author: GRIMES, Acting Chief Judge.

text:
    Frank Michael AMELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-2597.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.
    Rehearing Denied Sept. 30, 1983.

      John W. Persse and Gary W. Pollack of Persse & Pollack, Coral Gables, for appellant.
    Jim Smith, Att. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant contends that the evidence was legally insufficient to convict him of burglary of a dwelling and first degree grand theft.

Terry Williams, the owner of a gold and silver brokerage business, kept some of his inventory at his home. Williams’s home was burglarized on the morning of November 5, 1981, and inventory which he valued at from $30,000 to $70,000 was stolen. Williams’s home was equipped with three burglar alarms. However, they had been rendered inoperative by the removal of an electric meter box from its socket on the outer wall of Williams’s residence. A latent fingerprint taken from the glass of the meter box which was lying on the ground matched that of the appellant.

When appellant was arrested, the police drove him by a house and pointed it out as being the one owned by Terry Williams. In response to a later inquiry by the police, appellant denied ever having been to Williams’s house.

On a few occasions prior to the date of the burglary, appellant had accompanied his father-in-law to Williams’s store. Once, Williams invited appellant’s father-in-law to his home, and in the course of exhibiting some inventory which he hoped to sell, he explained to him how his burglar alarms worked. Williams specifically denied that appellant had ever been to his home.

Appellant’s father-in-law testified that appellant had been with him when he visited Williams’s home. The appellant concurred in this, though he said he had never gone inside. Appellant did not recall touching the meter box and could only account for his fingerprint by the fact that he might have inadvertently touched it when he obtained a drink of water from a nearby hose. He attributed his earlier denial of ever having been to the house to confusion over Williams’s name. He said he only knew him as Terry. The appellant also presented several witnesses whose combined testimony, albeit somewhat conflicting, tended to show that appellant was somewhere else on the morning of the burglary.

The only evidence connecting appellant with these crimes was his fingerprint on the meter box coupled with the fact that he denied to the police ever having been at Williams’s home. Where fingerprint evidence is the sole evidence relied upon to convict, the circumstances must be such that the print could have been made only when the crime was committed. J.C. v. State, 377 So.2d 731 (Fla. 3d DCA 1979); Williams v. State, 308 So.2d 595 (Fla. 1st DCA), cert. denied, 321 So.2d 555 (Fla.1975). Therefore, where the print is found in a location accessible to the general public, there must be other evidence to show that the print was made at the time of the crime. Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970); Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965). The rule is somewhat different where the print is found in a place or on a thing not generally accessible to the public. Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972). Thus, in Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982), the court explained:

Where, however, the prints are located in a place, on an object, or on a particular part of an object to which the general public does not have access, the hypothesis that the print was not placed on the object at the time of the crime is not one which the court must declare reasonable as a matter of law, and it remains for the jury to determine its reasonableness. This is so because in the latter instance we need not assume that the defendant as a member of the general public placed his fingerprint at the place or on the object at a time other than the crime. Therefore, when the State proves that the print was found in a place or on a thing not accessible to the general public, such proof, standing alone, is legally sufficient, and the jury may infer from it that the print was made at the time of the crime....
If, however, the defendant shows through testimony that he, unlike a member of the general public, had access to the place or object at a time other than the time of the crime so as to reasonably explain the existence of his prints, the version of events related by the defense must be accepted as true unless contradicted by other proof showing the defendant’s version to be false.

419 So.2d at 813-14 (footnotes omitted).

The electric meter box at Williams’s house was not an object to which the general public had access. Despite his previous denial that he had ever been to Williams’s house, appellant tried to explain how his print might have been left on the meter box. Even if we were to accept his explanation as being reasonable, it was directly contradicted by Williams’s testimony that appellant had never been to his house. Therefore, the appellant was not entitled to a judgment of acquittal as a matter of law. Since the jury rejected his hypothesis, we must do likewise. See Sorey v. State; cf. Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967) (where defendant’s fingerprints were found on a lower drawer of a file cabinet located in a private portion of a dentist office, defendant’s testimony that he had rested on a couch near the cabinet while recovering from a tooth extraction several months before did not entitle him to a judgment of acquittal in that the dentist testified that he had no recollection of the defendant being a patient).

AFFIRMED.

RYDER, J., and EVANS, VERNON W., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Vercil Frank Woodrow SNIDER, Appellee.
    No. 83-41.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.
    Rehearing Denied Sept. 23, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals the trial court’s order granting appellee Snider’s motion for a new sentencing hearing and modifying appel-lee’s sentences. We reverse.

Appellee was charged by information with possession of cocaine with intent to distribute (count 1) and possession of Meth-aqualone with intent to distribute (count 2). His motion to suppress the evidence being denied, he pled nolo contendere to both counts, reserving his right to appeal the denial of his motion to suppress. Following preparation and consideration by the trial judge, Judge Love, of a presentence investigation report (PSI), appellee was given consecutive sentences of three years in prison on count 1 and five years probation on count 2. This court subsequently affirmed appellee’s direct appeal. Snider v. State, 411 So.2d 399 (Fla. 2d DCA 1981).

Nearly a year after disposition of his direct appeal and the trial court’s receipt of this court’s mandate, appellee, who had been free on bond, finally turned himself in to begin serving his prison sentence. At the same time, his attorney filed a motion for reconsideration of appellee’s sentence, specifically requesting that it be reduced to probation with the special condition that he successfully complete a drug rehabilitation program. The basis for the motion was that appellee was a heroin addict whose “main ‘crimes’ have been against himself as opposed to society” and who had the potential to be a productive member of society if he could complete a drug rehabilitation program, which was not available in the prison system.

The successor judge who heard appellee’s motion, Judge Dewell, correctly recognized that he did not have jurisdiction to modify appellee’s sentence under Florida Rule of Criminal Procedure 3.800, assuming the original sentence was legal, inasmuch as the modification had not been made within sixty days after receipt of this court’s mandate. White v. State, 404 So.2d 804 (Fla. 2d DCA 1981). However, after reviewing the court file, including the PSI; conferring with Judge Love; hearing arguments of counsel; and receiving written and telephone communications from representatives of The Door, a substance abuse treatment program with which appellee had been involved, Judge Dewell concluded that (1) execution of appellee’s prison sentence would defeat any hope of rehabilitating appellee, (2) Judge Love would not have sentenced appellee to prison had he been fully and correctly informed of appellee’s addiction and psychological profile, and (3) appellee’s motion could properly be treated as a Rule 3.850 motion, since the confidential portion of the PSI, which was not made available to appellee, contained the following incorrect information:

The Subject’s personality is as make-shift as the occasion; he relating (sic) how he deceived his attorney by claiming to be a drug addict for the sympathy associated with a reduced fee. Such attempts at manipulation tend to promote a general non-amenability (sic) to supervision. For the protection of society, a maximum Florida State Prison sentence is recommended.

Judge Dewell therefore changed appellee’s three-year prison sentence on count 1 to three years probation with the special conditions that he serve five months in jail and successfully complete The Door's residential drug rehabilitation program; the order also made minor changes in the special conditions of the probationary period on count 2.

We reverse because the PSI has not been shown to contain incorrect information.

Judge Dewell appears to have interpreted the quoted portion to mean that appellee was not actually a drug addict. However, we disagree with this interpretation. The quoted language describes appel-lee as a manipulator and cites as an example appellee’s relating that he had deceived his attorney by claiming to be a drug addict. The individual preparing the PSI may well have considered appellee’s claim of deception to be untrue, the claim itself thus constituting the example of manipulative behavior. The claim is simply recited without elaboration or assessment of its veracity. Moreover, the PSI nowhere asserts that appellee is not a drug addict.

More important, even if Judge Love had interpreted the language in question as Judge Dewell appears to have done, Judge Love obviously did not rely on any apparent assertion that appellee was not a drug addict. On the contrary, it is clear from some of Judge Love’s remarks at the original sentencing hearing, including the judge’s requirement that appellee receive drug counseling as a special condition of his probation on count 2, that Judge Love considered appellee to be a drug addict. Thus, appellee was not prejudiced by incorrect or misleading information contained in the confidential portion of the PSI.

It may well be true that Judge Love would not have imposed a prison sentence on appellee had the judge had more complete information concerning appellee’s addiction and psychological profile. However, if appellee considered the portion of the PSI furnished to him to contain insufficient information, he had the opportunity to seek a postponement of sentencing so that the PSI could be enlarged or so that he could himself present additional pertinent information to the sentencing judge. Moreover, appellee had approximately eleven months, from the date of his original sentencing to sixty days after the trial court’s receipt of our mandate on his original appeal, to gather mitigating information and seek a reduction in his sentence under Rule 3.800. His failure to do so in a timely fashion bars him from the relief sought in the motion at issue on this appeal.

Accordingly, Judge Dewell’s order modifying appellee’s original sentence is REVERSED and the cause REMANDED with directions to reinstate the original sentence imposed on appellee by Judge Love.

GRIMES and DANAHY, JJ., concur.


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

text:
    PENINSULAR FIRE INSURANCE COMPANY, an insurance corporation, Appellant, v. William S. WELLS, Jr., Appellee.
    No. AO-336.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.
    Rehearing Denied Sept. 26, 1983.

