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

text:
    Mark A. DAVIS, Appellant, v. NATIONWIDE LIFE INSURANCE COMPANY, a foreign Corporation, Appellee.
    No. 82-1358.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Rehearing Denied May 25, 1984.
    Wooten, Honeywell, Kest & Martinez, P.A., Orlando, and McClellan, Raster & Vostrejs, P.A., Ocala, for appellant.
    W. David Rogers, Jr. of Rogers & Dowl-ing, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Mark Davis appeals from a final summary judgment in favor of Nationwide Life Insurance Company denying him benefits under a hospitalization policy carried by his employer, Showalter Flying Service.

Nationwide denied coverage on the basis that the policy was not effective until November 1, 1981, and Davis’ accident, which resulted in the amputation of his left leg below the knee, occurred on October 12, 1981.

The crucial question in this case is when Davis became employed by Showalter since under the terms of the policy, an “eligible person” is defined as:

Any person who
(2) subsequent to the effective date of this Policy, has been regularly employed by the Policyholder not less than three months, (emphasis added)

The effective date of insurance was stated to be:

The effective date of insurance for an eligible person will be the first of the policy month coinciding with or next following the date he becomes an eligible person.

The insurance policy defines “policy month” as “a period of successive days commencing on the first day of each calendar month and ending on the day immediately preceding the corresponding day of the next following calendar month.” The policy does not define the word “employed.”

The factual circumstances of Davis’ employment are as follows. On June 16,1981, Davis filled out an application for employment. On the following day, he was interviewed by John Stafford, vice president of line operations for Showalter. While no vacancy existed at this time, a position became available shortly thereafter. On July 1, Stafford had Davis come in and sign various paperwork, e.g., an acknowledgement that he had read the company rules and regulations and that he was on a ninety-day probationary period. Stafford testified in his deposition that he hired Davis on July 1 and that Davis was to report for work on July 2. Stafford further said that as far as Showalter was concerned, Davis’ ninety-day probationary period commenced on July 1, 1981, and he was an employee as of that date.

This testimony is significant because Davis argues that he was employed as of July 1, 1981, and therefore under the terms of the hospitalization policy set out above, he was covered by the policy three months later, on October 1, 1981, some eleven days before his accident. Nationwide argues that Davis was an employee as of July 2, 1981, and therefore under the terms of the policy, coverage would not become effective until November 1, 1981. In this regard, Nationwide relies on the deposition testimony of Showalter’s general manager, Ralph Loos, Jr. He testified that while there was no written policy, it was his impression “that you don’t have an employee until he’s on the payroll being paid.” He thought the probationary period begins when a person reports to work.

Various documents were introduced and bore the date July 2nd, such as Davis’ time card and employee history form. However, at the bottom of the Employment Application Form, it is noted that Davis was “hired 7/1/81,” and “will report 7/2/81.”

We believe that no disputed issues of material fact exist in this case and rather the case turns on the construction to be placed on the policy language, particularly the word “employed.” This issue was one of law for the trial court and hence resolution by summary judgment was proper. See Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979); Sandron Corp. v. Utica Mutual Ins. Co., 360 So.2d 477 (Fla. 3d DCA 1978). However, we hold that the court erred in resolving this matter adversely to Davis.

When a term in an insurance policy is ambiguous, as the term “employed” is in this case, the court is required to construe it in favor of the insured and against the insurer. Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla.1965); National Merchandise v. United Service Automobile Ass’n., 400 So.2d 526 (Fla. 1st DCA 1981). If an insurer intends to restrict coverage, it should use language clearly stating its purpose. Ward v. Nationwide Mutual Fire Ins. Co., 364 So.2d 73 (Fla. 2d DCA 1978).

According to Black’s Law Dictionary, “to employ” means “to engage in one’s service; to hire ... and, when used in respect to a servant or hired laborer, the term is equivalent to hiring, which implies a request and a contract for a compensation.” Black’s Law Dictionary (5th ed. 1979). See Tennessee Coal Iron & R. Co. v. Muscoda Local No. 123, Ala., 321 U.S. 590, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944). The word “employ” is defined in Webster’s New Collegiate Dictionary (1979), as: “to use or engage the services of; to provide with a job that pays wages or a salary.”

In the instant case, Davis had requested employment and was given a job, i.e., hired on July 1, 1981. At that time, he was informed of the terms and conditions of his employment and signed the necessary paperwork. At this point, Showalter and Davis had a contract of employment and under this contract, Davis was subject to direction from Showalter as to when and how to perform the work for which he would be paid. Clearly, Showalter could have, as it did, request that Davis begin actual work the following day: The fact that Davis would not begin to earn wages until he actually commenced work for Showalter did not prevent him from becoming “employed” on July 1, 1981. Nationwide is, in essence, asking that the term “employed” be construed to mean when actual work is begun. However, if Nationwide, which drafted the policy, wished to so limit coverage, it need only have used more restrictive language clearly stating its desire. Ward v. Nationwide Mutual.

REVERSED and REMANDED for entry of judgment for Davis.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I agree with the trial judge that the undisputed facts in this case establish Davis was not covered by the group policy at the time of his accident, and the wording of the policy was not ambiguous. This is a tough case. Davis missed being covered by his employer’s group policy by just one day. Had Davis started work on July 1, 1981, his coverage clearly would have commenced October 1, 1981, but because he started on July 2, 1981, I do not think he was covered until the next full calendar month, beginning November 1, 1981. As the fates would have it, Davis’ motorcycle accident occurred on October 12, 1981. Davis lost his leg below the knee, and he necessarily incurred medical and hospital bills. He needs the insurance money, and I sympathize with the result of the majority opinion, although I cannot agree with it.

The record shows, without any real dispute, the following occurred. Davis filed an application for employment with Show-alter Flying Service, Inc. on June 16, 1981. No jobs were then open, but Davis checked frequently with Stafford, the line operation supervisor. On July 1st, Stafford told Davis to come talk with him, and he would hire him.

Davis spent one hour at Showalter on July 1st. Stafford told him about the company, its benefits and its history. He offered Davis a certain hourly wage. Davis read Showalter’s pamphlet containing employee rules and regulations and he signed a form acknowledging he had done so. Davis also signed a W-4 form and a letter recognizing he would be on probation for ninety days. Stafford introduced Davis to his work supervisor and told him to report for work the next morning at 8:00 a.m.

On July 2nd Davis reported for work, and worked his first full day. His time card was first dated July 2nd. His pay commenced then. All of Showalter's business records show Davis commenced work on July 2nd. At the bottom of the Employment Application Form it is noted “hired 7/1/81,” “will report 7/2/81.” The W-4 form was noted “hired 7/2/81,” and the bookkeeper entered him into the business’ computer that day. The Showalter confidential employee records show his employment date as July 2, 1981.

The records regarding the group policy also indicate Davis’ date of employment was July 2, 1981. Showalter forwarded Davis’ insurance form, which had been filled out by Davis, to Nationwide. The form noted the date of employment was July 2, 1981. Nationwide did not bill Show-alter for any premiums for Davis until December; and the coverage date for Davis (as well as another employee hired on the same date) was November 1, 1981. Davis’ individual insurance certificate, issued by Nationwide, shows his coverage began November 1, 1981. The certificate was not received by Davis until after his accident, but there is no indication Nationwide ever intended to cover him until November 1st. Another employee who began work July 2nd with Davis, but who was hired before, was assigned November 1, 1981, as the commencement of his coverage date.

In presenting his insurance claim to Nationwide, Davis signed a claim form dated October 16, 1981, four days after the accident, in which he said his date of employment was July 2, 1981. Further, the Nationwide Group Enrollment Card which Davis filled out and signed on October 6, 1981, six days before the accident, stated his date of employment was July 2, 1981.

The only basis to hold that Davis was “employed” on July 1st, is Stafford’s testimony that he “hired” Davis on July 1st. This is disputed by the deposition of another Showalter executive, Ralph Loos. He testified that Showalter did not consider a man its employee until he “clocks in” and is on the payroll. Loos thought there was only an agreement to hire on July 1st, which was revocable by either side. “I feel like that we have hired him not until he’s shown up and starts to work....” At least, there is a conflict in the facts, which should surely prevent entry of summary judgment for Davis.

The majority finds that the words “employ” and “employment” as used in the group policy are ambiguous because employ may be used in some contexts to be a synonym of “to hire.” Actually the real ambiguity here, if it exists, stems from the fact that both “hire” and “employ” may refer to the act of entering into a contract to hire or employ; or to the state of actually being an employee or hireling at work.

However, ambiguity does not result automatically just because a word in the English language has more than one possible meaning. Out of such stuff poetry and puns are made. For example, the word “embrace” used as a verb, has four similar, but different meanings and the word “bottom,” used as a noun, has nine. Whether what is meant is the posterior end of the trunk or the trousers of pajamas depends upon the context in which the word is used. If it can be reasonably used in two different senses, then an ambiguity arises. But if only one meaning is reasonable, then there is no ambiguity.

The question in this case is whether “employment” can have been used in context of this group insurance policy in the sense of entering into an agreement to hire or employ. See Cipa v. Metropolitan Life Insurance Company, 155 Pa.Super. 339, 38 A.2d 518 (1944); 1 J. Appleman & J. Appleman, Insurance Law and Practice § 44 (1981). Although there was only a one day gap between the agreement to hire Davis and his commencing work, in another case using this one as precedent, there may be a span of days or weeks, or even longer. Is it reasonable to start the running of an eligibility period for coverage under an employee group policy on the date of an agreement to hire, as opposed to actually beginning work? I think not. See Boyer v. Travelers Insurance Company, 7 Cal.2d 615, 61 P.2d 925 (1936).

