author: DANIEL S. PEARSON, Judge.

text:
    Fabia BLUE and Theresa Blue, Appellants, v. The STATE of Florida, Appellee.
    No. 82-2674.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Frank A. Rubino, Coconut Grove, for appellants.
    Jim Smith, Atty. Gen. and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The Blues were convicted of possession with intent to sell or deliver cannabis upon their pleas of nolo contendere, specifically reserving the right to appeal the denial of their motions to suppress. They contend that the sole evidence against them was seized from their premises (a wholesale plant nursery open to the public) pursuant to a warrant issued without probable cause. We agree and reverse.

The affidavit for search warrant executed by a narcotics detective asserts as probable cause for believing that marijuana was on the premises that:

“On 07-27-82, affiant was contacted by a U.S. Customs Agent (Glen Sandino) that he had been contacted by a confidential informant who had information on the premises. The confidential informant contacted affiant and stated a large quantity of marijuana was being grown and cultivated on the premises, in various locations on the premises. Confidential informant stated that a sample of the marijuana from the premises was obtained by confidential informant. The sample was then given to affiant. A field test of sample was positive indicating the sample was marijuana. The remainder of sample was impounded and sent to Metro Dade Police Dept. Laboratory for analysis. Affiant requested confidential informant obtain a second sample from the premises on 07-28-82. Confidential informant was then sent to the premises where a second sample was obtained on 07-28-82. At 6:00 p.m. on 07-28-82, confidential informant turned the second sample of marijuana from the premises over to affiant, second sample was given a field test which was positive, with remainder being sent to Metro Dade Police Dept. Laboratory for analysis. Confidential informant states several hundred marijuana plants are being cultivated on the premises and that the marijuana plants will soon be harvested and sold. Confidential informant also states the marijuana plants are approximately six feet tall. All information given by confidential informant has been accurate and true. Affiant wishes to search all buildings and rooms on premises as confidential informant states plants are scattered about at different locations on premises where marijuana is being cultivated and readied for harvest.”

Simply stated, the affidavit says (1) an informant told the detective that several hundred marijuana plants approximately six feet in height were being grown in the nursery and would soon be harvested; (2) the informant gave the detective a “sample” which he said came from the nursery and, at the later request of the detective, gave him another “sample” which the informant again said he obtained from the nursery; and (3) the samples proved to be marijuana.

Even accepting the State’s argument that the affidavit must be analyzed under the totality of circumstances test revived in Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), we are compelled to conclude that the affidavit in question utterly fails that test. Although with Gates' abandonment of the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), “veracity” and “basis of knowledge” are now merely circumstances, among others, to be considered, they nonetheless must be considered.

Clearly the affidavit tells us nothing of the informant’s credibility or of the reliability of his information. While it is certainly arguable that when, as the affidavit states, the “confidential informant turned the second sample of marijuana from the premises over to affiant,” the police could have reasonably inferred that the informant himself observed that about which he spoke, compare Rutherford v. Cupp, 508 F.2d 122 (9th Cir.1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975), with Terrell v. State, 429 So.2d 778 (Fla. 3d DCA 1983), there is not a single circumstance set forth in the affidavit from which the issuing magistrate could conclude that it was probable that the informant was speaking the truth. The fact that one can infer from the informant’s statement that he personally observed marijuana on the premises does nothing to further the probability that marijuana was in fact on the premises in the absence of some circumstance from which we can credit the informant’s story. In other words, while the informant’s basis of knowledge may be used to supplement his otherwise proven veracity, it is the informant’s veracity, not his stated basis of knowledge, which remains the sine qua non of the probability of marijuana being on the premises.

Moreover, there is not the slightest detail of innocuous activity in the affidavit which, even if corroborated, would lead one to believe that the informant’s assertions of criminal activity on the defendants’ premises were true. As the court recognized in Illinois v. Gates, “[o]ur decisions applying the totality of circumstances analysis .. . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” - U.S. at -, 103 S.Ct. at 2334, 76 L.Ed.2d at 550. Yet here the only fact that was corroborated is that the substance given to the detective by the informant was marijuana, a fact which proves nothing about the reliability of the informant. See State v. Adams, 355 So.2d 194 (Fla. 1st DCA), cert. denied, 359 So.2d 1220 (1978) (affirming trial court finding of no probable cause where affidavit for warrant set forth that informant purchased marijuana in defendant’s residence and brought it to police, who identified substance as marijuana; reliability of informant not established); State v. Bond, 341 So.2d 218 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 953 (1977) (same). As it has been succinctly stated in a similar context, “[tjhere is no logical connection between the fact that the test showed the powder was cocaine and the reliability of the informant’s statement that it was taken from the defendant’s apartment.” People v. Carton, 51 Ill.Dec. 339, 346, 95 Ill.App.3d 937, 946, 420 N.E.2d 753, 760 (1981) (Stouder, J., dissenting). But see State v. Hayward, 18 Or.App. 128, 523 P.2d 1278 (1974); State v. Evans, 1 Or.App. 489, 463 P.2d 378 (1970).

The critical inquiry, then, is not whether the substance was probably marijuana, but whether there is a demonstrated probability that this marijuana came from the defendants’ nursery as the informant alleged. Quite obviously, this inquiry could have been, but was not, answered, for example, by an undercover agent of the police going on the open-to-the-public premises to see for himself or, alternatively, by corroborating the fact that the informant, when he obtained the second sample, entered the premises empty-handed and came out with the marijuana, see, e.g., Mills v. State, 177 Ind.App. 432, 379 N.E.2d 1023 (1978); State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974), or, at the very least, by corroborating the fact that the informant entered the premises and came out with the marijuana, see, e.g., United States v. Fluker, 543 F.2d 709 (9th Cir.1976); State v. McLeod, 36 N.C. App. 469, 244 S.E.2d 716, cert. denied, 295 N.C. 555, 248 S.E.2d 733 (1978).

Nor does the fact that the informant brought marijuana to the detective prove anything about the informant’s reliability. This act is not one which we consider to be against the informant’s penal interest so as to allow a magistrate to find trustworthy the informant’s further statement that the marijuana came from the defendants’ premises. State v. Adams, 355 So.2d at 195. First, under the circumstances here, there is nothing whatsoever to indicate that the informant appreciated that the delivery of the marijuana sample to the detective at the detective’s request was potentially incriminating. Second, to the extent that the informant appreciated any potential exposure to criminal liability, it is apparent that he expected to receive absolution from prosecution. Third, it is crystal clear that when the informant brought the first sample to the detective, he believed he was acting on behalf of law enforcement, thus establishing an agency relationship which, if it did not then officially exist, was immediately ratified when the detective asked him to bring a second sample. Finally, even if, arguendo, the informant’s delivery of the samples of marijuana to the detective could be viewed as an act against the informant’s penal interest, there is nothing about his statement that he obtained it from the defendants’ premises which, independent of the delivery of the samples, tended to subject him to criminal liability. See United States v. Lilley, 581 F.2d 182 (8th Cir.1978) (portions of declarant’s statement implicating defendant which were not against de-clarant’s penal interest excludable from evidence as lacking indicia of truthfulness). See generally C. McCormick, McCormick on Evidence 677 (2d ed. 1972).

Therefore, we are left with an informant of no demonstrated reliability who gives to a detective some marijuana and tells him he obtained it from the defendants’ premises. While Illinois v. Gates permits an informant’s veracity or the reliability of his information to be established by a totality of circumstances, it was not so established in the present case. To place our imprimatur on the warrant in the present case would be to sanction a search in every instance where a person of unknown reliability brings contraband to the police, tells them that he obtained it in a particular place, and that there is more where it came from. This is not the meaning of Illinois v. Gates. See Milete v. State, 439 So.2d 337 (Fla. 3d DCA 1983). Accordingly, the orders placing the defendants on probation are

Reversed.

      . The defendants correctly contend, and the State acknowledges, that the trial court erred when it considered the detective’s testimony concerning facts not set forth in the affidavit in determining the validity of the search warrant. See Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980). If, however, the affidavit itself sets forth probable cause, we are bound to affirm the trial court.

      . But see State v. Lavazzoli, 434 So.2d 321 (Fla.1983), in which the court held that the amendment to Article I, Section 12 of the Florida Constitution, effective as of January 4, 1983, will not be retroactively applied where its application would alter a substantive right. See also Copeland v. State, 435 So.2d 842 (Fla. 2d DCA 1983) (on rehearing). If the two-pronged test for analyzing a search warrant affidavit set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), has become a part of this state’s substantive law under Article I, Section 12 of the Florida Constitution, the test of Illinois v. Gates would not apply, since the affidavit, search, suppression hearing, and final disposition of the present case all occurred in 1982. Because the affidavit in question does not pass muster under the test announced in Illinois v. Gates, or, a fortiori, under the Agui-¡ar-Spinelli test, we need not decide the retroac-tivity issue.

      .In contrast, the informant’s basis of knowledge is not shown in respect to the first sample about which the informant said, “a sample of the marijuana from the premises was obtained by [him].” Had the statement been that “a sample was obtained from the premises by him,” one could conclude that his basis of knowledge was first-hand. But the mere fact that the informant states that he has marijuana which came from the premises leaves open the question whether the marijuana was obtained by him from the premises or obtained by another person and given to him.

