. Hill testified that Secrist’s account averaged $1411 per month, 40% of which is $564 a month, and that since the contract had twenty months to run at the time of Secrist’s breach, the liquidated damages would be $11,291. He and Doug Snider, the assistant manager of the Lakeland plant, testified that this was reasonably proportionate to the expected actual damages that NSI might suffer. Snider testified that the biggest item of overhead with a customer the size of Secrist is the linen that must be purchased to service the account and that the initial cost of providing linen for a nursing home would be $250 per bed. Secrist testified that she had fifty-eight beds in her establishment. Snider testified that Secrist’s linen service was daily. Hill testified that one can expect to get twenty-five to twenty-six washings out of a sheet. After termination of the contract, the linen must be stored until it can be used in another account. The fact that it may be reused is accounted for in the liquidated damages clause. Although Hill testified that the liquidated damages amount was reasonable based on the linen purchased, the machinery NSI may have purchased, the overhead, the lights, and the water, he conceded that NSI had not purchased any machinery.

The first issue raised concerns the validity of the liquidated damages provision. A liquidated damages provision is proper only when the provision is reasonable and is not a penalty and when the damages are by their nature uncertain. 17 Fla.Jur.2d Damages § 98 (1980). If the provision calls for an amount in damages that is excessive or unreasonable, and hence a penalty, the provision will not be enforced by the courts. See Poinsettia Dairy Products v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936); Refram v. Porter, 343 So.2d 1343 (Fla.2d DCA 1977). In such a case, the plaintiff may recover only the actual damages which were pled and specifically proven at trial. Poinsettia Dairy Products v. Wessel Co., supra.

Secrist contends that although the final judgment first states that the liquidated damages provision is found not to be a penalty, this language is superseded by the trial court’s specific finding that the amount stipulated was excessive, and that NSI was therefore not entitled to any recovery on the breach of contract claim. We disagree.

In the first place, Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972), held that where damages are not readily ascertainable when a contract is entered into, the trial court should allow the liquidated damages clause to stand, but through its equity powers relieve against the liquidated sum if it appears unconscionable in light of the circumstances existing at the time of the breach. See Hyman v. Cohen, 73 So.2d 393 (Fla.1954); Varner v. B. L. Lanier Fruit Co., 370 So.2d 61 (Fla.2d DCA 1979). The trial court ruled that the liquidated damages were excessive at the time of breach because fifteen months of the contract period had been completed and the liquidated damages clause allowed a 30% recovery for overhead. The fact that the liquidated damages may be excessive at the time of breach does not lead to the conclusion that the liquidated damages clause is a penalty and therefore not enforceable. See Hutchison v. Tompkins, supra. There is no evidence to suggest, and it is not contended, that NSI’s actual damages in the event of Secrist’s breach could be readily ascertained at the time the contract was signed.

Secondly, here the liquidated damages provision consisted of two separate and distinct parts, overhead and profits. The trial court found only the portion allocated to overhead to be excessive. The court therefore acted properly in enforcing the portion of the liquidated damages provision allocated to profits according to its clear terms, rather than requiring NSI to prove its actual damages in the nature of lost profits. The trial court awarded NSI nothing for overhead, the portion of the liquidated damages provision it deemed excessive. Secrist cannot be heard to complain of this result.

NSI does challenge this result on cross-appeal. However, we cannot say that the trial court erred in concluding that a 30% overhead allowance was excessive under the circumstances here. NSI’s witnesses admitted that the overhead allowance, presumably included in all its contracts, was computed to cover the purchase of cleaning machinery, yet no such machinery was purchased during the period NSI was providing service to Secrist. Many of the overhead items used to service Secrist, such as water and detergent, would not be purchased or expended if those services were not being performed. NSI seemed to rely primarily on the initial cost of the linens it had to purchase to service Seerist’s account. The problem we have, and one that we presume the trial judge could very well have had, is confusion over the useful life of the linen purchased under the use it was receiving and how long any useful linen was likely to be stored between the termination of one contract and its reuse in another account. As to the latter, not even a rough estimate was made. As to the former, the only evidence was that NSI expected to get twenty-five or twenty-six washings out of a sheet. If NSI purchased two sets of sheets per bed and changed beds daily—Secrist’s service was on a daily basis—those two sets of sheets would wear out and have to be replaced approximately every two months. This does not sound like an up-front cost that one would have to recover over the life of the contract, but rather more in the nature of a recurring expense item. While this assumption may be incorrect, the record does not show it to be so. On the evidence presented, the trial court could well have found the essentially unsubstantiated testimony of NSI’s employees that the overhead allocation was reasonable to be incredible. Since NSI produced absolutely no evidence of actual damages, the trial court did not err in awarding it nothing for overhead. Poinsettia Dairy Products v. Wessel Co., supra.

The second issue appellant raises concerns the amount of interest awarded. Paragraph 8 of the contract provides:

The Customer shall pay to the Company the rental charges provided herein upon each and every delivery of items unless otherwise arranged in writing.... All unpaid rental charges shall bear a service charge at the rate of either one and one half percent (1%%) per month or the maximum allowed by the law, whichever is the lesser, on the unpaid rental charges until paid in full.

The final judgment specifically awarded 10% interest on the $4,212.54 Secrist owed NSI for services actually furnished. This was the maximum legal interest rate for an individual at the time of the breach and was therefore correct.