Group policy insurance is generally procured by an employer for the benefit of a shifting group of individuals who are the employer’s actual employees from time to time. 1 J. Appleman, supra, at §§ 41 & 44; see Van Zanten v. National Casualty Company, 333 Mich. 28, 52 N.W.2d 581 (1952). As in this case, the premiums are often paid by the employer, although some contributions may be made by the employee for special benefits or coverage for dependents. In a sense, coverage is part of an employee’s compensation for working for his employer, like his salary. The policies frequently reinforce the actual work requirement by stating that a fixed period of employment time must pass before benefits accrue. 1 J. Appleman supra, at § 44. “Employment” in the context of group policies usually refers to the status of being an employee rather than to a contractual relationship. . Annot., 68 A.L.R.2d 8 (1959). Clearly' it makes no sense to commence coverage before actual work has started and before any premiums are paid.

It appears the Nationwide policy provisions in this case are typical of such group policies. To qualify or become eligible for coverage, an employee must be “actively at work” on the day his insurance coverage begins; and he must have been “regularly employed” by the employer for no less than three months. “Regularly employed” is defined as “continuously employed by the Policyholder for at least 30 hours each week.”

Further, the records furnished the insurance company by Showalter as well as Davis and signed by both indicates the date of Davis’ employment was July 2, 1981. An insurance company has the right to rely on information it has received from an employer and an employee. See 1 J. Appleman, supra, at § 43.

Employment in this context could only reasonably mean the state of being actually employed and not the prior date of entering into an agreement to hire. The latter meaning is unreasonable in this context, and, in my view, constitutes a forced construction or interpretation which effects a result not intended by the parties. We are bound to give full force and effect to the terms of an insurance contract where the meaning is clear and it is susceptible of only one interpretation. Massachusetts Mutual Life Insurance Company v. DeSalvo, 174 Colo. 115, 482 P.2d 380 (1971); Shaw v. Bankers Life Company, 213 So.2d 514 (Fla. 3d DCA 1968); see 44 Am.Jur.2d Insurance § 1845 (1982). Because I think there is no ambiguity as to the language of this policy and no dispute as to the facts which determine coverage, I would affirm the summary judgment.

      . Davis’ pay period commenced on July 2, 1981.

      . 30 C.J.S. Employ (1965); 40 C.J.S. Hire (1944); see A.J. Meyer & Co. v. Unemployment Compensation Comm’n, 348 Mo. 147, 152 S.W.2d 184 (1941), superseded by statute as stated in Beal v. Industrial Comm’n, 535 S.W.2d 450 (Mo.App.1975); Roan v. D.W. Falls, Inc., 72 N.M. 464, 384 P.2d 896 (1963); Board of Commissioners v. Department of Public Health, 44 N.M. 189, 100 P.2d 222 (1940).

      . Powers v. Fisher Controls Co., Inc., 246 N.W.2d 279 (Iowa 1976); Black’s Law Dictionary 471 & 656 (5th ed. 1979); Webster's New Collegiate Dictionary 370 & 537 (1981).

      . Webster’s New Collegiate Dictionary 368 (1981).

      . Webster’s New Collegiate Dictionary 128 (1981).

      . See Denman Rubber Mfg. Co. v. World Tire Corp., 396 So.2d 728 (Fla. 5th DCA 1981); Van Zanten v. National Cas. Co., 333 Mich. 28, 52 N.W.2d 581 (1952).

      . See Davison v. Business Men's Assurance Co. of America, 85 N.M. 796, 518 P.2d 776 (1974); Kloepfer v. Continental Assurance Co., 23 Utah 2d 178, 460 P.2d 339 (1969).

      . Most policies limit coverage to full-time employees by definitions. Annot. 57 A.L.R.3d 801 (1974).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julian GIBSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AV-461.
    District Court of Appeal of Florida, First District.
    April 26, 1984.
    Rehearing Denied June 14, 1984.

      Julian Gibson, pro se.
    Enoch J. Whitney, Gen. Counsel, Fla. Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

The circuit court’s denial of appellant’s petition for writ of mandamus seeking review of the presumptive parole release date established by the Commission is affirmed because appellant failed to allege in his petition, or show by providing an appendix, that he had exhausted his administrative remedies. See Houston v. Florida Parole and Probation Commission, 377 So.2d 34 (Fla. 1st DCA 1979).

AFFIRMED.

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ„ concur.


author: JORGENSON, Judge.

text:
    ROBERT L. TURCHIN, INC., Appellant, v. GELFAND ROOFING, INC., Trop-X Corporation, Sam Bloom Plumbers, Inc., Napoleon Steel Contractors, Inc., Cather Industries, Inc., Warren Jones & Warren, Inc., and A.C. Electric Company of Florida, Inc., Appellees.
    Nos. 83-792, 83-1354 and 83-1693.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    As Clarified on Denial of Rehearing June 12, 1984.

      Greene & Cooper and Joan M. Bolotin; Walter C. Kovner and Edward S. Kaplan, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, Lowndes, Dros-dick, Doster & Kantor and Timothy J. Man- or and Alice Blackwell White, Orlando, Johnson & Bakst, West Palm Beach, and Wesley A. Lauer, Miami, Sherman W. Crawford, Coral Gables, Pyszka & Kessler and Phillip D. Blackmon, Miami, Bedzow & Korn and Alan J. Kan, North Miami, for appellees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

In these consolidated appeals, we reverse the dismissals or adverse judgments on the pleadings of seven third-party complaints and remand for further proceedings consistent with the views expressed herein.

A condominium association and individual unit owners brought an action against the developer of a condominium building and Turchin, the general contractor, alleging negligence and breach of warranty in the construction of the building. Turchin filed third-party actions against seven subcontractors of the condominium project, the seven appellees. The third-party complaints sought contribution under section 768.31, Florida Statutes (1981), if it were found that active negligence of the subcontractors combined with active negligence of Turchin or, in the alternative, indemnity if it were found that active negligence of the subcontractors resulted in vicarious liability on Turchin’s part.

Turchin, asserting that it had acted only as the developer’s agent in acquiring the services of the subcontractors and therefore, as a matter of law, was not liable to the condominium unit owners and association for any negligence attributable to the subcontractors, then moved for a summary judgment on the primary claim. The trial court denied the motion “because there is a question of fact on the issue as to whether ... [Turchin] was an agent of” the developer.

The subcontractors filed motions either for dismissal or a judgment on the pleadings of the third-party complaints. A successor judge granted each of the motions upon a finding that the third-party complaints and their attached exhibits “clearly indicate on their face that ... all contracts executed by the aforementioned Third-Party Defendant corporations were executed by and between them and Robert L. Tur-chin, Inc. acting only as an agent for” the developer.

Turchin’s quandary, quite simply, is that by the appealed orders Turchin has been precluded from seeking contribution or indemnification from the subcontractors because the trial court concluded that Tur-chin, as a matter of law, was merely an agent of the developer, who would, therefore, be the party potentially liable for negligence attributable to the subcontractors; yet Turchin may ultimately find itself liable to the condominium unit owners and association for any negligence attributable to the subcontractors because the trial court, in an interlocutory order, could not conclude as a matter of law that Turchin was an agent of the developer.

In appealing the trial court’s dismissals and adverse judgments on the pleadings of the third-party complaints, Turchin argues that in each of its third-party complaints it alleged sufficient facts entitling it to contribution or indemnity to be allowed an opportunity to prove the truth of the allegations. We agree.

In ruling upon a motion to dismiss, all allegations in the complaint must be accepted as true, with the fundamental question being whether a cause of action would be established by proving such allegations. Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984). Similarly, in ruling on a defendant’s motion for a judgment on the pleadings all allegations in the complaint must be accepted as true and all allegations in the answer, which are automatically denied, must be accepted as false, the fundamental question again being whether a cause of action would be established by proving the plaintiff’s allegations. Butts v. State Farm Mutual Automobile Insurance Co., 207 So.2d 73 (Fla. 3d DCA 1968). A party seeking contribution need only allege facts showing that the negligence of the party from whom he seeks contribution combined with his own to cause the damage for which the plaintiff seeks recovery. See Florida Rock & Sand Co. v. Cox, 344 So.2d 1296 (Fla. 3d DCA 1977). A party seeking indemnity need only allege facts showing that he was not actively negligent but is potentially only vicariously, constructively, derivatively or technically liable and that the duty he allegedly breached was actually the duty of another who breached that duty. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

The operative facts considered in the summary judgment proceedings on the primary claim and pled in the third-party complaints are essentially the same and it is fatally inconsistent, potentially to Tur-chin but ultimately to the orders under review, for the trial court to have reached the conclusion it did. Turchin cannot be an agent as a matter of law but at the same time possibly not an agent as a matter of fact.

Reversed and remanded for further consistent proceedings.


text:
    Scott Dale WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 84-414.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
   ORDER OF DISMISSAL

PER CURIAM.

This appeal is from an order summarily denying several points in a motion to vacate a judgment and sentence filed under Rule 3.850, Florida Rules of Criminal Procedure. The trial court has not disposed of the remaining point in the Rule 3 motion but an evidentiary hearing has been scheduled thereon.

Thus, the question arises as to the ap-pealability of an order partially disposing of a Rule 3 motion. If this were purely a civil case, such a partial order would not be appealable unless it disposed of claims unrelated to the remaining claims. An order or judgment is not considered final until it disposes of all the issues presented. The same policies against allowing piecemeal appeals apply here. We see no reason not to apply this principle to orders entered on Rule 3 motions.

If appellant’s remaining point is denied, he may raise all issues on appeal from the final order. This appeal is hereby DISMISSED.

SCHEB, A.C.J., and CAMPBELL and LEHAN, JJ., concur.

      . See Mendez v. West Flagler Assoc., Inc., 303 So.2d 1 (Fla.1974) and SLT Warehouse v. Webb, 304 So.2d 97 (Fla.1974).

