author: MILLS, Judge.

text:
    KING MOTOR COMPANY and Liberty Mutual Insurance Company, Appellants, v. Herbert POLLACK, Appellee.
    No. TT-372.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Rehearing Denied Feb. 4, 1982.

      A. J. Beisler, III, of Anthony J. Beisler, P. A., Fort Lauderdale, for appellants.
    Philip M. Warren of Sullivan, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellee.
   MILLS, Judge.

In this appeal from a workers’ compensation order appellants King Motor Company and Liberty Mutual Insurance Company (hereinafter referred to as King Motor) urge that the deputy commissioner erred in finding that the appellee/claimant Herbert Pollack (hereinafter referred to as Pollack) developed an occupational disease caused by exposure to motor vehicle fumes, in excluding a report of an environmental hygienist from evidence, and in awarding temporary total disability benefits from August 30, 1978, to December 4, 1978. Pollack cross-appeals, contending that the deputy erred in failing to find partial or total disability because of an occupational disease and in finding that Pollack’s average weekly wage was $482.94. We affirm on all of the grounds raised by King Motor and reverse on the two issues raised by Pollack.

Since the deputy commissioner’s findings of fact are supported by competent, substantial evidence, we adopt them and include them in this opinion:

That the Claimant, HERBERT POLLACK, was an employee of the KING MOTOR COMPANY, whose primary duties consisted of working as a service writer for motor vehicles in the repair division of KING MOTOR COMPANY.
That the Claimant, HERBERT POLLACK, had been employed as a service writer in essentially the same capacity for G. M. franchise dealerships for approximately 25 years and had worked for the Employer in that capacity for approximately seven (7) years.
That the Claimant’s job required him to work in an area consisting of drive lanes where 35 to 50 cars, at any one time, would be idling, and that the nature of the Claimant’s job required him to be exposed to exhaust fumes from these idling motor vehicles.
That the Claimant was a good employee, well-liked by his employer and with a substantial following of customers.
That the uncontroverted testimony presented and accepted by the Deputy Commissioners is that prior to January, 1975, the Claimant had no physical problem performing his job. That on or about January, 1978, the Claimant, while working for KING MOTOR COMPANY, began to develop a cough, red eyes and nausea. Dr. Paul Winick, a customer of KING MOTOR COMPANY, testified by deposition about these symptoms and this was further confirmed by the Claimant’s supervisor at KING MOTOR COMPANY, Mr. John Paul, who testified in his deposition that over a period of the last several months that the Claimant worked on the job, that the Claimant began to cough and wheeze, and that it “progressively got worse until he eventually could hardly talk over his speaker,” and that in addition to the coughing and wheezing and red eyes the Claimant “started to throw up” at the job.
The Claimant testified and it is accepted by the Deputy Commissioner that during the summer of 1978 he took a vacation and did not have any problems until he returned to work when he began to cough and throw up. This was again substantiated by his supervisor, Mr. John Paul, who testified that when the Claimant “came back from vacation,” he tried to make a go of it and ... he was throwing up real bad,” and that, “I could hear (the Claimant) coughing and wheezing very bad over the speaker so bad, I would have to wait for him maybe a minute or two as he called the order in there.”
That the Claimant, prior to leaving his employment on August 30, 1979, was treated by Dr. John J. Pittari and Dr. Ira Finegold.
Dr. Finegold, Board Certified in allergy and immunology, testified by deposition and at the hearing that he examined and treated the Claimant, and found that the Claimant was not able to continue to work at KING MOTOR COMPANY, at his old job after August 30,1979, and the Claimant was temporarily totally disabled from August 30, 1979 to December 4, 1979. Dr. Finegold testified that he performed objective tests on the Claimant and determined that the Claimant had developed an allergic reaction to motor vehicle fumes resulting in a severe decrease in pulmonary function accompanied by clinical symptoms of coughing, nausea, shortness of breath and wheezing, and that said illness was directly related to and caused by exposure of the Claimant to said vehicle fumes at the Claimant’s place of employment, and further, that said disease was caused by an exposure to fumes in excess of the exposure to the general public.
Dr. R. P. Busto, Board Eligible in allergy and immunology, examined and performed objective tests upon the Claimant. Dr. Busto testified by deposition and confirmed the findings of Dr. Finegold as to the cause and condition of the Claimant. I accept these findings and find that the Claimant developed an occupational disease caused by exposure to motor vehicle fumes at the Claimant’s place of employment, KING MOTOR COMPANY, and that said exposure was in excess to that of the general public, both in amount and duration, and that the working conditions of KING MOTOR COMPANY, the Claimant’s place of employment, created a greater hazard for said disease than that facing the general public, and that the Claimant was temporarily totally disabled from August 30, 1979 to December 4, 1979, which is the date of maximum medical improvement....
That Dr. Finegold testified that the Claimant’s condition is permanent, and Dr. Buston confirmed this in his testimony stating “we have (memory) cells that are sensitized and once they are sensitized they remain that way. This is a permanent condition.” Both Dr. Fine-gold and Dr. Busto testified that the Claimant could not return to his former employment as a result of this condition, and limited the Claimant physically to an area of employment not involving “gas fumes.” The Claimant testified that subsequent to being discharged by Dr. Fine-gold, he returned to an area similar to his past employment and related areas, and became violently ill. I accept this testimony and find the Claimant cannot return to his past employment or employment related to areas of motor vehicle industry which brings the Claimant in contact with motor vehicle exhaust fumes....
That the Claimant is the sole support of his family and that because he has a young child who is seriously asthmatic his wife cannot work and help support the family, that he had a great need to continue in his former employment at the former wages he was making and with the insurance coverage that was provided at his former employment, and that the Claimant, when he was released by Dr. Finegold and was advised of his disability, sought new employment of the type that would not involve his exposure to motor vehicle exhaust fumes, that he has a high school diploma, is 49 years of age, was in the United States Air Force as an airman over 25 years ago, has worked at his trade for 25 years, has no other training or transferrable skills, and now finds himself in the unenviable position of trying to secure new employment, that he went to numerous private employment agencies and State agencies, including the State Department of Vocational Rehabilitation in an attempt to secure work, that he answered ads in newspapers and placed applications for employment with every employer who would take an application. I find that the Claimant has made a valid search of the job market for employment within his limitations and that the only type of employment that the Claimant could secure because of his age and training is menial work paying an average weekly wage of $125.00 per week....

King Motor challenges the deputy’s finding that Pollack developed an occupational disease through four enumerations of error, the first of which is whether the opinions of Dr. Finegold and Dr. Busto were “competent, substantial and credible evidence within logic and reason and sufficient to support within reasonable medical probability the findings of occupational disease or accident by ‘exposure’?” Both doctors based their testimony and opinions on the history given and on the use of objective tests, namely, the pulmonary function test. The pulmonary function tests showed, according to Dr. Finegold, that Pollack was “seriously and adversely affected by gasoline fumes, exhaust and exhaust odors with demonstrable and significant decrease in his forced expiratory volume and forced vital capacity.” (emphasis supplied). The fact that neither doctor accompanied Pollack when he went, at their direction, and exposed himself to the gasoline fumes and exhaust is of no moment. The doctors testified as to the directions given and Pollack gave detailed testimony regarding where he went, what the conditions were, and how long he remained. The deputy was authorized to and did accept this testimony.

The other three points raised by King Motors, unified and summarized, are was there competent, substantial evidence to support the finding of severe decrease in pulmonary function directly related to and caused by the exposure of claimant to motor vehicle fumes and were the criteria for finding occupational disease caused by exposure properly supported by the evidence?

Subsection 440.151(2), Florida Statutes (1977), provides:

Whenever used in this section the term ‘occupational disease’ shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.

In order to recover under an occupational disease theory, the claimant must establish that (1) the disease was actually caused by employment conditions that are characteristic of and peculiar to a particular occupation; (2) it must actually have been contracted during employment in the particular occupation; (3) the occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be substantially higher in the occupation than in usual occupations; and (4) if the disease is an ordinary disease of life, the incidence of such a disease must be substantially higher in the particular occupation than in the general public. Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981).

We agree with the deputy’s findings that there was sufficient showing of a causal relationship between the illness and the employment conditions and that the occupation presented a peculiar hazard of the disease occurring. Most workers are not required by their jobs to stand in an area where they are exposed to exhaust fumes of 35 to 50 idling motor vehicles. That the disease was actually contracted during Pollack’s employment as a service writer for motor vehicles is uncontested. Finally, there was no evidence that an allergic reaction to motor vehicle fumes is an ordinary disease of life.

We reject King Motor’s contention that Pollack was required to establish exactly what chemicals or chemical component of motor vehicle fumes caused his condition. Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981).

We turn now to the question raised by Pollack on cross-appeal and that is whether the deputy commissioner erred in failing to find a partial or total disability because of occupational disease and a loss of wage earning capacity. In essence the deputy stated that Pollack had developed an occupational disease, the condition is permanent, and there was a loss of wage earning capacity; however, he further stated that since the doctors could not assign an anatomical percentage of disability, there was no anatomical permanent partial disability and, in line with Agrico Chemical Co. v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980), he could not, therefore, enter an award based on loss of wage earning capacity.

