author: ERVIN, Chief Judge.

text:
    DADE COUNTY CONSUMER ADVOCATE’S OFFICE, Appellant, v. DEPARTMENT OF INSURANCE and Bill Gunter, in his official capacity as Insurance Commissioner, Appellees.
    No. AV-400.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Rehearing Denied Oct. 24, 1984.

      William B. Schultz and Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., and Mary Charlotte McCall, Tallahassee, for appellant.
    Curtis A. Billingsley, Dept, of Insurance, Tallahassee, for appellees.
    James N. McConnaughhay and Arthur C. Beal, Jr. of McConnaughhay, Roland & Maida, Tallahassee, for amicus curiae Florida Ass’n of Ins. Agents.
    J. Robert McClure, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for amicus curiae Florida Ass’n of Life Underwriters.
    W.O. Birchfield and Dennis E. Hayes of Martin, Ade, Birchfield & Johnson, Jacksonville, for amicus curiae American Council of Life Ins., Inc.
   ERVIN, Chief Judge.

Appellants, Dade County Consumer Advocate’s Office and Walter Dartland, challenge the constitutionality of Sections 626.-611(11) and 626.9541(l)(h)l, Florida Statutes (1983), which prohibit insurance agents from negotiating with clients as to the amount of their commission, or offering to rebate a portion thereof to the clients, alleging that they violate the due process clause, Article 1, Section 9, of the Florida Constitution. The trial court upheld the statutes as legitimate exercises of the state police power. We disagree and reverse.

The applicable standard of review is whether the challenged anti-rebate statutes reasonably and substantially promote the public health, safety or welfare as required by the due process clause of the Florida Constitution. Liquor Store, Inc. v. Continental Distilling Corp., 40 So.2d 371 (Fla.1949); 10 Fla.Jur.2d Constitutional Law §§ 211, 214 (1979 & Supp.1983). To sustain the validity of this exercise of police power there must be shown some rational relation to a legitimate state interest seeking to protect the public. We are unable to find any legitimate state interest justifying the continued existence of the anti-rebate statutes.

The Department of Insurance (department) and amici curiae argue that the statutory ban against insurance commission rebates is rationally related to the state interest by guaranteeing insurer solvency and the prevention of discrimination among insureds in the same actuarial class. They argue further that regulation of rebate practices, a control which is not imposed upon any other profession or occupation, is necessitated in the present case by the unique characteristics of the insurance industry, such as the present payment for a future benefit and agent educational qualifications at less than high school level, which mandate special protection in this field.

We find these arguments unpersuasive. We are unable to perceive any relation between an agent’s freedom to rebate a portion of the agent’s commission earned on sale of a policy and the future solvency of the policy carrier. Neither is it possible to discern discrimination in that the net premium paid to the insurer as the cost of the policy remains constant throughout an actuarial class regardless of variable commission rebates offered by agents to individual classmembers. The ability of the consumer within a given actuarial class to negotiate for a rebate, and thereby reduce the overall amount paid for insurance relative to another consumer in that class, does not constitute undesirable discrimination in a free market economy. Such price differences have historically been considered fair in every other segment of our economy.

Perhaps the department’s and amicis’ strongest argument is that the agent who is permitted to rebate will do so at the expense of his customers, in that they will not be provided with the quality of information regarding the best type of insurance suited to their needs because the agent, having negotiated his commission, will not spend the requisite time counseling his clients. Accordingly, the argument goes, the public must be protected from low-cost, low-quality service, and the statutes banning rebating therefore advance a legitimate public interest. We recognize that this argument is not without merit but we are not convinced that it validates the exercise of the police powers of the state. Indeed, the Supreme Court was faced with a similar argument in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), in support of a Virginia statute prohibiting druggists from advertising the prices of their drugs, which had urged the public needed to be protected from the evils of advertising because the low-cost, low-quality pharmacist would attract too many unwitting customers and thereby drive the professional druggist out of business, resulting in the destruction of the traditional pharmacist-customer relationship. The Court, however, rejected the argument, stating:

There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the “professional” pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U.S. 341, 87 L.Ed. 315, 63 S.Ct. 307 (1943). But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is.

425 U.S. at 770, 96 S.Ct. at 1829.

Similarly, we believe that the choice opted for by the Florida legislature does not come within the confines of the due process clause. The dangers of the misuse of information to the consumer by the unscrupulous or indifferent agent may exist, but the possibilities of such abuse cannot serve to suppress bargaining or information which might otherwise lead to an informed choice. Indeed, competitive forces at work in the marketplace should generally serve to protect consumers against unfairly discriminatory prices, provided that there is adequate disclosure available to make consumers aware of alternative sources and prices of insurance.

Likewise, we are unimpressed by cases cited by the department and amici in support of anti-rebate statutes. The preceden-tial value and persuasiveness of these cases are severely limited by the impact of the revolution in consumer’s rights which has occurred since the turn of the century. The paternalistic approach to a consumer’s ability to make reasonable decisions without government intervention as exemplified by these rulings has been rejected by modern courts.

In the absence of any apparent rational relation between the prohibition of rebates and some legitimate state purpose in safeguarding the public welfare, we conclude the anti-rebate statutes, sections 626.-611(11) and 626.9541(l)(h)l, constitute an unjustified exercise of the police power of this state, and are therefore violative of the due process clause, Article 1, Section 9, Florida Constitution.

We have considered appellees’ argument that the effect of an invalidation of the two statutory provisions would do more than simply permit an agent to contract with a customer over a rebate of his commission; that section 626.611(11), providing for disciplinary action for “rebating, or attempt thereat, or unlawfully dividing or offering to divide his commission with another”, includes both rebating an agent’s commission and dividing an agent’s commission with anyone. Appellees assert that if all of subsection (11) is invalidated, the following conduct would be authorized: An insurance agency owner could lawfully skim commissions from his agent’s sales; an insurer could demand a kick back from an agency for the right to sell its product; and an agent might split his commission with an employer for each policy the agent sells the employees. Appellees’ argument fails to recognize that certain kinds of sharing of or dividing commissions are declared unlawful elsewhere in chapter 626, specifically: section 626.753 (general lines agents and solicitors); section 626.794 (life insurance agents); and section 626.838 (health insurance agents). Those three statutory provisions — rather than section 626.611(11) —identify what is an unlawful division of an agent’s commission, and prohibit such a division. Disciplinary action for unlawful divisions is provided for in section 626.-753(4) and section 626.611(13). Therefore, our decision does not affect proscribed activity otherwise provided in the Florida Statutes.

Appellees similarly argue that the practical result of declaring section 626.-9541(l)(h)l unconstitutional would be far broader in scope than merely allowing an agent to discount a portion of his commission to an individual purchaser. For example, appellees first claim that if section 626.9541(l)(h)la is struck down, that agent’s misrepresentations would thereby be authorized. Appellees may have overlooked the fact that such misrepresentations are now prohibited in sections 626.-9541(l)(a), (b) and (e) and 626.611(5). Another effect of invalidating section 626.-9541(l)(h)l, appellees contend, is that an agent or insurer would be able to provide any valuable consideration or inducement not specified in the contract. We reply that since such consideration or inducement would not be available to all individuals of the same actuarially supportable class and risk, this type of activity falls under the unfair discrimination provision of the same statute and thus would be considered an unfair method of competition or deceptive act or practice. See Section 626.9541(l)(g). Although section 626.9541(l)(h)l may seem to cover a wide range of practices, its title is styled “Rebates” and simply applies to the variety of ways in which an agent may offer a rebate to a customer.

REVERSED.

BOOTH and WENTWORTH, JJ., concur.

      . § 626.611(11), Fla.Stat., states:
      Grounds for compulsory refusal, suspension or revocation of agent’s ... license....— The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent ..., and it shall suspend or revoke the eligibility to hold a license ... of any such person, if it finds that as to the applicant, licensee, or permittee any one of more of the following applicable grounds exist:
      ******
      (11) Rebating, or attempt thereat, or unlawfully dividing or offering to divide his commission with another.
      § 626.9451(l)(h)l, Fla.Stat., states:
      Unfair methods of competition and unfair or deceptive acts or practices defined.—
      (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS. — The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

      (h) Rebates.—
      1. Except as otherwise expressly provided by law, or in applicable filing with the department, knowingly:
      a. Permitting, or offering to make, or making, any contract or agreement to such contract other than as plainly expressed in the insurance contract issued thereon;
      b. Paying, allowing, or giving, or offering to pay, allow, or give, directly, or indirectly, as inducement to such insurance contract, any special favor or advantage in the dividends or other benefits thereon, or any valuable consideration of inducement whatever not specified in the contract;
      c. Giving, selling, or purchasing, or offering to give, sell, or purchase, as inducement to such insurance contract or in connection therewith, any stocks, bonds or other securities of any insurance company or other corporation, association, or partnership, or any dividends or profits accrued thereon, or anything of value whatsoever not specified in the insurance contract.

      . Amici Curiae Florida Association of Life Underwriters, Florida Association of Insurance Agents and American Council of Life Insurance, Inc. appeared on behalf of appellee.

      . Typically the consumer pays the company a single fee, the premium, from which the company pays its agent a commission, compensating him or her for the services rendered by the sale. The company in turn applies the money remaining toward its expenses, including its commitment to satisfy its contractual obligations to pay future claims. See Report of the U.S. Department of Justice to the Task Group on Antitrust Immunities 288-89 (1977) [Í/.S. Department of Justice Report].