      . See Haddad, Partial ‘Final’ Judgments — A Persistent Problem in Appellate Practice, 53 Fla.B J. 204 (1979).


author: BARFIELD, Judge.

text:
    Frederick TRAMONTANA, Appellant, v. TAMPA STEEL ERECTING COMPANY, et al., Appellees.
    No. AR-11.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    Rehearing Denied June 12, 1984.

      Samuel R. Mandelbaum, of Anthony F. Gonzalez, Tampa, for appellant.
    Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellees.
   BARFIELD, Judge.

In this workers’ compensation appeal, Frederick Tramontana contends that the deputy commissioner erred in summarily precluding an award of temporary disability and rehabilitative benefits for the period prior to June 4, 1979, in failing to award temporary disability benefits for all periods following June 4, 1979 in which benefits were claimed, and in refusing to consider an alleged violation of the child labor laws at the December 7, 1982 hearing. With two exceptions, we find Tramontana’s appeal to be without merit. We affirm in part and reverse in part.

Tramontana’s 1977 back injury was at first treated conservatively and some disability benefits were paid. A “shotgun” claim was filed in February, 1978 and hearing was held before Deputy Commissioner C.J. Hardee on June 4, 1979. In his July 27, 1979 order, Deputy Commissioner Har-dee denied rehabilitative benefits under section 440.15(2)(b), Florida Statutes (1977) on the grounds that Tramontana had not satisfied the prerequisite to obtaining those benefits by being evaluated by the Division of Workers’ Compensation. Section 440.-49(1), Florida Statutes (1977).

On July 9, 1979, claimant was interviewed by the Division of Workers’ Compensation rehabilitation nurse. On August 22, claimant began working, but was laid off on October 9, 1979. In the meantime, the rehabilitation nurse was informed by claimant’s mother that he had obtained a job, whereupon she closed his file.

There followed a three year period of extensive medical and psychological examination and treatment, during which claimant was intermittently employed and was successively represented by three different attorneys. On December 7, 1982 a second hearing was held before Deputy Commissioner Louis Tidwell. In his order of January 3, 1983, from which this appeal was taken, the deputy commissioner concluded that the July 27, 1979 order was dispositive of any claims which were mature as of June 4, 1979, so that all claims for benefits prior to the June 4, 1979 hearing should be denied.

However, we interpret Deputy Commissioner Hardee’s order as an acknowledgment of his lack of jurisdiction to determine entitlement to rehabilitation and accompanying TTD benefits under section 440.49(1), Florida Statutes (1977), and not a disposition of any claim on the merits. See Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1977). Claimant having sought evaluation by the Division of Workers’ Compensation and the Division having been given a reasonable time in which to make that evaluation, it is our view that claimant has fulfilled the statutory prerequisite to obtaining rehabilitative benefits and that the deputy commissioner now has jurisdiction to dispose of that claim. We reverse the deputy commissioner’s finding that the July 27, 1979 order was dispositive of any claims and remand for disposition of all claims for benefits prior to June 4, 1979.

We commend the deputy commissioner’s exceptional handling of the various claims for temporary disability benefits after June 4, 1979. Competent substantial evidence in the record supports the deputy’s award or denial of benefits for each of the claim periods. However, appellant has directed our attention to two periods, October 3 to November 2, 1981 and November 11, 1981 to January 23, 1982, during which claimed benefits were neither awarded nor denied by the deputy commissioner. We remand for specific findings by the deputy commissioner of entitlement, or lack of entitlement, to benefits for these periods. All other findings and conclusions by the deputy commissioner are affirmed.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.

WENTWORTH and ZEHMER, JJ., concur.

      . Benefits were claimed from September 16, 1981 to March 16, 1982. Temporary total disability benefits were voluntarily paid from November 2 to November 11, 1981. The deputy commissioner awarded temporary total disability benefits from September 16 to October 3, 1981 and from January 23 to March 16, 1982.

      . We note that there is evidence in the record that would support either an award or a denial of temporary disability benefits by the deputy commissioner for these periods.


author: DANIEL S. PEARSON, Judge.

text:
    Steven FOX, Appellant, v. TOWN OF BAY HARBOR ISLANDS, a municipal corporation and a political subdivision of the State of Florida, Appellee.
    No. 83-826.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 11, 1984.
    Becker, Poliakoff & Streitfeld and Robert J. Manne, Fort Lauderdale, for appellant.
    Lewis Horwitz, Bay Harbor Islands, for appellee.
    Before SCHWARTZ, C.J., and NES-BITT and DANIEL S. PEARSON, JJ.

       Participated in decision, but not oral argument.

   DANIEL S. PEARSON, Judge.

Fox appeals from an order dismissing his complaint with prejudice after the trial court determined that a zoning ordinance of the Town of Bay Harbor Islands, a portion of which was attacked by Fox as being facially unconstitutional, was a valid exercise of the Town’s police power.

The ordinance in question, Section 23-11(B)(10) of the Code of the Town of Bay Harbor Islands, provides:

“If a building is raised to the minimum height necessary to provide one or more levels of vehicular parking, utilities, and other services under the building area, and provided that no living quarters exist in any part of this parking, utility, and service area, other than as specified hereafter, one (1) level of said parking, utility, and service area shall not be counted as a story. For example, if there are two (2) levels of vehicular parking, utilities, and other services, then one (1) such level would not be counted as a story, and a maximum of five (5) stories of living space are permitted over the other two (2) levels. All levels referred to are above ground. There is no limitation to number of levels under ground level. However, one (1) apartment may exist in such area as living quarters for one (1) family, the head of which shall be in charge of maintenance and superintendent duties exclusively for that building. The apartment shall not exceed eight hundred (800) square feet of floor area and shall not be counted as an apartment for parking space requirements of any ordinance.”
(emphasis supplied).

We reverse upon a holding that the emphasized portion of the ordinance restricting the occupancy of the apartment to a family headed by a person in charge of maintenance and superintendent duties is unconstitutional and remand the cause with directions to the trial court to grant Fox’s prayer that the Town be enjoined from prohibiting Fox from occupying the apartment.

In 1969, a five-story apartment building was constructed in conformity with the ordinance: The upper four stories of the building contained twenty-four apartments; the ground level contained parking spaces and, as the ordinance permitted, one apartment not exceeding eight hundred square feet. In 1979, the apartment building was converted to condominium ownership with the declaration of condominium providing for twenty-five residential units including the ground floor unit. The Town then informed Fox that he could not occupy his apartment, since his occupancy would offend against the ordinance. Unsuccessful in obtaining a variance from the Town, Fox brought suit.

The applicable legal principles are clear. Zoning ordinances, like all legislative acts, are presumptively valid. Town of Indialantic v. McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981). The burden of overcoming this presumption of validity is on the challenger. Id. at 1230. That burden is satisfied when it is shown that the ordinance in question does not bear a substantial relation to the public health, safety, morals or general welfare. See Burritt v. Harris, 172 So.2d 820 (Fla.1965); City of Miami Beach v. 8701 Collins Avenue, Inc., 77 So.2d 428 (Fla.1954); Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975); Fogg v. City of South Miami, 183 So.2d 219 (Fla. 3d DCA 1966). See also 101 C.J.S. Zoning § 16 (1958).

Most assuredly, and Fox does not contend otherwise, an ordinance, as here, to the extent that it reasonably regulates the setback requirements of buildings, is a valid exercise of the police power. Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1926); City of Miami v. Romer, 58 So.2d 849 (Fla.1952), clarified, 73 So.2d 285 (Fla.1954). Fox’s claim, however, is not that the Town cannot limit living quarters among parking facilities on the ground floor to a small apartment and exempt such floor from being counted as such in determining setback requirements. His claim is, instead, that insofar as the ordinance requires that the ground floor apartment be occupied only by a person, and his or her family, who is in charge of maintenance and superintendent duties of the building, it bears no real or substantial relationship to, is not reasonably necessary for the protection of, and in no way advances or promotes the public health, safety, morals or general welfare. Fox therefore contends that his constitutional right to reside in his dwelling unit has been unlawfully abrogated under the guise of the police power. See Burritt v. Harris, 172 So.2d 820. See

Particularly pertinent here is the principle that “zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users.” City of Santa Barbara v. Adamson, 27 Cal.3d 123, 610 P.2d 436, 441-42, 164 Cal.Rptr. 539, 544-45 (1980). Consistent with that principle, courts have struck down ordinances which limited the occupancy of a dwelling unit to a narrowly-defined family on the ground, among others, that such ordinances have, at most, a tenuous relation to the city’s legitimate goal of preventing overcrowding, defraying traffic problems, and avoiding an overload in the school system. See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); City of Santa Barbara v, Adamson, 610 P.2d 436, 164 Cal.Rptr. 539. See also Berger v. State, 71 N.J. 206, 364 A.2d 993 (1976).

It is clear to us that in the ordinance under consideration the identity of the person who occupies the ground floor apartment has not the slightest bearing upon the health, safety, morals or welfare of the public at large. Even if it could be said that having a person on the premises to maintain and superintend the building would arguably promote the welfare of the other inhabitants of the building, there is no requirement in this ordinance that the building have such a person on the premises. Cf. Sunrise Village Associates v. Borough of Roselle Park, 181 N.J.Super. 567, 438 A.2d 945 (Super.Ct.App.Div.1981), cert. denied, 89 N.J. 413, 446 A.2d 144 (1982) (ordinance requiring the owner of any apartment complex consisting of 250 or more units to furnish uniformed security guard services upon the premises does not establish any arbitrary classification and is a valid exercise of the police power). Any legitimate goals of the setback ordinance are fulfilled when the living space on the ground floor is limited in size, and whether or not the apartment is occupied — or if occupied, by whom — does not in any way advance those goals.

Reversed and remanded with directions.

