author: PER CURIAM. EHRLICH, Judge,

text:
    John FASSOULAS, et al., Petitioners, v. John R. RAMEY, et al., Respondents.
    No. 62220.
    Supreme Court of Florida.
    Jan. 19, 1984.
    Rehearing Denied June 21, 1984.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Hawkesworth & Schmick, Miami, for petitioners.
    Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for respondents.
   PER CURIAM.

This cause is before the Court on a decision certified by the Third District Court of Appeal as passing upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The issue in this case concerns the scope of damages in a “wrongful birth” negligence suit.

Plaintiffs, Edith and John Fassoulas, were married and had two children, both of whom had been born with severe congenital abnormalities. After much consideration, they decided not to have any more children due to the fear of having another physically deformed child and the attendant high cost of medical care. They then decided that John would undergo a vasectomy. This medical procedure was performed in January 1974 by defendant, Dr. Ramey. However, due to the negligence of the defendant in performing the operation, in giving medical advice concerning residual pockets of sperm, and in examining and judging the viability of sperm samples, Edith twice became pregnant and gave birth to two children. The first of these, Maria, was born in November 1974 and had many congenital deformities. Roussi, the second of the post-vasectomy children and the fourth Fassoulas child, was born in September 1976 with a slight physical deformity which was corrected at birth; he is now a normal, healthy child.

The plaintiffs sued Dr. Ramey and his clinic in tort based on medical malpractice for the two “wrongful births.” They sought as damages Edith’s past and future lost wages, her anguish and emotional distress at twice becoming pregnant, her loss of the society, companionship and consortium of her husband, John’s mental anguish and emotional distress, his loss of the society, companionship and consortium of his wife, medical and hospital expenses and the expenses for the care and upbringing of the two new children until the age of twenty-one.

. At trial, the jury found in favor of the plaintiffs, finding the defendants 100% negligent with reference to Maria and 50% negligent with reference to Roussi. The plaintiffs were found to be comparatively negligent as to the birth of Roussi. Damages were assessed in the amount of $250,-000 for the birth of Maria and $100,000 for the birth of Roussi, the latter sum being reduced to $50,000 because of the plaintiffs’ comparative negligence.

Upon appeal, the district court affirmed as to liability but affirmed in part and reversed in part as to damages. Ramey v. Fassoulas, 414 So.2d 198 (Fla. 3d DCA 1982). As to these damages, the district court held: damages for the ordinary rearing expenses, past and future, for both children were not recoverable; damages for the rearing expenses, past and future, for a physically and mentally defective child were recoverable over and above ordinary rearing costs associated with raising a child to age eighteen. The district court remanded for a new trial on the issue of damages only. It also certified the following question:

WHETHER THE PARENTS OF A CHILD, WHO IS BORN AS A RESULT OF A NEGLIGENT VASECTOMY, ARE ENTITLED IN A “WRONGFUL BIRTH” NEGLIGENCE SUIT TO PAST AND FUTURE DAMAGES FOR THE CARE AND UPBRINGING EXPENSES OF THE SUBJECT CHILD AS AGAINST THE TORTFEASOR PHYSICIAN WHO NEGLIGENTLY PERFORMED THE VASECTOMY?

This question is the sole issue for our consideration in this cause; the issue of liability was not appealed to us and for the purposes of this proceeding, liability has been conceded. For the reasons expressed herein, we answer the question as did the district court, holding that ordinary rearing expenses for both a normal and defective child are not recoverable, and only the special expenses associated with raising a defective child to the age of majority are recoverable. We thus approve the decision of the district court below.

The rule in Florida is that “a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child.” Public Health Trust v. Brown, 388 So.2d 1084, 1085 (Fla. 3d DCA 1980), petition denied, 399 So.2d 1140 (Fla.1981) (footnote omitted). "[I]t has been imbedded in our law for centuries that the father and now both parents or legal guardians of a child have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted.” Ramey v. Fassoulas, 414 So.2d at 200. “The child is still the child of the parents, not the physician, and it is the parents’ legal obligation, not the physician’s, to support the child.” Id. For public policy reasons, we decline to allow rearing damages for the birth of a healthy child. As stated by the Supreme Court of Wisconsin:

To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would be to create a new category of surrogate parent. Every child’s smile, every bond of love and affection, every reason for parental pride in a child’s achievements, every contribution by the child to the welfare and well-being of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits but they are nonetheless real. On the other hand, every financial cost or detriment — what the complaint terms “hard money damages” — including the cost of food, clothing and education, would be shifted to the physician.... We hold that such result would be wholly out of proportion to the culpability involved....

Rieck v. Medical Protective Co., 64 Wis.2d 514, 518, 219 N,W.2d 242, 244-45 (1974) (footnote omitted). We agree with this reasoning and hold that, as a matter of law, the “benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal child.” Terrell v. Garcia, 496 S.W.2d 124, 128 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Public Health Trust v. Brown.

The same reasoning forcefully and correctly applies to the ordinary, everyday expenses associated with the care and upbringing of a physically or mentally deformed child. We likewise hold as a matter of law that ordinary rearing expenses for a defective child are not recoverable as damages in Florida.

We agree with the district court below that an exception exists in the case of special upbringing expenses associated with a deformed child. See Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981). Special medical and educational expenses, beyond normal rearing costs, are often staggering and quite debilitating to a family’s financial and social health; “indeed, the financial and emotional drain associated with raising such a child is often overwhelming to the affected parents.” Ramey v. Fassoulas, 414 So.2d at 201. There is no valid policy argument against parents being recompensed for these costs of extraordinary care in raising a deformed child to majority. We hold these special upbringing costs associated with a deformed child to be recoverable.

We approve the decision of the district court below that remanded the instant proceeding to the trial court for a new trial on damages only. With respect to the issue certified to this Court relating to rearing expenses, the trial court will comply with the views heretofore expressed in this opinion. As to the remaining consequential damages that went to the jury, i.e., pain and suffering, lost wages and medical expenses, these were not appealed by the defendants, and we do not address them.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.

EHRLICH, J., dissents with an opinion with which ADKINS and SHAW, JJ., concur.

EHRLICH, Judge,

dissenting.

I believe the opinion of the district court below, Ramey v. Fassoulas, 414 So.2d 198 (Fla. 3d DCA 1982), which is grounded upon a previous district court opinion that is clearly untenable in its logic, Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), is seriously in error in both its reasoning and holding. Because the present majority opinion adopts the reasoning of the lower court opinion and approves its holding, I dissent.

A brief recitation of the history of this developing area of tort law is necessary in order to show the foundation of my viewpoint. See generally Comment, Busting the Blessing Balloon: Liability for the Birth of an Unplanned Child, 39 Alb.L. Rev. 221 (1975); Note, Remedy for the Reluctant Parent: Physicians’ Liability for the Post-Sterilization Conception and Birth of Unplanned Children, 27 U.Fla.L. Rev. 158 (1974); Note, Sterilization and Family Planning: The Physician’s Civil Liability, 56 Geo.L.J. 976 (1968).

The first case to consider the rights of parents after an unsuccessful sterilization operation was Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934). Decided nearly half a century ago, that case involved a plaintiff husband’s undergoing a vasectomy to prevent his wife’s pregnancy and the resultant endangering of her life (due to difficulties she had had with the birth of a previous child). In spite of the vasectomy, the wife became pregnant. She survived the childbirth with no damage to her health. The husband brought suit for his anxiety and expenses, basing his cause of action on the failure of the operation to fulfill the physician’s promise that the operation had been successful. The trial court denied relief and the Minnesota Supreme Court affirmed on the ground that the husband, who pleaded in deceit, had failed to allege the fraudulent intent required to support such an allegation. In language not necessary to the holding, however, the court opined that “[i]nstead of losing his wife, the plaintiff has been blessed with the fatherhood of another child. The expenses alleged are incident to the bearing of a child, and their avoidance is remote from the avowed purpose of the operation.” 192 Minn. at 126, 255 N.W. at 622.

This “blessing” dicta was seized upon in Shaheen v. Knight, 11 Pa. D. & C.2d 41 (Pa.1957). There, in a case of first impression, the court held that a contract to perform a non-therapeutic sterilization operation was not invalid as against public policy even when the reason for the procedure was solely for the purpose of family planning. The court refused to award damages, however, because of the “blessing” that the newborn child, the couplers fifth, would bring to them. “To allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff Shaheen will have in the rearing and educating of this, defendant’s [sic] fifth child.” 11 Pa. D. & C.2d at 45-46. “He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy.” Id. at 46. Additionally, the court noted that the parents were not willing to give the child up for adoption, although “[m]any people would be willing to support this child were they given the right of custody and adoption.” Id.

Further cases followed this line of reasoning of allowing a cause of action for wrongful conception or wrongful birth but denying recovery as a matter of law on public policy grounds. For example, Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974), denied damages because “the satisfaction, joy and companionship which normal parents have in rearing a child make such economic loss worthwhile. These intangible benefits, while impossible to value in dollars and cents are undoubtedly the things that make life worthwhile. Who can place a price tag on a child’s smile ...?” 496 S.W.2d at 128. In Rieck v. Medical Protective Company, 64 Wisc.2d 514, 219 N.W.2d 242 (1974), the court discussed the failure of the parents to place the unwanted child for adoption as an element of the retention of benefits; the court then denied recovery of damages on public policy grounds.