      .There is, indeed, the contrary argument that protectionism in the form of anti-rebating statutes "has resulted in the prohibition against nonstandard insurance in some states, resistance to innovation in the risk assessment process, the imposition of a simplified classification system, and the establishment of various other mechanisms of ‘internal’ subsidization.” See U.S. Department of Justice Report at 290-91.

      . O’Gorman & Young, Inc. v. Hartford Fire Insurance Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324 (1931); Utah Association of Life Underwriters v. Mountain State Life Insurance Company, 58 Utah 579, 200 P. 673 (1921); Calvin Phillips & Co. v. Fishback, 84 Wash. 124, 146 P. 181 (1915); Leonard v. American Life & Annuity Co., 139 Ga. 274, 77 S.E. 41 (1913); People v. Hartford Life Insurance Company, 252 Ill. 398, 96 N.E. 1049 (1911); Rideout v. Mars, 99 Miss. 199, 54 So. 801 (1911); Metropolitan Life Insurance Company v. People, 209 Ill. 42, 70 N.E. 643 (111.1904); People v. Formosa, 131 N.Y. 478, 30 N.E. 492 (Ct.App.1892); Commonwealth v. Morningstar, 144 Pa. 103, 22 A. 867 (1891).

      . See, e.g., Virginia Pharmacy Board v. Virginia Consumer Council; Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Liquor Store, Inc. v. Continental Distilling Corporation, 40 So.2d 371 (Fla.1949); The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978); Stadnik v. Shell’s City, Inc., 140 So.2d 871 (Fla.1962).


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    Arthur R. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 83-930.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.
    Rehearing Denied Oct. 23, 1984.

      Richard G. Pippinger of Cohen & Pip-pinger, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

The jury convicted appellant Arthur R. Fleming of manslaughter of his estranged wife, Audra. We reverse and remand for a new trial on the basis of the evidentiary errors discussed below, which we believe compromised the fairness of the underlying proceedings.

The state charged Fleming with second degree murder and attempted to prove through circumstantial evidence that he killed his wife during a quarrel over issues raised in the couple’s pending divorce. Under the state’s theory, Audra utilized a romantic pretense to gain admission to her husband’s apartment, where she subsequently confronted him about various personal and financial aspects of their divorce. Under the defense’s theory of the case, however, an unknown intruder followed Audra into her husband’s apartment and later killed her while she and appellant were engaged in a romantic reconciliation.

Four of the state’s thirty-eight witnesses testified as to Audra Fleming’s state of mind immediately before her death, describing in detail her stated adversarial purpose in visiting her husband and her proposed strategy for gaining admission to his apartment. The state defends the introduction of this testimony as relevant to rebut the suggested reconciliatory motive behind Audra’s visit and as admissible under the state of mind exception to the hearsay rule. See § 90.803(3)(a), Fla.Stat. (1981). We disagree.

It is well settled that the state of mind exception codified in section 90.-803(3)(a) admits qualifying extrajudicial statements only if the declarant’s state of mind or performance of an intended act is at issue in the particular case. Bailey v. State, 419 So.2d 721, 722 (Fla. 1st DCA 1982); Kennedy v. State, 385 So.2d 1020, 1021-22 (Fla. 5th DCA 1980); Van Zant v. State, 372 So.2d 502, 504 (Fla. 1st DCA 1979). It is equally clear that a homicide victim’s state of mind prior to the fatal incident generally is neither at issue nor probative of any material issue raised in a murder prosecution. See Hunt v. State, 429 So.2d 811, 813 (Fla. 2d DCA 1983); cases cited, supra. Moreover, even if the victim’s state of mind is relevant under the particular facts of the case, the prejudice inherent in developing such evidence frequently outweighs the need for its introduction. See United States v. Brown, 490 F.2d 758, 762-67 (D.C.Cir.1973).

While exceptions exist to this general rule of inadmissibility, such as where the victim’s state of mind is both relevant and necessary to rebut the defendant’s claim of self-defense or his assertion that the decedent committed suicide or suffered an accidental death while toying with the murder weapon, see Kennedy, 385 So.2d at 1021 (quoting Brown, 490 F.2d at 767), none of these exceptions applies in the instant case. Conversely, under the circumstances presented, we must conclude that Audra Fleming’s state of mind constituted a collateral concern which was of little consequence in determining the identity of her killer. Even if we were to find Audra’s state of mind relevant to this controversy, we still would deem the challenged evidence inadmissible. Certainly the danger that the jury would misuse this evidence for the impermissible purpose of imputing a state of mind to appellant (specifically, rage resulting from a confrontation, and thus a motive for murder) outweighs the minimal importance of establishing the true purpose of Audra’s visit. As case law makes clear, evidence cannot be admitted under the state of mind exception to prove the state of mind or motive of someone other than the declarant. United States v. Brown, 490 F.2d at 771; Hunt, 429 So.2d at 813; Bailey, 419 So.2d at 722; Van Zant, 372 So.2d at 504. Accordingly, we believe that the trial court erred in admitting the challenged testimony of these four witnesses.

We also believe that the trial court erred in excluding evidence proffered by appellant to impeach the credibility of George Benti, a state witness. Benti, a security guard at the apartment complex where appellant resided, testified on direct examination that he responded to appellant’s emergency call, examined the crime scene, and questioned appellant concerning the incident. According to Benti’s direct testimony, appellant provided two divergent responses to the guard’s question concerning whether appellant had relocked the front door after Audra's entry. Fleming initially informed Benti, “Yes, I relocked the door.” When the guard repeated his question after finding no sign of forced entry, Fleming purportedly responded, “I believe I locked the door. I usually lock the door.”

On cross-examination, defense counsel established that Benti had given a sworn, tape recorded statement to Sheriff’s Deputy Rodney Shoap on the night of the homicide. A written transcript of Benti’s statement to Shoap reflected that Benti had advised the officer that Fleming provided only a single response when questioned as to whether the front door had been relocked. Although its accuracy was vigorously contested, the written transcript indicated that Benti represented Fleming’s sole response to have been, “No, I relocked the door.” In continued cross-examination, however, defense counsel suggested that a correct transcript of Benti’s statement to Shoap would reflect that the guard reported Fleming’s single answer to have been, “I usually lock the door,” a statement consistent with Benti’s other sworn, pretrial statements concerning Fleming’s answer. Benti admitted that in preparing for his testimony at the trial he had reviewed the transcript but had not listened to the tape. When confronted with the apparent inconsistency, Benti was unable to recall his actual statement to Deputy Shoap. He conceded, however, that his statement to Shoap would be the most accurate account of Arthur Fleming’s purported response on the night in question.

Defense counsel later sought to introduce the actual tape recording of Benti’s statement to Shoap in order to show that Benti had told Shoap that Fleming only stated that he thought he locked the door because he usually did so. The state opposed the introduction of the tape on the grounds that it was hearsay and improper impeachment, and the court rejected the proffered evidence. We believe that this ruling also constituted error.

Section 90.614(2), Florida Statutes (1981), provides that extrinsic evidence of a witness’ prior inconsistent statement is admissible for purposes of impeachment when a witness, having been directed to his prior statement and offered an opportunity to explain or deny it, “denies making or does not distinctly admit that he has made the prior inconsistent statement.” In this case, there is no dispute that defense counsel’s cross-examination of Benti, and Ben-ti’s inability to recall his specific statement to Deputy Shoap, laid the necessary foundation for the subsequent introduction of extrinsic evidence establishing that statement. The state defends the exclusion of the proffered evidence, however, on the grounds that Benti’s statement to Shoap was not inconsistent with his trial testimony. Conversely, the state asserts that the slight variance between the proffered statement and Benti’s trial testimony was essentially immaterial, thus making the two statements cumulative in nature. We cannot agree.

As counsel for appellant points out, Benti’s direct testimony suggested that Fleming claimed to have relocked the front door after Audra’s entry — an assertion which tended to undermine his intruder defense — but then changed his statement when he recognized the logical conflict between his response and his asserted defense. On the other hand, Benti’s proffered statement to Shoap attributed a single response to Fleming and consequently suggested no inference of calculated equivocation. In this respect, Benti’s statements would be inconsistent on a point which cannot be considered immaterial. We believe that appellant, a defendant on trial for second degree murder in a ease based entirely on circumstantial evidence, should have been permitted to establish this inconsistency for any impeachment value which the disclosure might have possessed. Accordingly, we hold that the trial court erred in excluding extrinsic evidence proffered by appellant to establish Benti’s prior inconsistent statement.

On the basis of the foregoing errors, we REVERSE appellant’s judgment and sentence and REMAND for a new trial.

GRIMES and LEHAN, JJ., concur..

      . The record reflects that defense counsel sought introduction of the proffered evidence solely for the purpose of impeaching Benti’s trial testimony by demonstrating its conflict with the witness’ previous statements. Because the proffered testimony was not offered to prove the truth of the matter asserted, it was not inadmissible hearsay. See Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); § 90.801(l)(c), Fla.Stat. (1981).


author: WIGGINTON, Judge. SHIVERS, Judge, WIGGINTON, Judge. SHIVERS, Judge,

text:
    James Henry DORMAN, Appellant, v. STATE of Florida, Appellee.
    No. AV-409.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    Rehearing Denied Oct. 16, 1984.
    Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender, and Brenda Neel, Student Asst., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Dorman appeals his seven-year sentence, arguing the judge erred in departing from the recommended sentence under the sentencing guidelines as set forth in rules 3.701 and 3.988, Florida Rules of Criminal Procedure. We affirm.

