author: ZEHMER, Judge.

text:
    STATE of Florida, DEPARTMENT OF BANKING & FINANCE, ex rel. Gerald LEWIS, Appellant, v. STANDARD FEDERAL SAVINGS & LOAN ASSOCIATION and K-Mart Corp., Appellees.
    No. AY-101.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    See also, Fla.App., 452 So.2d 105.

      Walter W. Wood and Albert T. Gimbel, Asst. Gen. Counsel, Tallahassee, for appellant.
    Charles P. Schropp and David T. Knight, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees.
   ZEHMER, Judge.

The Department of Banking and Finance appeals the circuit court’s order denying the Department’s motion for a preliminary injunction to prohibit Standard Federal Savings & Loan Association and K-Mart Corporation from continuing their program of marketing Standard Federal money market accounts and certificates of deposit through K-Mart stores located in Ft. Laud-erdale, Orlando, and St. Petersburg. There are two primary issues on appeal:

1. Whether the circuit court erred in finding that “the federal government, by virtue of Title 12, U.S. Code, Section 1464, et seq., has preempted the regulation and supervision of federal savings and loan associations” to the extent that Standard Federal’s marketing program canrtot be controlled or regulated by state law?

2. Whether the circuit court erred in finding that, pursuant to Greater Miami Financial Corp. v. Dickinson, 214 So.2d 874 (Fla.1968), the activities of K-Mart and its subsidiary do not constitute “the business of soliciting or receiving funds for deposit,” in violation of Section 658.74, Florida Statutes (1983), which restricts such activities to state or national banks.

Both parties have represented that the operative facts are not in dispute. We adopt the statement of the facts set forth in the appealed order:

2. Defendant, Standard Federal Savings and Loan Association, hereafter referred to as ‘Standard Federal,’ is a federal savings and loan association chartered by the Federal Home Loan Bank Board (FHLBB) pursuant to the Home Owner’s Loan Act of 1933,12 U.S.C. 1464. It is a large mutual savings and loan association, located in Troy, Michigan. Defendant, K-Mart Corporation, hereafter referred to as “K-Mart,” is a large chain of retail stores operating in many parts of the country including Florida, and is chartered in Michigan. Its individual stores are in the category of large department stores engaged in the marketing of a vast variety of goods and services. K-Mart Insurance Services, Inc. (KMI), a wholly owned subsidiary of K-Mart, is a Texas corporation. Both K-Mart and its satellite subsidiary KMI are qualified to do business in Florida. Neither K-Mart nor KMI is registered as a broker/dealer under Florida or federal securities laws.
3. A written agreement was entered into December 22, 1983 between Standard Federal and KMI whereby KMI agreed to introduce members of the public, who come on the premises of certain K-Mart stores, to Standard Federal’s “certificates” and money market deposit accounts, and to solicit their interest in opening such accounts with Standard Federal. For such accounts as are opened pursuant to KMI efforts, a “finders fee” would be paid by Standard Federal to KMI. In paragraph 10 of the agreement are certain representations of KMI with regard to its corporate authority and other capacity to perform the contract. The contract was executed by the chief officers of both Standard Federal and KMI. Also, K-Mart contracted to act as guarantor of all obligations and duties of KMI, ‘and hereby makes all of the representations and warranties set forth in paragraph 10 hereof with regard to its execution of this Guaranty.’
4. Pursuant to these agreements, Standard Federal seeks to market through KMI, operating in stores of K-Mart, including three of K-Mart’s Florida stores, three types of money accounts involving the placing with Standard Federal funds in exchange for certain certificates evidencing the terms of the account. One type is designated “K-Mart Certificate,” with a term of as short as 91 days or as long as 120 months, with a minimum balance of $1,000 for 12 months or less and a less amount for 13 to 120 months. It provides for interest at money-market rates and allows withdrawals, and has other features similar to accounts of this kind. There is also a “K-Mart Bonus Rate Certificate” which provides a higher interest rate for a limited initial period, and the third type is designated “K-Mart Fund,” with a minimum balance of $2,500 and maximum of $100,000 with certain bonus interest on minimum balances of $25,000 and $50,000. Deposits and withdrawals with certain check writing features are provided. In the cities in which the accounts were offered, there were advertisements in daily newspapers in large type proclaiming that at K-Mart there could be procured high yielding insured savings accounts and describing generally the certificates available. In both the newspaper ads and the brochures the K-Mart logo is used and emphasized. Standard Federal is identified, and also the fact of the accounts being insured by Federal Savings and Loan Insurance Corporation is given some publicity. However, the emphasis is on K-Mart and its location. Its motto “the place to save,” is given display. KMI is not mentioned in the literature or advertizements.
5.The mode of operation pursuant to the contract is fairly simple. Space is provided at a K-Mart store for an employee or employees of KMI to contact members of the public interested in the savings accounts offered. Such employees explain to the prospects the contracts available, answer any questions that are asked, and, if a customer is responsive, helps fill out an application for the account desired, accepts checks, money orders or other negotiable instruments payable to Standard Federal, and forwards them to Standard Federal in Michigan to be processed. The contract is complete upon acceptance by Standard Federal, but the account is back dated to the date the application is made at K-Mart. After forwarding the application and check to Standard Federal, there is no further participation of K-Mart, KMI or its employees in the account. Standard Federal communicates by mail or telephone with the customer and all further dealings of any kind are made directly between the customer and Standard Federal. There is no contract of any kind between the customer and K-Mart or KMI.-... The contract arises upon acceptance by Standard Federal and the relationship of creditor and debtor is thereby created between those parties.

Early in 1984, the Department filed a complaint for preliminary and permanent injunction against Standard Federal and K-Mart on the ground that their participation in the program described above constitutes an unauthorized branch banking operation in Florida in violation of sections 658.74 and 665.1001(2), Florida Statutes (1983). The Department contends that the sale of certificates of deposit and the receipt of funds for deposit into savings accounts at Standard Federal through the K-Mart stores in Florida constitutes branch banking because K-Mart and KMI are essentially operating as agents of Standard Federal. Since Standard Federal is doing business through agents in Florida, the Department reasons, it has established a physical presence in the state sufficient to constitute a branch office, in violation of the applicable Florida statutes. The trial court denied the preliminary injunction on the grounds that federal statutes and regulations have fully preempted the state’s regulation of the establishment, operation, and supervision of federal savings and loan associations in Florida, and ruled that the Department may not enforce Florida statutes regulating branch banking against Standard Federal in this state court action. The court also ruled that the activities of K-Mart and its subsidiary, KMI, do not constitute banking activities which they are prohibited from engaging in by section 658.74, Florida Statutes.

The Department appealed the nonfinal order denying the preliminary injunction pursuant to rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure.

FEDERAL PREEMPTION

The doctrine of federal preemption is based on the federal supremacy clause, Article VI, of the United States Constitution. Pursuant to this clause, Congress may exercise its powers to occupy a legislative field and thereby preempt state laws. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). Where Congress has chosen to occupy a field, the doctrine of preemption applies and federal law (not state law) controls. Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961). Whether Congress has chosen to occupy a field and thereby preempt state regulation is a matter of congressional intent, or regulatory intent in the case of regulations promulgated under authority derived from congressional legislation, whether expressed in an explicit or implicit fashion. Express intent to preempt usually appears in the language of the statute or regulation itself; implicit intent to preempt an area is derived from the existence of several factors:

The Congressional purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.... Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.
* * * * * *
Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found ‘where compliance with both federal and state regulations is a physical impossibility’ ... or where the state ‘law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’

Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-58, 98 S.Ct. 988, 994-95, 55 L.Ed.2d 179 (1978), quoting in part from Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947) [citations omitted]. State regulation is deemed preempted where its enforcement “frustrates the full effectiveness of federal law.” Perez v. Campbell, 402 U.S. 637, 652, 91 S.Ct. 1704, 1712, 29 L.Ed.2d 233 (1971).

Clearly, Congress has not sought to preempt all vestiges of state regulation over the establishment, operation, and supervision of banking institutions and savings and loan associations. The division between state and federal responsibility has generally fallen along the lines of state regulation of state-chartered banks and savings and loan associations, while federal regulation governs federally chartered banks and savings and loan associations. Considerable, and sometimes confusing, overlapping of regulatory jurisdiction occurs because certain state institutions are insured by federal insurance agencies, e.g., the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation. Consequently, a statement that Congress has totally preempted the regulation of all operational activities by federal savings and loan associations is simply too broad. The precise question presented in this case is whether the relevant circumstances show that Congress has implicitly preempted state regulation of interstate solicitation and receipt of deposits by federal savings and loan associations.

We recognize, as pointed out by the Department, that federal courts are reluctant to interfere with state court deliberations in an area of concurrent state and federal regulations, Federal Home Loan Bank Board v. Court of Common Pleas, 510 F.Supp. 40 (N.D.Ohio 1981), and that “the fact that federal statutes or regulations covering some aspects of a regulated area are, by necessity, complex and detailed, does not imply that Congress intended to occupy the entire field to the exclusion of state law.” Morse v. Mutual Federal Savings & Loan Assn, of Whitman, 536 F.Supp. 1271,1280 (Dist. of Mass.1982). We agree with the Department’s observation that a court “should exercise extreme caution before finding preemption based upon federal agency action even assuming the agency has the delegated power to take such action.” Bleecker Associates v. Astoria Federal Savings & Loan Assn., 544 F.Supp. 794, 798 (S.D.N.Y.1982).