However, the dollar amount of interest specified in the final judgment constitutes 10% of' the entire damages award, which included the sum awarded for lost profits under the liquidated damages clause. Paragraph 8 of the contract is concerned only with sums due for services that have been provided and is thus not applicable to sums due under the liquidated damages clause. For the interest rate on that portion of the damages award we must look to section 687.01, Florida Statutes (1979), which provides: “In all cases where interest shall accrue without a special contract for the rate thereof, the rate shall be 6 percent per annum, but parties may contract for a lesser or greater rate by contract in writing.”

Thus interest should have been assessed at 10% of $2712.54 ($4212.54 less the $1500 awarded to Secrist on her counterclaim) and 6% on the $2964 awarded for lost profits.

In her final point, Secrist contends that the contract in issue was between two corporate parties, NSI and Bishop Court Nursing Home, that Secrist signed the contract solely on behalf of the nursing home, and that she is therefore not liable to NSI in her individual capacity. This argument can be disposed of quickly: it was not raised below and cannot be raised for the first time on appeal. Lipe v. City of Miami, 141 So.2d 738 (Fla.1962); Nelson v. Pinellas County, 343 So.2d 65 (Fla.2d DCA 1977), rev’d in part on other grounds, 362 So.2d 279 (Fla.1978)..

Accordingly, the assessment of interest contained in the final judgment is vacated and the cause remanded for reevaluation of the interest awarded in accordance with this opinion. In all other respects the judgment is affirmed.

SCHEB, C. J., and DANAHY, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Larry HIXON a/k/a Sweet Soul, Appellant, v. STATE of Florida, Appellee.
    No. 80-1423.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Larry Hixon, pro se.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender and Steve Houchin, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed as to the two sale of heroin sentences but remanded to the trial court to correct the two excessive sentences for possession of heroin and the sentence for possession of drug paraphernalia which are third degree felonies under section 893.-13(l)(e), Florida Statutes (1979).

SCHEB, C. J., and HOBSON and RYDER, JJ., concur.


text:
    Brian BEVAN, Appellant, v. Joseph P. D'ALESSANDRO, as State Attorney for the Twentieth Judicial Circuit, Appellee.
    No. 80-1662.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Brian Bevan, pro se.
    Jim Smith, Atty. Gen., Pamela L. Lutton, Asst. Atty. Gen., and Mary K. Kraemer, Certified Legal Intern, Tallahassee, for ap-pellee.
   BOARDMAN, Judge.

Brian Bevan appeals the trial court’s dismissal with prejudice of his replevin action for failure to prosecute. The court’s dismissal was entered after appellant had entered a voluntary dismissal. We reverse.

On October 20, 1978, appellant filed a complaint for return of a certain taped conversation, which he claimed he was entitled to pursuant to an agreement with the state attorney. It was dismissed with leave to amend, and appellant filed an amended complaint. Various motions were subsequently filed, one during January and the last on June 18, 1979. No further record activity occurred until June 27, 1980, when the state filed a motion to dismiss for failure to prosecute. Appellant received a copy of the motion, and on July 30, 1980, five days before the scheduled hearing on the motion, he voluntarily dismissed the case pursuant to Florida Rule of Civil Procedure 1.420(a)(1). The hearing on the state’s motion nevertheless took place, with the result that the trial court dismissed the action with prejudice. The order was predicated upon appellant's failure to prosecute and his failure to comply with rule 1.420(e), which requires a plaintiff to show good cause, in writing, within five days before the hearing on a motion to dismiss for failure to prosecute, why his action should remain pending.

Though we have been unable to locate a case which precisely addresses the situation involving the use of rule 1.420(a)(1) to avoid operation of rule 1.420(e), a number of cases have held that a party has an absolute right to take a voluntary dismissal at any time prior to a hearing on a motion for summary judgment, before the jury retires, or before submission of a nonjury case to the court for decision. Fears v. Lunsford, 314 So.2d 578 (Fla.1975); Ambassador Insurance Co. v. Highlands General Hospital, 383 So.2d 254 (Fla.2d DCA 1980); Meyer v. Contemporary Broadcasting Co., 207 So.2d 325 (Fla. 4th DCA 1968); Annot., 36 A.L.R.3d 1113, 1167 § 14(b). This right is so entrenched that in Randall-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), the trial court was not allowed to set aside a voluntary dismissal even when a plaintiff who had taken a voluntary dismissal quickly asked the court to set it aside after discovering that the statute of limitations had run on his wrongful death action. Our supreme court held that the plaintiff’s voluntary dismissal divested the trial court of jurisdiction to subsequently relieve the plaintiff’s attorney of the consequences of his tactical error.

We are aware that in Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla.3d DCA 1979), the court carved out a narrow exception to the general rule, holding a voluntary dismissal inoperative in situations where fraud on the court was attempted by the filing of a voluntary dismissal. There, however, the plaintiff had received affirmative relief to which he was not entitled and sought to avoid correction of the trial court’s error by taking a voluntary dismissal. Here, on the other hand, appellant has received no affirmative relief, nor does his action in taking a voluntary dismissal rise to the level of a fraud on the court under the circumstances. Therefore, although we feel appellant has thwarted the intent and purpose of the rule, his absolute right to the benefits of rule 1.420(a)(1) superseded his responsibility to comply with rule 1.420(e).

Accordingly, having determined that the trial court was without jurisdiction to hear appellee’s motion to dismiss after appellant’s voluntary dismissal, we REVERSE and REMAND the cause for proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: SCHWARTZ, Judge.

text:
    COMMUNITY HEALTH OF SOUTH DADE, INC., etc., Appellant, v. Modena HALE, etc., et al., Appellees.
    No. 81-9.
    District Court of Appeal of Florida, Third District.
    April 1, 1981.