      . Fox alternatively sought an order requiring the Town to grant him a variance from the ordinance, which action is rendered moot by our decision. Moreover, we do not pass upon the question whether Fox’s separate count for damages arising from a violation of his civil rights under Title 42 U.S.C. § 1983 is viable, because the trial court, finding the ordinance constitutional, has not yet ruled on this question.

      . Other sections of the Town's Code, e.g., §§ 23-11(B)(1), (2) and (3), establish setback requirements for multifamily buildings based on the number of stories in a building.

      . The generally accepted justifications for a reasonable setback requirement are that it secures adequate air and light, promotes safety from fire and other dangers, prevents overcrowding of land, Baker v. County of Peoria, 116 Ill.App.3d 518, 72 Ill.Dec. 197, 452 N.E.2d 129 (1983), and enhances aesthetic values, City of Leadville v. Rood, 198 Colo. 328, 600 P.2d 62 (1979). See also Town of Indialantic v. McNulty, 400 So.2d 1227 (setbacks for oceanfront buildings justified as preserving sand dunes, bluffs and vegetation on beaches).


text:
    Steve EDELSTEIN, City of Miami, Michael J. Murphy and Fowler, White, Burnett, Hurley, Banick & Strickroot, Appellants/appellees, v. Miriam DONNER and Arthur J. Morburger, Appellees/appellants.
    Nos. 83-1504, 83-2005.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    See also, 425 So.2d 1220.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Jose Garcia-Pedrosa, Miami, and Leon M. Firtel, Miami Beach, for appellants/appellees.
    Arthur J. Morburger and Miriam Donner, in pro. per.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

We affirm the trial court’s issuance of a Peremptory Writ of Mandamus insofar as it requires the production of materials claimed to be protected by a non-existent work product exemption to the Public Records Act, Chapter 119, Florida Statutes (1981). Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So.2d 343 (Fla. 3d DCA 1983); Donner v. Edelstein, 423 So.2d 367 (Fla. 3d DCA 1982); Miami Herald Publishing Co. v. City of North Miami, 420 So.2d 653 (Fla. 3d DCA 1982); Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), review denied, 426 So.2d 27 (Fla.1983); Donner v. Edelstein, 415 So.2d 830 (Fla. 3d DCA 1982).

We reverse the trial court’s ruling approving an attorney-client privilege as a ground for denying production under the Public Records Act. Miami Herald Publishing Co. v. City of North Miami, No. 83-688, 452 So.2d 572 (Fla. 3d DCA 1983) (City of North Miami II). As in City of North Miami II, we certify that this decision passes upon a question of great public importance:

Does the attorney-client privilege section of the Florida Evidence Code exempt from the disclosure requirements of the Public Records Act written communications between a lawyer and his public-entity client?

Orders pertaining to the grant of production affirmed; orders pertaining to the denial of production reversed; question certified.

       The trial court did not have the benefit of City oj North Miami II when it made its ruling.


author: NESBITT, Judge.

text:
    Gary McKEE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1609.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 11, 1984.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   NESBITT, Judge.

Defendant was charged with: (1) battery on a law enforcement officer; (2) possession of marijuana; (3) resisting arrest with violence; (4) attempted second degree murder; and (5) possession of a firearm during the commission of a felony, to wit: attempted second degree murder. He was acquitted of attempted second degree murder and found guilty of the remaining counts. The issue on appeal is whether the verdict of guilty on the firearm charge is inconsistent with the not guilty verdict on the charge of attempted second degree murder.

In support of his position, the defendant relies on Redondo v. State, 403 So.2d 954 (Fla.1981) wherein the supreme court concluded that: “A conviction for unlawful possession of a firearm during the commission of a felony must stand or fall in conjunction with the underlying felony.” 403 So.2d at 956. However, as later explained in Pitts v. State, 425 So.2d 542 (Fla.1983), a conviction óf possession of a firearm during the commission of a felony is not inconsistent with the acquittal on the felony charge where the jury could have concluded that the possession occurred in the attempt to commit the felony and the jury was not charged on attempt.

Here, the defendant was charged with attempted second degree murder and possession of a firearm during the commission of an attempted second degree murder. Unlike Pitts, the occurrence of an attempted second degree murder was a prerequisite to a finding of guilt on the firearm possession charge. Thus, applying the Re-dondo rationale, and nothing more, the solution seems obvious. Not so, however, because the state argues that under the facts presented the defendant is estopped from advancing the claim of inconsistent verdicts. We agree.

In accordance with Florida Standard Jury Instruction (Criminal) 2.08(a), and without objection, the jury was charged as follows:

A separate crime is charged in each count of the Information. While they have been tried together, each crime and the evidence applicable to it must be considered separately. A separate verdict has to be returned as to each count. Finding the defendant either guilty or not guilty as to one crime does not affect your verdict as to the other crimes charged.

Having fully received the benefits of the jury considering and wéighing the evidence against the defendant on each count as if it were contained in a separate information, the defendant now complains that the jury erred in returning a verdict of guilt on one charge and no guilt on another. It is axiomatic that a party will not be allowed to maintain inconsistent positions in the course of litigation. McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971). Since the defendant not only failed to object to the instructions, but also expressed his agreement to its submission, we find that he is estopped to complain now that the jury has followed the instruction. Perry v. State, 362 So.2d 460 (Fla. 1st DCA 1978) (where defendant not only failed to object to defective verdict form at trial, but also agreed to its submission, any error was invited). As was most aptly stated by Judge Schwartz in McCray v. State, 397 So.2d 1229, 1231, n. 4 (Fla. 3d DCA 1981), approved, 425 So.2d 1 (Fla.1983):

Moreover, we confess to a certain satisfaction in applying this presumption [that the jury acted in accordance with the law] to McCray, whose argument basically is, after all, that because the jury charitably gave him the appetizer and main course, he is legally entitled to dessert and coffee. We do not think a defendant should be heard to make such a demand, let alone receive an affirmative answer, (citation omitted)

Accordingly, the judgment appealed from is affirmed.

      . See also Hodkin v. Perry, 88 So.2d 139 (Fla.1956); United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966).


text:
    1050 CORP., d/b/a Glenn Rent-A-Car, Appellant, v. Robert HOLMES, Jr., Appellee.
    No. 83-2345.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 13, 1984.

      Friedman & Lipcon and John S. Selig-man, Coral Gables, for appellant.
    George, Hartz, Burt & Lundeen, Miami, and William G. Burt, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

For the following reasons the order of the trial court is reversed and this action is remanded for further proceedings.

Holmes leased an automobile from Glenn Rent-A-Car [Glenn]. He initialed a box on page one of the rental agreement indicating “$250.00 COLLISION LIAB. AS PROVIDED IN PAR. 18B OF THIS RENTAL AGREEMENT.” On page two, paragraph 18B provides that “[b]y Lessees initial on page 1, Lessee elects not to purchase full collision protection and agrees to be responsible for the first $250 [illegible] damages to the rented vehicle while it is in Lessee’s possession.” (Emphasis added.) Following paragraph 18B is a clause which excludes collision protection if the terms of the rental agreement are violated. Another clause, at the top of page two, provides that “[i]n no event shall the car be used, operated or driven ... by any person except Lessee, or a qualified licensed driver with Lessor’s prior written consent.”

While another licensed driver was driving the leased automobile, with Holmes as a passenger, the automobile sustained $6,663.72 in damages in a traffic accident. Holmes paid the $250 deductible. Glenn brought the instant action against Holmes for the remainder of the damages, alleging that Holmes breached the rental agreement when he allowed another to operate the car without Glenn’s written consent. The trial court granted Holmes’s motion to dismiss with prejudice Glenn’s amended complaint because'the “Rental Agreement, which was the basis of the Complaint and the Amended Complaint, was designed to misslead [sic] the consumer and was invalied [sic] as against public policy .... ”

The public policy referred to in the trial court’s order presumably is that “the owner of a vehicle is liable to third persons for its negligent operation by anyone to whom it has been entrusted, even if the bailee grossly violates the owner’s express instructions concerning its use,” Avis Rent-A-Car Systems, Inc. v. Garmas, 440 So.2d 1311, 1313 (Fla. 3d DCA 1983) (citations omitted); see Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959).

Because this action is between the owner and the bailee and no injured third persons are involved, we hold that the above rule has no application to the instant case and that the public policy the rule embodies would not be served by extending it to invalidate the contract herein.

Reversed and remanded.

      . This opinion in no way precludes a finding that the rental agreement is for some other reason invalid. The record is insufficient at this time to make that determination.


author: SCHEB, Acting Chief Judge.

text:
    Donald H. HUDSON and Mary Hudson, his wife, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 83-1237.
    District Court of Appeal of Florida, Second District.
    May 9, 1984.

      Andrew R. Reilly of Reilly & Lasseigne, Haines City, and D.A. Troiano, Lakeland, for appellants.
    Roy B. Dalton, Jr., Orlando, for appellee.
   SCHEB, Acting Chief Judge.

This appeal addresses the question of which party has the burden of proof in an insured’s action under a homeowners insurance policy. The focus of our opinion is directed to the sinkhole coverage mandated by Florida law.

In 1976 Donald and Mary Hudson purchased a homeowners insurance policy from Prudential Property and Casualty Insurance Company. The policy insured them “against all risks of physical loss to the property covered ... except as otherwise excluded or limited” but contained a standard exclusion for any loss caused by earth movement or sinking. The policy included a mandatory endorsement for sinkhole collapse coverage pursuant to section 627.706, Florida Statutes (1981). The endorsement covered direct loss to the Hudsons’ property caused by sinkhole collapse and stipulated that: “Any provision in this policy which excludes loss by ‘earth sinking’ is amended to exclude loss by ‘earth sinking other than sinkhole collapse.’ ”

In May 1981, while their policy with Prudential was in force, the Hudsons’ home was damaged by a sudden collapse of the earth supporting it. They filed a claim with Prudential asserting that the damage was caused by a sinkhole. Prudential denied coverage on the basis that the damage was attributable to earth settlement.