On the other hand, where a state court enjoined a federal savings and loan association’s solicitation of deposits in a manner contrary to state law, such injunction was held invalid on the ground of federal preemption. People of State of California v. Coast Federal Savings & Loan Assn., 98 F.Supp. 311 (S.D.Cal.1951). Ruling that the Federal Home Loan Bank Board (Board) had primary jurisdiction over solicitation and receipt of deposits by federal savings and loan associations, and that the state court lacked jurisdiction to enjoin such activity, the court in that case stated:

Congress expressly delegated the duty and authority to the Board to make policy, including the power to make rules and regulations for the organization, incorporation, examination, operation, supervision, and regulation of such associations which delegation of authority is constitutional.
* * * * * *
The Board has adopted comprehensive rules and regulations concerning the powers and operations of every Federal savings and loan association from its cradle to its corporate grave.... These rules and regulations have the force and effect of law, and are noticed judicially.

Id. at 316. See also, Conference of Federal Savings & Loan Associations v. Stein, 604 F.2d 1256 (9th Cir.1979), affd. 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754 (1980). This statement was quoted with approval by the United States Supreme Court in Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), holding that the Board’s regulations permitting the use of due-on-sale clauses preempted state law on the subject because the state law attempted to place greater restrictions on the practices of federal savings and loan associations than did the Board’s regulations and, thus, created an obstacle to the accomplishment and execution of the full purposes and objectives of the due-on-sale regulation.

In Washington Federal Savings & Loan Assn, of Miami Beach v. Balaban, 281 So.2d 15 (Fla.1973), the Florida Supreme Court addressed the question of federal preemption of the state’s efforts to regulate Washington Federal’s opening of a branch office in Florida in ostensible violation of Florida law. Holding that the state court could not enjoin Washington Federal's participation in a hearing before the Board in connection with its application for permission to open a branch office, the court stated:

By virtue of Title 12 U.S. Code, Section 1464 et seq., the Federal Government has pre-empted the regulation and supervision of federal savings and loan associations and the organization, incorporation, examination and operation of the same and location of offices and branch offices of federal savings and loan associations.

281 So.2d at 17. To a limited extent, therefore, the Florida Supreme Court has already addressed the preemption question before us, and its decision would appear to be controlling.

The Department contends, however, that since the decision in Washington Federal was handed down, Congress has amended the Home Owners Loan Act of 1933, 12 U.S.C.A., section 1464, and the Board has promulgated rules which reveal rather clearly that neither Congress nor the Board intends that federal law fully preempt regulation of the establishment, operation, and supervision of interstate branches by federal savings and loan associations because both the amended statute and the regulations defer to state law on this subject. It is true, as the Department argues, that Congress enacted the Garn-St. Germain Depository Institutions Act of 1982, Pub.L. 97-320, in 1982, amending section 1464 by adding subparagraph (r)(l), which limits the establishment or operation of “a branch outside the State in which the association has its home office” unless the association qualifies as a domestic building and loan association under section 7701(a)(19) of the Internal Revenue Code of 1954, or meets certain other specified asset requirements. New subparagraph (r)(2), however, provides that the limitations on branch operations contained in subparagraph (1) do not apply if one of four described conditions exists, including the condition described in subparagraph (2)(C) that “the law of the State in which the branch is or is to be located would permit establishment of the branch were the association an institution of the savings and loan or savings bank type chartered by the State in which its home office is located.” This provision, the Department argues, clearly evidences congressional intent to defer to state law regarding the operation of interstate branches and, thus, not fully preempt state law and regulation on this subject.

Moreover, the Department points out, in 1981 the Board adopted a rule setting forth the policy that it would generally approve the establishment of a branch only in the state in which the home office is located and would approve acquisitions resulting in interstate branch operations only to “prevent the failure” of endangered federally insured institutions. 46 Fed.Reg. 19,221 (1981). The Department refers to the case of Independent Bankers Assn, of America v. Federal Home Loan Bank Board, 557 F.Supp. 23 (D.C.1982), wherein the Court rejected a challenge to the validity of the above statement of policy and observed:

The Board has not changed its policies to favor the widespread adoption of interstate branching by all federal S & Ls. Rather, the Board has indicated its willingness to consider interstate branching in those very limited cases where such action is necessary to prevent imminent failure while avoiding inordinate expense that would deplete government insurance funds.

Id. at 26-27. The Department also refers to the Board’s existing rule on interstate branching, 12 C.F.R. § 556.5(a), which states in part:

(2) As a general policy, the Board permits a Federal association to branch if state law or state practice, in absence of statutory prohibition, permits state financial depository institutions to branch or to conduct chain, group or affiliate operations.

Subparagraph (3) of that rule provides that “the Board generally will approve the establishment of a branch only in the state in which the home office is located” and thereafter lists certain exceptions to this general prohibition on interstate branching where the establishment of such out-of-state branch is caused by merger or acquisition of the assets of such institution “to prevent the failure of one of the institutions,” or to reduce the insurance liability or risk to the federal savings and loan insurance corporation as a result of maintaining the branch office. Finally, the Department refers us to the Board’s recently announced rule, 48 Fed.Reg. 20,930 (1983), implementing the provisions of the Garn-St. Germain Act, pointing out that the rule also defers to state law and would, for the first time, allow approval of interstate branches in a state the law of which authorizes the transaction by which the branch office is established. The Department argues that since this rule proposing expansion of branching authority fully defers to state law, that fact negates any blanket application of the preemption doctrine to foreclose the state’s regulation of any aspect of interstate branching by federal savings and loan associations. Consequently, the Department reasons, the decisions in Washington Federal, de la Cuesta, Coast Federal Savings & Loan Assn., and the other cases relied on by appellees all predate the Garn-St. Germain Act and were not decided in light of its provisions and, thus, are distinguishable and not controlling on this question.

We do not find the Department’s argument persuasive. Neither the amendments in Garn-St. Germain, 12 U.S.C. § 1464(r), nor the Board’s proposed rule implementing those amendments, 48 Fed. Reg. 20,930 (May 10, 1983), evidences any congressional intent to defer to state law for the regulation of interstate branch operations of federal associations. Section 1464(r)(2)(C) merely incorporates state law as the standard to be followed by the Board in approving the establishment of a branch office in a state other than that where the home office is located. The Board’s proposed rule at 48 Fed.Reg. 20,-930 operates in a similar fashion. Both the statutory amendments and the rule support the implication that Congress still intends to preempt state regulation of this matter. Both the statute and the rule make it clear that the Board will have exclusive jurisdiction to regulate interstate branching, whether such branches are established contrary to state law or in a manner consistent with state law. Both the statute and the rule establish the policy that it is preferable to avoid establishing interstate branches in violation of state law unless compelling circumstances, such as to save a financially failing institution, requires otherwise.

We think our conclusion is supported by the Board’s comments in support of its proposed rules to implement the Garn-St. Germain Act. 48 Fed.Reg. 20,930-32 (1983). The Board there recognizes that “although the HOLA did not specifically address the Board’s authority to permit branching until the passage of the Garn-St. Germain Depository Institutions Act of 1982,” nevertheless “the Board has always had the authority to regulate branching of federal associations on an intrastate and an interstate basis.” The commentary states that the Board has permitted branch operations since 1937 and has made a policy statement emphasizing its preference for intrastate operations, but also notes that “the policy statement made it clear, however, that the Board maintained its discretionary statutory authority to permit interstate branching.” The commentary observes that financial difficulties encountered by the savings and loan industry from the beginning of 1980 through March 1983 have required the Board to approve the merger of weakened institutions with stronger institutions; and since intrastate mergers could not accomplish that result in some instances, “the Board has amended its branching policy statement three times in the last two years to specifically authorize interstate operations by federally chartered institutions in supervisory cases.” The commentary then notes that the Garn-St. Germain Act “reinforced the Board’s existing plenary authority to approve branching by federally chartered institutions and expanded the authority of the Board to approve interstate activities resulting from transactions involving state-chartered insured institutions and savings and loan holding companies.” The commentary observes, however, that subpara-graph (r) of the amended section 1464 does limit the Board’s authority to permit branching to certain specified situations. The proposed rule then announces a new Board policy for interstate branching of federal associations, noting that some state-chartered institutions are permitted by state law to acquire out-of-state branches and “it appears that if federal thrifts are not permitted to branch to the same extent as their state-chartered competitors, they will operate at a competitive disadvantage with those state-chartered institutions.” For this reason, the Board proposes to permit the establishment of interstate branch offices, whether de novo, by merger, acquisition, or otherwise, on a nonsupervisory basis where state law authorizes the transaction. Thus, it seems rather clear from the proposed rule and its commentary that the Board is not deferring to state regulation of federal institutions regarding branch banking; rather, it is purporting to exercise its plenary authority under federal statutes to regulate interstate branch operations of federal associations on a basis that, while compatible with state law for the most part, permits federal institutions to adequately compete through interstate branches with state-chartered institutions.

Accordingly, we find no basis in the statutory amendments or the Board’s proposed rulé for holding the Washington Federal decision inapplicable to the question presented here. The trial court correctly ruled that the doctrine of federal preemption precluded the Department from enforcing state laws regulating branch banking against Standard Federal through an action in state court.

