author: SHIVERS, Judge.

text:
    WILLIAMS ROOFING, INC. and Chubb Pacific Indemnity Insurance Company, Appellants, v. Donald MOORE, Appellee.
    No. AU-36.
    District Court of Appeal of Florida, First District.
    March 16, 1984.

      Bernard J. Zimmerman, and Marshall S. Adler, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    0. John Alpizar, of Law Offices of 0. John Alpizar, P.A., Palm Bay, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeals an order of the deputy commissioner which, inter alia, awards wage loss benefits. Appellants argue that the deputy commissioner erred in awarding wage loss benefits because the loss of wages suffered by the claimant was not causally related to the industrial accident and because the claimant did not conduct an adequate work search. We disagree and affirm.

On October 29, 1979, Moore was working for Williams Roofing and sustained a com-pensable accident when he stumbled with a bucket of hot tar. The tar spilled on him, and some of it poured down into the glove on his right hand, badly burning that hand. Claimant was treated by Dr. Remark, a plastic surgeon, who performed several surgical procedures including extensive skin grafts on the right hand. Eventually, the fifth finger of the right hand was amputated. Despite the extensive plastic surgery, claimant’s right hand remained in a disfigured condition. The deputy commissioner states in the order sub judice:

In addition to the amputation in this instance and the obvious organic damage to the nervous system which occurs part and parcel to that amputation, I feel compelled as part of this Order to comment on the grotesque and catastrophic appearance of claimant’s right hand as he sat before me at this hearing. I begin by stating that this is perhaps the worst hand injury short of total amputation that I may have witnessed in all the years I have been hearing Workers’ Compensation cases. To say that this young man’s hand resembles a “claw” would not be enough. To say that he would be better off with a claw instead of what he has left may be more accurate. Besides the permanent loss of a finger because of the amputation, claimant has very little functional use of the remaining fingers of the right hand. The remaining fingers are bent, mangled and badly scarred. They are, for all practical reasons, totally useless to the claimant. The upper portion of the hand and the palm itself are badly scarred. The knuckles of the fingers and the joints themselves border on being totally exposed and the skin and surrounding tissue appears extremely thin.
At most, claimant is able to touch his thumb and index finger of the right hand in a pincher type maneuver. Otherwise, the hand appears totally useless. Claimant is also severely scarred about the right forearm and right elbow. There are some small scars on the left hand and arm which are not quite as significant. However, I cannot stress enough the catastrophic appearance of this man’s hand, even as he sat before me almost two and one-half (272) years post-accident.

Claimant was not released to go back to work until September 17, 1980. He reached maximum medical improvement December 17, 1980. Dr. Hicks, a plastic surgeon and associate of Dr. Remark, gave claimant a permanent impairment rating of 56% for the right hand under the AMA Guides. Upon being released to work in September 1980, claimant attempted to return to Williams Roofing, his pre-accident employer, but was not given a job. Claimant testified that he then looked for work at construction sites and found a job with Tom Davis Construction Co. Claimant was able to do the labor required by making certain adjustments, for example, he picked up cement blocks by running his hand through the block and resting the block on his forearm. Claimant worked at this job from September 1980 until January 1981, when he was fired because of excessive absenteeism. Claimant testified that he sometimes missed work during cold weather because the cold created a burning sensation in his hand. Claimant’s hand is extremely sensitive to cold and even room air conditioning can cause discoloration in the hand. After being fired by Tom Davis Construction Co., claimant checked the classified sections of newspapers, went to the State Employment Office almost every day, and went to a number of potential employers looking for work. In May 1981, claimant found a job with Cox Electric and worked there until December 1981, when he was laid off. Claimant again looked for work through the newspaper, the State Employment Office, and through friends and relatives. One month later, in January 1982, he found a job with Ace Auto Electric.

On February 27, 1982, claimant was running a lathe for Ace Auto Electric when his right thumb was caught by the machine and broken. Claimant suffered . a compound fracture which was treated by Dr. Risi, an orthopedic surgeon. Claimant was off work five weeks following this injury. Dr. Risi rated claimant with a 36% permanent disability of the thumb under the AMA Guides. Because of claimant’s preexisting problems with this hand, Dr. Risi could not make a determination of how much of claimant’s permanent impairment was due to the second industrial accident. The deputy commissioner compared Dr. Risi’s findings with the previous findings of Dr. Hicks following claimant’s first accident (considering only range of motion figures) and stated that claimant appears to have a 16% greater impairment of the right thumb following his second industrial accident. Claimant testified that after the second accident he had a problem working with small bolts, which problem he did not have after the first accident. There was no evidence, however, that the relatively minor additional impairment resulting from the second accident had any significant effect on claimant’s work. Claimant returned to work for Ace Auto Electric until he was laid off in May 1982. Claimant again looked for work with a number of potential employers and found a job with Southland Electric in July 1982. He worked there until he was fired in October 1982. Claimant again read the classifieds and checked with the State Employment Office. He looked for various jobs with the City of Melbourne and the City of West Melbourne, checking with the City of West Melbourne every week. In March 1983, he found a job doing lawn care, working *48 hours a week.

Claimant contended entitlement to various benefits from both the employer/carrier here and from Ace Auto Electric and its carrier. After a hearing on this claim, the deputy commissioner found, inter alia, that claimant’s wage loss was due to the first accident and not to the second accident. The deputy commissioner awarded wage loss benefits from December 17, 1980, through February 26, 1982, and from May 14, 1982, to the date of the hearing.

Appellants argue that there was no causal connection between claimant’s loss of wages and his industrial accident of October 29, 1979. Appellants maintain that the causal connection was broken by the fact that claimant was able to return to work for various employers until he was laid off for economic reasons unrelated to his industrial accident. Appellants cite this court’s decision in Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982), to support this position. By this argument appellants attempt to stretch the holding of Parker out of all proportion to the rationale of that case. Factually, the two cases are almost totally dissimilar. In Parker, the claimant’s disability and limitations were relatively minor. Parker returned to the same job with the same employer as before his industrial accident. Upon his return, Parker received a greater rate of pay than he had before he was injured. Parker was eventually laid off, and it was clear that this layoff was due solely to economic conditions and had nothing whatsoever to do with the industrial accident, Parker’s impairment, or his resulting limitations. Parker found another job which he considered superior to his previous employment. Much of his reasoning for considering the new job superior was unrelated to his injury or limitations. Parker refused to return to his former job even when Citrus Central offered it to him. In short, there was an absence of evidence in Parker from which it could be concluded that Parker’s wage loss was causally related to his industrial injury. The only analogy between Parker and the instant case is that both claimants, at one-time or another, were laid off for economic reasons. In the instant case, claimant has suffered a serious impairment with obvious limitations. Moore’s former employer, Williams Roofing, would not take him back even though he requested to come back. Additionally, there is evidence in the record that claimant suffered from chronic absenteeism during cold weather due to problems with his hand and that this absenteeism contributed to claimant’s firings and layoffs. In relation to his various employments, claimant testified that he was the last hired and the first fired. These facts are more than sufficient to establish a causal connection between the industrial injury and claimant’s subsequent wage loss.

