author: WENTWORTH, Judge. NIMMONS, Judge,

text:
    Joel STAHL, Appellant, v. SOUTHEASTERN X-RAY and Risk Management Services, Inc., Appellees.
    No. AP-301.
    District Court of Appeal of Florida, First District.
    March 21, 1984.

      Joel Stahl, pro se.
    H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellees.
   WENTWORTH, Judge.

The claimant in this case, a 30 year old high school graduate, appeals an order denying a $10004 claim for personal costs and damages incurred while he attempted pro se to obtain controverted benefits, and granting wage loss benefits from March through May, 1982, but denying such benefits thereafter because claimant was “not seeking other employment.” We affirm the denial of damages as involving costs not recompensed by Chapter 440, Florida Statutes, but reverse the deputy’s ruling on wage loss benefits after June 1, which were denied for lack of work search while claimant was employed full time.

The deputy relied solely on claimant’s cessation of active work search; the order contains no findings with respect to his actual capacity or limitations; and the record consists solely of testimony by claimant and documentary evidence which does not otherwise show voluntary limitation of income. The issue therefore appears to be whether the deputy properly applied the work search rule to require forfeiture of wage loss benefits when claimant, because of objection from his present employer, stopped active job search efforts which had yielded no better alternative throughout the initial three months on that job. We conclude he did not, and find that earlier decisions holding certain part-time employments to be inadequate job market tests do not support that result in this case. We need not, of course, determine that a claimant’s full-time employment at less than former wages always shifts to employer the burden of proof of voluntary limitation of income under the statute. But the context of such employment negates voluntary limitation in this case, absent any evidence that claimant would not “accept employment commensurate with his ... abilities.”

The record reflects claimant’s injury by compensable accident on March 7, 1980, while handling x-ray equipment for the ap-pellee, self-insured employer, for whom claimant had worked approximately six months doing skilled technical work and heavy lifting involved in installation of equipment. He was apparently temporarily disabled for a year, until maximum medical improvement was reached April 1, 1981, with a 15% permanent impairment from his back injury. A previous claim was determined on October 11,1982, and affirmed on appeal in March, 1983, except for correction of the $350.00 average weekly wage by addition of $10.00 for insurance payment. Stahl v. Southeastern X-Ray, 427 So.2d 1089 (Fla. 1st DCA 1983). Wage loss in some amount was paid through February 28, 1982, and the current claim was filed in March and heard in August, 1982.

Claimant’s employment in January and February, 1982, was with D & K X-Ray, doing maintenance work at $3.75 per hour. On March 6, according to the order, he was “laid off by his employer ... and ... thereafter for a period of two weeks, he actively looked for work until locating the job at Diamond Laboratories, paying $3.35 an hour and while with Diamond Laboratories sought a better paying job until late May when his employer promoted him to a more responsible job [customer relations for the photographic lab] and gave him a raise effective June 1, 1982,” to $3.75 per hour. The deputy clearly relied on claimant’s “not seeking other employment” to find voluntary limitation. The deputy’s statement, with reference to claimant’s current job, that he “plans to make this work his career for the indefinite future” must be construed in reference to claimant’s testimony set out below, which is consistent with other record evidence. Admission that he was not “calling anymore for jobs” plainly does not show a decision by claimant that he would not “accept employment commensurate with his ... abilities” as required by the statute to deny benefits, and the order does not so find. Pertinent testimony is:

It was sometime in May I made a phone call from the lab to try to set up an interview, a job interview, and I didn’t know it at that time that the boss had a listening device, ... And he overheard me ... and he asked me if I was looking for work and I told him yes, that three thirty-five, I just can’t live on that. He said that he might be able to put me into a better position ....
So, in June he put me into a new position and gave me a raise to three seventy-five an hour ... which made me happy because now I’m starting to make more money there and they’re giving me a little bit more authority.
Q: To the best of your knowledge and knowing what you know and your evaluation of what the boss has told you about your job and presently, is it your intention to stay? I don’t mean forever in the future. None of us can look that far down the road. Is it your present intention to stay?
A: Well, like I said, if I have some type of future there, yes, I’m going to stay. My boss has indicated that I have a future there, so I feel that I have a good job right now and it would be silly for me to leave a good thing.
Q: So, in June or July since you got your raise, you haven’t been calling anymore for jobs? You’re trying to increase your job there?
A: Right.

Under these circumstances we conclude the claimant adequately met his initial burden, absent any findings by the deputy or any evidence showing claimant’s lack of good faith effort or willingness to return to his former job or one with equivalent earnings throughout the year between MMI and his commitment to the job now in question. Benefits should have been awarded for the months when claimant worked full time at the only employment available to him so far as reflected by the record. The explicit statutory test, i.e., voluntary limitation of income, is in our opinion clearly negated by claimant’s unchallenged unavailing efforts over preceding months (for which wage loss was awarded) to obtain employment in the work he formerly did or to find a comparably paid job. The deputy’s order would compel claimant to forfeit any present or future commitment to a full-time job which appears to be appropriate in all ways other than presently diminished earnings. The order would indicate that the deputy misconstrued the evidentiary work search rule out of context with the statutory test.

Reversed and remanded for proceedings consistent herewith.

ZEHMER, J., concurs.

NIMMONS, J., concurs in part & dissents in part with opinion.

NIMMONS, Judge,

concurring in part and dissenting in part.

I concur in the court’s opinion affirming the deputy’s denial of appellant’s claim for “personal costs and damages” but dissent from the court’s reversal of the deputy’s denial of wage-loss benefits.

A wage-loss claimant has the burden of proving all elements of his claim for wage-loss benefits. Holiday Care Center v. Scriven, 418 So.2d 322, 326 (Fla. 1st DCA 1982). Under Section 440.15(3)(b)2, Florida Statutes, the employee has the burden “to establish that any wage loss claimed is the result of the compensable injury.” The burden remains on an employee who files monthly wage-loss claims to demonstrate an adequate and good faith attempt to secure employment commensurate with his abilities. Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982). In adopting the wage-loss concept, the legislature by necessary implication has adopted the “work search” test as the means for determining the employee’s post-injury capacity to earn. Id. at 877. Under the 1979 Act, requests for wage-loss benefits must be filed monthly and each claim is a separate claim. Deltona Corporation v. Morris, 418 So.2d 1274 (Fla. 1st DCA 1982).

A claimant who periodically seeks wage-loss benefits is not excused from the continuing duty of testing his employability simply because he has taken a full-time job with which he is satisfied, cf. Piccadilly Cafeteria v. Polite, 433 So.2d 591 (Fla. 1st DCA 1983); Sharp Construction Co., Inc. v. Perez, 429 So.2d 367 (Fla. 1st DCA 1983), apparently the situation in the case at bar.

By his unwillingness to continue testing the job market after May, 1982, the claimant failed to satisfy his burden of demonstrating that the wage losses claimed thereafter were a result of the compensa-ble injury. I would affirm.

      . Sharp Construction Co. v. Perez, 429 So.2d 367 (Fla. 1st DCA 1983); Piccadilly Cafeteria v. Polite, 433 So.2d 591 (Fla. 1st DCA 1983). The latter case involves claimant’s voluntary confinement, absent medical restrictions, to a sin-glc job which, relative to the customary dual employment on which her average wage was based, did not constitute full-time employment. She had also quit her original employment after more than a year’s performance post-injury, based on self-imposed restrictions not supported by other current medical evidence.

      . This court, in Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), appropriately noted:
      We observe that the Supreme Court of Florida has quite recently and explicitly reemphasized the rule that when the claimant affirmatively demonstrates that ‘some effort’ was made to obtain employment within his limitations, the burden shifts to the employer to demonstrate that suitable work is in fact available. Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981). It follows that when the burden has properly been shifted to the E/C, and the E/C has failed to carry that burden at the initial hearing, then an award based on wage earning capacity loss is justified. In that event, the E/C may utilize modification proceedings to establish a change in circumstances by demonstrating that suitable employment is available to the claimant which would require a reduction in wage earning capacity benefits....
      411 So.2d 919, at 926, n. 14.

      . 440.15

      (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.—

      (b) Wage-loss benefits.—

      2. The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury-

        .Ibid. As to claimant's burden under the statute with respect to any specific period during which wage loss is claimed, this court in Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982), said:
      We submit ... that consideration of the factors [claimant’s actual physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and the like] is still required, as in the past, in determining the adequacy and good faith of the job search, and in determining under the 1979 amendments whether the employee has voluntarily limited his employment or failed to accept employment commensurate with his abilities.
      Obtaining and performing a full time job clearly constitutes a job "search” and market test. Whether the acceptance of a particular job with lower earnings amounts to voluntary limitation should be determined based on the enumerated factors (including of course availability of jobs) and not based simply on a requirement for continued diligent search by claimant after completion of his normal daily work schedule.