On May 7, 1982, the Hudsons filed suit against Prudential for breach of contract. Prudential answered and asserted an affirmative defense that the damages sustained by the Hudsons were not the result of a sinkhole. A jury trial was held in April 1983. With sinkholes being an included peril in the policy and earth sinking being expressly excluded, the jury was essentially required to resolve conflicts in the testimony between experts presented by both sides on the question of whether the settlement underneath the home had been caused by sinkhole activity.

At the close of the evidence the Hudsons requested the following jury instruction:

The burden of proof is on the Hudson’s to establish they have sustained damages by the collapse of their building or any part thereof not caused by settling, cracking, shrinkage, bulging or expansion. When plaintiffs have established this, they are entitled to recover for the damage unless PRUDENTIAL proves that the damage was caused or aggravated by earth movement, including but not limited to earthquake, volcanic eruption, landslides, mudflow, earth sinking, rising or shifting but excluding earth sinking other than sinkhole collapse.

The trial court, however, denied this request and gave the jury the following instructions requested by Prudential:

The issue that you will be called upon to determine in this matter on the breach of contract claim brought by Donald and Mary Hudson against Prudential Property and Casualty Insurance Company is whether Donald and Mary Hudson sustained damage to their property as a result of soil settlement caused by sinkhole activity below the property; and, if so, the extent of the damages sustained as a result of such settlement of the property.
Now sinkhole activity is defined by law and by the contract in this case as follows: Actual, physical damage arising out of or caused by the sudden settlement or collapse of the earth’s supporting property and only when such settlement or collapse results from subterranean voids created by the action of [water] on limerock or similar rock formations. If the greater weight of the evidence does not support the claim of Donald and Mary Hudson in this regard, then your verdict should be for Prudential Property and Casualty Insurance Company. However, if the greater weight of the evidence does support the claim of Donald and Mary Hudson, then your verdict should be for Donald and Mary Hudson and against Prudential Property and Casualty Insurance Company.
By greater weight of the evidence, we mean the more persuasive and convincing force and effect of the entire evidence in the case.

After the jury retired to consider the case, it became apparent they were having difficulty in applying the instructions as given. After two hours of deliberation, they requested answers to the following two questions:

1. Do we have to decide whether or not the damage was attributable to the sinkhole activity?
2. Do we have to decide if the attorney for the Plaintiff was convincing enough to tip the scales to insure that sinkhole activity caused the damage?

The court responded to question 1 by saying: “I’ll insert the word only, you may allow only damages caused by sinkhole activity.” In response to question 2 the court said: “[N]o, it’s the evidence which must convince you.”

Shortly thereafter, the jury sent out three questions to be answered by the court:

1. Do we have to determine whether a sinkhole or sinkhole activity caused the settlement (a yes or no, answer)?
2. Do we have to decide if the attorney for the Plaintiff was convincing enough to tip the scales to insure that sinkhole activity caused the settlement?
3. Which of the above questions should we use to base our decision?

The court responded as follows:

1. If the greater weight of the evidence convinces you that the damage was caused by sinkhole activity as defined ... you should find a verdict for the Plaintiffs; if not you should find for the Defendant.
2. No. Your verdict must be based upon the evidence. Argument of the attorneys is made to aid or persuade you — it is not evidence.

3. Consider the above answers.

The jury subsequently returned a verdict in favor of Prudential, finding that the damages the Hudsons complained of were not attributable to sinkhole activity as defined by the insuring agreement. The trial court entered final judgment in favor of Prudential and subsequently denied the Hudsons’ motion for new trial. The Hud-sons then filed this appeal.

The narrow issue we reach is whether the trial court properly instructed the jury as to which party had the burden of proof to establish the cause of the damage to the Hudsons’ home.

To determine the burden of proof on the parties, we must examine the policy issued by Prudential. We first note that the policy is not a specific peril policy, such as a policy of fire and lightning insurance, where the policy insures only against certain named risks. Rather, the policy insured against “all risks” except as otherwise excluded. Recovery under such an “all risks” policy generally extends to all losses not resulting from misconduct. or fraud unless the policy contains a specific provision expressly excluding the loss from coverage. Phoenix Insurance Co. v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970); 13A G. Couch, Cyclopedia of Insurance Law 2d § 48:141 (rev. ed. 1982).

As already noted, sinkhole coverage was provided for the Hudsons by virtue of the mandatory endorsement to the policy. That endorsement did not change the “all risks” nature of the underlying policy; it merely narrowed the earth sinking exclusion. See Strubble v. United Service Automobile Ass’n, 35 Cal.App.3d 498, 505 n. 6, 110 Cal.Rptr. 828, 832 n. 6 (1973). This harmonizes with the law in Florida that insurance coverage must be construed broadly and its exclusions narrowly. Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976); National Merchandise Co. v. United Service Automobile Ass’n, 400 So.2d 526, 532 (Fla. 1st DCA 1981).

Applying these principles to the present case, the general rule of evidence is that a plaintiff seeking to recover under an “all risks” policy has the burden of proving that, while the policy was in force, a loss occurred to the insured’s property. Egan v. Washington General Insurance Corp., 240 So.2d 875 (Fla. 4th DCA 1970); Phoenix. Insurance. Once the insured establishes a loss apparently within the terms of an “all risks” policy, the burden shifts to the insurer to prove that the loss arose from a cause which is excepted. Phoenix Insurance; Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889 (5th Cir.1959). The plaintiff is not required to disprove any excepted causes. Stonewall Insurance Co. v. Emerald Fisheries, Inc., 388 So.2d 1089 (Fla. 3d DCA 1980).

As the parties point out, there was a direct conflict in the evidence as to the cause of the damage to the Hudsons’ home. Thus, the trial court’s allocation of the burden of proof on the issue of Prudential’s liability became of critical importance. Since Prudential’s defense was based on an exclusion to the policy, the court’s instructions had the effect of improperly placing the burden on the Hudsons to prove that their home was damaged by a sinkhole. Consequently, the jury was apparently under the mistaken impression that the Hud-sons, as plaintiffs, had to “tip the scales” to prove that sinkhole activity caused the damage.

We hold that the trial court erred in denying the instruction requested by the Hudsons as it correctly stated the applicable law for this case. Accordingly, we reverse the final judgment and award the Hudsons a new trial.

CAMPBELL and SCHOONOVER, JJ., concur.


author: WIGGINTON, Judge.

text:
    MARRIOTT IN-FLITE SERVICES and Crawford & Company, Appellants, v. Sergio GARCIA, Appellee.
    No. AU-413.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Rehearing Denied June 12, 1984.
    Albert P. Massey, III, of Pyszka & Kes-sler, P.A., Fort Lauderdale, for appellants.
    G. William Allen, Jr., of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding to appellee permanent total disability benefits and catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981). We affirm.

We have carefully reviewed the record and find that competent substantial evidence supports the deputy commissioner’s finding of permanent total disability. The remaining issue, the catastrophic loss benefit question, merits some discussion.

On November 29, 1981, appellee, a sixty-four year old Cuban who cannot speak English, severely injured his shoulder in a work related accident. His treating physician testified that he suffered a complete tear of the rotator cuff of his right shoulder. Appellee underwent surgery in March, 1982, to repair the cuff, at which time the doctors determined that all of the surrounding muscles were not only torn but also were split. After surgery, appel-lee’s arm was in a cast until approximately April 13, 1982. Thereafter, appellee’s condition did not improve and by June, 1982, the treating physician determined that the surgery had been unsuccessful.

The deputy commissioner found that ap-pellee is entitled to catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981), for the maximum of six months due to the total loss of use of his right arm. The testimony of the treating physician, as well as that of appellee, supports a conclusion that for the six month period following his accident, appellee was totally unable to use his arm to perform any function in an industrial setting.

Section 440.15(2)(b), Florida Statutes (1981), provides in pertinent part:

Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight of both eyes shall be paid temporary total disability of eighty percent of his average weekly wage .... In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond six months from the date of injury.

Since appellee did not suffer the actual loss of his arm and has suffered no loss of his eyesight, he can only qualify for the benefits set forth in the above statute if the evidence supports a finding that he sustained a total loss of use of his arm “because of organic damage to the nervous system.” E.B. Malone Corp. v. Johnson, 425 So.2d 622 (Fla. 1st DCA 1983) and Spitzer v. Bartlett Brothers Roofing, 437 So.2d 758 (Fla. 1st DCA 1983). Although his treating physician, Dr. DePalma, testified that appellee suffered no immediate damage to his central nervous system as a result of his fall, we believe that the record does support a finding that appellee suffered damage to his nervous system as a result of treatment of the injury. The medical evidence shows that appellee underwent an operation in which, necessarily, nerves were cut as torn muscles were repaired. Therefore, unlike the situation in E.B. Malone Corp. and Spitzer, relied upon by appellants, in the instant case, appellee’s industrial injury did result in trauma and damage to his nervous system since the surgery he underwent was a direct result of his injury and that surgery rendered him totally unable to use his arm in an industrial setting for several months. Compare Santiago v. Orr Industries, Inc., 407 So.2d 1026 (Fla. 1st DCA 1981). See also Van Eyk v. R.N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979), in which the court noted that section 440.15(2) refers to temporary, not permanent, total disability.

The above authorities support our conclusion that a finding of total loss of use of an arm due to temporary damage to the nervous system, as a result of surgery necessitated by an industrial injury, is an adequate ground for recovery pursuant to section 440.15(2)(b).