As pointed out by Chief Judge Ervin in his special concurrence in D.L. Amici Co. v. Jackson, 444 So.2d 978 (Fla. 1st DCA 1983), this court’s decision in Parker contains a potential for abuse. Parker does not stand for the proposition that being laid off from employment for economic reasons negates a causal connection between the industrial injury and any subsequent wage loss. Nor does Parker stand for the proposition that a claimant can never prove a causal relationship if he returns to his pre-accident job at the same or greater pay but subsequently suffers a wage loss. Parker merely stands for the proposition that a claimant must produce competent substantial evidence from which there can be inferred a causal relationship between the industrial injury and any subsequent wage loss, and that evidence of being laid off for economic reasons unrelated to the injury, without more, is insufficient to establish this causal relationship. Parker stands for this proposition and no more.

In Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), rev. denied, 431 So.2d 989 (Fla.1983), this court interpreted section 440.15(3)(b)2., Florida Statutes (1979), and stated:

We think a more plausible and reasonable interpretation of the burden of proof provision is found by relating it to the requirement of showing a causal relation between the injury and a change in employment status, and to the specific qualifications and limitations on wage loss entitlement mentioned in the statute. That is to say, the burden of proof provision is to require the employee to go forward with evidence showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie, an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities.

Id. at 876. Whether a claimant has shown a causal relationship between the injury and a change in employment status is a factual question to be determined by the deputy commissioner from competent substantial evidence. The presence or absence of any particular fact, such as a layoff due to economic conditions, should not be legally determinative of the deputy commissioner’s finding. Rather, the deputy commissioner must look to the totality of the circumstances to determine whether a claimant has shown a causal relationship between the injury and the wage loss. One can easily imagine, for example, a claimant who, although admittedly laid off due to economic conditions, can produce evidence from which it can be inferred that his subsequent failure to be employed is causally related to the industrial accident. Nor would the fact that a claimant was fired from employment obtained subsequent to his injury prevent that claimant from showing the requisite causal relationship. See Lasher Milling Co. v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983). Also, as Chief Judge Ervin pointed out in his special concurrence in D.L. Amici v. Jackson, supra, a deputy commissioner is not bound to accept evidence of non-injury related motivation presented by an employer/carrier concerning an employee’s change in employment status if there is evidence which suggests that the industrial injury played some part in the decision or sequence of events. Indeed, so many factual situations can be imagined in which the holding of Parker would be inapplicable that to attempt a list would serve no useful purpose. No doubt, factual situations even beyond imagination could arise. Because of this, and because of the great potential for misinterpretation and abuse latent in Parker and its progeny, we think that Parker and the cases following it should be strictly construed and limited to their facts.

Appellants’ contention that claimant’s subsequent industrial accident prevented any wage loss after that accident from being causally related to the first industrial accident is also without merit. The deputy commissioner’s finding that the wage loss was not due to the second injury or accident is supported by competent substantial evidence. Appellants’ argument that a reduction in wage loss benefits is required by section 440.15(5)(d), Florida Statutes (1979), misinterprets that statutory section. That section states:

If an employee receiving wage-loss benefits suffers a subsequent injury causing an additional compensable wage loss, benefits for each wage loss shall be payable; however, the total wage-loss benefits payable shall not exceed the maximum compensation rate in effect for permanent disability at the time of the subsequent injury. Any reduction in wage-loss benefits due to such limitation shall be applied first to the benefits payable as a result of the prior injury.

This section mandates a reduction in wage loss benefits payable as a result of the prior injury only where the total wage loss benefits payable from both injuries would exceed the maximum compensation rate in effect for permanent disability at the time of the subsequent injury. The statute does not mandate a reduction in wage loss benefits payable as a result of the prior injury merely because a subsequent injury exists. Further, the section only applies where the subsequent injury causes an additional compensable wage loss. Here, the deputy commissioner found that no compensable wage loss was due to the subsequent injury.

Appellants ask this court to reweigh the evidence by contending that claimant’s work search in the instant case was not adequate. This contention is frivolous. The record contains ample competent evidence to support the deputy commissioner’s finding. Further, this claimant, with a blatant physical limitation, was extraordinarily successful in actually obtaining employment. Although it is true, as appellants argue, that this claimant often looked for work in places where he had previously been turned down, it is difficult to understand why claimant should be criticized for utilizing an apparently successful technique.

Accordingly, the order sub judice is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . Cf. City of Tampa v. Fein, 438 So.2d 442 (Fla. 1st DCA 1983) (argument that Fein voluntarily discontinued his employment for reasons unrelated to his compensable accidents resolved against City by deputy commissioner’s findings).

      . See Certified Grocers v. Opel, 430 So.2d 953 (Fla. 1st DCA 1983); Photo Electronics Corp./WPEC v. Glick, 432 So.2d 164 (Fla. 1st DCA 1983); Golden Gem Growers, Inc. v. Crow, 434 So.2d 41 (Fla. 1st DCA 1983); D.L. Amici Co. v. Jackson, 441 So.2d 978 (Fla. 1st DCA 1983).


source: Caselaw Access Project

author: NIMMONS, Judge.

license: Public Domain

text:
    William Roscoe BALLANCE, Appellant, v. STATE of Florida, Appellee.
    No. AU-278.
    District Court of Appeal of Florida, First District.
    March 16, 1984.
    Marlin M. Feagle, Lake City, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Ballance appeals from an order of the trial court which: (1) determined that Occidental Chemical Company is an “aggrieved party” for purposes of restitution as a condition of probation under Section 948.-03(l)(g), Florida Statutes (1981), and established a total amount of loss sustained by Occidental; (2) delegated to the appellant’s probation officer the responsibility of determining, from time to time, appellant’s ability to pay all or a part of the total amount of restitution set by the court and the responsibility of establishing a periodic payment schedule; and (3) required appellant to comply with such payment schedule. We affirm the order except insofar as it requires the appellant to comply with a payment schedule to be formulated by the probation officer based upon the latter’s future determination of the appellant’s ability to pay all or a part of the restitution amount set by the court.

Pursuant to his plea of nolo contendere, the defendant was placed on probation for a period of 15 years on a charge of “extortion by threat” under Section 836.05, Florida Statutes (1981). He was required to serve a one year term of incarceration as a condition of probation. The gist of the offense was that the defendant had maliciously threatened to injure J.P. MacArthur, vice-president and general manager of Occidental, unless MacArthur transferred a certain Occidental employee. Further details of the offense have not been furnished us on appeal.

At the time the defendant was placed on probation, the trial court provided that an evidentiary hearing would be held by the court to determine the requirements of restitution. At the hearing, the court received evidence of expenditures incurred by Occidental for special guard and security services, including off-duty deputy sheriffs, which Occidental arranged for in order to protect MacArthur from bodily harm threatened by the defendant. The special protection was furnished during a three-month period beginning in February, 1982, and was supplemental to the protection routinely provided by the Columbia County Sheriffs Office.