      . Claimant testified to his capacity with his back impairment to handle the duties of his original employment except not "to be one of those ... to carry the six hundred pound unit in.” He was asked "was it your intention to take the job [at x-ray places] if they had an opening?” and responded, "Yes, it was_" Although his current employment is with a photographic laboratory, and he had some past history of training and work as a photographer, his current job functions still include equipment maintenance. He considered the higher paid x-ray servicing job, in which he was injured, to be more prestigious "where you ... have a company vehicle and things.”


source: Caselaw Access Project

author: ZEHMER, Judge. NIMMONS, Judge,

license: Public Domain

text:
    John L. LEWIS, Appellant, v. TOWN & COUNTRY AUTO BODY SHOP and Aetna Casualty & Surety, Appellees.
    No. AR-41.
    District Court of Appeal of Florida, First District.
    March 21, 1984.

      Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, St. Petersburg, for appellant.
    Thomas R. Bopp of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellees.
   ZEHMER, Judge.

Claimant appeals the deputy commissioner’s order denying his motion that the employer and carrier be required to provide further medical treatment. We reverse.

Shortly after a compensable accident on February 5, 1982, claimant was treated by Dr. Downey, a chiropractor who had treated claimant for back problems before the accident. After the employer and carrier deauthorized Dr. Downey, claimant saw an orthopedic surgeon; and after claimant expressed dissatisfaction with that physician, the employer and carrier reauthorized Dr. Downey, who continued treating claimant. Subsequently, the carrier, Aetna Casualty and Surety, denied coverage, asserting that it was not the carrier providing coverage for the employer on the date of the accident. Following a hearing on this coverage issue, the deputy entered an order on August 26, 1982, resolving the issue against Aetna and in favor of coverage.

After resolution of the carrier coverage question, the employer and carrier disputed claimant's average weekly wage and his entitlement to temporary total disability and reimbursement for medical expenses previously incurred. Among other things, the carrier took the position that maximum medical improvement was reached April 5, 1982. Claimant asserted that he had not reached that plateau. After the September 23, 1982, hearing on the merits, the deputy entered his order on September 24, 1982, in which he, among other things, awarded temporary total disability benefits up to the date of the September 23 hearing and required the carrier to pay certain medical bills. In addition, the order required the employer and carrier to:

Continue to provide to the employee-claimant that form of remedial and/or palliative medical care and attention consistent with the nature of his injury and the process of his recovery in the manner and for the time period prescribed by law, leaving to the employer/carrier their statutorily created right of first selection of an orthopedic surgeon to evaluate and treat the employee inasmuch as the employee-claimant is not, in accordance with the testimony of Dr. Downey, receiving any remedial benefit from further chiropractic treatment. (Emphasis added.)

The deputy made the following finding in his September 24 order:

Dr. Downey candidly admits that the treatment being rendered by him is of a palliative nature and that the employee-claimant has attained the status of maximum medical improvement and physical recovery from chiropractic treatment, but that he is in need of additional diagnostic studies and evaluations by an orthopedic surgeon, which has not to date been afforded by the employer/carrier herein. (Emphasis added.)

No appeal was taken from the September 24 order.

The employer and carrier subsequently authorized claimant to be examined by Dr. Keeler, an orthopedic surgeon. The employer and carrier advised counsel for claimant that Dr. Keeler would be authorized to treat claimant if the doctor determined that claimant needed treatment. Dr. Keeler examined claimant on October 29, 1982, and concluded that claimant had reached maximum medical improvement and was not in need of additional treatment. Accordingly, Dr. Keeler refused to see claimant further, even though claimant attempted to make further appointments with him.

On January 3, 1983, claimant’s counsel filed a motion seeking an order authorizing a physician to treat claimant and to require the carrier to pay for such treatment. The employer and carrier had previously, on November 22, 1982, filed an application for hearing to determine whether claimant was entitled to further medical treatment.

At a hearing on January 14, 1983, the employer and carrier took the position that the claimant had reached maximum medical improvement, and claimant asserted that he had not. The evidence presented included claimant’s testimony, a written report of Dr. Keeler, and the deposition of Dr. Keel-er taken three days prior to the hearing. The claimant testified that he was experiencing pain in his back, numbness in his legs, and that he was unable to work. He said that the “adjustments” administered by Dr. Downey gave him some relief. Dr. Keeler testified that in his opinion claimant had reached maximum medical improvement with a five percent permanent physical impairment, that he did not feel claimant would benefit from additional medical care, that additional chiropractic manipulations would only increase claimant’s problems, and that intermittent pain which might result from claimant’s resumption of physical activity would be relieved by local heat, aspirin, or short periods of rest. The conflicts between Dr. Keeler’s testimony and claimant’s testimony are obvious.

Based on the evidence presented, the deputy found there to be no basis upon which to order further medical treatment and, accordingly, denied the claimant’s motion. The claimant asserts on appeal that the deputy did not make a specific finding that maximum medical improvement had been reached.

Although the deputy did not expressly state that he found the claimant to have reached maximum medical improvement, he obviously concluded that Dr. Keeler’s testimony that claimant had already reached maximum medical improvement at the time of his examination was conclusive. The order states:

The sole medical evidence before your undersigned is the testimony of Dr. William H. Keeler, III, an orthopedic surgeon licensed and practicing in Pinellas County, who has opined predicated upon his examination of the employee-claimant on October 28, 1982, that the employee-claimant has attained the status of maximum medical improvement and physical recovery and is not in need of additional treatment. The opinion of Dr. Keeler is not in conflict with any other medical evidence before your undersigned. The employee-claimant’s voiced subjective degree of symptomatology which, in his opinion, precludes him from returning to active gainful employment and, in his opinion, necessitates the rendition of additional medical treatment is not a sufficient basis for affording to the employee-claimant the relief sought in the Motion as has been filed in this cause.

We recognize that maximum medical improvement is the date after which recovery or lasting improvement can no longer reasonably be anticipated, Lake County Commissioners v. Walbum, 409 So.2d 153 (Fla. 1st DCA 1982), and that remedial treatment may not be awarded for the period following maximum medical improvement. Taylor v. State, 401 So.2d 877 (Fla. 3d DCA 1981); Oak Crest Enterprises, Inc. v. Ford, 411 So.2d 927 (Fla. 1st DCA 1982); cf., Smith v. James Pirtle Construction Co., 405 So.2d 290 (Fla. 1st DCA 1981). For this reason, an express finding on this issue, including the date thereof, is particularly important.

The order of the deputy commissioner must be reversed and the case remanded for further findings by the deputy commissioner regarding not only the date of maximum medical improvement but also whether the claimant is or is not actually suffering the symptoms described in claimant’s testimony and, further, on the basis of such findings, whether authorization of a second qualified physician is appropriate.

It seems clear from the appealed order that the deputy commissioner’s decision was based upon a misunderstanding that, in the absence of expert medical opinion conflicting with the opinion of Dr. Keel-er, he was precluded as a matter of law from authorizing further medical treatment. The deputy has, in effect, concluded that unless the claimant comes forward with countervailing expert medical testimony, he is foreclosed from a further award of medical care. The claimant argues that the deputy’s ruling has placed him in the anomalous position of having to obtain further medical examination and evaluation to verify and corroborate his continued complaints of pain and disability while, at the same time, he cannot obtain such medical examination and opinion because the carrier and the deputy commissioner will not authorize him to see a physician. We are unwilling to construe the workers’ compensation act to have this effect.

Claimant is entitled as a matter of right, in the absence of a specific finding that he has reached maximum medical improvement, to have medical care provided by the employer. And if the authorized physician declines to see him further, claimant is entitled to have another physician authorized to provide such medical care. § 440.13, Fla.Stat. (1981). Since Dr. Keeler refused to further see claimant, the deputy should have authorized an additional examination by another qualified medical physician so that claimant and the deputy might at least have the benefit of a “second opinion.” Even recognized medical associations recommend a second opinion in cases where physicians may have honest differences of opinion. The testimony of the chiropractor, Dr. Downey, in the prior proceeding was limited to the effectiveness of chiropractic treatment on the claimant’s injuries and thus cannot be treated as a second opinion by a qualified medical physician specializing in orthopedics.

The deputy's conclusion that he could not accept the claimant’s testimony of continued pain, symptoms, and resulting disability as sufficient evidence to dispute the medical opinion of Dr. Keeler is erroneous as a matter of law. Many years ago, the Supreme Court very clearly stated that:

... opinions of medical experts are not conclusive and may even be disregarded by the deputy “in favor of lay testimony,” Magic City Bottle and Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959); that the deputy may consider not only lay testimony but his personal view of the claimant as well, Hernandez v. DeCarlo, 116 So.2d 429 (Fla.1959); and that a conclusion may be based on the testimony of a claimant to the exclusion of a medical expert, Star Fruit Co. v. Canady, 159 Fla. 488, 32 So.2d 2 (1947).

Crowell v. Messana Contractors, 180 So.2d 329, 330 (Fla.1965).