Dorman was originally charged by information with two counts of lewd, lascivious and indecent assault upon two female children under the age of fourteen, in violation of section 800.04, Florida Statutes. The information was subsequently consolidated with an indictment charging Dorman with two counts of sexual battery on the same children, in violation of section 794.011, Florida Statutes. Dorman accepted a negotiated plea and plead nolo contendere to one charge of lewd and lascivious assault.

Dorman elected to be sentenced under the sentencing guidelines, and was sentenced on October 17, 1983. Although the recommended sentence under the guidelines was “any nonstate prison sanction,” the judge departed from that recommendation and sentenced Dorman to a term of seven years. The judge’s reason for his departure was his belief that Dorman was in need of in-patient treatment as provided under chapter 917, Florida Statutes, for mentally disordered sex offenders (MDSO). The judge noted in his statement of “Reasons For Exceeding Recommended Sentencing Guidelines,” that for Dorman to be eligible for the MDSO program he must first be committed to the Department of Corrections. It was the judge’s opinion, from previous experience with the department, that the MDSO program is effective only if the offender is able to receive long-term residential care. The judge concluded:

Following the “Sentencing Guidelines” in this cause would require that we wait for the defendant to assault another minor child before meaningful sanctions could be applied. Justice and common sense demand otherwise.

On appeal, Dorman argues that the judge’s reasons for his departing from the guidelines in sentencing Dorman are invalid, and that his departure was clearly excessive. We disagree.

Generally, all sentences must conform to the applicable guideline range “unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence.” Fla.R.Crim.P. 3.701d.ll. The committee note to rule 3.701d.ll. in existence at the time of sentencing, suggested that sentences under provisions of the Mentally Disordered Sex Offender Act (ch. 917) “need not conform to the guidelines.” See Committee Note (d)(ll), In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 852 (Fla.1983). However, Dorman argues that the committee note erroneously assumes that the sentencing court has the power to order a defendant be placed in the MDSO program. Citing to Florida Department of Health and Rehabilitative Services v. Gross, 421 So.2d 44 (Fla. 3d DCA 1982), Dorman contends that the court can only recommend that the Department of Corrections afford a defendant this treatment.

Although we do not disagree with Dor-man’s interpretation of Gross and chapter 917, we point out that the judge indeed only “recommended” that Dorman be placed in the MDSO program. However, we also recognize that Committee Note (d)(ll) clearly authorized the judge to consider Dorman’s need for such program as a reason for not conforming Dorman’s sentence to the guidelines.

Recently, the supreme court approved certain recommendations for changes in the sentencing guidelines submitted by the Sentencing Guidelines Commission, with the concomitant modification of rules 3.701 and 3.988. Among the changes approved was the deletion of Committee Note (d)(11). See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824 (Fla.1984). The court noted the reason for that particular deletion as follows:

The Committee Note to 3.701(d)(ll), which discusses statutory alternatives, has been completely eliminated. While these statutory alternatives [e.g. ch. 917 (Mentally Disordered Sex Offender Act) ] are acknowledged, the sentencing court is required to explain the guideline departure when an alternative program is used.

However, that amendment, effective July 1, 1984, has no retroactive effect. See McGrath v. State, 454 So.2d 694 (Fla. 1st DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Accordingly, the trial court properly complied with the guidelines.

Moreover, we do not consider the seven-year sentence to be clearly excessive. Dorman was convicted of a violation of section 800.04, which carries with it a maximum penalty of fifteen years incarceration under section 775.082(3)(c), Florida Statutes.

AFFIRMED.

MILLS, J., concurs.

SHIVERS, J., dissents, with written opinion.

SHIVERS, Judge,

dissenting:

I respectfully dissent, primarily, for the reason given in my dissent in State v. Sweat, 454 So.2d 749 (Fla. 1st DCA 1984).

For further reason, I do not see how a defendant whose sentence under the Sentencing Guidelines would not exceed a non-state prison sanction (and who is, therefore, not eligible for the Mentally Disordered Sex Offender Program) can be given a prison term outside the Guidelines for the purpose of making him eligible for that program. Nor do I see how such prison sentence would then be a sentence under the Guidelines.

ON MOTION FOR REHEARING

WIGGINTON, Judge.

We deny appellant’s Motion for Rehearing but clarify our original opinion as there appears to be some confusion as to appellant’s present status. In our opinion we held the trial court did not err in sentencing Dorman to seven years incarceration in the Department of Corrections, and in recommending that Dorman be considered as a candidate for treatment as a mentally disordered sex offender. Once an offender is determined to be such a candidate, rule 3.701 is not applicable. See Sweat v. State, 454 So.2d 749 (Fla. 1st DCA 1984); and cf. McGrath v. State, 454 So.2d 694 (Fla. 1st DCA 1984). Consequently, appellant will be eligible for parole consideration.

MILLS, J., concurs.

SHIVERS, J., dissents with written opinion.

SHIVERS, Judge,

dissenting:

I respectfully dissent for the reasons earlier stated.

      . As Dorman’s offenses were committed by him prior to October 1, 1983, the effective date of the guidelines, but as he was to be sentenced subsequent to that date, Dorman had the option of "affirmatively” selecting to be sentenced under the guidelines. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

      . Although we have in the past expressed some doubt as to whether the supreme court adopted the committee notes when it originally adopted rules 3.701 and 3.988, see Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984), we have no doubt now that they were adopted, in light of the supreme court’s recent decision adopting the revised version of the rules, wherein it holds, “As with our original adoption of sentencing guidelines ... the Committee Notes adopted herein are part of these rules.” (emphasis added). The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984).

      . Dorman would argue that the judge had several reasons for departing from the guidelines, all of which are invalid. However, we find those purported reasons to be in actuality only one, that is, the judge’s desire to commit Dorman to the department in order that he be eligible for the MDSO program. Consequently, since we now hold that reason to be valid, we need not address further, Dorman's argument.


author: PURDY, H. MARK, Associate Judge.

text:
    Joseph Paul LANCASTER, Appellant, v. STATE of Florida, Appellee.
    No. 83-706.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Rehearing Denied Nov. 17, 1984.
    Paul Mendelson of Miller & Miller, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PURDY, H. MARK, Associate Judge.

Appellant brings this appeal from a criminal conviction and sentence on arson charges. We reverse and remand for a new trial with instructions.

Factually, this case involves the burning of a truck of which appellant had custody. The Indian River County Sheriff’s Department responded to a call and found a truck burning beside a roadway within their jurisdiction. The appellant advised the investigating deputies that he had been driving the vehicle when he noticed a spark and then a blaze coming from under the dashboard area. Appellant further advised that he had recently done some wiring work on the CB radio in that same area of the dash. The truck was towed to a garage, but within a very short period of time, the authorities began to doubt appellant’s version of how the fire started. Fire investigators were summoned and they conducted a physical examination of the truck.

In the meantime, the owner of the truck contacted the Sheriff’s Department, requesting that the truck be released to him in order that he might salvage it. A lieutenant and a sergeant discussed the matter and authorized the release of the vehicle. The lieutenant, a lead fire investigator who had examined the truck, felt that the truck no longer had evidentiary value to the state. He later testified that another investigator might differ with his opinion that the fire was not accidental. The sergeant justified the release based upon the owner’s request and the fact that the state’s investigation and examination were complete. The sergeant testified that he did not know whether the truck was of evidentiary value to the defendant. Both the lieutenant and the sergeant admitted that the truck could have been held for evidence until the time of trial. In any event, the truck was in fact released to the owner, who proceeded to materially change its condition by having salvage work done on it.

The day after the release, an arrest warrant was issued for the appellant. A motion to dismiss the charges was filed alleging due process violations. After an evi-dentiary hearing, the motion was denied and eventually the case was tried before a jury. Two fire investigators who had examined the truck before its release testified against appellant, who was convicted of second degree arson.

We have examined the body of law which has developed as a result of the state’s failure to preserve and produce discoverable evidence. These eases range from deliberate concealment of evidence known to be exculpatory to relatively minor incidents in which the mere exercise of poor judgment resulted in loss of evidence of no value. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Sobel, 363 So.2d 324 (Fla.1978). This problem takes on particular significance when the lost evidence requires scientific analysis or expert testimony. In such cases, the courts have often reversed based upon due process and other considerations. For example, in State v. Ritter, 448 So.2d 512 (Fla. 5th DCA 1984), the defendant was charged with possession of cocaine, but the state negligently allowed the cocaine to leave its custody. In reversing, that court held as follows:

“It would be fundamentally unfair, as well as a violation of rule 3.220, to allow the state to negligently dispose of critical evidence and then offer an expert witness whose testimony cannot be refuted by the Defendant.” (448 So.2d 512, 514)

Earlier in Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), this court had reversed a drug conviction due to the fact that the state’s chemist unnecessarily destroyed the entire drug sample during testing. This court noted some lack of clarity in the law as to whether such circumstances violate a defendant’s right of confrontation, but went on to hold a due process violation exists when the state unnecessarily destroys the most critical inculpatory evidence and then is allowed to introduce essentially irrefutable testimony of the most damaging nature. In accord is this court’s decision in State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981) and the decision of the Third District in Johnson v. State, 249 So.2d 470 (Fla. 3rd DCA 1971).