Appellant does not contest the amount of restitution ordered by the trial court nor does he urge that the security services were not reasonably necessary to afford MacArthur adequate protection from the danger of the defendant’s carrying out his threats. Appellant, however, argues that Occidental is not named in the information as a victim, that MacArthur is the only victim in the case, and that MacArthur has not reimbursed, nor is he obligated to reimburse, Occidental for the security costs incurred by Occidental.

Section 948.03(l)(g), Florida Statutes (1981), provides:

(1) The court shall determine the terms and conditions of probation and may include among them the following, that the probationer shall:
(g) Make reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court.

Similarly, Section 775.089(1), Florida Statutes (1981), provides:

(1) In addition to any punishment, the court may order the defendant to make restitution to the aggrieved party for damage or loss caused by the defendant’s offense, if the defendant is able or will be able to make such restitution. Restitution may be monetary or nonmo-netary restitution. The court may make the payment of restitution a condition to probation in accordance with s. 948.03.

Appellant urges too narrow a construction of the above statutory provisions. Limitation of the statutory meaning of “aggrieved party” to the victim named in the charging document would be a windfall for many defendants whose crimes unquestionably cause damage or loss to persons who, although not regarded as “victims” in the traditional sense, have a substantial nexus with the offense. MacArthur’s employment status with the putative aggrieved party was not merely an incidental aspect of this case. Indeed, if the threats made to MacArthur had not been related to his employment, we may very well not be persuaded to accord aggrieved party status to the victim’s benevolent employer who volunteers to provide private security protection for its employee.

Although we have not found a case directly on point, we have found Cuba v. State, 362 So.2d 29 (Fla. 3rd DCA 1978), instructive. There, the defendants in a lottery conspiracy case were ordered, as a condition of probation, to pay restitution in the amount of $14,000 toward the cost of investigation. On appeal, the appellants contended that the trial court’s order was not authorized by Section 948.03 because such could not properly be regarded as “restitution to an aggrieved party.” The Third District rejected that contention and accepted the state’s assertion that “the public, upon which the expense of the investigation ultimately is imposed, is the aggrieved party in this circumstance.” Compare Brenner v. State, 337 So.2d 1007 (Fla. 3rd DCA 1976), cert. den. 348 So.2d 944 (condition of probation requiring payment of police investigative costs sustained where defendants had agreed to such condition). If the public can be regarded as an aggrieved party for purposes of requiring payment of investigative costs as a probation condition under Section 948.03, we perceive no valid reason why we should not construe that section to accord aggrieved party status to a private entity such as Occidental under the circumstances of this case. Compare Purvis v. State, 442 So.2d 1085 (Fla. 2nd DCA 1983).

We must however, reverse that portion of the trial court’s order requiring the defendant to comply with a payment schedule to be formulated by the probation officer based upon the latter’s future determination of the defendant’s ability to pay all or a part of the restitution amount set by the court. At the restitution hearing, the court determined that the defendant did not have the present ability to pay any of the restitution amount ordered. There was nothing wrong with the court’s keeping the defendant “on the hook,” so to speak, for payment of the restitution at some appropriate period during the term of his probation depending upon his ability to pay. Compare Winfield v. State, 406 So.2d 50 (Fla. 1st DCA 1981); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). However, just as the determination of the amount of restitution is a non-delegable judicial responsibility, see Fresneda v. State, 347 So.2d 1021 (Fla.1977); Hamm v. State, 403 So.2d 1155 (Fla. 1st DCA 1981), so also is the determination of the defendant’s ability to pay. Fletcher v. State, 405 So.2d 748 (Fla. 2nd DCA 1981); Reeves v. State, 372 So.2d 1016 (Fla. 2nd DCA 1979); cf. Haynes v. State, 441 So.2d 661 (Fla. 1st DCA 1983).

The state contends that the defendant’s complaints regarding this aspect of the restitution order are premature and that this court should not consider the questions raised by the defendant until after a ruling adverse to the defendant on a violation of probation proceeding after the appellant has been charged with a failure to comply with the probation officer’s payment schedule. We disagree that the defendant must wait until that time to raise such objections to the court’s restitution order. Cf. Reeves v. State, supra; Section 775.089(1), Florida Statutes (1981).

We do not mean to suggest that there is anything wrong with the trial court’s requiring the probation officer to: (1) monitor the defendant’s economic circumstances during the probationary period; (2) notify the court at such time as the defendant appears to have the ability to commence restitution payments; and (3) furnish the court with a recommended payment schedule. However, before any such payment schedule is adopted by the court, the defendant must be afforded the opportunity to be heard on his ability to comply therewith.

Affirmed in part and Reversed in part and Remanded for amendment of the subject order consistent with this opinion.

ERVIN, C.J., and SMITH, J., concur.


author: WENTWORTH, Judge.

text:
    Bonnie A. HEMPHILL, Petitioner, v. ZION HOPE PRIMITIVE BAPTIST CHURCH OF PENSACOLA, INC., a Florida Corporation, et al., Respondent.
    No. AV-221.
    District Court of Appeal of Florida, First District.
    March 16, 1984.

      Mary M. Callaway, Pensacola, for petitioner.
    Barry Rhodes of Reynolds & Rhodes, Pensacola, for respondent.
   WENTWORTH, Judge.

This is an appeal from an interlocutory order granting plaintiffs/appellees a temporary injunction restraining appellant from assuming or exerting any authority as pastor of the Zion Hope Primitive Baptist Church of Pensacola, Inc., pending the final disposition of this case. We affirm.

Appellant had been the pastor of Zion Hope since 1977 when a dispute arose among members of the congregation regarding his continued employment. On July 5, 1983, a group of members calling themselves the Board of Trustees held a meeting and fired the pastor. The pastor was informed of the action of the trustees on July 8, 1983, but the following Sunday he convened, and attempted to conduct, the church service. Although the parties agree on very little, they do agree that the services did not proceed in an orderly manner, but were disrupted by “considerable turmoil.” Thereafter, this action was filed in the name of the church by the members of the group who had fired appellant. The amended complaint sought a temporary and permanent restraining order as well as an accounting. It is the trial court’s order granting the temporary injunction, restraining appellant from acting as pastor of the church, from which this appeal is taken.

Appellant contends that the trial court’s order is in violation of the provision in the First Amendment to the United States Constitution which prohibits government interference in ecclesiastical matters. According to appellant, the court cannot determine whether he was rightfully fired without construing matters of church doctrine, an activity clearly prohibited by the First Amendment. However, when the controversy turns on whether a minister’s discharge was accomplished in accordance with the corporate charter, ecclesiastic matters do not come into play and the civil courts are an appropriate forum for the type of relief sought here. Cf., Epperson v. Myers, 58 So.2d 150 (Fla.1952); Covington v. Bowers, 442 So.2d 1068 (Fla. 1st DCA 1983). The complaint in this case alleges that the church is a duly authorteed corporation and that the discharge was accomplished in accordance with the articles and bylaws of the corporation. Copies of those articles and bylaws are included in appellant’s appendix, and reveal that no interpretation of church doctrine is required to effect a judicial construction of those provisions pertaining to the discharge of corporate employees. Therefore, the trial court’s acceptance of jurisdiction and resulting orders do not violate the constitutional requirement of separation of church and state.