The Florida district court decisions relied upon by the majority opinion fall into this category of denying damages as a matter of law on the basis of public policy considerations. In Public Health Trust v. Brown, the issue was only the scope of damages associated with the birth of a healthy child, not an unhealthy one. The court denied the costs of rearing the child because of the “simple proposition,” 388 So.2d at 1085, that a parent has not been damaged by the birth of a normal, healthy child. The backbone of this position is that “it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved.” 388 So.2d at 1085-86 (footnote omitted) (emphasis supplied). Reaching deeper into the public policy arena, the decision states that “[sjpeaking legally, this [the benefits] may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the ‘unwanted’ child for adoption.” 388 So.2d at 1086. The opinion closes with a stance of satisfaction that “[i]t is a rare but happy instance in which a specific judicial decision can be based solely upon a reflection of one of the humane ideals which form the foundation of our entire legal system.” Id. (emphasis supplied).

The instant decision at the district court level relied heavily upon Public Health Trust for its analysis and public policy holding. It analogizes to the law in wrongful death cases in support of its position, pointing out that the recoverable elements of damage are not offset by child rearing expenses, overlooking all the while that those elements of damage are spelled out and controlled entirely by statute and that except for the death statute itself, there would be no cause of action or recoverable damages. It opines that its holding aligns itself with “some of the most fundamental values of our culture which has long honored the institution of the family and cherished the inestimable worth of children.” 414 So.2d at 201. It continues that “our children represent the destiny of the country, our best hope for the future, and a treasure beyond compare.” Id. It closes with the comment that “our legal institutions are alive and well and equal to the task of dispensing justice with fairness and common sense.” Id.

These opinions substitute wise-sounding platitudes for any earnest and frank examination of the relevant issues involved. To deny plaintiffs who have been wronged their just relief based upon alleged “humane ideals” and not to grant relief on the basis of long recognized and well accepted tort principles is unjust and unfair. As the dissent in Public Health Trust so aptly noted,

[Tjhe result reached by the majority in the name of humaneness is, unwittingly, inhumane. I see nothing humane in denying a parent the wherewithal which might save a child from deprivation or, in many cases, abject poverty. I see nothing humane in a rule of law that could enhance the already dire need of parents and existing siblings. I see nothing humane in a decision which effectively immunizes physicians from their negligence and victimizes a mother who sought to relieve herself and her family from the additional burden of another child.

388 So.2d at 1087 (Pearson, J., dissenting).

The line of cases denying relief as a matter of law on public policy grounds that the Florida district courts have adhered to are eroding away and no longer represent a majority position. See Hartke v. McKelway, 526 F.Supp. 97 (D.D.C.1981), cert. denied, - U.S. -, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977). The new, emerging majority viewpoint is grounded not in result-oriented appeals to public policy but in traditional tort principles. For example, in an opinion by the Minnesota Supreme Court receding from the “blessing” dicta in the original Christensen v. Thornby case, the court stated:

[W]e are not persuaded that public policy considerations can properly be used to deny recovery to parents of an unplanned ... child of all damages proximately caused by a negligently performed sterilization operation. Analytically, such an action is indistinguishable from an ordinary medical negligence action where a plaintiff alleges that a physician has breached a duty of care owed to him with resulting injurious consequences.

Sherlock v. Stillwater Clinic, 260 N.W.2d at 174. Likewise, in Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971), a Michigan court noted:

Contraception, conjugal relations, and childbirth are highly charged subjects. It is all the more important, then, to emphasize that resolution of the case before us requires no intrusion into the domain of moral philosophy. At issue here is simply the extent to which defendant is civilly liable for the consequences of his negligence.... [W]e go no further than to apply settled common-law principles.

31 Mich.App. at 244-45, 187 N.W.2d at 513. This we daily do in Florida. As stated in Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973), “[i]n the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault.” “Where the purpose of the physician’s actions is to prevent conception or birth, elementary justice requires that he be held legally responsible for the consequences which have in fact occurred.” Sherlock v. Stillwater Clinic, 260 N.W.2d at 174. For the courts to hold otherwise, as do the Florida district courts, is to infringe impermissibly upon a constitutionally-protected fundamental right. See Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976). It is precisely at this juncture that Public Health Trust and Ramey v. Fassoulas take a serious turn into error. Notwithstanding those decisions’ moral comments, among others, that children are of inestimable worth and a blessing, is the fact that the right to limit procreation is of constitutional dimension. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The choice not to procreate, as part of a person’s right to privacy, is constitutionally guaranteed. That, if anything, is the “public policy” that should be determinative in this area of tort law. When the Florida district court opinions meander into comments such as “our children represent the destiny of the country ... [and] our best hope for the future,” Ramey v. Fassoulas, 414 So.2d at 201, they ignore the fact that birth control is a well-practiced norm in this country.

The use of various birth control methods by millions of Americans demonstrates an acceptance of the family-planning concept as an integral aspect of the modern marital relationship, so that today it must be acknowledged that the time-honored command to “be fruitful and multiply” has not only lost contemporary significance to a growing number of potential parents but is contrary to public policies embodied in the statutes encouraging family planning.

Stillwater v. Sherlock Clinic, 260 N.W.2d at 175 (footnotes omitted).

To say that for reasons of public policy contraceptive failure can result in no damage as a matter of law ignores the fact that tens of millions of persons use contraceptives daily to avoid the very result which the defendant would have us say is always a benefit, never a detriment. Those tens of millions of persons, by their conduct, express the sense of the community.

Troppi v. Scarf, 31 Mich.App. at 253, 187 N.W.2d at 517.

Turning specifically to the issue of damages, whereas the minority of courts hold as a matter of law that there can be no recovery because of the “blessings” of a child, the modern majority of courts make use of what is known as the Benefits Rule. Restatement (Second) Of Torts § 920 (1979) recognizes a right of recovery but requires mitigation of damages where the interest harmed has also been benefitted. Two points are clearly germane. First, while it may be difficult to ascertain damages, it is not impossible. “While we recognize that the dollar value of the benefits to be offset is difficult to assess, we have routinely allowed recovery for the loss of aid, comfort, and society in wrongful death actions where similar problems of proof are presented.” Sherlock v. Stillwater Clinic, 260 N.W.2d at 176.

It may, indeed, be difficult to “place a price tag on a child’s smile.” But there is no support for the conclusion that the task cannot be performed....
In any event, the fact that the extent of damages may be difficult to ascertain should not cause the courts to throw up their hands in frustration. Even the dice player who is faced with the admittedly difficult task of rolling a “10” is afforded the opportunity to roll the dice. If he fails, he loses, but the dice are not snatched from his hand with the explanation that the “point” is too difficult to make.

Terrell v. Garcia, 496 S.W.2d at 129 (Cadena, J., dissenting). “Moreover, the claim that damages are incapable of measurement ignores the distinction between uncertainty as to the fact of damage, which precludes recovery, and uncertainty as to the amount of damage, which does not.” Note, Wrongful Conception: Who Pays for Bringing Up Baby?, 47 Fordham L.Rev. 418, 430 (1978) (footnotes omitted). “The wrongdoer should not be relieved of liability because the nature of his tortious conduct precludes the ascertainment of the amount of damages with certainty. The problems of uncertainty should be placed on the wrongdoer rather than on the innocent party.” Id. (footnotes omitted).

Second, the very strength of the Benefits Rule is its flexibility in case-by-case adjudication.

The essential point, of course, is that the trier must have the power to evaluate the benefit according to all the circumstances of the case presented. Family size, family income, age of the parents, and marital status are some, but not all, the factors which the trier must consider in determining the extent to which the birth of a particular child represents a benefit to his parents. That the benefits so conferred and calculated will vary widely from cases to case is inevitable.

Troppi v. Scarf, 31 Mich.App. at 257, 187 N.W.2d at 519. The trier of fact may properly weigh and consider a full panoply of factors in its determination of how much of a benefit a child is to its parents. Of particular significance is the datum of whether the child is normal in health or physically or mentally impaired. No special rule is thus needed (which the majority opinion fashions) to cover the case of a deformed child. That particular fact, just as if the fact was that the child was of good health, is presented to the trier for its evaluation. No distinction then need be made between ordinary rearing expenses and special expenses.

