author: FERGUSON, Judge.

text:
    ALICE P., Susan A., Jeanette R., Barbara D., Cathleen O., Doreen F., Helen M., Ilene T., Janet T., Margaret Y., Nancy J., Judy R., and two unnamed mothers, Appellants, v. MIAMI DAILY NEWS, INC., d/b/a The Miami News, and Thomas H. Dubocq; Morton Laitner, as attorney for Department of Health and Rehabilitative Services, Appellees.
    No. 82-1475.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Dec. 9, 1983.

      DeMeo & Sherman, Coral Gables, for appellants.
    Joseph P. Averill, Morton Laitner, Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellees are the Miami Daily News, a newspaper of general circulation, and Du-bocq, one of its reporters. They made a demand upon Laitner, as attorney for the Department of Public Health, Department of Health and Rehabilitative Services of Florida, pursuant to Chapter 119, Florida Statutes (1981) (Public Records Act), to inspect and copy:

Application for license as lay midwife (form # HRS-H, form 3014, Dec. 1981), together with attachments and contemporaneous submissions, and subsequent submissions filed by or on behalf of Linda Wilson.

Appellants are mothers whose babies were delivered with applicant in attendance at the births. The names and addresses of the appellants, as well as information concerning details of the childbirths, were submitted to the Department as an attachment to the application for a midwife license.

The Department disclosed to appellees on demand the application of Linda Wilson and certain attachments, but did not surrender detailed information of the births nor appellants’ names and addresses. The medical details of the births are contained in “birthing records” which, according to the Department, include “highly intimate information.” To be found in such records, in addition to the names of the patients, are (1) type of delivery — whether C section or vaginal, (2) significant laboratory findings, e.g., venereal disease, (3) cervical or vaginal lacerations, (4) whether enema was used, (5) delivery of placenta and firmness of uterus, (6) medical opinion as to condition of mother and child.

After a hearing on the petition for mandamus, the court entered an order which concluded:

Such records are public records pursuant to Chapter 119, Florida Statutes (1981) and are not exempt from disclosure. The Respondent, Morton Laitner, Esquire, as Attorney for Department of Public Health, Department of Health & Rehabilitative Services of the State of Florida and the agents, servants, designees, subordinates and employees of the Department of Health & Rehabilitative Services having custody of the requested documents are hereby ordered and directed to permit inspection of such requested documents.

This appeal is from that order granting a Preemptory Writ of Mandamus.

The Midwifery Statute, Chapter 485, Florida Statutes (1981), which was in effect at the commencement of these proceedings, required every applicant for a license to practice midwifery show that she attended at least fifteen cases of labor and birth, the dates engaged, and the names and addresses of the mothers. Pursuant to authority granted by statute (Section 485.051), the Department of Health and Rehabilitative Services adopted a rule to regulate the process of issuing licenses to practice midwifery. That rule, which governed the actions of the midwife applicant in this case, is Section 10D-36.22(1) of the Florida Administrative Code, which requires:

(1) Application for license shall be made on forms provided by the Department of Health and Rehabilitative Services and shall be accompanied by:
(a) Evidence of having attended within a one (1) year period under the supervision of a duly licensed and registered physician not less than fifteen (15) cases of labor including the care of not less than fifteen (15) mothers and newborn infants during the lying-in-period. Such evidence shall include:
1. A statement written by the attending physician in each case documenting the level of skill and competence exercised.
2. A list of the patient’s name, address and delivery date for each of the documented cases.
(b) Letters of recommendation for li-censure by at least two registered practicing physicians, one of whom may be the county medical director.
(c) Evidence of a physical examination by a duly licensed registered physician to be entered on a standard physical examination form. Such examination form shall be completed and signed by said physician indicating physical and mental fitness of the applicant to practice midwifery.

Appellants in opposing the release of the remaining documents to appellees contend: (1) such documents are exempt from the Public Records Act [§ 119.01 — 12] since they are confidential or otherwise protected from disclosure by law, citing specifically, Sections 119.07(3), 382.35, and 455.241, Florida Statutes (1981); and (2) disclosure of the documents in question would violate their rights to privacy as guaranteed by the United States Constitution.

One argument made by appellees, which we shall dispose of summarily, is that the appellants, having made the detailed birth information a matter of record without a requirement to do so, have waived any exemption from disclosure. Without addressing the substance of the contention, except to express doubt as to its merit, we note that the issue was not presented to the trial court. An issue not raised below cannot be raised for the first time on appeal. Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971); Secrist v. National Service Industries, Inc., 395 So.2d 1280 (Fla. 2d DCA 1981).

Appellee/newspaper contends also that appellants permitted the midwife applicant to use their names for the purpose of satisfying the licensing statute; that that permission caused the birthing records to become a public fact; and that once a private fact has been placed in the public domain, pursuant to the Public Records Act, no privacy interest, much less a constitutional interest is implicated. Not all private facts which come into the public domain via a governmental agency, however, are necessarily open to inspection by the general public. Section 119.07 carves out a number of exemptions from the scope of the Public Records Act.

Section 119.07(3)(a), which is relied upon by appellants, provides:

All public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt [from the Act].

Specifically, appellants argue that certain information submitted by the applicant, as required by statute, is exempt from disclosure for two reasons, (1) the information is that which is required for a birth certificate, and is exempt from disclosure under Section 382.35, and (2) the information is made confidential by Section 455.241, which protects the records of a medical doctor. We have also been invited to, in effect, legislate interstitially, by bringing midwifery reports within the protective umbrella of Section 455.241.

Our initial task in attempting to resolve the dispute is thus to determine whether any of the information sought by appellees is covered by a statute which preserves its confidentiality. Appellants first claim that disclosure of their names and addresses is protected by Section 382.35, which makes confidential certain information required for a birth certificate. Under Section 382.-35(1):

All birth records of this state shall be considered confidential documents and shall be open to inspection only as herein-before or hereinafter provided for.

Section 382.35(2) provides that copies of the birth certificate may be issued to enumerated persons, but excludes from disclosure that portion containing medical details and marital status. It is thus clear that some part of the birth certificate, which must be filed for each live birth, is open to public inspection. That would include at the least, the name of the institution or, if not an institution, the address where the birth occurred, the name of the mother, and the physician or licensed midwife in attendance during or immediately after the birth. See § 382.16, Fla.Stat. (1981). The fact that a midwife applicant attended the birth, however, is not reflected in that part of the birth certificate open to public inspection. If appellee were furnished with appellants’ names and addresses as requested, this fact would be effectively disclosed.

Appellees emphasize that it is not the birth certificate itself that is sought, but rather the information which is contained in the application for midwifery. It is clear, however, that the purpose of Section 382.35 is not to protect the sanctity of the birth certificate per se, but is instead to preserve the confidentiality of certain information relating to birth. Whether otherwise private information, which is made a matter of public record as a requirement of law, will be exempt or not exempt from general public examination is determined by the expressed legislative intent with regard to that information. The status of the information, as exempt from disclosure, does not change because it is submitted to a regulatory body in compliance with another statute or rule which does not expressly recognize that protected status. Since the information sought is otherwise unavailable to the public under the authority of Section 382.35, it is exempt under Section 119.-07(3)(a) from the Public Records Act.

Appellants next claim that the medical details of the births, contained in “birthing records”, are exempt from disclosure under Section 455.241. This statute prohibits public disclosure of the reports made of an examination or treatment by medical doctors, osteopaths, chiropractors, podiatrists, naturopaths, optometrists, nurses, dentists, dental hygienists, dental laboratories and veterinarians. It provides in subsection (2):

Such reports [of examination or treatment] shall not be furnished to any person other than the patient or his legal representative, except upon written authorization of the patient. Nothing, however, shall prevent the furnishing of such reports without written authorization to any person, firm, or corporation which, with the patient’s consent, shall have procured or furnished such examination or treatment or when compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical report shall be furnished both the defendant and the plaintiff.

It is clear that the detailed “birthing records” which are the subject of the dispute are not those of a licensed midwife, but those of a licensed physician who was supervising an applicant for a license to practice midwifery. Most of the information contained in those records could have been supplied only by one licensed to practice medicine, and therefore this information constitutes a report of treatment or examination as contemplated by Section 455.241. The records are thus exempt from disclosure under the Public Records Act.