Laws, supra, does hold that without a finding that the claimant has sustained a permanent anatomical impairment, there cannot be an award for loss of wage earning capacity. It does not hold, however, that a finding of a particular degree of permanent anatomical impairment must be made. In the instant case, both doctors testified that the condition was permanent and Dr. Busto’s testimony that a person has memory cells that are sensitized permanently establishes (if believed, and the deputy expressly accepted the testimony) that the condition is a permanent anatomical impairment.

This case is distinguishable from that of Plantation Construction Co. v. Ayers, 385 So.2d 1138 (Fla. 1st DCA 1980). In both that case and this one the medical testimony established that once the claimant was no longer exposed to the harmful element (in that case, bacteria in the water, and in this one, motor vehicle exhaust fumes) the claimant suffered from no continuing medical problems, but in the instant case there was further medical testimony that the claimant had suffered a permanent sensitization of certain cells. A second distinction is that Ayers involved a finding of 10% permanent partial disability of the body as a whole under circumstances where there was no medical testimony that the claimant had a permanent disability related to the condition at issue and there was an explicit finding that there was no loss of wage earning capacity. In the instant case, there was medical testimony regarding a permanent anatomical impairment (but no percentage rating) and there was a specific finding that there was a loss of wage earning capacity.

One final consideration in reviewing an award based on occupational disease is that Section 440.151(3), Florida Statutes (1977), defines “disablement” as “the event of an employee’s becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease....” (emphasis supplied). Thus, as stated in American Beryllium Co. v. Stringer, 392 So.2d 1294 (Fla.1981), “[I]t is the disability and not the disease which determines the compensability of the claim.” That the inability to continue in a particular occupation was a proper factor to consider in an occupational disease claim was explicitly recognized in Ayers at 385 So.2d 1140.

The evidence in this case clearly establishes that Pollack has been actually incapacitated from performing his work as a service writer, the last occupation in which he was injuriously exposed. Applying the law to the facts before us, it is clear that Pollack has established a compensable claim based on loss of wage earning capacity.

During the course of the hearing King- Motor called one Raymond Stone to testify concerning air quality. Stone holds a certificate of safety professional. He testified that he took air samples at King Motor Company and at another center, for purposes of comparison, and sent the air samples to a laboratory in Illinois. Because Stone had no personal knowledge as to how or when the samples were received, who conducted the tests, or how the tests were conducted, the deputy commissioner excluded from evidence the report of those test results when they were offered into evidence through Stone’s testimony. We find no error in the deputy’s evidentiary ruling. Auletta v. Fried, 388 So.2d 1067 (Fla. 4th DCA 1980).

King Motor asserts that the deputy commissioner’s finding that Pollack was temporarily totally disabled from August 30 to December 4 was error. The record supports the deputy commissioner’s finding that Dr. Finegold testified that Pollack was not able to continue his work at King Motor after August 30 and that he was temporarily totally disabled August 30 to December 4. Contrary to King Motor’s assertion in the brief, there is evidence that Pollack received medical treatment during the period at "issue. We find no error in the deputy commissioner’s ruling on this point.

As for the issue on appeal regarding average weekly wage, the parties argued as to the applicability of the different methods of calculation set forth in Section 440.14, Florida Statutes (1977), as well as to factual details, such as the kind and value of certain fringe benefits. The order of the deputy commissioner is totally lacking in findings of ultimate fact on this point so as to make it impossible for us to review the basis of his determination. It states only the conclusion that “at the time Claimant was injured, his average weekly wage was $482.94 including fringe benefits. ... ” See Brown v. S. S. Kresge Company, Inc., 305 So.2d 191 (Fla.1974); Hall v. Red Bishop Roofing, 393 So.2d 618 (Fla. 1st DCA 1981); Decker v. City of West Palm Beach, 379 So.2d 1004 (Fla. 1st DCA 1980). For that reason, we reverse on the issue of average weekly wage and remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WENTWORTH, J., and OWEN, WILLIAM C., Associate Judge, concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Robert M. NALVEN and Lionel I. Nalven, as trustees, Appellants, v. DIVISION OF ADMINISTRATION, State of Florida, Department of Transportation, Appellee.
    Nos. 81-62, 81-430.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Lawrence J. Robinson and Terri Jayne Salt of Drymond, Robinson, Bennett & Chase, Sarasota, for appellants.

      Alan E. DeSerio and Margaret-Ray Kem-per, Tallahassee, for appellee.
   GRIMES, Judge.

This appeal poses the question of to what extent a Florida property owner whose land is being condemned is entitled to the enhancement in its value occasioned by the proposed improvement.

Robert and Lionel Nalven, as trustees, appeal from a final judgment awarding them $133,525 for a parcel of their land condemned by appellee Department of Transportation. They contend that the court erred in allowing the Department’s expert witness to exclude a prior sale of the parcel and the sale of nearby property in arriving at his assessment of the value of the parcel.

At trial only two appraisers gave an opinion as to the value of the property. In reaching their conclusions, both used the market valuation method of considering sales of comparable properties. Appellants’ expert, Sam Rice Caldwell, testified that he considered sales of approximately fourteen parcels and found three that were most comparable for use in placing a value on the property being condemned. The first of these was a 1973 sale of the condemned property itself for $2,100 an acre. The purchaser later defaulted in the payment of the mortgage, and title to the property returned to appellants in foreclosure proceedings. The second comparable sale was of a parcel, known as Creekwood, which sold for $2,365 an acre. The third was a sale of property near Sarasota, known as the Meadows, which sold for $3,500 an acre. After consideration of the similarities and dissimilarities between those properties and appellants’ parcel, Caldwell concluded that as of May 6, 1977, the date of taking, the parcel was worth $2,350 an acre. He valued the 91.536 acre parcel at $217,914, including $2,830 for fencing.

The Department of Transportation’s expert, Richard L. Phagan, valued the property at $1,440 an acre plus $1,700 for fencing for a total of $133,525. Mr. Phagan said that while he had taken into account a number of comparable sales, he had rejected the prior sale of appellants’ property and the Creekwood sale from consideration because the sales price of those parcels had been enhanced by the anticipation of the construction of Interstate 75. Appellants moved to strike Mr. Phagan’s testimony on the ground that it was based on the erroneous legal premise that he should not consider any properties that were enhanced by the anticipated improvement. The court in denying the motion stated, “He comes awful close in his appraisal to disregarding general enhancement, but he said, I think in his opinion, it was particularly enhanced or specifically enhanced.”

The prior sale of appellants’ property involved 1,055 acres of which 91.536 acres were condemned. Mr. Nalven testified that Mr. Norville, the purchaser, knew of the location of the proposed interstate highway because they had discussed it prior to the sale. The sale of the Creekwood parcel, which also occurred in 1973, involved 1,540 acres. The Department of Transportation condemned a portion of that property for the right of way of Interstate 75. Mr. Phagan testified that Jim Doss, a principal in the company which purchased Creek-wood, knew of the location of the highway at the time of the purchase. The jury ultimately returned a verdict for $133,525, which was the exact amount to which Mr. Phagan testified.

The case closest in point to this one is Anderson v. State Road Department, 204 So.2d 899 (Fla. 1st DCA 1967), in which the State Road Department appraiser testified that he did not consider any increase in market value that was influenced by the highway project for which the Department was condemning the property. On appeal the court held that the trial court should have stricken this appraiser’s testimony because it was based upon a misconception of Florida law with respect to the compensation to be paid for condemned property. Since the jury’s award was much closer to the value figure given by the Department’s appraiser and more than $100,000 less than the values presented by the property owner’s two appraisers, the court reversed for a new trial.

The Florida law upon which the Anderson court relied came from the decisions of the supreme court in Sunday v. Louisville & Nashville Railroad, 62 Fla. 395, 57 So. 351 (1912), and State Road Department v. Chicone, 158 So.2d 753 (Fla.1963). In Sunday the trial court had charged the jury that in fixing the market value of the property being condemned, the jury was not authorized to take into consideration the enhancement of the value of the property, if any, caused by the proposed improvement. On appeal the supreme court first quoted article XVI, section 29 of the Florida Constitution, which then read:

“No private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.”

62 Fla. at 396, 57 So. at 351. The court also quoted section 2013, Florida Statutes (1906), which provided that a jury of twelve men should determine the condemnation award and tracked the constitutional definition of compensation. The court then said:

The Constitution contemplates and the statute requires that the issue submitted shall be what is “full compensation” for the property to be appropriated at its then fair actual value, irrespective of or without regard to any benefits that may accrue to the owner of the property from any improvement proposed by the petitioner; but the law does not deny to the owner any real and reasonable enhancement in the market value of the property to be appropriated by reason of “any improvement proposed.” If the property naturally, or in common with other property similarly conditioned, increases in market value in anticipation of the proposed improvement, before the appropriation, the compensation therefor is the fair actual market value at the time of the lawful appropriation.