One point needs to be emphasized concerning the mitigation of damages. I take issue with the language in Public Health Trust that the parents are overwhelmingly benefitted by the birth of the unplanned child and that, “[sjpeaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the ‘unwanted’ child for adoption.” Public Health Trust, 388 So.2d at 1086. This is specious reasoning, in my opinion. It is elementary that a tortfeasor takes an injured party as he finds him. If the parents do not wish to undergo an abortion or adoption, then the tortfeasor cannot be heard to complain that his damages are greater than if he had caused a wrongful conception or wrongful birth by a woman who was willing to abort or place a child up for adoption. Troppi v. Scarf. Similarly, relating to the issue of adoption, “to impose such a duty upon the . injured plaintiff is to ignore the very real difference which our law recognizes between the avoidance of conception and the disposition of the human organism after conception.” Troppi v. Scarf, 31 Mich.App. at 257, 187 N.W.2d at 519. “The suggestion ... that the child be considered as worth its cost or be put out for adoption is not consistent with the very stability of the family which the ... court relies on to support its views of ‘universal public sentiment’.” Custodio v. Bauer, 251 Cal.App.2d 303, 324, 59 Cal.Rptr. 463, 477 (1967). Finally, relating to both abortion and adoption, the doctrine relating to mitigation of damages only requires that reasonable measures be taken. Clearly, it should be a matter of law that to require an abortion or adoption is unreasonable.

It has often been said that hard cases make bad law. I am afraid that the majority opinion does just that. A look at the instant facts supports this conclusion. John and Edith Fassoulas already had two children and both were born with severe medical problems. They could not afford the medical bills arising out of the treatments required. This was partly a function of the high cost of the medical bills and partly a function of the unemployment of John himself because of ill health. The two decided upon the solution of a vasectomy, both for the stated economic reason and for the reason of their fear that any further children might also be born with defects. They went to Dr. Ramey for the vasectomy but the operation was negligently performed. Thereupon occurred what can only be described as a comedy of errors. The fact that the operation was not successful was not apparent to anyone at the time. Edith soon became pregnant but all concerned thought that the cause was Dr. Ramey’s negligent instructions to the couple about how long to wait before resuming intercourse and how long to use birth control because of the presence of residual pockets of sperm. In any event, Maria made her appearance nine months later and was congenitally deformed. She had a short neck, an abnormal shaping of the skull, a skin irregularity that was described as fish-like and scaly in appearance, a heart murmur, hypertension, and malformations of the hands. The very result that John and Edith wished to avoid by having the vasectomy was thus visited upon them, clearly a foreseeable consequence of Dr. Ramey’s negligence. Time passed. Dr. Ramey once again erred in his professional conduct, this time by negligently confusing sperm viability with sperm motility in his examination of John’s sperm samples. John and Edith were told that John was sterile when in fact he was not. Believing that Maria was born because of the residual sperm pockets extant after the initial operation and that John was now sterile, the couple resumed sexual relations. Again, there resulted a surprise, this time Roussi’s birth. Though born with minor infirmities, these were corrected and Rous-si can be considered a normal child. But now, instead of having only two children with physical infirmities, John and Edith have a total of four children, three with infirmities and one without. There are now medical bills for three deformed children; John is still out of work; and Edith has to quit work in order to care for the four children. All are now on welfare. While Edith and John testified that they love their two unplanned children greatly, (and what parent would not?), they have clearly been wronged by the negligent physician. Can it fairly be said as a matter of law that they have not been damaged by Roussi’s birth? Is it fair to say as a matter of law that the non-extraordinary expenses associated with rearing Maria are not recoverable? I think not.

“It is no answer to say that a result which claimant specifically sought to avoid, might be regarded as a blessing by someone else.” Rivera v. State, 94 Misc.2d 157, 162, 404 N.Y.S.2d 950, 954 (Ct.Cl.1978) (emphasis supplied). “The doctor whose negligence brings about ... an undesired birth should not be allowed to say, T did you a favor,” secure in the knowledge that the courts will give to this claim the effect of an irrebuttable presumption.” Terrell v. Garcia at 131 (Cadena, J., dissenting).

Dr. Ramey did not do Edith and John a favor. That is what this Court should hold. Since it did not, I must dissent.

ADKINS and SHAW, JJ., concur.

      . The district court opinion stated that “Maria was born mentally retarded,” 414 So.2d at 199, in addition to her numerous physical infirmities. Our examination of the record discloses no testimony or other evidence substantiating any finding of mental retardation. Congenital physical abnormalities, on the other hand, are clearly established in the record. The issue of whether, by whom, and under what circumstances, special damages may be recoverable beyond the age of majority if severe infirmities, such as mental retardation, preclude an individual from being self-sustaining as an adult was not raised on this appeal and this is not before us; a decision thereon is neither made nor intimated.

      . The instant case is technically and properly a "wrongful conception” action, and not a "wrongful birth” or "wrongful life” action. See Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).
      The distinction between a wrongful life action and a wrongful birth action is that the former is brought by the child, whereas the latter is brought by the parents. Wrongful conception cases are primarily distinguishable from both wrongful life and wrongful birth cases in that the parents in the latter cases want a healthy child, whereas in wrongful conception cases the parents do not want a child at all.
      Note, Wrongful Conception: Who Pays for Bringing Up Baby?, 47 Fordham L.Rev. 418, 418 n. 7 (1978).

      . "This child is not to be thought of as unwanted or unloved, but as unplanned.” Jackson v. Anderson, 230 So.2d 503, 503 (Fla. 2d DCA 1970).

      . § 920. Benefit to Plaintiff Resulting from Defendant's Tort

      "When the defendant’s tortious conduct has caused harm to the plaintiff or his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable."
      Restatement (Second) of Torts § 920. “It should be emphasized that the benefits rule involves a question of mitigation after the determination of damages, not a balancing process to determine their existence.” Note, Wrongful Conception: Who Pays for Bringing Up Baby?, 47 Fordham L.Rev. 418, 432 n. 110 (1978).

      . "[Difficulty in determining the amount to be subtracted from the gross damages does not justify throwing up our hands and denying recovery altogether." Troppi v. Scarf, 31 Mich.App. 240, 261, 187 N.W.2d 511, 521 (1971).

      . “The right to have an abortion may not be automatically converted to an obligation to have one." Ziemba v. Sternberg, 45 A.D.2d 230, 233, 357 N.Y.S.2d 265, 269 (1974).

      . “[T]he parents of an unplanned ... child may feel, and properly so, that whether they wanted the child or not is beside the point once the child is born and that they have an obligation to rear the child as best they can rather than subject him to rearing by unknown persons.” Troppi v. Scarf, 31 Mich.App. 240, 259, 187 N.W.2d 511, 520 (1971).


source: Caselaw Access Project

author: ALDERMAN, Chief Justice.

license: Public Domain

text:
    Barbara BARBER, Petitioner, v. Kurt JENSEN, et al., Respondents.
    No. 63598.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied June 28, 1984.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for petitioner.
    Robert M. Klein of Stephens, Lynn, Cher-nay & Klein, Miami, for Cumberland Farms Food Stores, Inc., respondents.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in Barber v. Jensen, 428 So.2d 770 (Fla. 4th DCA 1983), wherein the district court certified the following question to be of great public importance:

Prior to May 24, 1980, the effective date of section 768.125, Florida Statutes (1981), did a thirty party who could establish proximate causation for his injuries, have a cause of action against a person who furnished alcoholic beverages to a minor in violation of section 562.11, Florida Statutes (1981)?

The district court answered this question in the negative and affirmed the trial court’s dismissal of plaintiffs complaint, reciting its recent decision in Migliore v. Crown Liquors of Broward, Inc., 425 So.2d 20 (Fla. 4th DCA 1982).

We today have quashed the Fourth District’s holding in Migliore. Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984). We likewise quash the present decision of the Fourth District on the authority of our decision in Migliore and hold that prior to the effective date of section 768.125, Florida Statutes (1981), a third party who could establish proximate causation for his injuries did have a cause of action against the person who furnished alcoholic beverages to a minor in violation of section 562.11.

It is so ordered.

BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

       The Fourth District also certified that its decision conflicts directly with Burson v. Gate Petro

        leum Co., 401 So.2d 922 (Fla. 5th DCA 1981); and Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967).


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re AMENDMENT TO ARTICLES OF INCORPORATION FLORIDA BAR FOUNDATION.
    No. 64832.
    Supreme Court of Florida.
    April 19, 1984.
    Arthur J. England, Jr., President, The Florida Bar Foundation, Inc., Miami, for petitioner.
   PER CURIAM.

Pursuant to Florida Bar Foundation Charter, article X, section 10.4, The Florida Bar Foundation, Inc., petitions this Court for approval of its proposed amendments to the Foundation’s charter. This petition was filed with the approval and at the direction of the board of directors of The Florida Bar Foundation, Inc., and with the approval of the Board of Governors of The Florida Bar. These proposed amendments were officially published in the March 1, 1984, issue of The Florida Bar News. Having considered the petition, the proposed amendment, and the objection filed, we hereby approve the following amendments to the charter of The Florida Bar Foundation, Inc.:

ARTICLE I NAME

The name of this corporation shall be: The Florida Bar Foundation, Inc. For convenience it is herein called the corporation or the Foundation. The principal office and place of business shall be at a location in Tallahasseey Florida until otherwise established and ordered by the board of directors. The business of this corporation shall be carried on at its principal office in Tallahassee, Florida, and at such other places as may from time to time be authorized by the board of directors.

ARTICLE II PURPOSES AND POWERS

2.1 Purposes. The Foundation shall be operated exclusively for charitable, scientific, literary and/or educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax law (“Code”) including but not limited to the following particular purposes:

(a) The improvement of the administration of justice and the elevation of judicial standards.