Although not obligated to believe claimant in all respects, the deputy, had he not been laboring under a misconception of the applicable rule of law, could well have disregarded Dr. Keeler’s testimony and accepted claimant’s testimony as sufficient to authorize another orthopedic physician to examine and treat claimant.

For the foregoing reasons, we reverse and remand for further findings by the deputy commissioner consistent with this opinion.

REVERSED and REMANDED.

WENTWORTH, J., concurs.

NIMMONS, J., dissents with opinion.

NIMMONS, Judge,

dissenting.

I respectfully dissent. In my view, the deputy’s order denying the claimant’s motion for further medical treatment is supported by competent substantial evidence. According to Dr. Downey, claimant’s preferred source of treatment, claimant would not benefit from further chiropractic treatment. The deputy, therefore, in his order in September, 1982, required the E/C to provide further medical care by an orthopedic surgeon “consistent with the nature of his injury and and the process of his recovery.” Thereafter, the claimant was examined by a qualified orthopedic surgeon, Dr. Keeler, who was jointly selected by counsel for the claimant and counsel for the E/C. Further, counsel for E/C advised Dr. Keel-er in advance of the examination that he was authorized to treat the claimant if Dr. Keeler determined that treatment was needed.

No question has been raised as to Dr. Keeler’s competence or as to the fact that the nature of claimant’s medical problems clearly fall within Dr. Keeler’s medical specialty. Dr. Keeler administered what appears to be a thorough examination with sufficient background concerning claimant’s history of injury and treatment.

As the majority recognizes, maximum medical improvement is the date after which recovery or lasting improvement can no longer reasonably be anticipated, and remedial treatment may not be awarded for the period following maximum medical improvement. The majority also recognizes that the deputy’s order included the implicit finding that the claimant had reached maximum medical improvement. I would not disturb that finding. However, I would remand for a determination as to the date by which the claimant reached MMI. Otherwise, I would affirm the deputy’s order denying the claimant’s motion for further medical treatment.


author: JOANOS, Judge.

text:
    G & W WOOD PRODUCTS and Professional Administrators, Inc., Appellants, v. Nathan PARROTT, Appellee.
    No. AU-187.
    District Court of Appeal of Florida, First District.
    March 21, 1984.

      Robert C. Barrett of Cooper & Rissman, Orlando, for appellants.
    Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee.
   JOANOS, Judge.

In this workers’ compensation appeal, appellants argue that claimant has not shown he is permanently, totally disabled; that no wage loss was awardable if claimant was found to be permanently, totally disabled; that claimant’s work following his accident and his reduction in rent in exchange for yard and house work would preclude an award of total wage-loss benefits; and that only taxable costs should have been awarded. We agree that claimant has failed to show that he is permanently and totally disabled, that wage loss would have to be recalculated on remand and that, as conceded by claimant, only taxable costs should have been awarded.

Claimant, a fifty-two-year old male with a sixth grade education and borderline level of intelligence, injured the thumb of his non-dominant left hand while cutting timber with a chainsaw on June 1, 1981.

Appellants accepted the injury as com-pensable and paid temporary total disability until June 14, 1982. Claimant filed for permanent disability benefits and wage loss. Appellants controverted the claim based upon there being no medical evidence that claimant was unable to return to work and defended the claim based upon, among other things, claimant’s not being permanently, totally disabled, no medical restrictions or evidence of disability, and an insufficient job search.

Claimant’s thumb injury was treated by Dr. Rojas, an orthopedic surgeon, who released him to regular duty work on June 11, 1982. Dr. Rojas stated he would encourage claimant to return to full time work with no restrictions.

Dr. Carducci, orthopedic surgeon specializing in surgery of the hand, evaluated the thumb injury on May 10, 1982. He stated that claimant had reached maximum medical improvement on the date of the evaluation, with a 7% impairment of the whole body under the AMA Guides. Dr. Carducci encouraged physical activity and stated that claimant could return to his previous employment with no restrictions since the injury involved the non-dominant hand. Dr. Ramadan, plastic surgeon specializing in hand surgery, had treated claimant for a previous injury to his left index finger, for which he gave an 8% impairment of the whole body based upon the AMA Guides. Dr. Ramadan last saw claimant in March, 1980 and never evaluated his thumb injury, but felt the thumb injury would exacerbate claimant’s prior disability. Presented with a hypothetical of the thumb injury, Dr. Ramadan felt that claimant would be able to return to some type of full time activity.

Claimant testified before the deputy commissioner relating his left index finger accident and an accident in which his left leg was cut. Both accidents happened prior to his thumb injury and were not the subjects of workers’ compensation claims. Claimant has no driver’s license and needs corrective glasses. Following the thumb injury, claimant performed light carpentry work, mowed grass, and stated he painted a house in exchange for a rent reduction in July, 1982. From July 15, 1982 to August 7, 1982, claimant cut trees in a logging operation. He related that he had dropped the saw and cut his boot during this time. Claimant presented evidence of an extensive work search and expressed his willingness to work.

A vocational rehabilitation counselor saw claimant and testified before the deputy commissioner that claimant’s not having a driver’s license reduced job possibilities for him. Although claimant was highly motivated to return to work, the counselor felt there were no jobs available in the area, given claimant’s physical conditions, age, work history and education.

The deputy commissioner found claimant permanently, totally disabled based upon his anatomical impairment, age, limited education and employment. Entitlement to wage loss was also found, but the finding of permanent total disability precluded payment of wage loss benefits.

Section 440.15(l)(b), Florida Statutes (Supp.1980), places the burden upon the employee to establish that he is unable uninterruptedly to do even light work due to physical limitation, before it can be determined that the employee is permanently, totally disabled. Where there is no evidence by a competent witness that a claimant is unable to do light work, it is error to find permanent total disability. Hillsborough Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983); Arnold Lumber Company v. Randall, 438 So.2d 433 (Fla. 1st DCA 1983). Claimant worked, following his release to work, cutting trees, but the logging operation ended. Claimant then performed odd jobs of painting, light carpentry and lawn work for his landlady to offset his rent. .There is no evidence that claimant is unable to engage in light work.

There is medical evidence of claimant’s having a permanent impairment based upon the AMA Guides and competent, substantial evidence supports a finding of a good faith work search. An award of total wage loss, however, is not supported by the record, given the three weeks claimant worked following his thumb injury. Wage loss benefits should be calculated as provided in section 440.15(3)(b)l, Florida Statutes (Supp.1980), with consideration given for the remuneration claimant received in the form of rent reduction.

Claimant concedes only taxable costs which have been properly submitted should be awarded. The deputy commissioner could properly award those costs statutorily accorded to a prevailing claimant, even though no evidence of same was submitted at hearing. Sandcaribe v. Llerandi, 432 So.2d 185 (Fla. 1st DCA 1983). If the parties cannot agree as to the amount, the deputy commissioner will determine the reasonable costs of the proceedings as provided in section 440.34(3), Florida Statutes.

The deputy commissioner’s award of permanent total disability is REVERSED and this cause is REMANDED for determination of wage loss and award of statutorily provided costs in accordance with this opinion.

SHIVERS and THOMPSON, JJ., concur.


author: BARFIELD, Judge.

text:
    Scarlett BARTS, Appellant, v. STATE of Florida, Appellee.
    No. AW-416.
    District Court of Appeal of Florida, First District.
    March 21, 1984.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, and Edward S. Stafman, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ON MOTION TO REVIEW

BARFIELD, Judge.

Scarlett Barts appeals the trial court’s order denying bail pending appeal from a conviction of second degree murder in accordance with section 903.133, Florida Statutes (1982 Supp.). Barts challenges the validity of the statute, alleging that it violates her constitutional rights to due process and equal protection and that it violates provisions of the Florida Constitution requiring separation of powers and prohibiting amendment of the law by reference to title only. The trial court found that section 903.133 does not violate the constitutional guarantees of equal protection and due process of law and that it was legally enacted. We affii'm.

The challenged statute is a sequel to successive legislative enactments limiting those classes of convicted felons eligible for bail pending appellate review of their convictions. The sequence began in 1969 with enactment of section 903.131, later section 903.132, Florida Statutes (1969), which prohibited bail for certain habitual offenders. This statute withstood a constitutional attack in Greene v. State, 238 So.2d 296 (Fla.1970), in which the court recognized the authority of the legislature to encroach upon the historical domain of the court in determining bail as long as the limitations imposed by the legislature were reasonable. In Gallie v. Wainwright, 362 So.2d 936 (Fla.1978), the court reviewed the successor to the statute involved in Greene and reaffirmed its holding that, as long as the legislature has a rational basis for denying bail following a conviction, the equal protection and due process clauses of the constitution are not offended.