62 Fla. at 397, 57 So. at 351. The court held that the jury charge was erroneous and reversed the case for a new trial.

Chicone dealt with a situation in which a State Road Department witness testified that the value of the lands being taken was depressed by the imminence of the taking, and the court held that under these circumstances compensation should be based on the value of the property as it would have been at the time of the taking if it had not been subjected to the debilitating threat of condemnation. On the other hand, the court, in passing, interpreted the Sunday case as holding that an increase in value of lands occurring in anticipation of a proposed improvement was an element of compensation to be paid for the lands taken. Thus, after Chicone the property owner was entitled to the benefit of any enhancement to the value of his property by the proposed improvement but was not to be penalized if the anticipation of condemnation had the effect of depressing the property value.

In this appeal the Department of Transportation relies primarily upon Pozin v. State Department of Transportation, 281 So.2d 73 (Fla. 1st DCA 1973). In that case the Department’s expert had testified that he did not make any allowance in his appraisal of the defendant’s property for the enhancement in value attributable to the proposed improvements. The court rejected the contention that this was in conflict with the Sunday rule and concluded by saying:

Finally, the appellee urges in its brief, and we agree, that the trial court did not err in refusing to strike the testimony of its appraiser witness, because there could not be any real and reasonable enhancement in the market value of the property appropriated in the instant case by reason of the proposed improvement subsequent to the time of the exact location of the road and the parcels necessary for the taking were known in the market.
In the case at bar the market was assured of the exact location of the road in question on December 20, 1965, when the Secretary of the Department of Transportation adopted the right-of-way resolution.

281 So.2d at 74-75. In essence, the court apparently felt that the property had been appropriated at the time of the adoption of the Department’s right-of-way resolution because the comparable sales which the Department’s appraiser declined to consider occurred subsequent to the resolution but prior to the taking. In a concurring opinion Judge Rawls reasoned that the Department’s appraiser had a right to decide, within his expertise, that the sales in question were not comparable.

Appellants contend that under Sunday and Chicone any pertinent sale of land comparable to the condemned land which occurs before the date of the taking can be com sidered in determining value even if the sales price is enhanced by virtue of the proposed improvement. Appellants further assert that even under Pozin they should prevail because the prior sale of their parcel and the sale of the Creekwood property both occurred before November 7, 1974, when the Department passed a resolution adopting a map showing the location chosen for Interstate 75 and well before February 1, 1977, when the Department passed a resolution specifying the particular parcels necessary to be condemned in order to complete the project. In light of the existing case law, appellants are clearly correct. The court should have stricken Mr. Pha-gan’s testimony because of his failure to consider, as comparable sales, the prior sale of the condemned property and the sale of the Creekwood parcel. Moreover, it is obvious that the error was prejudicial because the jury returned a verdict in the same amount as the value testified to by Mr. Phagan.

We might stop here were it not for additional matters which have come to our attention. If the court in Pozin seemed to strain in order to move the cutoff date for enhancement back to the date of the Department’s resolution, perhaps this was understandable in light of the law on this subject in other jurisdictions. The position taken by Florida represents what is clearly a minority view. Annot., 147 A.L.R. 66 (1943). Thus, 4 P. Nichols, The Law of Eminent Domain § 12.3151 at 415-24 (rev. 3d ed. P. Rohan 1979), states:

The general rule is that any enhancement in value which is brought about in anticipation and by reason of a proposed improvement is to be excluded in determining the market value of such land, although there is some authority which, contrariwise, allows recovery for such enhanced value.

(Footnotes omitted).

In United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), the United States Supreme Court reviewed a federal condemnation proceeding and adopted a scope of the project rule whereby if land was probably within the scope of a project or, in other words, within the area to be condemned at the time the government became committed to the project, the government would not be required to pay any increase in value arising from the known fact that it would probably condemn the land. The rule was later refined to preclude enhancement when it became a practical rather than a legal certainty that the lands were to be condemned. United States v. Crance, 341 F.2d 161 (8th Cir.), cert. denied, 382 U.S. 815, 86 S.Ct. 36, 15 L.Ed.2d 63 (1965). In United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), the court outlined the reasons supporting the scope of the project rule:

At least three considerations support this principle excluding from compensation “value resulting from the government’s special or extraordinary demand for the property” — value that is caused solely by the Government’s actions as taker of the condemned property. First, this value is not true “market value” as determined by what a willing buyer would pay a willing seller under “fair market conditions.” The Government has entered the “market” as a “purchaser” with a unique and pressing demand, and in so doing has distorted the market; absent the Government’s activity as “purchaser” or condemnor, there would be no market reflecting this unique demand. That element of value created solely by the Government’s activity as purchaser or condemnor is more “hold-up value” than “fair market value.” Second, to force the Government to pay, because of a special public need for property, a premium over that which the property would bring on the open market absent the Government’s demand, obviously would increase the cost of public projects and perhaps frustrate some public objectives. Third, to permit recovery of value that is not created by fair, open market conditions would be to award a few private proper-tyholders windfall gains solely because of public needs and exigencies. See generally United States v. Cors, supra, 337 U.S. [325] at 332-34, 69 S.Ct. [1086] at 1090-91 [93 L.Ed. 1392]; Note, Valuation of Conrail Under the Fifth Amendment, 90 Harv.L.Rev. 596, 597-606 (1977). The underlying notion of the “no value attributable to Government demand” principle, then, is that the Government, when pursuing public benefits through its condemnation power, should not have to spend more for property than would a reasonable and willing private purchaser solely because it is exercising its condemnation power on behalf of the public; instead, the Government is to be equated to a private purchaser buying the property for its “highest and best” nongovernmental use in an open market.

605 F.2d at 782-83 (footnotes omitted).

Most jurisdictions follow principles which approximate the federal scope of the project rule. In essence, the owner is entitled to any rise in the value of his property which may be occasioned by knowledge of a general nature that a project is likely to be located in his neighborhood some time in the future. 4 P. Nichols, supra, § 12.-3151(2). However, when the condemning authority has committed itself to placing a project in a particular location, the owner of land within that area is not entitled to an increase in value of his land which results from anticipation of the project. Id. § 12.-3151(1). Section 1005(a) of the Uniform Eminent Domain Code prescribes a similar rule, but as yet no state has seen fit to adopt the Code. Of course, as a practical matter, since the value of the land condemned is generally determined by the sales price of similar land, this rule’s main effect is to prohibit for the purpose of determining value the use of sales of property which occur after the scope or location of the project is known where the value of that property is enhanced by the project although not taken for it.

An argument can be made that allowing an enhanced value to condemned property even after the location of the project has been determined avoids the discrimination which results when the enhancement is denied to the owner of condemned property while an adjacent owner whose property is not taken is able to retain it. On the other hand, the mere fact that the adjacent landowner may receive a windfall should not obligate the state to pay increased prices for property which it must condemn. See 1 L. Orgel, Valuation Under the Law of Eminent Domain § 98 at 426 (2d ed. 1953).

' Why do we labor this point? Because it may be that the State of Florida is paying more for property than it should be. Orgel explains why land being condemned under the rule followed in Florida can easily lead to overpayment.

[T]he possibility that the owner will participate in the benefits from the improvement is removed by the certainty that the land will be taken and its market value therefore experiences no enhancement by reason of prospective benefits. But the relative ease of estimating market value by reference to sales prices of similar property in the neighborhood might lead a court to award a value based on the sales prices of adjacent property.

Id. at 425. If it could be said that the property which is the subject of this appeal was within the scope of the interstate project before the two questioned sales took place, those sales may be good examples of what Orgel is talking about. Obviously, if they comprehended only the property within the right of way there would have been no enhancement in the sales prices; in fact, the sales prices could have been depressed, necessitating the use of the Chicone rule to exclude them from consideration. However, the fact that the bulk of the property involved in each of the two sales was adjacent to and not within the right of way may well explain why their prices were much higher than those of the other sales which Mr. Phagan considered.

Lest we be accused of simply taking issue with long-standing legal principles of our supreme court, we hasten to point out that the Sunday case was decided in 1912 based upon an interpretation of a provision of the Florida Constitution which changed in 1968. Article X, section 6(a) of the new Constitution now reads, “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” The words “irrespective of any benefit from any improvement proposed by such corporation or individual” have been eliminated. Moreover, there is no longer any statute which contains that phrase. The phrase itself has received differing interpretations. Compare Northern Pacific & Puget Sound Railroad v. Coleman, 3 Wash. 228, 28 P. 514 (1891), with Enoch v. Spokane Falls & Northern Railway, 6 Wash. 393, 33 P. 966 (1893). Similar language was even construed by the State of Oregon to mean the exact opposite of what our supreme court held in Sunday. Portland-Oregon City Railway v. Penney, 81 Or. 81, 158 P. 404 (1916). In any event, no Florida court has ever passed on the enhancement question under the new Constitution. In fact, the only case since 1968 which has even purported to discuss the issue is Pozin.

Therefore, we hereby certify to the supreme court the following question:

TO WHAT EXTENT, IF ANY, IS A FLORIDA PROPERTY OWNER IN A CONDEMNATION PROCEEDING ENTITLED TO THE ENHANCEMENT IN THE VALUE OF HIS PROPERTY CAUSED BY THE ANTICIPATION OF THE PROPOSED PROJECT FOR WHICH THE LAND IS BEING CONDEMNED?