      Harold C. Knecht, Jr. and David Crowley, Coral Gables, for appellant.
    Greene & Cooper and Robyn Greene, Ro-senblatt, Greene & Arnowitz, Henry Burnett, H. Dane Mottlau, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   On Motion to Review

SCHWARTZ, Judge.

The plaintiff-appellees seek review of an order denying their motion to strike a su-persedeas bond filed by the defendant-appellant, Community Health of South Dade, Inc. They contend that the surety on the bond, Foremost Insurance Company, may not act in that capacity because it is admittedly also Community’s malpractice liability carrier which provides full coverage for the judgment on appeal. We disagree. When, as here, a liability carrier is not an actual party to the judgment sought to be superseded, there is no impediment to its being the surety on a bond required to stay execution upon its insured. This is the common law rule, Jayne v. W. B. Nash Lumber Co., 108 Miss. 449, 66 So. 813 (1914); Ackerman v. Somerset Bus Co., 114 N.J.L. 16, 175 A. 201 (1934); Universal Transport & Distributing Co. v. Cantu, 75 S.W.2d 697 (Tex.Civ. App.1934), and Fla.R.App.P. 9.310(c), which, without any qualification, requires only a bond with a “surety company authorized to do business in the State of Florida,” seems clearly to adopt that conclusion. While there is a great deal to be said for the movants’ contention that no additional security is, as a practical matter, afforded the judgment creditors in such a situation, we observe, as we did in Proprietors Ins. Co. v. Valsecchi, 385 So.2d 749 (Fla. 3d DCA 1980), that the argument is more appropriately made in support of an amendment to the pertinent rule.

Motion denied.

      . Pursuant to Fla.R.App.P. 9.310(f).

      . Foremost was not named a party defendant because of Sec. 768.045, Fla.Stat. (1979), which has since been voided by Cozine v. Tullo, 394 So.2d 115 (Fla. 1981).

      . These cases also establish the converse proposition that an insurer may not be a surety to supersede a judgment to which it is already a party. We emphatically disagree with the accuracy of the contrary implication the carrier seeks to draw from the committee note to Fla. R.App.P. 9.310(b). It seems to us that the reference in Rule 9.310(c)(1) to the two separate capacities of principal and surety plainly itself implies that these capacities must be occupied by different parties.

      . The two New York nisi prius decisions, Murphy v. Mandon Realty Co., 171 Misc. 521, 12 N.Y.S.2d 350 (S.Ct.1939), and Smith v. 167th Street & Walton Ave. Corp., 177 Misc. 507, 31 N.Y.S.2d 177 (S.Ct.1941), and the Texas case, Elliott v. Lester, 126 S.W.2d 756 (Tex.Civ.App. 1939), cited by the appellees are all based on statutory provisions, concerning the effect of a judgment against the insured upon the rights and obligations of the insurer, which have no Florida counterpart.


text:
    Terry Lloyd COTTON, Appellant, v. STATE of Florida, Appellee.
    No. VV-365.
    District Court of Appeal of Florida, First District.
    April 2, 1981.

      Michael Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee.
   LILES, WOODIE A. (Retired), Associate Judge.

The defendant appeals his conviction of sexual battery with the use of actual physical force likely to cause serious personal injury [§ 794.011(3), Fla.Stat.] and his sentence to sixty years’ imprisonment. We affirm.

The State charged the defendant by information which read, in pertinent part:

“. .. the above-named defendant on the 8th day of September, 1979, did then and there unlawfully commit a sexual battery upon [the victim], a person over the age of eleven (11) years, to-wit: Twenty-one years of age by vaginal penetration with his penis without the consent of [the victim], and in the process thereof used or threatened to use actual physical force likely to cause serious personal injury, contrary to sections 794.011(3), Florida Statutes.”

The jury, in turn, rendered a verdict which read:

“We, the Jury, find the Defendant, Terry Lloyd Cotton, guilty as charged of sexual battery with the threat of or use of force likely to cause serious personal injury.”

Defendant was adjudged guilty of a violation of Section 794.011(3) and sentenced to a prison term of sixty years.

Defendant correctly points out that there is no offense set out under the charge of sexual battery which includes both the threat of force likely to cause serious personal injury and the use of force likely to cause serious personal injury. There is no mention of threat of force likely to cause serious personal injury in Section 794.-011(3). Rather, Section 794.011(4)(b) is the portion of the statute covering the threat to use force. Defendant thus urges that the jury found him guilty of both a life felony [§ 794.011(3)] and a felony of the first degree [§ 794.011(4)(b)]. Given the ambiguity of this verdict, defendant then urges that the trial court committed fundamental error in sentencing him to sixty years’ imprisonment under Section 775.082(3)(a), Florida Statutes. He argues that he should have been sentenced to a maximum term of thirty years under Section 775.082(3)(b), Florida Statutes. In much the same vein, he also contends that the indictment is fatally defective because it fails to allege a specific offense.

In support of his argument, defendant has cited the decision of this Court in Bashans v. State, 388 So.2d 1303 (Fla. 1st DCA 1980). At first blush, his argument would appear to be well founded. Citing McGahagin v. State, 17 Fla. 665 (Fla.1880), this Court held that a verdict and judgment cannot stand where it cannot be determined which of the alleged offenses the jury found the defendant guilty of having committed. Bashans, at 1304. While we have no quarrel with this general proposition of law, we do not feel that it applies to this case.