      . To the very limited extent information related by the informant described the premises, such information was readily obtainable by any member of the public.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PUBLIC INSURANCE CONSULTANT, INC., Appellant, v. PENINSULAR FIRE INSURANCE COMPANY and Zurich Insurance Company, Appellees.
    No. 83-43.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Maurice Rosen, North Miami Beach, for appellant.
    George, Hartz, Burt & Lundeen and Clinton D. Flagg, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Martin v. Johnson, 54 Fla. 487, 44 So. 949 (1907); Pinon v. International Harvester Co., 390 So.2d 154 (Fla. 3d DCA 1980); Aerovias Panama, S.A. v. Air Carrier Engine Service, Inc., 195 So.2d 230 (Fla. 3d DCA 1967).


text:
    Michael ULLOA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-73.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Richard A. Barnett, Hollywood, Marc N. Linowitz, Miami, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The defendant Michael Ulloa appeals his judgment of conviction and sentence for second degree murder contending on appeal that: (1) the trial court erred in failing to grant his motions for judgment of acquittal below on the ground that the evidence was insufficient to support a conviction for second degree murder, (2) the trial court erred in preventing the defendant from cross-examining the wife of the defendant as to a prior murder committed by the victim of the homicide herein, and (3) the trial court erred in permitting the state to discuss cocaine in the cause. After carefully examining these contentions together with the record and applicable law we find that no error was committed herein. We accordingly affirm.

First, the evidence is more than sufficient in this case to sustain a conviction for second degree murder. We recognize that the evidence is somewhat in conflict but viewing the evidence in a light most favorable to the state, as we must on this appeal, it is plain that the trial court committed no error in denying the defense motion for a judgment of acquittal below. Lynch v. State, 293 So.2d 44 (Fla.1974); Huntley v. State, 66 So.2d 504 (Fla.1953); § 782.04(2), Fla.Stat. (1981).

Second, we see no error in restricting the cross-examination of one of the state’s witnesses with reference to a prior homicide committed by the victim herein. An adequate predicate of self-defense had not been laid at that point and such testimony was accordingly not admissible at that time. See Williams v. State, 252 So.2d 243, 247 (Fla. 4th DCA 1971), cert. denied, 255 So.2d 682 (Fla.1971).

Third, we see no error in the admission of testimony concerning the theft of cocaine in this case and in any event this alleged error was not preserved for appellate review by a proper objection at trial. Sired v. State, 399 So.2d 964, 968 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); German v. State, 379 So.2d 1013 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1113 (Fla.1980).

The judgment of conviction and sentence appealed from is in all respects

Affirmed.


text:
    Curtiss RACHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-266.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal, Pineiro & Grande, and Joseph Durant and Stephen Glass, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Burch v. State, 343 So.2d 831 (Fla.1977).


text:
    The STATE of Florida, Appellant, v. Robert and Denise STEPHENS, Appellees.
    No. 83-275.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Harvey S. Swickle, North Miami Beach, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The state appeals the trial court’s order suppressing physical evidence seized from the Stephens’ automobile without a warrant. Our review of the record reveals the existence of conflicts in testimony.

It is well-settled that on a motion to suppress, the trial court serves as trier of both fact and law. Cameron v. State, 112 So.2d 864 (Fla. 1st DCA 1959). It is the province of the trial judge to make determinations concerning the credibility of the witnesses and weight of evidence. Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975). Because the appellate court must accept the trial court’s factual determinations when they are supported by the record, State v. Favaloro, 424 So.2d 47 (Fla. 3d DCA 1982); State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979), the trial court’s resolution of conflicting evidence will not be disturbed on appeal. State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983); State v. Thomas, 212 So.2d 910 (Fla. 1st DCA 1968).

Because we find support in the record for the trial court’s order, we affirm.

Affirmed.


text:
    Donald S. ROSE, as Trustee, Appellant, v. STROOCK & STROOCK & LAVAN, Appellee.
    No. 83-514.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Donald S. Rose, Miami, for appellant.
    Stroock & Stroock & Lavan and James M. Miller, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Rabren v. Gulf Towing Co., Inc., 434 So.2d 340 (Fla. 2d DCA 1983); Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981), pet. for rev. den., 412 So.2d 463 (Fla.1982); Restatement (Second) of Torts §§ 770, 772 (1979).


text:
    Carlos A. SAENZ, Trustee, Appellant, v. BISCAYNE ENGINEERING COMPANY, a Florida corporation and Ebsary Foundation Company, a Florida corporation, Appellees.
    No. 83-917.
    District Court of Appeal of Florida, Third District. ..
    Nov. 15, 1983.
    Weaver, Weaver & Lardin and Thomas D. Lardin, Fort Lauderdale, for appellant.
    Therrel, Baisden, Stanton, Wood & Setlin and Julian R. Benjamin; Dennis G. King, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Perez v. Cohen, 362 So.2d 985 (Fla. 3d DCA 1978), cert. denied, 365 So.2d 710 (Fla.1978).


text:
    ISLE OF SANDALFOOT CONSTRUCTION, INC., a Florida corporation, Appellant, v. MATTHEWS BUILDING PRODUCTS, INC., a Florida corporation, Appellee.
    No. 83-1039.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Goldberg, Young & Borkson and Naomi Behar Smith, Fort Lauderdale, for appellant.
    Siegfried, Kipnis, Gross & Schoninger and Tom Hall, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Itel-Pas, Inc. v. Jones, 389 So.2d 1085 (Fla. 3d DCA 1980).


text:
    Fernando CEBALLOS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1052.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Arthur E. Huttoe and John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Colson v. State, 73 So.2d 862 (Fla.1954); Frazee v. State, 320 So.2d 462 (Fla. 3d DCA 1975).


author: BASKIN, Judge.

text:
    MONROE COUNTY, a political subdivision of the State of Florida, Appellant, v. NEW PORT LARGO, INC., a Florida corporation, Appellee.
    No. 83-1071.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Luden C. Proby, Jr., Key West, Straughn, Sharit, Bunn & Chilton, Winter Haven, for appellant.
    Taub & Williams and Marsha G. Rydberg, Tampa, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Monroe County appeals a summary judgment in favor of defendant, New Port Largo, Inc., in an action seeking a determination that the county is the true owner of the disputed Port Largo Airport property and requesting the imposition of a constructive trust upon the subject property for the benefit of the county. The property was originally owned by the State of Florida as an undeveloped, submerged land parcel. It was subsequently purchased from the state and developed into a landing strip. The landing strip had been operating as a public airport until its acquisition by New Port Largo, Inc. Learning that New Port Largo intended to terminate use of the land as a public airport, the county commenced litigation on the predicate that New Port Largo, or its predecessors in title, acquired title to the land as a result of written and verbal representations that the developer would construct a breakwater, develop the airport and ultimately donate the airport to Monroe County.

It is well settled that summary judgment is improper where the pleadings and record reflect issues of material fact. Levey v. Getelman, 408 So.2d 668 (Fla. 3d DCA 1981); Pepe v. Shepherd, 422 So.2d 910 (Fla. 3d DCA 1982); Ultra Marine Corp. v. Bryant, 375 So.2d 613 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 634 (Fla.1980). Our review of the record reveals the existence of conflicting evidence relating to the circumstances surrounding the construction of the breakwater and airstrip and to the intent of defendant’s predecessor in title in purchasing and developing the landing strip. It is axiomatic that a summary judgment may not be entered if the record reflects the existence of genuine issues of material fact or raises even the slightest doubt regarding such issues. Braun v. Ryder Systems, Inc., 430 So.2d 567 (Fla. 3d DCA 1983); Dobbs v. Doblitz, 425 So.2d 1207 (Fla. 4th DCA 1983). Finding that the record discloses the existence of issues of material fact surrounding the purchase and development of the Port Largo Airport property, we hold that the trial court erred in entering summary judgment. Accordingly, we reverse and remand for a trial on the merits.

Reversed and remanded.


text:
    John Michael POLAND, an underwriter at Lloyds, London, Appellant, v. Philip DASH and Harriet Dash, his wife, Highlands Insurance Company and Savage-Manfre & Associates, Inc., Appellees.
    No. 83-1260.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Fertig, Curtis & Wakefield and Richard S. Womble, Fort Lauderdale, for appellant.
    Galbut, Galbut & Menin and Abraham Galbut, Miami Beach, Jorden, Melrose & Schuette and Robert J. Schaffer, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We agree with the trial court that since the relevant insurance policies do not clearly and unambiguously create a coverage exclusion for the water loss suffered by the Dashes, the Dashes are entitled to total coverage, as a matter of law, on the 65%-35% participation ratio provided by the applicable insurance provisions. The trial court’s ruling is supported by the well-settled “general rule of interpretation that when the terms of an insurance policy are capable of two or more constructions, the construction permitting recovery is to be given effect.” Shelby Mutual Insurance Company of Shelby, Ohio v. Manchester, 376 So.2d 266, 268 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980) (and cases cited therein). Summary judgment in favor of appellees is affirmed.

Affirmed.


author: GLICKSTEIN; Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Reinaldo OLIVERAS, Appellee.
    No. 82-2167.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 1983.

      Richard H. Gaunt, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellant.
    Gary A. Esler of Esler & Kirschbaum, P.A., Fort Lauderdale, for appellee.
   GLICKSTEIN; Judge.

This is an appeal from a final declaratory judgment. We reverse and remand with direction to enter judgment in favor of appellant.