      George D. Gabel, Jr., James J. Taylor, Jr., of Wahl & Gabel, Jacksonville, for appellant.
    Carl D. Dawson of Dawson, Galant, Sulik, Nichols & Levy, Jacksonville, for appellee.
   NIMMONS, Judge.

Peninsular Fire Insurance Company appeals from an adverse judgment entered pursuant to a jury verdict in favor of appel-lee Wells.

Wells, a commercial fisherman and the owner of a fishing fleet including a shrimping vessel known as the “Foxey Lady,” sued Peninsular to recover on a policy of marine hull insurance issued to cover certain marine risks.

On February 19, 1980, the Foxey Lady sailed from Key West on a fifteen to eighteen day routine shrimping voyage to the “Tortugas Grounds” in the Gulf of Mexico off Key West. She was under the command of her captain, Julius Singleton. When she did not return and nothing was heard from Captain Singleton or anyone else regarding the fate of the vessel or its crew, Wells filed the instant suit on August 20, 1981, seeking recovery on the policy on the alternative grounds that the Foxey Lady sank due to perils of the sea or that she was lost due to barratry of the master, both of which risks were covered under the policy.

Approximately six weeks prior to the June 21, 1982, trial, Peninsular located the Foxey Lady in Cartagena, Colombia. She had been stripped of her motors and equipment and was virtually a total loss. Meanwhile, Wells, who had made various efforts to discover the fate of the Foxey Lady developed a lead indicating that Captain Singleton was alive and living in Texas. Singleton was located, arrested and returned to Florida in October, 1981, on a charge of theft of the vessel. Singleton gave an unsworn statement to a State Attorney’s investigator in Key West which was an exculpatory statement insofar as the alleged theft of the vessel was concerned although it tended to inculpate him in a marijuana smuggling scheme which, according to Singleton’s statement, was initiated by Wells. Shortly thereafter, Singleton’s deposition was taken and he refused to testify on Fifth Amendment grounds. We will address this statement further, infra, when we discuss appellant’s point that the trial court erred in excluding Singleton’s statement at trial, Peninsular having been unsuccessful in procuring Singleton’s attendance at trial.

As grounds for reversal, appellant asserts: (1) that the trial court erred in denying its motion for summary judgment because the cause of the vessel’s loss was its seizure by governmental authority, a peril excluded under the policy; (2) that the evidence at trial was insufficient to prove bar-ratry of the master as the cause of the appellee’s loss and thus Peninsular was entitled to a directed verdict; and (3) that the court erred in precluding Peninsular at trial from introducing Captain Singleton’s statement as a declaration against interest. We affirm on all points.

I. SUMMARY JUDGMENT — THE SEIZURE EXCLUSION

Peninsular asserts that the evidence before the court on its motion for summary judgment showed that the proximate cause of the loss was not the alleged barratry but the vessel’s seizure.

The policy provided for coverage of the following marine risks:

Touching the adventures and perils which this company is contented to bear and take upon itself, they are of the waters named herein, fire, lightning, earthquake, assailing thieves, jettisons, barratry of the Master and Mariners and all other like perils that shall come to the hurt, detriment or damage of the vessel named herein.

The policy excluded loss caused by governmental seizure:

Notwithstanding anything to the contrary contained in this policy, this insurance is warranted free from any claim for loss, damage or expense caused by or resulting from capture, seizure, arrest, restraint or detainment, or the consequences thereof or of any attempt thereat, or any taking of the vessel, by requisition or otherwise, whether in time of peace or war and whether lawful or otherwise .... (emphasis added)

We examine the record facts which were before the trial court to determine whether Peninsular was correct in its assertion that there was no genuine issue regarding the proximate cause of the loss, Peninsular contending that such cause was the excluded peril of seizure and not the covered risk of barratry. Movant Peninsular has a heavy burden of showing that there was no genuine issue of material fact remaining for trial. E.g. Visingardi v. Tirone, 193 So.2d 601 (Fla.1967).

At some point after Peninsular located the Foxey Lady in May, 1982, Peninsular acquired two marine survey reports dated respectively July 18, 1980, and February 1, 1982, which reports were submitted by marine surveyors to the port captain of Cart-agena. From these reports, the following information is gleaned. The July, 1980, report indicates that the Foxey Lady arrived ■at Cartagena to undergo repairs on June 9, 1980, under the command of Captain Singleton. At the time of its arrival in Cart-agena, it was in fairly good condition and the necessary repairs were estimated to take six days once the vessel went on dry-dock. At the time of the July, 1980, marine survey, four crew members, including Captain Singleton, occupied the Foxey Lady.

The subsequent report dated February 1, 1982, recites in part:

The vessel arrived at the port of Cartage-na on June 9, 1980, from San Andres to undergo repairs. Subsequently, it sailed for Aruba and was seized by a coast guard of the National Customs, and it has remained in port since then.
The vessel has been in port for over a year and its papers are in the hands of a lawyer. During this time the vessel was inactive and all its equipment and machinery were taken off.

The report stated that the vessel had been abandoned and was stripped of its main engine and that the engine room was in very bad condition. The hull was also described as being in poor condition. Overall, the Foxey Lady was described as being in very poor condition requiring major repairs estimated to take one month.

There was no indication as to when the vessel was seized or the reason for its seizure. There was no indication as to whether the owner, had he known the whereabouts of the Foxey Lady, might reasonably be expected to have obtained the release of the vessel from the authorities. There was no indication of what became of the crew members. There was no indication as to whether the repairs recommended in the July 18, 1980, report were made and there is little indication as to its condition when it was subsequently seized although the February 1,1982, report does state that the vessel “has been in port for over a year” and “during this time the vessel was inactive and all its equipment and machinery were taken off.”

When the Foxey Lady was overdue from her routine fishing voyage, Wells notified the Coast Guard and his insurer. He also inquired of numerous persons including masters of other vessels regarding leads as to the fate of the vessel.

When Captain Singleton was returned to Florida in October, 1981, Wells took his deposition to attempt to discover what became of the Foxey Lady. Singleton, however, specifically refused to answer any questions concerning the vessel’s fate, asserting his Fifth Amendment privilege.

Wells’ affidavit, which was among the records considered by the trial court in denying Peninsular’s summary judgment motion, stated that he had no knowledge of the location of the Foxey Lady until Peninsular located it in Cartagena and reported the same to Wells in May, 1982. He also stated that had he known of the vessel’s whereabouts, he would have done whatever was necessary to recover it since it was worth more than the insurance coverage.

Peninsular’s position is that it was entitled to summary judgment because the evidence which was before the court in connection with its summary judgment motion established, as a matter of law, that the seizure and not barratry of the master was the proximate cause of the vessel’s loss. Peninsular relies in part upon Nautilus Virgin Charters, Inc. v. Edinburgh Insurance Company, 510 F.Supp. 1092 (D. Maryland 1981), aff’d 673 F.2d 1314 (4th Cir.1982), cert. denied, 456 U.S. 945,102 S.Ct. 2012, 72 L.Ed.2d 468 (1982). There the charterer’s son, unbeknownst to the owner, took the chartered yacht TEHO beyond the navigational limits of the insurance policy, into the territorial waters of Columbia for the purpose of drug smuggling. On January 17, 1979, the Columbian Navy discovered 150 bales of marijuana on board, seized the vessel and arrested all persons on board. Three weeks thereafter, Nautilus, the charterer, was informed of the above by the United States Coast Guard and Nautilus made attempts to recover the vessel from the Colombian authorities but to no avail. When the insurance company denied the claim under the policy, the owners and Nautilus instituted suit to recover for the loss of the vessel. The court in Nautilus dealt with the interrelationship between barratry as a covered risk and seizure as an exclusion, the court ultimately concluding that the proximate cause of the loss was the seizure and that the insurance company was entitled to summary judgment. In reaching that conclusion, the court in Nautilus began its discussion of the proximate cause issue as follows:

The Supreme Court has defined “proximate cause” in the insurance field as being “that cause which is most nearly and essentially connected with the loss as its efficient cause.” Standard Oil Co. v. United States, 340 U.S. 54, 58, 71 S.Ct. 135, 137, 95 L.Ed. 68 (1950).

The court in Nautilus relied in part upon the House of Lord’s decision in Cory v. Burr, 8 App.Cas. 393 (1883), a case involving the barratry/seizure/proximate cause issue. There, the master committed barratry by taking his vessel, without the knowledge of the owner, into Spanish waters to smuggle contraband tobacco. While in Spanish waters, the vessel was seized by a Spanish revenue cutter. The owner’s insurance policy covered barratry but excluded seizure. The Nautilus court quoted the Cory decision as follows:

Now here they are “warranted free from capture and seizure and the consequences of any attempt thereat.” It was argued that here they have not been warranted from barratry. That is true, but the bar-ratry itself would have occasioned no loss at all to the parties insured. If it had not been that the Spanish revenue officers, doing their duty (they were quite right in that respect), had come and seized the ship, the barratry of the captain in coasting along there, covering as we should call it along the coast, in order that the small smuggling vessel might come and take the tobacco, would have done the assured no harm at all. The underwriters do undertake to indemnify against barra-try; they do undertake to indemnify against any loss which is directly sustained in consequence of the barratry; and in this case, as I said before, I think the seizure was as direct a consequence of the barratry as could well be. But still, as Mr. Justice Field said, it was the seizure which brought the loss into existence — it was a case of seizure.