(b) The promotion of the study of law and research in the law, the diffusion of legal knowledge and the continuing legal education of lawyers.

(c) The publication and the distribution of works on legal subjects.

(d) The improvement of relations between members of the Bar, the judiciary and the public.

(e) The fostering of suitable standards of legal education and of admission to the Bar, and the furnishing of funds for making grants and loans to qualified and worthy persons for the study of law.

(f) The aiding of members of The Florida Bar who shall be in great need of assistance because of illness, misfortune or advanced age.

(g) The promotion of the preservation of the American constitutional form of government; provided, however, that no part of the assets or net earnings of the Foundation (including such assets or net earnings as may be derived from the Trust Savings Account Program described in Article 2.Z2 below) shall inure to the benefit of any private shareholder or individual; and further provided that the Foundation shall not carry on propaganda, or otherwise attempt, to influence legislation, and shall not participate in or intervene in (including the publication or distribution of statements), any political campaign on behalf of any candidate for public office.

(h) In furtherance of the foregoing charitable, scientific, literary and/or educational purposes, the assets and earnings of the Foundation (including, but not limited to those assets or earnings derived from the Trust Savings Account Program) may be used for any one or more of the following charitable activities undertaken for exclusively public purposes:

(1) To provide legal aid to the poor;
(2) To provide law student loans and scholarships;
(3) To improve the administration of justice; and
(4) For such other programs for the benefit of the public as are specifically approved from time to time by the Supreme Court of Florida for exclusively public purposes.

Except as more specifically hereinabove set forth, such activities may be undertaken directly by the Foundation, or by the provision of funds by the Foundation to The Florida Bar, or Florida Legal Services, Inc., or other organizations, to be used exclusively for such purposes.

⅛2 — Restrictions.—In such fiscal — years (if any) as the corporation shall be a “private foundation” as described ⅛- Section 509(a)-Qf-the Code and/or — subjeet-to the taxes imposed by Sections-4940 et-seq. of the Gode:-

(a)-The corporation shall distribute its income for each taxable year at suc-h-time and in sueh-manner as not to become subject -to — the- tax on undistributed — income imposed-by Section 4942 of the-Code, or corresponding provisions — of any subsequent federal tax laws.

(b) The corporation shall not engage in any act of self-dealing as defined in Section 4941(d) of-the Code- or corresponding-provisions of any subsequent federal tax- law.

(c) — T-he -corporation-sha-ll not retain any excess-business holdings as defined in Section 4943(e) of the Code, or corresponding provisions-of any subsequent federal tax

(d)-The corporation -shall not make any investments in such-manner as to subject it to tax under Section-4944 of the Code, or corresponding provisions — of any subsequent-federal tax laws.

(e) The corporation shall-not make -any taxable expenditures as defined in-Section 4945(d) of the Code,-or corresponding-provisions of any subsequent federal tax-laws.

2.32 Contributions Gifts. The Foundation may receive, by contribution, gift, bequest, devise, or in any other manner, money, assistance, and any other form of contribution whether of real, personal, or mixed property, from any person, firm or corporation to be used in the furtherance of the purposes of the Foundation; provided, however, that gifts shall be subject to acceptance by the board of directors as required by the bylaws. The Foundation may also receive all funds generated by the Trust Account Savings Program implemented by Order of the Supreme Court of Florida (In re: “Matter of Interest on Trust Accounts, et seq.”) as such Order may be amended from time to time.

2.43 Offices and Employees. The Foundation may establish one or more offices and employ such agents, employees and clerical force as may be deemed necessary or proper to conduct and carry on the work of the Foundation, and it may pay a reasonable compensation for the services of such persons.

2.54 Powers: General. The Foundation may contract and be contracted with, sue and be sued, invest and reinvest the funds of the Foundation, and do all acts and things requisite, necessary, proper, or desirable to carry out and further the purposes for which the Foundation is formed.

2.65 Powers: Trust Account Savings Program. With respect to the activities of, and assets and earnings derived from, the Trust Account Savings Program, the Foundation may:

(a) Authorize capital expenditures, accumulations, or reserves, only as may be necessary to meet the reasonable working needs of the Foundation in administering the Trust Account Savings Program;

(b) Retain professional investment advisory services;

(c) Through its directors in the manner set forth in Article VI hereof, adopt rules of procedure reasonably necessary or helpful in carrying out the purposes and powers of the Foundation in managing and administering the Trust Account Savings Program.

ARTICLE III MEMBERS

3.1 Qualification. Each member of the Foundation shall be a member of The Florida Bar who is interested in the purposes of the Foundation.

3.2 Admission. Members shall be admitted selected by the directors in the manner determined by the bylaws, and shall be admitted- to membership upon making contributions — te—the—foundation—⅛—the amounts required by the bylaws

3.3 Classes; Terms. Classes of- membership and The terms of membership of members shall be established determined by the bylaws.

3.4 Rights. Each member shall be entitled to one vote at meetings of the Foundation, but no member of the Foundation shall have any vested right, privilege or interest of, in or to the assets, functions, affairs or franchise of the Foundation, or any right, interest or privilege which may be transferable or inheritable or which shall continue if his membership ceases or while he is not in good standing.

3.5 Termination. Membership shall be terminated in the manner provided by the bylaws, for — failure to make the contributions-required for-maintenance of membership If a member ceases to be a member of The Florida Bar his membership in the Foundation shall be thereby terminated. A membership may be terminated for cause by concurrence of a majority of all directors of the Foundation after due notice to the member and an opportunity to be heard.

3.6 Meetings. Members shall meet annually at the time provided in the bylaws and special meetings may be called in the manner provided in the bylaws.

ARTICLE IV TERM; DISSOLUTION

This corporation shall have perpetual existence. In the event of a dissolution of the corporation, its assets, after payment of all debts and charges of the corporation, and expenses of dissolution, shall be distributed among all properly accredited schools of law within the State of Florida, organized and operating exclusively for charitable and/or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder, or individual, nor substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of any candidate for public office.

ARTICLE V

The names and residences of the original subscribers hereto are as follows:

name residence

Donald K. Carroll 1200 Greenleaf Building Jacksonville, Florida

J. Lance Lazonby Baird Office Building Gainesville, Florida

Kenneth B. Sherouse, Jr. Supreme Court Building Tallahassee, Florida

William A. Gillen Citizens Building Tampa, Florida

J. Lewis Hall 121 1/2 E. Jefferson St. Tallahassee, Florida

Sherwood Spencer 1924 Hollywood Boulevard Hollywood, Florida

each of whom has been an officer or member of the Board of Governors of The Florida Bar.

ARTICLE VI DIRECTORS

6.1Number. The affairs of the Foundation shall be managed by a board of directors consisting of not less than 21 nor more than 24 22 directors, six five of whom shall be the president, — immediate past — president, vice president, treasurer and secretary as ex officio ■direc-tor-sr-fi-ve-ef whom-shall -be-desig-nated directors as set forth in Article 6.2 hereof, and 15 to 18 42 of whom shall be elected directors as set forth in Article 6.3 hereof.

6.2Designated Status and Appointed Directors. There shall be five designated Six directors who shall be* directors by virtue of office or appointment as follows:

(a) The Chief Justice of the Supreme Court of Florida;

(b) Two other judicial officers to be appointed annually by the Chief Justice of the Supreme Court of Florida; (and.to serve at his pleasure)

(c) The president of The Florida Bar;

(d) The president of Florida Legal Services, Inc.; and

(e) A representative of The Florida Bar who is a member of the Foundation, to be appointed annually by the Board of Governors of The Florida Bar.

6.3 Elected: Other Directors. Elected Fifteen directors of the Foundation shall bylaws. In the event a person is elected president, vice-president, or secretary-treasurer of the Foundation who is not for his term of office otherwise a director of the Foundation, he shall be a director of the Foundation by virtue of his office for the term of his office.

6.4 Term; Removal; Vacancies.

(a) The term of office of elected directors, their removal from office and the filling of the vacancies shall be determined by the bylaws. The five designated directors enumerated in Article 6.2 above shall be directors of the foundation during-their respective terms in office.-

(b) The Chief Justice of the Supreme Court of Florida, president of The Florida Bar, and president of Florida Legal Services, Inc., shall be directors of the Foundation during their respective terms in office. The two judicial officers appointed by the Chief Justice shall serve for one-year terms of office and may be reappointed for additional one-year terms at the pleasure of the Chief Justice. The representative of The Florida Bar shall serve a one-year term and may be reappointed for additional one-year terms at the pleasure of the Board of Governors.

(c) An officer of the Foundation who is a director only by virtue of his office shall be a director for his term in office only.

6.5 Executive Committee. The affairs of the Foundation may be managed by an executive committee between meetings of the board of directors. The executive committee shall consist of directors and shall be established in the manner and with the authority provided by the bylaws.