Appellee was injured in a traffic accident, allegedly caused by Kelly Dana Brown, who had an auto insurance policy with State Farm Mutual Automobile Insurance Company with maximum personal bodily injury liability coverage of $10,000 for each person. Ms. Brown’s father; Russell Brown, had a Success Protector Policy with State Farm Fire and Casualty Company with a $1,000,000 limit. As a daughter residing in the household and under twenty-one years of age, Ms. Brown was entitled to coverage under her father’s excess liability policy. Appellee sought from the trial court a determination that coverage of Ms. Brown under the State Farm Fire and Casualty Company picked up where her $10,000 coverage under the State Farm Mutual Automobile Insurance Company left off. State Farm Fire and Casualty Company contended the excess coverage picked up only after $100,000, leaving in Ms. Brown’s case a corridor of self-insurance in the amount of $90,000. The trial court entered summary judgment for appellee, holding that the terms of the excess policy were equally susceptible of both parties’ interpretations, and that because of the ambiguity, as a party claiming through the insured, appel-lee must prevail. We disagree, based upon the express language of the policy, the pertinent provisions of which are reproduced herewith:

Page 3
Insured: The unqualified word “Insured” includes the Named Insured and:
(1) any relative with respect to (a) an automobile owned by the Named Insured or a relative, or (b) a non-owned automobile, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission ...
Relative:' Any person (1) who is related by blood or marriage to the Named Insured, or who is a ward, adopted child or other person under the age of twenty-one in the care of the Named Insured and (2) who is also a resident of the same household as the Named Insured.
Retained Limit — Coverage L: The greater of:
(1) the total limit(s) of liability of any underlying insurance collectible by the Insured, provided that the limits indi-, cated for the underlying coverages listed or described in Declarations Item 5, shall be the minimum amounts of underlying insurance required to be maintained by the Insured, or
(2) the amount indicated in Declarations Item 4, as the “Self-Insured Retention” if the insurance afforded by such underlying policies is inapplicable to the occurrence.

1. COVERAGE L: PERSONAL LIABILITY

This Company will indemnify the Insured for ultimate net loss which the Insured shall become legally obligated to pay as damages, in excess of the Retained Limit — Coverage L, because of personal injury or property damage to which this insurance applies, caused by an occurrence, and then up to an amount not exceeding the limit indicated in Declarations Item 4, as “Coverage L — Personal Liability” as the result of any one occurrence; ‘provided that this Company shall not be required to assume any obligation of any underlying insurer which shall be deemed invalid or uncollectible by reason of (1) the Insured’s failure to comply with any condition of the policy subsequent to an occurrence or (2) the inability of the underlying insurer to pay by reason of insolvency or bankruptcy.
Page 5
Maintenance of Underlying Insurance: Insurance as afforded by each policy described in the Declarations Item 5 shall be maintained in full force without reduction in limits or scope of coverage during the currency of this policy, except for any reduction of the aggregate limit or limits contained therein solely by payment of claims in respect to accidents or occurrences during the period of this policy. Failure of the Insured to comply with the foregoing shall:
(a) with respect to any occurrence which comes within the provisions of Exclusion (d), invalidate this policy as respects such occurrence;
(b) with respect to any occurrence not provided for in (a) above, not invalidate this policy but in the event of such failure this Company shall be liable only to the extent that it would have been liable had the Insured complied therewith.

We reject appellee’s argument that only the named insured is required by the excess coverage policy to maintain a $100,000 primary policy and that other insureds such as Ms. Brown are not so required. To do otherwise would require us to overlook the clear definition of “insured” on page 3 of the policy. That definition plainly communicates that when the word “insured” is used without a modifier it refers not only to the named insured but also to one who meets the stated definition of “relative,” where certain stated automobile situations obtain. Thus when the Coverage L, Personal Liability, is explained, the Retained Limit on that coverage is detailed, and the Maintenance of Underlying Insurance clause speaks of the insured, the term “insured” applies to the person availing himself of the protection of the excess coverage policy — not merely the named insured, but, in the present instance, his daughter. Accordingly, the effect of Paragraph (b), on page 5 of the policy, reproduced above, is that if she did not have $100,000 primary coverage, which she did not, the first $100,000 of a proper claim against her nevertheless remained outside the liability of the secondary insurer. Since the insurance contract was not ambiguous, the contract must be given effect as written. Midwest Mutual Insurance Company v. Santiesteban, 287 So.2d 665 (Fla.1973). To hold otherwise would provide greater coverage for the daughter than the father at no cost to the daughter. Such proposition flies in the face of the policy’s language.

Because insurance company contract writers are ever so much more sophisticated than most insureds who buy the coverage, we urge the increased use of policies whose, provisions are written simply and directly so that all who can read will readily understand. This is a goal the legislature had set for automobile insurance in Section 627.421, Florida Statutes (1981), and made more explicit via Section 627.4145, Florida Statutes (Supp.1982), which was slightly amended by Chapter 83-216, Section 96, during the 1983 legislative session. Be that as it may, case law indicates that just because insurance contracts are complex instruments, the fact that analysis is required for one fully to comprehend them does not mean the contracts are ambiguous. See Travelers Insurance Company v. C.J. Gayfer’s and Co., 366 So.2d 1199, 1201 (Fla. 1st DCA 1979) (citing Blue Shield of Florida, Inc. v. Woodlief, 359 So.2d 883 (Fla. 1st DCA 1978)). The rule that ambiguities in insurance contracts are to be construed in favor of the insured, see, e.g., Gayfer’s, supra, is not license for our raiding the deep pocket.

If it is any solace to this very able trial judge, he and this intermediate court share the same fallibility. This carving in stone may, as in the past, swiftly be turned to sand.

HURLEY and WALDEN, JJ., concur.

      . Exclusion (d) alluded to in the above has to do with certain aircraft situations and therefore is not of concern here.

      . See also Wommack v. United States Fire Insurance Company, 323 F.Supp. 981 (W.D.Ark. 1971).


author: OTT, Chief Judge.

text:
    Joseph VANDERWALKER, Appellant, v. COLONIAL PENN INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 81-2337.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.

      Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellee.
   OTT, Chief Judge.

Appellant’s second amended complaint alleged that while riding his own uninsured motorcycle he sustained injuries in excess of the underinsured tortfeasor’s liability limits. The accident occurred prior to the effective date of chapter 80-364, Laws of Florida, which rendered the “anti-stacking” statute, section 627.4132, Florida Statutes (1979), inapplicable to uninsured/underin-sured motorist coverage. Appellant, a resident relative of his step-father’s household, sued appellee, his step-father’s insurer, to collect uninsured/underinsured motorist benefits. The complaint was dismissed with prejudice, the trial court specifying no grounds for the dismissal.

The policy excluded from uninsured motorist coverage “bodily injury to an insured person while occupying an auto that is owned by you or any resident relative but is not an insured auto under this coverage.” Appellant argues that such an exclusion was prohibited by the uninsured motorist statute in effect when this case arose. The Florida Supreme Court recently decided to the contrary, holding that section 627.4132, Florida Statutes (Supp.1976), permitted such an exclusion. New Hampshire Insurance Group v. Harbach, No. 62,226, 439 So.2d 1383 (Fla.1983). The supreme court stated:

We concur with the reasoning of the Second District Court of Appeal in [State Farm Mutual Automobile Insurance Co. v.] Wimpee [376 So.2d 20 (Fla. 2d DCA 1979)]. Section 627.4132, Florida Statutes (Supp.1976), provides that an “insured is protected only to the extent of the coverage he has on the vehicle involved in the accident.” As the court in Wimpee said, “[w]e are unable to interpret this other than to provide for no coverage when the insured has no coverage on the vehicle involved in the accident.” 376 So.2d at 21.

439 So.2d at 1385.

We need not decide the validity of the policy definition of “insured” pertinent to the uninsured motorist coverage which excludes from that coverage any insured while occupying a motorcycle. The end result would remain the same — appellant is not insured under his step-father’s uninsured motorist coverage.

The decision of the trial court is AFFIRMED.

HOBSON and DANAHY, JJ., concur.


text:
    FOREMOST INSURANCE COMPANY, Petitioner, v. The Honorable Judge BARRETT, Respondent.
    No. 83-2467.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1983.
    Edward R. Curtis of Fertig & Curtis, P.A., Fort Lauderdale, for petitioner.
    David L. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for defendant-Florida Power and Light Co.
   PER CURIAM.

Petitioner seeks a Writ of Mandamus directed to Respondent trial judge to require the trial court to give the parties adequate notice of the trial date as required by Florida Rule of Civil Procedure 1440(c).

We “requested” responses from any and all parties. Having received a response only from the defendant in the trial court which agreed with petitioner that the notice was inadequate and prejudiced the parties, we grant the Writ of Mandamus and direct the trial court to furnish notice of trial to the parties in accordance with the referenced rule.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    Thomas Milton SAMS, Appellant, v. STATE of Florida, Appellee.
    No. AP-443.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sams appeals from a conviction on two counts of armed robbery arid sentences of thirty years with three year minimum mandatory provisions on each count, such sentences to run consecutively, contending only that the trial court erred in imposing two consecutive minimum mandatory sentences. We agree. See Palmer v. State, 438 So.2d 1, 8 FLW 324 (Fla.1983) (rehearing denied, October 19, 1983).