[510 F.Supp. at 1098]

As stated in Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422 (1937):

[T]he proximate cause is the efficient cause and not merely incidental cause which may be nearer in time to the result. [302 U.S. at 562, 58 S.Ct. at 374]
* * * * * if!
The cause which is truly proximate is that which is proximate in efficiency. That efficiency may have been preserved although other causes may meantime have sprung up which have yet not destroyed it, or truly impaired it, and it may culminate in a result of which it still remains the real efficient cause to which the event can be ascribed. [302 U.S. at 563, 58 S.Ct. at 374]
* * * * * *
All the consequences naturally flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself. [302 U.S. at 565, 58 S.Ct. at 375]

See also Blaine Richards & Co., Inc. v. Marine Indemnity Ins. Co. of America, 635 F.2d 1051, 1054 (2nd Cir.1980); and 5A Appleman, Insurance Law & Pr. § 3254:

That cause is considered proximate which sets other causes in motion, and an intervening act is not a proximate cause unless it is efficient to break the caused connection. It is, therefore, the efficient cause which is considered, and not necessarily a mere incidental cause which may be nearer in time to the result. Thus, the mere operation of natural forces to which a disaster within the coverage of the policy has given place would not break the chain of causation.

No useful purpose would be served by prolonging our discussion of the barratry/seizure/proximate cause issue or Peninsular’s motion for summary judgment. We reject Peninsular’s assertion of a virtual per se rule which would deny coverage any time there is both barratry of the master and a seizure. The proximate cause principles enunciated in the authorities relied upon by Peninsular do not support its claim of entitlement to summary judgment given the relative dearth of evidence which was before the trial court regarding the facts and circumstances surrounding the vessel’s seizure including the particular point in time when the vessel was seized and its condition at the time of seizure. Moreover, unlike the situation in the Nautilus case, there is no indication as to whether the Columbian authorities would have continued to detain the vessel had the owner known of its whereabouts and sought its release. In the context of the facts which were before the court at the time of Peninsular’s summary judgment motion, to hold as a matter of law that the proximate cause of the loss or damage to the vessel was the seizure would be an unwarranted extension of the above-referred authorities and of generally accepted notions of proximate cause. The trial court correctly denied the summary judgment motion.

II. BARRATRY OF THE MASTER

We note that the policy’s seizure exclusion was raised by Peninsular only in connection with its summary judgment motion. (See footnote 4, supra.) No effort was made to defend at trial on the basis of such exclusion. Indeed, no evidence was presented at trial indicating that the Foxey Lady had been seized at all. Therefore, in analyzing the issue regarding the sufficiency of the evidence at trial to prove loss due to barratry, we must disregard the marine survey reports considered on the summary judgment motion indicating a seizure inasmuch as no evidence of seizure was introduced at trial.

The testimony at trial concerning the ultimate location of the vessel was that it was finally discovered in its damaged condition in a port in Cartagena by Peninsular in May, 1982, over two years after it disappeared. Although Peninsular asserted as a defense at trial that Wells, as the insured, failed to take reasonably necessary steps to preserve and recover the vessel under the so-called “sue and labor” clause of the policy and the jury was instructed on that defense, Peninsular has not asserted on appeal any error in connection with the jury’s implicit rejection of that defense. We must, therefore, assume that the owner took reasonably necessary steps to recover and preserve the vessel.

Peninsular asserts on appeal that the evidence at trial was insufficient to prove bar-ratry of the master as the cause of the owner’s loss. An explanation of the generally accepted meaning of the term barratry as used in marine insurance policies is set forth in National Union Fire Ins. Co. v. Republic of China, 254 F.2d 177, 182 (4th Cir.1958):

The classic definition of barratry was given by Lord Ellenborough, C.J., in Earle v. Rowcroft, 8 East 126, at 138: “ * * * a fraudulent breach of duty by the master, in respect to his owners; or, in other words, a breach of duty in respect to his owners, with a criminal intent, or ex ma-leficio, is barratry. And with respect to the owner of the ship or goods, whose interest is to be protected by the policy, it can make no difference in the reason of the thing, whether the prejudice he suffers be owing to an act of the master, induced by motives of advantage to himself, malice to the owner, or a disregard to those laws which it was the master’s duty to obey, and which (or it would not be barratry) his owners relied upon his observing.” The English Marine Insurance Act, 1906, Sch. I, Rule 11, provides: “The term ‘barratry’ includes every wrongful act wilfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer.” This definition is accepted in America as well as in England. Arnould, see. 839; 1 Phillips on Insurance 5th ed., N.Y., 1867), sec. 1062; Patapsco Ins. Co. v. Coulter, 3 Pet. 222, 28 U.S. 222, 7 L.Ed. 659; Greene v. Pacific Mutual Ins. Co., 9 Allen 217, 91 Mass. 217. Wilful nonfea-sance of the master, doing nothing, if productive of mischief to the owner, may be barratry. Patapsco Ins. Co. v. Coulter, supra. If the captain deviates, or is compelled by the crew to deviate the vessel from its proper course and to put into an unauthorized port in fraud of his or their duty to owners, it is barratry. So is unreasonable or criminal delay. Arnould, secs., 844, 847.

See also Fishing Fleet, Inc. v. Trident Ins. Co. Ltd., 598 F.2d 925, 927 (5th Cir.1979).

Examination of the trial evidence leads us to conclude that there was sufficient evidence to warrant a finding by the jury that the master committed acts of barratry. Captain Singleton was authorized to take the Foxey Lady on a routine fishing voyage. The vessel disappeared and neither he nor any other crew member communicated with the owner. The owner, after reasonable efforts to determine the whereabouts of the vessel and its crew, finally located Captain Singleton 20 months later in Texas. He refused to answer any questions regarding the fate of the Foxey Lady. The vessel was finally located in a severely damaged condition in a port in Cartagena, Colombia, 27 months after Captain Singleton disappeared with it. We hold that this constituted barratry and that the jury was warranted in concluding from the evidence at trial that the damage to the vessel was a consequence naturally flowing from the barratry. No evidence was presented at trial which would break the chain of causation of barratry as the cause of appellee’s loss and the trial court properly denied the motion for directed verdict.

III. ADMISSIBILITY OF STATEMENT

At trial, Peninsular proffered the testimony of Allen Strickrott, an investigator with the State Attorney’s Office in Monroe County, concerning the oral statement made to him by Captain Singleton upon his return from Texas. Peninsular claims that the trial court reversibly erred by sustaining Wells’ objections thereto on the grounds of hearsay.

Singleton, who had been arrested and was at the time in custody on charges of the theft of the Foxey Lady, made an un-sworn statement which purported to exculpate himself from the theft charges. The gist of the story he told Strickrott was that on the evening that the Foxey Lady left Key West, Wells instructed Singleton to take the vessel to a certain location where he would rendezvous with some Latin males who would board the vessel and that Singleton was to relinquish control of the vessel to them at which time they would proceed to Colombia. Singleton stated that, although Wells never mentioned drug smuggling, it was Singleton’s understanding that such was the purpose of the voyage for which Wells was to pay Singleton $50,000 when Singleton safely returned the Foxey Lady. Singleton said that, as per Wells’ instructions, he relinquished control of the vessel to the Latin males at Dry Tortugas after which they proceeded to Aruba and then on to Cartagena. They then proceeded on to Santa Marts, Columbia, where a deal was made for 30 tons of marijuana and Singleton said that he helped load the marijuana on board the vessel. Singleton said he was left ashore and next saw the Foxey Lady in a Colombian shipyard noting that it had been “shot up.” He said he was unable to secure the vessel’s release and spent the next year and a half “trying to figure out how he was going to réturn to the United States.”

As previously noted, Singleton, after having given the above unsworn statement, was deposed in this case but refused to testify on grounds of self incrimination. It is undisputed that he was unavailable at trial, Peninsular having been unable to procure his attendance within the meaning of Section 90.804(l)(e), Florida Statutes (1981). Peninsular contends that the trial court erred in refusing to allow into evidence the statement of Singleton as a declaration against interest of an unavailable witness under Section 90.804(2)(e), Florida Statutes, which provides in pertinent part:

(2) Hearsay Exceptions. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
* * * * * *
(c) Statement against interest. — A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject him to liability or to render invalid a claim by him against another, so that a person in the declarant’s position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. A statement or confession which is offered against the accused in a criminal action, and which is made by a codefendant or other person implicating both himself and the accused, is not within this exception.

Peninsular correctly contends that the above statute encompasses declarations against penal interest as well as those against pecuniary and proprietary interests. See Baker v. State, 336 So.2d 364 (Fla.1976); Brinson v. State, 382 So.2d 322 (Fla. 2nd DCA 1979). However, we do not agree that Singleton’s statement qualifies as a declaration against his penal interest within the meaning of the above provision of the Evidence Code. We do not believe that it can be fairly said that a person in declarant Singleton’s position would not have made the statement described above unless he believed it to be true. Declarant Singleton had been returned from Texas and was in custody on account of the charge of the theft of the vessel. It is reasonable to infer that the theft charge was his immediate and overriding concern. Why not attempt to distract attention from himself by fabricating a drug smuggling conspiracy with the theft victim as the mastermind? The theory supporting admissibility of declarations against penal interest, i.e. the inherent reliability of such statements by reason of the lack of motivation of the declarant to fabricate, see Brinson v. State, supra, is absent in this case. The proffered testimony regarding Singleton’s statement was inadmissible hearsay and the trial judge so ruled.