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.


author: MILLS, Judge.

text:
    George BULL, Appellant, v. CITY OF ATLANTIC BEACH, etc., et al., Appellees.
    No. AU-22.
    District Court of Appeal of Florida, First District.
    May 11, 1984.

      Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellant.
    Patrick A. Carr and Claude L. Mullis, Jacksonville, for appellees.
   MILLS, Judge.

We are asked to reverse the trial court’s order awarding attorney’s fees pursuant to Section 57.105, Florida Statutes (1981). We think the awards unsupportable and therefore reverse.

Bull brought suit against the City of Atlantic Beach alleging that he, as a taxpayer, was being damaged by the City’s contract with Walter J. Parks for Parks’ architectural and engineering services. Bull contended Parks’ employment violated the Consultants’ Competitive Negotiation Act, Section 287.055, Florida Statutes (1981).

With his Second Amended Complaint, Bull named the individual city commissioners (Van Ness, Morris, Cook, and Gulli-ford), City Manager/Finance Director Moss, and Parks as additional defendants. The relief sought was: (1) a declaratory judgment that Parks was employed illegally; (2) an injunction against the city commissioners and the city manager/finance director preventing them from paying Parks; and (3) reimbursement to the City by the commissioners and city manager/finance director of funds already paid Parks.

The trial court found the Second Amended Complaint failed to state a cause of action against the individual defendants. The order of dismissal gave Bull ten days to attempt to state a cause of action and provided that if no attempt was made, the Second Amended Complaint was dismissed as to the individual defendants with prejudice. Bull filed nothing within ten days, but afterward unsuccessfully sought leave to attempt, once again, to state a cause of action against the individual defendants. Bull subsequently filed a Third Amended Complaint against the City only.

The individual defendants filed motions to tax attorney’s fees against Bull pursuant to Section 57.105. After a hearing, the trial court, finding Bull had not raised a justiciable issue of either law or fact against the individual defendants, granted the motions. The trial court awarded an aggregate fee of $600 to Van Ness, Morris, Cook, and Moss who were represented by City Attorney Jensen. Gulliford, represented by a private attorney, was awarded a $400 fee.

An award of attorney’s fees pursuant to Section 57.105 is only proper if there is a complete absence of a justiciable issue of either law or fact raised by the losing party. This means a claim so devoid of merit that it is frivolous. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); Castaway Lounge of Bay County, Inc. v. Reid, 411 So.2d 282 (Fla. 1st DCA 1982). Although we do not assess the propriety of the trial court’s dismissal of Bull’s suit against the individual defendants, as that issue is not before us, we do find the cause of action against the individual defendants was not frivolous.

Appellees argue that Bull, as a taxpayer, did not have standing to sue. It may be that standing to bring a taxpayer’s suit requires an allegation of special injury or a constitutional challenge. Godheim v. City of Tampa, 426 So.2d 1084 (Fla. 2d DCA 1983). But a plausible argument can be made to the contrary. Godheim, 426 So.2d at 1092 (Lehan, J., dissenting). If the trial court awarded attorney’s fees because it believed Bull had no standing to bring a taxpayer’s action, the effect was to penalize Bull for maintaining a suit based on an honestly debatable question of law. This, we cannot condone.

Appellees also argue they are immune from personal liability absent a proper allegation of tortious conduct. Therefore, they contend Bull’s suit against them necessarily lacked a justiciable issue. The Second Amended Complaint, however, not only sought monetary reimbursement to the City, but also declaratory and injunc-tive relief to which tort immunity does not apply.

It is not necessary to reach the other issues raised by Bull.

REVERSED.

SMITH and NIMMONS, JJ., concur.


author: THOMPSON, Judge.

text:
    Charles E. McDANIEL, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
    No. AU-390.
    District Court of Appeal of Florida, First District.
    May 11, 1984.
    Rehearing Denied June 14, 1984.

      Jane Hunter Shaeffer, Tallahassee, for appellant.
    William A. Frieder, Asst. Div. Atty., Div. of Retirement, Tallahassee, for appellee.
   THOMPSON, Judge.

McDaniel appeals a non-final order denying his motion to dismiss appellee’s amended complaint for lack of personal jurisdiction. We affirm.

While we find no error in the points raised by McDaniel, we find that McDaniel’s argument regarding the applicability of Florida’s long-arm statute to implied contracts merits discussion. The Division of Retirement (the Division) filed a complaint against McDaniel, a former teacher in the Florida University System, in the Circuit Court for Leon County, Florida, to recover an alleged overpayment it had made to him from his retirement account. McDaniel, now a North Carolina resident, moved to dismiss for lack of personal jurisdiction, arguing that the Division had failed to allege sufficient jurisdictional facts to bring him within the provisions of Florida’s long-arm statute, § 48.193, Fla.Stat. The trial court denied this motion.

McDaniel argues, among other things, that since Florida’s long-arm statute is to be strictly construed, it should only apply to express contracts and not to implied contracts, such as the one herein. This argument is without merit. Section 48.-193(l)(g) is not specifically limited by its terms to express contracts and we see no reason why it should not be applicable to implied, as well as express contracts. Accordingly, we affirm the denial of McDaniel’s motion to dismiss for lack of personal jurisdiction,

ERVIN, C.J., and WIGGINTON, J., concur.


author: WENTWORTH, Judge.

text:
    CITY OF CLERMONT and Aetna Insurance Company, Appellants, v. William RUMPH, Appellee.
    No. AU-438.
    District Court of Appeal of Florida, First District.
    May 11, 1984.
    Rehearing Denied June 13, 1984.

      James M. Hess, of Driscoll, Langston & Kane, Orlando, for appellants.
    Joseph E. Smith, of Hurt & Parrish, Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order and assert that a 1983 amendment to § 440.15(3)(b)2, Florida Statutes, precludes an award of wage loss benefits in this case. We affirm the order appealed.

Claimant is a 35 year old laborer who has worked as a garbage man and fruit picker, and who sustained an industrial accident in 1981 when his hand was caught in tractor machinery. The accident produced injury to two fingers, and the appeal does not question the existence of a resulting permanent impairment, required by the statute as a predicate for wage loss benefits, upon the attainment of maximum medical improvement in 1982. Claimant attempted to return to his former employment but was advised that his position had been filled and that no other job was available. He then made an unsuccessful job search for several months and sought wage loss benefits, which were controverted. After a hearing on the issue the deputy commissioner awarded benefits, and the order was affirmed on appeal. Claimant made a continuing job search, personally contacting a minimum of ten prospective employers each month. In each instance he filled out a job application, and when requested admitted that he had sustained an industrial injury. Claimant testified that while he was not explicitly told by prospective employers why he was not hired, “once they found out about the injury” they would not employ him.

Despite his efforts claimant’s job search was unsuccessful, and he therefore again requested wage loss benefits. Employer/carrier took the position at the hearing on July 25, 1983, that such benefits are precluded in this case by a 1983 amendment to § 440.15(3)(b)2, Florida Statutes. The deputy commissioner expressly rejected this defense and awarded the requested wage loss benefits for the months of January through June 1983.

As enacted in 1979, § 440.-15(3)(b)2 provided that “the burden shall be on the employee to establish that any wage-loss claimed is the result of the com-pensable injury.” In 1983 the legislature amended this provision to further provide that:

It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident, is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment.

Claimant asserts that this 1983 amendment so affects his substantive rights as to be inapplicable in the present case since his accident and injury preceded the amendment’s effective date. While the substantive rights of the parties in a workers’ compensation case are determined by the law in effect at the time of the claimant’s injury, this rule does not apply to procedural enactments. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). In the present case we find the contested amendment to be a procedural burden-of-proof enactment, and the provision’s applicability is therefore not governed by the date of claimant’s accident and injury.

To whatever extent the 1983 amendment applies in this case, we conclude that claimant has satisfied the evi-dentiary burden which the amendment imposes. The contested provision was enacted at the next legislative session after this court’s en banc decision in Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), which expressly held that:

... the unavailability of jobs due to economic conditions does not preclude recovery of wage loss benefits, and, accordingly, it is not necessary for a wage loss claimant to present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions....

Employer/carrier argue that the 1983 amendment has effectively overruled Regency Inn, and precludes an award of wage loss benefits unless a claimant establishes that economic conditions do not affect his employability. In Regency Inn the employer/carrier suggested a similar construction of § 440.15(3)(b), as then enacted. In rejecting this argument the en banc court noted that:

... the employer/carrier’s view is fundamentally flawed by its failure to take into account the aspect of ‘certainty’ of recovery which is said to contribute to the constitutional validity of the workers’ compensation system. Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982)....

The court further observed that such an approach would have the effect of withholding wage loss benefits in times of economic depression, thereby

... depriving those workers’ compensation claimants of a remedy for work-related injuries, and seriously affecting, in our judgment, the rational balancing of the rights and interests of both employers and employees which is necessary to give validity to the wage loss concept. Acton v. Ft. Lauderdale Hospital ....

As Regency Inn thus indicates, in the present case employer/carrier’s suggested construction of the 1983 amendment to § 440.15(3)(b) would seriously imperil the constitutional validity of the workers’ compensation law. We are obliged to construe statutory pronouncements in such a manner as to effectuate their constitutionality. See Miami Dolphins Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). We are also obliged to adopt the statutory construction which is most favorable to the employee. See Kerce v. Coca-Cola—Foods Division, 389 So.2d 1177 (Fla.1980). We therefore decline to adopt employer/carrier’s suggested construction of the 1983 amendment to § 440.15(3)(b)2. We construe the amendment, instead, as precluding an award of wage loss benefits when predicated solely on economic considerations unrelated to a claimant’s physical limitations by ordinary proximate cause standards. We further read the amendment as emphasizing the requirement that claimant shall present evidence indicating that the compensable physical limitation is a contributing causative factor in the wage loss claimed.