Affirmed.

MILLS, J., and McCORD, Jr. (Ret.), Associate Judge, concur.


text:
    Ronnie CREAMER, Melissa Sims and Edwin Glass, Petitioners, v. STATE of Florida, Respondent.
    No. AX-224.
    District Court of Appeal of Florida, First District.
    March 16, 1984.
    Graham Clarke, Panama City, for petitioners.
    Gregory C. Smith, Asst. Atty. Gen., for respondent.
   WENTWORTH, Judge.

This is a petition for writ of common law certiorari seeking review of a circuit court order requiring the petitioners to appear without their attorney before the state attorney to answer questions pursuant to § 27.04, Florida Statutes. For the following reasons, the petition is granted and the order below is quashed.

On December 1, 1983, Myrtle Creamer was arrested by a Bay County police officer and later released from custody without any charge having been filed against her. On January 16, 1984, her husband, daughter, and daughter’s boyfriend [petitioners] were subpoenaed by an assistant state attorney to appear in his office for questioning pursuant to § 27.04. When petitioners appeared as requested, they were accompanied by an attorney, Graham Clarke. The witnesses were called into the state attorney’s office separately and each went in with Mr. Clarke. In response to questions by the state attorney, each informed him that Mr. Clarke’s services had been retained for the purposes of the interview and that if Mr. Clarke was evicted from the office the witness would leave too. Each time, the state attorney ordered Mr. Clarke to leave the office, and each time the witness left with him.

On January 23, 1984, the state attorney instituted the proceedings which resulted in the order of which petitioners now seek review. That order commands petitioners to appear without their attorney and expressly states that “their attorney shall not be allowed in the office of the State Attorney during the questioning pursuant to Florida Statutes 27.04.” Because we find that part of the order barring petitioners’ counsel from the office is not in compliance with the essential requirements of law, we grant the writ and quash the order.

We recognize that there is no statutory or constitutional right to assistance of an attorney when one is questioned pursuant to the state attorney’s investigatory powers and therefore a witness who is so called may not refuse to answer or appear because his attorney is not available. Gordon v. Gerstein, 189 So.2d 873 (Fla.1966). However, an attorney may be present during the questioning so long as he does not interfere with the course of the investigation. Id. Thus, the trial court erred in barring petitioners’ attorney from the questioning in the absence of evidence that he was disrupting the investigation.

The petition for writ of common law cer-tiorari is granted, and the order of the circuit court is hereby quashed.

MILLS and BARFIELD, JJ., concur.

      . Incidentally, Mr. Clarke at one point answered yes when asked whether he had been retained to represent Myrtle Creamer in connection with her arrest.


author: THOMPSON, Judge.

text:
    MIAMI-DADE WATER & SEWER AUTHORITY and Old Republic Insurance Company, Appellants, v. David LEECH and Division of Workers’ Compensation, Appellees. and CAROL CITY UTILITIES and Southeast Title and Insurance Company, Appellees/Cross-Appellants, v. David LEECH and Division of Workers’ Compensation, Appellants/Cross-Appellees.
    No. AS-76.
    District Court of Appeal of Florida, First District.
    March 19, 1984.

      John F. McMath, Miami, for appellants.
    Alfred D. Bieley, Miami, for appellee David Leech.
    Sally R. Doerner, of Walton, Lantaff, Schroeder & Carson, Miami, for appellee Carol City Utilities and Southeast Title & Ins. Co.
   THOMPSON, Judge.

Miami-Dade Water & Sewer Authority and Old Republic Insurance Company (E/C # 2) appeal a workers’ compensation order which found that claimant sustained a com-pensable injury on December 14, 1977, while employed by Carol City Utilities, whose carrier was Southeast Title and Insurance Company (E/C # 1), that claimant sustained a second compensable injury on April 6, 1978, while employed and covered by E/C # 2, and which ordered E/C # 2 to pay, inter alia, temporary total disability (TTD) benefits arising out of both accidents, and certain medical expenses. E/C # 2 argue that the deputy commissioner (deputy) erred in ordering them to pay all TTD benefits, medical bills, costs, and attorney’s fees, erred in awarding TTD benefits from April 6, 1978, through April 24, 1978, erred in impliedly finding that the condition requiring knee surgery was causally related to the April 6, 1978 injury, and erred in awarding further remedial medical treatment in the Houston, Texas area. E/C # 1 argue on cross-appeal that the deputy erred in admitting the post-hearing deposition of Dr. Barry. We reverse in part and affirm in part as to the points raised by E/C # 2 and we affirm the point raised on cross-appeal by E/C # 1.

Claimant sustained a compensable injury to his right knee on December 14, 1977, and was released to return to work by Dr. Rohan on December 28, 1977. E/C # 1 paid claimant’s salary during this period when he was unable to work as a result of the accident. Upon return to work, claimant performed the same duties as he had performed prior to the accident. When ap-pellee-Carol City Utilities was subsequently taken over by appellant-Miami Dade Water & Sewer Authority, claimant continued to perform the same duties for the latter as he had for the former. Claimant subsequently sustained a second compensable injury to his right knee on April 6, 1978 and was again released to return to work by Dr. Rohan on April 24, 1978. E/C # 2 paid claimant’s salary during this period when he was unable to work as a result of this accident. In June 1978 claimant resigned to go to college. However, instead of going to college claimant subsequently worked on an off-shore barge as an orderly, an oiler, and subsequently as a “roughneck” and a “roustabout” until December 1979. Claimant’s right knee was operated on in November 1980 by Dr. Rohan and again in August 1981 by Dr. Barry.

The deputy ordered E/C # 2 to pay claimant TTD benefits for the following periods: from December 14, 1977, to December 28, 1977; from April 6, 1978, through April 24,1978; from November 20, 1980, through December 31, 1980; from August 6, 1981, through October 28, 1981; “and to date and continue payment of same until such time as the Claimant reaches maximum medical improvement or returns to work without further loss of salary.” E/C # 2 were also ordered to pay the medical bills of Dr. Barry and Palmetto General Hospital and to furnish claimant with further remedial care in the Houston, Texas area.

The deputy erred in ordering E/C # 2 to pay TTD benefits for the period from December 14, 1977, to December 28, 1977, because E/C # 2 were not the employer/ carrier at the time of the December 14, 1977 accident. Accordingly, there is no basis for imposing liability on E/C #2 for TTD benefits during this two-week period. Although any TTD benefits due for the period from December 14, 1977, to December 28, 1977, are the responsibility of E/C # 1, it does not appear that any such benefits are due for this period because E/C # 1 paid claimant’s salary during this time.