We affirm the trial court’s order insofar as it permits inspection of the application for a midwife’s license, the certificate of having attended fifteen live births, and the attestations of physicians attending those births. However, we reverse that part of the lower court’s ruling which orders disclosure of the names and addresses of appellants and the medical details of the births. As to that information, made confidential by Sections 382.35 and 455.241, Section 119.-07(3)(a) applies to provide an exemption from the disclosure requirement.

We need not decide whether all reports filed by a midwife relating to professional services rendered are entitled to the same confidentiality as those filed by doctors, nurses, dental hygienists and veterinarians under Section 455.241, Florida Statutes (1981). Neither must we reach the constitutional issue presented by appellants. It is a settled principle of constitutional law that courts will not adjudicate constitutional questions where there are other grounds on which a cause may be disposed of. State ex rel. Kennedy v. Knott, 123 Fla. 295, 166 So. 835 (1936).

Affirmed in part and reversed in part.

      . Appellants were intervenors in the trial court. The Department took no position after the action was instituted.

      . The information given appellees by the Department prior to the filing of the mandamus action included (1) a cover letter by the applicant’s counsel which accompanied the application and other submissions, (2) the application which included applicant’s date of birth, education and health status, (3) an HRS form whereby applicant attested to attendance at fifteen live births under the supervision of a licensed physician stating date of delivery, city, and name of supervising physician, (4) letter of the supervising physician attesting to the applicant’s proficiency.

      .The trial court granted a stay of execution on the order pending appellate review.

      . Chapter 485 was repealed by S. 2, Ch. 82-99, Laws of Florida, effective July 1, 1982, and is now, with major revisions and additions, Chapter 467, 1982 Supplement.

      . Section 485.031(4)(b) requires that the applicant possess, inter alia, the following qualification:
      (b) Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in-period of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satisfaction of the department.

      . E.g., § 119.07(3)(c) answer sheets from governmental examination, (d) criminal intelligence information, (e) identity of confidential informants, (k) home addresses, telephone numbers, photographs of law enforcement personnel, their spouses and children.

      . This includes the information already given to appellees, enumerated in note 2, supra, which was properly disclosed.


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    The CANAL AUTHORITY OF the STATE of Florida, a body corporate under the laws of the State of Florida, Appellant, v. Joyce G. MAINER (formerly Joyce Elaine Gay), Ernest Gay, Ronald Gay and Verton Gay; Walter R. Berman, as Trustee; Francis S. Gay and Catherine Duane Gay; Ocala Manufacturing, Ice and Packing Company; Kenneth T. Hodges and Alverna C. Hodges, his wife; Hasty-Greene Investments, Inc., a Florida corporation; Silver Springs Shores, Inc., a Florida corporation; John H. Couse and Barnetta S. Couse; Astor West, Inc.; James J. Griffitts and Leola H. Griffitts, Appellees.
    Nos. 82-817 to 82-827.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.
    Rehearings Denied Nov. 28, 1983.

      Jim Smith, Atty. Gen. and Louis F. Hu-bener, Asst. Atty. Gen., Tallahassee, for appellant.
    C. Ray Greene, Jr., of Greene & Greene, P.A., Jacksonville, and Charles R. Forman, Ocala, for appellees.
   SHARP, Judge.

The Canal Authority of the State of Florida appeals from eleven consolidated final judgments ordering it to convey lands back to appellees, the former landowners, and ordering the former owners of the parcels to return the purchase prices paid through various condemnation proceedings completed many years ago. We reverse.

The Canal Authority, a corporate entity created by state law was formed in 1933. Construction of the canal project began in 1935, but stopped on June 20, 1936, when the initial congressional appropriation of federal funds was depleted. In 1942, the United States Congress continued the canal project by passing a law requiring local interests to provide the following assurances:

To furnish lands and rights-of-way required for the Canal; to take over and maintain and operate all highway bridges and roadways after completion, and to protect the United States from damages incident to the construction of the Canal.

In 1960 the Canal Authority extended the required assurances, which were formally accepted in November 1963. The federal government then appropriated funds to recommence construction of the canal project. Work began again on the project in February 1964, and proceeded continuously thereafter until stopped by President Nixon’s order on January 19, 1971. Only about 25 miles were actually excavated and none of the parcels in this case, were involved in the construction. Nothing has been constructed since 1971 except for the completion of the State Road 40 bridge, the restoration work in connection with what was to have been the railroad bridge relocation at Dun-nellon, and the construction of a fishing ramp platform for the handicapped at the spillway of Rodman Dam. Since 1971, no funds have been appropriated by the United States Congress for land acquisition, expansion, or construction of the canal project. In light of the above evidence, we affirm the trial court’s finding that the plans of the Canal Authority to construct the canal project have been abandoned, but we disagree as to the court’s application of this finding to the law in these cases.

The trial court, in essence, granted a re-cission remedy in these cases after it determined that a major part of the consideration for the acquisition of appellees’ lands was the future enhancement of the value of their remaining lands. This had not occurred because the canal was not built, and therefore, there was a failure of consideration. One fee in these cases was acquired by deed executed under threat of condemnation. The other fees were created by orders of taking. Two easements were held by the Canal Authority: one acquired by deed and one by an order of taking.

All of the fees in these cases were held by the Canal Authority in fee simple, without any condition or reservation. Such fee interests created by an order of taking cannot be collaterally attacked on the ground of failure of consideration unless extrinsic fraud is proved. There is no evidence whatsoever in this record to establish extrinsic fraud. This distinguishes this appeal from Canal Authority v. Ocala Manufacturing Company, 365 So.2d 1060 (Fla. 1st DCA 1979), and puts it in line with Carlor Company, Inc. v. City of Miami, 62 So.2d 897 (Fla.1953); Canal Authority v. Harbond, Inc., 433 So.2d 1345 (Fla. 5th DCA 1983); and Langston v. City of Miami Beach, 242 So.2d 481 (Fla. 3d DCA 1971). Similarly, failure of consideration, absent an affirmative showing of fraud, is not sufficient grounds for setting aside a fully executed and recorded deed. Under these circumstances, the Canal Authority may retain its ownership of the lands acquired in fee simple.

We reach a different result regarding the easements, however. The easements, by the very language of their creation, made their existence limited or conditioned upon use by the Canal Authority for the canal project, now abandoned. The document that conveys an easement to the Canal Authority from Hasty-Greene declares: “TO HAVE AND TO HOLD said rights and easement unto the Grantee and its assigns forever, or until such time as said property should no longer be required for the purposes of The Cross Florida Barge Canal project....” (Emphasis supplied). The circuit court order of taking that grants a perpetual easement to the Canal Authority from Ocala Manufacturing states that the easement is “for the purpose of constructing, operating, repairing, or improving the Cross Florida Barge Canal.... ”

Where a condemning authority only has an easement, and its right to use the property has been lost or the public use has ended, the easement is extinguished, and all of its rights revert to the owner of the fee. The owners of the servient tenements in these cases now hold their lands free from the public easements. No quitclaim deeds or payments to the Canal Authority are required.

We reject appellant’s contention that a sum based on current values of the land be returned to the Canal Authority by Ocala Manufacturing. There is little precedent or authority for such a requirement. The Canal Authority had the right to use the easement over the lands, which is what it paid for. Whether it was able to utilize the easement or not makes no difference. Further, there was no showing that Ocala Manufacturing procured the abandonment, or conducted itself unfairly in extinguishing the easement.

Accordingly, the final judgments are reversed and these proceedings are remanded for entry of final judgments consistent with this opinion.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . Ch. 374, Florida Statutes (1981); Ch. 16176, 1933 Laws of Florida.

        . 3 Nichols, Eminent Domain § 9.33 (3d ed.1981); C.J.S. Eminent Domain § 458 (1965).

      . The lands acquired in fee simple were those formerly owned by Astor West, Berman, Couse, Gay, Griffitts, Hasty-Greene (by donation), Hodges, Mainer, and Silver Springs Shores.

      . The lands acquired by easement were those formerly belonging to Hasty-Greene (by donation) and Ocala Manufacturing.

      . See Carlor Co., Inc. v. City of Miami, 62 So.2d 897 (Fla.1953).

      . Canal Authority v. Ocala Mfg. Co., 365 So.2d 1060 (Fla. 1st DCA 1979), is further distinguishable from the instant case in that it involved the rescission of a contract.

      . 19 Fla.Jur.2d Deeds § 54 (1980); see Collins v. McKelvain, 138 Fla. 463, 189 So. 655 (1939); J.C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981).