In the case now before us, the State has urged that we should be guided by language contained in U.S. v. Agurs 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and quoted with favor by the Florida Supreme Court in State v. Sobel, supra. The state argues that the “mere possibility” that examination of the truck would have assisted Appellant should not result in reversal. We disagree and in so doing we note that Ritter, Stipp and Counce were all post-Agurs and post-Sobel, yet the results in those cases were unaffected by either the “mere possibility” standard for materiality or the “balancing approach” to prejudice. (See Sobel, 363 So.2d at 326-327.)

We therefore conclude that the appellant’s due process rights have been violated. Reversal, but not dismissal, is mandated under the facts of this case. The judgment and the sentence of the lower court are hereby vacated and this cause remanded for purposes of a new trial. At retrial, the state will be precluded from calling as witnesses the experts who physically examined the truck prior to its release. State v. Ritter, supra, and State v. Sobel, supra.

In light of this ruling, the other points on appeal will not be addressed.

DOWNEY, J„ and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


author: DANAHY, Judge.

text:
    Paul JOHNSON, Petitioner, v. The Honorable E. Randolph BENTLEY, Circuit Judge in the Tenth Judicial Circuit, in and for Polk County, State of Florida, and Bonnie Anita Petty and James Petty, her husband, Respondents.
    No. 84-738.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1984.
    Rehearing Denied Oct. 23, 1984.

      George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent E. Randolph Bentley.
    R. Kent Lilly of Frost, Purcell and Lilly, Bartow, for respondents Bonnie Petty and James Petty.
   DANAHY, Judge.

In a case of first impression in Florida, a newspaper photographer asks this court to quash a discovery order in a civil action requiring him, a nonparty, to produce unpublished photographs of an automobile accident. We grant his petition for certiorari and quash the order.

The petitioner describes himself as a professional photojournalist employed by the Lakeland Ledger, a newspaper of daily circulation in Polk County, Florida. The respondents Petty are the plaintiffs in this action to recover damages for injuries received in an automobile accident. The petitioner took pictures of that accident, some of which were published in the Ledger and some of which were not.

The respondents served a subpoena on the petitioner and his employer to require them to produce “copies of any and all photographs and proof sheets regarding the subject accident.” The petitioner filed a motion to quash the subpoena based on his First Amendment rights under the United States Constitution and Article I, sections 4 and 12, of the Florida Constitution, specifically relying on this court’s decision in Tribune Co. v. Green, 440 So.2d 484 (Fla. 2d DCA 1983). The trial judge denied the petitioner’s motion to quash, stating his view that Tribune Co. v. Green does not apply to this ease. We hold that the trial judge erred in so ruling.

In Tribune Co. v. Green this court adopted a three-part test announced in Gadsden County Times, Inc. v. Horne, 426 So.2d 1234 (Fla. 1st DCA 1983), and held that it applies to the compelled disclosure of nonconfidential as well as confidential matters involved in news-gathering. In Gadsden County, the First District Court of Appeal came to the conclusion that a qualified privilege based on the First Amendment protects against the compelled disclosure of a reporter’s confidential sources. The court went on to say that this qualified privilege must give way “where the competing constitutional issues of the plaintiff in pursuing his claim and in seeking a fair administration of justice evidence a compelling need for such disclosure.” Id. at 1240. Accordingly, the court adopted a three-part test: (1) Is the information relevant, (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information?

The respondents vigorously argue that the three-part test announced in Gadsden County Times, Inc. v. Horne and adopted by this court in Tribune Co. v. Green simply does not apply to unpublished photographs. No cases have been cited to us which address this question, and our research has revealed none. However, we do find authority for the proposition that unpublished photographs taken by a newspaper photographer stand on the same footing as any other information acquired by a news-gatherer. Grand Forks Herald v. District Court, 322 N.W.2d 850 (N.D.1982). In that case the court was applying the provision of North Dakota’s shield statute, rather than the principles of the First Amendment. However, it read into the statute requirements for disclosure which very closely resemble the three-part test we have previously adopted.

We hold that Tribune Co. v. Green applies in this case and that the trial judge erred in compelling disclosure without first determining whether the three-part test had been met. As the respondents point out, since the trial judge held that Tribune Co. v. Green did not apply, the respondents Petty have not been given an opportunity to demonstrate whether they can meet the test. Accordingly, we quash the order compelling discovery and remand with directions that the trial judge apply the three-part test, as adopted in Tribune Co. v. Green, and determine whether the respondents Petty have met their burden. Unless and until that burden is met, the trial judge may not compel discovery of the unpublished photographs.

The order compelling discovery is QUASHED and this case is REMANDED with directions.

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


author: DOWNEY, Judge.

text:
    FUN AND FROLIC, INC., d/b/a Hammer’s Package Store, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-1445.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1984.
    John R. Harrington of Harrington & Mattel, Fort Lauderdale, for appellant.

      Louisa E. Hargrett, Tallahassee, for ap-pellee.
   DOWNEY, Judge.

This is an appeal from a final order of the Division of Alcoholic Beverages and Tobacco revoking appellant’s alcoholic beverage license.

Pursuant to notice to show cause why-appellant’s beverage license should not be revoked, a formal hearing was scheduled for March 18, 1981. At the commencement of said hearing, counsel for appellant and the Division advised the hearing officer that they had reached an agreement regarding the charges and that a formal hearing was unnecessary. Counsel then stated on the record the terms of the settlement, which allowed appellant ninety days in which to sell the corporate entity. When the corporation was sold or the ninety-day period had expired, whichever occurred first, appellant was to surrender its beverage license to the Division for cancellation. Appellant waived his right to an evidentia-ry hearing and any appeal of the matters covered in the agreement. Finally, appellant agreed that no corporate officer, director or shareholder of appellant would ever again apply for or transfer an alcoholic beverage license, or engage in the alcoholic beverage business.

Although the pertinent agreement dictated at the hearing before the hearing officer was stated to be in the nature of a final administrative action, and failure to abide by said agreement would subject appellant to the provisions of section 120.69, Florida Statutes (1981), the Division prepared a proposed written agreement for appellant’s execution. Instead of signing said agreement, appellant returned a modified agreement which was unacceptable to the Division. In any event, the hearing officer closed the files on this case without any written order having been entered.

It would appear that the case then “fell through the cracks” as the saying goes. The ninety days came and went, but appellant failed to surrender the license or sell the corporation. In fact, the license was renewed for the two ensuing years. Then, in November 1982 the Division issued an order revoking appellant’s license for failure to comply with the settlement agreement of March 1981. Appellant was afforded a hearing on April 19, 1983, after which the hearing officer recommended revocation of the license. A final order was entered on said recommendation and appellant perfected this appeal.

Appellant suggests several errors in the administrative proceedings such as (1) the notice to show cause initiating this proceeding in 1980 was unsigned, (2) after the March 1981 hearing the hearing officer did not make findings of fact and conclusions of law, and (3) the hearing officer did not render a proposed order or recommend administrative action to the Division.

We reject all of these supposed errors because appellant, in the clearest of terms, waived any such requirements by the stipulated settlement agreement presented to the hearing officer on March 18, 1981. Furthermore, we do not believe the oversight on the part of the Division in strictly enforcing the agreement according to the terms should inure to appellant’s benefit. There are no due process considerations involved. Appellant was adequately heard, and it agreed without a contest to do exactly what the Division has proposed to do, i.e., retire appellant’s beverage license. In addition, though appellant talks of prejudice, none was shown to have occurred as a result of the Division’s delay in taking appellant’s license.

Appellant also contends the failure to enter a final agency order within ninety days after the March 18, 1981 agreement, as required by section 120.59(1), is fatal to the Division’s position in this proceeding. We reject that contention in view of the posture appellant assumed at the March 18th hearing. Section 120.57(3) authorizes “informal disposition ... of ... proceeding[s] by stipulation, agreed settlement, or consent order.”

In our judgment, appellant has failed to demonstrate any reversible error in the action taken by the Division in its final order of June 24, 1983. Accordingly, the order appealed from is affirmed.

GLICKSTEIN and DELL, JJ., concur.


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

text:
    Don MacLEOD, et al., Appellants, v. SCHOOL BOARD OF SEMINOLE COUNTY, Florida, et al., Appellees.
    No. 83-546.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 16, 1984.
    Margaret E. Sojourner of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellants.
    Robert D. Keough of Woolf oik & Estes, P.A., Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

We reverse the order striking appellants’ complaint as a sham pleading. The second amendment to the student’s amended complaint, in alleging that appellant MacLeod was a teacher and was supervising construction of an athletic building on the high school campus at the time of the student’s injury, was sufficient to invoke appellee Commercial Union’s duty to defend MacLeod under its teacher’s liability coverage rider which provided coverage to teachers for bodily injury arising out of their “teaching activities.” See Klaesen Bros. Inc. v. Harbor Ins. Co., 410 So.2d 611 (Fla. 4th DCA 1982) ( complaint is sufficient to invoke duty to defend where it alleges, at least marginally and by reasonable implication, conduct within coverage of policy); Tropical Park, Inc. v. United States Fidelity and Guaranty, 357 So.2d 253 (Fla. 3d DCA 1978) (to invoke duty to defend, claim must be “fairly within the scope of insurance coverage”). Further proceedings are necessary below to resolve the duty to indemnify issue which requires a determination of whether Mac-Leod’s alleged negligent acts or omissions actually occurred “in connection with his occupation as a member of the faculty.”