Claimant’s initial burden under the amended language, therefore, is to present evidence, by job search when appropriate, which reasonably permits a conclusion that the compensable physical limitation was an element in the causal chain resulting in or contributing to the wage loss. The statute does not impose (and we do not consider the effect of such an attempt) any burden on claimant to show that the compensable impairment was the sole cause of wage loss, and we find no merit in appellant’s argument that “it was incumbent on the claimant to produce live (sic) testimony to the effect that he was not hired as a result of his compensable injury.” Nothing in the amendment requires such direct testimonial evidence, its terms relating instead to what shall be proven and not the method of proof. The cause of incapacity to earn may therefore, as in any other case, be shown by direct or circumstantial evidence, and we adhere to the conclusion in Regency, 422 So.2d 879, and note 9, that wage loss entitlement under the statute does not hinge on direct or affirmative proof of after-injury economic conditions. An unavailing work search, sufficiently extensive and intensive, by a permanently impaired worker such as the claimant in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation.

In affirming the deputy’s conclusion that the claimant in the present case met the burden which § 440.15(3)(b)2, as amended, imposes, we find that consideration was properly given to the fact that claimant’s industrial injury displaced him from his employment; that the employer refused to rehire claimant; and that claimant in good faith performed an extensive, but entirely unsuccessful, job search during which prospective employers were generally aware of claimant’s physical condition. In this case, in addition, it has not been shown that claimant limited his income or declined appropriate employment.

In determining that claimant has met his initial burden of establishing that the claimed wage loss was causally related to his industrial injury and physical limitation, we are compelled to reiterate the observation of the en banc court in Regency Inn:

... it lies within the power of the participants in the workers’ compensation system itself to avoid wage loss claims which might be considered unwarranted or excessive by concentrating their efforts on rehabilitation and reemployment of injured workers, rather than by aiming for technical interpretations by which it is hoped to defeat or diminish the recovery of benefits by the injured employee. [fn. omitted]

The order appealed is affirmed.

ZEHMER and BARFIELD, JJ., concur.

      . Claimant testified that he also checked the help-wanted ads in the newspaper, queried friends regarding work, made telephone contacts, and sought work through the State Employment Office.

      . The deputy found that:
      The claimant testified at the hearing that he had not been told by employers during this period of wage loss benefits claimed as to why he was not hired. I find that the statutory requirement of causal connection was met even assuming that the claimant did not prove directly that jobs were available which he could not get because of physical limitations. I specifically find that the employer would not rehire the claimant.

      . Unlike the amendment in Peck v. Palm Beach County, 442 So.2d 1050 (Fla. 1st DCA 1983), in the present case the new provision is not limited to injuries from accidents occurring after a specific date, but rather takes effect upon becoming law. See Chapter 83-305, § 21, Laws of Florida 1983.

      . We do not consider the further issue, not argued by the parties, as to whether the amendment should not apply because periods of claimed wage loss in this case occurred prior to the enactment’s effective date.

      . The original panel opinion in Regency Inn contrasted the statutory language of § 440.-15(3)(b)2, as then enacted, with that of § 440.-15(l)(b), regarding causal relation, suggesting that the legislature is capable of imposing particular standards where such are intended. The en banc opinion in Regency Inn noted the "qualifications and limitations” expressed in § 440.-15(3)(b)2, and declined to find that further standards were implied.

      . Cf., Camp & Sons v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984), for an analogous construction of the permanent total disability entitlement standards. To the extent that either opinion in Regency implicitly approved wage loss based solely on accident-related economic dislocation, unaffected by residual impairment, i.e., but for the accident claimant would not have been unemployed' — the opinion must of course be read in light of the amendment. The claim in the present case does not rest on that basis, and we need not consider the effect of proof, by whatever means, that a particular permanent impairment has no effect on a claimant’s competitive market position.

      . As Regency Inn indicates, at footnote 7:
      ... the duration and amount of wage loss claimed of any injured employee will vary in direct proportion to the extent to which employers and carriers realistically accept the obligation to rehabilitate, if necessary, and to otherwise aid in the reemployment of the injured worker....


text:
    H.S. CAMP & SONS and American Mutual Insurance Co., Appellants, v. Bryce C. FLYNN, Appellee.
    No. AV-73.
    District Court of Appeal of Florida, First District.
    May 11, 1984.
    Rehearing Denied June 11, 1984.

      James M. Hess, of Driscoll, Langston & Kane, Orlando, for appellants.'
    Daniel L. Hightower, of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lee.
   WENTWORTH, Judge.

The employer/carrier in this case appeal an order of August 19, 1983, awarding permanent total disability compensation benefits two years after claimant’s maximum medical improvement from a crush injury and ensuing infections of his dominant right hand in a meat grinding machine accident. Temporary total disability was paid for a year during which surgery was performed six times on claimant’s hand, and wage loss was paid thereafter through February 1983. Issues on appeal are (1) sufficiency of proof of total disability “due to physical limitation” under § 440.15(l)(b), Florida Statutes; (2) voluntary limitation of income by refusing offered employment; and (3) duty of the deputy, before adjudicating permanent total disability, to determine whether claimant may be rehabilitated to suitable gainful employment. We affirm based upon discussion below on the first point. As to issues two and three we conclude that the order meets the essential statutory requirements and is based on an adequate record predicate as to (1) unsuitability of the particular commission sales job offer and (2) lack of any evidence that the rehabilitative services provided in this case could produce results sufficient to defer the permanent total disability determination.

Appellant’s contention with respect to proof of permanent total disability appears to be that the following statutory language precludes permanent total disability compensation in any case in which the medical evidence is that claimant is capable of light work:

440.15 ... (1) Permanent total disability. — ... (b) ... shall be determined in accordance with the facts_no compensation shall be payable ... if the employee ... is physically capable of engaging in, gainful employment; and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation, (e.s.)

Appellant relies on recent decisions reversing permanent total disability awards for lack of competent substantial evidence of physical limitation. Arnold Lumber Co. v. Randall, 438 So.2d 433 (Fla. 1st DCA 1983); Hillsborough County Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983); Ronald Allen Trucking Co. v. Helton, 449 So.2d 874 (Fla. 1st DCA 1984). In those cases, however, the court did not (as appellant contends) hold that incapacity for light work may be established only by medical evidence of physical limitation totally precluding light work. Neither did the recited facts and issues presented in those cases require a decision on the question now before us, i.e., the relevance of a lengthy and exhaustive job search, completely unsuccessful throughout the three years since injury in spite of services from three vocational rehabilitation or placement experts. That factor was in our opinion properly considered by the deputy in the context of the case before him, under circumstances permitting a conclusion that continued search is futile until changed conditions can be shown, a remedy which of course remains available following determination of permanent total disability.

We recognize, of course, that the medical evidence in the present case shows less than total physical incapacity and that the doctor opined a capacity for light work, but we do not find that to be conclusive because we do not read the terms of the statute to limit permanent total disability compensation to those claimants whose doctors impose medical restrictions against “light work.” Such a construction would collide with the basic long-standing statutory definition of disability: an incapacity to earn to which a compensable injury contributes. It would also collide with the terms of the 1979 amended provision for permanent total disability above quoted, which restricts such compensation when claimant is “physically capable of ... gainful employment.” (e.s.) The amended language does clearly emphasize the requirement that such disability shall be causally related not only to the compensable accident and injury but also to the resulting physical limitation. We conclude against reversal of the deputy’s apparent conclusion on this factual issue.

The parties argue, tangentially, the applicability of the ruling and rationale of the en bane opinion in Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982). There is, in the present case, no need to debate the pertinence of the Regency economic dislocation argument to proof of permanent total disability since the nature of claimant’s impairment and work history in this case is such that he clearly does not depend solely on accident-related job interruption to show a causal relationship between his substantial physical impairment and his total incapacity for gainful employment.

Affirmed.

ZEHMER and BARFIELD, JJ., concur.

      . The order found in material part:
      7. After his [medical] release ... the claimant returned to work for the employer for 18 days, after which he was fired permanently because of the effect of his hand injury on his job performance.
      8. Since the claimant reached maximum medical improvement in November of 1981, the employer and carrier have paid three vocational rehabilitation experts to evaluate the claimant and assist him in returning to the job market. At the suggestion of one or more of the vocational rehabilitation experts, the claimant has been concentrating his search mainly in the area of sales, although he has looked for jobs in other areas. From the testimony of the claimant and the log of job search forms and employer contact forms in evidence, the claimant has made approximately 300 initial contacts of employers in an effort to find work since October of 1981 and many return calls and return visits to the same employers. During that search, none of these employers have offered the claimant a job with the exception of a vacuum cleaner sales company and a funeral home business. In each of these jobs the claimant would work on a straight commission basis with no salary or guarantee and would be required to canvass a given area by vehicle and conduct door to door sales. The claimant declined to take either of these jobs because he cannot afford reliable transportation, the carrier has refused the claimant’s request for help in securing reliable transportation and the claimant feels the chances of being successful in door to door sales today are reduced because of the reluctance of people to invite strangers into their home. I agree.
      9. The Claimant has conducted a good faith job search.
      10. With the exception of the 18 days of employment with the employer post accident, the claimant has not worked anywhere for money or held any job since the date of the accident.
      11. That the claimant was examined by Dr. Alexander T. Carducci pursuant to an Order of the undersigned dated April 15, 1983, he rendered his report but could not assist the claimant in further freeing the hand from strictures. Because of the hand, Dr. Carducci rated the claimant with a 22% permanent partial disability to the body as a whole. His report was considered in arriving at this Order.
      12. I find the claimant is permanently and totally disabled.

      . Section 440.02(9), Florida Statutes.