In 1980 the legislature expanded the class of persons to be denied post-conviction bail to include persons convicted of drug trafficking. Section 903.133, Florida Statutes (1980 Supp.). Chapter 80-72, Laws of Florida, indicates that one of the governmental objectives contemplated by the statute was to prevent a defendant convicted of “a crime of inherent gravity” from skipping bail. The statute withstood a constitutional attack based in part on a separation of powers argument in Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981), pet. for rev. den., 415 So.2d 1359 (1982), in which the court found that denying bail after conviction is a legitimate exercise of the legislature’s authority to punish criminal offenders.

In 1982, the legislature again expanded the class of persons not entitled to bail after conviction by amending section 903.133 to include those convicted of first degree felonies involving murder, kidnapping, sexual battery and arson. It is reasonable to assume that the legitimate government goal which prompted enactment of the 1980 version of the statute also prompted this amendment, the constitutionality of which is now under review.

Barts argues that the means chosen by the legislature to achieve this legitimate goal are not rational because, in her opinion, there are worse crimes that are not included in the statute. It has always been a legislative prerogative to act piecemeal. The court will not disturb the legislative discretion in classifying subjects of police regulation unless it is wholly without a reasonable basis; such a classification will not be declared unreasonable solely because opinions differ as to what should have been included or omitted in the legislation. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

Barts’ argument that the statute amends the law by reference to title only when it refers to repeal of specified rules of criminal procedure is without merit. Chapter 82-392, Laws of Florida, sets out in full the statute which it seeks to amend, and is not required by the Florida Constitution to set out in full the rules which the amended statute repeals. Jackson v. Consolidated Government of the City of Jacksonville, 225 So.2d 497 (Fla.1969).

AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


author: SHARP, Judge. COWART, Judge,

text:
    Phillip James SAVINO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1049.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty, Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Savino appeals his convictions and that portion of his sentence placing him on probation for an aggregate time of two years and sixty days under the supervision of the Department of Corrections. We affirm his convictions but correct the sentence so that Savino will be placed in a community control program at the end of his incarceration in conformity with the Youthful Offender Act, section 958.05, Florida Statutes (1981).

Savino was charged and convicted of two counts of battery, and one count of burglary and criminal mischief. He was sentenced by the trial court under the Youthful Offender Act to four years of incarceration and two years on probation. However, the Youthful Offender Act provides exclusive sanctions for sentencing a juvenile pursuant to its provisions. Maham v. State, 438 So.2d 164 (Fla. 5th DCA 1983). It directs that after serving a period of time in incarceration, a juvenile will be released into a community control program. Davis v. State, 411 So.2d 312 (Fla. 3d DCA 1982); § 958.05, Fla.Stat. (1981). There is no provision for placing a juvenile on probation under the supervision of the Department.

We amend Savino’s sentence to placement in a community control program following his incarceration, in accordance with the Youthful Offender Act. Riley v. State, 407 So.2d 967 (Fla. 2d DCA 1981). Otherwise, the judgment is

AFFIRMED AS MODIFIED.

COBB, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially.

Appellant Savino, a youthful offender, should be placed in a community control program rather than adult probation; however, another issue in this case should be addressed.

Savino forced open the locked door of Derickson’s apartment, entered it and committed an assault and a battery on Derick-son therein. On these facts Savino claims double jeopardy prohibits his conviction and separate sentence as to the two offenses of burglary with an assault (§ 810.-02(2)(a), Fla.Stat. (1981)) and battery (§ 784.03, Fla.Stat. (1981)). Savino’s argument is that the facts which served as the allegation and proof of the assault, which was an essential of the enhanced burglary charge, were the same facts which served as the allegation and proof of the offense of battery and that, for that reason, while he can be convicted for both offenses, he cannot constitutionally be sentenced for both offenses, citing State v. Hegstrom, 401 So.2d 1343 (Fla.1981). This is exactly the same argument that was accepted and applied by this court in Jackson v. State, 404 So.2d 369 (Fla. 5th DCA 1981), and in many other cases. However, essentially it is an erroneous double jeopardy analysis based on concepts underlying the single transaction rule. The “single factual transaction” aspect of that rule never provided a correct analytical basis for constitutional double jeopardy decisions; in addition, the single transaction rule was abolished by section 775.021(4), Florida Statutes. Utilization of the correct theory, a substantive analysis of the statutes and charges involved, reveals that these two offenses are as substantively different as are the offense of simple assault (§ 784.-011, Fla.Stat. (1981)) and the offense of battery (§ 784.03, Fla.Stat. (1981)). This is because the enhanced burglary offense is committed when, in the course of committing a burglary, the burglar “makes an assault upon any person” (§ 810.02(2)(a), Fla.Stat. (1981)). An assault as defined in section 784.011(1), Florida Statutes (1981), and a battery as defined in section 784.-03(1), Florida Statutes (1981), are substantively different offenses because each offense has essential constituent elements that the other does not have; that is, each offense can be committed without necessarily commiting the other offense. This is so because one can make “an intentional, unlawful threat by word or act to do violence to the person of another and do some act which creates a well-founded fear in such other person that such violence is imminent” (§ 784.011(1), Fla.Stat.) without actually touching or striking such other person (§ 784.03(l)(a)) or causing bodily harm (§ 784.03(l)(b)) and also one may actually touch or strike another person (§ 784.-03(l)(a)) or cause bodily harm (§ 784.-03(l)(b)) without threatening or creating fear in such person. If one makes a threat to do violence to another and does some act (such as obtaining or displaying some weapon appropriate to carry out the threat) which creates the necessary fear of imminent violence the offense of assault is complete and is not undone merely because the threatener also goes further forward with his unlawful activity or transaction and carries out the threat by committing a battery offense by touching, striking or causing bodily harm. At common law a criminal assault was an unlawful attempt to do bodily harm to another. Therefore, at common law an assault was an attempted battery and, consequently, every battery included an assault. However, in Florida today this is not true under the statutory definition of assault in section 784.011, Florida Statutes (1981). The completed statutory assault offense does not “merge” in a related battery offense merely because factually the events are interrelated. There is no merger because statutory criminal assault is neither merely an attempted battery nor is it an essential constituent element of a battery offense. Intrinsically the two statutory offenses are substantively different and can never be “the same offense” and prosecutions based on each of these statutory offenses never constitute double jeopardy no matter how closely related or interrelated the factual basis for each criminal charge may be. Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982), is the case from this court most in point.

      . § 784.03, Fla.Stat. (1981).

      . § 810.02(2)(a), Fla.Stat. (1981).

      .§§ 806.13(1), 806.13(2)(a), Fla.Stat. (1981).

      . Jackson was quashed for conflict with Hegstrom. State v. Jackson, 417 So.2d 985 (Fla.1982). However, the rationale and result in Jackson v. State, 404 So.2d 369 (Fla. 5th DCA 1981), are inconsistent with the result that would be reached by a correct double jeopardy substantive analysis rationale. Therefore, Jackson was more in conflict with the rationale later approved in Borges v. State, 415 So.2d 1265 (Fla.1982). See supra, note 4.

      . The difference between a threat and a battery is easy to understand and has long been the subject of comment: Ancient: George Herbert (1593-1632) wrote in Jacula Prudentum (published in 1640), "There are more men threatened than stricken.” Current: "A good fist says more than a thousand words.”

      .There is a well established principle of statutory construction to the effect that words and phrases having well-defined meanings in the common law are interpreted to have the same meanings when used in statutes dealing with the same or similar subject matter. There is another rule of law that a legislative definition prevails over a common-law meaning where it is clear and explicitly applicable. Certainly the statutory definitions contained in section 810.-011, Florida Statutes, control the meaning of these words when they are used in chapter 810, which relates to burglary and trespass, but it is quite another question as to whether the word "assault" as used in section 810.02(2)(a), Florida Statutes, means the common law crime of an attempted battery or the statutory offense defined in section 784.011(1), Florida Statutes. If the reference to "assault" in section 810.-02(2)(a), Florida Statutes, means the common law definition then this case should be reversed unless the two charges relate to two distinctly separate factual events, which does not appear to be the case. The same point is involved in the reference in the current robbery statute (§ 812.13(1), Fla.Stat.) to "larceny.”

      . Because the proper rationale (an analysis of statutory elements and of factual events for substantive difference) for the disposition of this case is in accord with the rationale and result in Borges v. State, 415 So.2d 1265 (Fla.1982), Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982), Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), and Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981), it is necessarily in direct conflict with that in O’Hara v. State, 448 So.2d 524 (Fla. 5th DCA 1984); Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983); Garcia v. State, 444 So.2d 969 (Fla. 5th DCA 1983); Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983), rev. granted, No. 63,807 (State v. Baker); Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), rev. granted, Nos. 63, 135 (Baker v. State) and 63,269 (State v. Baker); Stone v. State, 402 So.2d 1222 (Fla. 5th DCA 1981); James v. State, 399 So.2d 424 (Fla. 5th DCA 1981). All related and relevant cases are cited in O’Hara. See also Madry and Banks v. State, 448 So.2d 8 (Fla. 5th DCA 1984), and Hedges v. State, 448 So.2d 5 (Fla. 5th DCA 1984).