Should the supreme court choose to deviate from the Sunday rule, there would undoubtedly be ancillary issues to be decided, but it would be presumptuous of us to endeavor to pose them as additional formal questions. We only note in passing that if a rule similar to the scope of the project rule were to be adopted, the trial courts would need guidance on how to implement it. For example, would it be the function of the court or the jury to determine the date upon which the scope of the project became known? Moreover, would appraisers in their expertise be given the leeway either to rely upon or to exclude a sale of comparable property depending upon whether they believed that the sale came before or after the scope of the project was known or that the sale was or was not affected by the project? See United States v. 320.0 Acres of Land, 605 F.2d at 807-09, for an extensive discussion of these issues. See generally State Road Department v. Falcon, Inc., 157 So.2d 563 (Fla.2d DCA 1963).

Because we are obligated to follow Florida law as it now stands, we reverse the judgment and remand the case for a new trial on the amount of compensation to which appellants are entitled for their property.

BOARDMAN, A. C. J., and CAMPBELL, J., concur.


author: SCHEB, Chief Judge. SCHOONOVER, Judge,

text:
    Betty BENSON, Appellant, v. William E. SEESTROM, Appellee.
    No. 81-295.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Roger A. Larson of Graham, Hodge & Larson, Belleair Bluffs, for appellant.
    Warren J. Knaust of McCaughey, Knaust & Evans, St. Petersburg, for appellee.
   SCHEB, Chief Judge.

Appellant Betty Benson challenges a judgment for damages awarded Appellee William Seestrom for her breach of a contract to sell him a condominium.

On April 17,1979, Douglas Culpon, appel-lee’s real estate broker, delivered appellee’s signed offer to purchase appellant’s condominium to Skip Paschall, appellant’s real estate agent. It was April 24 before Pasc-hall mailed the contract to his principal, appellant. Upon receipt on April 25, appellant made several changes on the contract. She increased the amount of the down payment, expressly required a cash transaction, modified the brokerage commission, and changed the expiration date for her acceptance of appellee’s offer from April 20 to May 1, 1979. Appellant then hand-delivered the contract to Paschall’s office on April 27.

Paschall failed to notify Culpon that the amended contract was in his office until May 3, two days after the new expiration date appellant inserted in the contract. Once notified, Culpon immediately picked up the contract. On the same date he mailed it to appellee who resided in Minnesota. Upon receipt of the amended contract, appellee executed it and promptly returned it along with the additional deposit. In the interim, however, by a letter dated May 4, appellant, not having received an acceptance prior to May 1, advised Pasc-hall that the contract was void and withdrew the listing from his office.

Subsequently, appellant, who is a registered real estate broker, sold the condominium to a third party. Although the purchase price she realized was less than the contract price agreed upon by the parties in this case, she made a profit because she incurred lower selling expenses. In a non-jury trial the court found in favor of appel-lee and awarded him a judgment for $1,546, plus interest and costs. This appeal ensued.

We find only one point raised by appellant has merit. Appellant urges that basic contract law applies here, and that her counteroffer lapsed on May 1, the revised expiration date she inserted in the contract. Appellee, on the other hand, argues that the law of agency controls. He maintains there is substantial, competent evidence to support the trial court’s finding that appellant breached her contract and to sustain the court’s award of damages. We agree with appellee.

As noted, the first offer was delivered to Paschall’s office on April 17. This contract had a termination date of April 20; however, Paschall did not deliver it to his principal, appellant, until well after the termination date. When she received this contractual offer, appellant treated it as effective, made certain changes, inserted a new termination date, and delivered the amended contract back to her agent. Again, Paschall failed to notify the buyer’s agent of this counteroffer until well after the new termination date. When appellee was informed of the counteroffer, he promptly executed the contract and remitted the additional down payment. He then actively sought to obtain financing for the closing of his purchase of the condominium on the assumption he had entered into a binding contract. It is undisputed that Appellee Seestrom and Culpon, his agent, acted expeditiously throughout the negotiations. Thus, the trial court properly determined that all of the delays which resulted were attributable to Paschall, appellant’s agent.

Appellant contends that Paschall, as her real estate agent, had no actual or apparent authority to continue her counteroffer beyond May 1 and bind her to the contract. The cases relied upon by appellant, however, involve situations where the agent entered into a contract on behalf of his principal, not merely where he negotiated an extended date for a contract, the basic terms of which his principal had already agreed to accept.

A principal is responsible for the acts of his agent. Even where an agent’s act is unauthorized, the principal is liable if the agent had the apparent authority to do the act and that apparent authority was reasonably relied upon by the third party dealing with the agent. Stiles v. Gordon Land Co., 44 So.2d 417 (Fla.1950); Parsley Brothers Construction Co. v. Humphrey, 136 So.2d 257 (Fla.2d DCA 1962). Apparent authority must be the result of acts or omissions by the principal in order to subject the principal to liability for the agent’s actions. Taco Bell of California v. Zappone, 324 So.2d 121 (Fla.2d DCA 1976); Tampa Sand & Material Co. v. Davis, 125 So.2d 126 (Fla.2d DCA 1960).

In the present case the negotiations between the parties were conducted totally by their respective agents. While Paschall was not cloaked with authority to execute contracts on appellant’s behalf, he certainly had the apparent authority necessary to conduct negotiations between the parties. Real estate contract negotiations frequently involve brief extensions, particularly where a party resides out of state. None of the facts or circumstances of the transaction put appellee on notice that Paschall did not have the authority to submit the amended contract after the revised expiration date. Therefore, when he delivered the amended contract at a date beyond the expiration date noted therein, appellee and his agent Culpon acted reasonably in assuming that the requirements of meeting that date had been waived.

We think it significant that during the contract negotiations appellant received the first contract after the termination date expressly provided therein. Still she treated it as effective. When she changed the termination date, she never notified Pasc-hall that time was of the essence. Moreover, appellee had no notice of the new termination date until receipt of the amended contract subsequent to that date. Upon being notified appellee and his agent acted with deliberate speed, and thereafter proceeded in good faith in reliance on the contract.

Accordingly, we conclude that there was sufficient evidence for the trial judge to determine that Paschall had apparent authority to communicate appellant’s counteroffer after the termination date, and that appellee’s prompt acceptance of the counteroffer was valid. We are aided by the trial judge’s thoughtful and correct analysis of the law in the judgment he entered. His factual findings are sustained by substantial, competent evidence. It is, therefore, our duty to affirm the judgment of the trial court. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977).

AFFIRMED.

DANAHY, J., concurs.

SCHOONOVER, J., dissents with opinion.

SCHOONOVER, Judge,

Dissenting.

I respectfully dissent.

Initially, it must be explained that appel-lee’s agent merely picked up the written counteroffer at Paschall’s office and delivered it to the appellee. No conversation accompanied this notification of a counteroffer to sell. Thus, the terms and conditions of the counteroffer were totally contained within the document itself. It was clearly indicated on the face of the counteroffer that it had lapsed before appellee received it. Where an offer is withdrawn before its terms are communicated to the offeree, there can be no effectual acceptance of it. Morgan v. Patillo, 24 F.2d 204 (5th Cir. 1928); Frisseli v. Nichols, 94 Fla. 403, 114 So. 431 (1927). Simply stated, the counteroffer had lapsed.

In all fairness to the appellee, it must be noted that the action of Paschall in allowing appellee to be notified of a counteroffer when that counteroffer is no longer in effect is confusing and contradictory. When one delivers an offer after the expiration date noted on its face, it is usually reasonable to assume that the requirements of that clause have been waived and that, instead, acceptance need only be communicated within a reasonable time. This was apparently the assumption of the appellee — one to which the trial court gave great deference.

Had the appellant herself delivered the counteroffer to the appellee, there would be less doubt as to the trial court’s decision that it was proper for appellee to assume that the clause was a nullity (even without inquiring). However, this was simply not the case. It is clear from the record that the appellant did not intend the counteroffer to be subject to acceptance for a reasonable time. More importantly, it is clear that Paschall had no apparent authority to extend the expiration date.

If liability is to be founded on the basis of the doctrine of apparent authority or agency by estoppel, it is a prerequisite that the principal do something that induces reasonable reliance on his agent’s acts. Fidelity Casualty Co. v. D. N. Morrison Construction Co., 116 Fla. 66, 156 So. 385 (1934), appeal dismissed, 293 U.S. 534, 55 S.Ct. 348, 79 L.Ed. 642. The appellant did nothing to create an appearance that the counteroffer could merely be responded to in a reasonable time after notification. In fact, she made a substantial effort to negate this assumption.

The written indication as to the life span of the counteroffer placed a duty upon the appellee to inquire as to the scope of actual authority vested by the appellant in Paschall. As this court held in Taco Bell of California v. Zappone, 324 So.2d 121 (Fla.2d DCA 1975):

The doctrine [of apparent authority] rests on the premises that one who allows another to serve as his agent must bear the loss which results to a third party from that party’s dealings in reliance on that agent’s supposed authority. But as Me-chem points out, the doctrine rests on appearances created by the principal and not by agents who often ingeniously create an appearance of authority by their own acts. Mechem on Agency, 4th Ed. 1952, § 94.