REVERSED and REMANDED.

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

      . The rider defines “teaching activities” as including "acts or omissions of the insured in connection with his occupation as a member of the faculty_”

      . See Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979) which explains that the duty to defend is more extensive than the duty to pay and an insurer may be required to defend but not indemnify because the actual facts, as opposed to the complaint, show the non-existence of coverage.


author: SHIVERS, Judge.

text:
    AETNA INSURANCE COMPANY, Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, as subrogee of Larry B. Elmore and Eva H. Elmore, his wife, Appellee.
    No. AS-484.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Rehearing Denied Oct. 29, 1984.
    Wm. M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    Harris Brown and Jerry J. Waxman of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   SHIVERS, Judge.

Appellant, Aetna Insurance Company, appeals from a final judgment in favor of appellee, State Farm Fire & Casualty Company, and asserts that the trial court erred in granting partial summary judgment on the issue of liability insurance coverage. We agree and remand.

Aetna issued a policy of liability insurance to a building contractor. While the policy was in effect, the contractor built a house including a fireplace and chimney. After the policy expired, the house was destroyed by a fire allegedly caused by the contractor’s negligent installation of the fireplace and chimney. State Farm was subrogated to the homeowner’s claim against the contractor after paying for the fire loss and brought suit against the contractor joining Aetna as the liability insurer.

In response to a request for admission, Aetna admitted that the insurance forms attached to the request were a correct copy of the provisions of the liability insurance policy it had issued to the contractor. The policy jacket containing definitions and conditions was not attached. Prior to the hearing on appellee’s motion for summary judgment, Aetna filed with the court the policy jacket applicable to the year the policy was in effect. The trial court granted appellee’s motion finding that the policy does provide coverage to the insured contractor.

There is a genuine issue of material fact as to what documents constituted the insurance contract between Aetna and the building contractor. If on remand the policy jacket is found to have been a part of the insurance contract, there would be no coverage under either the general liability provisions or completed operations provisions since the definition of “property damage” specifically requires occurrence during the policy period; see Travelers Insurance Company v. C.J. Gayfer’s & Co., 366 So.2d 1199 (Fla. 1st DCA 1979); Bill Binko Chrysler-Plymouth v. Compass Insurance Co., 385 So.2d 692 (Fla. 4th DCA 1980); Prieto v. Reserve Insurance Company, 340 So.2d 1282 (Fla. 3d DCA 1977); but if not, there would be coverage.

REVERSED and REMANDED.

THOMPSON and ZEHMER, JJ., concur.

      . The liability portion of the policy reads in its material part as follows:
      1. COVERAGE A — BODILY INJURY LIABILITY
      COVERAGE B — PROPERTY DAMAGE LIABILITY
      The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
      A. bodily injury or
      B. property damage
      to which this insurance applies, caused by an occurrence ....

      . Property damage is defined in the jacket as follows:
      “property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period;


author:
PER CURIAM.
      JOANOS, Judge,

text:
    Joe D. NICHOLSON, Appellant, v. SAMMONS ENTERPRISES, INC. and Travelers Insurance Company, Appellees.
    No. AV-402.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Rehearing Denied Nov. 1, 1984.

      Earle Lee Butler of Butler & Pettit, Fort Lauderdale, for appellant.
    Steven R. Berger and Law Offices of James M. Henderson, Miami, for appellees.
   PER CURIAM.

This is an appeal in a workers’ compensation proceeding from the deputy commissioner’s order denying temporary total and/or temporary partial disability and/or wage loss benefits from August 2, 1982 through August 23, 1983. The deputy commissioner found that although claimant had conducted an adequate, good faith work search, claimant had not shown that his wage loss was related to his compensable injury. We must determine whether the deputy erred when he held himself bound by vague and questionable testimony, simply because no contrary evidence was presented. We conclude that the deputy commissioner misconstrued his role as the trier of fact and misunderstood the discretion which he has to reject questionable testimony.

On January 21, 1982, while driving a truck for Ross Products, a subsidiary of Sammons Enterprises, claimant was injured in a motor vehicle accident in Texas. Claimant sustained multiple lacerations to different parts of his body, but the most severe injury was to his left elbow. Claimant sustained an open fracture and dislocation of his left elbow. His left arm required physical therapy and plastic surgery, after the bones began to mend. Claimant was released by his orthopedic surgeon to return to work as of August 1, 1982, with a 10% permanent physical impairment to the whole arm. Claimant’s left arm, as a result of the compensable injury, has limited mobility, and is permanently scarred. In addition, claimant has a ten to fifteen pound limitation on any lifting with his left arm. At the date of the hearing, claimant had reached maximum medical improvement from an orthopedic standpoint, but he had not reached maximum medical improvement from all his compensable injuries because further treatment was contemplated by his plastic surgeon.

Claimant is 55 years old. He has a fifth grade education but cannot read or write. For the past thirty years, his occupation has been that of a truck driver. He has no special job training or vocational training. He began working in a cotton mill when he was seventeen, following that he worked for a bakery for six years loading and unloading trucks. At the time of his 1982 injury, claimant had worked for Ross Products for seven years. Ross Products manufactures, sells, leases, and services golf carts. Claimant’s duties included driving tractor/trailer rigs for long hauls, and loading and unloading golf carts, golf cart batteries, and golf cart chargers. Batteries for electric golf carts weigh approximately sixty-five pounds each, and chargers for golf carts weigh approximately sixty pounds each.

Claimant returned to work for Ross Products in August 1982. Before his injury, claimant drove a truck and delivered golf carts alone. After the injury, another employee was assigned to ride with him to help load and unload. Before his injury, claimant had been paid at the rate of twenty-two and twenty cents a mile, but with the addition of an employee to ride with him — claimant’s rate of pay was reduced to ten cents a mile. At some point in time, claimant was paid at the flat rate of $325.00 a week, but evidence was conflicting as to just when this salary arrangement was put in place. The deputy commissioner noted in ¶ 8 of his order that—

Bill Donald, the general manager for Ross Products, a division of the employer, testified that a pay cut went into effect in 1982 before the claimant’s accident occurred, and he said that this pay cut affected all drivers. The claimant admitted that, when he did return to work following his accident, the other truck drivers had also suffered a cut in pay. Mr. Donald also testified that the $325.00 per week salary went into effect in November of 1982. (e.s.)

Thus, there is an inconsistency in the general manager’s testimony which the deputy commissioner noted. Claimant’s accident occurred January 21, 1982, and he returned to work in August 1982. If the general pay cut went into effect in November 1982, it was after claimant’s injury and after claimant’s return to work.

On December 23, 1982, following a trip to Detroit, claimant was terminated by Ross Products. Claimant testified that he was told he was no longer needed. The general manager, Bill Donald, testified to several instances of misconduct which he alleged as basis for claimant’s discharge. In U 10 of the order, the deputy commissioner found that—

there was no proof presented that the claimant was terminated from his job due to an inability to perform the duties of his job, whether or not such inability could be attributed to his compensable injury. Counsel for the employer/carrier did present evidence of certain conduct of the claimant for which the claimant received warnings from the employer. While these examples of conduct could be interpreted as being the fault of the employer, rather than being the fault of the claimant, there was no evidence presented that the claimant was not performing his job duties satisfactorily following his return to work with the employer herein. While I feel that the testimony of Bill Donald to the effect that the claimant was fired because of various instances of misconduct is somewhat vague and questionable, I feel bound to accept this testimony because of the lack of any competent, substantial evidence to the contrary. The testimony regarding the reduction in pay (to some extent) for all drivers tends to indicate that the claimant probably was terminated as part of an overall reduction in the number of drivers working for the employer, but I simply have no way to tell whether or not the claimant was singled out due to the alleged misconduct or because of his compensable injury, (e.s.)

Following his termination by Ross Products, claimant obtained part-time employment with Boylan Sales. His rate of pay with Boylan Sales was $5.50 an hour, or $220.00 a week had he worked a 40-hour week. Claimant worked for Boylan Sales from December 31, 1982 until May 21, 1983, when he was laid off because the season had ended.

The deputy commissioner denied wage loss benefits, saying:

while I feel that the claimant has made an adequate, good faith job search, again there appears to be no evidence that the claimant’s failure to locate work and/or failure to locate higher-paying work is due to the restrictions caused by his com-pensable injury. Since I feel that the claimant’s loss of wages is due to his termination, which has not been proven to have occurred as a result of the com-pensable injury, I find that the claimant has failed to prove his entitlement to compensation benefits from August 2, 1982 through August 23, 1983, the date of this hearing. See Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982) and Certified Grocers v. Opel, 430 So.2d 953 (Fla. 1st DCA 1983). Although the claimant was earning $325.00 a week at the time he was fired, rather than his average weekly wage of $480.56, it appears that this reduction in pay was due to economic conditions. Furthermore, the claimant demonstrated that he was physically able to perform the duties of his job at the time that he was fired, and therefore, I cannot find that his loss of wages has been shown to be related to the compensable injuries that he suffered.