Accordingly, we REVERSE only that portion of Sams’ sentences providing for consecutive three year minimum mandatory sentences and REMAND with directions to correct those sentences so that the two minimum mandatory sentences shall be served concurrently.

ERVIN, C.J., JOANOS, J., and PEARSON, TILLMAN, Associate Judge (Retired), concur.


text:
    STATE of Florida, Appellant, v. Joseph WILLIAMS and James Bruce, Appellees.
    No. 82-844.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Frank G. Callas, Palm Beach, for appel-lee, Williams.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellee, Bruce.
   PER CURIAM.

The State appeals an order suppressing stolen cigarettes and watches seized from the locked rear compartment of a wrecked U-Haul truck. With reluctance, we affirm. At approximately 7:00 a.m., a Florida Highway Patrol officer on routine patrol on Interstate 95 came upon the driver of a wrecked U-Haul truck. The driver was seriously injured and unable to walk or talk. The officer summoned an ambulance and the driver was removed from the scene. The officer then approached the U-Haul truck which was partially blocking the lanes of 1-95. The officer’s first concern at that point was rush-hour traffic congestion. Since the truck obviously could not be driven he immediately called for a wrecker to have it removed. Another occupant of the truck, Mr. Bruce, was present at the scene and was actually the lessee of the truck. The officer advised Mr. Bruce that the truck would have to be towed but did not advise him that he was at liberty to provide an alternative method of removal of the truck. At the motion to suppress the officer simply stated that he knew it was imperative to move the truck immediately so he availed himself of the fastest possible procedure. While waiting for the wrecker, the officer asked Mr. Bruce what cargo was in the truck. The officer stated that he did this because he was concerned about towing a loaded truck because the cargo could shift and be damaged. When the officer asked Bruce what was in the padlocked truck he responded that he did not know the contents of the truck and did not know why it was locked. He also stated that he did not have a key. The officer responded that he would have to check the contents before having the truck towed, and Bruce responded that the officer could simply do whatever he had to do. The padlock was removed and the contents of the truck were briefly examined. The officer found hundreds of cartons of cigarettes and retail display cases containing cigarette lighters. The officer, at this point, concluded the merchandise was probably stolen and that he was no longer merely investigating a routine traffic accident as he had previously assumed. The contents of the truck were eventually seized, and the trial court granted a motion to suppress.

The matter was presented to the trial court and to this court on the theory that •the officer was engaged in an inventory search of the vehicle after impounding it. We frankly do not view this as an impoundment case. Indeed, close inspection of the officer’s testimony indicates that he did not view it as an impoundment either. The officer was merely trying to avoid a huge traffic snarl on 1-95 and immediately move the truck. He was concerned for the cargo. This case probably does not fit any of the established precedents on automobile search and seizures. In addition, it certainly does not fit within the impoundment-inventory search precedents. See Miller v. State, 403 So.2d 1307 (Fla.1981). Here, no crime was suspected, and it was merely a traffic matter. The truck had not been impounded and the officer had no real desire to inventory the contents of the truck but merely to check it so that it could be safely towed. However, we cannot fault the trial judge. The motion to suppress was presented to the trial court as a question of impoundment and an inventory search. The court found against the state on this theory. On appeal, we are once again faced with an inventory search argument. We find the argument inappropriate and affirm the trial court.

AFFIRMED.

BERANEK and DELL, JJ., concur.

ANSTEAD, C.J., concurs in conclusion only.


text:
    Peter KNESKI and Dorothy Kneski, his wife, and Harry Horlick, Appellants, v. CITY OF MIRAMAR and American Druggists’ Insurance Co., Appellees.
    No. 82-2256.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Peter Kneski of Stern & Kneski, Miami, for appellants.
    James 0. Murphy, Jr., of English, McCau-ghan & O’Bryan, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

The order dismissing the American Druggist Insurance Co. is reversed because section 627.7262, Florida Statutes (Supp.1982), “has no application to a cause of action predicated on events which occurred prior to the effective date of the statute [October 1, 1982].” Vanbibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983).

REVERSED & REMANDED.

BERANEK, HURLEY and DELL, JJ., concur.


text:
    BOALT PROPERTIES, INC., and William E. Hutton, III, Appellants, v. RONALD J. GORDON-SMITH CORP., a Florida corporation, Ronald J. Gordon-Smith, Joseph M. Demauro and Annette Demauro, Appellees.
    No. 82-2446.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    James H. Schnare, II, Fleming, Haile & Shaw, Palm Beach, for appellants.
    James A. Farrel, Steel, Hector, Davis, Burns & Middleton, Palm Beach, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellees, Ronald J. Gordon-Smith Corp., and Ronald J. Gordon-Smith, individually.
    Dean J. Rosenbach of Lewis, Vegosen & Rosenbach, Palm Beach, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellees, Joseph M. Demauro and Annette Demauro.
   PER CURIAM.

Plaintiffs’ Fourth Amended Complaint, based upon the theory of an intentional interference with a business relationship, was dismissed. Plaintiffs appeal. We reverse.

We have surveyed the complaint, mindful that the well-pleaded allegations must be accepted as true. Suffice it to say, we feel that its content was legally sufficient to withstand a motion to dismiss. We reverse upon authority of Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964); Mead Corp. v. Mason, 191 So.2d 592 (Fla. 3rd DCA 1966); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971); and Krieger v. Ocean Properties, Ltd., 387 So.2d 1012 (Fla. 4th DCA 1980).

REVERSED

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Freddie HALIBURTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-253.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Robert E. Bourne, Jr., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Abreau, 363 So.2d 1063 (Fla.1978).

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    Kenneth E. STEVENS and Robert L. Elmore, Appellants, v. ENTERPRISE DEVELOPERS, etc., et al., Appellees.
    No. 83-494.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Clarification Denied Dec. 12, 1983.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for appellants.
    William D. Ricker, Jr., of. Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   BERANEK, Judge.

Appellant, Stevens, was held in contempt. He was also ordered to pay $3,000 toward the attorneys’ fees of the opposing parties as a sanction for his admitted conduct which the trial court found to be in direct violation of a prior judgment in the case. We reverse the finding of contempt in that appellant was not given appropriate notice of the court’s intention or the adverse parties’ desire to hold him in contempt. We remand this matter to the trial court with leave to any party or the court to proceed against appellant for contempt if so desired. This reversal is based solely on procedural errors and is not an indication that appellant’s conduct was not contemptous. The appellant has not raised or argued the separate imposition of the $3,000 sanction regarding attorneys’ fees and same is thus affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


text:
    Theodore TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 83-785.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s probation was revoked for four violations. The order appealed failing to accurately reflect the actual findings, we strike paragraph “V.” of the order and, as so modified, the order is affirmed.

MODIFIED and AFFIRMED.

ANSTEAD, C.J., and DOWNEY and HERSEY, JJ., concur.


text:
    Barry WAITE and Fox & Co., Appellants, v. SUMMIT LEASING & CAPITAL INTERNATIONAL CORPORATION, a corporation, and Wilbert Harold McCauley, Appellees.
    No. 83-1661.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Eric B. Meyers, P.A., Barbara E. Vice-vich, P.A., and Maxine M. Long of Shutts & Bowen, Miami, and Parker, Chaplin, Flat-tau & Klimpl, New York City, of counsel, for appellants.
    Peter J. Winders and James A. Gresser of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee, Summit.
   BERANEK, Judge.

The defendants appeal a nonfinal order denying their motion to dismiss based on forum non conveniens. We affirm.

The appellants are a multistate accounting firm and various partners. The firm’s headquarters are in Denver, Colorado, yet it has an office in Broward County, Florida, and one of the firm’s partners lives there. The only issue raised on appeal is whether the trial court abused its discretion in denying the defendant’s motion to dismiss based on forum non conveniens.

A court may only consider application of the doctrine of forum non conven-iens when both parties to the action are nonresidents of the state of Florida and the cause of action sued upon arose outside of Florida. Houston v. Caldwell, 359 So.2d 858 (Fla.1978). In this case, plaintiff was not a resident of Florida. However, the defendant partnership has a Florida office and a partner lives in the state. Therefore, the firm should be considered a resident of Florida, and the trial court did not err in denying defendants’ motion. We decline to follow the appellants’ urging that we depart from Houston v. Caldwell, supra.

AFFIRMED.

HURLEY and DELL, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Lee Charles DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1515.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    James Russo, Public Defender, Titusville, and Donald R. West, Asst. Public Defender, Sanford, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION TO REVIEW

ORFINGER, Chief Judge.

Defendant below seeks review of an order of the trial court denying his request that the trial proceedings be transcribed at county expense. Fla.R.App.P. 9.430.

By order of the trial court entered October 13, 1982, defendant was declared insolvent for purposes of appeal. Having been adjudged indigent, if he wants to appeal his conviction, he is entitled to do so without payment of any costs or fees. § 57.081, Fla.Stat. (1981); Chappell v. Florida Dept. of Health and Rehabilitative Services, 419 So.2d 1051 (Fla.1982). This includes the right to a transcript of the proceedings without cost to defendant. State v. Byrd, 378 So.2d 1231 (Fla.1979).