The judgment in favor of appellee Wells is therefore AFFIRMED.

JOANOS, J., concurs.

LARRY G. SMITH, J., specially concurs with opinion.

LARRY G. SMITH, Judge,

specially concurring with opinion.

I concur in the opinion, the discussion, and the result reached on every issue, with one exception. I question the reviewability of the trial court’s denial of Peninsular’s motion for summary judgment.

As pointed out in the opinion, Peninsular sought a summary judgment on the ground that the loss of the vessel was caused by a seizure, coverage for which was specifically excluded under the policy. The trial court denied Peninsular’s motion for summary judgment, and the case proceeded to trial. I see no occasion for us to re-visit a denial of summary judgment once the case has proceeded to trial and a judgment has been rendered based on the evidence at trial, as was the case here. Once the case has been tried, it seems to me, the merits of each claim or defense must be based upon the evidence presented at the trial, not on the paper issues presented on the motion for summary judgment. The majority opinion recognizes this to be the rule in the discussion under part II, “BARRATRY OF THE MASTER.” There it is pointed out that since Peninsular failed to present at trial any evidence to support its defense of seizure, it was not entitled to have this court consider the marine survey reports (submitted by Peninsular in support of its summary judgment motion) in reviewing the sufficiency of appellee’s evidence to prove barratry as the cause of loss.

Any other view would produce an anomalous procedure whereby a defendant, unsuccessful in his motion for summary judgment, would be entitled to have the factual basis for his defense determined on written affidavits, while the sufficiency of the plaintiff’s cause of action would be judged by the standards applicable to the traditional modes of proof at trial, where the manner and demeanor of the witnesses, the rigors of cross-examination, and considerations of logistics and expense (among other things) play a part in the final outcome. As pointed out in Home Indemnity Company v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274 (1962), to allow review as appellant seeks here would permit a decision based on less evidence to prevail over a verdict based on more evidence.

The general rule regarding the reviewa-bility of orders denying a motion for summary judgment is stated in an annotation on the subject, as follows:

Although as a general rule interlocutory orders that are not directly appealable are reviewable on an appeal from a final judgment in the action, this does not hold true for orders denying motions for summary judgment; such orders are ordinarily held not reviewable on an appeal from final judgment, except where the final judgment results from the granting of a motion for summary judgment by the opposing party.

Annotation, “Reviewability Of Order Denying Motion For Summary Judgment,” 15 A.L.R.3d 899, at 902, § 2., “Summary and comment.”

The general rule of non-reviewability of an order denying a motion for summary judgment on appeal from a final judgment must be, like many rules, subject to exceptions not easily reducible to a simple, categorical pronouncement. At least two courts of this state have indicated that such a ruling is reviewable on appeal from a final judgment. Crane Brothers Motors, Inc. v. Connell, 236 So.2d 138 (Fla. 2nd DCA 1970); Wynn v. Winsen, Ltd., 246 So.2d 639 (Fla. 4th DCA 1971). However, in neither case is review undertaken, and in neither case is there any discussion of the conditions under which such review would be permissible. That review is possible under certain circumstances is no doubt correct, as the general rule above stated and the cases cited in the A.L.R.3d annotation, supra, indicate. I do not feel that the two Florida cases cited would serve as authority for review in this case.

ON MOTION FOR REHEARING

NIMMONS, Judge.

Appellant’s motion for rehearing suggests that we failed to properly apply Section 90.804(2)(c), Florida Statutes, regarding declarations against interest. Specifically, appellant says that we misapprehended the significance of the following portion of that section:

“A statement tending to expose the de-clarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.”

On the contrary, that portion of the statute has no applicability whatsoever to the type situation as that involved sub judlce. The above provision contemplates the entirely different situation where a person accused of a crime seeks to exculpate himself by offering the statement of a declarant in which the declarant admits the crime.

The motion for rehearing is denied.

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

      . State courts have concurrent jurisdiction with federal courts where, although the subject matter of the suit is of maritime origin, the claim is in personam and the common law of the state provides the remedy sought. 28 U.S. C.A. Sec. 1333 (the “savings to suitors” clause); Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 70 L.Ed. 1085 (1926); Rountree v. A.P. Moller Steamship Company, 218 So.2d 771 (Fla. 1st DCA 1969). However, maritime law, not state law, is applicable even though the action is brought in a state court. Wilburn Boat Company v. Fireman’s Fund Insurance Company, 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Still v. Dixon, 337 So.2d 1033 (Fla. 2nd DCA 1976).

      . “Barratry” is defined and discussed infra in this opinion under the heading “Barratry of the Master.”

      . Judge Smith’s concurring opinion questions the reviewability after final judgment of an order denying a motion for summary judgment, a position not asserted on appeal by appellee. Judge Smith cites to respectable authority from other jurisdictions for such proposition. However, the Florida cases referred to in his opinion, Crane Brothers Motors, Inc. v. Connell, 236 So.2d 138 (Fla. 2d DCA 1970), and Wynn v. Winsen Ltd., 246 So.2d 639 (Fla. 4th DCA 1971), indicate a contrary view. We would only point out that if an order denying a motion for summary judgment is not reviewable after final judgment, then such an order would not be reviewable at all since an interlocutory appeal therefrom does not lie. See Crane Brothers Motors, Inc. v. Connell, supra.

      . The marine survey reports were the only evidence in the record of this case indicating any seizure. Although these reports were not introduced into evidence at trial (indeed, no evidence of seizure was offered at trial), the reports were filed and considered without objection in connection with Peninsular’s motion for summary judgment.

      . The relationship between the covered risk of barratry and the seizure exclusion is also treated in The Republic of China v. National Union Fire Insurance Co. of Pittsburgh, 151 F.Supp. 211 (D.Md.1957), aff'd. in part and rev’d. in part, 254 F.2d 177 (4th Cir.1958), cert. denied 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958).

      . “In case of any loss or misfortune, it shall be lawful and necessary for the assured, their factors, servants, and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the vessel named herein, or any part thereof, without prejudice to this insurance as to the charges whereof this Company will contribute as hereinafter provided.”

      . Captain Singleton’s deposition in which he asserted his Fifth Amendment privilege was, without objection, read to the jury.

      . No error has been asserted on appeal regarding the evidence at trial of the amount of appellant’s loss or the damages awarded by the jury in the sum of $80,000.

      .As previously noted, there was no evidence of any seizure presented at trial.


author: LETTS, Judge.

text:
    James D. REID, Appellant, v. Teresa C. REID, Appellee.
    No. 82-2062.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 1983.
    Rehearing Denied Oct. 11, 1983.

      Robert V. Romani and Mikel D. Greene of Farish, Farish & Romani, West Palm Beach, for appellant.
    James P. O’Flarity of Law Offices of James P. O’Flarity, P.A., Palm Beach, for appellee.
   LETTS, Judge.

Affirmed on the authority of Yohanan v. DeClaire, 435 So.2d 913 (Fla. 4th DCA 1983.)

DOWNEY, J., and LEE, J. CAIL, Associate Judge, concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    John HOLINDA, et al., Appellants, v. TITLE AND TRUST COMPANY OF FLORIDA, Appellee.
    No. 82-1589.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1983.
    Rehearing Denied Oct. 4, 1983.
    Michael M.M. Wallis of Wolfe, Kirschen-baum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellants.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants John and Diane Holinda sued appellee Title and Trust Company of Florida for damages under a title insurance policy. The Holindas appeal from a final summary judgment entered in favor of Title and Trust.

Title and Trust failed to except four liens in the title policy purchased by the Holin-das. The liens were subsequently discovered when the Holindas were attempting to re-sell the property and the Holindas paid off the lienholders. In defending against the instant action, Title and Trust did not contest the validity of the liens, but rather claimed it has no liability because of paragraph 7 of the policy which provides:

LIMITATION OF LIABILITY

No claim shall arise or be maintainable under this policy ...
(C) for liability voluntarily assumed by an insured in settling any claim or suit without prior written consent of the Company.

In an affidavit in opposition to Title and Trust’s motion for summary judgment, Diane Holinda admitted that she and her husband had failed to secure Title and Trust’s written consent prior to settling the claims but stated that Title and Trust had not been prejudiced by this omission as the claims were certain and definite. She further stated that several unsuccessful attempts were made to contact Title and Trust’s agent prior to settlement of the claims and that it was necessary to pay off the lienholders in order to consummate the sale of the property.

Title and Trust initially argues that the Holindas could have no cause of action against it until there was an actual loss under the policy and payment of a claim or judgment before execution against the property amounts to a voluntary settlement of the claim. We reject this argument and hold that the satisfaction of an outstanding judgment which is a valid, enforceable lien on the real property does not constitute a “voluntary satisfaction.” See Endruschat v. American Title Ins. Co., 377 So.2d 738 (Fla. 4th DCA 1979). But see Blessing v. American Title & Ins. Co., 121 So.2d 455 (Fla. 1st DCA 1960). As shown here, the satisfaction of such claims was necessary in order to complete the sale of the property.