In relying on Citrus Central v. Parker, supra, to support a finding that claimant's reduction in pay was due to economic conditions and therefore bore no relationship to his industrial injury, the deputy commissioner did not have the benefit of this court’s reasoning in Williams Roofing, Inc. v. Moore, 447 So.2d 968 (Fla. 1st DCA 1984). In explication of Parker, the court said:

Parker does not stand for the proposition that being laid off from employment for economic reasons negates a causal connection between the industrial injury and any subsequent wage loss. Nor does Parker stand for the proposition that a claimant can never prove a causal relationship if he returns to his pre-acci-dent job at the same or greater pay but subsequently suffers a wage loss. Parker merely stands for the proposition that a claimant must produce competent substantial evidence from which there can be inferred a causal relationship between the industrial injury and any subsequent wage loss, and that evidence of being laid off for economic reasons unrelated to the injury, without more, is insufficient to establish this causal relationship, (e.s.) Williams Roofing, Inc. v. Moore, supra, at [972].

In Parker, the truck driver claimant suffered a low back injury, after which he returned to his former job, with a 5% permanent physical impairment. He was paid at an hourly rate slightly higher than his pre-injury earnings — and then was laid off due to economic conditions. Following his lay-off, claimant went to work for another trucking company. When his former employer attempted to recall him to work, the claimant elected to stay with his new employer even though the rate of pay was less because the new job entailed steady employment, i.e., no seasonal layoffs. On these facts, the court held that Parker failed to establish that his wage loss was related to his compensable injury. Opel, supra is similar. There, following a com-pensable injury, claimant returned to his former job, and then was laid off. He obtained another job, and was again laid off. The evidence demonstrated that both job layoffs were related to economic conditions rather than to claimant’s injury.

The cases cited by the deputy commissioner are not on point with the case here under review. This record reflects that claimant has suffered a 10% permanent partial impairment of his left arm, and that he is restricted to lifting no more than ten to fifteen pounds with his left arm. Claimant’s job duties with Ross Products included loading and unloading golf carts with golf cart batteries and chargers, in addition to driving a truck for long hauls. These batteries and chargers weigh sixty-five and sixty pounds respectively. The record also reflects, as the deputy commissioner noted in ¶ 9 of the order, that claimant’s rate of pay was cut from twenty cents a mile to ten cents a mile because another employee had to be assigned to his truck to do the loading and unloading. After being terminated by Ross Products, claimant obtained a part-time job at Boylan Sales. In deposition, Donald J. Moore, sales manager with Boylan Sales, testified that Boylan Sales is involved in the sales, servicing, and leasing of golf carts. Moore stated that claimant was paid at the rate of $5.50 an hour during his employment with Boylan Sales, but he received no other benefits because he was a part-time employee. Moore also testified that although claimant experienced no difficulty in driving due to his physical limitation, he could not lift batteries and chargers. Moore was aware that claimant could neither read nor write, but said that this fact had no bearing in terms of claimant’s work performance for Boylan Sales, since claimant had been driving golf cart tractor/trailers for approximately seventeen years and was well acquainted with every golf course in the area.

In our view, these facts demonstrate that claimant was unable to perform all the duties of his job at the time he was fired. Although claimant’s driving ability was not impaired due to his compensable injury, the evidence demonstrated that due to his injury claimant was no longer able to perform an essential part of his job, i.e., load and unload trucks. The deputy commissioner specifically found that, following claimant’s injury, his pay was reduced from twenty cents a mile to ten cents a mile due to the addition of another worker to handle the loading and unloading. And the record reflects, through deposition of the sales manager of Boylan Sales, that claimant’s rate of pay when he was hired on a part-time basis at Boylan Sales was $5.50 an hour. Had claimant been able to work a 40-hour week for Boylan, his earnings would have been $220.00 a week, considerably less than his pre-injury earnings of $480.56 a week. At some point in time all truck drivers at Ross Products had been paid a flat rate of $325.00 a week, however the evidence does not make clear just when this pay scale went into effect. It is clear from this evidence that claimant suffered a wage reduction from twenty cents a mile to ten cents a mile due to his inability to load and unload a truck. Claimant’s job with Boylan Sales reflects a comparable wage loss. Thus, there is competent substantial evidence in the record “from which there can be inferred a causal relationship between the industrial injury and any subsequent wage loss.” Williams Roofing, Inc. v. Moore, supra. The employee has the burden of “showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities.” Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982), rev. denied, 431 So.2d 989 (Fla.1983). Here, although the deputy commissioner found that claimant had conducted an adequate, good faith work search, and that claimant had suffered an economic loss, since claimant’s- driving ability was unimpaired the deputy commissioner found no connection between the industrial injury and claimant’s subsequent wage loss.

By this finding the deputy commissioner has ignored or overlooked evidence in the record that demonstrates that due to his industrial injury, an additional worker was assigned to ride with claimant to load and unload the truck, and claimant’s pay was reduced accordingly. The deputy commissioner takes particular note of these facts in 11 9 of the order, but he does not consider claimant’s impaired ability to perform the collateral duties involved in driving a truck as a sufficient basis to award wage loss benefits. In so holding the deputy commissioner has rejected evidence that demonstrates that loading and unloading a truck was an essential part of claimant’s job, and he suffered a wage reduction as a direct result of his injury when he could no longer perform those duties. While, generally speaking, a deputy commissioner need not explain acceptance or rejection of testimony, an exception exists “where the reason for the finding is not apparent from the record, or where, as here, it appears that the deputy commissioner has overlooked or ignored evidence in the record.” Poorman v. Muncy & Bartle Painting, 433 So.2d 1371, 1373 (Fla. 1st DCA 1983). Accord: Rouse v. Wyldwood Tropical Nursery, 392 So.2d 370, 373 (Fla. 1st DCA 1981); Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865, 866 (Fla. 1st DCA 1980).

According to the deputy commissioner’s findings, claimant’s wage loss was occasioned by his termination by Ross Products. The deputy commissioner felt the termination was not related to claimant’s compensable injury, so he held that claimant was not entitled to wage loss benefits. In making this determination, the deputy commissioner held himself bound to accept the testimony of Bill Donald, former manager of Ross Products, that claimant was fired due to misconduct and not because of his physical impairment. The deputy commissioner found this testimony “vague and questionable,” but accepted it because no evidence was offered to the contrary. This was error, for “a fact finder is not required to accept uncontroverted testimony which he does not believe.” John Caves Land Development Co. v. Suggs, 352 So.2d 44, 45 (Fla.1977).

In the case sub judice, the deputy commissioner .was presented with (1) medical evidence concerning claimant’s physical impairment and the limitations attendant upon that physical impairment, (2) an outline of claimant’s job duties, and (3) evidence that claimant’s hourly wage was reduced because an additional worker had to be placed on his truck to do the loading and unloading that claimant is no longer able to do. The inference that claimant’s wage loss was a result of his compensable injury was controverted by the questionable testimony of Mr. Donald that claimant was terminated due to misconduct. We agree with the deputy commissioner that the claimant has not presented concrete evidence that his failure to locate work and/or failure to locate higher paying work is due to the restrictions caused by his compensa-ble injury; however, the record is clear that claimant’s wages were reduced before he was terminated. As this Court said in Williams Roofing, Inc. v. Moore, supra:

The presence or absence of any particular fact, such as a layoff due to economic conditions, should not be legally determinative of the deputy commissioner’s findings. Rather, the deputy commissioner must look to the totality of the circumstances to determine whether a claimant has shown a causal relationship between the injury and the wage loss, (e.s.)

Here, claimant has demonstrated that his industrial injury has resulted in a physical impairment which made it impossible for him to perform the collateral duties of his job and a diminution in earning power because of his physical impairment. The deputy commissioner was correct in finding that claimant’s termination was not clearly shown to be related to his compensable injury. Nevertheless, there is in this record competent substantial evidence to the effect that claimant experienced a wage reduction, due to the compensable injury, before he was terminated by Ross Products. Since claimant has demonstrated a loss of wage earning capacity as a result of his compensable injury, the deputy commissioner’s order denying wage loss benefits is reversed.

REVERSED and REMANDED for entry of an order consistent with this opinion.

SMITH and ZEHMER, JJ., concur.

JOANOS, J., dissents with written opinion.

JOANOS, Judge,

dissenting.

I respectfully dissent from the majority opinion. The order on appeal should be affirmed.

(1) The majority has stated that in their view the facts demonstrated that claimant was unable to perform all of the duties of his job at the time he was fired. The evidence does seem to reflect, as the majority has stated, that following the accident the claimant received a pay cut and had to have some help with loading and unloading the trucks. However, the evidence can reasonably be construed as was done by the deputy that at the time he was fired, claimant was performing his duties, was receiving the same pay as that received by the other drivers, and was fired for reasons unconnected with his injury.

(2) The majority states that the deputy commissioner overlooked evidence that an additional worker was assigned to help the claimant and that loading and unloading a truck was an essential part of his job. The deputy commissioner did not overlook that at all. In the order appealed from, as stated by the majority opinion, it is specifically pointed out that the additional worker was hired and that claimant could no longer do the loading and unloading by himself. These circumstances were not pivotal to the deputy commissioner, because, again, the important thing was that at the time claimant was fired, he was doing the job and getting paid the same as the other drivers and was not fired because of the injury. Further the deputy pointed out that there was no evidence that claimant’s failure to find work following his termination was due to the restrictions caused by the injury. This was bolstered by the evidence that following his termination, claimant was hired as a truck driver and worked for another employer until the end of a season. It was, after all, claimant’s burden to show that his failure to secure employment was caused by the compensable injury. I see no reversible error in the deputy commissioner’s determination that the burden was not met.