The deputy erred in ordering E/C # 2 to pay TTD benefits for the period from April 6, 1978, through April 24, 1978, because E/C #2 paid claimant’s salary during this time. E/C # 2’s argument that the deputy should have found E/C # 1 and E/C # 2 equally responsible for the medical bills and temporary compensation benefits is not persuasive because claimant successfully resumed his former duties following the December 14, 1977 accident. See Hayward Trucking, Inc. v. Aetna Insurance Co., 445 So.2d 385 (Fla. 1st DCA 1984). The award of TTD benefits from November 20, 1980, through December 31, 1980, and the award of TTD benefits from August 6, 1981, through October 28, 1981, are affirmed because there is competent substantial evidence that the condition requiring knee surgery was causally related to the April 6, 1978 injury. Similarly, the award of the medical bills is affirmed. However, the deputy erred in awarding TTD benefits “until such time as the Claimant reaches maximum medical improvement or returns to work without further loss of salary.” The capacity to return to work is the critical factor in the award of TTD benefits. See Willard Kaufman Co. v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982). Accordingly, this language is amended to award TTD “until such time as claimant reaches maximum medical improvement or is able to return to work, whichever occurs first.”

The deputy did not err in ordering E/C #2 to furnish claimant with further remedial care in the Houston area, the area in which claimant was living during at least a portion of these proceedings. Since the deputy found that claimant had not reached MMI, claimant is entitled to remedial treatment at the expense of E/C # 2, regardless of whether the deputy specifically awarded same. Accordingly, this award was not error.

Although it was error to admit Dr. Barry’s post-hearing deposition, such error was harmless under the circumstances. The location of the post-hearing deposition of Dr. Barry was changed on the day it was to be taken. The attorney for E/C # 1 was apparently not informed of this location change until he arrived at the place originally designated for the taking of the deposition. Although the attorney for E/C # 1 allegedly requested a delay in the deposition until he could drive to the new location, the deposition was completed by the time he arrived at the new location. Accordingly, the deputy erred in admitting this deposition. See Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981). However, such error was harmless because Dr. Barry’s deposition testimony was not used as a basis for finding E/C # 1 liable for any compensation benefits.

The awards of TTD benefits from December 14, 1977, to December 28, 1977, and from April 6, 1978, through April 24, 1978, are reversed. The awards of TTD benefits from November 20, 1980, through December 31, 1980, and from August 6, 1981, through October 28, 1981, are affirmed. Likewise, the award of the medical bills of Dr. Barry and of Palmetto General Hospital are affirmed. The language in the decretal portion of the order awarding TTD benefits “until such time as the Claimant reaches maximum medical improvement or returns to work without further loss of salary” is stricken and is amended to read “until such time as claimant reaches maximum medical improvement or is able to return to work, whichever occurs first.” Once claimant reaches MMI, the deputy may properly be requested to apportion responsibility for permanent compensation benefits, if any, between E/C # 1 and E/C #2. The admission of Dr. Barry’s post-hearing deposition is affirmed on the basis of harmless error. The order is REVERSED in part, AFFIRMED in part, and REMANDED to the deputy for proceedings consistent with this opinion.

SHIVERS and JOANOS, JJ., concur.


author: WENTWORTH, Judge. NIMMONS, Judge, ZEHMER, Judge,

text:
    Fermon BRANDON, Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD & Insurance Co. of North America, Appellees.
    No. AS-90.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Ronald B. Gilbert, Miami, for appellant.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellees.
   WENTWORTH, Judge.

Claimant seeks review of a workers’ compensation order by which his claim for wage loss benefits was denied. We conclude that the deputy did not err in finding that claimant failed to establish a permanent impairment which would warrant an award of wage loss benefits, and we therefore affirm the order appealed.

Claimant sustained a low back injury while lifting a concrete block, and testified that he continues to experience pain. The injury was diagnosed as a lumbar strain, and medical testimony indicates that upon maximum medical improvement claimant was without identifiable indicia of any physical impairment. The deputy expressly found that claimant’s pre-existing medical restrictions were “not entirely clear from the record” and that:

... claimant has failed to prove any permanent impairment in accordance with § 440.15(3)(a)3, Florida Statutes,_ It is reasonably clear to me from Dr. Wasy-lik’s testimony and from review of the American Medical Association Guide to the Evaluation of Permanent Impairment that the injury of which the claimant complains is covered under the Guides, and that [claimant] does not have any permanent physical impairment.

Unlike Trindade v. Abbey Road Beef ’N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983), the present case is not one in which “permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria .... ” And even were this a proper instance for utilization of other medical criteria, the record in the present case provides competent substantial evidence, independent of the Guides, to support the deputy’s explicit finding that claimant has sustained no permanent physical impairment cognizable under § 440.15(3), Florida Statutes.

The order appealed is affirmed.

NIMMONS, J., specially concurs with opinion.

ZEHMER, J., dissents with opinion.

NIMMONS, Judge,

specially concurring.

I agree that the deputy correctly denied wage loss benefits, but I arrive at that conclusion in a slightly different way.

In Trindade we held:

[F]or purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria for determining impairment.

Claimant was seen by four physicians. Dr. Young, claimant’s treating orthopedic surgeon, stated that he had been unable to demonstrate any significant orthopedic injury. He referred claimant to a rheumatol-ogist who stated that, upon examination, claimant exhibited full range of motion with no resultant pain. Claimant was also seen by a Dr. Rodriguez at his attorney’s request, but no report was ever filed and no evidence was introduced regarding Dr. Rodriguez’ findings. Lastly, claimant was seen by Dr. Wasylik, another orthopedic surgeon, who testified that, although claimant complained of tenderness over various areas of his back, he found no objective signs of physical impairment, no abnormalities on x-ray, no neurological deficits and no indication of muscle spasm. He also stated that claimant had no impairment under the criteria utilized in the A.M.A. Guides. However, he stated that it was his “subjective opinion” that claimant had a permanent impairment which he estimated at 5%. Although expressing the view that the A.M.A. Guides did “cover the type of injury,” he said that those Guides are inadequate because they are restricted to range of motion criteria.

As I construe Trindade, a claimant may have a permanent physical impairment which, although not determinable by use of the A.M.A. Guides, may be compensable by reference to “other generally accepted medical criteria for determining impairment.” Howevér, in the instant case, although there is an opinion by one of the doctors that claimant has a permanent physical impairment, there is a dearth of any medical evidence — in the form of medical opinion or otherwise — to even suggest what the nature of the impairment is or how the impairment manifests itself. Moreover, even if the evidence were sufficient to demonstrate the nature of the impairment such that it would be permissible under Trindade to rely upon criteria other than the A.M.A. Guides for determining impairment, there is an absence of evidence of “other generally accepted medical criteria for determining impairment.”