      . 3 Nichols, supra note 2, at § 9.36[1]; 30 C.J.S., supra note 2, at § 460.

      . Some older cases were split on the question of whether a condemning authority could recover damages paid after a project was abandoned. See Annot., 121 A.L.R. 12 (1939). However, the better view is that abandonment, after the fee owner’s right to damages have become vested, will not entitle the condemning authority to recover the funds paid to the owners. 30 C.J.S., supra note 2, at § 338.


author:
      BASKIN, Judge.
      BARKDULL, Judge,

text:
    GONPERE CORPORATION, Dora Perera and Old Republic Insurance Company, Appellants, v. Pedro REBULL and Candida Rebull, individually, and as husband and wife, Appellees.
    Nos. 82-1599, 82-2264.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Nov. 8, 1983.
    Greene & Cooper and Robyn Greene and Joan M. Bolotin, Mottlau & Wakefield, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel Eaton, Ross-man & Baumberger, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The issues in this appeal arise from the shooting injuries sustained by two tenants when an apartment building manager shot them and then shot and killed himself. A jury found that the injured tenants were entitled to recover damages under theories of respondeat superior and negligent supervision, hiring or retention. We' affirm.

About a week before the shootings, a man wandered into the apartment complex and urinated on the walkway near tenant Pedro Rebull’s door. After Pio Moreno, the 71-year-old apartment manager, and Rebull argued about Moreno’s management of the building, Moreno asked the owner, Mrs. Perera, to evict Mr. and Mrs. Rebull. When Rebull read his eviction letter, he approached the manager to discuss the matter. That discussion culminated in the shooting. Responding to questioning, Moreno later stated that he “told them to move and they didn’t move.” At trial, evidence disclosed that although Moreno had worked primarily as a carpenter, he had also worked as a policeman in Cuba and as an armed security guard in the United States. His employer, however, was unaware of his complete employment history.

The jury found that the shooting of Mr. Rebull fell within the course of Moreno’s employment and that the owners of the building were negligent. The jury awarded Mr. Rebull $375,000 for his injuries and $8,000 on his derivative claim and awarded Mrs. Rebull $40,000 for her injuries and $85,000 on her derivative claim.

As a general rule under the principles of the common law an employer is liable in damages for the wrongful act of his employee that causes injury to another person, if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, even though the wrongful act also constitutes a crime not a homicide or was not authorized by, or was forbidden by, the employer, or was not necessary or appropriate to serve the interests of the employer, unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer.

Stinson v. Prevatt, 84 Fla. 416, 418-419, 94 So. 656, 657 (1922); Lay v. Roux Laboratories, Inc., 379 So.2d 451, 453 (Fla. 1st DCA 1980). Thus, the issue is whether the employee’s purpose was to serve the principal or to serve himself. City of Miami v. Simpson, 172 So.2d 435 (Fla.1965); Dieas v. Associates Loan Co., 99 So.2d 279 (Fla.1957). See e.g., Parsons v. Weinstein Enterprises, Inc., 387 So.2d 1044 (Fla. 3d DCA 1980). Analysis of the employee’s conduct focuses on the purpose of the employee’s act rather than on the method of its performance.

If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient or convient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration.

Williams v. Florida Realty & Management Co., 272 So.2d 176, 177 (Fla. 3d DCA 1973) (citation omitted).

Whether the employee’s act was committed within the scope of his employment or in furtherance of the employer’s interest presents a question for jury determination. Simpson; Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); Parsons; Gold Coast Parking, Inc. v. Brownlow, 362 So.2d 288 (Fla. 3d DCA 1978), cert. dismissed, 368 So.2d 1367 (Fla.1979). Also for jury decision is the issue concerning whether the employer could have expected the conduct. Dieas.

The jury verdict rests on competent evidence and the verdict must be sustained. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977). Finding no merit in appellants’ other points, we affirm the trial court’s denial of appellants’ motion for summary judgment and directed verdict. The judgment is affirmed.

Affirmed.

BARKDULL, Judge,

dissenting.

There was insufficient evidence to raise a jury issue on negligent hiring, retention or supervision. Appellants can be charged with only such information as reasonable investigation would reveal. Appellees admitted at trial that investigation into Moreno’s background would not have revealed dangerous propensities. His background shows no such propensities. To prove negligent retentions or supervision appellees must show foreseeability and ability to prevent the violent acts. Even appellees were surprised by Moreno’s behavior. Appellants’ actions or inaction were not the legal cause of appellees’ injuries. In order to be a legal cause the actions of a defendant must more likely than not be a substantial factor in bringing about the result. Riddle v. Aero Mayflower Transit Co., 73 So.2d 71 (Fla.1954); Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977); Wayne v. Unigard Mutual Insurance Company, 316 So.2d 581 (Fla. 3d DCA 1975); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970); Restatement of the Law 2d, Agency, Sections 231 a and 235 e.

       Gonpere Corporation owns the apartment building. Reference to Mrs. Perera, the president of Gonpere, as owner is appropriate in this case.

      . The fact that a witness testified that he once heard that Moreno told someone he shot three people in Cuba, is consistent with his prior employment as a policeman and security guard.


author: PER CURIAM.

text:
    Felix PENA, Appellant, v. Martha CARIAS, Appellee.
    No. 83-145.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied Dec. 9, 1983.
    Markus, Winter & Feldman and Sheldon I. Pivnik, Miami, for appellant.
    Mark R. Baer, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Pryor v. James, 377 So.2d 252 (Fla. 2d DCA 1979).


author: BASKIN, Judge.

text:
    Robert A. HOWARD, Mary Kay Howard and Erwin Fiesler, Appellants, v. Evelyn Langlieb GREER; Evelyn Langlieb Greer, P.A.; Idus Q. Wicker, individually; Idus Q. Wicker, James A. Smith, Eric J. Blomqvist, Jr., Fred C. Davant, John F. McMath, G. Victor Tutan, Dennis O’Hara, and Jackson F. McCoy, individually and as partners in the law firm of Wicker, Smith, Blomqvist, Davant, McMath, Tutan and O’Hara; Jon E. Krupnick; Law Offices of Jon E. Krupnick, P.A.; Gerald Walsh; James Vincent Dolan; Walsh, Dolan & Krupnick, P.A.; Gulf Insurance Company; Select Insurance Company; and Lawyers Professional Liability Insurance Company; Northbrook Excess & Surplus Insurance Company, Appellees.
    Nos. 80-2328, 81-352.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 9, 1983.

      Bailey & Dawes and Jesse C. Jones, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Peters, Pickle, Flynn, Niemoeller, Steiglitz & Downs and Beth E. Speigel, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

The Howards, judgment creditors of the Anaconda Real Estate Investment Trust, challenge the trial court’s entry of summary judgment in favor of appellees and the denial of appellants’ motion for summary judgment. The effect of the trial court’s orders was an approval of the actions of Evelyn Greer, the attorney for the trust beneficiaries. Mrs. Greer successfully sued the former attorney for the trust for malpractice and distributed the sums obtained in the malpractice action to the trust shareholders. The Howards claim a prior right to recover the proceeds of the malpractice action as creditors under a judgment they obtained in an earlier lawsuit against the trust, Anaconda Real Estate Investment Trust v. Howard, 324 So.2d 725 (Fla. 4th DCA), cert. denied, 336 So.2d 1179 (Fla.1976). They assert that Mrs. Greer, who was court-appointed to administer the proceeds of the malpractice action for the insolvent trust, deprived them of their rights as creditors.

The Howards complain: (1) that Mrs. Greer incorporated into the malpractice settlement a provision requiring the settlement to be confidential; (2) that the confidential nature of the proceedings thwarted the filing of creditors’ claims against the newly-acquired trust funds; and (3) that they were entitled to satisfy their judgment from the settlement proceeds prior to any distribution to the trust shareholders. We find no error in the trial court’s rulings; we affirm upon a holding that the Howards waived their right to recover.

The Howards’ waiver stems from a negotiated accord and satisfaction. Having accepted transfer of all the assets of the trust in satisfaction of their judgment, the Howards may not claim that their failure to deliver the written satisfaction called for by the agreement invalidated its terms. When the Howards finally perfected their claim in a garnishment action in Broward County, the Broward court, Gilbert v. Krupnick, No. 77-1974 (Fla. 17th Cir.Ct.1983), determined that the judgment they held was satisfied when the trust assets were transferred to them. We concur in the Broward court’s findings on this issue. The Howards expressly waived transfer to them of the then pending malpractice claim, on the advice of their counsel. Acceptance of the benefits of the settlement by the Howards estops them, as a matter of law, from repudiating the accord and satisfaction.