We cannot agree with the defendant’s assertion that the information is fatally defective. An information which is sufficient in other respects is not invalidated by reason of the fact that it is inartfully drawn. State v. Brock, 106 So.2d 607 (Fla. 1st DCA 1958); Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937). The test to be applied is whether the language is so vague, inconsistent, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after a conviction or acquittal to substantial danger of a new prosecution for the same offense. Fla.R.Crim.P. 3.140(0); Martinez v. State, 368 So.2d 338 (Fla.1978); Holland v. State, 319 So.2d 577 (Fla. 1st DCA 1975). Under the facts of this case, we cannot conclude that defendant was misled by the information. For one, the information, despite the looseness of the language used, specifically notes a violation of Section 794.011(3), unlike the indictment in Bashans, which merely notes a violation of Section 794.011. More importantly, the defendant requested the following jury charge, which was given by the judge:

“The maximum sentence which can be imposed by this Court for the offense charged is imprisonment for life, and the Court must impose at least thirty years of imprisonment.”

By this jury instruction defendant’s counsel attempted to impress upon the jury the consequences of a conviction under Section 794.011(3), a life felony. This obvious appeal to the jury’s inherent power to “pardon” the accused of the more serious crime indicates only too well that the defendant knew on which charge he was being tried. Thus, not only does the record contain nothing whatever to indicate that he did not know he was being tried for a violation of Section 794.011(3), but affirmatively demonstrates the opposite. Accordingly, the surplusage in the information was not such a fundamental defect as to render the information challengeable for the first time on appeal. See Marshall v. State, 381 So.2d 276 (Fla. 5th DCA 1980).

We turn now to the verdict rendered by the jury. A verdict is not necessarily invalid for uncertainty. Yarborough v. State, 94 Fla. 143, 114 So. 237 (1927). It should be considered with respect to the indictment or information and the entire record. Chavers v. State, 45 So.2d 180 (Fla. 1950); Barnhill v. State, 41 So.2d 329 (Fla. 1949). Here, the evidence proffered overwhelmingly supports a finding of guilt of Section 794.011(3), unlike Bashans, where the evidence presented supported only a conviction of the lesser offense. The evidence indicates that, on September 8, 1979, the victim was visiting a friend’s apartment located in the same complex as her own apartment. The friend had other visitors, among whom was this defendant. The victim returned to her apartment after a short visit and was preparing supper when the defendant appeared at the door, saying he just wanted to talk. She invited him in. Later, she invited him to stay for dinner, and he accepted. After finishing dinner, he did not appear as though he wanted to leave, and she, not wishing to appear rude, said she needed to finish reading a book in relation to her studies. She testified her purpose in doing so was to urge the defendant to leave. He asked to use the bathroom and was on his way out when he supposedly discovered that he had left his lighter in the bathroom and went back to look for it. The victim stood in the door observing his search when suddenly he ran out and grabbed her. He placed her in a hammerlock and threw her on the bed. She resisted as best she could, and he threatened to kill her if she did not consent to sexual intercourse. She continued to scream and resist but was beaten and forced to have sexual intercourse against her will. In the course of his assault, the defendant knocked a cap off of one of her teeth and severely scratched the inside of her mouth. She also sustained multiple bruises to the face, forehead, lower lip, jaw, her right arm, and left pectoral area. While this evidence supports both the threat of force and the actual use of force likely to cause serious personal injury, the trial judge almost verbatim tracked the standard jury instructions for Section 794.011(3) and the lesser-included offenses of sexual battery with force not likely to cause harm and simple battery. Since no jury charges were given regarding the threat to use force or violence in the accomplishment of the sexual battery, we cannot speculate that the jury found the defendant guilty of an offense on which it was not instructed and of which no mention was made at trial. Accordingly, we hold that it can be objectively determined from these facts and the overwhelming evidence of record that the jury intended to convict the defendant of sexual battery with the use of actual physical force likely to cause serious personal injury, and nothing else. The judgment and sentence of the trial court are

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.

      . Section 794.011(3), Florida Statutes, reads:
      “(3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony ...” [emphasis supplied]
      We are not here concerned with the use or threat to use a deadly weapon in the commission of the sexual battery.

      .Section 794.01 l(4)(b), Florida Statutes, states:
      “(4) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent under any of the following circumstances shall be guilty of a felony of the first degree ...
      “(b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats.”

      . Section 775.082(3), Florida Statutes:
      “A person who has been convicted of any other designated felony may be punished as follows:
      “(a) For a life felony, by a term of imprisonment for life or for a term of years not less than 30;
      “(b) For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.”

      . Id.

      . § 794.011(5), Fla.Stat.

      . § 784.03, Fla.Stat.


text:
    George SZKOLNY, Appellant, v. STATE AWARDS COMMITTEE, Appellee.
    No. WW-14.
    District Court of Appeal of Florida, First District.
    April 2, 1981.

      Mary Anne Sherman of Sherman & Bie-ber, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The State Awards Committee denied Szkolny’s request for an award of $10,100 or, in the alternative, a 120.57(1) hearing. We reverse, holding that appellant is entitled to a formal hearing.

In March of 1977, while employed by the University of Florida College of Medicine, Szkolny suggested that the practice of obtaining a patient’s signature on medicaid certificates be discontinued because the procedure was not necessary to receive reimbursement. Shands Teaching Hospital apparently adopted the suggestion and allegedly began applying for reimbursement without a patient’s signature. The University Awards Committee estimated an annual savings of $101,000 and informed the appellee, the State Awards Committee, of this finding. In September 1978, appellee voted to approve an award of $10,100 which was 10 percent of the estimated annual savings authorized to be awarded a career service employee for a money-saving suggestion. However, in November 1978, ap-pellee rescinded this approval, conducted further study, and in March 1979, informed the University Awards Committee that it disapproved the award, finding no savings resulted from appellant’s suggestion because studies showed that the suggestion addressed a non-existing problem.