ZEHMER, Judge,

dissenting.

The deputy commissioner denied wage-loss benefits because he found that claimant failed to prove any permanent physical impairment under the American Medical Association’s Guide to the Evaluation of Permanent Impairment. Our prior decisions apparently influenced the deputy to consider impairment solely under the guide; and he did not undertake to decide whether, apart from the use of this guide, the evidence proved any permanent impairment. Since the guide is no longer the exclusive basis for determining permanent impairment, I would reverse and remand for an initial, factual determination by the deputy as to permanent impairment, irrespective of the provisions of the guide. I believe that the deputy, being charged with evaluating the testimony and credibility of witnesses, should be the first to review the evidence and make this determination — not this court.

      . Trindade v. Abbey Road Beef 'N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983); Peck v. Palm Beach County Board of Commissioners, 442 So.2d 1050 (Fla. 1st DCA 1983).


author: WIGGINTON, Judge.

text:
    ONE 1976 DODGE VAN, VIN B11AB6X061791 and Robert Felicetti, Appellant, v. STATE of Florida, Appellee.
    No. AS-214.
    District Court of Appeal of Florida, First District.
    March 19, 1984.

      William W. Corry, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Assistant Attorney General, Tallahassee, for appellee.
   WIGGINTON, Judge.

Robert Felicetti, owner of a 1976 Dodge Van, appeals from a trial court decision ordering forfeiture of his van for its use in a drug transaction. We affirm.

The following facts reveal the connection that appellant’s van played in the criminal episode. On June 24, 1982, law enforcement officers intercepted a telephone conversation between Randy Yarborough and Helen Crenshaw, during which they negotiated the purchase of a quantity of dilaudid. The transaction was to take place at the Tallahassee Hilton Hotel, and would involve a third party, Becky Taylor.

Later that same day, Yarborough and Taylor were observed arriving at the Hilton in Yarborough’s automobile. Taylor entered the lobby where she met Crenshaw. Minutes later, appellant arrived in his van and parked out in front of the Hilton. Crenshaw left the lobby and entered the van, conversed with appellant for a short time, then exited the van to return to the lobby and Taylor. The two women entered the lobby restroom, emerging a few minutes later. Taylor returned to Yarbor-ough’s car and drove away. Crenshaw spoke briefly with appellant then returned to a nearby hair salon where she was employed.

Two days later, on June 26, 1982, a second telephone conversation was intercepted, this time between Yarborough and appellant, wherein details of a second purchase of dilaudid were discussed. Appellant agreed to deliver the drugs to Yarbor-ough’s house.

Appellant was arrested twenty-three days later and charged by information with two counts of conspiracy to deliver a controlled substance constituting third degree felonies. At that time the police searched his van, but found no contraband. In fact, appellant was never observed during either of the above-referenced transactions as being in actual or constructive possession of illegal drugs. Although irrelevant to this civil forfeiture proceeding, City of Tallahassee v. One Yellow 1979 Fiat, Etc., 414 So.2d 1100 (Fla. 1st DCA 1982), appellant subsequently pled nolo contendere to one of the conspiracy charges, the remaining charge being dismissed.

Shortly after appellant’s arrest, the state filed a petition seeking to have appellant’s van declared a contraband article as defined in section 932.701(2), Florida Statutes (1981), and forfeited to the Tallahassee Police Department. Appellant answered the petition denying that his van was “used or intended to be used in violation of F.S. § 932.702 (1981),” or that any “violation ... took place in, upon and by means of said property_” The trial court entered its final order finding the van to have been used in an illegal drug transaction; finding the van to constitute contraband; and awarding title to the van to the Tallahassee Police Department. The court also denied appellant’s later motion for an order finding him partially indigent for purposes of appeal. Both orders are now before us for review.

Regarding the order of forfeiture, we find the facts to present a sufficient nexus between the van and the illegal drug transaction to bring the van within the definition of “contraband article” under section 932.701(2)(e), and to make the van subject to forfeiture under sections 932.-702(3) and 932.703(1), Florida Statutes (1981). Specifically, by using the van to transport himself to the site of the drug transaction, appellant used the van to “facilitate the consummation of the transaction.” In Re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922, 924 (Fla. 4th DCA 1982).

Accordingly, the trial court’s forfeiture order is affirmed.

As to the court’s denial of appellant’s motion for order finding him to be partially indigent for purposes of appellate costs, we also affirm. The court was correct when it denied the motion on the ground that the forfeiture proceedings were civil in nature, “and as such, [Felicet-ti] is not entitled to the relief which he seeks.” Felicetti’s motion was premised on Florida Rules of Criminal Procedure 3.111(b)(4) and 3.220(k), which are germane only to criminal proceedings and not to the instant civil forfeiture proceeding. On the contrary, section 57.081(1) is applicable and contemplates that indigents will not be required to pay for the services of any judge, clerk or sheriff in any proceeding, judicial or administrative, including appellate proceedings in civil cases. Fla.R. App.P. 9.430; Chappell v. Florida Department of Health and Rehabilitative Services, 419 So.2d 1051 (Fla.1982).

However, as section 57.081(1) and Chap-pell direct, a movant seeking waiver of appellate fees must accompany the motion in the lower court by an affidavit establishing the movant’s inability to pay fees, along with a certificate from the movant’s attorney that his position is meritorious and that the attorney will not be compensated by him. Neither prerequisite was fulfilled by appellant here.

The orders on appeal are in all respects AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.

      . § 932.701(2)(e):
      Any personal property, including but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.

      . § 932.702 provides that it is unlawful:
      (3) To use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
      § 932.703(1):
      Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interest in and title to contraband articles or contraband property used in violation of s. 932.702 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interests in accordance with this act ....

      . § 57.081(1):
      Any indigent person who is a party or interve-nor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge. No prepayment of costs to any judge, clerk, or sheriff is required in any action when the party has obtained from the clerk in each proceeding a certification of indigency, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable by law to any of such officers. When the person is represented by an attorney, the affidavit shall be supported by a written certificate signed by the attorney representing the person that he has made an investigation to ascertain the truth of the applicant’s affidavit and he believes it to be true; that he has investigated the nature of the applicant’s position and in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and he intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of indigency, the applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action.

      .Further, we bring to appellant’s attention that under Fla.R.App.P. 9.430, appellant should have challenged the court’s denial by motion filed in this Court, and not as a point on appeal.


author: THOMPSON, Judge. SHIVERS, Judge,

text:
    SHERATON BAL HARBOUR and Insurance Company of North America, Appellants, v. John PLATIS, employee, and the Division of Workers’ Compensation, Appellees.
    No. AT-76.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    H. George Kagan of Miller, Hodges & Kagan, Deerfield Beach, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   THOMPSON, Judge.

In this appeal from a compensation order requiring the employer and carrier (E/C) to pay the claimant’s wife for attendant care services, the E/C contend that the services she performs for claimant are not the type of services for which compensation may be awarded. Alternatively, E/C argue that if her services are compensable, the award of $6.50 per hour for 56 hours per week is excessive. We agree with the latter contention and modify the order.