In McGehee v. Mata, 330 So.2d 248, 249 (Fla. 3d DCA 1976) this court determined that:

If an offeror clearly attaches to his offer the condition that the offer, if taken at all must be received in satisfaction of the claim in dispute, and the other party received it, he takes that offer subject to the conditions attached to it, and the offer operates as an accord and satisfaction.

See also, Rudick v. Rudiek, 403 So.2d 1091 (Fla. 3d DCA 1981); Hannah v. Ryder, 380 So.2d 507 (Fla. 3d DCA 1980); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA), cert. dismissed, 365 So.2d 714 (Fla.1978); U.S. Rubber Products v. Clark, 145 Fla. 631, 200 So. 385 (1941).

In summary, the Howards accepted the trust assets in satisfaction of their judgment and expressly waived the right to seek the proceeds of the pending malpractice lawsuit. The summary judgment in favor of appellees is therefore affirmed.

Affirmed.


author: SCHWARTZ, Chief Judge.

text:
    AVIS RENT-A-CAR SYSTEMS, INC., Appellant, v. Georgina GARMAS and Jose Garmas, Appellees.
    No. 82-2185.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 8, 1983.

      Highsmith, Strauss & Glatzer and Phillip Glatzer, Miami, for appellant.
    Daniels & Hicks and Patrice A. Talisman, Feldman, Abramson, Smith, Magidson & Levy, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

Avis Rent-A-Car was a defendant below in a personal injury action arising from an accident admittedly caused by the grossly negligent operation of one of its rental vehicles. It appeals from an order granting the plaintiffs a new trial after a jury verdict in its favor. We affirm.

The record shows that Scott Lawrence and a friend, Laird Ferguson, went to an Avis office in Ft. Lauderdale to rent a car for a weekend trip to the Florida Keys. Lawrence had a credit card but his driver’s license had been suspended; Ferguson had a valid license but no credit card. Accordingly, the Avis representative required both Lawrence and Ferguson to execute the rental agreement which stated that Ferguson was to be the “only driver.” Lawrence, however, specifically placed his signature or initials at three separate places where, under the contract, the applicable Avis manual, or both, only the “renter” of the car was to sign. Indeed, Avis’ answer in this case admitted that Lawrence had “entered into a rental agreement with Defendant, Avis,” while denying responsibility for the misuse of the ear because the contract contemplated its operation only by Ferguson. The accident in question occurred three days later when, on his way to gas the car for the trip home, Lawrence, who had taken the keys while Ferguson was asleep, drove at 70-80 miles per hour onto the wrong side of U.S. 1 and struck a vehicle occupied by Georgina Garmas head-on.

Mrs. Garmas, who was severely injured, and her husband sued Lawrence and Avis for compensatory and punitive damages in the Monroe County Circuit Court. Lawrence defaulted, and Avis did not contest that his negligence had caused the accident. After the trial court directed a verdict in Avis’ favor as to punitive damages, the jury, in answer to special interrogatories, found in favor of Avis and assessed $20,000 for Mrs. Garmas and $5,000 for Mr. Garmas in compensatory damages, as well as $25,-000 in punitive damages, all against Lawrence alone. In those portions of the order now before us, the trial court then concluded that the verdict for Avis on liability and the awards of compensatory damages were contrary to the manifest weight of the evidence and ordered a new trial on both issues.

Under the Florida dangerous instrumentality doctrine, the owner of a vehicle is liable to third persons for its negligent operation by anyone to whom it has been entrusted, even if the bailee grossly violates the owner’s express instructions concerning its use. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959); Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla. 3d DCA 1968), and cases cited. As set forth in the trial court’s lengthy and well-reasoned order, the contents of which fully complied with the procedural prerequisites established in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), we agree — and surely do not find the abuse of discretion required to reverse such a conclusion, Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981) — that the jury’s finding that Avis did not under the circumstances and within the meaning of this rule surrender control of its car to its self-designated “renter,” Lawrence, was, at least, contrary to the manifest weight of the evidence. See Metzel v. Robinson, 102 So.2d 385 (Fla.1958) (aunt who, solely for financing purposes, took title to car used and paid for only by nephew liable as matter of law for operation of vehicle). Avis contends that Lawrence’s driving the vehicle despite the agreement that only Ferguson was to do so amounted to a “species of conversion” which, under dicta which appears in Susco at 112 So.2d 836, insulates it from responsibility. The actual holding of Susco is, however, itself a complete answer to this contention. In determining that a rental-vehicle-lessee’s departure from an express agreement that he could not permit anyone else to operate it did not affect the rent-a-car company’s liability, the supreme court held:

It is plain that these provisions are based on the assumption that an owner cannot deliver a vehicle into the hands of another without assuming, or continuing, his full responsibility to the public. Such statutory provisions would, of course, be quite nugatory if ultimate liability could be escaped by contract of the owner.
In the final analysis, while the rule governing liability of an owner of a dangerous agency who permits it to be used by another is based on consent, the essential authority or consent is simply consent to the use or operation of such an instrumentality beyond his own immediate control. Only to that limited extent is the issue pertinent when members of the public are injured by its operation, and only in a situation where the vehicle is not in operation pursuant to his authority, or where he has in fact been deprived of the incidents of ownership, can such an owner escape responsibility. Certainly the terms of a bailment, either restricted or general, can have no bearing upon that question, [e.s.]

112 So.2d at 837. It is clear that, by the very same token, Lawrence’s operation of the car when he was not supposed to was likewise merely a breach of the “terms of the bailment,” and not the “species of conversion or theft” to which Susco refers.

In the light of the extremely severe personal injuries and derivative damages sustained by the respective plaintiffs, as shown by the record and documented in the order, there was similarly no abuse of discretion in the finding that the compensatory awards were so grossly inadequate that a new trial was required on this issue as well. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Wackenhut Co. v. Canty, supra; Russ v. Iswarin, 429 So.2d 1237 (Fla. 2d DCA 1983); Lindgren, Inc. v. Dames, 382 So.2d 427 (Fla. 3d DCA 1980). The order under review, in its entirety, is

Affirmed.

      . The new trial order accurately relates:
      The rental contract is clear in its terms. The only mention or use of the verb “to rent” is contained on the back page of the agreement drafted by AVIS:
      TERMS FOR RENTING AN AVIS CAR

        “I rent from you the car described on the other side of this agreement and I agree to the terms below and on the other side. I, me and my refer to the person who signs this agreement. You and your refer to Avis.”
      (Emphasis supplied)
      In the only block provided by AVIS on its rental form for a signature (Box 17), only one signature appears. The signature is that of SCOTT LAWRENCE, who states that, “I have read and agree to the terms on both sides of this agreement.”

        Only SCOTT LAWRENCE’S signature appears in Box (17) of the Rental Agreement.

      The Avis Manual provides that for such box:
      “.. . Have the renter sign the Rental Agreement.” (Emphasis supplied)

        Only SCOTT W. LAWRENCE’S initials appear in Box (38) of the Rental Agreement.
      The Avis Manual provides for such box:
      “The Renter initials the space.... ” (Emphasis added)

        Only SCOTT W. LAWRENCE’S initials appear in Box (41B) of the Rental Agreement.
      The Avis Manual provides for such box:
      “The Renter initials the space.... ” (Emphasis supplied)
      On the other hand, the signature of LAIRD FERGUSON also appears on said form, but only in Box (18), entitled “CORRECTED BILLING NAME AND ADDRESS.”

      .The verdict form was as follows:
      WE, the jury, return the following verdict:.
      1. Was SCOTT W. LAWRENCE a rentee of the AVIS automobile in question?
      YES_ NO X
      2. Was AVIS negligent in failing to foresee that SCOTT W. LAWRENCE would violate the prohibition in the rental agreement and drive the rental vehicle?
      YES_ NO X
      3. What are the total damages of the plaintiffs?
      GEORGINA GARMAS $ 20,000
      JOSE GARMAS $ 5,000
      4. Should punitive damages be assessed against SCOTT W. LAWRENCE?
      YES X NO_
      (If your response is in the affirmative, please complete Interrogatory Number 5. Otherwise, have your foreperson date and sign your verdict and return it to the Court.)
      5.Amount of punitive damages: $ 25.-000

      . The trial court also awarded Lawrence a new trial as to punitive damages. The plaintiffs do not seek review of that portion of the order.