The chairman of the University Awards Committee wrote Szkolny, advising him of appellee’s decision to reject his suggestion, and further informed Szkolny that he could request appellee to review his suggestion in accordance with Florida Administrative Code Rule 22A-12.13. His request had to be made in writing within a year of the date of the letter, which was March 13, 1979. Subsequently, there were unsuccessful attempts made to get the University Awards Committee to specially study the matter. Appellant also alleges that in the fall of 1979, the University of Florida president appointed a committee to reexamine the matter. In January 1980, the University Awards Committee recommended that Szkolny receive $100 for his “trouble”. In April 1980, appellant filed his petition with the State Awards Committee, requesting a hearing or, in the alternative, an award of $10,100. This appeal is from a denial of that petition.

Szkolny urges he is entitled to a 120.57(1) hearing because the State Awards Committee is an agency which determined his substantial interests, but never informed him of a right to request a hearing. Furthermore, he points out that the committee has no rules governing requests for hearings. Appellee’s position is that the State Awards Committee only recommended action to the University Awards Committee, and therefore, it did not take final agency action. Allegedly, the University Awards Committee has final authority to grant the award. Alternatively, appellee urges that Szkolny ignored an opportunity to timely demand a hearing.

The statute and rules pertaining to the awards program show that in this case the State Awards Committee took final action in disapproving the award because of zero savings. Section 110.022(4), Florida Statutes (1977) authorizes the Department of Administration, through the Division of Personnel:

To adopt and implement a program of meritorious service awards to employees who propose procedures or ideas which are adopted and which will result in eliminating or reducing state expenditures or improving operations; provided such proposals are placed in effect, or by their superior accomplishments, make exceptional contributions to the efficiency, economy or other improvement in the operations of the state government. No award granted under the provisions of this subsection shall exceed $2,000 or 10 percent of the first year’s gross savings, whichever is greater, unless a larger award is made by the Legislature, and shall be paid from the appropriation available to the state agency affected by the award or from any specific appropriation therefor.

The Department acted pursuant to this authority and established a state awards program which utilizes a State Awards Committee and an Agency Awards Committee (here, the University Awards Committee) to implement the program. Chapter 22A-12, Fla.Admin.Code (Revised 1973). The State Awards Committee is clearly required to determine the actual award for each suggestion. Rule 22A-12.03(4) states:

(4) The State Awards Committee shall:
(a) By majority vote, determine the award for each suggestion that is adopted by one or more agencies, and any awards to be made for superior accomplishments in accordance with Section 22A-12.18.
(b) Review requests from employees for reevaluation of their suggestions that were not adopted by an agency head.

In contrast, the Agency Awards Committee, a committee appointed by each agency head, is required by Rule 22A-12.04(2)(b) and (c) to:

(b) Make detailed investigations and evaluations of suggestions and superior accomplishments.
(c) Make recommendations concerning suggestions to the agency head who shall make a final decision as to whether the suggestion is to be adopted within that agency.

Therefore, while unquestionably the decision to implement a suggestion rests with the Agency Awards Committee, here the University Awards Committee, it appears that the final valuation of the award rests with the State Awards Committee. The responsibility of the Agency Awards Committee is only to investigate and evaluate an eligible suggestion. Whether final agency action here consisted of the rejection of Szkolny’s suggestion by the University Awards Committee or a zero valuation of the suggestion by the State Awards Committee, is really a matter of semantics. Fundamentally, because the matter is far from unambiguous, we will not allow Szkol-ny’s cause to be lost or needlessly delayed because of confusion surrounding a determination of which agency was responsible for final agency action. Here we can fairly conclude that under the rules the State Awards Committee took final action. Further, we perceive no prejudice in allowing Szkolny to pursue his hearing before the State Awards Committee. Should it develop that the University Awards Committee or the employing agency claims an interest in the matter, the APA provides for intervention. See Section 120.52(10), (11), Fla. Stat. (1979).

As to the timeliness of Szkolny’s petition for a hearing, the record is clear that appellant was not notified of his right to a hearing concerning agency action in determining the amount of his award. The letter mentions only review of the suggestion. Additionally, no rules of the agency provide for a clear point of entry concerning the actions of the State Awards Committee. As we have pointed out in the past, uncertainty in this area usually results in resolving the issue of waiver in favor of the affected party. Capeletti Brothers, Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979). Accordingly, because appellee does not allege any other facts concerning waiver, we find that the record does not show Szkolny waived a clear point of entry into the proceedings.

Szkolny asserts in Point II that the State Awards Committee could not rescind its decision which initially authorized the payment of $10,100. The cases cited by appellant are distinguishable. Each involved a rescinded order after a hearing or orders having a statutory finality. Here, the decision was free-form in nature. Moreover, in these circumstances, we hold that the authority of the State Awards Committee to rescind its approval would have terminated only when the award had been paid by the agency and accepted by Szkolny. It appears that the rules of the state awards program contemplate finality at this point. Rule 22A-12.02(5) provides:

The acceptance of a cash award for any suggestion adopted through the State Awards Program shall constitute an agreement by the employee that all claims, immediate and future, on the State of Florida, regardless of the use made of the suggestion, will be waived.

Additionally, 22A-12.15(3) provides:

If the first year’s estimated savings were incorrect and the error resulted in overpayment of the employee, the employees shall not be required to return any portion of the award.