      . Other statutory changes contemporaneous with the permanent total disability language, supra, have removed from § 440.25(3)(c) the former mandate (originally imposed by Walker v. Electronic Products, 248 So.2d 161 (Fla.1971)) for findings on specific factors affecting capacity for gainful employment. The order in this case, however, appears to be properly based on consideration of those factors in the case of the 54 year old claimant.

      . The amendment apparently has no necessary impact on the doctrine, stated in Regency and other opinions, by which good faith work search, unsuccessful for unknown reasons, may in the absence of better proof support an inference of causal contribution from a compensable permanent impairment which claimant properly discloses to prospective employers.
      The panel opinion in Regency contrasted the former wage loss criteria with the permanent total disability standard to indicate support for a conclusion that the former wage loss language compelled only a causal relation with the accident or injury (economic dislocation alone) and not with the residual permanent impairment. The Regency ruling for claimant could accordingly, under the former statute, rest on proof limited to unemployment triggered by the accident, while permanent total disability required proof of a causal chain in which impairment was a material factor. The latter standard would appear, under the amended language, to be applicable now to wage loss (cf., City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984) ) and to that extent the Regency opinion should be read in light of the new language.


text:
    FRANKLIN AMBULANCE SERVICE, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AU-491.
    District Court of Appeal of Florida, First District.
    May 11, 1984.

      Van P. Russell of Watkins & Russell, Apalachicola, for appellant.
    Steven W. Huss, Asst. Gen. Counsel, Belle Glade, for appellee.
   MILLS, Judge.

Franklin Ambulance Service, Inc. (Service) appeals from a final order of the Department of Health and Rehabilitative Services (HRS) revoking the Service’s ambulance service license. We affirm.

HRS alleged the Service was guilty of numerous statutory and administrative rule violations. Following an administrative hearing, the hearing officer issued a Recommended Order recommending the Service’s license not be renewed, but without prejudice to the filing of a new license application after 90 days. The hearing officer concluded the service: 1) failed to maintain continuous telephone access by the public in violation of Florida Administrative Code Rule 10D-66.55(2)(c), and former Florida Administrative Code Rule 10D-66.32(l)(b); 2) failed to have a certified emergency medical technician attending the patient in violation of Florida Administrative Code Rule 10D-66.49(2)(d), and former Florida Administrative Code Rule 10D-66.32(4)(b); and 3) kept false records in violation of Florida Administrative Code Rule 10D-66.60(2), and the implicit requirement of former Florida Administrative Code Rule 10D-66.33(2). HRS issued a final order adopting the hearing officer’s findings of fact and conclusions of law.

The Service admits that on occasion it transported patients in an ambulance with a certified emergency medical technician (EMT) driving the ambulance and the regular ambulance driver, a non-EMT, in the back of the ambulance with the patient. Yet the Service contends the administrative rule that a certified EMT attend patients being transported in ambulances does not preclude the attending EMT from also driving the ambulance. The hearing officer found, and HRS agrees, that “failure to have a certified emergency medical technician ... free to attend the patient (rather than driving the vehicle) constitutes a violation....”

An administrative interpretation of an agency’s own rule is entitled to great weight. State, Dept. of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). In addition, HRS’ interpretation comports with the plain meaning of the rule. There is competent substantial evidence that the Service, on several occasions, failed to have a certified EMT attending the patient.

The findings that the Service failed to maintain continuous telephone access by the public and kept false records are also supported by competent substantial evidence.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Diana MOSER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and Pan American World Airways, Inc., Appellees.
    No. AX-332.
    District Court of Appeal of Florida, First District.
    May 15, 1984.
    Lynn T. Winston, Legal Services of North Florida, Inc., Tallahassee, for appellant.
    Geri Atkinson-Hazelton, Gen. Counsel, Tallahassee, Unemployment Appeals Com’n, for appellees.
   PER CURIAM.

The Unemployment Appeals Commission notified this court that the tape recording of the hearing held below, from which the transcript was to be made, was inadvertently erased. The parties were unable to produce a statement of the evidence pursuant to Rule 9.200(b)(3), Fla.R.App.P., and therefore request that the cause be remanded for a de novo hearing.

Due to the above stated circumstances, the final order is vacated and the cause remanded for a hearing de novo. See Parrish v. Parrish, 389 So.2d 8 (Fla. 3d DCA 1980); Vernell v. Edge, Inc., 389 So.2d 327 (Fla. 5th DCA 1980); Jackson v. State, 308 So.2d 600 (Fla. 3rd DCA 1975).

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.


text:
    Gerald GOODWIN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-170.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 15, 1984.
    Bennett H. Brummer, Public Defender, Entin, Schwartz, Dion & Sclafani and Spencer D. Levine, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

The state concedes that the search which emanated from the same warrant as was determined to be defective in Blue v. State, 441 So.2d 165 (Fla. 3d DCA 1983) was illegal. Nonetheless, the state now argues for the first time that the defendant Goodwin did not have a reasonable expectation of privacy in the nursery and therefore has no standing to challenge the illegal search. Accordingly, following Morales v. State, 407 So.2d 321, 326 (Fla. 3d DCA 1981) and State v. Doyle, 409 So.2d 1168 (Fla. 3d DCA 1982), we remand to the trial court to afford the defendant the opportunity to establish that the unlawful search invaded his reasonable expectation of privacy.

Reversed and remanded.


author: SCHWARTZ, Chief Judge.

text:
    Esther Iglesias ARANGO, Appellant, v. Franz Alexander ARANGO, Appellee.
    No. 83-427.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    As Amended on Denial of Rehearing June 15, 1984.
    Miguel A. Pirez-Fabar, Coral Gables, for appellant.
    Franz Alexander Arango, in pro. per.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

After lengthy post-judgment enforcement proceedings the ex-wife applied for an award of attorney’s fees in her favor. Upon hearing, the trial court entered the following order:

1. Upon the evidence and testimony presented and review of the file and the relative financial status of the parties, this Court determines that the attorney for the Petitioner is entitled to fair and reasonable attorney’s fees in the sum of $8,000.00.
2. However in view of the Respondent’s standing as a new graduated attorney at law and as a professional courtesy, the Court hereby reduces said amount to the sum of $2,500.00 for which let judgment issue.

It is self-evident that neither the ex-husband’s position as a recent law school graduate nor “professional courtesy” is, to put it mildly, an appropriate ground upon which to base an exercise of judicial power or discretion in determining the amount of fees to which the appellant is entitled and for which the appellee is liable. See Friedly v. Friedly, 303 So.2d 50 (Fla. 2d DCA 1974). As Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), reminds us:

The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness. In this regard, we note the cautionary words of Justice Cardozo concerning the discretionary power of judges:
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.
B. Cardozo, The Nature of the Judicial Process 141 (1921).

Id, at 382 So.2d 1203.

Accordingly, we reverse the $5,500 reduction provided in the order below and remand for entry of an $8,000 judgment against the appellee.

Reversed in part, remanded.

      . We reject the husband’s submission that the cause should be remanded for a determination of his ability to pay. The order affirmatively shows that the trial judge has already considered that factor in concluding that $8,000 is a reasonable award.


text:
    Ben D. WILDER, d/b/a Southland, Appellant/Cross-Appellee, v. Long Phan PHAM and Tu Nguy Pham, his wife, Appellees/Cross-Appellants.
    No. 83-1289.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 11, 1984.
    David H. Nevel and Debra L. Cholodof-sky, Miami Beach, for appellant/cross-ap-pellee.
    Tralins & Potash and Bruce Freedman, North Miami, for appellees/cross-appel-lants.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.

       Judge Barkdull did not hear oral argument.

   JORGENSON, Judge.

Wilder appeals that portion of the trial court’s order which granted a new trial in Wilder’s successful action to enforce a real estate brokerage contract. The Phams cross-appeal that portion of the order which denied their motion for a directed verdict. We reverse the former ruling and affirm the latter.

The Phams entered into a six-month exclusive-right-of-sale contract with Wilder whereby the Phams agreed to pay Wilder six per cent of the agreed purchase price if Wilder produced a buyer “ready, willing and able to buy on these terms or on any other terms acceptable to” the Phams. Wilder presented the Phams a contract signed by prospective buyers. The Phams made certain alterations to the contract and Wilder presented the altered contract to the prospective buyers’ real estate broker. There was, of course, conflicting evidence as to whether the prospective buyers accepted the changes.

Wilder and the jury say they did; the Phams and the trial judge say they did not. Given the supreme court’s holding in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), the record before us and the trial court’s failure to state in other than broad terms its reasons for granting a new trial, we must side with the jury. See St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983); Adams v. Wright, 403 So.2d 391 (Fla.1981); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Taylor v. Ganas, 443 So.2d 251 (Fla. 1st DCA 1983); H & U Foods, Inc. v. Ellison, 439 So.2d 923 (Fla. 4th DCA 1983); Cirou v. Basler, 432 So.2d 628 (Fla. 3d DCA 1983); Florida East Coast Railway v. Walker, 429 So.2d 1327 (Fla. 5th DCA), review denied mem., 440 So.2d 353 (Fla.1983).

Affirmed in part; reversed in part.

      .In granting the new trial the trial court made the following "findings of fact”:
      1. The Plaintiff failed to establish a prima facie case for the recovery of a brokerage commission in that he failed to produce evidence at trial to establish that the prospective purchasers were ready, willing and able to purchase the subject parcel of realty for the price and upon terms acceptable to the seller pursuant to the brokerage contract between Plaintiff and Defendants.
      2. The jury’s verdict was contrary to the manifest weight of the evidence produced at trial based upon the insufficiency of the evidence to support the verdict for the Plaintiff as reflected in paragraph 1 hereto and it is apparent that the jury was influenced by considerations outside the record in arriving at the verdict.
      3.The subject verdict, based upon the evidence presented at trial, shocked the conscience of the Court as a result of the inadequacy of the evidence submitted by the Plaintiff.