      . Indeed, although we do not directly so decide because of the appellees’ failure to raise the point here, it may be, as the trial judge noted, that the plaintiffs are entitled to a directed verdict in their favor on Avis’ liability. Our decision does not foreclose that relief being granted at the new trial.

      . Avis claims also that a jury question on the “conversion” issue was presented by conflicting testimony as to whether Lawrence had Ferguson’s permission to drive. Cf., Thomas v. Atlantic Associates, Inc., 226 So.2d 100 (Fla.1969); Pearson v. St. Paul Fire & Marine Ins. Co., 187 So.2d 343 (Fla. 1st DCA 1966). Since, however, and as we have seen, the evidence showed that Lawrence was himself given custody of the car by the owner Avis, this issue is entirely immaterial. On this point, the lower court correctly observed:
      There could be no “species of theft” by the one given custody and control of a motor vehicle through a rental agreement.... Whether SCOTT W. LAWRENCE drove the vehicle with or without the consent of LAIRD FERGUSON would be of no rhoment; one does not commit theft against himself.

      . By cross-appeal, the plaintiffs challenge the direction of a verdict for Avis on their punitive damages claim. We do not pass on the merits of this contention because any error was rendered harmless, 3 Fla.Jur.2d Appellate Review § 362 (1978), by the jury verdict, n. 2, supra, that Avis had not been' guilty either of renting the car to Lawrence in arguable violation of Sec. 322.38, Fla.Stat. (1981), or even of simple negligence. Since the defendant’s potential liability must therefore be based solely upon its vicarious responsibility without fault as the owner of the car under the dangerous instrumentality doctrine, it cannot be subject to punitive damages. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Waldron v. Kirkland, 281 So.2d 70 (Fla. 2d DCA 1973).


text:
    James EPPS, Appellant, v. Nancy EPPS, Appellee.
    No. 83-1264.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 8, 1983.

      Albert D. Diamond, Miami, for appellant.
    Burt E. Redlus, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Although a trial court may expedite proceedings and encourage out-of-court settlements, it may not compel a litigant to settle. Rosenfield v. Vosper, 45 Cal.App.2d 365, 114 P.2d 29 (1941); A & C Adjusters, Inc. v. Bragg, 205 A.2d 602 (D.C.1964).

Reversed and remanded.


text:
    Kenneth ALLEN and Edith Allen, his wife, Appellants, v. Ted HENDEL, Appellee.
    No. 82-2520.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 9, 1983.
    Allen, Margol & Fryfield and Glenn Allen, Jacksonville; Allan S. Maisel, Miami, for appellants.
    Wallace, Engels, Pertnoy & Solowsky and Ellen B. Spiegel, William Aaron, Miami, for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal taken by the plaintiff-buyers [Kenneth and Edith Allen] from a final judgment awarding specific performance on a contract for the sale of realty. The plaintiff-buyers complain on appeal that the trial court in its final judgment re-wrote the contract between the parties in several respects and failed to award them certain incidental damages. We are not persuaded by these contentions, save one, as we find that, on the whole, no abuse of the chancellor’s admittedly broad discretion in fashioning an equitable specific performance decree has been demonstrated on this record. See Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

There is, however, one point urged on appeal which we find meritorious. The trial court ordered in paragraph 5 of the final judgment that the plaintiff-buyers reimburse the defendant-seller [Ted Hendel] for certain expenses incurred by the said seller in maintaining the subject property until six days prior to occupancy by the plaintiff-buyers. We have carefully examined the contract between the parties, particularly paragraphs N, O, Q, and R therein, and find that the above expenses must be borne under the said contract by the defendant-seller, rather than the plaintiff-buyers. Accordingly, paragraph 5 of the final judgment must be stricken as being contrary to the governing provisions of the contract between the parties. See Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957).

The final judgment under review is affirmed save for paragraph 5 therein, which paragraph is hereby stricken.

Affirmed as modified.


author: FERGUSON, Judge. HUBBART, Judge

text:
    Stacy RUSTIA, Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, and Jose C. Rodriguez, Appellees.
    No. 83-81.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 9, 1983.
    S.Peter Capua, Miami and Paul W. Hum-bert, Miami Beach, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami and Richard A. Sherman, Fort Lauderdale, for ap-pellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The trial court entered summary judgment for Prudential on a showing that the insured had breached the insurance contract by failing to cooperate with his insurer. That summary judgment was improper, even in light of Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla.1976), which holds that failure of an insured to cooperate with his insurer will release the insurer from liability if the failure constitutes material breach and substantially prejudices the rights of the insurer in defense of the cause. Ramos further holds that the question of whether a failure to cooperate is so substantially prejudicial as to release an insurer from its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may be a question of law.

In Ramos, a case which was tried non-jury on the issue of coverage, the trial court made extensive findings of crucial facts, not the least of which were (1) the accident occurred on November 28, 1969, and the action was not initiated until August 9, 1971, (2) actual process was never made upon the insured notwithstanding valiant and persistent efforts by the plaintiff’s counsel to locate the insured, (3) the insurer received no notice of the accident from its insured and the insured failed to report the accident, (4) plaintiffs counsel first notified the insurer of the accident over a month after it had occurred, and (5) the insured was concealing his whereabouts and was attempting to avoid service of process. Further, all the facts found by the court supported its determination that the breach was material and substantially prejudiced the insurer.

Ramos also holds clearly that not every failure by the insured to cooperate with his insurer will release the insurer from liability. Thus, even if there is evidence that the insured failed to cooperate, there is still an issue of fact as to whether the failure was so substantially prejudicial that release of the insurer is appropriate.

Turning to the record before us, we find a judgment in favor of the insurer which makes no findings of fact. There are no interrogatories or depositions, even of known witnesses. The single affidavit filed in support of the motion for summary judgment contains the sworn statement of the insurer’s agent that the insured cannot be located. The agent concludes further that the insurer has been unable to prepare a defense. On the other hand, there is no evidence that the insurer has attempted to contact, interview, or depose any of the twelve witnesses listed in the parties’ pretrial catalogs. Also, unlike in Ramos, when this action was commenced actual service of process was made upon the insured, and it cannot be conclusively presumed that the insured will not appear for trial.

In this case, the insurer has not demonstrated that as a matter of law, it has been substantially prejudiced due to its insured’s failure to cooperate. Summary judgment was inappropriate. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the final summary judgment appealed from in all respects.

It is plain from this record that the insured Jose C. Rodriguez has totally disappeared from this country without a trace, that extensive investigation has revealed that the said insured and his family left Miami for Santo Domingo, Dominican Republic several years ago without leaving a forwarding address and without notice to the insurer, that the cause has twice been continued for trial below due to the insured’s failure to appear, that the insured has been unavailable for trial or deposition or consultation with insurer’s counsel, and that the insured’s presence is essential to the insurer so as to resolve a substantial question of insurance coverage which has been raised in this case. I think that under the circumstances this total disappearance of the insured from the cause is a prima facie showing that the insured has breached the cooperation clause of the insurance contract herein to the substantial prejudice of the insurer, and, that, accordingly, the absentee insured herein is not entitled to insurance coverage in this cause. Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71 (Fla.1976).

The court, however, holds that this total disappearance of the insured from the cause has not been adequately shown on this record and that, in any event, it is not clear that the insurer needs the insured’s presence for anything important in the case which it could not obtain from other sources. I would have thought that under the circumstances the insured’s disappearance and consequent prejudice to the insurer were obvious on this record, but the court in an overabundance of caution has taken a different view. Presumably, the insurer upon remand may adduce additional evidence to establish what seems already patently obvious, namely, that the insured has totally disappeared from this cause and cannot be located by anyone for trial, deposition or otherwise, and that the insured’s presence is essential to the insurer’s defense of this case. I think it unnecessary under the law to adduce such cumulative evidence, but presumably the insurer by today’s decision may do so upon remand and, in so doing, may yet earn the summary judgment to which I think it is already entitled under the law.


text:
    The STATE of Florida, Appellant, v. Andres DIAZ a/k/a Andy Diaz, Appellee.
    No. 83-264.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 9, 1983.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Kent Harrison Robbins, Miami, for appel-lee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

An executive warrant which is regular on its face and complies with the essential requirements for extradition, presents a prima facie showing of the propriety of extradition. See Moore v. State, 407 So.2d 991 (Fla. 3d DCA 1982). We reject Diaz’ contention that the necessary documents were facially improper because they contained no express language finding probable cause. The warrant signed by the superior court judge, however, sufficiently established probable cause for extradition. State v. Norman, 362 So.2d 467 (Fla. 1st DCA 1978).