We can’t help but note that this conclusion seems to further the best interests of the state while protecting the rights of an employee. As this case demonstrates, it may be that sometime after the decision to make an award, but before payment and acceptance, information will appear showing the award (which may be quite substantial), to be erroneous. We cannot dogmatically hold that the State is bound to pay nevertheless in such circumstances. Until rules are adopted otherwise, the State Awards Committee has control over an award granted until the award is paid to and accepted by the employee.

Because we are remanding this case for a hearing concerning the amount of savings, if any, we add (contrary to Szkol-ny’s suggestion) that all matters up to the point of the hearing may be considered. Section 120.57(1) proceedings do not perform a review function: rather, this procedure is utilized to formulate agency action. McDonald v. Department of Banking & Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).

Accordingly, the action of the State Awards Committee in denying Szkolny’s request for a 120.57(1) hearing is reversed, and the cause is remanded for further proceedings consistent with this opinion.

McCORD, SHIVERS, and JOANOS, JJ., concur.

      . Clearly, awards for superior accomplishments are submitted to the State Awards Corn-mittee for final action. Rule 22A-12.18.


text:
    COCA-COLA COMPANY-FOODS DIVISION, (Self-Insured), Appellant, v. Leslie OSTERHOUT, Appellee.
    No. XX-133.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Jesse F. Sparks, P. A., Orlando, for appellant.
    Richard W. Lobb of Maher, Overchuck, Langa & Cate, P. A., Orlando, for appellee.
   PER CURIAM.

The claimant injured his back in 1977 while employed as a grove caretaker and equipment operator with Coca-Cola Company-Foods Division. An anatomical disability was timely accepted and the sole issue before the Deputy Commissioner was the claimant’s entitlement to additional benefits based upon wage earning capacity loss. The issue presented for our consideration is whether the record supports a 15% wage earning capacity loss.

The order itself gives little insight into the basis for the award. The claimant is a 30-year-old male with a GED and a work history of industrial labor, grove work, truck and heavy equipment driving. After surgery, occasioned by his injury, he returned to his job with Coca-Cola and continued his employment until he was discharged for reasons unrelated to his injury. When discharged he was earning twenty-five cents per hour more than he was receiving at the time of his injury. After a brief job search he found similar employment with ABC Fruit Company, and within a few months he was earning $3.70 per hour as opposed to the $3.15 per hour he was making at the time of his injury. In addition to wages, ABC furnishes him with a house for the nominal sum of $5.00 per week. The appellee argues that his increased earnings are not necessarily reflective of whether he has suffered a wage earning capacity loss. We agree that in measuring such loss no single factor is conclusive. Walker v. Electronic Products & Engineering Co., 248 So.2d 161 (Fla.1971). The claim must be evaluated in light of the total evidence bearing upon wage earning capacity diminution. Walker, supra, sets forth the more germane factors to be considered. When the claimant’s proof is measured in light of Walker we find that a loss of wage earning capacity is not supported by competent substantial evidence.

The order is therefore reversed, and the claim is dismissed.

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


text:
    SAUDI ARABIAN AIRLINES CORPORATION, Appellant, v. Thomas Harrison DUNN, Jr., a minor, by and through his father and mother and next friends, Thomas Harrison Dunn and Sarah Bowers, and Thomas Harrison Dunn and Sarah Bowers, individually, Abdallah Ali Shihry, Hazza Saud Al-Faqeer, and Allstate Insurance Company, a corporation, Appellees.
    No. YY-451.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    James M. McLean of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    William C. Gentry and Frank D. Up-church, III, of Bedell, Bedell, Dittmar & Zehmer, P. A., and S. Grier Wells, Jacksonville, for appellees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellant seeks review of a nonfinal order by which the lower court determined that it had personal jurisdiction over Appellant by virtue of the “long arm statute,” Section 48.193(l)(b), Florida Statutes (1979).

The plaintiffs below alleged in their original complaint that one Hazza Saud Al-Faqeer negligently operated a motor vehicle on the public streets of Jacksonville, Florida, causing injury to the plaintiffs. Upon discovery of facts which led them to believe that Al-Faqeer was, at the time of the accident, an employee of Appellant and acting within the course and scope of such employment, plaintiffs amended their complaint by adding Appellant as a defendant and by adding allegations to the effect that Al-Faqeer was an employee of Appellant and at the time of the accident was acting within the course and scope of such employment. Thereafter, personal service of process was served upon Appellant under the above-cited statute.

Appellant filed a motion to abate, relying upon a previously-taken deposition of Al-Faqeer to show that while he was, indeed, an employee of Appellant, his sole purpose in being in Jacksonville at the time was to attend the University of North Florida to learn the English language and acquire American culture, and that the accident occurred at a time when he was driving a borrowed car back to the University after a personal shopping mission for the purchase of food.

The allegations of the amended complaint were clearly sufficient to charge Appellant with legal responsibility for its alleged employee’s wrongful act while acting within the course and scope of his employment. Elmex Corporation v. Atlantic Federal Savings & Loan Association, 325 So.2d 58 (Fla. 4th DCA 1976). The Appellant’s motion to abate for the lack of personal service, supported as it was by Al-Faqeer’s deposition, failed to make a prima facie showing that Al-Faqeer was not acting within the course and scope of his employment at the time of the accident. Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977), reh. denied. There are many factual issues involved, as well as conflicting reasonable inferences to be drawn therefrom, concerning that issue. - “It is well-settled that the question of whether a tort committed by an agent is within, the scope of his employment is normally to be determined by the jury, except in those cases in which a jury could reach only one conclusion that could be sustained.” Turberville v. Concrete Construction Company, 270 So.2d 431, at 431 (Fla. 1st DCA 1972); see also, Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); 53 Am.Jur.2d, Master and Servant, § 460.