Title and Trust further argues that even if the payments were not voluntary, the Holindas’ failure to obtain its written consent prior to settling the claims absolves it of liability under paragraph 7 of the policy. Clearly the parties could validly contract to require such advance notice and written consent. Indeed, such a provision may be prudent to prevent an insured from settling a questionable claim and then demanding indemnification from the insurer.

However, in the instant case, this consideration appears to be absent, especially as to the two judgment liens which constituted final adjudications adverse to the Holindas’ title. It is unclear how Title and Trust was adversely affected by the Holindas’ settlement of the liens against the property.

There are cases involving insurance claims which hold that while the failure of the insured to give timely notice of loss in contravention of the policy may constitute a legal basis for the denial of policy benefits, the insured may recover if he can show that the late notice did not prejudice the insurer. H.S. Equities, Inc. v. Hartford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976); Ideal Mutual Ins. Co. v. Wal-drep, 400 So.2d 782 (Fla. 3d DCA 1981). A presumption of prejudice to the insurer exists and the burden is on the insured to show that his late notice did not cause prejudice. Ideal Mutual, 400 So.2d at 785. See also Mount Vernon Fire Ins: Co. v. Editorial America, S.A., 374 So.2d 1072 (Fla. 3d DCA 1979). We believe that this principle is applicable here and that the Holindas are entitled to recover for their loss under the policy if they can show that Title and Trust was not prejudiced by their failure to obtain its advance written consent to the settlements.

Because the issue of prejudice to Title and Trust is still outstanding, it was error to enter final summary judgment. We reverse and remand for trial on this issue.

REVERSED and REMANDED for trial.

ORFINGER, C.J., and COBB, J., concur.

      . The four liens were:
      1) a tax lien in favor of the State of Florida,
      2) a judgment lien in favor of Jim Walter Door Sales of Brevard, Inc.,
      3) a judgment lien in favor of Adobe Building Corp.; and
      4) a mechanics lien foreclosure action in favor of Rinker Material Corporation.


author: DANIEL S. PEARSON, Judge.

text:
    Antonio DOMINGUEZ, Appellant, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a foreign corporation, Crawford and Company, a foreign corporation, and Millie Dirube, Appellees.
    No. 81-1064.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1983.
    Rehearing Denied Oct. 19, 1983.

      Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Bernard P. Goldfarb, Miami, for appellant.
    George, Hartz & McNary, Miami, Amy Shield Levine, Boca Raton, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

This is an appeal from an order which, inter alia, dismissed with prejudice one count of the appellant’s complaint which sought damages for severe emotional distress alleged to have been caused by outrageous conduct unconnected to any other identifiable tort. We are called upon to decide whether we recognize such a cause of action and, if so, whether the appellant’s allegations, taken as true at this stage of the proceedings, bring him within the cause of action.

A cause of action for “intentional infliction of severe mental or emotional distress,” more appropriately called “outrageous conduct causing severe emotional distress,” essentially involves the deliberate or reckless infliction of mental suffering on another, even if unconnected to any other actionable wrong. Restatement (Second) of Torts § 46 (1965). The elements of this cause of action are (1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.

Although the Florida Supreme Court has not yet definitively recognized the existence of this cause of action, it has not, on the other hand, definitively precluded courts of this state from doing so. Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 960 (Fla. 1st DCA 1979). Thus, unimpeded by the dictates of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the district courts of appeal have forged ahead, and the First, Fourth and Fifth Districts, joining the majority view in this country, have concluded that the cause of action exists. See Kirkpatrick v. Zitz, 401 So.2d 850 (Fla. 1st DCA 1981) (cause of action allowed); Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980) (same); Ford Motor Credit Co. v. Sheehan, 373 So.2d at 960 (same); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976) (same); Metropolitan Life Insurance Co. v. McCarson, 429 So.2d 1287 (Fla. 4th DCA 1983) (cause of action allowed); Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983) (cause of action recognized, but not properly pleaded); Habelow v. Travelers Insurance Co., 389 So.2d 218 (Fla. 5th DCA 1980) (cause of action recognized, but not applicable where outrageous conduct directed at another); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980) (cause of action recognized, but conduct not outrageous). The Second District has concluded otherwise. See Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA 1982).

We are of the opinion that the majority view is the correct one and conclude that we are not only free to adopt it, but are bound to do so by our own precedent. We recognize that in Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980), and Sacco v. Eagle Finance Corp. of North Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970), this court stated that a cause of action for emotional distress based on outrageous conduct will lie only where it is coupled with other recognized tortious conduct. It appears, however, that in Sacco, we completely overlooked our earlier contrary precedent of Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), cert. dismissed, 183 So.2d 835 (Fla.1966), and in Gellert, although paying lip service to Kor-bin, we incorrectly categorized Korbin as being a case where the outrageous conduct was coupled with an independent tort. Korbin, however, in which the court held that a child’s cause of action for emotional distress lay against a defendant who told the child of her mother’s alleged adultery, is not, as was pointed out in Ford Motor Credit Co. v. Sheehan, susceptible of the reading given it in Gellert:

“Gellert suggests that Korbin did not permit an independent action for severe emotional distress since the action for emotional damages was connected with the slander of the child’s mother. We find this analysis unpersuasive for two reasons: First, no cause of action was brought for slander, and second, the slander, if proved, would have resulted in a tortious act against the mother, not the child. The two causes of action must be considered separate and personal to two different people.” 373 So.2d at 959 n. 3.

Therefore, in our view, Korbin, never overruled, receded from, discredited or adequately distinguished, is clear precedent for our holding today that a cause of action for emotional distress brought about by outrageous conduct lies notwithstanding the absence of another tort. Indeed, Korbin is the only authority in this court which is undiluted by an alternative holding that the conduct involved was not outrageous. Neither Gellert nor Sacco, as the courts there recognized, involved conduct which would qualify as outrageous, and thus, these cases could have been decided on that ground without reaching the question of the existence vel non of the cause of action. See Gellert v. Eastern Air Lines, Inc., 370 So.2d at 808 (Schwartz, J., specially concurring).

We turn now to the question of whether the allegations of Dominguez’s complaint bring him within this cause of action.

The complaint alleges that in 1973, Equitable issued Dominguez a disability income policy of insurance which, in pertinent part, provided for $500 per month income for accidental total disability for the insured’s lifetime. Shortly after the policy issued, Dominguez was involved in an automobile accident which “caused severe injuries to his body and extremities, including both eyes being knocked out of their sockets, brain damage, multiple large scars, psychiatric problems, periodic incontinence, paralysis of nerve in eye and other physical and mental problems, and mental injuries as well, which resulted in his total disability.” Equitable paid Dominguez the disability income through August 1979 and then stopped making payments.

The heart of the complaint comes next: “16. On or about April 21, 1980, the Defendant, EQUITABLE, sent an agent to the home of the Plaintiff in Miami, Florida. Said agent was working either directly for the Defendant, EQUITABLE, or indirectly for the Defendant by working for Defendant CRAWFORD & COMPANY, which was hired by the Defendant EQUITABLE to work on this case. Said agent was Millie Dirube, who, at all times relevant hereto was acting for either or both Defendants, in the course and scope of her agency and employment. Said Millie Dirube falsely represented to Plaintiff that she had .received a letter from the eye doctor saying that his eye(s) were OK now and that Plaintiff was no longer disabled and falsely represented to Plaintiff that he was no longer totally disabled, that he was not longer covered under the policy, that the policy was no longer in force, that he had to sign a paper agreeing that no further payments were due under the policy, that it no longer covered him, that he was no longer entitled to receive benefits under the policy and that he was giving up the policy voluntarily. At the time said Millie Di-rube made said misrepresentation she knew them to be false and they were in fact false and she made them with the intention and expectation and intention that Plaintiff be deceived and defrauded thereby and that the [sic] sign said paper and surrender the subject policy. Defendants well knew that Plaintiff was suffering both physical and mental total disability and was entitled to benefits under the policy and that the representations of Millie Dirube were false. The foregoing acts were all in violation of their fiduciary relationship and duty of good faith and in an effort to use their superior knowledge skill and position to take advantage of this debilitated Plaintiff. A relative of Plaintiff overheard and intervened at the last minute and prevented Plaintiff from signing the paper. and surrendering the policy.
“21. Defendant, EQUITABLE’S, acts and omissions set forth in this Complaint were done intentionally in order to inflict emotional distress upon the Plaintiff and/or were done in reckless disregard of the probability of causing emotional distress, and said acts and omissions did in fact cause severe and extreme emotional distress to the Plaintiff.”

In our view, these allegations state a cause of action and fall well within comments e and f to Section 46 of the Restatement, which provide:

“e. The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.... “f. The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may be heartless, flagrant and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know .... ”

The complaint alleges the defendants to be not only in a position to affect the plaintiff’s interests, but actually having asserted their power by cutting off the plaintiff’s disability payments without justification. It alleges further that the defendants were, as is obvious, aware of the plaintiff’s disabilities and thus his susceptibility to emotional distress when they acted. This combination of the unjustified assertion of power by one party, and impotence of the other, would, we think, be viewed by a civilized community as outrageous and not as an indignity, annoyance or petty oppression for which the law affords no relief. Our conclusion that the conduct alleged is outrageous is amply supported by case law.