Claimant sustained minor, but irreversible, brain damage in a February 19, 1982 compensable accident. Claimant was 73 years old at the time of the accident. As a result of his accident, claimant has a short-term memory deficit, and has lost 35 percent of the right peripheral vision in his right eye. Because of his memory problem, claimant becomes disoriented in unfamiliar places and cannot remember to take necessary medications. His vision loss and inability to orient himself render him unable to drive. Although claimant is able to take walks alone outside his home, he must restrict them to the confines of his own block, or risk becoming lost. The claimant has no other serious physical handicaps and is able to feed and dress himself, and to take care of his personal hygiene needs. The claimant is an intelligent individual and has experienced extreme anger and frustration as a result of his vision and memory loss problems. He occasionally vents his anger and frustration on his wife.

Claimant’s wife, who had retired some two years prior to claimant’s accident, testified that she alone had been providing her husband with the care he needed and that she had to watch over her husband virtually all of the time. She indicated that she tries to take the claimant with her whenever she goes out, but that she occasionally leaves him alone at home if she expects to be away from home for only a brief period. The wife does virtually all of their cooking and maintains claimant’s clothes for him. However, the wife is not required to watch over her husband at night, and claimant customarily arises before she does each morning and prepares his own coffee and light breakfast.

Claimant’s doctor, who also treats claimant’s wife, testified that claimant needs constant supervision and that he would not take his medication unless someone made him do so. The doctor indicated that the difficulty and strain of dealing with the claimant continuously and without respite, except at night, was “driving her up the wall” and was exacerbating her medical problems. He further testified that it would be a tremendous help to claimant’s wife to have assistance in watching over the claimant, and that she should have “someone to take care of him, at least a couple of hours a day so she could get away.”

Evidence of the value of nursing and attendant care services was adduced through the testimony of the operator of a home health care service. This witness testified that she charged $6.50 per hour for furnishing nursing care, which included such services as the monitoring of vital signs, attending to the patient’s personal hygiene, preparing meals, and driving patients to their doctors’ offices or wherever they might need to go. For furnishing the services of a “sitter,” who would do little more than stay with a patient and who would not do any driving or actual nursing, $5.00 per hour was charged.

In the order appealed, the deputy commissioner (deputy) directed the E/C to pay claimant’s wife for her services, at the rate of $52.00 for an eight hour shift, seven days per week. The deputy’s finding that the claimant was in need of home attendant care services is supported by competent substantial evidence and is affirmed. However, the record is devoid of evidence to support an award of attendant care services at the rate of $6.50 per hour, for eight hours per day, seven days per week. The record affirmatively demonstrates that claimant does not need the type of nursing care services which are valued at $6.50 per hour. Rather, the evidence shows that claimant only needs that type of attendant care services which claimant’s own witness valued at $5.00 per hour. Furthermore, the evidence demonstrates beyond question that a large portion of the time the claimant’s wife devotes to assisting her husband is spent shopping, cooking, and performing other ordinary household services. Such services, when performed by a family member who resides with the claimant, are considered gratuitous. Pan American World Airways, Inc. v. Weaver, 226 So.2d 801 (Fla.1969); State Department of Agriculture and Consumer Services v. Handy, 413 So.2d 808 (Fla. 1st DCA), pet. for rev. den., 419 So.2d 1198 (Fla.1982). The record in this case will not support an award of attendant care services exceeding four hours per day. Therefore, we modify the order to require the E/C to pay claimant’s wife for her services at the rate of $5.00 per hour, for four hours per day, seven days per week. The portion of the order which prospectively permits the E/C to continue to pay the claimant’s wife for her services or to provide alternative services through a licensed health care provider of its choosing, is affirmed.

As modified, the order is AFFIRMED.

JOANOS, J., concurs.

SHIVERS, J., concurs and dissents.

SHIVERS, Judge,

concurring and dissenting:

I respectfully concur and dissent. There is competent substantial evidence supporting an award of attendant care services for eight hours per day, as found by the deputy commissioner. I would affirm the award, in toto, except that I would modify the order to require the E/C to pay claimant’s wife for her services at the rate of $5.00 per hour rather than $6.50 per hour.


author: PER CURIAM.

text:
    Diana Jean PILCH, Appellant, v. Edward Michael PILCH, Jr., Appellee.
    No. AT-401.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Margaret A. Hurst, Jacksonville, for appellant.
    Edward Michael Pilch, in pro. per.
   PER CURIAM.

In this dissolution of marriage proceeding, the trial court denied the wife restoration of her prenuptial name on the sole ground that even though she had met all the statutory requirements of Section 68.07, Florida Statutes, it was not in the best interest of the minor children of the parties to bear a name different than their mother because such would cause a stigma upon them. We conclude that the reason advanced by the trial judge is insufficient in and of itself to deny restoration of one’s maiden name and is unsupported by the evidence.

In so concluding, we adopt the reasoning of the Second District Court of Appeal in In re the Petition of Hooper, 436 So.2d 401, 403 (Fla. 2d DCA 1983), as follows:

The right of a woman to her birth-given name, notwithstanding marriage, is established under Florida Law. See Marshall v. State, 301 So.2d 477 (Fla. 1st DCA 1974); Davis v. Roos, 326 So.2d 226 (Fla. 3d DCA 1976). See also Egner v. Egner, 133 N.J.Super. 403, 337 A.2d 46 (N.J.1975). Absent injury to the rights of others, there appears to be no reason why a woman’s failure to assert that right upon her marriage should prevent her from doing so later, i.e., at the time of her divorce or thereafter.
A divorced mother’s remarriage apparently is “a substantial probability.” Egner, 337 A.2d at 48. The dissimilarity of a divorced mother’s and her children’s names is not prohibited upon her remarriage and her assumption of her new husband’s name. Arnett v. Matthew, 259 So.2d 535 (Fla. 1st DCA 1972). Relative to the interests of the children, we can see no distinction between that situation and the facts of this case. Lazow v. Lazow, 147 So.2d 12 (Fla. 3d DCA 1962).

Furthermore, we note that there was no evidence presented below which would support the finding that the children would be adversely affected if they bore a name different than the custodial parent. Mere speculation as to the harmful effect which might be caused by such a situation is insufficient reason to deny a name change, Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (N.H.1978), and, in this day and age, is perhaps unfounded. See Klein v. Klein, 36 Md.App. 177, 373 A.2d 86 (1977).

Accordingly, the judgment of the trial judge denying the ex-wife restoration of her maiden name is reversed and the cause remanded with directions that the requested relief be granted.

BOOTH, WIGGINTON and ZEHMER, JJ., concur.