Appellees, Standard Federal and K-Mart, also contend the federal preemption doctrine should be further extended to prevent the Department from attempting to enjoin K-Mart or KMI from acting as a finder or broker of deposits for Standard Federal because the use of such finders by federal savings and loan associations is specifically authorized by federal law. Ap-pellees argue that the Department, by defining the activities of K-Mart as “engaging in the business of banking” and by attempting to prohibit such activities through the enforcement of section 658.74, Florida Statutes, is seeking to eliminate the use of finders in Florida contrary to federal law. We refuse, however, to extend the doctrine of federal preemption to K-Mart and KMI. Although federal law does authorize Standard Federal’s use of finders in Florida, federal law does not purport to regulate such finders or brokers. Accordingly, K-Mart and KMI are fully subject to regulation by Florida laws regulating their activities as a finder or broker in Florida.

K-MART’S VIOLATION OF FLORIDA LAW

The Department contends that the activities of K-Mart violate section 658.74, Florida Statutes, which prohibits any person other than a state or national bank having its principal place of business in Florida from engaging in “the business of soliciting or receiving funds for deposit or of issuing certificates of deposit or of paying checks.” The trial court rejected this argument on the basis of the Florida Supreme Court’s decision in Greater Miami Financial Corp. v. Dickinson, 214 So.2d 874 (Fla.1968). In Greater Miami, the court reviewed a factual scenario involving the activities of a savings account broker in Florida who assisted his customers in relocating their money into out-of-state savings and loan associations at more favorable interest rates. As in the present case, the Florida comptroller sought to attack the arrangement on the ground that the actions of the broker constituted banking in violation of section 659.52(1), Florida Statutes (1959), the predecessor statute to section 658.74. Holding that the activities involved had “none of the characteristics of a savings and loan association,” the Supreme Court interpreted section 659.52(1) as “obviously designed to prevent non-banking institutions from exercising the powers or performing the functions of banks.” Id. at 877. The Court found the absence of a debtor/creditor relationship to be fatal to the comptroller’s claim that the brokering of savings accounts to out-of-state financial institutions constituted the business of banking, stating:

The appellant does not establish a debt- or/creditor relationship with its customers. Unlike a bank, it does not accept deposits for which it has any responsibility of redemption. It does not pay interest, issue or honor checks drawn upon it, issue savings account passbooks, lend money, charge interest, or issue monthly statements or any other evidence of indebtedness by or to its customers.

Id. at 876.

The function of K-Mart and KMI in the Standard Federal program is simply to acquaint potential depositors with the various accounts, to assist persons indicating an interest in opening such account to complete the necessary documents, and to accept, for forwarding to Standard Federal, an initial deposit in the form of a check or money order made payable only to Standard Federal. All further transactions and contacts with respect to the account are handled exclusively between the depositor and Standard Federal. Thus, as in the Greater Miami case, neither K-Mart nor KMI establishes a debtor/creditor relationship with its customers or engages in any other traditional banking functions. The trial court properly ruled, consistent with the Greater Miami decision, that the activities of K-Mart do not violate section 658.74 of the Florida banking laws.

The Department attempts to distinguish Greater Miami by pointing out that the language used in section 659.52(1), the statute construed in that case, stated that no person other than a bank shall “solicit or receive deposits,” while the present statute (section 658.74) states that no person other than a bank shall “engage in the business of soliciting or receiving funds for deposit.” The Department argues that the statutory language was changed to overcome the Greater Miami decision and recognize that entities which receive funds solely for deposit in other institutions are engaging in the business of banking in violation of section 658.74 just as much as those receiving direct deposits. We reject this interpretation of the change in statutory language. In the first place, the change in language occurred many years after the Greater Mi ami decision, and this time lag belies any intention to overcome the Greater Miami decision. The Supreme Court's statement in Greater Miami that “this statute is obviously designed to prevent non-banking institutions from exercising the powers or performing the functions of banks” (Id. at 877), and the underlying rationale of the Greater Miami decision are equally applicable under the wording of both statutes. The actions of K-Mart and KMI do not amount to traditional banking functions within the scope of section 658.74, Florida Statutes, and are not subject to being enjoined as violating that section.

The Department did not allege a violation of state securities laws in its initial complaint against appellees, and that issue is not before us. We note, however, that both parties represented to this court at oral argument that the Department is in the process of amending its complaint to include such a claim. Our holding in this case does not reach, and is without prejudice to, the Department’s right to seek compliance by K-Mart and KMI with any applicable state securities laws or other state laws regulating brokers or finders of savings deposits that may be properly applicable to these parties.

SMITH and JOANOS, JJ„ concur.

      . Section 658.74 provides in part:
      (1)(a) No person other than a state bank or a national bank having its principal place of business in this state shall, in this state, engage in the business of soliciting or receiving funds for deposit or of issuing certificates of deposit or of paying checks; and no person shall establish or maintain a place of business in this state for any of the functions, transactions, or purposes mentioned in this subsection.
      ******
      (2)(b) No bank, other than a state bank or a national bank having its principal place of business in this state, shall establish or maintain an office or place of business in this state for the purpose of engaging in the business of lending money or soliciting for such purpose.
      ******
      (5) [NJothing in this code shall be construed to prohibit any advertisement or other activity in this state by any person if such prohibition would contravene any applicable federal law which preempts the law of this state, (emphasis added)

      . Section 665.1001(2) provides:
      No foreign association shall do any business of a savings association or savings bank within this state or maintain an office in this state for the purpose of doing'such business, including, but not limited to, the establishment of a branch office. The origination of real estate mortgages covering real property located in this state is considered doing business as a savings association unless the state of domicile of the principal business office of any such foreign association permits associations from this state to originate real estate mortgages covering real property located in such state.

      . Justice O’Connor, concurring in Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 stated at pages 171-172, 102 S.Ct. 3014 stated at page 3032, 73 L.Ed.2d 664 (1982).
      Although Congress delegated broad power to the [Federal Home Loan Bank] Board to ensure that federally chartered savings and loan institutions 'would remain financially sound’ ... it is clear that HOLA [Home Owner's Loan Act of 1933, as amended] does not permit the Board to pre-empt the application of all state and local laws to such institutions. Nothing ... in the Court’s opinion, should be read to the contrary. (Citations omitted)


source: Caselaw Access Project

author: NIMMONS, Judge.

license: Public Domain

text:
    Cheryl Yates SWEAT, Appellant, v. Maria YATES, as Personal Representative of the Estate of William C. Yates, Appellee.
    No. AY-257.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Rehearing Denied Feb. 27, 1985.
    John R. Forbes and Mark S. Kessler, Jacksonville, for appellant.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellee.
   NIMMONS, Judge.

Appellant Sweat appeals from a summary judgment. We reverse the summary judgment because there is a genuine issue as to the validity of the deed in question.

The facts are undisputed. On September 18, 1982, William G. Yates signed a deed to property owned by him. The deed purported to convey the property to Yates and his daughter, Cheryl Yates Sweat, as joint tenant with right of survivorship. Yates entered the hospital on September 19, 1982. The next day, September 20, 1982, two persons, who had not been witnesses to the signing of the deed, signed their names to the deed as witnesses.

Yates died on Saturday, September 25, 1982. Sweat recorded the deed on Monday, September 27, 1982. Thereafter, two persons said to have been present when Yates signed the deed added their names as witnesses and the deed was re-recorded on October 5, 1982. Sweat took possession and claimed ownership of the property.

On July 2, 1983, Marie Yates, as personal representative of the Estate of William Yates, filed a complaint seeking cancellation of the deed. Mrs. Yates moved for summary judgment on the basis that the deed was void as a matter of law because it was not executed in the presence of two subscribing witnesses as required by Section 689.01, Florida Statutes. In granting summary judgment, the trial court concluded that “the deed in question was not duly executed and delivered in the lifetime of the purported grantor and was, therefore, null and void and of no legal effect.” Contrary to the trial court’s ruling, we find that the record in this case does not demonstrate that there is no genuine issue as to the validity of the deed.

Section 689.01, Florida Statutes, does not require that witnesses must subscribe in the presence of the grantor or in the presence of eaA other, nor does it require that the subscribing witnesses sign the document before delivery is accomplished. See Medina v. Orange County, 147 So.2d 556 (Fla. 2nd DCA 1962). Moreover, a deed takes effect from the date of delivery, and the recording of a deed is not essential to its validity as between the parties or those taking with notice. The failure of Sweat to record the subject deed before the grantor died did not render the deed void. The recording statute has always been primarily intended to protect the rights of bona fide purchasers of property and creditors of property owners, rather than the immediate parties to the conveyance. Fong v. Batton, 214 So.2d 649 (Fla. 3rd DCA 1968).

The only finding of the trial court that could possibly support the summary judgment was a finding that the deed was un-witnessed, but this finding is rebutted by the trial court’s additional finding that there were two persons “said to have been present at the time and place Yates signed the deed” who added their names as witnesses. Since there is some evidence that there were two witnesses to the signing of the deed, there exists a genuine issue as to the validity of the deed.

Accordingly, the summary judgment is Reversed and the case is Remanded for further proceedings consistent with this opinion.

JOANOS and WIGGINTON, JJ., concur.


author: DOWNEY, Judge. LETTS, Judge, PER CURIAM. LETTS, Judge,

text:
    FOURTH COMMERCE PROPERTIES CORPORATION, Appellant, v. PIONEER NATIONAL TITLE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 83-964.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Rehearing Denied March 6, 1985.

      J.A. Plisco, Palm Beach, and Larry Klein, West Palm Beach, for appellant.
    Dennis J. Powers of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, Fourth Commerce Properties Corporation, seeks reversal of a final summary judgment in favor of appellee Pioneer National Title Insurance Company, finding that Pioneer’s mortgagee insurance policy did not afford coverage under the peculiar facts of the case.