Id. at 124. A related premise is voiced at 3 Am.Jur.2d, Agency, § 78 (1962), wherein it is stated:

A third person dealing with a known agent may not act negligently with regard to the extent of the agent’s authority or blindly trust the agent’s statements in such respect. Rather, he must úse reasonable diligence and prudence to ascertain whether the agent is acting and dealing with him within the scope of his powers.

Furthermore, it is well settled that the doctrine of apparent authority will not be used to enforce verbal agreements made by agents beyond the scope of their authority where the complaining party has signed a written agreement which negates or contradicts the oral agreement and the apparent authority of the agent. Taco Bell of California v. Zappone; Brown v. Inter-Ocean Insurance Co., 438 F.Supp. 951 (N.D.Ga.1977).

It is of material concern that a simple phone call to the appellant could have resolved any questions as to the actual scope of the counteroffer. Appellee should have made such an inquiry. He did not. ■ Accordingly, he should accept the consequences of his own inaction.


author: BOARDMAN, Acting Chief Judge.

text:
    Chanh V. CONNELLY, Appellant, v. Thomas V. CONNELLY, Appellee.
    No. 81-905.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.

      Ronald P. Teevan of Cooper, Rives, Stro-hauer & Teevan, Clearwater, for appellant.
    William C. Gregg, III, Clearwater, for appellee.
   BOARDMAN, Acting Chief Judge.

Chanh Y. Connelly, the wife, appeals portions of the final judgment of dissolution of the parties’ marriage and raises two issues that we deem meritorious.

First, the trial court awarded exclusive possession and occupancy of the marital home to the wife with the customary provisions for termination. The wife was ordered during the period of occupancy to pay the monthly mortgage payments, maintenance, utilities, and taxes. In light of the wife’s expenses, assets, and limited ability to be gainfully employed as reflected in her financial affidavit, and taking into consideration the husband’s ability to pay as disclosed in his financial affidavit, we conclude that this ruling was error constituting an abuse of discretion by the trial court. Moreover, since the home is jointly owned, the judgment would require the wife to build the husband’s equity in the property. The husband should be required to pay one-half of the mortgage payments, taxes, insurance, and necessary repairs. Waskin v. Waskin, 346 So.2d 1060 (Fla.3d DCA 1977).

Second, the provision granting the husband the right to determine whether the parties’ minor child should attend public or private school and the provision requiring the wife to pay the costs of the child’s schooling should the husband prefer that the child attend private school must be stricken. An excellent discussion of this issue, the reasoning of which we adopt, is contained in a recent fourth district case not factually on point; that discussion reads as follows:

Section 744.301, Florida Statutes (1979), provides in part:
If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded.
Section 744.361, Florida Statutes (1979), provides in part:
(1) It is the duty of the guardian of the person to take care of the person of the ward, to treat him humanely, and, if he is a minor, to see that he is properly educated and that he has the opportunity to learn a trade, occupation, or profession.
There appear to be no decisions in Florida directly ruling upon the right of a noncustodial parent to make educational decisions for children in custody of the other parent.... In Bennett v. Bennett, 73 So.2d 274 (Fla.1954), the Florida Supreme Court indicated that the custodial parent had the prerogative of making educational decisions.
Although Bennett did not discuss the issue in the context of a custodial versus non-custodial parent, the general law throughout the country is clearly to the effect that the grant of custody of a child of divorced parents carries with it, in the absence of some extraordinary and highly unusual circumstances, the right of the custodial parent to make decisions as to the child’s education. Fanning v. Warfield, 252 Md. 18, 248 A.2d 890 (1969). In Montandon v. Montandon, 242 Cal.App.2d 886, 52 Cal.Rptr. 43 (1966), the California court held that the party to whom custody of children is granted in a divorce decree has the prerogative of selecting the religious, cultural, and educational institutions which the child should attend. Also see Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321 (1952). In Jenks v. Jenks, 385 S.W.2d 370 (Mo.App.1964), the court held that the award of custody in a divorce decree carries with it the right to direct the education and place of education of the child. New York follows the same reasoning as exemplified by Mester v. Mester, 58 Misc.2d 790, 296 N.Y.S.2d 193 (1969), wherein the court held that the nature and extent of education, lay or secular, of a child is a value judgment committed to the parent having custody. The court held that such decisions should only be interfered with by the courts upon a positive demonstration of harm to the child.

Mills v. Phillips, 407 So.2d 302, at 303-304 (Fla. 4th DCA 1981).

We agree with the other jurisdictions cited in Phillips that absent highly unusual circumstances the right to make educational decisions concerning a child of divorced parents must be left with the custodial parent. We agree with the wife here that her ability to determine whether her child is being positively or negatively affected by his school situation is far superior to that of the husband, since she sees and interacts with him on a daily basis, whereas the husband does not. There being no extraordinary or unusual circumstances here which would indicate that the wife, who has been found a sufficiently fit parent to merit custody of' the child, is incapable of acting in his best interests concerning his education, the trial court erred in relieving her of this responsibility over her objection.

We have considered the other issues raised by the wife and hold that each of them was decided within the trial court’s discretion.

Accordingly, the case is remanded to the trial court with directions to amend the final judgment consistent with this opinion. In all other respects the final judgment is affirmed.

OTT and RYDER, JJ., concur.


author: DANAHY, Judge.

text:
    Marie A. POWERS, Appellant, v. Robert G. POWERS, Appellee.
    No. 81-1102.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Richard H. Bailey of Harrison, Harllee, Porges & Bailey, Bradenton, for appellant.
    Douglas A. Wallace, Bradenton, for ap-pellee.
   DANAHY, Judge.

The wife appeals from a final judgment of dissolution of marriage in which the trial judge, after awarding the wife permanent periodic alimony and lump sum alimony, directed the wife to deed over to the husband all of the wife’s right, title and interest in the jointly owned marital domicile. Neither party requested partition of jointly owned property, the husband did not establish a special equity in the marital domicile, and the wife did not agree to a disposition of the marital domicile. Under these circumstances, the trial judge erred in awarding the wife’s interest in the marital domicile to the husband.

The husband points out that the trial judge made a lump sum award to the wife of the husband’s interest in a residential condominium unit and justifies the award of the marital dwelling to the husband as a means of accomplishing an “equitable division” of the party’s marriage assets. Recently, the Fourth District Court of Appeal confronted a similar argument and held that the theory of equitable distribution is not an independent vehicle for an award of property in a dissolution of marriage proceeding. Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981). We agree with our sister court’s analysis and holding in that case; here, the property of the parties should have been disposed of by resort to the concepts of alimony and special equities with due regard given for the contribution of both parties.

Since the dispositions and awards in the final judgment are interrelated, we reverse all financial aspects of the final judgment and remand this cause for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

BOARDMAN, A. C. J., and GRIMES, J., concur.


author: CAMPBELL, Judge.

text:
    ELLIS SARASOTA BANK & TRUST COMPANY, Appellant, v. John NEVINS, Appellee.
    No. 81-1320.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.

      Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellant.
    James E. Aker of Icard, Merrill, Cullis, Timm & Furen, P. A., Sarasota, for appel-lee.
   CAMPBELL, Judge.

Ellis Sarasota Bank & Trust challenges an order dissolving its writ of garnishment which attached appellee’s checking account with the National Bank of Sarasota.

On March 20,1980, appellant filed a complaint against appellee Nevins, based on a promissory note which he had personally endorsed. On April 21, 1980, appellee and his wife opened a checking account which they held as tenants by the entireties at the National Bank of Sarasota. Appellee, who is a pilot flying mainly international flights, is based at John F. Kennedy Airport in New York City although he lives in Sarasota. His paychecks are issued from Kansas City, Missouri, and he may either pick them up in New York or have them mailed to him or the bank of his choice. After opening the account with his wife, appellee elected to have his checks mailed to that account. The record is silent as to where his wages were sent prior to the opening of the account.

On April 2, 1981, appellant garnished ap-pellee’s entireties account in an attempt to partially satisfy the judgment it had obtained on the promissory note. On that date the account contained $2,214.92. As far as the record reveals, all of the funds in the account were wages paid by appellee’s employer except for $163.35 in travel reimbursement. Appellee moved to dissolve the writ of garnishment, alleging that because he was head of a family and because the money had been paid directly to the bank account by his employer for his personal labor and services, it was exempt from garnishment under section 222.11, Florida Statutes (1979). Appellant then filed a motion to implead appellee’s wife, Carol Nevins, in the garnishment proceedings, alleging that she claimed an interest in the garnished bank account. After two hearings the court dissolved the writ. The court’s order contains no findings of fact.

Appellant raises two issues for our consideration. It argues that the court erred in ruling that the wages of a head of a family are not subject to garnishment after they are paid by the employer. We agree. Hertz v. Fisher, 339 So.2d 1148 (Fla. 1st DCA 1976). The trial judge here seemed to lay great emphasis on what he perceived to be the intent of the legislature to protect money that is the result of wages earned by the head of a household. In following that perceived legislative intent, he concluded that section 222.11 continues to provide an exemption when the wages leave the protected hands of the employer and go directly into another resting place not normally subject to garnishment. Nevertheless, section 222.11 does not afford such protection. It does little more than protect an employer from the harassment of garnishment actions for employees’ debts.