We decide here only that the trial court did not err in denying Appellant’s motion to abate for lack of personal service under the long arm statute. We caution that such is a threshold determination only, and is not intended by us to be taken as dispositive of the ultimate issue of Appellant’s liability under the doctrine of respondeat superior. The trier of fact will ultimately determine that issue. Paradoxically, the ultimate determination of that issue will, at the same time, finally settle the question of personal jurisdiction over the person of Appellant.

AFFIRMED.

McCORD and ERVIN, JJ., concur.

      . Section 48.193(1), Florida Statutes:
      “Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

      “(b) Commits a tortious act within this state.”


author: GLICKSTEIN, Judge.

text:
    GENERAL PORTLAND LAND DEVELOPMENT COMPANY and Greater Florida Investment, a joint venture d/b/a Old Port Cove, Appellants, v. Marvin Lee STEVENS, Mary Catherine Stevens and Hembree Masonry, Inc., a Florida Corporation, Appellees.
    No. 79-1727.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellants.
    Thomas D. Lardin of Weaver & Weaver, P. A., Fort Lauderdale, for appellee-Hem-bree Masonry, Inc.
   ON REHEARING

GLICKSTEIN, Judge.

This is the third occasion for this court to consider this case. The present appeal is from a final summary judgment in favor of Hembree Masonry, Inc. (hereinafter Hem-bree), and against General Portland Land Development Company and Greater Florida Investment Company, a joint venture d/b/a Old Port Cove (hereinafter Old Port Cove), on the latter’s claim for indemnity. Both parties argued in their briefs that the facts are not in dispute. However, during argument counsel for Old Port Cove conceded the existence of unresolved questions of fact and urged this court to remand for another trial. We agree with appellants’ concession and affirm the denial of Old Port Cove’s motion for summary judgment, reverse the granting of summary judgment in favor of Hembree, and remand.

The facts and history of the case reveal that Marvin Lee Stevens, a plumber employed by an independent contractor, brought an action against Old Port Cove and Hembree for personal injuries allegedly caused by the negligent operation of a buck hoist, a machine used to transport construction materials up and down the side of a building. Old Port Cove, the owner/builder of a multistory condominium project, leased the buck hoist from Hembree. Under the terms of the written lease Hembree agreed to furnish an operator, whose wages were paid by Hembree. Ronald Weber was selected as the operator.

Old Port Cove filed a crossclaim against Hembree for contractual and common law indemnity. The case was tried and by virtue of the court’s charge, the jury was asked to determine if the hoist operator was the employee of Old Port Cove or the employee of Hembree. The jury was also asked to determine whether the buck hoist operator was a joint employee of both Old Port Cove and Hembree. They returned a verdict for Stevens for $234,000.00 against Old Port Cove, and against Stevens on his claim against Hembree, but rendered no verdict on the crossclaim for indemnity. Final judgment for plaintiff and against Old Port Cove was entered on February 28, 1973, and was appealed by Old Port Cove to this court. Rather than supersede the final judgment, Old Port Cove agreed to a settlement with Stevens in the amount of the judgment and obtained a release. This court subsequently reversed and remanded for new trial. General Portland Land Development Co. v. Stevens, 291 So.2d 250 (Fla. 4th DCA 1974). Since Old Port Cove had already settled with Stevens, on remand the only issue to be resolved was its crossclaim against Hembree.

On March 2if, 1973, Old Port Cove also instituted a separate lawsuit for indemnity against Ronald Weber for his negligent operation of the buck hoist. That case was tried nonjury and final judgment was entered against Weber.

After remand of the first appeal Old Port Cove filed an amended crossclaim against Hembree, alleging that Hembree employed Ronald Weber to operate one of the buck hoists and that Weber negligently lowered the buck hoist, injuring the plaintiff. Both parties moved for summary judgment. By order of May 17,1976, the trial court denied Old Port Cove’s motion for summary judgment arid granted Hembree’s motion for summary judgment. On appeal this court again reversed and held that this court’s prior reversal of the judgment entered in accordance with the jury verdict voided that judgment and negated the possibility of res judicata based on said overturned judgment. General Portland Development Co. v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978).

On remand following the second appeal Old Port Cove filed a second amended cross-claim against Hembree. Both parties renewed their motions for summary judgment. The trial court denied Old Port Cove’s motion and granted Hembree’s motion. This timely appeal followed.

As a preliminary matter we note that we need only consider the appropriateness of summary judgment in favor of Hembree. Since Old Port Cove conceded at oral argument that material facts remain at issue, their motion for summary judgment was properly denied.

The supreme court has recently reviewed several cases involving indemnity culminating with Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). That case arose following the death of one of Houd-aille’s employees allegedly caused by a defective cable manufactured by Florida Wire and Cable Co. The employee’s personal representative sued Florida Wire for wrongful death and alleged breach of implied warranty of fitness. Florida Wire filed a third-party complaint against Houd-aille and alleged that Houdaille was actively negligent and that if Florida Wire was negligent, its negligence was merely passive. The trial court granted summary judgment for Houdaille on its third party complaint. The First District reversed on the basis of unresolved material issues of fact. The supreme court noted that the district court focused on the wrongdoing of Houdaille, the potential indemnitor, rather than on the fault of Florida Wire, the party seeking indemnity. Implicitly finding that approach improper the supreme court, in quashing the district court’s holding, cited its prior decisions in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977), and Seaboard Coast Line Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978), and held:

.. . when determining whether a party is entitled to indemnity, we will not weigh the relative fault of the parties, but rather we will look to the party seeking indemnity to determine whether he is without fault. In making this particular determination, it is immaterial whether the one against whom indemnification is sought is also with fault. (Emphasis added).
374 So.2d at 493.