In 1975 Le Chalet, Inc., as owner of certain realty, executed and delivered a construction loan mortgage to Virginia National Bank (VNB). Pioneer insured that mortgage. Thereafter, in 1979, Steckmar National Realty Corp. entered into an agreement to purchase the aforementioned realty from Le Chalet, which agreement was recorded in the public records of Palm Beach County. That agreement was never performed by the parties and ended in litigation which Steckmar lost. Nevertheless, the agreement remained of record. On April 1, 1980, VNB assigned the insured mortgage to Fourth Commerce. Because Le Chalet was in default on the mortgage and note, Fourth Commerce initiated a suit to foreclose the mortgage against Le Chalet. Fourth Commerce included Steckmar in the foreclosure suit as a defendant because of the Le Chalet-Steckmar purchase and sale agreement that was filed in the public records. Steckmar responded to the foreclosure complaint of Fourth Commerce by answer, affirmative defenses and counterclaims. Paragraph 13 of the Fourth Commerce complaint alleged that the mortgage in question was executed on August 14, 1975, by Conrad J. DeSantis, the fee simple owner of said property. It was further alleged that the mortgage was recorded in the public records of Palm Beach County. Steckmar separately answered each paragraph of the complaint. As to paragraph 13 of the complaint, the answer alleged: “Denied except as to the existence of Public Records.” Counsel for Fourth Commerce informed Pioneer of the Steck-mar answer and counterclaims, but did not demand that Pioneer enter the litigation. After Fourth Commerce successfully obtained a final judgment of foreclosure, a copy of which had been furnished Pioneer, Steckmar unsuccessfully appealed that judgment. Thereafter, Fourth Commerce notified Pioneer of its claim for costs and attorney’s fees incurred in the foreclosure.

The policy in question provided coverage as follows:

SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B IN THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, PIONEER NATIONAL TITLE INSURANCE COMPANY ... insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys’ fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:
2. Any defect in or lien or encumbrance on such title;
5. The invalidity or unenforceability of the lien of the insured mortgage upon said estate or interest except to the extent that such invalidity or unenforceability, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon
a. usury, or
b. any consumer credit protection or truth in lending law;
6. The priority of any lien or encumbrance over the lien of the insured mortgage; ....

The duty to defend is set forth in section 3(a) of the “Conditions & Stipulations” of the policy as follows:

The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of actions or proceedings commenced against such insured, or defenses, restraining orders or injunctions interposed against a foreclosure of the insured mortgage ... to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.

Thus, it appears that Pioneer agreed to defend Fourth Commerce, the insured, “in all litigation consisting of ... defenses, ... interposed against a foreclosure of the insured mortgage ... to the extent that such litigation is founded upon an alleged defect ... or other matter insured against by this policy.”

A great deal of the argument between the parties focuses upon the use of the word “defenses” as used in the policy. Fourth Commerce contends that Pioneer was required to enter the litigation and represent Fourth Commerce when Steck-mar denied the allegations of paragraph 13 of the complaint, which alleged that DeSan-tis, the owner of the property, executed the mortgage. Pioneer disagrees and argues that such a denial that the mortgage was properly executed by the owner of the property is not a “defense” within the terms of the policy; that in order to come within that term the defensive matter would have to be asserted by an affirmative defense. Each party cites definitions, rules and text material that favors his view. However, none of them appear controlling.

In the context of this case it appears the term “defenses” is ambiguous and thus must be construed against Pioneer. Travelers Insurance Company v. Bartoszewicz, 404 So.2d 1053 (Fla.1981). Furthermore, since the undertaking by Pioneer assured the validity of the mortgage as a lien on the property (subject to the exception provisions of the policy) it appears to us the issue triggering coverage was Steckmar’s attack on the validity of the mortgage. Steckmar denied that the owner of the property had executed the mortgage. If Fourth Commerce was unable to prevail on that issue, it could not successfully foreclose the mortgage. Whether Steckmar succeeded in defending against the foreclosure by defending against the allegations of paragraph 13 via a denial thereof, or by asserting in a separate affirmative defense that the owner had not executed the mortgage, is of no consequence. Whether the issue was created by a denial in the answer or an affirmative defense in the answer, it was the insurer’s obligation to litigate the issue.

Finally, Pioneer’s contention that a favorable holding for Fourth Commerce in this case would wreak havoc in the title insurance industry is not persuasive. The industry writes the policy and it is up to it, or the individual companies, to describe the coverage undertaken.

Accordingly, the judgment appealed from is reversed and the cause is remanded with instructions to reinstate the cause, and for further proceedings.

REVERSED AND REMANDED, with directions.

WALDEN, J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

I dissent, not out of sympathy for the havoc this decision will play with the title insurance industry, but because the majority’s construction of the policy language leads to an erroneous result.

The policy of mortgagee title insurance in this case was written to insure that the lender’s mortgage was a first lien on the property. Many years after that mortgage policy was issued,' and at all events subsequent to any update endorsements thereof, an agreement of purchase and sale was placed of record. The sale never took place and the purchaser lost his bid for specific performance in a separate lawsuit. Not surprisingly, when the original lender foreclosed the mortgage, which thereafter fell into default, it named that unsuccessful purchaser because the recorded agreement was still of record. It is doubtful if the lender had to do so in view of the outcome of the separate suit for specific performance, but out of an abundance of caution it did.

The duty to defend clause in the policy, on which the majority heavily depends, concludes that that duty is limited to defects, liens, encumbrances or other matters “insured against by this policy” (emphasis supplied). Quite simply, it is my view that the controversy here was not insured against by this policy because the unsuccessful purchaser who has interposed this general denial acquired whatever interest he had long after the policy was written and his affirmative defenses and his counterclaims are plainly not directed to the validity of the original mortgage or any lien or defect superior to it.

I could waffle on for pages on this subject, but dissents are but breast beating and I have said enough. At a minimum this decision should be certified, for it surely involves a matter of great public importance. As I see it, the law of the Fourth District, as of today, will require title insurance companies to pay the costs and fees of foreclosing mortgages every time any junior lien holder, who acquires his interest years after the policy is issued, files a general denial when named in a foreclosure suit.

ON PETITION FOR REHEARING

PER CURIAM.

The petition for rehearing is denied. However, appellee’s suggestion and motion for certification to The Supreme Court of Florida is granted and the following two questions are certified to The Supreme Court of Florida as matters of great public importance:

I
Is an insurer under a mortgagee insurance policy that insures against loss or damage sustained or incurred by the insured by reason of the invalidity or unen-foreeability of the lien of the insured mortgage upon the estate or interest involved obligated, in a foreclosure of said mortgage, to provide a defense to the insured against the claim of a defendant raised by general denial that the insured mortgage was executed by the fee simple owner of the mortgaged property?
II
Was the claim asserted in this case by way of a general denial that the insured mortgage was executed by the fee simple owner of the property subject to the insured mortgage litigation founded upon an alleged defect, lien, encumbrance, or other matter insured against by the policy in question obligating the insurer to provide a defense to the insured?

DOWNEY and WALDEN, JJ., concur.

LETTS, J., concurs specially.

LETTS, Judge,

specially concurring.

I am glad the Supreme Court will have the opportunity to review our decision, but I disagree with the form of the second question.

      . In fact, after his "denied except as to existence of public records," the unsuccessful purchaser admits his only claim of interest is that set forth in his counterclaim.


author: JOANOS, Judge.

text:
    David Michael SUMMERS, Appellant, v. STATE of Florida, Appellee.
    Nos. AT-36, AX-267.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    Rehearing Denied Feb. 27, 1985.
    Robert Augustus Harper, Jr., and John R. Perry, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Greg Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

This is an appeal from a denial of a motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As ground for relief appellant alleged that his guilty plea to a charge of sexual battery was not made voluntarily or with an understanding of the nature of the charge, due to ineffective assistance of counsel. We affirm.

By a four-count information, the state charged appellant with burglary with a firearm, kidnapping, sexual battery with a firearm, and aggravated assault with a firearm. Appellant was represented at the preliminary proceedings and in the plea bargaining process by out-of-state counsel retained by his parents. On advice of counsel, appellant pled guilty to the Count III charge of sexual battery, in return for the state’s agreement to enter a nolle prosequi to Counts I, II, and IV.

As support for his motion for post-conviction relief, appellant maintains that he and his family were persuaded that he should plead guilty, because his attorney advised that appellant was facing a possible death penalty if he did not accept the state’s plea negotiation. At the hearing on the 3.850 motion, appellant’s wife and mother both testified that they were convinced appellant faced the electric chair unless he pled guilty. Appellant’s counsel acknowledged that he used the terms “capital punishment and capital felony” in his discussions with appellant and appellant’s family. Counsel explained that his references to “capital” offenses were an attempt to convey the seriousness of the offenses with which appellant had been charged.

The most recent United States Supreme Court pronouncement with regard to ineffective assistance of counsel appears in Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland the court held there are two components to an ineffective assistance of counsel claim: (1) the defendant must show that counsel’s performance was deficient, and (2) the defendant must show that the deficient performance prejudiced the defense. To prevail on a claim of prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., 104 S.Ct. 2064.