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

text:
    HILLDRUP TRANSFER & STORAGE OF NEW SMYRNA BEACH, INC., Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT, Appellee.
    No. 82-1592.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.

      Charles M. Rand and Thomas C. Gar-wood, Jr., of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Geri M. Atkinson-Hazelton, Tallahassee, for amicus curiae Associated Industries of Florida, Inc.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Hilldrup Transfer & Storage of New Smyrna Beach, Inc., appeals from a determination by the State of Florida’s Division of Employment Security that two kinds of truck drivers performing work in Hilldr-up’s interstate moving business aré.In its employment within the meaning of section 443.036(17), Florida Statutes (1981), and therefore, Hilldrup is subject to the state unemployment tax. If the truck drivers are independent contractors, Hilldrup would not be subject to the tax.

The facts involved here are essentially undisputed. The decision therefore depends upon the legal relationship that the undisputed facts engender. Cantor v. Cochran, 184 So.2d 173 (Fla.1966), citing Toney Builders, Inc. v. Huddleston, 149 So.2d 38 (Fla.1963). The question presented on appeal is whether the Division correctly concluded that a master-servant, as opposed to an independent contractor, relationship existed here. We reverse.

Hilldrup is in the moving and storage business. It owns and uses van type trailers to move principally household furnishings. It utilizes its own tractors and drivers (their status is not in question) to move some loads. Other loads, however, are moved via company vans by operators who either own their own tractors or lease them from Hilldrup. Under a written agreement, these contract operators are paid a percentage (fifty-three percent) of the established rate for the particular haul. The operators are not contractually obligated to pack, load, or unload, but are compensated should they elect to do so. The agreement specifically provides that the operators are to be independent contractors and that the company cannot control or endeavor to control the manner, or prescribe the method of doing that portion of the business of the company which has been contracted for, and that the contractor is responsible for results only. The contract can be terminated by either party upon written notice, provided that the operator completes any delivery which had been commenced prior to termination.

The operators are responsible for payment of all expenses connected with the operation and ownership of their tractors, including fuel, insurance, repairs, maintenance, parking, licenses, applicable taxes, and road and bridge tolls. The operators can hire any help they require and are responsible for all wages, employment taxes, arid worker’s compensation for these helpers. The operators have complete control over the selection, supervision and discharge of these helpers.

Under this arrangement, Hilldrup is able to simplify its operation. Its capital requirement is substantially reduced since acquisition costs of tractors and expenses attendant to their operation are reduced. Control over operation and care of the tractors is transferred to the operators, who have the most to gain by prudent and careful operation. The cost of movement of a load becomes accurately predictable.

On the other hand, the operators receive economic benefits from the arrangement, which is illustrated by the fact that they work an average of four years for Hilldr-up. They can increase their profits by prudent operation and maintenance of their tractors. They can work their own hours, select the routes they wish to travel and choose what assignments to accept. They are able to acquire and utilize profitably through care, judgment and their own industry an expensive piece of equipment which may substantially increase their income-producing potential.

The special deputy, citing Cantor, relied upon the factors enunciated in the Restatement (Second) of Agency, § 220 (1958) in finding that these contract-operators are employees. That section of the Restatement provides:

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
;u) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relationship of master and servant; and
(j) whether the principal is or is not in business.

The deputy appears to have placed the greatest emphasis on control. He found control on the part of Hilldrup because the operators are obligated to keep the dispatcher informed of their progress and contents of their vehicles, file reports with Hilldrup as requested, wear company uniforms and paint their tractors with Hilldr-up’s colors and name.

The Division and the deputy have misconstrued the type of control which is specified in the Restatement which states:

(a) The extent of control which, by the agreement, the master may exercise over the details of the work, (emphasis added)

By the agreement here, Hilldrup has no right of control. The contract specifies that:

[I]t is understood and agreed that Company has not the right to, and will not control or endeavor to control the manner, or prescribe the method of doing that portion of the business of the Company which is contracted for herein by Contractor. Contractor will be held responsible for results only... .

Of even more importance, however, is Hilldrup’s interest in the end result as opposed to the details of the operator’s work. See Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State, 407 So.2d 249 (Fla. 4th DCA 1981); Herbert Hayes Yacht and Ship Sales, Inc. v. Lovell, 406 So.2d 1259 (Fla. 4th DCA 1981). By permitting the operators to set their own work hours and routes, hire and supervise their own helpers and accept or reject work assignments, Hilldrup has indicated a lack of interest in the details of their work.

The facts relied upon by the deputy in finding control are actually of little relevance when compared to the above factors. For instance, the requirement that the operators wear uniforms and paint their tractors with Hilldrup’s colors and name is merely designed to assure the carrier’s customers that the operators are representatives of Hilldrup. Also, while the operators are requested to notify Hilldrup daily of their whereabouts and contents of their vehicles, this is intended not so much as a control over the operators, but as an aid in utilizing the trucks and trailers efficiently. Finally, the operators are required to submit reports to Hilldrup “as requested.” The nature of these reports is not clear but, in any event, such requirement does not constitute control over the means and methods of accomplishing the results sought. See Florida Industrial Comm. v. State, 155 Fla. 772, 21 So.2d 599 (1945).

The special deputy also erroneously concluded that the operators are not in a separate business. It is clear that they are. Each operates an independent business of his own. Each must invest substantial sums in equipment and bear any risk of loss attributable to his operation. The success of an operator depends upon his own skill and business acumen, and not on that of Hilldrup. An operator does have an on-going relationship with Hilldrup but only in the sense that he may do more work for Hilldrup some time in the future. Hilldrup and the operators are separate business entities and each may make a profit or loss irrespective of the others profits or losses. See generally Merchants Home Delivery Service, Inc. v. N.L.R.B., 580 F.2d 966 (9th Cir.1978); SIDA of Hawaii Inc. v. N.L.R.B., 512 F.2d 354 (9th Cir.1975). As stated in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 1471, 91 L.Ed. 1757 (1947) which is another case involving owner-operator truck drivers:

It is the total situation, including the risk undertaken, the control exercised, the opportunity for profit from sound management, that marks these driver-owners as independent contractors.

Finally, we find another factor significant which neither the special deputy nor the Division considered. Section 443.131, Florida Statutes (1981), provides that an employer shall pay 2.7% of an employee’s wages as contribution for unemployment compensation. The operators punch no time cards and work the times and hours they elect. What would their wage be? Would Hilldrup pay 2.7% of the “employee’s” total compensation which includes payment for the use of the truck? Would the amount be figured after deducting fuel, garaging, insurance, maintenance, tolls and other expenses paid by the operator? A large truck represents a substantial investment. Could Hilldrup consider depreciation and interest on any purchase loans in determining wages? Could the Division require Hilldrup to calculate an estimated wage on the same basis as their non-contract drivers? If so, how could it determine hours when the operators are free to work their own hours and choose their travel routes?

The relationship between Hilldrup and its operators has a legitimate business purpose. Compare A Nu Transfer, Inc. v. Dept. of Labor & Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983) with Justice v. Belford Trucking Company, Inc., 272 So.2d 131 (Fla.1972). It is not simply a subterfuge to avoid the payment of unemployment or other taxes. The Division ignored the intent and relationship established by the agreement. It should have found that the contract operators are independent contractors.

REVERSED.

DAUKSCH, J„ concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The issue in this case is whether or not the agency’s determination that the truck drivers are employees is supported by substantial evidence. A substantial number of significant factors in this case, which are supported by the evidence in this record, point towards the agency’s conclusion that both kinds of truck drivers are employees rather than independent contractors. Others, it is true, point the other way. But we should give credence to the agency’s findings of fact and accept its weighing of the factors in arriving at its conclusions in this case as presumptively correct. We should not, as I think the majority opinion does in this case, reweigh the evidence in support of a contrary finding.