In Holmes v. Oxford Chemicals, Inc., 510 F.Supp. 915 (M.D.Ala.1981), aff’d, 672 F.2d 854 (11th Cir.1982), the court found the defendant’s conduct to be such as to justify a jury to find, as it did, that the conduct fell on the side of outrage. There the defendant, the plaintiff’s employer, was aware that the plaintiff had suffered a severe heart attack permanently disabling him from performing any work. Thereafter, Consolidated (Oxford’s parent company) paid to the plaintiff monthly disability payments of $500 for four months, at which time it reduced the monthly payment to $49.10, advising the plaintiff to seek the balance from the Social Security Administration. Under Consolidated’s disability plan, a disabled employee was not required to seek Social Security benefits, and although the plan allowed a reduction in disability payments by the amount of Social Security benefits actually received by an employee, it did not authorize the employer to make such a reduction in anticipation of Social Security benefits that an employee might receive. The court concluded:

“Defendant’s administrator testified that he routinely cut the required payments to disabled persons such as plaintiff to force them to be diligent in seeking Social Security payments without making any inquiry as to whether they were receiving such benefits. He testified that he did this in order to put ‘the onus’ on the disabled employee to take all steps necessary to get his Social Security benefits. Consolidated reasonably knew that plaintiff was distraught over his medical condition and permanent disability prior to its action of cutting plaintiff’s disability check to $49 per month. The administrator acknowledged that he had no basis for believing that plaintiff had other income or assets, and he agreed that plaintiff could hardly survive on $49 per month. Plaintiff argued persuasively that for defendant to do this to a man whom it knew had a severe heart condition and was already distraught over his physical and financial condition was outrageous. Predictably, plaintiff suffered severe depression and required psychiatric treatment for his helpless financial condition imposed by defendant’s deliberate and wrongful act of denying him the monthly income to which he was admittedly entitled.” 510 F.Supp. at 918.

In Strader v. Union Hall, Inc., 486 F.Supp. 159 (N.D.Ill.1980), the plaintiff-employee suffered a severe stroke, and after some resumption of work on a part-time basis was terminated from employment because of his disability. For about a month thereafter, the company’s insurer, Travelers Insurance Company, continued to pay for the plaintiff’s out-patient therapy. Then, according to the court:

“In June, 1974, plaintiffs wife contacted a claims agent to discuss continuation of payments to her husband. The agent told Mrs. Strader that her husband was ineligible for payments since he no longer worked at Union Hall. When Mrs. Strader offered to provide evidence that her husband had been totally disabled at the time he left the employ of Union Hall, the agent told her not to submit the information. A friend of the Strader family who sought to intercede on plaintiff’s behalf fared little better. In response to a request explaining the reason for the termination of benefits, Travelers stated that any time an employee was terminated — for whatever reason — policy benefits were terminated as well.
“The plaintiff alleges that this information was false, and that since then plaintiff has learned that benefits may continue after termination of employment if the employee is totally disabled at the time of termination. Strader claims that Travelers failed to conduct an investigation to determine whether in fact he was disabled at the time of his discharge; indeed, he alleges that Travelers’ handling of his case was so negligent and reckless that his file actually was lost. As a result of the termination of payments by Travelers, plaintiff allegedly was unable to obtain physical therapy for more than a year and one half. During this period his mental — as well as physical — condition allegedly deteriorated seriously. Because he had lost hope for the future, his mental state became one diagnosed as moderately severe depression.” 486 F.Supp. at 162-63.

The court concluded that a cause of action for “intentional infliction of emotional harm” was stated against Travelers:

“Here, the defendant insurer allegedly failed to investigate the merits of plaintiff’s claim, and misrepresented the nature of his insurance coverage. This is precisely the type of abusive behavior by an entity with the power to affect the interests of another that gives rise to a finding of extreme and outrageous conduct. (citations omitted). The emotional distress allegedly suffered by plaintiff is more than mere fright or worry. Plaintiff herein allegedly was a very sick man, dependent upon the insurance benefits for the continuation of his rehabilitation regimen. The unwarranted termination of those benefits no doubt would be severely distressing to a reasonable man in the position of the plaintiff. Moreover, as alleged, the conduct of Travelers clearly states a claim for reckless conduct. Since this conduct arose in the context of an insurance policy where the ‘very risks insured against presuppose that ... the beneficiary might be in difficult circumstances,’ (citation omitted), Travelers knew or should have known that severe distress was substantially certain to result. Finally, it is clear that plaintiff’s allegations attribute his severe mental distress to the conduct of Travelers. Thus, the Court believes that the foregoing facts are sufficient to state a claim for intentional infliction of emotional harm.” Id. at 163.

See also Eckenrode v. Life of America Insurance Company, 470 F.2d 1 (7th Cir.1972); Fletcher v. Western National Life Insurance Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78 (1970). Cf. Steadman v. South Central Bell Telephone Co., 362 So.2d 1144 (La.App.1978) (where plaintiff-employee became disabled and terminated employment, and defendant’s agent, in disregard of her doctor’s warnings, contacted her for the purpose of retrieving key card and identification card belonging to employer, to which employer was indisputably entitled, no cause of action for emotional distress caused by conduct stated).

Since the question of what is outrageous conduct is unrelated to the question of whether a cause of action exists for emotional distress caused by outrageous conduct unconnected to another tort, cases which identify conduct like that alleged in the present case to be sufficiently outrageous to warrant recovery for infliction of emotional distress where connected to another tort are equally persuasive. Thus, in Miller v. Mutual of Omaha Insurance Company, 235 So.2d 33 (Fla. 1st DCA 1970), the court reversed a judgment notwithstanding a jury verdict for the plaintiff on a count of intentional infliction of emotional distress. The cause of action in Miller was connected to the tort of unlawful interference with the plaintiff’s right to possession of a hospital insurance policy which had been issued by the defendant. The appellate court held that Mrs. Miller was entitled to recover on this set of facts:

“The plaintiff Mrs. Miller testified at the trial that [after she had been hospitalized with Addison’s Disease and the insurance company refused to pay any of her medical bills] thereafter the defendant Leo R. Edgerton, an agent of the defendant insurer, came to the Miller home and said to her: T am from Mutual of Omaha, and I have some bad news for you,’ or something to that effect, ‘ * * * Mutual of Omaha is not going to pay your hospital * * *. You knew good and well that you had that when you taken out the policy. * * * ’ that he was talking ‘real loud and snotty like’ and said ‘What do you think you are trying to pull * * *. There have been other people around here that tried to pull the same thing, but they didn’t get by with it. Mutual of Omaha is not going to let them get by with it. * * * ’ She further testified that she then said, T don’t see why they are not going to pay it,’ and Edgerton replied, ‘ “You knew you had that before you taken the policy. * * * ” and she said, T didn’t knew it. I had never heard of such a thing in the world as Addison’s Disease.’ Mrs. Miller further testified that Edgerton asked to see the policy in question, stuck it in his side pocket, started out of the door and said sarcastically that he hoped that Mrs. Miller got along all right. Mrs. Miller did not give Edgerton permission to take the policy. She then went back in the room and cried, being ‘real sick and upset at the time,’ mostly about the way Edgerton had talked with her. She did not sleep that night and the next morning she was taken to the hospital. The defendant insurer had never returned her policy to her.
“The treating physician at the hospital testified that Mrs. Miller was nervous and upset and could not sleep because of recent events.” 235 So.2d at 35.

See Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753 (1935) (affirming recovery for insured for physical injury caused by emotional distress where insurer’s- agent accused insured of lying about illness and defrauding insurance company; actionable tort found to be invasion of right of homeowner to be free from hostile intrusion); see also Interstate Life & Accident Co. v. Brewer, 56 Ga.App. 599, 193 S.E. 458 (1937); National Life & Accident Ins. Co. v. Anderson, 187 Okl. 180, 102 P.2d 141 (1940).

Accordingly, the trial court’s order dismissing the plaintiff’s complaint for failure to state a cause of action is reversed and the cause remanded for further proceedings.

Reversed and remanded.

      . We think describing the tort as “the intentional infliction of severe mental or emotional distress” is somewhat misleading. Such a description erroneously suggests that the defendant intended to inflict severe mental or emotional distress when, in fact, all that need by shown is that he intended his specific behavior and knew or should have known that the distress would follow. See Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979); Restatement (Second) of Torts § 46 (1965).

      . Federal courts looking to Florida law have arrived at various conclusions about where this state stands on the issue. Often citing to the same cases, it has been said that Florida recognizes the cause of action, see, e.g., Singleton v. Foreman, 435 F.2d 962, 971 (5th Cir.1970); does not, see, e.g., Forde v. Royals, Inc., 537 F.Supp. 1173, 1175 (S.D.Fla.1982); or has not made up its mind, see, e.g., Mundy v. Southern Bell Telephone & Telegraph Co., 676 F.2d 503, 505 (11th Cir.1982).