To require defendant to file the affidavit required by Rule 9.430 after his motion for declaration of insolvency has been granted is to require the doing of a useless act. Neither can the trial court refuse to authorize the preparation of the record because of a belief that the appeal lacks merit. Where the preparation of the transcript of proceedings requires the expenditure of public funds, the trial court has the authority to limit the record to those portions which fairly support the issues raised in the statement of judicial acts to be reviewed. Fla.R.App.P. 9.140(d).

The order denying appellant’s motion to proceed without payment of costs is reversed and the cause is remanded for further proceedings. The trial court is authorized to determine if the defendant has requested that the appeal be filed, and if he has so requested, the court shall authorize the preparation of the record as required by this opinion. If the trial court determines that the defendant does not wish to appeal and that the appeal has been filed without his knowledge and consent, the appeal will be dismissed upon receipt by this court of a certified copy of the trial court’s order so finding.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


author: COWART, Judge.

text:
    Troy G. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1257.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    Troy G. Sims, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant, in a Florida county jail awaiting trial on a state criminal charge, was, pursuant to a federal writ of habeas corpus ad prosequendum, released to and held by, federal authorities in a federal prison in another state. After disposition of the federal charges appellant was returned to the custody of the State of Florida. When later sentenced on the state criminal charges appellant was credited for all of the time he actually spent in the county jail before sentencing. He appeals the denial of credit on his state sentence for the time he was in the federal prison.

Section 921.161(1), Fla.Stat. (1981), requiring credit against a sentence for pre-sentence county jail time does not apply to time spent in jail in other states. Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974). See also Steele v. Wainwright, 419 So.2d 657 (Fla. 1st DCA 1982). Appellant was deprived of his freedom during the time he was in the federal prison in Alabama because of his federal charges and not because of Florida charges, detainers or warrants as was the case in Osteen v. State, 406 So.2d 1239 (Fla. 2d DCA 1981), and Zalla v. State, 404 So.2d 202 (Fla. 2d DCA 1981).

AFFIRMED.

ORFINGER, C.J., and DAUKSCH, J., concur.


author: SHARP, Judge.

text:
    Raymond RIDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-905.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Ridley appeals from adjudications and sentences based on five counts of robbery with a firearm. As in Harpham v. State, 435 So.2d 375 (Fla. 5th DCA 1983), the evidence disclosed that Ridley used a .22 caliber starter pistol in the robberies rather than a firearm. Ridley argues the trial court erred in failing to grant his motion for acquittal on that ground. We think the court erred in adjudicating Ridley guilty of the first degree felonies, based on these proofs.

It was established at trial that Ridley used an unmodified starter pistol which was incapable of firing a projectile. In order to expel a bullet, the barrel of Ridley’s starter pistol would have to be drilled with a drill and drill bit. A starter pistol like Ridley’s in its original, unmodified state is not designed to expel a projectile, nor is it readily convertible to such purpose. It therefore does not satisfy the definition of “firearm” in section 790.001(6), Florida Statutes (1981): “[A]ny weapon (including a starter gun) which will, is. designed to, or may readily be converted to expel a projectile by the action of an explosive.... ” Since the element of carrying a “firearm or other deadly weapon” is essential to establish the first degree felony crime of robbery, section 812.13(2)(a), Florida Statutes (1981), Rid-ley’s convictions cannot stand.

We are aware that some starter pistols, unlike Ridley’s, are designed to be manually converted for firing projectiles. Such a weapon might qualify as a firearm under section 790.001(6), but we do not think a pistol like Ridley’s is readily convertible, nor do we think that the presence of a hammer and nail, or even a drill and drill bit at the crime scene would transform Ridley’s type of starter pistol into a weapon defined by section 790.001(6). We recede from any dictum to the contrary in Harpham.

We remand this case for entry of judgments under section 812.13(2)(c), Florida Statutes (1981), and for imposition of sentences thereunder.

SENTENCES AND JUDGMENT VACATED AND REMANDED.

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

      . § 812.13(2)(a), Fla.Stat. (1981).


text:
    Virginia O. KIGHT, Appellant, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 83-131.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    Hale Baugh of Stromire, Westman, Lintz, Baugh, McKinley & Antoon, P.A., Cocoa, for appellant.
    E. Peyton Hodges of Cameron, Marriott, Walsh & Hodges, P.A., Orlando, for appel-lee.
   COWART, Judge.

This case involves whether a person injured in Florida by a non-resident motorist can acquire jurisdiction over a foreign liability insurer under section 48.193(l)(d), Florida Statutes (1981), merely because the liability policy issued in a foreign state provided coverage for risks anywhere in the United States.

Appellee, New Jersey Manufacturers Insurance Company, a foreign insurer, sold, in New Jersey, a motor vehicle policy to a New Jersey resident covering risks as to accidents occurring anywhere in the United States. Appellant Kight sued the non-resident insured and insurer in Florida as a result of an automobile accident occurring in Florida and attempted to obtain service of process on the foreign insurer under the Florida long arm statute, section 48.193, Florida Statutes (1981). The foreign insurer’s contractual obligations to defend its insured and to pay sums which its insured becomes legally liable to pay as a result of automobile accidents occurring anywhere in the United States is the only “contact” that the foreign insurer is alleged to have with or in the State of Florida.

Appellant appeals a non-final order quashing service of process attempted to be made on the foreign insurer under the Florida long arm statute. We affirm. •

A foreign insurer’s contract entered into in a foreign state insuring a foreign resident against liability resulting from an automobile accident occurring anywhere in the United States does not constitute such a minimum contact with all such states as is required by the federal constitutional due process requirement in order to confer in personam jurisdiction over the foreign insurer in any state where an accident may occur and liability arise. World-Wide Volkswagen, Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). See also, John E. Nettles, Truck Insurance Exchange, etc. v. White, 439 So.2d 1048 (Fla. 2d DCA 1983); Lakewood Pipe of Texas, Inc. v. Rubaii, 379 So.2d 475 (Fla. 2d DCA 1979), dism’d, 383 So.2d 1201 (Fla.1980), Kentucky Farm Bureau Mutual Insurance Company v. Mills, 367 So.2d 673 (Fla. 2d DCA 1979), cert. den., 376 So.2d 74 (Fla.1979).

We express direct conflict with National Grange Mutual Insurance Company v. Fondren, 433 So.2d 1276 (Fla. 4th DCA 1983).

AFFIRMED.

ORFINGER, C.J., and WATSON, Associate Judge, concur.


text:
    Robert B. RUSSELL, et al., Appellants, v. FLORIDA RANCH LANDS, INC., et al., Appellees.
    No. 83-506.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    Gordon H. Harris of Gray, Harris & Robinson, P.A., Orlando, for appellants.
    Cameron H. Linton of Thomas & Thomas, P.A., Orlando, for appellees Florida Ranch Lands, Inc. and Condev Group, Inc.

      Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, for appellee Grover Bryan, Inc.
   COWART, Judge.

THE AGREEMENT OF THE PARTIES: The real estate listing agreement between the parties provides

We [landowners-appellants] agree to pay you [appellee-broker] a 10% commission on the sale price should you produce a buyer who is ready willing and able to purchase for the price and on the terms set forth below. The commission shall be 5% should we refer the prospect to you, or should the property be sold by us or some party other than a cooperating broker.

THE FACTS: The landowners referred a third party broker with a prospect to appel-lee-broker, the two brokers agreed to cooperate and a sale resulted.

THE CONTROVERSY: The landowners claim they referred the prospect to appel-lee-broker and the commission is 5%. Ap-pellee-broker claims the property was sold by a cooperating broker and the commission is 10%.

THE PRIOR APPEAL: In this declaratory judgment action the trial court granted appellees’ motion for summary judgment and a 10% commission, which the landowners appealed as a nonfinal order that determined liability in favor of a party seeking affirmative relief contending that there were contested issues of fact one of which was whether the commission was 5% or 10%. This court affirmed without opinion. Russell v. Florida Ranch Lands, Inc., 426 So.2d 43 (Fla. 5th DCA 1983).

ARGUMENT ON ISSUES IN THIS APPEAL: Appellant takes this second appeal from the final summary judgment entered after our mandate and argues (1) on the prior non-final appeal this court had jurisdiction only to determine the correctness of the order granting summary judgment as to the issue of liability and now should consider if the trial court correctly interpreted the agreement as a matter of law, and (2) the conflicting interpretations of this contract demonstrates its latent ambiguity which precludes its interpretation as a matter of law by summary judgment and the intent of the parties must be determined as a question of fact by trial. Appel-lee argues this court had jurisdiction in the prior appeal and upheld the granting of the motion for summary judgment which includes a determination of the amount of the commission to be 10% and the law of the case precludes a reargument and redetermi-nation of that matter on this second appeal in this same case.

CONCLUSION: One of the issues involved in the motion for summary judgment resolved by the previously appealed order granting the motion was the liability of the landowners to appellee broker for a 10% commission under the terms of the agreement and the uncontested facts. That matter was necessarily included in the prior appeal and cannot be reconsidered.

AFFIRMED.

ORFINGER, C.J., and WATSON, Associate Judge, concur.

      . Fla.R.App.P. 9.130(a)(3)(C)(iv).


author: WATSON, Justice. LEMMON, Justice, DIXON, Chief Justice. DENNIS, Justice,

text:
    Vernon L. LEWIS v. EXXON CORPORATION and Robert D. Litt.
    No. 82-C-2367.
    Supreme Court of Louisiana.
    May 23, 1983.
    Rehearing Granted June 24, 1983.
    On Rehearing Nov. 28, 1983.
    Concurring Opinion Nov. 30, 1983.
    Rehearing Denied Jan. 6, 1984.