This case involves the status of two kinds of truck drivers who transport household goods for Hilldrup in interstate moves: those who own their own power units or tractors, and in some cases, lease trailers from Hilldrup (owner-drivers); and those who lease tractors as well as trailers from Hilldrup (lease-drivers). The Division of Employment Security adopted the special deputy’s findings of fact:

The Petitioner is a Florida corporation whose primary business activity is the movement and storage of household goods in both intrastate and interstate traffic. The Petitioner hires three types of drivers to transport the household goods in the course of its regular business. The first type drivers are those paid by the hour and are considered employees by the Petitioner. In addition to the drivers the Petitioner considers employees, the Petitioner also contracts with drivers who own their own tractors and drivers who rent or lease tractors from the Petitioner. The contract between the Petitioner and these drivers is written and entitled “Contractor’s Agreement.” The contractual relationship and [sic] the Petitioner and the owner/operators provide for the following conditions. The owner/operator is required to devote his tractor exclusively to the service of the Petitioner. The tractor is painted with the Petitioner’s colors, insignia, and permit and certificate numbers, at the expense of the Petitioner. If the tractor is removed from service within the first six months of the contract, the owner/operators are required to pay for the painting. The Petitioner supplies to the owner/operator a trailer to be used exclusively in the service of Petitioner. The Petitioner also furnishes moving pads, piano carrier and boards, dollies, and ramps. The owner/operator is required to furnish any additional equipment needed. The owner/operator is also required to furnish his own hand tools. The owner/operator’s job responsibilities include the hauling, loading and unloading of household goods. The owner/operator may earn additional compensation by packing and unpacking the household goods. This latter function is performed at the discretion of the owner/operator. The owner/operators have the right to reject offered job assignments without adverse consequences to their continuing relationship with the Petitioner. The owner/operator is required to maintain a valid chauffeur driver’s license, which is paid for by the owner/operator. All of the permits, licenses, and certificates for operation of the tractor and trailer in the Petitioner’s business, is furnished by the Petitioner. The owner/operators are compensated by the Petitioner on a commission basis. The commission is a fixed percentage of the services performed, as set forth in the “Contractor’s Rate Income Schedule.” The job cost in most cases is determined by the rates set by the Federal government with whom the Petitioner must file rate tariffs. The Petitioner does not guarantee to meet a minimum amount of compensation. The owner/operators are not required a minimum quota. The owner/operators are required to wear a specified uniform as designated by the Petitioner. The owner/operators are required to furnish, at their own expense, public liability and property damage insurance upon his vehicle. The owner/operators are also required to furnish all maintenance and upkeep of their vehicles including the cost of fuel, oil, tires, lubricants, garaging, and repairs. The Petitioner is responsible for liability insur-anee that covers damages to the household goods being transported. The owner/operators are responsible for the first $75 in damages to the household goods caused by their negligence. The owner/operators have the right to hire helpers or assistants to aide them in carrying out their job functions. They have the right to hire, fire, and control these helpers and assistants. The owner/operators can also hire other drivers to operate the trucks. However, any co-drivers hired by the owner/operators must be approved by the Petitioner and meet all regulations imposed by the Federal government. The owner/operators are responsible for the compensation of the workers they use. The owner/operators are required to furnish worker’s compensation insurance for the individuals which they hire. The owner/operators are also responsible for providing uniforms for these individuals. The owner/operators cannot work for other companies similarly situated as the Petitioner. The owner/operators are required to submit reports to the Petitioner as requested and notify the Petitioner daily of their whereabouts and contents of their vehicles. The owner/operators set their own hours of work within the pick-up and delivery times set forth in the bills of lading. The Petitioner does not deduct social security, withholding, or other taxes from the owner/operator’s remuneration.' The Petitioner does not provide any hospitalization or medical insurance for the contractors and the owner/operators are not eligible for bonuses, pensions, sick pay, vacation, or other fringe benefits provided by the Petitioner. The contractual relationship between the Petitioner and the owner/operators contemplates a continuing on-going relationship. The owner/operators usually work an average of four years with the Petitioner. The owner/operator may terminate the contract by supplying the Petitioner with 30 days advance written notice. The Petitioner may terminate the contract by written notice to the owner/operator. The Petitioner and owner/operator believe they are creating a principal/independent contractor relationship. The skills required in the occupation are to be a good truck driver, be able to handle the goods being transported, and be able to verbally communicate with customers. The contractual relationship between the Petitioner and the lease/operators are substantially the same as that between the Petitioner and the owner/operators, except for the following differences. Approximately 12 percent of the lease/operators commissions are retained by the Petitioner for rental of the vehicle. The Petitioner is responsible for repairs, servicing, garaging, etc. of the vehicle rented or leased by the lease/operators.

The determination of whether a certain kind of work relationship is that of employer or independent contractor, particularly in the context of current ways of doing business, is extremely difficult. There are no bright lines to distinguish the two. Each case turns on the weighing of numerous, and always diverse, factors, no one of which is determinative. As a result, other reported cases are of little precedential value. Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941).

Many courts, including our Florida state courts, frame their decisions around the considerations set forth in the Restatement (Second) of Agency § 220 (1958). That section of the Restatement provides:

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relationship of master and servant; and
(j) whether the principal is or is not in business.

In this case, using the Restatement analysis, the agency’s determination can be sustained.

(a) Control

The extent to which the employer exercises control over the details of the employee’s performance of the work done has often been stressed as the telling distinction between a servant and an independent contractor. If the person performing the work is responsible and held accountable for the end product only, he is most likely an independent contractor. Florida Industrial Commission v. State ex rel. Orange State Oil Company, 155 Fla. 772, 21 So.2d 599 (1945); Cosmo Personnel Agency of Ft. Lauderdale, Inc. v. State, 407 So.2d 249 (Fla. 4th DCA 1981); Jean M. Light Interviewing Services, Inc. v. State, 254 So.2d 411 (Fla. 3d DCA 1971); Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). Although control and right of control over the work done is highly relevant in determining vicarious liability in tort suits, it is less relevant and therefore less determinative in this context, where the statute involved seeks to impose on business or industry some of the costs of unemployment formerly borne by labor alone.

In this case, some factors point in both directions on the issue of control. Tending towards an independent contractor relationship are the special deputy’s findings that the drivers may refuse work assignments (although neither witness at the hearing had ever done so); that they could set their own work hours and routes, so long as the load was delivered within the time on the bill of lading; that they could choose to pack and unpack or not; and that they could hire and supervise their own helpers, although any relief driver had to be approved by Hilldrup. However, the Restatement (Second) of Agency recognizes that the expectation or discretion to hire sub-servants is not necessarily determinative. It is possible to have superior servants, such as ship captains, managers of large businesses, or mine operators, who hire and direct their own assistants, but all are ultimately subject to the employer’s (or master’s) control.

Other findings relating to control over the work performed support the special deputy’s conclusion that the drivers are employees. The drivers make lengthy reports required by law or regulations for Hilldrup and reports to Hilldrup as requested. Drivers must notify Hilldrup daily of their whereabouts and the contents of their vehicles while fulfilling a moving assignment. The drivers are required to wear specified uniforms with Hilldrup’s name and colors. Similarly, their tractors and trailers must be painted with Hilldrup’s colors and name. The contracts are terminable at any time by Hilldrup, a factor indicating control over the drivers. Justice v. Belford Trucking Company, Inc., 272 So.2d 131 (Fla.1972). The contracts also provide that the drivers must report an accident to the company within two hours of its occurrence; that they must comply at all times with company policy and rules; and that Hilldrup at all times has “sole direction of the company’s services to the public.”

(b)Whether the Drivers are Working in a Distinct Occupation or Business.

If the drivers were in a separate, distinct business apart from Hilldrup, this factor would strongly suggest they were independent contractors. But if they are not economically viable work units apart from Hilldrup, this factor would weigh towards an employment relationship. See City Cab of Orlando, Inc. v. NLRB, 628 F.2d 261 (D.C.Cir.1980).

The special deputy concluded that the drivers exclusively perform services for Hilldrup, and that they are not in a business distinct from it. They must wear Hilldrup uniforms and advertise its name on their trucks. Hilldrup alone makes all customer contacts. There is no way for the drivers to build up any individual customer goodwill for themselves. The record sustains the special deputy’s conclusion that the drivers perform services essentially for Hilldrup solely. The drivers would have no business, customers, or goodwill apart from Hilldrup.

Further, the contracts provide that the drivers cannot work for any carrier other than Hilldrup while under contract with Hilldrup, and that doing so constitutes a breach of the contract. The witnesses testified that this contract provision was orally modified very recently to allow drivers to bring back loads for other carriers once they empty out a load in a distant city. However, they first must check with Hilldr-up to see whether it has a carry-back load for them before looking for another assignment, and they cannot accept outgoing assignments in Florida from other carriers. This factor of not being permitted to work for other carriers on the same basis as Hilldrup distinguishes this case from the taxi drivers in SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354 (9th Cir.1975); the truck drivers in A Nu Transfer, Inc. v. Department of Labor & Employment Security Division of Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983); the orchestra musicians in Florida Gulf Coast Symphony, Inc. v. Department of Labor & Employment Security, 386 So.2d 259 (Fla. 2d DCA 1980); the interviewers in Jean M. Light Interviewing Services, Inc.; and the janitor in Farmers & Merchants Bank.

(c)Concept of the Job Held in the Community

The special deputy made no particular finding on this point. Reported decisions indicate that truck drivers may be employees or they may be independent contractors.

(d)Level of Skill Required

The greater the skill or special knowledge required to perform the work, the more likely the relationship will be found to be one of an independent contractor, although low-skilled jobs may be performed by independent contractors, and highly-skilled jobs may be performed by employees. In this case, the special deputy found that no special skills beyond that of an ordinary truck driver were required to do Hilldrup’s work. Hilldrup usually trains the drivers in its packing and local moving operations before entering into contracts with them. Hilldrup also instructs them about the paper work and reports required by its company policy and by the ICC. However, the evidence tends to support the special deputy’s conclusion that no special skills are required. Justice.