The second issue raised by appellant is whether the deposit of a husband’s wages into an entireties account may constitute a fraudulent transfer as to the husband’s judgment creditors. The answer to that broadly framed question is that such a deposit into an entireties account may, but will not necessarily, constitute a fraudulent transfer. Only when the transfer of wages from the employer into the new resting place is clothed with fraud may those wages be reached upon a proper proof and showing of that fraud. The trial court never reached this issue, and there was no proof of fraud offered by appellant other than appellee’s establishment of the entireties account and his transfer of wages into the account after appellant filed its complaint. On the other hand, appellee offered no proof to show that the transfer was free of fraud.

Many circumstances which we are unable to address here enter into a determination of whether fraud exists. The sole fact of a transfer into an entireties account will not always be sufficient evidence of such fraud. Among some factors to consider are how long did the entireties account exist, what was its purpose, did a previous entireties account exist, and were all the funds in the account from one source.

In addition to showing fraud, a plaintiff must join both tenants in the proceedings before an entireties account can be made available to answer for the judgment debts of one of’ the tenants individually. Meyer v. Faust, 83 So.2d 847 (Fla.1955); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (Fla.1941); Art Advertising Co. v. Associated Press, 340 So.2d 1291 (Fla. 2d DCA 1977); Balding v. Fleisher, 279 So.2d 883 (Fla. 3d DCA 1973); Kornberg v. Krupka, 118 So.2d 790 (Fla. 3d DCA 1960). Here, the record is silent as to whether appellant’s motion to implead appellee’s wife was ruled on.

Accordingly, we reverse the order of the trial court and remand with instructions to reach the issues of the proper joinder of appellee’s wife in the proceedings and possible fraud in the transfer of appellee’s wages into the entireties account.

HOBSON, A. C. J., and GRIMES, J., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Carl MACIEJEWSKI, Appellee.
    No. 81-1627.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellant.
    Robert M. Focht, New Port Richey, for appellee.
   BOARDMAN, Judge.

The state appeals an order suppressing a pistol which the trial court found to be the fruit of a stop not based upon a founded suspicion. The state argues that the unre-futed testimony of the deputy who made the stop does not support the trial court’s finding. We agree and reverse.

Appellee was charged with carrying a concealed weapon. He moved to suppress the evidence. At the hearing on appellee’s motion, Deputy Phillips testified that while on routine patrol, he observed appellee’s automobile leaving a deserted county road on which was located a landfill and a multistory construction site. It was Sunday, and the deputy was aware that the landfill was closed and that no one was working on the construction site. Phillips observed what appeared to be lumber protruding out of the back of appellee’s vehicle, and he felt that possibly the lumber had been taken from the construction site.

The evidence clearly establishes that the deputy had a founded suspicion of criminal activity. It was therefore reasonable for him to make an investigatory stop and to temporarily detain appellee to ascertain his identity and inquire into the circumstances arousing the deputy’s suspicion. State v. Bastardo, 347 So.2d 463 (Fla. 2d DCA 1977). When appellee responded that he had been target practicing, it was reasonable for Phillips to inquire into the presence of any weapons, which led to appellee’s disclosure of the pistol, which he was carrying in a concealed ankle holder.

Accordingly, the trial court’s order is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

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


author: PER CURIAM.

text:
    Mark A. LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2227.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
   PER CURIAM.

Appellant’s counsel stipulated that the trial judge could sentence appellant as a habitual felony offender, however, the trial judge failed to set forth findings for the imposition of the enhanced sentence as envisioned by section 775.084, Florida Statutes (1979). Appellant was then sentenced to twenty-five years imprisonment for escape. Appellant appeals from the enhanced sentence.

The judgment is affirmed but the case is remanded for the imposition of a new sentence accompanied by the necessary findings as specified by section 775.084. In addition to appellant’s counsel’s stipulation, the written judgment and sentence should reflect that appellant was sentenced as a habitual felony offender.

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


author: LARRY G. SMITH, Judge. ERVIN, Judge,

text:
    Dorothy L. BELLE, Appellant, v. GENERAL ELECTRIC COMPANY and Electric Mutual Liability Insurance Company, Appellees.
    No. XX-351.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    Thomas W. Davis, Barton & Cox, Gaines-ville, for appellant.

      Anthony J. Salzman, Jones & Langdon, Gainesville, for appellees.
   LARRY G. SMITH, Judge.

The claimant appeals provisions of a workers’ compensation order relating to determination of her average weekly wage, and the allowance of offsets to the employer/carrier for group insurance benefits and premiums paid by the employer. We agree with appellant’s contention that it was error to allow offsets for disability benefits received by her under the group sickness and accident insurance policy furnished by the employer, and it was error to allow an offset for weekly insurance premiums paid by the employer during the eight-week period she remained off from work due to her injury. However, we reject appellant’s contentions that the value of vested vacation benefits should have been included in the computation of her average weekly wage. We also reject the contention that the deputy commissioner erred in denying (or failing to rule upon) appellant’s claim for temporary total disability from the period November 15, 1979 to the date of hearing. Affirmed in part and reversed in part.

It has been clearly held that the employer is not entitled to a set-off for sick leave benefits provided through group insurance paid for solely by the employer. Brown v. S. S. Kresge Company, Inc., 305 So.2d 191 (Fla.1975). The same ruling was applied to pension benefits to which the employer did not contribute. Domutz v. Southern Bell Telephone and Telegraph Company, 339 So.2d 636 (Fla.1976). In Brown, the court stated, however, that the worker’s compensation benefits, when combined with sick leave insurance benefits provided by the employee, should not exceed the claimant’s average weekly wage. 305 So.2d at 194. Although appellant contends that this limitation should not apply here since the group insurance benefits were clearly not intended as payments in lieu of compensation, appellant has cited no authority that would authorize us to disregard the directive contained in the Brown opinion.

Turning to that portion of the order allowing an offset for weekly group insurance premiums paid by the employer during the period of disability, we find that this court has recently declared such an offset to be improper. Reese v. Sewell Hardware Company, Inc., 409 So.2d 965 (Fla. 1st DCA 1981). The Reese case disposes of this issue.

With respect to appellant’s contention that the amount an employee is entitled to receive for paid vacations should be determined and included in the calculation of “average weekly wage,” by adding a fractional part of such vacation pay to the wages received for each working week, we note initially that appellant cites no authority on this point. We concede that the logic of including vacation benefits in the calculation is appealing, and there is at least some authority for this position. However, our reading does not convince us that Florida’s Workers’ Compensation Law clearly mandates consideration of vacation pay as an addition to the weekly compensation rate in arriving at an employee’s average weekly wage. Therefore, in the absence of any evidence or authority that vacation pay has been so considered over the long history of the act’s existence, we are persuaded not to disturb the ruling of the deputy commissioner on this point.

Finally, we conclude that since the order contains an explicit finding that the claimant was temporarily and totally disabled from July 2, 1979, to August 28, 1979, there is no merit to appellant’s contention that her claim for disability beyond the date November 15, 1979 was not ruled upon. Furthermore, we find the deputy commissioner’s order is supported by competent substantial evidence. There is an absence of medical evidence that claimant was unable to work subsequent to November 15, 1979 (the date she was discharged after returning to work for the same employer), and the evidence produced by appellant fails to establish a conscientious effort to return to work, and her inability to do so. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Lehigh Corporation v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). When the claimant’s job is no longer available, and there is no medical evidence of inability to work, it is essential that claimant seek work in order to establish temporary total disability. It must be shown either that the work search was successful, but claimant was unable to perform the work, or alternatively, that the work search was unsuccessful due to inability to work, rather than the unavailability of work. See Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981), and cases cited therein.

AFFIRMED in part and REVERSED in part, and REMANDED for further proceedings consistent herewith.

MILLS, J., concurs.

ERVIN, J., specially concurs with opinion.

ERVIN, Judge,

specially concurring.

I concur without reservation in all facets of the majority’s opinion except as to the last point raised, to which I concur with the result only. I agree that there was competent and substantial evidence before the deputy commissioner for him to conclude that claimant was not entitled to any disability benefits from November 15, 1979 through the date of the anticipated surgery, for there was no showing by medical evidence that claimant had any continuing disability, nor was there any showing that claimant had made a conscientious work search. As to the latter requirement, the evidence reveals that until two weeks before the hearing, claimant had applied for work only with her former employer, and thereafter with several other prospective employers, none of whom then had any available openings. As we stated in Pearson v. City of Miami Beach, 399 So.2d 1135, 1136 (Fla. 1st DCA, 1981): “The credibility and sufficiency of . . . evidence to establish a good faith work search . ... remains a factual matter to be determined by the deputy commissioner ... . ” I think, however, the rule the majority has sanctioned requiring a claimant to show that her work search was unsuccessful due to inability to work, rather than because of unavailability of work, ante, is an overly restrictive burden that is contrary to the majority rule. See my views expressed in Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA, 1982) (Ervin, J., dissenting and concurring).

      . Section 440.20(15), Florida Statutes (1979), is a substantial codification of former industrial relations commission rule 9, referred to in Brown, 305 So.2d at 193.