ARTICLE VII OFFICERS

7.1 Number. The affairs of the Foundation shall be managed by a board of directors and administered by a president, one or more a vice presidents, a secretary, and -⅜-treasurer secretary-treasurer, each of whom has previously served on the board of directors, and such other assistant officers as the board of directors shall from time to time deem desirable. Officers -need not be directors or members of the-foundatiom — A person may hold-more than one office-,-except that the president and a vice-president may not be secretary or an assistant-secretary.

7.2 Election. The officers shall be elected annually by the board of directors at its first meeting following the annual meeting of the members, and the-y— shall serve at the pleasure of the board of directors. Terms of office may be limited as provided in the bylaws.

ARTICLE VIII BYLAWS

The board of directors of this corporation shall make and adopt bylaws for the corporation, and said board and its successors in office shall have power to alter, amend, and rescind such bylaws or to adopt new bylaws.

ARTICLE IX DIRECTORS’ AND OFFICERS’ COMPENSATION AND PROTECTION INDEMNIFICATION

9.1 Compensation. A director of the Foundation shall not receive compensation, directly or indirectly, for his services as a director. An officer of the Foundation shall not receive compensation, directly or indirectly, for his services as an officer unless he is employed by the board of directors as a member of the administrative staff of the Foundation. These prohibitions shall not preclude reimbursement of a directo^ or officer, or duly appointed committee member for expenses or advances made for the Foundation that are reasonable in character and amount and approved for payment in the manner provided by the bylaws.

9.2 Indemnification. Every director and every officer of the Foundation shall be indemnified by the Foundation against all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon him in connection with any proceeding or any settlement of any proceeding to which he may be a party or in which he may become involved by reason of his being or having been a director or officer of the Foundation, whether or not he is a director or officer at the time such expenses are incurred, except when the director or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement before entry of judgment, the indemnification shall apply only when the board of directors approves such settlement and reimbursement as being for the best interest of the Foundation. The foregoing right of indemnification shall be in addition to and not exclusive of all other rights to which such director or officer may be entitled. Appropriate liability insurance shall be provided for every officer, director and agent of the Foundation in amounts determined from time to time by the board.

9.3 Interest of Directors and Officers in Contracts. Any contract, whether for compensation or otherwise, or other transactions between the corporation and one or more of its directors or officers, or between the corporation and any firm of which one or more of its directors or officers are stockholders or employees, or in which they are interested, or between the corporation and any corporation or association of which one or more of its directors or officers are shareholders, members, directors, officers or employees, or in which they are interested, shall be valid for all purposes, notwithstanding the presence of such director or directors, officer or officers, at the meeting of the board of directors of the corporation which acts upon or in reference to such contract or transaction and notwithstanding his or their participation in such action, if the fact of such interest shall be disclosed or known in writing to the board of directors and the board of directors shall, nevertheless, authorize, approve and ratify such contract or transaction by vote or majority of the directors present, such interested director or directors, officer or officers to be counted in determining whether a quorum is present but not to be counted in calculating the majority of such quorum necessary to carry such vote. This section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto.

ARTICLE X AMENDMENT

10.1 Notice of Amendments. Notice of the subject matter of a proposed amendment shall be included in the notice of the meeting at which a proposed amendment is considered.

10.2 Directors Approval. A resolution adopting a proposed amendment or amendments shall be approved by two-thirds of all directors.

10.3 Approval. An amendment adopted by the board of directors shall be presented to the Board of Governors of The Florida Bar for approval.

10.4 Approval. An amendment adopted by the board of directors and approved by the Board of Governors of The Florida Bar shall be presented to the Supreme Court for approval in accordance with Article XII ■ of the Integration Rule of The Florida Bar.

10.5 Filing. An amendment so adopted and approved shall be filed with the Secretary of State as provided by law.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., dissents.


author: PER CURIAM. OVERTON, Justice, SHAW, Justice, BOYD, Justice,

text:
    Karen WHIRLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 62948.
    Supreme Court of Florida.
    May 17, 1984.

      Judge C. Luckey, Jr., Public Defender, Daniel R. Kirkwood and Bryan E. Hopkins, Asst. Public Defenders, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince and Diane Barrs, Asst. Attys. Gen., E.J. Salcines, State Atty., and Claire Cours Jackson, Asst. State Atty., Tampa, for respondent.
   PER CURIAM.

This cause, State v. Whirley, 421 So.2d 555 (Fla. 2d DCA 1982), is before us as conflicting with Powers v. State, 370 So.2d 854 (Fla. 3d DCA), review denied, 379 So.2d 209 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was arrested on December 30, 1980, and charged with a violation of section 316.193(1), Florida Statutes (1979), and section 39-2(b), Tampa City Code, for driving under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants. The citation subsequently was amended to charge a violation of section 316.193(3), Florida Statutes (1979), driving with an unlawful blood alcohol level. The charge of violating section 316.193(1) was dropped. The county judge denied petitioner’s motion for a jury trial, found her guilty, and sentenced her to ten days in jail. On appeal, the circuit court reversed.

The Second District Court of Appeal quashed the circuit court’s order and held that when one is charged with a violation of both a city ordinance and a state statute, one is entitled to a jury trial only if the penalty that could be imposed exceeds six months in jail and a $500 fine. Whirley, 421 So.2d at 556. The penalty for a first-time violation of section 316.193(3), Florida Statutes (1979), is imprisonment for not more than ninety days or a fine of not more than $250 or both.

The jury trial provision of the sixth amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This provision is made binding upon the states through the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The most significant limitation on the right to trial by jury is the so-called petty offense exception which limits the constitutional guarantee of a jury trial to “serious” crimes and thus limits the literal application of the sixth amendment. The distinction between petty offenses and serious crimes has focused upon the consideration of whether a given crime is serious enough to warrant a jury trial. If a crime is excluded from the serious category, it is petty. The classes of serious crimes are: crimes that were indictable at common law, Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); crimes that involve moral turpitude, Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); crimes that are malum in se, or inherently evil at common law, District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); and crimes that carry a maximum penalty of more than six months in prison, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). The first three criteria involve the nature of the offense itself. . In Baldwin, the court found that the one most relevant and objective criterion to use in determining whether an offense is serious or petty is the severity of the maximum authorized penalty. The Court held that a crime could not be treated as petty, regardless of whether any of the “nature of the offense” criteria applied, if the potential penalty exceeded six months in prison.

The conviction under consideration in Whirley is a petty offense that fits within none of the above classes; thus, the petitioner enjoys no federally protected right to a jury trial.

Our next consideration is whether there exists the right to a jury trial under the Florida Constitution or statutory laws. We made a constitutional inquiry in State v. Webb, 335 So.2d 826 (Fla.1976), wherein the accused was charged with a violation of section 325.12, Florida Statutes (1975), driving a motor vehicle without a valid inspection certificate. Justice Adkins, writing for the Court, analyzed Webb’s right to a jury trial under article I, section 22, of the Florida Constitution, which provides that “[t]he right of trial by jury shall be secure to all and remain inviolate” and found the right nonexistent for traffic-law violations:

Our Constitution, which became effective upon Florida’s admittance to the Union in 1845, has contained similar language throughout our history. Although this right has been carefully protected and enforced by this Court, it is not unlimited. It has long been established that this provision guarantees the right to trial by jury in only those cases in which the right was recognized at the time of the adoption of the State’s first constitution [citations omitted]. It does not extend to those cases where the right and the remedy with it were unknown at the time of the adoption of the first constitution. Pugh v. Bowden, 54 Fla. 302, 45 So. 499 (1907).
Turning to the case before us, it seems obvious that the right to a trial by jury has never been constitutionally required for violations of Fla.Stat. § 325.12, F.S.A., or for any other traffic law violation. While it is true that jury trials were provided for prior to the enactment of Florida’s decriminalization law, the right was a statutory one only; it has never been, and is not now, a constitutionally required right.

Webb, 335 So.2d at 828. We find the Webb rationale applicable to those violations of section 316.193 which do not carry a possible penalty of more than six months’ imprisonment.

Article I, section 16, of the Florida Constitution provides: “In all criminal prosecutions the accused shall ... have a speedy and public trial by impartial jury .... ” The state argues that the offense charged is not a crime under section 775.-08(2), Florida Statutes (1979), and therefore a charge of its commission does not confer the right to a jury trial. We reject this reasoning and adopt the analysis in Thompson v. Office of Public Defender, 387 So.2d 541 (Fla. 5th DCA 1980). In Thompson the Fifth District Court of Appeal considered whether a violation of section 316.193(1), Florida Statutes (1979), was a crime in the context of determining whether a public defender had the duty to represent an indigent charged with viola-' tion of the statute. The Fifth District recognized dissonance when reading together section 775.08(2), which excepted from the definition of “misdemeanor,” “any violation of any provision of chapter 316” and section 316.655, which read in pertinent part:

(1) A violation of any of the provisions of this chapter, except criminal offenses enumerated in section (4), shall be deemed an infraction, as defined in § 318.13(3).
(4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.-072, s. 316.192, s. 316.193, or s. 316.1935 shall be punished as specifically provided in such sections.