(e)Who Supplies the Instrumentalities, Equipment, Supplies, for the Person doing the Work

If the place of work, the supplies, the equipment, and other necessaries are supplied by the entity for whom the work is being done, this factor indicates an employment rather than an independent contractor relationship. Florida Industrial Commission; Florida Gulf Coast Symphony, Inc. And the greater the investment of the worker in the equipment he uses and owns to do the work, the stronger this factor weighs in the direction of an independent contractor relationship. See NLRB v. Associated Diamond Cabs, 702 F.2d 912 (11th Cir.1983); A. Duie Pyle, Inc.; SIDA of Hawaii, Inc.

In this case, the record shows that the owner-drivers own their own tractors. Both owner-drivers and lease-drivers lease trailers from Hilldrup, although in some cases the owners also own their own trailers. Hilldrup provides basic tools and equipment with its trailers (pads, dollies, ramps, and piano carriers), and usually the drivers supplement these items at their own expense. The owner-drivers have to pay for their own maintenance and fuel for the tractors. Hilldrup pays for the ordinary maintenance and repair and garaging of its leased trailers and tractors, but the lessees have to pay for the fuel. Hilldrup provides the necessary ICC and State of Florida permits, franchise, and certificate of necessity and commission to operate as a carrier for hauling, and it insures the goods moved. The owner-drivers carry their own liability insurance on their tractors, and all drivers procure their own licenses. This mixture of factors does not appear to weigh heavily in either direction.

(f)Continuity of Employment

The longer and more sustained the work relationship, the more this factor points towards an employment relationship. In this case, the special deputy found that the average time a driver works for Hilldrup is four years — a fairly substantial work time average. He further found, based on substantial evidence in the record, that while the drivers are under contract with Hilldr-up, they work exclusively for that company and have a continuing, on-going relationship with it. These findings support the conclusion of the special deputy that the drivers are employees.

(g)Method of Payment

Because an independent contractor is paid on a job-by-job basis, compensation by paying a commission indicates an independent contractor relationship and payment by salary indicates an employment relationship. Florida Industrial Commission; Cosmo Personnel Agency of Ft. Lauderdale, Inc.; Restatement (Second) of Agency § 220 comments (1958). However, this factor, like the others, is not conclusive. Magarian; Justice; City Cab Company of Orlando, Inc.

The special deputy found that the drivers are paid on a commission basis. For each assignment they receive a percentage of the total charge to the customer. The owner-drivers are paid a higher rate than the lease-drivers. From this gross sum, the drivers are expected to pay the fuel costs, insurance, their own social security, withholding, medical insurance, the salary and worker’s compensation for any hired assistants. Hilldrup offers the drivers no fringe benefits or pension rights. Hilldrup does not deduct social security, withholding or other taxes from the driver’s commission payments. The special deputy concluded that this factor weighed in favor of an independent contractor relationship.

(h) Whether the Work is a Part of the Regular Business of the Employer

If the work performed in the relationship under consideration is a part of the principle’s business, this factor indicates an employment status, even if the work requires a high level of skill to perform it. Cantor; Magarian; Restatement (Second) of Agency § 220 comments (1958). The more vital or essential the work is to the principal’s business, the stronger this factor weighs.

The special deputy concluded that the work done by the drivers in this case is an essential part of Hilldrup’s business. These drivers perform most of Hilldrup’s interstate or long distance hauling. Were it not for their services, Hilldrup would not be in the interstate carrier business.

The special deputy properly weighed this factor as pointing towards an employment relationship. This factor is more relevant than some of the others in the context of carrying out the state’s policy of taxing a business to pay (in part) for the risks of unemployment in that business. § 443.031, Fla.Stat. (1981); see Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.Ct.App.1979). Fragmentation of functions or departments could lead to a business operating with few employees in an effort to avoid such taxes. See Florida Industrial Commission v. State ex rel. Gulf Oil Corporation, 159 Fla. 535, 32 So.2d 319 (1947).

(i) Express Belief of the Parties as to the Nature of the Work Relationship

The understanding or expressed intent of the parties to enter into an independent contractor relationship rather than an employment relationship, or vice versa, is another factor the fact-finder should consider; however, it is not determinative. In this case, the special deputy concluded that these parties intended to enter into an independent contractor relationship. The witnesses’ testimony at the hearing and the express language of the contract support this finding. The special deputy weighed this factor as one of the primary factors in this case pointing, towards an independent contractor relationship.

(j) Whether the Principal is or is not in Business

As discussed above, Hilldrup purports to be in the interstate carrier business — the very function being performed for it by the truck drivers involved in this case. It is no more independent of the drivers than they are of it as regards the interstate hauling business. This factor weighs heavily towards the agency’s conclusion that the drivers are employees.

I would affirm.

      . Section 443.036(17), Florida Statutes (1981), defines "employment" as:
      [A]ny service performed by an employee for the person employing him..
      and an "employee” as:
      [A]ny individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. ,
      None of the special inclusions or exclusions of the statute appear applicable in this case.

      . While a closer question is presented as to the lease operators, we conclude no distinction is necessary. If the lease were with a third party instead of Hilldrup it would unquestionably be a legitimate arrangement. There was no showing that the arrangement was a subterfuge so we treat the lease-operators and owner-operators as the same.

      . The company furnishes insurance on its vans and their contents.

      . In light of this language, it is curious to note the following findings which the special deputy made. First he stated: "Thus, the record clearly reflects that the Petitioner did have sufficient right of control over the drivers to constitute an employer-employee relationship, ...” He later stated: "In resolving such conflicts, the Special Deputy has accepted the written contracts ... as the best evidence of the relationship of the parties.”

      . See also Merchant's Home Delivery Service, Inc. v. N.L.R.B., 580 F.2d 966 (9th Cir.1978) wherein the court found that owner-operator truck drivers were independent contractors and not employees for purposes of the National Labor Relations Act. The court pointed out there is a difference between directing the means and manner of performance of work and exercising an ex post facto right to reprimand when the end result is unsatisfactory.

      . Indeed, A Nu Transfer is similar to this case and there the Third District found that truck owner-operators were not employees of a freight carrier but rather were independent contractors. The only major difference between the two cases is that in A Nu Transfer, the owner-operators could work for any competitor of the carrier while here the agreement provided they could not. However, Hilldrup’s vice-president explained that this restriction existed because of Interstate Commerce Commission rules which required that permit numbers of the carrier appear on its vehicles. If shipments from other carriers were transported, this rule would have been violated. The vice-president testified, without contradiction, that since 1980, this contractual restriction had not been enforced and operators could obtain other loads so long as a ten percent rental charge was paid to Hilldrup for the use of its trailer.

      . See City Cab Co. of Orlando, Inc. v. NLRB, 628 F.2d 261 (D.C.Cir.1980); Justice v. Belford Trucking Co., Inc., 272 So.2d 131 (Fla.1972); Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958).

      . § 120.68(10), Fla.Stat. (1981).

      . See § 120.68(12), Fla.Stat. (1981). Pursuant to section 443.141, Florida Statutes (1981), the Division of Employment Security of the Department of Labor and Employment Security is empowered to decide which persons are employers and therefore liable to pay the tax imposed by Chapter 443.

      . NLRB v. A. Duie Pyle, Inc., 606 F.2d 379 (3d Cir.1979), Higginbotham, J., dissenting.

      . City Cab Co. of Orlando, Inc.

        . See NLRB v. Associated Diamond Cabs, 702 F.2d 912 (11th Cir.1983); Cantor v. Cochran, 184 So.2d 173 (Fla.1966); Magadan v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941).

        .See, e.g., Cantor; Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.Ct.App.1979).

        .United States Tel. Co. v. State Dep't of Labor & Employment Sec., 410 So.2d 1002 (Fla. 3d DCA 1982); Herbert Hayes Yacht & Ship Sales, Inc. v. Lovell, 406 So.2d 1259 (Fla. 4th DCA 1981); Collins v. Federated Mut. Implement & Hardware Ins. Co., 247 So.2d 461 (Fla. 4th DCA 1971).

      . See Ceradsky.

      . Restatement (Second) of Agency, §§ 220, 512 comments (1958).

      . These factors distinguish this case from A. Duie Pyle, Inc., which otherwise reaches an opposite conclusion on similar facts.

      . Cf. United States Tel. Co. and Cosmo Personnel Agency of Ft. Lauderdale, Inc. v. State, 407 So.2d 249 (Fla. 4th DCA 1981).

      . lustice; Collins.

      . See A. Duie Pyle, Inc.; A Nu Transfer, Inc. v. Department of Labor & Employment Sec. Div. of Employment Sec., 427 So.2d 305 (Fla. 3d DCA 1983).