In this state, ineffective assistance of counsel claims have been assessed by the standards set out in Knight v. State, 394 So.2d 997 (Fla.1981), in which the Florida Supreme Court adopted the principles of United States v. De Coster, 624 F.2d 196 (D.C.Cir.1979) (en banc). After the issuance of Strickland, Justice Adkins, writing for the Florida Supreme Court, said: “[w]e are of the opinion that [the Strickland] test does not differ significantly with the Knight standard of ‘a likelihood that the deficient conduct affected the outcome of the court proceedings.’ ” Jackson v. State, 452 So.2d 533, 535 (Fla.1984). See also: Dobbert v. State, 456 So.2d 424 (Fla.1984).

A careful reading of the record in this case indicates there was a degree of mis-communication between appellant and his counsel. We note that the trial court indicated some reservation about the quality of representation provided appellant. Still, the trial court felt, and we agree, that the representation did not affect the voluntariness of appellant’s guilty plea. This record reflects that appellant and his family were informed fully by the trial court of the maximum possible sentences appellant faced on each of the charges. When appellant moved to withdraw his plea of not guilty in order to enter a plea of guilty to the charge of sexual battery only, the trial court scrupulously questioned him as to his understanding of the nature of the plea and all its ramifications. We find that on these facts the miscommunication did not constitute a “substantial and serious deficiency” as contemplated by Knight, at 1001. Nor did the miscommunication so affect the proceeding that but for the failure of appellant and his counsel to communicate effectively “the result of the proceeding would have been different.” Strickland, 104 S.Ct. at 2068.

The first change of plea proceeding was held Friday, February 18, 1983. At that time the trial court neglected to instruct appellant on the mandatory minimum 3-year sentence due to the use of a firearm, as charged in Count III. Appellant was returned to court on Monday, February 21, 1983, for correction of this oversight. On Monday the trial court asked appellant if his attorney had explained the mandatory minimum sentence. Appellant replied that his attorney had not, so the trial court did so — and also gave appellant the opportunity to withdraw his plea.

We find that any possible prejudice appellant incurred as a result of his counsel’s failure to inform himself adequately on the applicable Florida law was cured by the meticulous care taken by the trial court at the plea colloquy. The trial court informed appellant of the maximum sentence for the offense charged, and afforded appellant an opportunity to withdraw his plea due to the prior failure to inform concerning the minimum mandatory 3-year sentence. The denial of appellant’s 3.850 motion alleging ineffective assistance of counsel is affirmed.

WIGGINTON and BARFIELD, JJ., concur.


author: MILLS, Judge. MILLS, Judge.

text:
    Mark ODEN, William Runyon, and Gary Botto, Appellants, v. STATE of Florida, Appellee.
    Nos. AY-68, AY-71 and AY-92.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.
    Request for Certification Granted and Rehearing Denied Feb. 7, 1985.
    Conrad C. Bishop, Jr. and Stephen Murphy, Perry, for appellants.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen. for appellee.
   MILLS, Judge.

In this consolidated appeal, Oden, Runyon, and Botto raise three issues. They contend the trial court erred in (1) ordering more complete and thorough presentence investigation reports, (2) denying motions for stay, and (3) departing from the sentencing guidelines. We affirm as to Issue I. We do not consider Issue 2. As to Issue 3, we find the trial court erred and vacate appellants’ sentences.

Appellants were involved in an inmate riot at the Cross City Correctional Institution in January 1983. Following negotiations with the State, they pleaded guilty to attempting to cause a riot, throwing deadly missiles, and burglary. A condition of all three plea bargains was that the sentence imposed not exceed 12 years imprisonment consecutive to the sentence currently being served. The trial court conditionally accepted the pleas pending presentence investigation.

On the day scheduled for sentencing, the prosecutor informed the trial court that he felt the presentence investigations reports did not adequately reflect the defendants’ participation in the riot. Over objections of defense counsel, the trial court deferred sentencing and directed that more complete and thorough presentence investigation reports be provided to the court.

Thereafter, appellants filed with the trial court motions for stay pursuant to Florida Rule of Appellate Procedure 9.310(a). Defense counsel argued at the hearing on the motions that the motions should be granted in order to allow appellants to seek writs of prohibition with this Court overturning the trial court’s order regarding the presen-tence investigation reports. The motions were denied.

At the subsequent sentencing hearing held on 23 February 1984, appellants affirmatively selected sentencing pursuant to the sentencing guidelines. In each case, the trial court stated it was deviating from the recommended range under the guidelines. There is, however, no written document in the record giving the trial court’s reasons for departing from the guidelines.

Oden was sentenced to a total of ten years in prison. Runyon and Botto were each sentenced to a total of eight years in prison. All sentences were consecutive to those currently being served.

Appellants first argue the trial court erred in ordering more complete and thorough presentence investigation reports. The trial court, however, has a duty to inform itself of matters relevant to sentencing. Ordering a presentence investigation is therefore a matter within the trial court’s discretion. Moody v. State, 418 So.2d 989 (Fla.1982); Florida Rule of Criminal Procedure 3.710. That discretion was not abused in this instance.

We do not decide whether the trial court erred in denying the motions for stay. Having pleaded guilty, appellants may not raise this issue on direct appeal. See, Robinson v. State, 373 So.2d 898 (Fla. 1979); Section 924.06(3), Florida Statutes (1983).

It was reversible error for the trial court to depart from the guidelines without providing a contemporaneous written statement of the reasons therefor at the time each sentence was pronounced. Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984). We therefore vacate the sentences and remand for resentencing. Should the trial court again decide to depart from the guidelines, it should follow the requirements of Jackson.

The sentences are vacated and the cases remanded for resentencing.

ERVIN, C.J., and ZEHMER, J., concur.

ON REQUEST FOR CERTIFICATION OF CONFLICT

MILLS, Judge.

In following Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), on the issue of the need for written reasons for departing from the guidelines, we certify conflict, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), with Bell v. State, 459 So.2d 478 (Fla. 5th DCA 1984); Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984); Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984); Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Klapp v. State, 456 So.2d 970, 971 (Fla. 2d DCA 1984); Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); and Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).

ERVIN, C.J., and ZEHMER, J., concur.


text:
    SUNTIDE CONDOMINIUM ASSOCIATION, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, Appellee.
    No. AV-198.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      F. Shields McManus, McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
    Karl M. Scheuerman, Dept, of Business Regulation, Tallahassee, for appellee.
   ZEHMER, Judge.

Suntide Condominium Association appeals a final order of the Division of Land Sales and Condominiums requiring Suntide to cease and desist from assessing the condominium’s common expenses equally against each unit owner, in violation of section 718.115, Florida Statutes (1983). This is the second time Suntide has been before this court appealing the final cease and desist order from the Division. On the first appeal, we discussed the specific facts of the case and arguments of the parties and, finding an insufficient record, we remanded to the agency for further fact-finding proceedings. Suntide Condominium Assn., Inc. v. Division of Florida Land Sales and Condominiums, 409 So.2d 65 (Fla. 1st DCA 1982). Those proceedings have been conducted, the Division has issued another final cease and desist order, and we now affirm that order.

Briefly stated, the facts are that in late 1974 Suntide Condominium was conceived and planned by the developer, and in early 1975 a proposed declaration of condominium was drafted and executed. At that time, section 711.14, Florida Statutes (1973), provided that common expenses may be assessed “according to the declaration.” The proposed declaration of condominium provided that common expenses would be assessed equally against each unit owner. Prior to July 1, 1975, two contracts for the purchase of Suntide Condominium units were executed by potential purchasers, and these contracts contained a clause permitting the developer to cancel the contract unilaterally if he determined not to submit the property to “a condominium plan of ownership.” On July 1, 1975, an amendment to section 711.14, Florida Statutes, became effective and provided that common expenses must be assessed against unit owners “in the proportions or percentages of ownership of the common elements provided in the declaration.” Subsequent to July 1, the proposed declaration of condominium was formally recorded. § 711.08, Fla.Stat. (1975).

The Division takes the position that Sun-tide is prohibited by the July 1, 1975, amendment from assessing expenses for the common elements of the condominium equally against each unit owner as originally provided in the proposed declaration of condominium. Suntide argues that application of this statutory amendment to the two contracts executed prior to the effective date of the amendment constitutes an ex post facto law or a law impairing the obligation of a contract, in violation of article I, section X, Florida Constitution. In response to Suntide’s argument, the Division contends that the contracts executed prior to the effective date of the amendment were not valid and enforceable contracts until the declaration of condominium was actually recorded as required by section 711.08, Florida Statutes (1975). The Division essentially contends that the clause permitting the developer to cancel the purchase contract if the property is not submitted to condominium development renders the agreement conditional and not mutually enforceable by the parties until the developer has established the legal existence of the condominium by recording the declaration. As such, the Division treats the clause as a condition precedent to enforceability of the contract. Suntide argues that the clause simply provides for a condition subsequent that does not affect the validity and enforceability of the contract unless the stipulated condition should not occur.

The purpose of remand on the prior appeal was to develop the record more fully to facilitate a determination of whether there is any basis for finding that, notwithstanding Suntide’s failure to record the declaration of condominium until after July 1, 1975, the two contracts were mutually enforceable when executed and created vested rights that could not thereafter be altered by statute. The hearing officer construed our prior opinion as holding that the contracts should be considered enforceable prior to recording the declaration of condominium if the developer elected to submit the property to a condominium plan of ownership prior to July 1, 1975. Based upon this construction of our prior opinion, the hearing officer took evidence, found that the developer had made such election prior to July 1, 1975, and concluded the contracts were valid and enforceable at that time. The Division disagreed with the hearing officer and rejected his conclusions of law, holding instead that Suntide Condominium did not achieve legal existence until the declaration of condominium was actually recorded pursuant to the statute and that until that time the executed contracts were unenforceable for lack of mutuality. Because the declaration was recorded after the statutory amendment became effective, the Division reasoned, the declaration and the purchasers holding the contracts were governed by the amended section 711.14, which required assessment of common expenses in proportion to ownership interest. Accordingly, the Division ordered Suntide to cease and desist from assessing common expenses equally between unit owners.