      .When first presented with a certified question asking whether the cause of action is to be recognized in Florida, the court provided no answer. See Ford Motor Credit Co. v. Sheehan, 379 So.2d 204 (Fla.1979) (dismissing cer-tiorari). Recently, the question has again been posed to the court. See Gmuer v. Garner, 426 So.2d 972 (Fla. 2d DCA 1982).

      . By its approval of the trial court, which, in turn, sided with Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980), as announcing the correct rule, the Second District in Gmuer appears not to recognize the cause of action “when not incident to or connected with an independent tort.” However, confusion about the meaning of Gmuer derives from its affirmance of the trial court’s order which, inter alia, stated:
      “ ‘The Sheehan case does not really present a conflict [with Gellert] on a close reading. Sheehan’s cause of action was sustained on a pure application of Section 46 of the Restatement. [In Sheehan], the allegations of the creditor’s misconduct were so patently outrageous and repugnant as to support a cause of action on essentially the same criteria applied in Gellert.’ ” 426 So.2d at 973.
      But the consistency between Sheehan and Gel-lert lies only in that both courts applied the same criteria for outrage: in Sheehan, the conduct was found to be outrageous; in Gellert, it was not. Insofar as permitting the cause of action when the conduct is found to be outrageous, Sheehan and Gellert are hopelessly in conflict.

      . Similarly, the progeny of Gellert and Sacco do not adversely impact Korbin. In Garrison v. City of Homestead, 408 So.2d 823 (Fla. 3d DCA 1982), the court, without discussion of the facts, affirmed a dismissal of the complaint citing to Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976), and Gellert. Since Lay and Dowl-ing recognize the cause of action but hold that the conduct was not outrageous, Garrison can only mean that no outrageous conduct was alleged. In Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla. 3d DCA 1980), this court simply held the conduct was not outrageous without reaching the question of whether a cause of action exists. Finally, we note that this court’s holding that damages for mental distress are not recoverable in a negligence action in the absence of impact, see Cadillac Motor Car Division, General Motors

        Corporation v. Brown, 428 So.2d 301 (Fla. 3d DCA 1983), is unrelated to the present case where intentional conduct is alleged.

      . On appeal, the defendants have argued that the allegations of severe emotional distress, an element of the tort, are not sufficiently detailed so as to state a cause of action. This argument was not preserved in their motion to dismiss, and had it been, would merely have supported a dismissal with leave to amend. If, upon discovery, it is indisputably revealed that severe emotional distress did not result from the defendants’ actions, the defendants would be entitled to summary judgment.
      The defendants also argue that since Dominguez signed nothing and did not surrender the policy, there is no damage and no cause of action. The argument is specious. While the defendants may not have accomplished their goal, they may still have brought about emotional distress.

      . Ironically, had the defendants in the present case succeeded in retrieving Dominguez’s insurance policy so as to commit the connected tort of unlawful interference with Dominguez’s right of possession, we could have reversed the dismissal of Dominguez’s complaint on the authority of Miller alone. Yet, absent our recognizing that a cause of action for emotional distress exists even if unconnected to any other actionable wrong, Dominguez, the victim of equally outrageous conduct to that wrought upon Mrs. Miller, would be precluded from recovery by the happenstance that the insurance agent did not succeed in getting the policy.


author: HURLEY, Judge.

text:
    Kelley SISK, as Personal Representative of the Estate of James Larry Sisk, Appellant, v. GENERAL BUILDERS CORPORATION OF FORT LAUDERDALE, INC., and Cedar Lane Developers, Inc., Wentworth Plastering of Boca Raton, Inc., Appellees.
    No. 81-1834.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 20, 1983.
    David L. Kahn of Kahn & Gustafson, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee-General Builders Corp. of Fort Lauderdale, Inc.
   HURLEY, Judge.

This appeal is taken from a summary final judgment which found that the defendant/appellee, General Builders Corporation of Fort Lauderdale, Inc. (General Builders), is immune from suit by virtue of sections 440.10 and 440.11, Florida Statutes (1981). Plaintiff/appellant opposed the summary judgment, contending that General Builders and its sister corporation, Cedar Lane, were so totally dominated by their parent corporation that the three should be viewed as a single entity. If adequately established, this would cause General Builders to be classified as an “owner-builder” rather than a general contractor and, thus, it would be unable to qualify for tort immunity under the statutes in question. We find that there is a genuine issue of material fact concerning General Builders’ corporate status and, consequently, we reverse and remand.

James Sisk was fatally injured while working on the construction of Silver Hatch Condominium Phase II. General Builders Corporation of Fort Lauderdale was the general contractor of record while Cedar Lane Developers, Inc. was the owner of record. Both corporations are subsidiaries of General Builders Corporation. Sisk’s personal representative filed suit against the two sister corporations, General Builders and Cedar Lane. General Builders obtained a summary judgment by arguing that it was a contractor and, therefore, entitled to tort immunity under section 440.11, Florida Statutes (1981). Plaintiff attempted to thwart the summary judgment by submitting depositions and documents to support his allegation that the two subsidiaries were so totally dominated that they were not entitled to be viewed as separate entities. He claimed that if this were established at trial, General Builders would not be entitled to the tort immunity conferred on contractors by sections 440.10 and 440.11, Florida Statutes (1981).

Two ostensibly separate corporations will be treated as one when it is established that one of the corporations totally dominates the other “to the extent that the subservient corporation manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.” Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1106 (5th Cir.1973), modified per curiam, 490 F.2d 916 (5th Cir.1974). “When one corporation controls and dominates another corporation to the extent that the second corporation becomes the ‘mere instrumentality’ of the first, the dominant corporation is liable for the torts of the subservient corporation.” Dania Jai Alai Palace v. Sykes, 425 So.2d 594, 598 (Fla. 4th DCA 1982); accord Vantage View Inc. v. Bali East Development, 421 So.2d 728 (Fla. 4th DCA 1982). Dania Jai Alai lists some of the criteria to be considered in determining whether a subsidiary is a mere instrumentality or alter ego of a parent corporation:

(1) The parent corporation owns all or majority of the capital stock of the subsidiary. (2) The parent and subsidiary corporations have common directors or officers. (3) The parent corporation finances the subsidiary. (4) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation. (5) The subsidiary has grossly inadequate capital. (6) The parent corporation pays the salaries or expenses or losses of the subsidiary. (7) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation. (8) In the papers of the parent corporation, and in the statements of its officers, “the subsidiary” is referred to as such or as a department or division. (9) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation. (10) The formal legal requirements of the subsidiary as a separate and independent corporation are not observed.

Id. at 599, quoting Fish v. East, 114 F.2d 177, 191 (10th Cir.1940).

“Whether a subsidiary is a mere instrumentality is normally a question of fact for the jury.” Dania Jai Alai at 598. The record in the case at bar discloses that the plaintiff submitted documents and depositions to support his contention of total domination. By so doing, the plaintiff raised a genuine issue of material fact concerning the corporate status of the defendant/subsidiary and the availability of immunity under sections 440.10 and 440.11, Florida Statutes (1981). Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

GLICKSTEIN, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . Under Florida’s Workers’ Compensation Law, employers who provide workers’ compensation benefits are immune from tort suits by employees injured in the course of their employment. § 440.11, Fla.Stat. (1981). Under the law, “contractors” who sublet work become statutory employers of their subcontractor’s employees. § 440.10, Fla.Stat. (1981). This statutory “employment” requires the contractor to provide worker’s compensation benefits and bestows tort immunity on the contractor.
      Owners who act as their own general contractor in developing property, however, do not become statutory employers of the employees of “subcontractors.” In this situation, the owner-builder is not a true “contractor” within the meaning of the Workers’ Compensation Law and the companies he hires are “independent contractors” rather than “subcontractors.” See, generally, Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954); Sheedy v. Vista Properties, Inc., 410 So.2d 561 (Fla. 4th DCA 1982).


author: DOWNEY, Judge.

text:
    GULFSTREAM BANK, N.A., Appellant, v. BARNETT BANK OF SOUTH FLORIDA, N.A., Appellee.
    No. 83-402.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Oct. 12, 1983.
    Frank J. Sinagra of Britton, Cohen, Kaufman & Schantz, P.A., Fort Lauderdale, for appellant.
    Timothy P. Beavers of Ferrero, Middle-brooks & Strickland, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, Gulfstream Bank, N.A., seeks reversal of a partial summary judgment entered in favor of appellee, Barnett Bank of South Florida, N.A., in a suit instituted by Barnett for breach of contract.

The undisputed facts are that Gulf-stream’s predecessor, First Bank & Trust Company of Boca Raton, and Barnett entered into a contract, dated July 27, 1979, wherein Barnett agreed to purchase certain Visa and Mastercharge accounts from Gulfstream. Among other things, the Agreement provided:

Barnett shall hold First Bank harmless and First Bank shall not be responsible for merchant losses on merchants approved by Barnett subject to an agreement that First Bank shall exercise its best efforts to collect such losses.