Thompson, 387 So.2d at 543. The court concluded that these- latter subsections make it clear that a violation of section 316.193 is a “criminal offense.” We agree that a violation of section 316.193 is a criminal offense, and therefore we consider the applicability of article I, section 16 of the Florida Constitution to the charge under consideration. We hold that the federal petty crime exception to the jury trial requirement in criminal prosecutions is also an exception under our own constitutional provision. See Aaron v. State, 345 So.2d 641 (Fla.), cert. denied, 434 U.S. 868, 98 S.Ct. 208, 54 L.Ed.2d 146 (1977); Aaron v. State, 284 So.2d 673 (Fla.1973).

The only arguable statutory right to a jury trial for what we find to be a petty offense is under section 932.61, Florida Statutes (1979), which provides:

A person charged in court with a violation of a county or municipal ordinance for which no jury trial is provided may, when the violation of a county or municipal ordinance is also a violation of a state law, cause the transfer of the violation to the appropriate court in which a trial by jury is provided ....

That section, however, does not independently confer a right to a jury trial if none would exist for a violation of the state law alone. Its primary purpose is to prevent circumvention of a right to a jury trial for a state criminal offense by the device of charging an equivalent municipal or county ordinance violation.

In 1979 the legislature chose to give one charged with violating section 316.-193(1), Florida Statutes (1979), the right to a jury trial by enacting section 322.262(4), Florida Statutes (1979):

(4) Any person charged with driving a motor vehicle while under the influence of intoxicating beverages to the extent that his normal faculties were impaired, whether in a municipality or not, shall be entitled to a trial by jury according to the Florida Rules of Criminal Procedure.

Because the legislature failed to grant a similar right in the case of one charged with driving or being in physical control of a vehicle with a blood alcohol level of 0.10 per cent or above, we conclude the omission was intentional. As long as the offense charged carries a penalty of no more than six months' imprisonment and a fine of no more than $500, we see nothing to preclude the legislature from intending such a result. We therefore approve the district court’s holding that petitioner was not entitled to a jury trial. We disapprove any language in Powers that conflicts with this opinion.

It is so ordered.

ALDERMAN, C.J., and ADKINS, MCDONALD and EHRLICH, JJ., concur.

OVERTON, J., concurs specially with an opinion.

SHAW, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion.

OVERTON, Justice,

specially concurring.

The decision reached by the majority in this case is in accordance with the United States Supreme Court’s construction of the federal constitution that there is no right to a jury trial for an offense punishable by less than six months in prison and with this Court’s interpretation of the state constitution that there is no right to a jury trial for traffic offenses or criminal contempt. Therefore, I concur in this decision. In my view, the legislature should immediately consider providing a statutory right to a jury trial for criminal and traffic offenses which are punishable by incarceration for less than six months.

SHAW, Justice,

specially concurring.

I concur because the controlling case law is clear and well established. However, if we were writing on a clean slate, I would hold that the United States Constitution means just what it says — in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. I would so hold regardless of the length of the imprisonment or whether the crime existed at the time the constitution was adopted. The history of this nation’s development convinces me that the constitution was written with a view to the future. The American revolutionaries, who drafted and adopted the Bill of Rights, considered royal law, judge trials, and lawyer’s law to be objectionable. They intended that no one in these United States faced with a criminal prosecution and desiring a jury trial be imprisoned unless first convicted by a jury of peers.

BOYD, Justice,

dissenting.

I must dissent because I find that the appellant has a state constitutional right to a jury trial. Our constitution explicitly provides a right to trial by a fair and impartial jury in all criminal prosecutions. Art. I, § 16, Fla. Const. Since driving a motor vehicle with an unlawful blood alcohol level is a criminal offense with a commensurate penalty of incarceration, this constitutional provision should' apply notwithstanding earlier precedents to the contrary. Moreover, I disagree with the majority’s characterization of this crime as a “petty” offense.

Most states have constitutional provisions like Florida’s, which guarantee a trial by an impartial jury in all criminal proceedings. A growing number of courts in these states are interpreting their constitutional provisions literally and expanding the right to a trial by jury beyond what the United States Supreme Court has held to be the minimum requirements under the federal constitution. See, e.g., Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954); State v. Sklar, 317 A.2d 160 (Me.1974); People v. Goodwin, 69 Mich.App. 471, 245 N.W.2d 96 (Ct.App.1976); City of Battle Creek v. Burnett, 55 Mich.App. 649, 223 N.W.2d 110 (Ct.App.1974); Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825 (Minn.1967); Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52 (1977); Franklin v. State, 576 S.W.2d 621 (Tex.Crim.App.1978); State v. Becker, 130 Vt. 153, 287 A.2d 580 (1972); City of Pasco v. Mace, 98 Wash.2d 87, 653 P.2d 618 (1982); State v. Voss, 34 Wis.2d 501, 149 N.W.2d 595 (1967). But see Thomas v. State, 331 A.2d 147 (Del.1975); City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535, cert. denied, 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970); McGowan v. State, 258 So.2d 801 (Miss.), cert. denied, 409 U.S. 1006, 93 S.Ct. 430, 34 L.Ed.2d 298 (1972); State ex rel. Cole v. Nigro, 471 S.W.2d 933 (Mo.), appeal dismissed, 404 U.S. 804, 92 S.Ct. 122, 30 L.Ed.2d 36 (1971); State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975); Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959); State v. Heath, 177 N.W.2d 751 (N.D.1970); Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973). In construing our constitution we should not blindly abide by the federal standards nor strictly adhere to our past precedents. Our function is not to determine what our constitution has meant in the past, but rather to determine what it should mean now and in the future. Because of the extreme importance our society places upon a person’s right to be judged by his peers, our constitution should be literally interpreted to provide a right to jury trial in all criminal proceedings. In determining what constitutes a criminal proceeding, a court should consider the type of offense, the maximum possible penalty, the collateral consequences of a conviction, the punitive significance, and the applicability of criminal procedures such as arrest and detention. Brown v. Multonomah County District Court; Nickelson v. People, 607 P.2d 904 (Wyo.1980).

In applying these criteria, the most significant factor to consider is whether the defendant may be subjected to a sentence of imprisonment. Many states now hold that a defendant has a constitutional right to a jury trial whenever he may be subjected to incarceration. See, e.g., State v. Browder, 486 P.2d 925 (Alaska 1971); Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966); City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958); People v. Schomaker, 116 Mich.App. 507, 323 N.W.2d 461 (Ct.App.1982); Cahill v. Fifteenth District Judge, 70 Mich.App. 1, 245 N.W.2d 381 (1976); City of Lima v. Rambo, 113 Ohio App. 158, 177 N.E.2d 554 (Ct.App.1960); Murrah v. City of Oklahoma City, 620 P.2d 1335 (Okla.Cr.App.1980); State v. Wikle, 291 N.W.2d 792 (S.D.1980); Hendershot v. Hendershot, 263 S.E.2d 90 (W.Va.1980).

It is of small moment to the citizen whether the period of incarceration is long or short; one day may be too long. Its results may be serious for one man and less so for another, depending upon a variety of circumstances. Furthermore, the great bulk of the citizenry encounters the judicial process most frequently in the prosecution of what have been called the petty offenses. Punishment inflicted at that level can be as harsh and as devastating to the life of the citizen as those meted out for more serious misdemeanors and for felonious conduct. Why should the remedial process be less just at one level than at another? We should be alert against attempts by government to whittle away fundamental rights on grounds of expediency. It is our constitutional duty to prevent such untoward consequences for the citizen at large.

Baker v. City of Fairbanks, 471 P.2d 386, 401 (Alaska 1970).

As the majority opinion points out, driving with a high blood alcohol content is considered a crime in this state. The fact that a person can be sentenced to serve a prison term for committing this crime makes it all the more imperative that the person be afforded a trial by an impartial jury. I fail to see why the constitutional right to a jury trial should depend on whether the maximum sentence that can be imposed is more or less than six months. The harsh reality of life in modern-day prisons, the consequent impairment of one’s livelihood, and the .social stigma of having served a prison term apply equally to those who serve one day in prison as to those who serve more than six months.

Fourteen years ago, this Court approved the use of the six-month distinction as a basis for denying persons accused of a misdemeanor of their constitutional right to an attorney. See State ex rel. Argersinger v. Hamlin, 236 So.2d 442 (Fla.1970), rev’d, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). I dissented in that case, stating:

Federal and State Constitutions are adopted for all of the people and must be applied uniformly. When a person is denied the exercise of constitutional rights, they are as meaningless to him as the shadow of a ghost. There is no magic yardstick by which we can determine liberty is more precious to one person than to another. From the inside all jails look alike.

Id. at 445 (Boyd, J., dissenting). A person facing a possible prison sentence should be afforded all of the constitutional rights designed and intended for the protection of the criminally accused, not just some of them.

Finally, I would like to state that I disagree with the majority's characterizing the crime in question in this case as a “petty” offense.

Today the drinking driver is a major cause of death, loss of limb, and the destruction of property' on the highway. Because of the consequences the offense of driving a motor vehicle while intoxicated must be considered mala in se and cannot reasonably be characterized as minor, trivial, or petty. Society regards the offense as serious.