(3)Lastly, I disagree with the majority’s interpretation that the deputy commissioner’s acceptance of Bill Donald’s testimony “... because of the lack of competent, substantial evidence to the contrary” was a violation of the principle that “a fact finder is not required to accept uncontroverted testimony which he does not believe.”, set forth in John Caves Land Development Co. v. Suggs, 352 So.2d 44, 45 (Fla.1977). The statement that evidence is “vague and questionable” is not, in my opinion, the same as saying that it was not believed.


author: SCHOONOVER, Judge.

text:
    Lawrence PUGLIA, Appellant, v. DRINKS ON THE BEACH, INC., a dissolved Florida corporation, d/b/a Drinks On the Beach, Appellee.
    No. 83-2475.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1984.
    Rehearing Denied Oct. 17, 1984.

      John B. Cechman of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.
    A. Douglas Grace, Jr. of Grace & Couse, P.A., Fort Myers, for appellee.
   SCHOONOVER, Judge.

The appellant, Lawrence Puglia, has appealed from an order dismissing with prejudice one count of his second amended complaint and from a judgment on the pleadings in connection with another count of the complaint. We affirm in part and reverse in part.

In count I of his second amended complaint the appellant alleged that on October 14, 1981, the appellee, Drinks on the Beach, a dissolved Florida corporation d/b/a Drinks on the Beach, operated, managed, and controlled a business that was licensed to serve alcoholic beverages to the public. Appellant alleged that the appellee, through its agents and employees, served alcoholic beverages to the appellant as a business invitee. Appellant alleged that he was at that time eighteen years of age and was served the alcoholic beverages in violation of section 562.11, Florida Statutes (Supp.1980). He further alleged that as a result of appellee’s actions he became intoxicated, and this intoxication caused him, while attempting to drive home in a motor vehicle, to become involved in an accident that resulted in personal injuries.

In count II of his second amended complaint, the appellant alleged that appellee violated section 768.125, Florida Statutes (Supp.1980), and as a result the appellant became intoxicated. This intoxication subsequently caused him to lose control of his motor vehicle and to suffer injuries in a one-car accident.

The trial court granted, with prejudice, the appellee’s motion to dismiss count I of the second amended complaint on the grounds that Lawrence Puglia was not a minor and therefore was not a person intended to be protected by section 562.11. The trial court granted a judgment on the pleadings with regard to count II.

The trial court was correct in entering a judgment on the pleadings as to count II of the second amended complaint, and we, accordingly, affirm that ruling. See Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984); Armstrong v. Munford, Inc., 451 So.2d 480 (Fla.1984). The trial court erred, however, in granting the motion to dismiss count I.

Section 562.11, which became effective October 1, 1980, provides in pertinent part as follows:

562.11 Selling, giving, or serving alcoholic beverages to persons under age 19 prohibited.—
(l)(a) It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 19 years of age or to permit a person under 19 years of age to consume said beverages on the licensed premises.

On the date of the accident in question, the age of majority was eighteen and the lawful drinking age was nineteen. Ap-pellee contends that because the appellant was eighteen at the time of the accident, and therefore no longer a minor, appellant was not a member of the particular class of persons that, due to an inability to protect themselves, the statute was enacted to protect. We disagree. It is true that prior decisions have construed this statute’s predecessor as one that was enacted for the protection of minors. See, e.g., Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967). At the time of those decisions, however, the age of minority was the same as the unlawful drinking age. In 1980 the Florida legislature amended section 562.11 to delete the word minor and substitute the phrase “persons under the age of nineteen” so that the statute now prohibits the selling, giving, or serving of alcoholic beverages to persons under nineteen years of age. During the same session, section 743.07, Florida Statutes (Supp.1980), which had removed the disability of nonage from eighteen year olds, was amended to provide “and except as otherwise provided in the beverage law.”

We must assume that when the legislature enacted section 562.11, it was acquainted with judicial decisions on the subject, including Prevatt. Migliore. Moreover, when the language of a statute is clear and not unreasonable or illogical in its operation, the court may not go outside the statute to give it a different meaning. In Re Levy’s Estate, 141 So.2d 803 (Fla. 2d DCA 1962). In view of the plain language of the statute and the legislature’s deliberate selection of words, we conclude that section 562.11 provides protection not only to minors but to all persons under the lawful drinking age.

Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.

SCHEB, A.C.J., and OTT, J., concur.


author: PER CURIAM.

text:
    HERITAGE CORPORATION OF SOUTH FLORIDA, Appellant, v. Martin SMALL, M & L C and Stillwell Mortgage Company, a Florida corporation, A & R Building Corporation, an Indiana corporation, Albert Vincz and George C. Vincz, et al., Appellees.
    No. 83-2296.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 26, 1984.
    Greenfield & Duval and Leo Greenfield, North Miami, for appellant.
    John F. Lisk, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We affirm the dismissal of the fifth amended complaint filed over a five year period. The plaintiff had ample opportunity to state a cause of action and obey certain court orders relating thereto, but failed to do so. Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983); Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981); Florida Gas Company v. Arkla Air Conditioning Company, 260 So.2d 220 (Fla. 1st DCA 1972).

Affirmed.


text:
    In re Petition for Access to Client Records. HUMAN RIGHTS ADVOCACY COMMITTEE FOR DEVELOPMENTAL SERVICES FOR DISTRICT VIII, Appellant, v. LEE COUNTY SCHOOL BOARD, Appellee.
    No. 83-1553.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    Rehearing Denied Oct. 28, 1984.

      William P. Healy and Albert J. Hadeed of Southern Legal Counsel, Inc., Gaines-ville, for appellant.
    Michael C. Tice of Harry A. Blair, P.A., Fort Myers, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant, the district VIII human rights advocacy committee, is an entity created under section 20.19(7), Florida Statutes (Supp.1982), to receive, investigate, and resolve “reports, of abuse or deprivation of constitutional and human rights within the area of jurisdiction of the committee.” In discharge of its perceived duties, the committee petitioned for access to confidential school records which it deemed pertinent to its investigation of the alleged abuse of four developmentally disabled students by Lee County public school instructional personnel. According to the school board, the alleged abuse consisted of a teacher’s implementation of certain behavior modification techniques approved by the school’s educational psychologists. The trial court denied the committee’s petition, and this timely appeal ensued. For the reasons discussed below, we affirm.

Although this is a case of first impression, we believe that the statutory language of section 20.19(7)(g) properly resolves the controversy concerning the committee’s entitlement to confidential public school records, particularly when read in conjunction with section 228.093, Florida Statutes (1981). As pertinent to this appeal, section 20.19(7)(g) provides:

The duties of each district human rights advocacy-committee shall include, but are not limited to:
1. Serving as a third-party mechanism for protecting the constitutional and human rights of any client within a program or facility operated, funded, or regulated by the department.
2. Receiving, investigating, and resolving reports of abuse or deprivation of constitutional and human rights within the area of jurisdiction of the committee. For the purposes of such investigation, the committee shall have access to all client files and reports when the client is receiving services through, and the files and reports are in the physical custody of, the Department of Health and Rehabilitative Services. In all other cases, the Human Rights Advocacy Committee shall have standing to petition the circuit court for access to client records which are confidential as specified by law. The petition shall state the specific reasons for which the committee is seeking access and the intended use of such information. The court may authorize committee access to such records upon a finding that such access is directly related to an investigation regarding the possible deprivation of human or constitutional rights or the abuse of a client. Upon completion of a general investigation of practices and procedures of the department, the committee may make a report of its findings to the department. All information obtained through an examination of such reports shall remain confidential. Client files, records, and reports, or copies thereof, shall not be removed from the department or agency facilities. All matters before a district human rights advocacy committee concerning abuse or deprivation of rights of an individual client or group of clients of the department subject to the protections of this section shall be closed to the public and exempt from the provisions of s. 119.07(1). All other matters before the committee shall be open to the public and subject to chapter 119. Any person who knowingly and willfully discloses any such confidential information is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This section shall not be interpreted to allow committee access to confidential adoption records in accordance with the provisions of ss. 63.-162, 63.022, and 39.441.

We believe that the section's enumeration of the committee’s responsibilities reflects a legislative intent to limit the committee’s “area of jurisdiction” for the purpose of obtaining client records to matters occurring within a “program or facility operated, funded, or regulated by the department [of health and rehabilitative services].” § 20.-19(7)(g)l, Fla.Stat. (Supp.1982). Thus, while the statute affords the committee automatic access to client files and reports which are in the physical custody of the department, the committee must petition for access to confidential client records in the physical custody of programs or facilities merely funded or regulated by the department. We point out that the client records involved here are not in the possession of the department, or one of its funded or regulated programs or facilities, but rather are in the possession of a third entity, the school board, and thus are not accessible to the committee.