      . The group insurance plan provided disability pay for an “off-the-job illness or injury.” Claimant received payments under the policy apparently as the result of her accident being reported to the insurance company by her employer as not job related.

      . Cf. Domutz, supra, in which the court noted that the matter of total benefits exceeding the average weekly wage was not presented for decision in that case. 339 So.2d at 637.

      . Our own brief research has produced at least one case on the point, Employers Reinsurance Corp. v. Beaty, 576 S.W.2d 481 (Tex.Civ.App.1979). The Texas court concluded under statutory provisions differing somewhat from Florida’s, that remuneration for holidays and vacations should be included in determining the employee’s “average daily wage.”

      . Section 440.02(12), Florida Statutes (1978) provides, in part:
      (12) “Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer


text:
    Edmund P. RITA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. ZZ-449.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    Myron B. Berman, North Miami Beach, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State, 350 So.2d 834 (Fla. 2d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    CEDARS OF LEBANON HEALTH CARE CENTER, INC., and Corporate Group Service, Inc., Appellants, v. Gloria SUMMERSET, Appellee.
    No. AC-270.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.

      Steven Kronenberg, Adams, Kelley & Kronenberg, Miami, for appellants.
    Howard L. Silverstein, Silverstein & Hellman, Miami, for appellee.
   PER CURIAM.

The employer/carrier appeal from an order of the deputy commissioner awarding temporary total disability to the claimant, ordering payment of the bills of Dr. Mario Ambrose, a psychiatrist, and reserving jurisdiction to later rule upon the E/C’s responsibility for bills of certain other doctors. We affirm the award of temporary total disability benefits. However, we find an absence of the necessary finding of “good cause” to excuse the failure of Dr. Ambrose to file reports of injury and treatment within the time prescribed by Section 440.13(1), Florida Statutes. We find no error in the order of the deputy commissioner deferring a decision on bills for hospitalization at Mercy Hospital, and for the professional services of various physicians, pending proof of authorization, necessity and causal connection to the injuries sustained in the accident. Affirmed in part, reversed in part, and remanded.

Regarding the award of temporary total disability, we find from our examination of the record that the testimony and medical records of Dr. Ambrose were sufficient to support the deputy’s finding that claimant was unable to work because of her psychiatric condition, superimposed upon her residual pain and continuing physical disabilities and discomfort resulting from the accident and surgery undertaken to alleviate the injuries to her back. Dr. Amb-rose found that the claimant had a severe depressive reaction which he related to her accident and her unsatisfactory recovery from back surgery. Her accident interrupted her training for a position as an emergency medical technician, and she continued to have pain, inability to sleep, and numerous other physical manifestations following her surgery. She was seen by numerous doctors, some authorized, some not, and underwent further treatment following the initial laminectomy and disc excision performed by Dr. Bacon.

Dr. Bacon, as early as December 20, 1978, some six weeks following the laminec-tomy, reported to the employer/carrier that he felt the claimant would benefit from readmission to the hospital for four or five days for rehabilitation and for psychological evaluation. This recommendation was ignored by the E/C. He reported further on January 31,1979, that a psychological evaluation would be of benefit, but that claimant was opposed to this. Again, the E/C ignored Dr. Bacon’s recommendation. Claimant was finally hospitalized again in March, 1980, by her family physician, Dr. Menendez, for physical conditions and her depressed mental state. She was seen by a neurosurgeon and an orthopedic surgeon, both of whom felt she required psychiatric treatment. Dr. Menendez therefore called in Dr. Ambrose, who found her in a severely depressed psychiatric condition, which he treated with medication and psychotherapy. Dr. Ambrose found that her depressed state would prevent her from functioning in a work environment and his deposition and reports, buttressed by testimony from the claimant, indicated that she was temporarily and totally disabled from the date of the accident to the date of hearing. In addition to her psychiatric condition, the overwhelming weight of the evidence shows a physical impairment from her back injury ranging from 15 to 25%, and that she was unable to perform any work that involved heavy lifting or repeated bending, which of necessity ruled out continuing her employment as a nurse’s aide.

We conclude that the deputy commissioner’s findings of temporary total disability were supported by competent, substantial evidence. The parties have agreed, however, that the decretal order is in error in awarding temporary total disability benefits to continue “until claimant reaches maximum medical improvement.” That portion of the order is vacated, and it is ordered that temporary total disability benefits shall continue only for such period of time as claimant remains temporarily and totally disabled.

With respect to the E/C’s contention that it was error to order payment of the medical bills of Dr. Ambrose, we find there was ample evidence in the record to support the deputy’s finding that authorization was unnecessary. As mentioned above, the need for psychological evaluation was known to the E/C through the reports of Dr. Bacon almost from the beginning of the claimant’s long period of attempted recovery from her accident. In addition, it further appears that the claimant’s attorney, on April 9, 1980, specifically requested payment for the psychiatric evaluation and treatment provided by Dr. Ambrose, and for continued treatment by that doctor. This request was ignored. We agree with appellee’s assertion that the E/C here treated the psychiatric aspects of claimant’s injury as if they did not exist. We therefore concur in the finding of the deputy commissioner that the claimant was justified under these circumstances in seeking out and obtaining psychiatric care from her own physician. We note, parenthetically, that the claimant did not herself seek the services of Dr. Ambrose, but instead, he was brought in to the case by Dr. Menendez, after at least three physicians had noted the need for psychiatric care.

Although we have sustained the deputy commissioner’s finding that the failure to obtain prior authorization for treatment by Dr. Ambrose does not relieve the E/C of the burden of paying for his services, we are compelled to note the absence of any finding of “good cause” to excuse the failure of Dr. Ambrose to file reports as required by Section 440.18(1), Florida Statutes. This court has repeatedly insisted upon such a finding as an essential prerequisite to an order for payment for medical services where these reporting requirements have not been satisfied. Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981); Gory Associated Industries v. Thomas, 402 So.2d 1341 (Fla. 1st DCA 1981); Arkin Building Corporation v. Miller, 401 So.2d 874 (Fla. 1st DCA 1981); Walt Disney World Company v. Schiebel, 397 So.2d 1004 (Fla. 1st DCA 1981); Olson v. Wagner, 390 So.2d 1247 (Fla. 1st DCA 1980). On remand, the deputy commissioner must make specific findings on this issue, and in doing so, he should consider the purposes behind the reporting requirement and the prejudice, if any, to the E/C by reason of the untimeliness of Dr. Ambrose’s reports. Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970); Olson v. Wagner, supra.

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

LARRY G. SMITH, THOMPSON and WIGGINTON, JJ., concur.

      . The proceedings below were held in three separate sessions, on October 28, 1980, December 19, 1980, and February 19, 1981. The last “hearing,” on February 19th, was actually conducted by telephone. The parties stipulated on introduction of medical and hospital reports and records, and no issue was raised concerning the submission of bills for ruling, other than that submitted by Dr. Ambrose, to which objection was made by the E/C’s counsel. We agree with appellee’s contention that efforts were made by both sides to expedite the matter, and we find no abuse of discretion in the deputy’s reservation of ruling on the remaining medical bills pending further proceedings.

      . We do not view claimant’s expressed opposition to psychological evaluation as an “unreasonable refusal” to undergo necessary treatment so as to bar her later claim for the expense of such treatment. Cf. City of Jacksonville Fire Division v. McDaniel, 388 So.2d 1336 (Fla. 1st DCA 1980). Such evaluation and treatment was never offered nor ordered by the E/C.


author: WIGGINTON, Judge. MILLS, J.,

text:
    JOY FOOTWEAR CORPORATION and Maryland Casualty Company, Appellants, v. Ovidio FOLGUERAL, et al., Appellees.
    No. AC-309.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Michael D’Agostino, Miami, for appellees.
   WIGGINTON, Judge.

We affirm a workers’ compensation order in which the deputy commissioner found the claimant’s heart attack compensable and awarded medical benefits in addition to temporary and permanent total disability.

Folgueral is a 57-year-old immigrant with a sixth grade education and limited knowledge of the English language. He worked as a hotel valet, farm hand, chauffeur and ice cream maker in Cuba and Spain before coming to this country and finding work as a lens polisher. Eventually he was employed by Joy Footwear as a box maker, working his way up to the position of cutter’s helper and, finally, cutter. On the day of the injury, Folgueral was forced to lift and truck an approximately one-hundred pound roll of fabric by himself, unassisted by his assigned helper who, the claimant testified, abused and intimidated him, threatened him with violence and openly refused to assist. Shortly after the lifting incident, Folgueral experienced chest pains and shortness of breath. He was taken to a hospital where the treating physician diagnosed a heart attack, later opining that the threats and lifting were the proximate cause of the myocardial infarction.

Preliminarily, we agree with the deputy that Folgueral’s injury was compensable. The claimant established that the circumstances surrounding his heart attack fell within the parameters of Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla.1981). See also Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961). The combined testimony of Folgueral and his physician supported the deputy’s finding of temporary total disability.