Parham v. Municipal Court in and For City of Sioux Falls, 86 S.D. 531, 538, 199 N.W.2d 501, 505 (1972). Accord Rothweiler v. Superior Court of Pima County; City of Cannon City v. Merris; State v. Hoben, 256 Minn. 436, 98 N.W.2d 813 (1959); Artis v. Rowland, 64 Wash.2d 576, 392 P.2d 815 (1964). I would therefore quash the district court’s decision with directions to reverse appellant’s conviction on the ground that she was denied her state constitutional right to a trial by jury.

      . Section 316.193(3) provides:
      (3) It is unlawful and punishable as provided in subsection (4) for any person with a blood alcohol level of 0.10 percent, or above, to drive or be in actual physical control of any vehicle within this state.

      . Section 775.08(2) provides:
      (2) The term "misdemeanor" shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term "misdemeanor” shall not mean a conviction for any violation of any provision of chapter 316 or any municipal or county ordinance.

      . State v. Webb, 335 So.2d 826 (Fla.1976).

      . In re Florida Rules of Criminal Procedure, 196 So.2d 124, 173-75 (Fla.1967).


text:
    THE FLORIDA BAR, Complainant, v. Barry R. SHAPIRO, Respondent.
    Nos. 63411, 63761.
    Supreme Court of Florida.
    May 17, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, for complainant.
    Barry R. Shapiro, in pro per.
   PER CURIAM.

We review the reports of the referee concerning respondent Barry R. Shapiro’s petition for reinstatement (No. 63,411) and a multi-count complaint filed against him by The Florida Bar (No. 63,761). Respondent is currently under suspension, The Florida Bar v. Shapiro, 413 So.2d 1184 (Fla.1982), and has petitioned for review of the referee’s reports.

The Florida Bar’s complaint alleges thirteen counts of misconduct and the referee finds respondent guilty of twelve of the thirteen counts, specifically finding that respondent violated The Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) and (b) (conduct contrary to honesty, justice, or good morals, and misconduct constituting a felony or misdemeanor); and Rule 11.02(4) and the bylaws relating thereto (misuse of trust accounts). The referee also finds that respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: D.R. 1-102(A)(3) (illegal conduct involving moral turpitude), (4) (conduct involving dishonesty, fraud, deceit or misrepresentation), (5) (conduct prejudicial to the administration of justice), and (6) (conduct adversely reflecting on his fitness to practice law); D.R. 2-110 (improper withdrawal from employment); D.R. 5-101(A) (accepting employment affecting his own financial and business interests); D.R. 5-104(A) (improper business relations with a client); D.R. 6-101(A)(l) (accepting employment for a legal matter which he was not competent to handle), (2) (handling a legal matter without adequate preparation), and (3) (neglecting a legal matter entrusted to him); D.R. 7-101(A)(2) (failing to carry out a contract for legal services), and (3) (damaging a client during the course of a professional relationship); D.R. 7-105(A) (threatening criminal prosecution solely to obtain advantage in a civil matter); and D.R. 9-102 (improper trust fund maintenance). In light of his recommendation of disbarment, the referee suggests that respondent’s petition for reinstatement is moot.

In view of the cumulative nature of respondent’s conduct, we approve the referee’s findings of fact and recommendation of discipline. Barry R. Shapiro is disbarred from the practice of law, effective immediately. His petition for reinstatement is dismissed as moot. Costs are assessed against respondent in the amount of $5,093.54. In accordance with the referee’s recommendation, respondent is also directed to make restitution as follows:

Susan Feliciano $ 25.00
Arthur Cole $500.00
Clarence Johnson $100.00
Gloria Mountain $ 50.00
Client’s Security Fund of The Florida Bar $200.00

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


author: EHRLICH, Justice.

text:
    TRUCKING EMPLOYEES OF NORTH JERSEY WELFARE FUND, INC., et al., Petitioners, v. Thomas ROMANO, et al., Respondents.
    No. 63487.
    Supreme Court of Florida.
    May 17, 1984.

      Maurice M. Garcia and Bradford J. Beilly of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for petitioners.
    Arthur M. Simon of Goodwin, Ryskamp, Welcher & Carrier, Miami, for respondents.
    Edward T. O’Donnell, Richard M. Bezold and Robert T. Kofman, Miami, for the Florida Defense Lawyers Ass’n, amicus curiae.
   EHRLICH, Justice.

This cause is before the Court as presenting a question certified to be of great public importance. Romano v. Trucking Employees of North Jersey Welfare Fund, Inc., 427 So.2d 802 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioners were limited partners in a registered Florida limited partnership, in which the respondents were the general partners and business managers, formed for the purpose of developing condominiums in Lauderhill, Florida. On April 3, 1978, petitioners filed a complaint against respondents, alleging breach of fiduciary duty, conspiracy to defraud and breach of the limited partnership contract. Later, an additional count was added based on alleged violation of the federal RICO statute.

On November 28, 1978, a federal criminal indictment was filed in United States District Court for the Southern District of Florida charging respondents with twenty-one counts of fraud and misrepresentation. Petitioners were named in the indictment as victims of the specific acts which had been alleged in petitioners’ complaint. Respondents were found guilty on all counts.

Thereafter, petitioners filed a motion for summary judgment on the strength of the guilty verdict returned by the jurors in the federal criminal action. Petitioners argued that that conviction conclusively established all the factual allegations contained in petitioners’ complaint for purposes of res judicata and collateral estoppel in light of the fact that the United States proved that petitioners were injured by the acts complained of.

The trial court granted summary judgment on the issue of liability and retained jurisdiction on the issue of damages. The Fourth District Court of Appeal reversed on the grounds that a criminal conviction is not admissible in a civil action to prove the truth of the underlying facts and that lack of identity of the parties barred use of the conviction as collateral estoppel. However, the district court certified the following question to the Court:

May a litigant, who was not a party to a prior criminal proceeding that resulted in a judgment of conviction, use the judgment of conviction “offensively” in a civil proceeding to prevent the same defendant from relitigating issues resolved in the earlier criminal proceeding?

427 So.2d at 803. We answer the question in the negative and approve the decision of the district court.

Collateral estoppel or estoppel by judgment, like its near relative res judicata, serves to limit litigation by determining for all time an issue fully and fairly litigated between parties.

The difference which we consider exists between res adjudicata and estoppel by judgment is that under res adjudicata a final decree or judgment bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised, while the principle of estoppel by judgment is applicable where the two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues — that is to say points and questions — common to both causes of action and which were actually adjudicated in the prior litigation.

Gordon v. Gordon, 59 So.2d 40, 44 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952). A corollary to the doctrine of collateral estoppel is the doctrine of mutuality of parties which holds that strangers to a prior litigation — those who were neither parties nor in privity with a party — are not bound by the results of that litigation. See Yovan v. Burdine’s, 81 So.2d 555 (Fla.1955), and cases cited therein.

We recognize that the federal courts have abandoned the requirement of mutuality of parties as a prerequisite to asserting the doctrine of collateral estop-pel. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). We are also aware that other jurisdictions have also receded from the mutuality requirement. See, e.g., Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 122 P.2d 892 (1942). However, the well established rule in Florida has been and continues to be that collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies. Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977); Universal Construction Co. v. City of Ft. Lauderdale, 68 So.2d 366 (Fla.1953).

The question presented by the district court, however, further limits our inquiry to the use of a criminal conviction as conclusive proof of the facts underlying the conviction in a civil suit arising from those same facts. As the district court noted, and petitioners concede, Florida law prohibits such use of a conviction. Boshnack v. World Wide Rent-a-Car, Inc., 195 So.2d 216 (Fla.1967); Moseley v. Ewing, 79 So.2d 776 (Fla.1955); Stevens v. Duke, 42 So.2d 361 (Fla.1949). We see no need for nor advantage in receding from the established rule of evidence.

Petitioner urges judicial economy as a major rationale for changing the evidentia-ry rule and abrogating the doctrine of mutuality of parties. However, petitioner acknowledges that the determination of whether the facts are indeed identical and defendant had a fair opportunity and reasonable inducement to defend the action must be left to the discretion of the trial judge in the civil suit. This creates fertile ground for appeal; any savings to the trial court would be at the expense of the district courts of appeal. Robbing Peter to pay Paul is poor economy, judicial or otherwise.

Furthermore, evidence of the underlying facts may be relevant to issues other than liability. The jury might need to hear much of the same evidence to make determinations about comparative negligence, damages and punitive damages, for example. There can be little economy where the same effort must be expended for other purposes.

Finally, we are not convinced that the burden under which the plaintiffs’ bar now labors is so onerous that defendants’ rights should be compromised to ease it. Plaintiffs have been equal to proving all the elements of liability heretofore. To change the status quo risks prejudice to defendants which is not necessary to serve the ends of justice.

Therefore, we approve the decision of the district court and answer the certified question in the negative.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD and SHAW, JJ., concur.


author: BOYD, Justice.

text:
    DEPARTMENT OF TRANSPORTATION, Petitioner, v. Francisco Laureano MEDINA, Respondent.
    No. 63544.
    Supreme Court of Florida.
    May 17, 1984.
    Jim Smith, Atty. Gen., and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for petitioner.
    Joel V. Lumer and Kathleen Phillips, Miami, for respondent.
   BOYD, Justice.