Since there was no basis to impute any negligence on the part of Houdaille to Florida Wire, the latter’s sole source of potential liability to the plaintiff was for its own active breach of warranty. Consequently, in order to hold Florida Wire liable at all it necessarily would have been at fault, thereby precluding it from shifting its liability regardless of its degree of fault. “[A] weighing of the relative fault of tortfeasors has no place in the concept of indemnity for the one seeking indemnity must be without fault.” Id., at 493.

We believe that Houdaille, supra, in essence, establishes a two-prong test that the party seeking indemnity must satisfy. The first prong, the only one considered by Houdaille, requires the indemnitee to be faultless, its liability solely vicarious for the wrongdoing of another.

The second prong focuses on the fault of the indemnitor. In order for the faultless party to shift its liability to another, the latter must be at fault. Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980). In the case of an employer, it is responsible for the wrongdoing of its servants; and on the basis of respondeat superior a corporation is liable to indemnify a faultless party held liable for negligence attributable to the corporation’s employee. Id.

Old Port Cove argues that it was the negligent operation of the buck hoist by Ronald Weber in his capacity as an employee of Hembree that proximately caused the injury to Stevens. On that basis they conclude that Hembree is liable for the negligence of its servant and must indemnify them. If the facts are found to support Old Port Cove’s conclusion the situation would be almost identical to the one in Atlantic Coast Development Corp., supra. In that case an employee of Atlantic was killed on a construction site. The personal representative of the estate brought a wrongful death action against the owner/general contractor and Napoleon, a subcontractor. The defendants reached a settlement agreement with the plaintiff and then sought common law indemnity from Atlantic. On the indemnity claim the jury found the settling defendants were without fault, necessarily implying under the circumstances that their liability was vicarious for the delegation of a non-delegable duty to the party at fault, Atlantic. The jury also found that Atlantic through its supervisor, Hershel Carver, agreed to assume the non-delegable duty of keeping its workers from underneath a crane, and that Atlantic breached that duty through the acts of its servant, Hershel Carver, who allowed and directed Atlantic’s employee to work in the area during a period while the crane was in operation. As a result of the breach the employee was killed when a load of block fell from the crane. Atlantic was held liable to indemnify the defendants. Implicit in that holding is that Atlantic’s fault was imputed from the negligence of its servant, Hershel Carver.

We agree with Atlantic Coast Development Corp., supra, and would follow its holding if the instant appeal had come to us in the same procedural posture. However, because the following two material questions of fact remain unresolved, summary judgment is inappropriate. (1) Who was the employer of Weber? (2) Was Weber negligent?

Both parties present uncontradicted sets of facts which suggest that Weber was in the employ of the other. Taken alone either set would adequately support such a finding. Because conflicting inferences can be drawn, Florida courts have wisely left the determination to a factfinder, making summary judgment inappropriate. Goldie v. Dillen, 140 So.2d 81 (Fla. 2d DCA 1962); Jaworski v. City of Opa Locka, 170 So.2d 484 (Fla. 3d DCA 1964), cert. denied 172 So.2d 441 (Fla.1965).

Under the assumption that Weber was Hembree’s employee, Old Port Cove contends that Hembree was a privy to Weber in Old Port Cove’s separate suit for indemnity against Weber for his negligence and as such, Hembree is bound by the judgment against Weber. Assuming arguendo that Weber was Hembree’s employee, undeniably if privity existed between them res judicata would apply and Hembree would be barred from relitigating the same issue of Weber’s negligence. Apparently there is no Florida case on point, but Hay v. Hildreth, 125 So.2d 772 (Fla. 1st DCA 1961), is helpful. That case held that an employee was not in privity with his employer in an action brought by a third party against the employer for its employee’s negligence. Although judgment was entered in favor of the third party, the employee’s then still pending separate action against the third party for negligence remained viable. Res judicata did not apply. We believe the converse is true and hold that Hembree, should it be found to be Weber’s employer, is not bound by the judgment against Weber, and can relitigate its employee’s negligence.

Finally, we note that the operation of a buck hoist, like a crane, is an inherently dangerous activity. See Chan-nell v. Musselman Steel Fabricators' Inc., 224 So.2d 320 (Fla.1969); Geffrey v. Langston Construction Co., 58 So.2d 698 (Fla. 1952); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., supra. Consequently, Old Port Cove as the owner/builder of the project could not delegate to an independent contractor the duty of care for inherently dangerous work — the operation of the buck hoist — and was vicariously liable for the injury to Stevens resulting therefrom regardless of its lack of fault. Id.; Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So.2d 767 (Fla. 3d DCA 1968), cert. denied 222 So.2d 751 (Fla.1969). However, liability on this basis alone will not preclude an otherwise viable claim for indemnity. Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., supra.

In conclusion, the motion for rehearing is denied and the opinion filed on January 7, 1981, is approved as modified above. We remand to the trial court for a factual determination as to who is the employer of Weber. Should it be found that Hembree is the employer, an additional finding as to Weber’s negligence must be made. If Weber is then found negligent indemnity shall lie. Atlantic Coast Development Corp., supra.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

DOWNEY, J., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.

      . Prior opinions are reported at 291 So.2d 250 (Fla. 4th DCA 1974), and 356 So.2d 840 (Fla. 4th DCA 1978).

        . We believe that Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1974), is limited to our so-called first prong. It was unnecessary for the supreme court to go further once it determined that the only possibility for holding Florida Wire liable was its own active negligence.