Reversed and remanded.


text:
    Dalia SHEFER, Appellant, v. Izhar SHEFER, Appellee.
    No. 83-1967.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Rehearing Denied Dec. 8, 1983.
    Druss & Aschheim, Fort Lauderdale, for appellant.
    Jeffrey A. Schwarz, North Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

In a dissolution proceeding, the wife challenges the constructive service of process obtained over her pursuant to sections 49.-011(4) and 49.021, Florida Statutes (1981). She claims she was amenable to personal service of process pursuant to section 48.-193(1)(e), Florida Statutes (1981), particularly because her residence address was known to the husband. The long arm statute must be strictly construed. Bank of Wessington v. Winters Government Securities Corp., 361 So.2d 757 (Fla. 4th DCA 1978). Since it is undisputed that the parties never maintained a marital domicile in this state, long arm personal service over her was an impossibility under section 48.-193(3). See Arnstein v. Arnstein, 422 So.2d 1052, 1053 (Fla. 4th DCA 1982) (Anstead, J., specially concurring). Section 49.021 may be utilized only where, as here, personal service of process cannot be obtained.

Affirmed.


text:
    James H. SANFORD, Appellant, v. Mary Irene SANFORD, Appellee.
    No. 83-405.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Dec. 12, 1983.

      Joseph J. DeRoss, Jr., and Alberta S. Widman of Orr & DeRoss, Fort Pierce, for appellant.
    Robert P. Summers of Summers & Mak-emson, P.A., Stuart, for appellee.
   PER CURIAM.

This is an appeal from a dissolution of marriage judgment. We affirm except as to the following matter. The trial court awarded permanent periodic alimony to the Wife in the sum of “80.00 per week or 20% of the Husband’s gross income; whichever is greater”. The Husband appeals. We reverse and remand with instructions to delete the words and figures “20% of the Husband’s gross income; whichever is greater” thereby leaving the award to the Wife simply $80.00 per week. Kangas v. Kangas, 420 So.2d 115 (Fla. 2d DCA 1982). We do not think the award here operated or was designed to maintain the status quo as was the case in Mills v. Mills, 417 So.2d 298 (Fla. 1st DCA 1982), in that the automatic percentage figure does not take into account factors such as the Wife’s needs and other aspects of the Husband’s financial condition.

Affirmed in part; reversed in part; remanded with instructions.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: ORFINGER, Chief Judge. COBB, Judge,

text:
    George F. GIDDENS, individually, and for the use and benefit of Employer’s Insurance of Wausau, Appellant, v. DENMAN RUBBER MANUFACTURING COMPANY, etc.; World Tire Corporation, etc.; Admiral Insurance Company, etc.; and Pacific Indemnity Company, etc., Appellees.
    No. 82-902.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    Rehearings Denied Nov. 28, 1983.

      Daniel J. Roberson of Roberson & Roberson, DeLand, for appellant.
    Frank Marriott, Jr., of Cameron, Marriott, Walsh & Hodges, P.A., Daytona Beach, for appellee Denman.
    Sutton G. Hilyard, Jr., of Pitts, Eubanks & Ross, P.A., Orlando, for appellee World Tire Corp.
    No appearance for appellees Admiral Ins. and Pacific Indem.
   ORFINGER, Chief Judge.

Plaintiff, George F. Giddens, appeals a final judgment and the denial of a motion for new trial following an adverse jury verdict in this product liability case. Gid-dens was injured when a tire he was mounting in his employer’s garage blew off the rim. He sued the manufacturer and distributor of the tire and the manufacturer of the rim, alleging negligence in one count and strict liability in another.

Prior to trial, a final summary judgment was entered in favor of the manufacturer of the rim, and that judgment has not been appealed. During trial, at the conclusion of all the evidence, the plaintiff voluntarily dismissed the negligence count, and the case went to the jury only on the strict liability count. In the special interrogatory verdict, the jury found that the tire in question was not “defective when placed on the market.” Giddens contends, among other things, that he was prevented by an erroneous ruling of the court from fully developing the legal concept of “defect” in the tire, and is thus entitled to a new trial. We agree, and reverse.

Giddens alleged in his complaint that the tire in question was defective in that, when mounted on a 16.5-inch diameter rim, it had the propensity to separate from the rim and explode, and that the tire was placed on the market without adequate information or warning concerning this defect. Nowhere in the complaint was there any allegation as to the size of the tire. The parties, however, do not appear disturbed about this obviously important omission, because subsequent discovery proceedings indicated that the size of the tire was in dispute.

In deposition testimony, Giddens asserted that, as directed by his employer, he mounted the new 16.5-inch diameter tire on the 16.5-inch rim, that it was not a 16-inch tire, and that he knew that a 16-inch tire should not be mounted on a 16.5-inch rim. His testimony as to the consequences of mounting a 16-inch tire on a 16.5-inch rim was contradictory. At one point he testified that the tire might “bust,” at another point he testified that he didn’t think he could get the tire on the rim. He was emphatic, however, in his testimony that there was no warning label on the tire itself alerting a user to any danger in mounting the tire in question on a 16.5-inch rim.

In deposition testimony and by answers to interrogatories, defendants asserted that the tire in question was a 16-inch tire and that on every similar 16-inch tire Denman placed two distinct labels which remained on the tire when delivered by the distributor, World. One label, in large red letters read:

CAUTION. MOUNT ONLY ON 16" RIM. DO NOT MOUNT ON 16.5 RIM. FAILURE TO COMPLY WITH THIS WARNING CAN CAUSE BURSTING, RESULTING IN SERIOUS INJURY.

The other warning is on the label indicating the size of the tire, and although not as specific as the one mentioned above, cautions the user that tire and rim diameters must match in size and gives mounting instructions and other cautionary directions. This label then advises that “failure to comply with these safety instructions can cause the bead to break and the assembly to burst with force sufficient to cause serious injury.” Defendants’ witnesses all testified by deposition that these labels were on both tires which Giddens mounted that day, and that both were 16-inch tires. Giddens, by his depositions and affidavit, asserted that the tires were 16.5-inch in diameter, and contained no warning labels.

Defendants moved for summary judgment, arguing specifically that the alleged failure to warn of the danger in attempting to mount a tire on an incompatibly sized rim could not be a proximate cause of the plaintiff’s injury, because plaintiff believed he was correctly matching the tire and the rim. Any warning, they argue, would have been useless as a matter of law and would not have deterred Giddens, because he believed that the tire he was mounting was properly sized for the rim. The trial court agreed, and entered a partial summary judgment for defendant, holding that “said defendant’s failure to warn or to inform potential users of the danger of mounting or attempting to mount a 16-inch diameter tire on a 16.5-inch diameter rim was not a proximate cause of the accident referred to in the Amended Complaint, and was not a proximate cause of Plaintiff’s alleged injury.”

As his first point on appeal, plaintiff contends that the trial court erred in granting the partial summary judgment on the warning issue. We agree that the jury should have been permitted to decide the disputed issue of whether there was or was not a warning label (or labels) on the tire in question, and to determine whether the absence of such label, if that were the fact, was a proximate cause of plaintiff’s injury.

In West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976), the supreme court adopted the doctrine of strict liability in tort as espoused in Restatement (Second) of Torts, § 402A (1965). In West, the supreme court said:

In other words strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.

336 So.2d at 86, 87.

Before considering whether the issue of proximate causation should be submitted to the jury, we must determine if the failure to warn that a particular use of a product is dangerous to the user, makes the product “defective” within the meaning of Restatement of Torts (Second), § 402A.

Comment (h) to section 402(A) says, in pertinent part:

“A product is not in a defective condition when it is safe for normal handling .. . Where, however, [the seller] has reason to anticipate that danger may result from a particular use ... he may be required to give adequate warning of the danger (see comment j), and a product sold without such warning is in defective condition.” (emphasis added).

Comment j adds:

“Directions or Warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.
Where warning is given, the seller may reasonably assume that it will be read and heeded: and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

Professor ProSser has stated that:

“Defect” need not be a matter of errors in manufacture, in that a product is “defective” when it is properly made according to an unreasonably dangerous design, or when it is not accompanied by adequate instructions and warning of the dangers attending its use. Prosser, Law of Torts, 659 (4th ed. 1979).