We approve the Division’s construction of our prior opinion. We agree with the Division’s construction of the contracts of purchase and affirm its order holding that Suntide must cease and desist from assessing common expenses equally against each unit owner. The Division correctly points out that condominiums are strictly a creature of statute. Pursuant to the law as it existed before and after July 1, 1975, a condominium could be legally created only by recording a declaration of condominium in the public records of the county wherein the land is located. § 711.-08, Fla.Stat. (1975); Hovnanicm Florida, Inc. v. Division of Florida Land Sales & Condominiums, 401 So.2d 851 (Fla. 1st DCA 1981). The law in existence on the date of recording the declaration is as controlling as if engrafted onto the documents. Sans Souci v. Division of Florida Land Sales & Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). Nothing in the record on appeal nor in the briefs of the parties shows any basis for concluding that the two executed contracts vested in these purchasers the unconditional right to enforce the terms of the proposed but unrecorded declaration of condominium, irrespective of any statutory changes applicable to such declarations prior to the date the declaration became effective. We conclude — as did the Division — that the contracts and declaration did not become unconditionally final and fix all rights and obligations between the parties until the condominium was legally established by recordation of the declaration. Section 711.14, as amended July 1, 1975, did not improperly impair any obligation of contract and is not constitutionally invalid as applied in this case.

AFFIRMED.

ERVIN, C.J., and BOOTH, J., concur.


author: PER CURIAM.

text:
    Arthur E. COPELAND, III, Appellant, v. STATE of Florida, Appellee.
    No. 82-1349.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Rehearing Denied Jan. 31, 1985.
   ON MOTION TO ENFORCE MANDATE

PER CURIAM.

Defendant, Arthur E. Copeland, has filed a motion for enforcement of mandate pursuant to our decision in Copeland v. State, 435 So.2d 842 (Fla. 2d DCA 1983), petition for review denied 443 So.2d 980 (Fla.1983).

The issue on appeal was whether the trial court erred in denying the defendant’s motion to suppress a cassette tape recording containing self-incriminating statements made by the defendant during a private conversation inside his apartment. We determined that the application and order authorizing the interception of the taped communication did not comply with certain provisions of chapter 934 and that the order permitted an unconstitutional general search. As such, the conversation was unlawfully obtained. Thus, we held that the trial judge erred in admitting the cassette tape recording of the conversation at trial.

After the Copeland opinion was filed, the state filed a Petition for Rehearing or for Certificate of Question to the Florida Supreme Court contending, inter alia, that the appeal was contrary to existing case law. The state did not raise at that time, as it failed to do on appeal, the distinction between the conversation on the subject tape which took place in the defendant’s home and the conversation which took place in the surrounding area of defendant’s home.

The state then petitioned the Florida Supreme Court for review of this court’s decision. The petition was denied. Subsequently, the mandate of this court was entered and the case was remanded to the trial court for further proceedings. Following remand, the state filed its Motion Regarding Admissibility of Tape Recordings which alleged that an unspecified portion of the taped conversation with the informant occurred outside of the defendant’s home, and thus part of the conversation contained on the cassette tape should not have been suppressed. The trial court granted the state’s motion over defendant’s objection that the inadmissibility of the cassette tape recording was previously decided in the Copeland appeal.

As previously noted, in Copeland’s direct appeal the state never took the position that, even if the recording of the conversation inside the home were constitutionally impermissible, portions of the conversation which took place outside the home could properly be introduced into evidence. The state not having raised this issue on appeal, is now foreclosed from raising this point by way of its response to the defendant’s motion to enforce the mandate. See Early Mobile Homes, Inc. v. City of Port Orange, 306 So.2d 177 (Fla. 1st DCA 1975).

Moreover, the inadmissibility of the tape in its entirety was ruled on in the Copeland opinion. Therefore, the trial judge had no authority to enter a new order upon a point already decided in a prior appeal. State v. Christian, 463 So.2d 264 (Fla. 2d DCA 1984).

Accordingly, the trial court’s order granting the state’s Motion Regarding Admissibility of Tape Recordings is stricken.

GRIMES, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


author: COWART, Judge.

text:
    Sidney JAFFE, Petitioner, v. The Honorable Edwin SANDERS, as Judge, etc., Respondent.
    No. 84-1783.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Rehearing Denied Feb. 8, 1985.

      Michael L. Yon Zamft of Kravitz & Yon Zamft, Hialeah, and Fletcher N. Baldwin, Jr., Gainesville, for petitioner.
    No appearance for appellee.
   COWART, Judge.

This case involves double jeopardy and collateral estoppel.

Petitioner, Sidney Jaffe, was first charged, tried, convicted and sentenced as to twenty-eight counts of unlawful land sales practices allegedly in violation of sections 498.033(3) and 498.059, Florida Statutes (1979). Those convictions and sentences were reversed by this court not because of any insufficiency of the evidence to establish a properly charged crime but because the charging document failed to state a criminal cause of action, in that, the cited statutes prohibited material changes, alterations or modifications in the subdivider’s offering and the charging document in that prosecution alleged that Jaffe had made a material change, alteration or modification of the order of registration. Jaffe v. State, 438 So.2d 72 (Fla. 5th DCA 1983).

Jaffe has now been charged with the offense of organized fraud as proscribed by section 817.036, Florida Statutes (1981), it being alleged that he fraudulently obtained money from certain persons by misleading them to believe he would deliver them marketable title to certain property.

Petitioner moved to dismiss the organized fraud charge on the grounds of double jeopardy and collateral estoppel. The trial judge denied those motions. This is a petition for this court to issue its writ of prohibition to bar Jaffe’s continued prosecution on the organized fraud charge on the same two grounds asserted in the motions to dismiss before the trial court.

There is no double jeopardy impediment to prosecution of the organized fraud charge against Jaffe by virtue of the prior unlawful land sales practice charges in that, even if the two criminal prosecutions related to the exact same factual circumstances (and they do not), the two statutory offenses involved are substantively different in that each statutory offense has many essential constituent elements that the other offense does not have. See Borges v. State, 415 So.2d 1265 (Fla.1982); State v. Baker, 452 So.2d 927 (Fla.1984); State v. Baker, 456 So.2d 419 (Fla.1984); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981). Furthermore, Jaffe, supra, in effect held the charging document in the first prosecution failed to allege a crime, therefore, Jaffe was never put in jeopardy of a valid conviction in the first prosecution.

There is no collateral estoppel impediment to prosecution of Jaffe on the organized fraud charge by virtue of the prior unlawful land sales practice prosecution because under that doctrine as set forth in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the first prosecution must result in a jury verdict that necessarily determines some fact in favor of the defendant which fact is contrary and inconsistent with some fact the prosecution must necessarily prove in order to prevail in the second prosecution. The jury in the first prosecution of Jaffe, unlike the jury in Ashe, found Jaffe guilty and therefore found no fact in favor of Jaffe. As to a defense of “former” jeopardy it makes no difference whether the first prosecution results in a conviction or acquittal but as to the doctrine of collateral estoppel the State is estopped to prosecute a second charge and relitigate a fact only when the State has in a collateral criminal case once suffered an adverse jury verdict as to some one fact which is essential to a successful prosecution of the subsequent charge and that only occurs when the defendant has been found not guilty in the first prosecution, as in Ashe.

WRIT DENIED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: DAUKSCH, Judge. COWART, Judge,

text:
    ALLSTATE INSURANCE COMPANY OF CANADA, et al., Appellants, v. VALUE RENT-A-CAR OF FLORIDA, INC., et al., Appellees.
    No. 83-1596.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    Rehearing Denied Feb. 13, 1985.

      Elizabeth C. Wheeler, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellants.
    Kimberly A. Ashby, of Maguire, Voorhis & Wells, P.A., Orlando, for appellees.
   DAUKSCH, Judge.

This is an appeal from a summary judgment determining rights between insurance companies.

Donna Bennet was injured by a vehicle driven by Robert Cairns. Cairns was insured by appellant Allstate which settled with Donna Bennet for the limits of its coverage, $80,000. Cairns was driving a leased vehicle when he injured Bennet and the vehicle was insured for the lessor by appellee Value. Value paid Bennet $130,-000, which was the balance of the settlement due Bennet under an agreement between her and Cairns and the vehicle lessor. Twenty thousand dollars of the $130,-000 paid by Value was for “personal injury protection” and “financial responsibility” under the appropriate statutes. The remaining $110,000 paid by Value was the remaining amount, over that available from Allstate, to reach the agreed settlement of $210,000.

This lawsuit involves the claim by Allstate that the owner of the vehicle and its insured are primarily liable for payment to Bennet and that the driver’s insurer, Allstate, is entitled to reimbursement for all it paid to Bennet. Allstate’s argument is twofold: one, that the lessor’s insurance was “primary” up to the limits of its coverage and; two, that lessor did not properly shift the primary responsibility to the lessee as required by section 627.7263, Florida Statutes (1983).

The lessor’s position is that the lease agreement requires the lessee’s coverage to be primarily responsible for payment for injuries to third parties and thus lessor’s insurer is not required to indemnify lessee’s insurer.