      Daniel L. Avant, John L. Avant, Avant & Falcon, Baton Rouge, for applicant.
    Glen P. Marcel, Wendell G. Lindsay, Jr., Lindsay & Marcel, Baton Rouge, Robert H. Wood, Jr., Metairie, Louise V. White, New Orleans, for respondent.
   WATSON, Justice.

In this tort suit by plaintiff, Vernon L. Lewis, the issue is whether Exxon proved its affirmative defense: that Lewis was performing work which was part of Exxon’s trade, business or occupation. LSA-R.S. 23:1061.

The trial court concluded that Exxon was the statutory employer of Lewis, resulting in tort immunity for Exxon and its employee, Robert D. Litt. LSA-R.S. 23:1032. The court of appeal affirmed. Lewis v. Exxon Corp., 417 So.2d 1292 (La.App. 1 Cir.1982). A writ was granted to review the judgment, 422 So.2d 422 (La., 1982), which is affirmed.

FACTS

Exxon Corporation operates a chemical plant and refinery in Baton Rouge, Louisiana. Exxon employs nearly nine hundred people who are cross-trained to do construction and maintenance work, including four hundred and twenty to four hundred and thirty craftsmen. This number includes approximately twenty-seven welders and a hundred and thirteen pipefitters. In March of 1977, Exxon had about a hundred and twenty-six men assigned to construction work. Exxon’s employees and contractors’ employees are used interchangeably on Construction projects to maintain a steady level of Exxon employment. Although Exxon is capable of handling projects of any size, larger construction projects are generally performed by independent contractors. How much expansion or modification is done by Exxon employees and how much by others is an economic decision.

H.E. Wiese, Inc., had contracted to convert an inoperative Exxon ethanol (ethyl alcohol) unit to production of isopropanol (rubbing alcohol), thereby giving Exxon three isopropanol units. An incidental part of the contract, included as a matter of convenience, was installation of a metering device, an orifice run, on an eight inch gas line in one of the existing isopropanol units, unit number two. The device would have been installed regardless of whether the ethanol unit was converted to isopropanol. It was intended to measure the residual gas sent back to the refinery from all the iso-propanol units. While Lewis, . a pipe-fitter/welder employee of Wiese, was welding an orifice flange on the eight inch gas line, a seal plug, intended to isolate that section of the line, blew out and he was injured. In March of 1977, the time of the accident, the gas line was not serving iso-propanol unit number four, the one being converted, because unit four was not yet in operation.

Although this orifice run was intended to eventually unite the three isopropanol units, orifice devices were added almost daily at Exxon, and their installation was a routine practice for Exxon employees. There are “hundreds and hundreds” of orifice devices in the Exxon plant. (Tr. 1655)

Before Lewis started welding, Robert D. Litt, the Exxon section supervisor for iso-propanol unit number two, issued a “hot work permit” (Tr. 677). There was evidence that use of the seal plug to block residual gas in the line was not a safe procedure. Exxon’s safety standards warn that seal plugs have been known to blow out. Although employees of Exxon and Wiese jointly decided to use the seal plug, Litt had the final responsibility in the matter.

Exxon closed the ethanol plant because there was a low profit margin in ethanol and the ethanol unit did not meet current environmental standards. Subsequently, Exxon decided to convert the plant to the manufacture of isopropanol. The same basic process is used to manufacture ethanol and isopropanol. Building a completely new isopropanol unit would have cost about forty-two million dollars and the conversion from ethanol to isopropanol cost about sixteen million dollars. Normally, Exxon classifies capital improvements as construction work and expense items as maintenance. Seven million dollars of this conversion represented a capital expenditure: nine million dollars was carried on Exxon s books as current expenses for replacing old instruments with new ones. Thus, the conversion was primarily an expense or maintenance job. The contract between Wiese and Exxon had a lump sum price of $3,224,089, approximately a fifth of the total cost of the conversion. Additional personnel or time would have been needed to do the conversion project with Exxon employees, but Exxon had people qualified to do all the work that was done by Wiese.

At the conversion project’s peak, approximately seventy pipefitters were employed; the job could have been completed with only twenty pipefitters in a longer space of time. It involved about a hundred thousand man hours and nine crafts, required a maximum of a hundred and seventy to a hundred and eighty people and lasted from August of 1976 until May of 1977.

Edward N. Boyle, Jr., head of project development at the Baton Rouge Exxon chemical plant, testified that his department was responsible for the isopropanol unit four plans. Twenty percent of the engineering drawings were made by Exxon and the balance by four contracting firms. All of the drawings could have been done by Boyle’s office.

An Al-dox unit for the manufacture of cosmetic alcohols had been built by Exxon employees in 1961 at a cost of about five million dollars. Also, the Exxon ethanol north unit burned completely in May of 1970 and the twelve story structure was rebuilt by Exxon employees. Approximately ninety people, representing all crafts, worked on the very dangerous and complex reconstruction. The employees worked in two shifts, seven days a week, twelve hours a day, in this emergency situation.

Although it is not Exxon’s custom to engage in major construction or major conversion projects with its own employees, the company has the capability and has done construction work when economically feasible.

LAW

When a principal engages a contractor to perform work which is a part of the principal’s trade, business or occupation, the principal remains liable for compensation to any injured employee of the contractor. LSA-R.S. 23:1061, supra. When the work performed by the contractor is part of the principal’s trade, business or occupation, workmen’s compensation is the exclusive remedy of the contractor’s injured employee. LSA-R.S. 23:1032, supra. A principal can be engaged in more than one business. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La., 1981); Slocum v. Lamartiniere, 369 So.2d 201 (La.App. 3 Cir.1979), writ denied 372 So.2d 569 (La., 1979); Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). In a tort suit by an injured employee of a contractor, the principal has the burden of proving that the work being performed was part of its trade, business or occupation. Reeves v. Louisiana & Arkansas Railway Co., 282 So.2d 503 (La., 1973). This factual issue turns on the particular circumstances of each case. Lushute v. Diesi, 354 So.2d 179 (La., 1977); Doss v. American Ventures, Inc., supra. Because the issue is factual, summary judgment is generally inappropriate. Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La., 1982); Quinn v. Progress Drilling, Inc., 401 So.2d 978 (La., 1981). Compare Barnes v. Sun Oil Company, 362 So.2d 761 (La., 1978). If the work being performed by the contractor’s employee is customarily performed by employees of the principal, it is a part of the principal’s trade, business, or occupation. Thompson, supra; Reeves, supra; Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (5 Cir.1980).

CONCLUSION

This was primarily a renovation project rather than new construction: a minor portion of the total cost was new capital investment. Reeves, supra, held that Humble Oil & Refining Company was not the statutory employer of the plaintiff injured in that case. Reeves involved the construction of a new petroleum coking unit, a job for which Humble had neither the design capability nor the manpower. On the other hand, Exxon had the design capability and manpower to do the renovation involved here. Exxon had performed work of similar magnitude with its own employees, but generally contracted out large projects in order to keep a steady level of employment. Because Exxon did construction and renovation with its own employees, it was in the construction business. A principal can be engaged in more than one business, Doss, supra; Slocum, supra.

In this factual situation, the Exxon-Wiese contract as a whole is irrelevant. Lewis was not working on unit four, which was being converted to isopropanol production by Wiese. Lewis was installing an orifice flange on the premises of unit number two, which was intended to meter the gas residue from units two, three and, eventually, four. Installation of the orifice flange was an incidental and nonessential part of the entire contract. Since such installations were routinely made by Exxon’s employees, the work being done by Lewis was customarily performed by Exxon’s employees. Thus, as to Lewis, Exxon had the status of a statutory employer. LSA:R.S. 23:1061, 1032, supra.

DECREE

For the foregoing reasons, the judgment of the court of appeal is affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., dissents and assigns reasons.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

Dissenting.

In determining whether the principal “undertakes to execute any work, which is part of his trade, business or occupation”, the court should focus on the overall scope of the work encompassed by the contract between the principal and the contractor. The majority has erred in this case by focusing its inquiry on the particular chore that the contractor’s employee was performing at the time of the accident.

When the focus is on the relevant inquiry under the statute, Exxon in my opinion has failed to prove that the work Exxon contracted with Wiese to perform was regularly, customarily and routinely done by Exxon with its own employees as part of its trade, business or occupation. Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973).

ON REHEARING

DIXON, Chief Justice.

This is a suit for damages by Vernon L. Lewis, an employee of H.E. Wiese, Inc., against Exxon Corporation. Exxon had employed Weise by contract to do certain work on the Exxon chemical plant in Baton Rouge. On original hearing, this court affirmed the decisions of the courts below, which held that Exxon was the statutory employer of the injured plaintiff. We granted a rehearing. We now reverse the earlier judgment of this court, and hold that Exxon was not the statutory employer of plaintiff. Plaintiff, therefore, is not limited to workers’ compensation benefits, but may recover damages ex delicto.

In the absence of statutory provisions, an employee of a contractor would not be considered to be an employee of the owner or “principal.” However, by statute, such an employee is deemed to be an employee of the principal when the contractor performs work for the principal in the principal’s trade, business or occupation. R.S. 23:1061; Johnson v. Alexander, 419 So.2d 451, 454 (La.1982). A principal, for purposes of workers’ compensation, is defined by statute as:

“... any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.” R.S. 23:1032.