The principle that an otherwise safe product may nevertheless be defective when no warning is given regarding the danger involved in a particular foreseeable use has been recognized, at least implicitly, in Cassisi v. Maytag Company, 396 So.2d 1140 (Fla. 1st DCA 1981). That same court, while holding that a tire is not an inherently dangerous product, has recognized the principle that:

Except with regard to products which are inherently dangerous as a matter of law, whether or not the manufacturer or retailer should have warned the consumer of a product’s dangerous propensities is a question for the jury based upon the manufacturer’s foreseeability of injury to the consumer.

Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575, 582 (Fla. 1st DCA 1977), rev. on other grounds, 358 So.2d 1339 (Fla.1978).

In considering the defendant’s motion for summary judgment the trial court was required to view all disputed issues of fact in a light most favorable to the plaintiff, Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Forys v. McLaughlin, 436 So.2d 280 (Fla. 5th DCA 1983), which in this case means that the court was required to consider that the warning labels referred to earlier in this opinion were not affixed to the tires in question. Unless it be said that the failure to warn was not, as a matter of law, a proximate cause of plaintiff’s injury, the issue of proximate causation is one for the jury. Blaw-Knox Food and Chemical Corp. v. Holmes, 348 So.2d 604 (Fla. 4th DCA) cert. dismissed, 351 So.2d 405 (Fla.1977). Defendants insist that a warning would not have deterred Giddens from mounting the tire, because he believed that he was mounting a 16.5-inch tire. However, at the time it considered the motion for summary judgment, the evidence before the court most favorable to the plaintiff on the warning issue was that he was mounting a 16-inch tire on a 16.5-inch rim and that the tire did not have the usual cautionary label which the manufacturer knows is required for the safe use of the tire. The evidence is thus susceptible of the inference that if the customary warning labels had been on this tire, Giddens would have been alerted to the fact that it was a 16-inch tire and that this tire must not be mounted on a 16.5-inch rim. Because disputed issues exist which, if determined by the jury in plaintiff’s favor, could have supported a proximate causal connection between the absence of the warning labels and the ultimate injury, these issues should have been resolved by the jury, rather than by the court on summary judgment.

The warning labels placed on its 16-inch tires by the manufacturer show clear evidence of the manufacturer’s appreciation of the danger involved in mismatching this tire and a 16.5-inch rim, and the foreseeability of injury from such mismatch, and the court should not have foreclosed the plaintiff from presenting this issue to the jury. We do not agree, as asserted by defendants, that the warning issue is controlled by our decision in American Motors Corporation v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981), pet. for rev. den., 415 So.2d 1359 (Fla.1982), because in Ellis, we said that there was no evidence adduced at trial “to show how any warning from AMC to the owner ... could have prevented or ameliorated the injuries ...” suffered by plaintiff: Here, there is available an inference that if the tire in question was a 16-inch tire and if it had contained the warning label, the plaintiff would not have attempted to mount it on the rim. The jury may or may not accept any of the plaintiff’s evidence or inferences, but it is the jury’s function to determine the facts and the inferences arising from them.

In Trujillo v. Uniroyal Corp., 608 F.2d 815 (10th Cir.1979), the facts tire quite similar. Trujillo was injured when mounting a 16-inch tire on a 16.5-inch rim, although he believed he was mounting the tire on a 16-inch rim. He testified that he knew that a 16-inch tire should not be mounted on a 16.5-inch rim, and the trial court excluded evidence of any absence of warning of the consequences of such mismatch. In reversing, the circuit court held:

A belief that it should not be done because it may hurt the tire, or even that it may cause injury, is different from knowing that there is risk of explosion or even fatal bodily harm. Not merely some risk, but the nature and degree of the risk must be appreciated.
Trujillo should have been permitted to show a properly instructed jury that he did not appreciate the danger of explosion, which is out of proportion to the risk he may have thought he was undertaking in mounting the tire.
If warned of the very serious consequences of attempting to mount a 16-inch tire on a 16.5-inch rim, Trujillo may have taken precautions he disregarded in this case. While the evidence may be strong that no warning would have overcome Trujillo’s mistaken belief as to the size of the tire, he nonetheless was entitled under the failure to warn theory to present the jury with that possibility.

Id. at 819.

The final judgment is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting:

It was the unequivocal sworn testimony of Giddens, both at trial and in his pretrial deposition, that the size of the tire he mounted was 16.5 inches. At trial he testified that he compared the tire to comparable tires and actually read a label on it prior to mounting that showed it to be a 16.5-inch tire. Based on past experience, he knew that to mount a smaller tire on a larger rim could cause it to “bust.” Given these facts, a warning label not to mount tires on larger rims would not have influenced or deterred the plaintiff in any way. Giddens’ assertion that he mounted a 16.5-inch tire enabled him to deny any contributory negligence at trial. It left him with the claim that a manufacturing defect in the tire caused it to explode — a claim rejected by the jury. Giddens now shifts gears on appeal and argues that perhaps, after all, despite his trial testimony, the tire really was a 16-inch tire, he may have been partially at fault, and a new jury could so conclude. As I see it, he is estopped to make this argument. He had his bite at the apple and he missed.

Such pragmatic posture shifts on appeal, prompted by an adverse jury verdict below, should be discouraged rather than encouraged. Cf. Elison v. Goodman, 395 So.2d 1201 (Fla. 3d DCA 1981) (stating the well-settled rule that a party is not permitted to alter a previously asserted position simply to avert summary judgment). I would affirm.


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    Bert WILLIAMS, Jr., Metropolitan Dade County Tax Collector, Appellant, v. NEW YORK CLUB OF FLORIDA, INC., Harmony Lodge No. 2463 of B’Nai B’Rith; Lake Carmel of B’Nai B’Rith Lodge 3074; and Howard Bolotin Eastern Shores Chapter of the City of Hope For Writ of Mandamus, Appellees.
    No. 83-34.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 9, 1983.

      Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for appellant.
    Maurice, Rosen & Chonin, North Miami Beach and Neil Chonin, Coral Gables, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

The dispositive question is whether the county Tax Collector is authorized by law to deny an application for a bingo permit where in his determination the lease of the applicant, which the Tax Collector requires to be submitted along with the application, but which is not required by ordinance, evidences a violation of the criminal statutes governing bingo operations.

The appellee, an eligible nonprofit corporation, submitted the fee and all other documents required by Dade County Ordinance No. 75-50, Code of Metropolitan Dade County, and requested renewal of its permit to conduct bingo games. Appellant, the Tax Collector, conditioned an issuance of the permit on receipt of a copy of the lease between the applicant and the owner of the premises where the games were to be held. Upon review of the lease the Tax Collector concluded that the lease arrangement violated the criminal laws, specifically Section 849.093, Florida Statutes (1981), by diverting a substantial part of the proceeds from charitable purposes to profit-making entities through rents. We note that in none of the cases relied upon by the Tax Collector had an administrator halted operation of bingo games by refusing to re-issue a license on the ground that the games were in violation of the criminal statute, Section 849.093. In Paskind v. State ex rel. Salcines, 390 So.2d 1198 (Fla. 2d DCA 1980), an order granting a temporary injunction requested by the appropriate law enforcement agency was affirmed on the basis of a violation of Section 849.093(9)(c). In North Bay Village Lions Foundation, Inc. v. City of Miami Beach, 338 So.2d 236 (Fla. 3d DCA 1976), cert. denied, 346 So.2d 1249 (Fla.1977), the trial court dismissed the appellant’s complaint against the city for declaratory and injunctive relief based on its finding, on stipulated facts, that the appellant permitted its premises to be used for a bingo operation in violation of Section 849.-093.

The applicant here is unlike the applicants in State ex rel. Bergin v. Dunne, 71 So.2d 746 (Fla.1954) (license issued by fraud or mistake as petitioner never passed a required examination) or State ex rel. Lacedonia v. Harvey, 68 So.2d 817 (Fla.1953) (building permit revoked because plans did not comply with the city zoning ordinance); thus, these cases, also relied upon by the Tax Collector, are inapposite. Appellee relies upon State ex rel. Huntington v. Lanier, 105 Fla. 597, 141 So. 880 (Fla.1932) where an application was made, supported by all the information required by ordinance, to operate a vending machine under the provisions of a city ordinance. The Tax Collector refused to issue the license and the applicant filed a petition for writ of mandamus to compel its issuance. The court held that, contrary to the Tax Collector’s argument, it was not necessary for the writ to state that the machines were not to be used in violation of the gambling laws. The court further held:

It was not necessary for the applicant for the license to state more in his application for the license than was required to be stated by the ordinance. Upon making the application, and tendering the required amount of money in payment for the license, in which application the applicant stated therein all that was required to be stated by the provisions of Section 3 of the ordinance, he was entitled to receive the license and it became prima facie the duty of the tax collector to issue the same.