We reach this conclusion after examining the particular language in this provision, noting specifically that the statute restricts the committee’s investigative duties to the entity’s “area of jurisdiction,” an undefined concept significantly different from the statute’s other references to the geographic concept of “district.” Had the legislature intended the committee to have access to confidential client records from any source within its territorial area, it easily could have articulated this intention by substituting “district” in lieu of the specialized term employed. Because the legislature’s obvious use of a distinct term within different portions of the same statute strongly evidences its intent to provide a different meaning, Ocasio v. Bureau of Crimes Compensation Division of Workers’ Compensation, 408 So.2d 751, 753 (Fla. 3d DCA 1982), we reject the committee’s suggestion that its area of jurisdiction extends over every entity within its geographic district.

Furthermore, we believe that the statute’s reference to “client records” may itself signify a limitation on the committee’s “area of jurisdiction.” From this language, we perceive a legislative intent to narrow the scope of records available to the committee to those prepared for the individual in his capacity as an HRS client, as opposed to any recorded matter relating to the individual prepared by any entity for any purpose.

Finally, we find our conclusion that the committee’s “area of jurisdiction” is limited to the narrow, department-oriented field of operation described in section 20.-19(7)(g)l bolstered by the language set forth in section 20.19(7)(g)2, which immediately follows the statutory discussion of the committee’s entitlement to client records. This language provides that “[u]pon completion of a general investigation of the practices and procedures of the department, the committee may make a report of its findings to the department” (emphasis added).

The committee argues that a limited interpretation of its “area of jurisdiction” ignores section 827.09(6), Florida Statutes (1981), which directs the department to notify the appropriate district committee of all reports concerning abuse, neglect, or exploitation of “a disabled person or an individual suffering from the infirmities of aging.” Because such an aged or disabled person need not be a client of HRS, the committee argues that its area of jurisdiction necessarily must encompass matters other than those occurring within a facility operated, funded, or regulated by the department. While we acknowledge the persuasiveness of the committee’s argument, we are constrained by the legislature’s failure to grant the committee access to confidential records under any authority other than that already discussed.

The restrictive language appearing in section 20.19(7)(g) becomes particularly significant when the statute is construed in conjunction with section 228.093, Florida Statutes (1981), the portion of the Florida School Code dealing with student records, which recognizes a strong privacy interest of every student with regard to his educational records. See id,., § 228.093(3)(d). Although this section specifically grants access to student records to certain enumerated persons or organizations, see id., § 228.093(3)(d)l.-9., it does not include the district human rights advocacy committee among those specified groups. In the absence of specific language giving the committee access to confidential public school records, we are unwilling to usurp the legislative function by creating a judicially prescribed exception to the protection afforded by the statute.

Accordingly, we AFFIRM.

OTT and CAMPBELL, JJ., concur.

      . Section 20.19(7)(a), Florida Statutes (Supp. 1982), mandates the creation of at least one district human rights advocacy committee for each service district of the Department of Health and Rehabilitative Services. District VIII includes Polk, Hardee, Highlands, Sarasota, DeSoto, Charlotte, Lee, Glades, Hendry, and Collier counties. Id., § 20.19(4)(a).

      . § 20.19(7)(g)2, Fla.Stat. (Supp.1982).

      . Now § 415.104(1), Fla.Stat. (1983).

      . See § 827.09(l)(a), (f), Fla.Stat. (1981); § 415.-102(3), (5), Fla.Stat. (1983).


text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. HAWKINS BRIDGE COMPANY, Fairchild-Florida Construction Co. and St. Paul Fire and Marine Insurance Company, Appellees.
    No. AU-159.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    Rehearing Denied Oct. 29, 1984.

      Robert I. Scanlan, Dept, of Transp., Tallahassee, for appellant.
    Malcolm D. Young, Jr. and C. Walker Ingraham of Peterson, Young, Self & Asse-lin, Atlanta, Ga., for appellee Hawkins Bridge Co.
    W. Crit Smith of Cason & Henderson, Tallahassee and George Anthony Smith of Smith, Currie & Hancock, Atlanta, Ga., for appellee Fairchild-Florida Const. Co.
   ERVIN, Chief Judge.

Appellant, Florida Department of Transportation (DOT), challenges a final judgment entered pursuant to a jury verdict, determining liability and assessing damages, in this contract action. We agree on all points with the trial court and affirm.

In 1978, DOT contracted with appellee, Fairchild-Florida (Fairchild), to construct a cement bridge spanning Perdido Bay and demolish the existing bridge. Fairchild, in turn, contracted with Hawkins Bridge Company (Hawkins) to perform the erection and concrete work on this project and execute the bridge demolition.

Problems suggesting pier failure developed during the construction of the main foundation members flanking the navigational channel. Work on the main piers and center spans was halted for eight months pending investigation of the problem and development of remedial measures. During the interim, Hawkins continued work on other portions of the bridge outside of the normal construction sequence. Eventually, the failure was remedied, work resumed on the center span and the bridge was opened in July 1980, significantly later than projected at the time the contracts were executed.

DOT’s failure to pay cost claims presented in August 1980 resulted in Hawkins filing suit against Fairchild, which in turn joined DOT as a third-party defendant. The expert testimony at trial conflicted as to the cause of the pier failure, the actual length of delay in contract performance attributable to the failure, and the amount of damages associated with the delay. The jury found DOT to be liable for breach of contract and entered verdicts of $2,335,000 against Fairchild in favor of Hawkins, and $2,779,000 against DOT in favor of Fair-child. Each verdict included an award of prejudgment interest of six percent assessed from August 1980.

DOT raises five issues on appeal, two of which merit discussion. DOT contends that the trial court erred in allowing computation of the verdicts based on an improper measure of damages, and in instructing the jury that it could include prejudgment interest in the verdicts. We cannot agree.

A verdict for damages will not be disturbed on appeal unless it is manifestly so excessive as to shock the judicial conscience or so as to be indicative of prejudice, passion or corruption on the part of the jury. To warrant appellate interference, it must clearly appear that the jury ignored the evidence in reaching its verdict or misperceived the merits relating to the amounts recoverable. 17 Fla.Jur.2d Damages §§ 91-92 (1980).

In the instant case, the amount of damages was for the most part established by expert testimony. The evidence presented to the jury for calculation of the damages included conflicting testimony of the parties’ experts and a memorandum prepared by DOT’s expert. The weight assignable to conflicting testimony and resolution of the conflict is a matter for the jury as trier of fact. The verdict amount arrived at by the jury approximates the amounts claimed by both Hawkins and Fairchild and that calculated by the DOT memorandum. Thus, it does not appear that the verdict ignores the evidence or reaches an amount shocking to the judicial conscience in light of the evidence of costs attributable to this breach so as to warrant disturbance of the verdict on appeal.

DOT contends that the verdict is predicated upon erroneous application of a “total cost” formula for measuring damages, thus indicating that the jury misper-ceived the merits relating to the amounts recoverable. Initially, we note that the amount of the verdict varies somewhat from the amount that would be recoverable under a total cost calculation. It is, therefore, not clear that the total cost method was in fact utilized. However, if the total cost method were applied, we find no error in this procedure under the circumstances presented here. Total cost is appropriately available to the jury when the nature of the excess costs is such that there is no other practicable means of measuring damages, the original bid was realistic, the actual costs were reasonable, and the plaintiff is not responsible for any of the additional expense. McDevitt & Street Company v. Department of General Services, 377 So.2d 191 (Fla. 1st DCA 1979). We find sufficient record evidence to support satisfaction of these four criteria here. For example, the record fully supports a finding that there was no practicable means of measuring damages other than the total cost method in that excess costs could not be segregated due to DOT’s delays causing performance of work out of sequence, and the shifting of both labor crews and material schedules. The jury’s verdict is, thus substantiated under the total cost method and any of the alternative methods presented and does not constitute an abuse of its sound discretion as to the assessment of damages. We, therefore, decline to disturb the compensatory damages awarded by this verdict on appeal.

DOT also challenges the award of prejudgment interest calculated from the August 1980 date when cost claims were presented to DOT for payment. Under Florida law, a party may recover prejudgment interest on damages for breach of contract as an element of the damages. Like other elements of damages, the interest must be ascertained and assessed by the trier of fact, in this case the jury. Shoup v. Waits, 91 Fla. 378, 107 So. 769, 770 (1926); Posner v. Flink, 393 So.2d 1140, 1141 (Fla. 3d DCA 1981); Plantation Key Developers, Inc. v. Colonial Mortgage Company of Indiana, Inc., 589 F.2d 164, 170 (5th Cir.1979). Contrary to DOT’s argument, the unliquidated nature of the claim does not make the interest award erroneous for, while a judge can only add an interest award onto a jury verdict of liquidated damages, the jury is empowered to award interest as damages regardless of its characterization as liquidated or unliquidated.

DOT further contends that the award of interest is barred by Section 337.-141(3), Florida Statutes, which provides:

For each day after 90 days, or 30 days after settlement of a claim, the department shall pay to the contractor interest at a rate of 6 percent per annum on the unpaid balance, not to exceed $300 per day.

(e.s.) This statute refers to the award of interest upon “settlement of claims," a term which cannot seriously be contended to include litigation culminating in a jury verdict necessitated by the failure to settle the cost claims presented to DOT. In the absence of any specific statutory bar to the assessment of prejudgment interest under these circumstances, any immunity of the state thereto is waived consistent with its waiver of sovereign immunity to suit. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935).

Having found no error in the jury’s verdict, either in the award of compensatory damages or the assessment of prejudgment interest thereon, and failing to discern any merit in appellant’s other assignments of. error, we affirm the final judgment entered below.

BOOTH and WENTWORTH, JJ., concur.