In addition, the Agreement provided that the parties would subsequently enter into a Standard Agent-Bank Agreement, an unex-ecuted copy of which was attached to the Agreement of July 27, 1979. Gulfstream was the contractual Agent and Barnett was the Bank. One of the covenants of the Standard Agent-Bank Agreement provided:

Bank’s acceptance of the sales drafts and cash advance drafts from Agent will be without recourse against Agent, except Bank shall have the right to charge back to Agent those drafts with respect to which Bank would have the right to charge back to a Merchant under the terms of Bank’s standard merchant agreement in effect from time to time

One of Gulfstream’s merchant bank card holders deposited fraudulent Visa and Mastercharge sales drafts in its merchant account at Gulfstream. Barnett notified Gulfstream of its right to charge back the amount of those fraudulent sales drafts against Gulfstream, but Gulfstream refused to accept the chargeback and this litigation ensued.

Gulfstream contended below that an ambiguity exists in the contracts because in one place it appears Barnett is to hold Gulfstream harmless on any merchant losses incurred after the inception of the contractual relationship between the parties. Yet another provision clearly states that Barnett is entitled to charge back against Gulfstream any drafts that Barnett could charge back against a merchant under the Bank’s standard merchant agreement. In order to determine the intent of the parties, Gulfstream sought to adduce extrinsic evidence in the form of a deposition of one of Gulfstream’s officers, which explains what the parties intended by the various contractual provisions. The trial court refused to consider any extrinsic evidence regarding the intention of the parties because it was felt the contracts were not ambiguous.

We agree with appellant’s analysis of the contracts and hold that they are ambiguous. Under these circumstances summary judgment was inappropriate. As the court stated in Griffin Builders Supply, Inc. v. Jones, 384 So.2d 265, 266 (Fla. 2d DCA 1980):

When the wording of an agreement is ambiguous and parties suggest different interpretations, the issue of proper interpretation becomes one of fact precluding grant of summary judgment.

For the foregoing reasons the partial summary judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED, with directions.

HERSEY and DELL, JJ., concur.


author: LEHAN, Judge.

text:
    STATE of Florida, Appellant, v. David Laverne ROUNDTREE, Appellee.
    No. 83-123.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1983.
    Rehearing Denied Oct. 3, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee.
   LEHAN, Judge.

The state appeals an order discharging appellant David Laverne Roundtree because of a violation of his Sixth Amendment right to speedy trial. We affirm.

The appellant was alleged to have committed a burglary on December 24,1980. A sworn affidavit to that effect was filed by a Tampa Police officer on January 12, 1981. The affidavit included the appellant’s full name, address, physical description, date of birth, and birth place. Thereafter, on January 23, 1981, the state filed an information charging the appellant with one count of burglary in violation of section 810.02, Florida Statutes (1981). On that same day, a capias which contained information relating to the fact that appellant was on parole was issued for the arrest of the appellant. The appellant was not arrested, however, until October 11,1982. The defendant was incarcerated until October 22, 1982, when he obtained a security bond for his release.

On November 17,1982, after the appointment of a public defender to represent him, appellant filed a motion for discharge, alleging that he should be discharged because he had been prejudiced by an unreasonable delay since the filing of the information. In the motion the appellant alleged that he never received written notice to appear before the court on the pending charge although the affidavit indicated the appellant’s address was known and he was on parole and supervised by the State of Florida prior to December 24, 1980 and until July 5, 1981. The appellant further alleged that the delay was in no way attributable to him in that any reasonable attempt to locate him would have been successful because he was in Hillsborough County under supervision of the Department of Corrections. He alleged that the delay was due to the negligent inaction of the state in the prosecution of the case and that he had suffered prejudice by the unreasonable delay in that had he “been notified sooner of the charge, he could have garnered a better recollection as to his whereabouts on the date in question.”

On December 15, 1982, a hearing was held on the motion for discharge, and the court considered deposition testimony of the officer and heard argument of counsel. The officer’s deposition revealed that he spoke to the alleged burglary victim, who indicated he had spoken with the appellant at the Paradise Bar in Tampa after the alleged burglary. The victim also told the officer that the appellant had gone to the home of appellant’s alleged accomplice. The officer indicated that he knew the address of the appellant, who lived with his parents, but the officer had not inquired about appellant at that address. The officer did set up a surveillance for appellant on a few occasions outside of that address, but the surveillance did not locate appellant. The officer knew appellant by his face and kept a general outlook for appellant in order to try to effect an arrest although this was also unsuccessful until the eventual arrest on October 11, 1982. The officer admitted that he made no effort to locate the appellant through the Department of Corrections although the rap sheet attached to the capias revealed that the appellant was on parole.

Defense counsel argued that no effort was made to locate the appellant at the Paradise Bar, although the alleged victim had found him there; no effort was made to locate the appellant at the alleged accomplice’s home, although the alleged victim had told the detective appellant had gone there; no effort was made to directly ap--proach the appellant’s parents’ home, although it was known that that was his current address; and no effort was made to locate the appellant through the Department of Corrections, although it was known he was on parole. It was argued that, accordingly, the lengthy delay between the date of the information and appellant’s arrest was attributable to the state’s negligence. Counsel for the state argued that the state had not been negligent, and, in any event, the appellant did not suffer any actual prejudice by the delay. The trial court orally granted the motion for discharge and then entered a written order for discharge on January 7, 1983.

We affirm on the basis of the carefully reasoned Sixth Amendment speedy trial analysis as to post-accusation, unconstitutional delays in Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982), which includes consideration of federal case law, especially Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). More specifically, we have analyzed this case from the standpoint of the four factors enumerated in Barker and restated in Howell by which to determine whether a constitutional speedy trial violation has occurred:

(1) the length of the delay, e.g., whether the delay is presumptively prejudicial; (2) the reason for the delay; (3) whether the appellant has timely asserted his rights, and (4) the existence of actual prejudice as a result of the delay.

418 So.2d at 1171. We note the Howell conclusion that “no single factor is either necessary or sufficient as a precondition to finding a denial of one’s rights.” 418 So.2d at 1171. Rather, the trial court must balance and weigh the factors against each other in light of the purposes underlying the Sixth Amendment speedy trial provision. 418 So.2d at 1174. Howell also explained that the four factors “were not intended to comprise an exhaustive list of considerations — only a guide.” 418 So.2d at 1171. See also United States v. Avalos, 541 F.2d 1100, 1110 (5th Cir.), reh. en banc denied, 545 F.2d 168 (1976), cert. denied, 43 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977).

The dispositive aspects of this case turn principally upon factors (1) through (3). As to factor (1), the 21V2-nionth delay between the filing of the information and the motion to discharge, as well as the 23-month delay until the hearing on that motion, in this case is presumptively prejudicial. In Howell a 14V2-month delay from the time of the filing of the information until the time of the hearing was considered presumptively prejudicial. See also United States v. Alvalos, supra; United States v. Greer, 655 F.2d 51 (5th Cir.1981). Although in light of other considerations the First District affirmed the trial court’s denial of defendant’s motion to dismiss, the First District felt that Howell “grasps at the outer reaches of what the constitution seemingly permits.” 418 So.2d at 1175.

As to factor (2), Howell describes three categories of reasons for delay by the state —deliberate, negligent, and justified. 418 So.2d at 1171-1173. We are inclined to consider this case as susceptible of justifying a finding of negligent delay on the part of the state, “keeping in mind the relative simplicity of prosecuting a case of this type,” Howell, 418 So.2d at 1173, i.e., here, one count of burglary. Although there is no specific finding by the trial court in this case to that effect, we feel warranted in reaching the conclusion that such a finding was implicit in the trial court’s order of discharge, which, of course, is entitled to a presumption of correctness and which, we further assume, followed the dictates of Barker and Howell. Howell incidentally, also found negligent delay on the part of the state to exist.

As to factor (3), appellee asserted his right to speedy trial in a relatively timely fashion by filing his motion for discharge 37 days following his arrest. See Greer at 53; United States v. Edwards, 577 F.2d 883, 889 (5th Cir.1978). This was less of a delay than that for the defendant’s assertion of rights in Howell, which was found to have been “relatively timely.” 418 So.2d at 1173.

As to factor (4), appellant, in asserting a faded memory due to the passage of time, did not show more specifically how a better recollection of his whereabouts would have improved his capacity to defend himself. Howell, quoting Edwards, notes that “in order to prejudice the defendant to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue .... Vague assertions of faded memory will not suffice.” 418 So.2d at 1174.

Although we might be unable to find actual prejudice, the foregoing process of weighing and balancing factors is nonetheless required. Howell notes “authority for the view that when the first three ... factors are heavily weighed in favor of the accused, the necessity for a demonstration of actual prejudice is not required.” 418 So.2d at 1174. However, Howell, affirming the trial court in its denial of the motion to dismiss, found that the first three factors were not weighed heavily in favor of the defendant in that case. The trial court in the present case, granting the motion for discharge, heard the evidence and was in a better position than we are to carry out that weighing process. Under the presumption of correctness of the trial court’s order of discharge, we cannot find that the foregoing first three factors, especially factor (1) involving a 23-month delay between the filing of the information and the hearing on defendant’s motion, do not heavily weigh the scales in favor of appellant. Therefore, the trial court’s order of discharge must be affirmed.

AFFIRMED.

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

      . The constitutional right to a speedy trial attaches upon arrest, filing of an indictment or an information, or other official accusation. United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). As to pre-accusation unconstitutional delays violative of due process, see Marrero v. State, 428 So.2d 304 (Fla. 2d DCA 1983).

      . See Howell at 1174, n. 14.