Whenever a person fits the definition of a principal, he shall be obligated by the workers’ compensation statute to the injured employees of his contractors. Such a principal is known commonly as a “statutory employer.” See Barnes v. Sun Oil. Co., 362 So.2d 761 (La.1978); W. Malone & H. Johnson, Workers’ Compensation § 121 (La.Civ.L. Treatise vol. 13 1980).

The original policy behind holding principals liable for the injuries sustained by the employees of his contractors was to prevent principals from contracting out their work in order to avoid workers’ compensation liability. Johnson v. Alexander, supra at 454; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 572-73, 268 So.2d 656, 660 (1972); 1C A. Larson, The Law of Workmen’s Compensation § 49.00 (1982); W. Malone & H. Johnson, Workers’ Compensation, supra. As a trade-off, similar to that given to regular employers, statutory employers have been given immunity from tort suits by their statutory employees. R.S. 23:1032, 1061. Because of the ease of acquiring insurance, and the great protection from tort liability which workers’ compensation provides, statutory employer status is desirable for principals against whom tort claims are made by workers employed by others.

Two elements of the § 1032 definition must be met in order for a principal to be considered a statutory employer. First, the “work” must be a part of the principal’s “trade, business or occupation.” Second, the principal must have been engaged in that trade, business or occupation at the time of the injury. Absent either of these two conditions, the injury will not come within the scope of the workers’ compensation program.

Courts must look to the facts of each individual case to determine whether a particular activity is within the scope of a principal’s trade, business or occupation. Generally, in order for a work or project to be within a principal’s trade, business or occupation, it must be routine or customary, Benson v. Seagraves, 436 So.2d 525, 529 (La.1983); Reeves v. Louisiana & Arkansas Railway Co., 282 So.2d 503, 507-08 (La.1973), or some other type of activity which is necessary for the principal’s day-to-day operations. Put another way, the works contemplated by the statute are those activities which are an actual part of the nature and purpose of the principal’s enterprise. Extraordinary or nonrecurring constructions or repairs usually are outside the scope of the trade or business of manufacturing or production concerns. See 1C A. Larson, The Law of Workmen’s Compensation § 49.12, at 9-24 to 29 (1982). Only when the enterprise is accustomed to engaging in such projects as a part of its regular activities would such construction type works be covered by the statute. In addition to the regularity or predictability of the activity, it is also important to determine whether the employer normally is equipped to handle such projects, both as to manpower and equipment. Id. at 9-41. General maintenance and repair work, which by their nature allow the smooth and continued operations of the principal, are within the scope of the statute. Barnes v. Sun Oil Co., supra at 764; 1C A. Larson, The Law of Workmen’s Compensation § 51.23 (1982).

A principal can, however, be a statutory employer even if the project, during which an employee is injured, is not one of regularity or custom for the principal. Whenever a principal contracts to perform work for another—even if it is the first and only time that the principal plans to engage in such a project—he is, for the purposes of injuries resulting from that project, engaged in that trade, business or occupation. R.S. 23:1032.

The scope of the statutory “work” also is important. The specific task to which an individual employee is put should not be determinative of his coverage under the act. Instead, the entire scope of the work contract must be considered. Malone, Principal’s Liability for Workmen’s Compensation to Employees of Contractors, 10 La.L.Rev. 25, 39 (1949). To hold otherwise would be to allow co-workers—employees of the same contractor, working together on the same project—to have different remedies for injuries resulting from the same accident, depending on whether the principal engaged in the specific task in which one of the employees was working at the time of the accident.

It is irrelevant that the principal has the financial resources or expertise to enter into a particular trade, business or occupation. In order for any person to come within the scope of the statute,, he must be engaged in the enterprise at the time of the injury.

Exxon is in the business of refining petroleum and producing chemical products. It employs a large work force at its Baton Rouge chemical plant, where the accident occurred. Many of the employees are able to perform both general maintenance and construction work. According to Mr. J.B. Arbour, Division Manager of the Solvents and Specialty Division of Exxon’s Baton Rouge chemical plant, Exxon sought to take advantage of a stable, nonfluctuating work force. Thus, after completion of the so-called Al-dox cosmetic alcohol production unit in 1961, Exxon laid off the bulk of its construction crews. Major construction projects thereafter were contracted out and performed without Exxon employees. At the time of the conversion of the old ethanol plant to isopropanol production (the time of the accident), Exxon had not reversed its policy of contracting out construction work. Mr. Arbour further stated that Exxon could not have performed the conversion work and still maintained the normal operations of the chemical plant with its then-current staff.

In 1970, the Exxon plant suffered a major fire which destroyed a twelve story eth-elyne unit. As an emergency measure, Exxon employees were called upon to perform the prompt reconstruction of the EPLA-N unit. This emergency action was not considered as a change of policy.

In 1976, Exxon entered into a contract with H.E. Wiese, Inc. to convert an existing structure from the manufacture of ethanol to the production of isopropanol. As part of the conversion process, various connections to existing structures had to be made. As a part of the connection process, an “orifice run” was to be installed. It was during the installation of the orifice run that plaintiff, an employee of the contractor, was injured.

In this court’s original opinion, we found that Exxon’s own employees routinely installed such orifice runs throughout the plant’s premises, and, therefore, Exxon was in the trade, business or occupation of installing such things. This perception, however, was much too narrow.

The contract project as a whole must be considered. As Exxon has admitted, the orifice was included as a part of the overall plan for the conversion project. While Exxon claims that the run would have been installed even without the conversion, the fact remains that Exxon chose to include it as a “part of the overall package.” This broader view of the work as a whole is considerably more reasonable than the narrow view. The “work” contemplated by the statute can hardly be the individual tasks performed by each worker. Plaintiff, it is true, was injured while installing a particular device; his employer, however, was engaged in the conversion of a plant from one manufacturing process to another. The “work” at issue here is the employer’s work — the construction project. If Exxon was in the business of plant construction or conversion, it then would be protected by the statute.

During more than fifteen years, from 1961, when Exxon abandoned doing its own construction, until the date of the accident, Exxon engaged in such conversion or reconstruction projects only once, and that one time was an extraordinary exception to Exxon’s genera] policy; it was to rebuild a fire damaged plant, an emergency measure only. “Thus, it was not [Exxon’s] business practice to engage in ... construction of this type and magnitude, nor does the record support a conclusion that this type work was customarily done by [Exxon] ...” Reeves v. Louisiana & Arkansas Railway Co., supra at 508. Instead, Exxon was in the business of operating the plant once it was completed. See Thibodaux v. Sun Oil Co., 218 La. 453, 459, 49 So.2d 852, 854 (1950), quoting Horrell v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 607, 131 So. 709, 712 (1930).

Furthermore, even if Exxon could have used its own employees for the conversion project, the fact remains that Exxon did not. As stated earlier, it is essential that the work done by the contractor be a part of the trade, business or occupation of the principal before the principal is either liable under, or protected by, the workers’ compensation statute. Since Exxon consciously decided to get out of the major construction business in 1961, Exxon’s plant conversion did not come within the scope of the workers’ compensation statute. The record indicates that no regular Exxon employees were engaged in the project.

Since Exxon was not engaged in the trade, business or occupation of plant conversion/reconstruction at the time of the accident, it was not a statutory employer of plaintiff who was engaged in such operations. Consequently, Exxon is not protected by the exclusive remedy rule of the workers’ compensation statute. Plaintiff’s right to sue ex delicto, therefore, must be sustained.

The judgment of the district court and the court of appeal dismissing the suit of plaintiff Vernon L. Lewis is reversed and set aside, and the case is remanded to the court of appeal for further proceedings consistent with this opinion, at the cost of Exxon Corporation.

DENNIS, J., concurs and assigns reasons.

WATSON, J., dissents, adhering to reasons assigned on original hearing.

DENNIS, Justice,

concurring.

I agree with the majority opinion except for the dictum that whenever a principal contracts to perform work for another— even if it is the first and only time that the principal plans to engage in such a project — he is, for the purposes of injuries resulting from that project, engaged in that trade, business or occupation. The statement is a debatable proposition which is unnecessary to a decision in this case.

      . LSA-R.S. 23:1061, “Principal contractors: liability” provides:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      “Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      . LSA-R.S. 23:1032, “Exclusiveness of right and remedies; employer’s liability to prosecution under other laws” provides:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

      . Interrogatories propounded to Exxon asked that the company list every construction project similar to this one which had been performed by Exxon’s employees as a part of its trade, business or occupation. Exxon responded that it had rebuilt an ethylene unit in 1970. Exxon supplemented its answer immediately prior to trial with information relating to a second construction project, the building of the “Al-dox unit” (Tr. 72) in 1961. Trial was commenced on June 10 and 13, 1980, and completed in September of 1980. In August, after trial had commenced but before its completion, Exxon attempted to supplement its answers by listing four other conversion projects it had undertaken in the 1950’s. The trial court granted plaintiffs motion to strike the amendment and sustained a continuing trial objection to testimony about that information. Plaintiff contends that the trial and appellate courts then erred in relying on the inadmissible testimony. Since there is no indication of such reliance and the record gives an ample independent basis for the judgments, this argument lacks merit.


author: BAILES, Justice Pro Tempore .

text:
    STATE of Louisiana v. Randolph C. REDFEARN.
    No. 82-KA-1743.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., John J. Williams, Jr., Abbott J. Reeves, Jr., Asst. Dist. Attys., for plaintiff-appellee.