Under the dangerous instrumentality doctrine, owners of motor vehicles are liable for injuries which are caused by the operation of the vehicle. Negligent operators of motor vehicles are also liable for injuries they cause. Common law principles of negligence establish this responsibility. Where two persons are liable for an injury then the one who actually caused the injury is primarily liable and the other person may obtain indemnity from him for any payments made to the injured person. See Seaboard Air Line Railway Company v. American District Electric Protective Company, 106 Fla. 330, 143 So. 316 (1932). Thus, an automobile owner who is only vicariously liable for injuries caused by another person’s operation of his vehicle is entitled to indemnification from the negligent driver. Rebhan Leasing Corporation v. Trias, 419 So.2d 352 (Fla. 3d DCA 1982), review denied, 427 So.2d 738 (Fla. 1983); Hertz Corporation v. Richards, 224 So.2d 784 (Fla. 3d DCA 1969); Allstate Insurance Company v. Fowler, 455 So.2d 506 (Fla. 1st DCA 1984). In the case at bar the lessor was not actively negligent in causing the accident; its liability is solely on account of its being the owner of the vehicle. The lessee was the real cause of the accident; the active tortfeasor. His coverage is primary because, among other things, his fault is primary.

Florida Statute 627.7263 regulates insurance coverage priorities. It says:

Rental and leasing driver’s insurance to be primary; exception—
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by §§ 324.021(7) and 627.736. (emphasis supplied)
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee’s insurance company’s name if the lessor’s insurance is not to be primary. (emphasis supplied)

This statute is not completely applicable here because it is not specific as to whose insurance coverage is used after personal injury protection and financial responsibility limits are paid out.

This issue was addressed, however, by the Florida Supreme Court in Insurance Company of North America (INA) v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). Although this decision was not concerned with the effect of section 627.-7263, the opinion is nevertheless instructive because it discusses the effect of the dangerous instrumentality doctrine and the financial responsibility law on a rental agency’s right to indemnification from a negligent lessee. In its opinion the court approved of the following argument by the lessor:

[Njothing in Roth [Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla. 1972)] or any other Florida precedent bars [the lessor’s] right to obtain indemnification from the negligent driver of a motor vehicle or the driver’s employer (or their insurers) to the extent of amounts paid out in excess of the primary $100,-000 coverage furnished by the express terms of the rental contract, since that business arrangement in no way affects either the statutes or common law of this state, (footnotes omitted) 348 So.2d at 1153.

The court then stated:

[N]either of these financial responsibility principles [the dangerous instrumentality doctrine and the financial responsibility law of section 324.011(7)] bear on the allocation of risk between owners and operators in excess of minimum statutory coverage, or on the right of indemnification which derives from the common law principle that fault attracts primary responsibility.
* * * * * *
We hold that the public policy of the state was satisfied in this case when the injured’s beneficiaries were compensated by the vehicle’s owner for the. negligent operation of a rented vehicle. The parties were free to contract between themselves to shift the burden of loss so long as they met the requirements of law, and in this case there is no suggestion that those requirements were not met. (footnote omitted) 348 So.2d at 1153-54.

In the instant case, although the lessor’s insurance policy contained no provisions intended to reduce the limits provided for the lessee’s benefit, the lessor in its rental agreement with lessee attempted in three separate provisions to shift responsibility for primary coverage to the lessee. The first provision was contained on the face of the rental agreement and stated:

The valid and collectible liability insurance or personal injury protection insurance providing coverage for the rental or leasing driver or any other person operating the motor vehicle with the permission or consent of the rental or leasing driver shall be primary. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7), 627.736 and 627.7263, Florida Statutes.
(R 82)

The other two provisions were contained on the back of the agreement and stated:

5. Lessor shall provide an automobile liability insurance policy for the benefit of Lessee with limits of coverage equal to or in excess of statutory requirements for public liability and property damage. Said insurance shall be excess insurance over any other liability insurance coverage available to Lessee, applicable after coverage under such other available insurance. ...
8. Lessee shall defend, indemnify and hold harmless Lessor from and against any and all losses, liabilities, damages, injuries, claims, demands, costs and expenses, arising out of or connected with the possession or use of the car during the rental term (except those covered by the insurance provided herein by Lessor), including but not limited to any and all claims of or liabilities to third parties arising out of the abandonment, conversion, secretion, concealment, or unauthorized sale of the car by Lessee or its drivers, agents or employees, or the confiscation of the car by any government authority for illegal or improper use of said car.

The lessee contends, and the lessor implicitly concedes, that the provision on the face of the rental agreement was insufficient to shift primary responsibility to the lessee because it was not stated in bold type as required by section 627.7263(1). This is apparently the reason why the lessor agreed in the settlement with the plaintiff to pay the first $20,000 (representing $10,000 for financial responsibility and $10,000 for P.I.P.). However, the parties disagree as to the other consequences of this failure to comply with section 627.-7263(1). The lessee contends that this failure to shift primary responsibility leaves the lessor primarily responsible up to the limits of its insurance policy ($300,000) which would free the lessee from all liability. In support of this argument, he cites P & H Vehicle Rental and Leasing Corporation v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982), disapproved on other grounds Travelers Insurance Company v. Bruns, 443 So.2d 959 (Fla.1984), in which this court ruled that the failure of the lessor in that case to comply with section 627.7263 made the lessor primarily liable for losses arising out of the use of its rental vehicle and there was no discussion of financial responsibility or policy limits. In P & H, however, the lessor’s insurer’s claim that it was entitled to indemnification by the lessee’s insurer was dismissed for lack of jurisdiction. Therefore, we think P & H is not dispositive on the issue of whether a lessor who does not comply with section 627.7263 could legally shift responsibility for coverage beyond the financial responsibility and P.I.P. limits.

Instead, the dispositive cases on this issue are Racecon, Inc. v. Mead, 388 So.2d 266 (Fla. 5th DCA 1980), and Patton v. Lindo’s Rent-A-Car, Inc., 415 So.2d 43 (Fla. 2d DCA 1982). Racecon is a case in which the lessee prevailed on the facts but under the current version of section 627.-7263, the rule of law which flows from the ease will benefit lessors. In Racecon, the injured third party sued the lessee and the lessor, and prior to trial, the lessor cross-claimed against the lessee for indemnification. Although the rental agreement contemplated that the lessor was obligated to provide primary insurance coverage, the lessor argued that section 627.7263, Florida Statutes, as it existed in 1976 required the lessee’s insurance to be primary notwithstanding the terms of the rental agreement. This court rejected that argument. Relying on Insurance Company of North America v. Avis Rent-A-Car Systems, Inc., supra, the court stated:

It is thus our view that so long as the public policy of the state was satisfied, ... the parties were free to contract between themselves that the owner (lessor) would provide the primary coverage, thus shifting the burden of loss. The statute would determine that obligation where there was no agreement. (emphasis added)
388 So.2d at 268.

In Patton, the lessor provided in its rental agreement with the lessee a provision nearly identical to the one provided on the face of the rental agreement in the instant case. Also contained in the rental agreement, however, was a paragraph requiring the lessee to indemnify the lessor against any loss, liability, etc., arising out of or in connection with any possession or use of the vehicle. The court stated that because the paragraph shifting primary responsibility to the lessee was no different in size or color than the rest of the agreement, it was insufficient under section 627.7263 to shift primary responsibility. Nevertheless, the court determined that the failure to comply with this section only made the lessor primarily liable up to the financial responsibility requirements of the law. Relying on INA, the court ruled that the “hold harmless” provision in the rental agreement was controlling:

... Once the requirements of the statute are satisfied by requiring the lessor to be responsible up to the limits of the financial responsibility law, or to properly shift the burden, the parties are free to contract between themselves as to any additional responsibility....
415 So.2d at 45.

The lessee in the instant case attempts to distinguish Patton on the ground that the hold harmless clause in the rental agreement (Pagagraph 8) requires the lessee to indemnify the lessor for all losses “except those covered by the insurance provided herein by Lessor.” In order to determine the effect of this exception, however, the extent of the lessor’s coverage must be ascertained. Paragraph 5 provides that the lessor shall provide automobile liability insurance for the benefit of lessee but that such insurance “shall be excess insurance over any other liability insurance coverage available to Lessee, applicable after coverage under such other available insurance.” This language effectively makes the lessee’s liability insurance primary and the lessor’s insurance secondary. Therefore, per Racecon and Patton, the lessor is primarily responsible only for the financial responsibility limits and the lessee is responsible primarily thereafter up to the limits of its policy. This was how the parties allocated their responsibility in their settlement agreement. The trial court properly denied the lessee’s cross-claim against the lessor.

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

This case involves the relative responsibilities of the liability insurer of a vehicle lessor and the liability insurer of the vehicle lessee for payment to an injured third party.

A, driving his own vehicle, negligently injures B. A is liable to B and B can recover his damages from A and, if A has liability coverage, from A’s insurer. This is so not because A owned the vehicle but because he negligently operated it causing B’s injuries.