The carrier argues reversible error occurred in the deputy’s award of the treating physician’s bills since the doctor failed to meet the reporting requirements of Section 440.13(1), Florida Statutes (Supp.1980). We affirm the deputy commissioner because the record clearly reflects that the doctor did not realize the injury was work-related, and he submitted bills to another carrier, which paid them. This receipt of payment led the doctor to believe he had done all the reporting that was required. As primary physician, his treatment of Fol-gueral necessarily continued. A confused legal situation or complex factual circumstances may constitute good cause for failure to file section 440.13 reports. Hardware Mutual Casualty Company v. Sutton, 197 So.2d 502 (Fla.1967).

Finally, the carrier urges that the award of permanent total disability must be reversed on the ground that Folgueral only looked for jobs which were beyond his physical abilities. However, the record does not support the carrier’s position. Folgueral testified that he applied for certain available delivery jobs but was refused employment due solely to his heart problems. Although the doctor placed limitations on Fol-gueral’s walking, lifting and driving, the carrier adduced no evidence that the delivery positions would exceed those limitations.

Accordingly, the compensation order is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., concurs.

MILLS, J., concurs in part and dissents in part, with written opinion.

MILLS, J.,

concurring in part; dissenting in part:

I agree with the majority that the deputy’s finding that claimant’s heart attack was compensable should be affirmed. Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla.1981), and Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961). Otherwise, I disagree with the majority and would reverse.

There is no direct medical testimony that claimant was totally disabled from 3 January 1978 to 20 June 1978. There is no evidence that he made a good faith work search for jobs within his physical limitations during that period. Therefore, I would reverse this finding on authority of Monex Corp. v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980).

The doctor admits that he did not comply with the reporting requirements of Section 440.13(1), Florida Statutes (Supp.1980). I would reverse the deputy’s requirement that the employer/carrier pay this bill because the deputy did not excuse the filing requirements as required by Section 440.13, Florida Statutes (Supp.1980).

A claimant cannot be found to be permanently totally disabled if he fails to make a good faith work search. Exxon Company U. S. A. v. Alexis, 370 So.2d 1128 (Fla.1978). In this case, claimant only sought three jobs as a delivery man which is clearly outside his doctor imposed physical limitations. I would reverse this issue because of this deficiency in claimant’s proof.


author: WIGGINTON, Judge.

text:
    SUNSHINE JR. FOOD STORES, INC., and Morrison Assurance Company, Appellants, v. Fred THOMPSON, Appellee.
    Nos. AC-416, AG-337.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    C. Wes Pittman of Urquhart & Pittman, P. A., Panama City, for appellants.
    Charles A. Wade, Fort Walton Beach, for appellee.
   WIGGINTON, Judge.

Appellant seeks review of the deputy commissioner’s order awarding Thompson temporary total disability compensation benefits for injuries sustained pursuant to an automobile accident that allegedly occurred in the course and scope of his employment. We must reverse.

At the time of the accident, claimant was a district manager for Sunshine Jr. Food Stores, Inc., and was in charge of ten stores in Okaloosa, Walton and Washington Counties located in West Florida. Included among claimant’s responsibilities was occasional observation of the routine of store clerks working in his district. At 9:00 on the evening of the accident, claimant, joined by his two minor children, drove a short distance from his home to inspect Store Number 308, located on U. S. Highway 98, near Wynn Haven in Okaloosa County. He observed the store clerk from his parked car for a short period of time, then, becoming bored, proceeded to drive west to “kill time” until he could return to Store Number 308 to inspect the store after its closing at midnight.

Claimant drove west on Highway 98, leaving Okaloosa County and his district. He continued in the direction of Pensacola, planning to get gas and to kill about an hour and a half of time. In doing so, he entered Gulf Breeze, turned off U. S. 98 and crossed the toll bridge leading to Pensacola Beach in Escambia County. Claimant drove easterly, returning along Navarre Beach Road which parallels the Gulf of Mexico, and which would ultimately lead him to U. S. Highway 98. This deviation encompassed approximately 40 miles. However, before he returned to the main highway, claimant missed a turn and skidded into a roadway sign, causing the accident in question.

The deputy commissioner held the accident to be compensable, finding that although the trip encompassed both business and pleasure, the predominant purpose for the trip involved business.

The deputy erred in awarding temporary total disability benefits to claimant. The injury suffered by claimant was noneom-pensable because it was not incurred within the course and scope of his employment.

It is the general rule in Florida that an employee who deviates from his employment to engage in a personal errand is not entitled to compensation for damages sustained in an accident occurring before he returns to the course he was pursuing in the interest of the employer. N. & L. Auto Parts Co. v. Doman, 111 So.2d 270 (Fla. 1st DCA 1959); Maroney v. Edward A. Kelly & Sons, Inc., 195 So.2d 208 (Fla.1967); Concrete & Metal Form Erectors, Inc. v. Volkers, IRC Order 2-2706 (1973).

In N. & L. Auto Parts Co., claimant was a route salesman who, on the date of the injury, was registered for the night at a motor court, intending to call on customers of the company the next day. After refreshing himself, claimant called a taxi and drove to a nearby town to see a movie. Upon returning to the motel and after debarking from the cab, claimant walked along the driveway in the direction of his room. While walking across the lawn to reach his door, claimant’s ankle turned and he fell, breaking his leg.

In holding this injury to be compensable, the court enunciated the general rule that “an employee whose work entails travel away from the employer’s premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a nonessential personal errand.” 111 So.2d at 271. If the facts should indicate a distinct departure, claimant would not be within the scope of his employment until he returned to the employer’s place of business or point of departure. Id. at 272; see also Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495 (1940). The court stated that claimant deviated from the course of his employment when he drove into town to see a movie. Had he been injured while on this private mission, either going into town, or returning to the motel, such injury would not have been compensable. However, the cpurt pointed out that claimant’s deviation had been completed and had come to an end when he debarked from the taxi on his return to the motel. 111 So.2d at 272.

In the case now under consideration, claimant similarly deviated from the course of his employment when he elected to take a forty-mile joyride along Pensacola Beach in order to kill time. The cases relied on by the deputy commissioner and by claimant for the proposition that claimant’s injury is compensable, as sustained during a trip bearing a predominant business purpose, are readily distinguishable from the instant case. In those cases, the injuries suffered by the claimants arose from activities which were directly linked to, or which bore a de minimis geographical deviation from a business purpose. Taylor v. Dixie Plywood Co. of Miami, Inc., 297 So.2d 553 (Fla.1974); Zipperer v. Peninsular Life Ins. Co., 235 So.2d 473 (Fla.1970); Scholastic Systems, Inc. v. LeLoup, IRC Order 2-2560, cert. denied with opinion, 307 So.2d 166 (Fla.1975); Krause v. West Lumber Co., 227 So.2d 486 (Fla.1969).

The workers’ compensation act is remedial legislation and should be liberally construed to effectuate the purpose of its enactment. N. & L. Auto Parts Co., 111 So.2d at 272. However, granting compensation in the instant case, where claimant’s deviation was so flagrant, would only serve to distort the purpose of the Act beyond reason and logic.

Accordingly, the award of temporary total disability benefits by the deputy commissioner is reversed.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Louis TERLINGO, Jr., Louis Terlingo, Sr., and Margaret L. Terlingo, Appellees.
    No. 79-2146.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley and John Buso, Miami, for appellant.
    Rossman & Baumberger and Robert D. Peltz, Miami, for appellees.
    Before HUBBART, C. J., and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Tiedtke v. Fidelity & Casualty Co. of New York, 222 So.2d 206 (Fla.1969); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978).


text:
    Myra BODEK, Appellant, v. Ralph BODEK, Appellee.
    No. 80-1580.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rehearing Denied Feb. 22, 1982.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee, Miami, for appellant.
    Heller & Kaplan and Robert Golden; Steel, Hector & Davis and Joseph P. Klock, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

We review by this appeal a final judgment of marriage dissolution in which an attack is made on the alimony award, the absence of a reservation of jurisdiction to review the said alimony award, and the denial of a claim to certain insurance proceeds. Despite the able brief and argument of appellant’s counsel, we are not persuaded that any reversible error was committed below as the judgment appealed from, although not the only judgment which could have properly been entered in this cause, was well within the trial court’s permissible discretion to enter based on this record. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed.


text:
    Marvin BLUM for the use and benefit of Insurance Company of North America, Appellant, v. MERRILL STEVENS DRY DOCK COMPANY, Appellee.
    No. 80-2208.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Lane, Mitchell & Harris and David R. Canning, Miami, for appellant.
    Smathers & Thompson and G. Morton Good, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

On the evidence presented, the trial court properly found that, at the time of the disappearance of the vessel, there was no contract of bailment because there was no completed delivery of possession, custody, or control. Florida Small Business Corporation v. Miami Shipyards Corporation, 175 So.2d 46 (Fla.3d DCA 1965); Stegemann v. Miami Beach Boat Slips, Inc., 213 F.2d 561, 565 (5th Cir. 1954); cf., Empire Tool Company v. Wells, 227 So.2d 76 (Fla. 4th DCA 1969).

Affirmed.


text:
    James Dexter BROWN, a/k/a Anthony Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2352.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Bennett H. Brummer, Public Defender and Arthur J. Leibell, Jr., Hollywood, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).