      . Florida Gulf Coast Symphony v. Department of Labor & Employment Sec., 386 So.2d 259 (Fla. 2d DCA 1980); Restatement (Second) of Agency § 220 comments (1958).

      . Farmers & Merchants Bank.

      . Ft. Lauderdale Symphony Orchestra Ass’n, Inc. v. State of Florida, Dep't of Labor & Employment Sec. Div. of Sec., 405 So.2d 1365 (Fla. 4th DCA 1981).

      . Cf. Jean M. Light Interviewing Services, Inc. v. State, 254 So.2d 411 (Fla. 3d DCA 1971).

      . See A. Duie Pyle, Inc.

      . City Cab Co. of Orlando, Inc.; Justice; Cantor.


author: SHARP, Judge.

text:
    Donald BLACKBURN, Appellant, v. STATE of Florida, Appellee.
    No. 83-98.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.

      Russell E. Crawford, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Donald Blackburn appeals his convictions for burglary and fleeing or attempting to elude a police officer. His points on appeal are that the court erred in instructing the jury on the inference which may be drawn from the fact the defendant fled from the police, and improper prosecu-torial argument on closing. We affirm because defense counsel failed to make timely or specific objections to the instruction or the improper comments. Therefore, neither ground is preserved for appeal. See Castor v. State, 365 So.2d 701 (Fla.1978); Hubbard v. State, 411 So.2d 1312 (Fla. 1st DCA 1982); see also Fla.R.Crim.P. 3.390(d).

The charges arose out of an incident that took place in New Smyrna Beach, Florida, at Scotty’s Building and Supply Store, early in the morning on March 27, 1982. A police officer responded to a call at Scotty’s and found the back gate knocked down and a car parked at the rear of the building. A person ran from the pallets of building materials which were stored inside the fence, jumped into the car and drove off at a high speed. The officer gave chase. The car reached 60 miles per hour, side swiped a parked car, and finally ran into a wrecker which was parked across the road, with its lights on, in the process of extracting a car from a canal.

Blackburn was found slumped behind the wheel, the sole occupant of the car. In the car were bags of pine bark, mulch and potting soil from Scotty’s. Blackburn did not dispute any of this evidence. His sole defense was that he lacked the necessary criminal intent to commit the crime as he was so intoxicated that he blacked out, and had no memory of the burglary and flight.

Because no specific objection was made to any of the prosecutor’s argument on closing, Blackburn argues that the composite effect of seventeen remarks constitutes fundamental error. Wilson v. State, 294 So.2d 327 (Fla.1974). Some of the prosecutor’s remarks were indeed improper and inappropriate. He stated he thought Blackburn was sufficiently sober to have intended his action, at least three times; and that he believed the state had sustained its burden of proof in this case. Clearly the prosecutor should refrain from stating his own personal beliefs, particularly on key issues in dispute. Further, the prosecutor also personally vouched for the veracity of the police officer, the primary state witness. This also is improper. Fla.Bar Code Prof.Resp. D.R. 7-106(C)(4). However, we note that defense counsel also made a few similar remarks about his client.

In another set of comments, the prosecutor appealed to jury sympathy for the owner of the lost wrecker, and for potential victims who might have been hurt in the high speed chase. Such appeals have been held to be improper and prejudicial. Other improper comments by the prosecutor related to other charges against Blackburn arising out of the incident which were not pursued by the state. Although these remarks should not have been made, as the state concedes, they were in part invited by defense counsel’s questions of the state’s witness and his own closing argument. See Ferguson v. State, 417 So.2d 639 (Fla.1982); Lynn v. State, 395 So.2d 621 (Fla. 1st DCA), pet. for rev. denied, 402 So.2d 611 (Fla.1981).

Improper remarks by the prosecutor during closing argument that are not objected to are only grounds for reversal if fundamental error has occurred. They must be so overwhelmingly prejudicial that neither rebuke nor retraction would cure the error. See Wilson; Jordan v. State, 419 So.2d 363 (Fla. 1st DCA 1982); Lynn; Petersen v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). We do not find that the comments in this case rise to that level, Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), although we do not condone the improprieties.

AFFIRMED.

DAUKSCH, J„ concurs.

SCOTT, R.C., Associate Judge, dissents without opinion.

      . § 810.02, Fla.Stat. (1981).

      . § 316.1935 Fla.Stat. (1981).

      . Wilson v. State, 294 So.2d 327 (Fla.1974); Buckhann v. State, 356 So.2d 1327 (Fla. 4th DCA 1978); Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

      . Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980); Breniser v. State, 267 So.2d 23 (Fla. 4th DCA 1972). The state concedes that these comments as well as those of the prosecutor belittling Blackburn’s defense as an attempt to hide behind alcohol should not have been made.

        .Wilson; Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973); Ailer v. State, 114 So.2d 348 (Fla. 2d DCA 1959).


author: COWART, Judge.

text:
    CMEI, INC., Appellant, v. AMERICAN TITLE INSURANCE COMPANY, Appellee.
    No. 83-117.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    J. Lester Kaney of Cobb & Cole, P.A., Daytona Beach, for appellant.
    John L. O’Donnell, Jr., of DeWolf, Ward & Morris, P.A., Orlando, for appellee.
   COWART, Judge.

This case involves the right of an insured mortgagee, who has acquired title to the security property by foreclosure, to recover from a mortgagee title insurer for title defects when the value of the security property with the title defects still exceeds the balance due the mortgagee when it acquired title.

In 1972 appellee title insurance company issued a policy insuring appellant, as mortgagee, against loss or damage not exceeding $1,475,000, the amount of the secured indebtedness resulting from title defects in the security property. The mortgagor defaulted and in 1978 the insured mortgagee purchased the security property at foreclosure sale and remains the owner of the property. After acquiring the title the insured discovered that the property was subject to two recorded easements not excluded from the mortgagee policy coverage and brought this action on the policy for the amount the insured claims the property is diminished in value by the two easements. The insured admits that the value of the property was more than $1,475,000 in 1978 and has continued to appreciate in value. The trial court entered summary judgment in favor of the insurer and the insured appeals.

This mortgagee policy insures only against loss or damage sustained by reason of an unknown effect in, or lien or encumbrance on, the title and explicitly excludes defects and claims resulting in no loss to the insured. This means the policy insured only against loss of the sum owed, being $1,475,000, resulting from impairment of the title to the security property due to title defects covered by the mortgagee policy. The insured has suffered no such loss.

In Florida, while a title insurance policy insuring the interest of a real estate owner and a title insurance policy insuring the interest of a mortgagee are both contracts of indemnity, under which the insurer agrees to indemnify the insured up to a specific amount against loss or damage resulting from liens, encumbrances or title defects and claims within its coverage, nevertheless, substantive differences between the insured interest of an owner and that of a mortgagee results in a significant difference in what constitutes “loss or damage” under each type of title policy. Title defects and liens directly and adversely affect the property owner because the owner is entitled to the full market value of the property and that value is immediately reduced by outstanding title defects and liens. A mortgagee’s loss is measured by the extent to which the insured debt is not repaid because the value of security property is diminished or impaired by outstanding lien encumbrances or title defects covered by the title insurance. Therefore, superior liens or title defects in claims may exist which reduce the market value of the security property (the value to the owner) yet result in no loss or damage to the insured mortgagee because the effect of the title problems does not reduce the value of security property below the amount of an indebtedness secured or because the indebtedness is otherwise secured or paid.

This mortgagee policy provides that if the mortgagee acquires the security property by foreclosure, or in satisfaction of the indebtedness, the policy will continue in force subject to all of its conditions and stipulations. However, contrary to appellant’s contentions, this language is inadequate to convert this mortgagee title policy into a standard owner’s title policy when the insured mortgagee becomes the owner of the land by foreclosure. In substance the policy continues to provide the same coverage as before subject to all policy conditions and stipulations. Accordingly, we affirm the summary judgment for the insurer because there is no genuine issue as to the fact that the value of the property, the title to which was insured, is above the amount of the indebtedness secured by the insured mortgage interest and is above the maximum insured interest, notwithstanding the two easements and, therefore, the insured has suffered no loss or damage within the meaning of the policy.

ORFINGER, C.J., and DAVIS, S.J., Jr., Associate Judge, concur.

      . See Ring v. Home Title Guaranty Company, 168 So.2d 580 (Fla. 3d DCA 1964); Florida Home Insurance Company v. Braverman, 163 So.2d 512 (Fla. 3d DCA 1964); Goode v. Federal Title and Insurance Corp., 162 So.2d 269 (Fla. 2d DCA 1964).

      . Our conclusion is consistent with First Commerce Realty Investors v. Penisular Title Insurance Company, 355 So.2d 510 (Fla. 1st DCA 1978), but is contrary to Title Insurance Company of Richmond v. Industrial Bank, 156 Va. 322, 157 S.E. 710 (1931).