      S. Austin McElroy, Office of Indigent Defender, Covington, for defendant-appellant.
   BAILES, Justice Pro Tempore .

Randolph C. Redfearn was originally charged with aggravated burglary in violation of La.R.S. 14:60 and with armed robbery of Doris P. Smith in violation of La. R.S. 14:64. The grand jury returned a true bill on the armed robbery count. Initially, defendant pleaded not guilty to the armed robbery charge. Pursuant to a plea bargain agreement, defendant withdrew his former plea of not guilty and entered a plea of guilty of armed robbery, reserving his right to appeal the trial court’s rulings denying his motions to suppress a confession and physical evidence. After waiving the legal delay, defendant was sentenced to serve fifteen years at hard labor without benefit of parole, probation or suspension of sentence.

Five days later, on January 13, 1981, a bill of information was filed pursuant to the Habitual Offender Law, La.R.S. 15:529.1, accusing defendant of two prior convictions under the laws of Texas which would be a felony if committed in this state. The defendant filed a motion to quash the multiple offender bill on the ground that it violated the plea bargain. On April 7, 1981, the trial judge denied the motion to quash. Defendant thereafter pleaded guilty, reserving his right to appeal the court’s ruling on the motion to quash. He was sentenced to serve twenty-one years at hard labor which is to be served concurrently with the prior fifteen-year sentence on the armed robbery conviction. On appeal, defendant relies on five assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying the motion to suppress physical evidence obtained from his automobile allegedly in violation of defendant’s fourth amendment right to be secure against an unreasonable search and seizure. He further argues that the confession he gave after being confronted with the physical evidence that was allegedly seized unconstitutionally also should have been suppressed.

After returning from grocery shopping on September 15,1980, Mrs. Smith noticed a suspicious looking vehicle parked in front of her house. Before entering the house, she wrote down the license plate number of the vehicle on the back of her grocery list. Mrs. Smith then went into her house where she was robbed of her jewelry and silver. The suspect fled in the car that was parked in front of the house.

Mrs. Smith gave Covington police a description of the robber’s car and its license plate number and informed them that the suspect wore a stocking mask during the incident. Approximately two hours later, two officers observed the vehicle parked in front of a bar in Covington. The officers approached and ordered the defendant and a companion, Kenny Revere, out of the car. Defendant was taken to police headquarters and the car was towed to the police department pound. Prior to the release of the ear to defendant’s father, police officers conducted a warrantless search for evidence and found a stocking mask and a pistol. After being confronted with these items, defendant confessed to the robbery.

The fourth amendment of the United States Constitution and art. 1, § 5 of the Louisiana Constitution of 1974 protects every person against unreasonable searches and seizures. Warrantless searches are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Guzman, 362 So.2d 744 (La.1978). Absent a warrant, the state has the burden of proving that the search is justified by one of the exceptions to the warrant requirement. La.Code Crim.P. art. 703(D).

The exception at issue in this assignment of error is the “automobile emergency exception.” See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1929); Guzman, supra. The United States Supreme Court has held in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and its progeny that “when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody.” Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982); See U.S. v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163, n. 9, 72 L.Ed.2d 572 (1982); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975). Similarly, this court has held that a “warrantless search of an automobile parked on a public roadway is justified only when the police have probable cause to search and the circumstances require immediate action.” State v. Green, 404 So.2d 977, 978 (La.1981). See also State v. Cunningham, 412 So.2d 1329 (La.1982); State v. Nieto, 395 So.2d 733 (La.1981).

In the instant case, the police officers had probable cause to search defendant’s car, which was solidly linked to the recent robbery by the license number and description provided by the victim. Furthermore, the circumstances warranted immediate action. The vehicle was parked on a public street in front of a local tavern. It was accessible to anyone who might have a reason to move the vehicle or remove evidence from within. Defendant’s friend, Kennry Revere, was left at the scene of the arrest. In addition, defendant requested that his father be notified to retrieve the car. Given these circumstances, the officers could have conducted a constitutionally permissible search of the vehicle at the time of the arrest.

The arresting officer testified that he chose not to search the car on the scene because the location was dangerous. Instead, the car was impounded and then searched. Given that a warrantless search on the scene would have been constitutional, the later search at the police pound is also constitutional. The motion to suppress the physical evidence obtained from the warrantless search of defendant’s impounded car was properly denied. Therefore, the first assignment of error is without merit.

Defendant’s second assignment of error is that the trial judge erred in denying the motion to suppress a confession made by defendant after he was confronted with the above physical evidence. Because we hold that the physical evidence was properly seized, the confession is not tainted by its connection with these items. The motion to suppress was correctly denied and defendant’s second assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the institution of multiple offender proceedings against him by the St. Tammany Parish District Attorney’s Office is a breach of a plea bargain agreement, and, therefore, the trial court erred in denying his motion to quash the proceedings on this ground.

In the seminal case of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the United States Supreme Court enunciated the rule that “when a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” This court has also held that due process is denied when the state fails to comply with its agreements that induced a defendant to plead guilty. See State v. Hayes, 423 So.2d 1111 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981); State v. Niette, 363 So.2d 425 (La.1978).

In the instant case, the record indicates that the plea agreement was discussed before Judge Tanner at the January 8, 1981 hearing. As stated by counsel for defendant, the agreement is as follows:

The State has, also, agreed as part of the plea agreement that they will nolle pross and/or refuse any other companion charges that are counter parts to this armed robbery. That is burglary or anything else that’s similar that would rely on the same facts.

The assistant district attorney’s understanding of the agreement was also enunciated at this hearing:

Your Honor, I would like to clarify for the record upon arrest the defendant was charged with aggravated burglary and armed robbery. That was brought to the Grand Jury; they returned a true bill on the armed robbery. The State, as Mr. Mercer has stated is correct, has agreed not to pursue the aggravated burglary because of the plea to armed robbery.
I, also, would like to reflect what was just spoken of is the extent of any agreement. There is no other agreement between the State and the defendant other than what was just put into the record just now.

This plea arrangement and the entry of a plea of guilty to armed robbery occurred on January 8, 1981. Five days later, on January 13, 1981, the multiple offender bill was filed. The same trial judge before whom the plea agreement was negotiated denied defendant’s motion to quash the multiple offender bill. Thereafter, defendant pleaded guilty to this charge, reserving his right to appeal the court’s ruling on the motion to quash.

On appeal, the state contends that its agreement with defendant was limited to the armed robbery and aggravated burglary charges. At the hearing on the motion to quash the multiple offender bill, Mr. Williams, the assistant district attorney for St. Tammany Parish, insisted that “the State circumscribed their agreement with Mr. Mercer and the defendant to limit it only to the issue of aggravated burglary and armed robbery. Nowhere does it mention there anything about a multiple offender bill.” According to the state, it did not agree to refrain from filing a multiple offender bill.

Defendant vigorously disagrees with the state’s construction of the agreement. According to defendant, the agreement that was reached in Judge Tanner’s chambers and then restated in open court for the record clearly prohibits the institution of the multiple offender proceeding. As stated by defense counsel at the time of the plea, the state agreed to refuse any companion charges or “anything else that is similar that would rely on the same facts.” Since a multiple offender conviction must necessarily rely on the conviction for armed robbery, it is contrary to the agreement. However, the parties also agreed to a recommendation of a fifteen-year sentence; according to defendant, since the multiple offender proceeding seeks a sentence that is more onerous than the one agreed to, it is clearly contrary to the agreement.

We find that the institution of multiple offender proceedings is contrary to the plea agreement. Although the prohibition on filing a multiple offender bill was not expressly stated on the record when the plea was entered, we are persuaded by Judge Tanner’s remarks at the hearing on the motion to quash that this was the true nature of the agreement. The arrangement was made in Judge Tanner’s chambers and according to him “it was the Court’s understanding and I think it was yours that that was the end of the matter at that time. In other words, that you weren’t going to file any other bill.”

DECREE

Accordingly, we affirm the trial court’s rulings on the motions to suppress physical evidence and confessions and reverse defendant’s adjudication as a multiple felony offender and vacate his sentence on this charge.

       Bailes, J. sitting for Justice Marcus.

      . Defendant’s final two assignments of error also relate to the trial judge’s conduct at the hearing on the multiple offender bill. Assignment of Error No. 4 is that the defendant’s guilty plea to the bill should be vacated because he was not properly Boykinized prior to the court’s acceptance of the plea. See State v. Martin, 427 So.2d 1182 (La.1983). Assignment of Error No. 5 is that the sentence of twenty-one years at hard labor which is to run concurrently with the prior sentence is in violation of La.R.S. 15:529.1. Because of our resolution of Assignment of Error No. 3, we need not reach these issues.


text:
    STATE of Louisiana v. Robert C. PAGE.
    No. 83-KA-1049.
    Supreme Court of Louisiana.
    Oct. 19, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Asst. Dist. Atty., for plaintiff-appellee.
    Elizabeth W. Cole, Supervising Atty., New Orleans, Tim Francis, Student Practitioner, Tulane Criminal Law Clinic, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO, J., dissents.