We have jurisdiction to review a decision of a district court of appeal, Medina v. Florida Department of Transportation, 426 So.2d 1172 (Fla. 3d DCA 1983), which expressly and directly conflicts with a decision of this Court. Art. V, § 3(b)(3), Fla. Const. The district court below held that the trial court erred in transferring venue of respondent’s action against the Department of Transportation to Leon County, citing Grice v. Board of County Commissioners, 413 So.2d 88 (Fla. 1st DCA 1982). Subsequently we quashed that portion of the First District Court of Appeal’s Grice opinion relied upon by the court below and held that the decision to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor is within the discretion of the trial court. Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983). Consistent with our Grice decision, we quash the decision below and remand with instructions that this case be remanded to the trial court to reconsider the Department of Transportation’s motion for change of venue in light of the principles we announced in Grice.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


author: ALDERMAN, Chief Justice. EHRLICH, Justice,

text:
    Bernadette INGRAHAM, a minor, By and Through her father and next friend, Bernard INGRAHAM, and Bernard Ingraham and Laverne Ingraham, individually, Petitioners, v. DADE COUNTY SCHOOL BOARD, Respondent.
    No. 63572.
    Supreme Court of Florida.
    May 17, 1984.
    Joe N. Unger, Miami, for petitioners. Jeanne Heyward, Frank A. Howard, Jr., and Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for respondent.
    Larry Klein, West Palm Beach, for Academy of Florida Trial Lawyers, amicus curiae.
    Karen A. Gievers of Anderson, Moss, Russo & Gievers, Miami, for Dade County Trial Lawyers Ass’n, amicus curiae.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Third District, in Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983), wherein the Third District certified the following question to be of great public importance:

Is the 25 percent statutory limitation on attorney’s fees provided in section 768.-28(8), Florida Statutes (1981), applicable to a recovery under section 286.28, Florida Statutes (1981), formerly section 455.-06, Florida Statutes (1977)?

The Third District held that this limitation is applicable to the entire settlement amount. We agree and approve the Third District’s decision.

Suit was brought on behalf of Bernadette Ingraham who sustained serious injuries while engaging in required curriculum in a physical education class at Miami Edison Middle School, which school is under the control and direction of the Dade County School Board. The accident which rendered Bernadette a quadriplegic occurred in November 1978. The school board was self-insured to $100,000 and had purchased excess coverage from two insurance carriers in the amounts of $400,000 and $500,-000. A structured settlement of $1,000,-000, the total amount of the coverage, was approved by the trial court. The school board moved to limit the award of attorney’s fees in accordance with section 768.-28(8). The trial court held that the 25 percent limitation of section 768.28(8) is applicable only to the first $50,000 of the settlement reached between the parties and that for any portion of the settlement exceeding $50,000, the parties are free to contract concerning the percentage and payment of legal fees.

The school board appealed and the Third District, finding that section 768.28, Florida Statutes (1973), was intended by the legislature to be a complete overhaul of the area of sovereign immunity, held that the legislature intended that the 25 percent limitation on attorney’s fees apply to the entire settlement amount.

Article X, section 13 of the Florida Constitution provides absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. Section 768.28, enacted in 1973, constitutes a limited waiver by legislative enactment of the state’s sovereign immunity. Section 768.28(5), Florida Statutes (1977), provides:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 197f (Footnote added. Emphasis supplied.)

At the time of this enactment, section 455.-06 (now renumbered as section 286.28 by chapter 79-36, section 5, Laws of Florida) was in effect and provided that, to the extent a state agency purchases liability insurance, the defense of sovereign immunity and the statutory cap on recovery is removed. Specifically, subsection (2) of this section provides in pertinent part:

(2) In consideration of the premium at which such insurance may be written, it shall be a part of any insurance contract providing said coverage that the insurer shall not be entitled to the benefit of the defense of governmental immunity of any such political subdivisions of the state in any suit instituted against any such political subdivision as herein provided, or in any suit brought against the insurer to enforce collection under such an insurance contract; and that the immunity of said political subdivision against any liability described in subsection (1) as to which such insurance coverage has been provided, and suit in connection therewith, are waived to the extent and only to the extent of such insurance coverage _ (Emphasis supplied.)

Section 768.28 totally revised the area of sovereign immunity, but as a part of the overall revision of this area by the legislature it specifically provided that the statutory provisions permitting the state to purchase insurance based upon section 455.06 would continue in effect. Specifically, section 768.28(10) provides: “Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act.” Section 455.06 thus became a part of the overall scheme of the legislature relating to the waiver of sovereign immunity.

Subsection (8) of this overall statutory scheme relating to sovereign immunity created by the enactment of section 768.-28 provides: “No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement.” The Third District correctly held that since section 768.-28(8) is the only portion of this unitary concept which deals with attorney’s fees, its provisions govern a situation, as in the present case, where a state agency purchases supplemental and discretionary insurance. The 25 percent limitation on attorney’s fees relates to any judgment or settlement and therefore applies to all situations involving waiver of sovereign immunity regardless of the source of payment.

Furthermore, we find no merit to petitioners’ contention that section 768.28(8) is unconstitutional. We hold that section 768.28(8) is constitutional and does not constitute an impairment of contractual obligations and does not amount to a legislative usurpation of the power of the judiciary to regulate the practice of law.

Accordingly, having found that the Third District correctly answered the certified question in the affirmative, we approve its decision which reversed the trial court and held that the 25 percent limitation on attorney’s fees applies to the entire settlement amount.

It is so ordered.

BOYD, OVERTON, McDONALD and SHAW, JJ., concur.

EHRLICH, J., dissents with an opinion.

EHRLICH, Justice,

dissenting.

The majority by imaginative but faulty logic concludes that section 455.06, now section 286.28, became “a part of the overall scheme of the legislature relating to sovereign immunity” by virtue of the fact that section 768.28(10) provides that “the laws allowing the state or its agencies or subdivisions to buy insurance are not restricted in any way by the terms of this act.” (Emphasis supplied.) I conclude that the legislature by the expression “are not restricted in any way by the terms of this act” meant just that — that the restrictions of section 768.28 don’t apply to section 286.28 — and for good reason. The acts seek to accomplish different objectives. Section 768.28 deals with governmental funding and severely limits the governmental units’ liability irrespective of the damage wrought to the injured party. If the plaintiff’s judgment exceeds the statutory cap, the portion of the judgment that exceeds the cap may be paid in part or whole only by further act of the legislature. Under section 286.28, the amount of recovery is only limited by the amount of insurance purchased. It permits the governmental entity to protect the public much more fully than section 768.28. If a judgment is returned in excess of the applicable insurance limits, the court is mandated to reduce the amount of the judgment to a sum equal to the applicable limit set forth in the policy. True, the plaintiff may still present a claims bill to the legislature for such excess, but not in the form of an unsatisfied judgment.

Section 768.28 affords no protection to the officer, employee or agent of the state or its subdivision if he acted in bad faith or with malicious motive or in a manner exhibiting wanton and willful disregard of human rights, safety or proof. Section 286.28 affords insurance protection to such officer, agent or employee.

Section 768.28 excludes prejudgment interest. Section 286.28 has no such restriction.

Section 768.28 specifically excludes punitive damages. Section 286.28 has no such restriction.

The statutory cap of section 768.28 has been construed by this Court to include court costs. City of Lake Worth v. Nicolas, 434 So.2d 315 (Fla.1983); Berek v. Metropolitan Dade County, 422 So.2d 838 (Fla.1982). There is no such limitation when there is insurance coverage.

I conclude from these differences that it was never the legislative intent to graft section 768.28 onto section 286.28.

Further, the public policy reason for capping attorney’s fees in section 768.28 does not exist where the state agency has commercially insured itself. In the context of section 768.28, the public coffers have been, to a limited extent, opened to redress injury committed by state agencies. In order to limit the drain on the public funds, a cap has been set on recovery regardless of the enormity of the injury. To insure that the maximum benefit of this arbitrarily limited recovery will inure to the injured party, a cap has likewise been set on the percentage of that recovery which the plaintiff’s attorney may claim as a fee.

This eminently reasonable approach under section 768.28 is totally out of place under section 286.28. Where commercial insurance is purchased, the state agency has placed itself in the same posture as any other non-sovereign entity. The public funds have already been spent to purchase insurance coverage. No further raid on the public coffers is possible. No arbitrary cap is set on the recovery. The plaintiff who claims against an insured state agency is under no maximum limitation handicap as compared to the plaintiff claiming against a private entity. There is therefore no rational basis for granting the state-injured plaintiff the benefit, as compared to the plaintiff injured by a private entity, of an artificial cap on the fees that he may contract with his attorney.

I would quash the decision of the district court and reinstate the decision of the trial court.

       Section 768.28(5) was amended in 1981 to increase this amount to $100,000. Ch. 81-317, § 1, Laws of Fla.