A, driving C’s vehicle with C’s consent, negligently injures B. A is still liable to B but under the dangerous instrumentality doctrine, C is also liable (vicariously) to B. However, as between A and C, because A is the active tortfeasor A is primarily liable to B and C is secondarily liable to B. Therefore, if C pays B’s damages, C is entitled to obtain full indemnification from A, and, if A has liability coverage, from A’s insurer. If C has liability coverage and C’s insurer pays B’s damages, C’s liability insurer is subrogated to C’s right to indemnification against A and is entitled to obtain full indemnification from A, and, if A has liability coverage, from A’s insurer. However, these basic rights between A and C may be affected by applicable statutes, policy provisions or agreement between A and C. In the event C leases the vehicle to A and C also undertakes to sell, provide or furnish A with liability coverage, the cases seem to make an exception and, for this reason alone, to deny C, and C’s insurer, indemnification from A, at least to the extent of the coverage that C agrees to provide to A.

Accordingly, because the driver-lessee of a leased vehicle who negligently injures another is the active tortfeasor, the lessee’s insurer provides primary liability coverage and the lessor’s insurer provides secondary coverage in the absence of a statute or applicable policy provision or an effective provision in the rental agreement.

Section 627.7263, Florida Statutes, statutorily changes the above rule and provides that, with several exceptions and limitations, the lessor’s valid, collectible and applicable liability and PIP insurance is primary. One exception, not applicable here, relates to a “bold type” provision in the rental or lease agreement. Another exception limits the primacy of the lessor’s liability and PIP coverage to that “required by ss. 324.021(7) and 627.736.” Those statutes require liability coverage of $10,000 bodily injury for one person, $20,000 total bodily injury, $5,000 property damage coverage, and $10,000 PIP coverage.

Therefore, in the absence of an effective “bold type” provision in the rental or lease agreement, (1) first, by virtue of the statute and the absence of an effective “bold type” provision in the rental or lease agreement, the lessor’s insurer provides primary liability and PIP coverage up to the statutory minimum requirements; (2) secondly, by virtue of the driver’s status as active tortfeasor, the driver’s insurer provides primary (excess) coverage to the extent of valid and collectible coverage and (3) thirdly, by virtue of the vicarious secondary liability of the lessor under the dangerous instrumentality doctrine, beyond the driver’s coverage the lessor’s insurer again provides primary (excess) coverage to the limits of valid and collectible coverage.

Because this is the manner of the allocation of primary and secondary coverage made by the trial court in this case, the appealed judgment is properly affirmed.

      . Sections 324.021(7) and 324.151(l)(a) require all owners of motor vehicles in the State of Florida to carry a liability insurance policy which shall insure the owner and any other person using the vehicle with the owner’s express or implied permission against loss from the liability imposed by law for damages due to accidents arising out of the use of his motor vehicle in the amount of $10,000 because of bodily injury to, or death of, one person in any one accident, in the amount of $20,000 because of bodily injury to two or more persons in any one accident, and in the amount of $5,000 because of injury to, or destruction of, property of others in any one accident. Section 627.736(1) requires every owner or registrant of a motor vehicle to maintain an insurance policy which provides personal injury protection to the named insured and others including, as in the instant case, persons struck by such motor vehicle while riding a bicycle, to a limit of $10,000 subject to exclusions not relevant here.

      . This doctrine was first established in Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917) wherein it was held:

        ... The principles of the common law do not permit the owner of an instrumentality that is ... peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle ... properly operated when it is by his authority on the public highway....

        See also Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959).

      . Unfortunately, the dangerous instrumentality doctrine appears to have confused many courts into thinking that the owner is primarily liable but that he may nevertheless receive indemnification from the active tortfeasor (the driver). See, e.g., Guemes v. Biscayne Auto Rentals, Inc., 414 So.2d 216, 218 (Fla. 3d DCA 1982); Truck Discount Corporation v. Serrano, 362 So.2d 340, 342 (Fla. 1st DCA 1978). This idea is apparently based on language contained in Roth v. Old Republic Ins. Company, 269 So.2d 3, 5 (Fla.1972): "The insurer of the owner’s automobile is therefore primarily liable for injuries because of the negligent operation of the automobile under our holding in Susco [Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1958) ]." However, in Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149, 1152 (Fla.1977), the supreme court qualified the language in Roth, stating, "This court there held that insurance provided to the lessee as a part of the rental agreement with the owner places primary financial responsibility on the owner’s carrier and bars indemnification from the negligent driver to that extent.” (emphasis added) See notes 2 and 3, infra. By definition, "primary liability” is "A liability for which a person is directly responsible as contrasted with one which is contingent or secondary." (emphasis added) Black’s Law Dictionary 823 (5th Ed.1979). Therefore, because the owner is only vicariously liable, he is secondarily liable and, for this reason, he may recover from the active tortfeasor (the driver) who is primarily liable. See, e.g., Hertz Corp. v. Ralph M. Parsons Co., 419 F.2d 783, 786 (5th Cir.1969) ("The negligence of the driver ... is primary as compared to the secondary negligence of the owner.’’)

      .This exception was first announced in Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964), where the rental agreement between the owner-lessor and driver-lessee specifically provided that the rental charges included the cost of automobile liability insurance. The court determined that the lessee, “having paid the compensation to secure the protection in this situation, should not be required to respond to the owner of the vehicle for any damages recovered by a third person.” 161 So.2d at 237. Subsequent decisions then extended the exception to situations where the lease agreement, without specifying an extra charge for insurance, nevertheless provided that the lessee "participates in the benefits” of liability insurance, Bordettsky v. Hertz Corp., 171 So.2d 174 (Fla. 2d DCA 1965), and where the lease agreement stated that the lessor “shall provide liability insurance" but the lessor failed to do so, Morse Auto Rentals v. Papandrea, 180 So.2d 351 (Fla. 3d DCA 1965), cert. denied 188 So.2d 316 (Fla.1966). Recent cases have therefore stated that the exception applies whenever the lessor agrees to furnish the lessee with liability insurance. See Truck Discount Corp. v. Serrano, 362 So.2d 340, 343 (Fla. 1st DCA 1978); Guemes v. Biscayne Auto Rentals, Inc., 414 So.2d 216, 218 (Fla. 3d DCA 1982); Rebhan Leasing Corp. v. Trias, 419 So.2d 352, 353 (Fla. 3d DCA 1982). The proper theoretical basis for this exception is that the underlying purpose of an agreement between the owner-lessor and the driver-lessee as to liability insurance is not the intent to make a contract for indemnification that shifts the risk of primary liability to an injured third person from the driver-lessee to the owner-lessor but is the intent of the contracting parties to shift the potential liability to injured third persons off of both contracting parties and onto the liability insurer. See Housing Inv. Corp. v. Carris, 389 So.2d 689 (Fla. 5th DCA 1980).

      . This limitation on the exception is derived from Insurance Company of North America (INA) v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977), where the Florida Supreme Court stated that the parties to an automobile leasing arrangement are free to contract between themselves as to allocating the risk of loss arising from injuries caused by the driver of the rented vehicle. Thus a lessor could, as did the lessor in INA, limit the coverage provided for the benefit of the lessee to a lesser amount than the coverage it provided for itself.

      . See Allstate Ins. Co. v. Fowler, 455 So.2d 506 (Fla. 1st DCA 1984). The instant case does not involve applicable policy language as does Fowler and the case it conflicts with, Sentry Ins. Co. v. Aetna Ins. Co., 450 So.2d 1233 (Fla. 2d DCA 1984).

      . Of course, if the lessor agrees to provide greater protection than the statutory minimum requirements, it is liable to the extent of the coverage provided. See, e.g., Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395 (Fla. 5th DCA 1984).

      . The reason that, once the financial responsibility requirements are satisfied, the driver and his insurer assume responsibility for excess coverage is not because the statute (§ 627.7263) specifically so provides, as the Fourth District Court of Appeal ruled in Reliance Insurance Company v. Maryland Casualty Company, 453 So.2d 854 (Fla. 4th DCA 1984), but because of the "common law principle that fault attracts primary responsibility." Insurance Company of North America v. Avis-Rent-A-Car System, Inc., 348 So.2d 1149, 1153 (Fla.1977). That is, the statute only specifies whose insurance is to be responsible up to the limits of the financial responsibility requirements and does not specify whose insurance is to be responsible for coverage beyond those limits; therefore, in the absence of a controlling provision in the rental agreement or insurance policy, as between the owner and the driver of a vehicle the driver is primarily liable because he is the active tort-feasor and the owner of the vehicle is only vicariously, hence secondarily, liable to injured third persons.


author: DAUKSCH, Judge.

text:
    Mario MIRANDA, Appellant, v. M. Dwayne JULIAN, etc., et al., Appellees.
    No. 84-33.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    Rehearing Denied Feb. 7, 1985.
    Stephen M. Stone, Orlando, for appellant.
    Frank G. Finkbeiner, of Carr & Finkbeiner, P.A., Orlando, for appellees.
   DAUKSCH, Judge.

This is an appeal from a summary judgment. Because unresolved material factual issues remain despite the entry of the judgment we must reverse. An ambiguous contractual provision “Seller shall in no way warrant and/or guarantee high/low water elevations of Lake Floyd” was inserted in an agreement to buy and sell real property. Although the words do not appear particularly ambiguous, the fact that no one can guarantee the level of a natural lake opens the matter to inquiry. There is a latent ambiguity and the issue involves whether this provision warrants a flood-free home. Buyer says yes, seller says no. There was a lot of conversation and negotiation before the execution of the contract involving representation made to the buyer by the seller regarding the house elevation and whether there could ever be flooding in the house. The two parties disagree about certain material factual matters and it will take a trial to resolve the factual dispute as to whether the buyer was misled, whether the seller fully disclosed the situation regarding the water levels and who is to be believed regarding inducements to buy the property.

REVERSED and REMANDED.

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