At the hearing on the petition for a writ of mandamus in this case the issues were (1) whether the applicant was eligible for the license, (2) whether the application was for the purpose of conducting a legal activity, and (3) whether the appropriate fee and other informational documents required by the ordinance had been submitted, all of which issues were resolved in favor of the applicant. The Tax Collector was unable to show in defense that any provision of the ordinance authorized him to deny the application.

The issuance of the Writ of Mandamus directing the Tax Collector to issue a permit to conduct bingo games is AFFIRMED.

      . Section 849.093(9), Florida Statutes (1981) provides:
      (9) Bingo or guest games shall be held only on the following premises:
      (a) Property owned by the nonprofit organization;
      (b) Property owned by the charity or organization that will benefit by the proceeds;
      (c) Property leased full time for a period of not less than 1 year by the nonprofit organization or by the charity or organization that will benefit by the proceeds;
      (d) Property owned by and leased from another nonprofit organization qualified under this section; or
      (e) Property owned by a municipality or a county when the governing authority has, by appropriate ordinance or resolution, specifically authorized the use of such property for the conduct of such games.


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    Christine SPUHLER, Appellant, v. Lawrence B. SAVITSKY, M.D., Appellee.
    No. 83-412.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Rehearing Denied Nov. 22, 1983.
    John W. Williams and Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamp, St. Petersburg, for appellant.
    Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment entered in favor of appellee, a physician, on a claim of appellant Christine Spuhler.

The record reveals the existence of a genuine issue as to a material fact, namely the active negligence of appellee/defendant in the treatment and diagnosis of appellant/plaintiff. Accordingly, the summary judgment entered by the trial court against appellant is reversed. Fla.R.Civ.P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED for further proceedings consistent with this opinion.

BOARDMAN, A.C.J., and RYDER and DANAHY, JJ., concur.


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    GULFSTAR, INC. and Morrison Assurance Company, Appellants, v. John SHUMAN, Appellee.
    No. AR-458.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Donald C. Anderson and Enrique Escar-raz, III, St. Petersburg, for appellants.
    Robert P. Byelick of Lyle & Skipper, St. Petersburg, for appellee.
   PER CURIAM.

This cause is before us on appeal from a final order of the deputy commissioner, allowing the injured employee travel costs to a rehabilitation program under Section 440.49(1), Florida Statutes (1981). We affirm.

The claimant’s left ankle and foot were injured in a compensable accident, entitling the claimant to temporary total disability benefits. The claimant was also approved for a work evaluation at a vocational rehabilitation center. The employer/carrier, however, refused to authorize a rate of 20 miles per day, 20 cents per mile for the claimant’s travel to and from the rehabilitation center for the six-day evaluation.

Appellants argue that the Act does not expressly require the employer/carrier to pay for a claimant’s travel expenses to a rehabilitation program; that travel expenses are specifically allowed only for visits to the doctor’s office, Section 440.18, and for visits to a rehabilitation program when the claimant is required to live away from home to attend. Section 440.49(1)(d). Appellants argue the express allowance of travel costs in these two specific instances dictates the exclusion of travel allowances in instances not mentioned, i.e., instances where travel to a rehabilitation program does not require temporary relocation. However, the deputy commissioner properly rejected this narrow construction and interpreted the 1979 amendments to the Act to place greater responsibility on the employer/carrier for employee rehabilitation, holding:

The Workers’ Compensation Act, as amended in 1979 placed a further and greater degree of emphasis and responsibility on the employer/carriers in the State to take more active and affirmative steps toward pursuing a definitive rehabilitation program. Prior to August 1, 1979, the cost of that program was borne by the State with the liability having been shifted to the employer/carrier subsequent to the August 1, 1979 Amendment. The rehabilitation nurses with the State prior to August 1, 1979, upon writing an Individualized Written Rehabilitation Plan for an employee were subject to the funding availability through the State. Therefore, where fundings were not available for transportation, the Rehabilitation Nurses would then endeavor to prevail upon the employer/carriers to provide rehabilitation transportation expenses. The initial liability for the payment of costs incident to rehabilitation were effectively shifted from the State to the employer/carrier by virtue of the enactment and amendment to Chapter 440 in 1979....
... It is the finding of your undersigned that a part of the expense incident to a rehabilitation program is the expense incident to the employee-claimant transporting himself to and from his residence to the situs where the rehabilitation provider is affording the specific benefits as are outlined in section 440.49. A ruling to the contrary would result in a rather absurd situation wherein the employee-claimant could be accepted for a designated rehabilitation plan and/or work evaluation and not have the funds with which to transport himself to and from that evaluation.

The pre-1979 statute placed the entire burden of providing rehabilitation on the Division of Workers’ Compensation, Section 440.49, Florida Statutes (1978), while the 1979 amendments shifted this burden to the employer/carrier.

The Delaware Supreme Court in Mosley v. Bank of Delaware, 372 A.2d 178, 180 (Del.1977), construing its workers’ compensation statute, which did not expressly provide for transportation, held that the employer/carrier were obligated to provide claimants with travel expenses to a rehabilitation program, as follows:

[The] failure to take the offered treatment may result in forfeiture of the right of compensation; therefore, reason and fairness require that the employer assure the means of bringing the employee to the service. Otherwise, the tender offer [of rehabilitation benefits] would often be meaningless, and forfeiture of compensation would be the grossly unjust result of financial inability to travel to the place of the service.

Similarly, in Florida, an employee’s inability to travel to a rehabilitation program may result in a 50-percent reduction in the claimant’s weekly compensation. Section 440.49(1)(d), Florida Statutes.

Accordingly, the order of the deputy is affirmed.

ROBERT P. SMITH, Jr., and BOOTH and WIGGINTON, JJ., concur.


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    CITY OF HALLANDALE, Appellant, v. GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 83-455.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.

      Richard Kane, City Atty., City of Hallan-dale, Hallandale, for appellant.
    David S. Romanik of Landefeld & Ro-manik, Hallandale, for appellee.
   PER CURIAM.

The city of Hallandale filed a complaint for injunction and declaratory relief against Gulfstream Park Racing Association, Inc. The complaint centers around the validity and application of Chapter 81-132, Laws of Florida, which purports to exempt parimutuel permit holders from city and county building and zoning regulations under certain conditions. Gulfstream filed a motion to dismiss which was granted with prejudice. No reasons were stated in the order of dismissal as to why amendments would be disallowed. We reverse.

In ruling on a motion to dismiss, the trial court must accept as true all facts well pleaded. National Financing Corporation v. Weiche, 371 So.2d 707 (Fla. 4th DCA 1979). In seeking a declaratory decree, the City was entitled to contest the interpretation and application of the statute. The defendant’s motion to dismiss dealt primarily with the constitutionality of the statute, and it appears that this is what the court ruled on below. Even if the statute were constitutional on its face, the City should have been allowed to raise Gulfstream’s alleged noncompliance with the statute and the disputed interpretation and application of the statute. The statute seems to exempt defendant from all local regulation unless it can be shown that the proposed project is an immediate hazard to the health and safety of municipal residents. There is doubt as to whether the plans for the project must be submitted to the City for approval in compliance with the local codes at least as to safety standards. In short, the City was entitled to proceed with the declaratory decree action even if the decree was to be adverse to the City’s interests. Talcott v. Central Bank and Trust Company, 220 So.2d 411 (Fla. 3d DCA 1969).

The motion to dismiss also raises the City’s failure to join the Florida Pari-Mutu-el Commission as an indispensable party. If the trial court dismissed the complaint for this reason, then the dismissal was proper. However, Gulfstream concedes in its brief that failure to join an indispensable party is grounds for a dismissal without prejudice. We reverse and remand this matter to the trial court with directions to allow the City to amend its complaint to join the commission and to make such other amendments as it sees fit. We conclude that the complaint did state a cause of action at least to the extent stated herein.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.