      . The trial judge orally stated that "I think it casts a stigma upon the children, it sets them at a disadvantage at school and other social'functions.”


text:
    MORTGAGE CORPORATION OF AMERICA, Appellant, v. INLAND CONSTRUCTION COMPANY, Appellee.
    No. 83-108.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied April 27, 1984.
    Daniels & Hicks and Sam Daniels and Louise H. McMurray, Adams, Ward, Hunter, Angones & Ward, Miami, for appellant.
    Greene & Cooper and Robyn Greene and Sharon L. Wolfe, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Mortgage Corporation of America, hereinafter referred to as MCA, was the owner of certain property upon which it contracted with Inland Construction Company, hereinafter referred to as Inland, as a general contractor, to construct a four-story building. Inland subcontracted a portion of the work to DU-B, Inc. It, DU-B, had in its employ one Yorndran, hereinafter referred to as the plaintiff. During construction, the plaintiff fell from the second-floor and became a paraplegic at the age of 24. The plaintiff sued MCA (as Inland and DU-B, Inc. were excluded because of the Workmen’s Compensation law) alleging negligent supervision and failure to control the construction of the building. MCA filed a third-party complaint for indemnification against Inland alleging, first that Inland installed a hoist in a dangerous condition, and was therefore actively negligent, and second, indemnity based on Inland’s contractual agreement. The plaintiff’s action against MCA proceeded to trial. After the close of the evidence, the court severed the third-party claim from the plaintiff’s claim, and MCA moved for a directed verdict on the main claim on the ground that the plaintiff failed to prove that MCA owed the plaintiff a duty to exercise reasonable care for his safety. The court reserved ruling and the main claim was submitted to the jury which returned with a five million dollar ($5,000,-000) damage verdict finding MCA 90% at fault and the plaintiff 10% at fault. After the verdict was announced, the court granted MCA’s directed verdict. The plaintiff then appealed to this court. The third-party claim was deferred until the plaintiff’s appeal was resolved. Inland and MCA cross-appealed. MCA settled with the plaintiff during the appellate process and the plaintiff dismissed his appeal. Inland’s appeal remained pending, but was remanded as being premature.

On remand, Inland renoticed its summary judgment motion on MCA’s indemnification claim against it. The trial court granted the motion on the basis that MCA was not entitled to indemnity because judgment had been entered in its favor on the plaintiff’s claim. From this final summary judgment MCA now appeals.

On the state of the record lodged in this court we must affirm. The record reveals that the only issue remaining before the trial court when it ruled on the motion for summary judgment was whether or not the appellant was entitled to indemnification based on theory of vicarious liability. Inasmuch as the appellant had been exonerated from liability to the original plaintiff by the trial court, which order has never been set aside, it cannot now seek indemnification for vicarious liability from the appellee herein. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Hoskins v. Midland Insurance Company, 395 So.2d 1159 (Fla. 3d DCA 1981); Walter Taft Bradshaw & Associates, P.A. v. Bedsole, 374 So.2d 644 (Fla. 4th DCA 1979).

Therefore, the order appealed herein is hereby affirmed.

Affirmed.

      .THIS CAUSE came before the undersigned on the renewed motions for summary judgment filed by Third Party Defendants DU-B CORPORATION and INLAND CONSTRUCTION COMPANY. The Court has been advised that Defendant MORTGAGE CORPORATION OF AMERICA does not object to the entry of judgment in DU-B CORPORATION’S favor on the ground that a member insurer of the Florida Insurance Guaranty Association [FIGA] cannot seek indemnity from the insured of an insolvent insurer or FIGA. The Court heard argument of counsel on INLAND’S motion and is fully advised in the premises. Accordingly, it is hereby ORDERED AND ADJUDGED as follows;
      1. The renewed motion for summary judgment filed by Third Party Defendant DU-B CORPORATION is granted. Final judgment is entered in favor of Third Party Defendant DU-B CORPORATION and against Defendant/Third Party Plaintiff MORTGAGE CORPORATION OF AMERICA and said Third Party Defendant shall go hence without day.
      2. The renewed motion for summary judgment filed by Third Party Defendant INLAND CONSTRUCTION COMPANY is granted on the ground that a Defendant which has received a final judgment in its favor is not entitled to indemnity. In light of this ruling, it is not necessary for the Court to consider the alternative reasons advanced by INLAND in support of its motion. Final judgment is hereby entered in favor of Third Party Defendant INLAND CONSTRUCTION COMPANY and against Defendant/Third Party Plaintiff MORTGAGE CORPORATION OF AMERICA and said Third Party Defendant shall go hence without day.
      3. The court reserves jurisdiction to tax costs upon the filing of appropriate motions by Third Party Defendants.

      . By agreed order all other counts were dismissed.


text:
    BALBOA INSURANCE COMPANY, Appellant, v. Jerry WEBSTER and Bernette Webster, Appellees.
    No. 83-1487.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied April 23, 1984.
    Lawrence, Griffin & Landis and Donald E. Grincewicz, Orlando, for appellant.
    David H. Zoberg and Howard B. Emory, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The surety of a used auto sales corporation appeals from a trial court order granting with prejudice the defendant’s motion to dismiss the surety’s complaint for indemnification. For the reasons which follow we reverse and remand for further proceedings.

As a condition to obtaining a statutorily required surety bond pursuant to section 320.27(10), Florida Statutes (1973), Jerry Webster and his wife, Bernette, entered into an indemnification agreement dated June 7,1975, with the surety, Balboa Insurance Co. The surety bond was issued on June 10, 1975, and a continuation certificate was issued on January 1, 1976. On January 13, 1976, at the request of the Websters, the surety issued an endorsement amending the name of the principal on the surety bond from Jerry Webster, d/b/a Florida City Auto Sales, to Florida City Auto Sales, Inc.

Balboa defended an action brought by a third party based upon dealings between the third party and Florida City Auto Sales, Inc. The Websters refused to defend or to participate or cooperate in the defense of that action. Balboa, as surety for Florida City Auto Sales, Inc., expended $6,300 in the payment of claims, attorney’s fees, costs and expenses. Balboa then filed its complaint against the Websters in the instant case based upon the indemnity agreement.

In its complaint Balboa alleged that the issuance of the surety bond was “in express reliance upon the undertakings assumed by the defendants in the indemnification agreement.”

The indemnification agreement attached to the complaint provided:

IN CONSIDERATION OF THE EXECUTION OF THIS BOND BY BALBOA INSURANCE COMPANY (HEREINAFTER CALLED SURETY) THE UNDERSIGNED APPLICANT HEREBY AGREES:
5. That this agreement shall apply to all renewals, continuations, substitutions and extensions of the suretyship herein applied for. [Emphasis added.]

The trial court granted the Websters’ motion to dismiss the complaint with prejudice.

In ruling on a motion to dismiss all allegations in the complaint must be accepted as true, with the fundamental question being whether a cause of action would be established by proving such allegations, Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984), and the cases cited therein. In Frell v. Dumont-Florida, Inc., 114 So.2d 311 (Fla. 3d DCA 1959), the principal debtor of a written guaranty was estopped from claiming as a defense that its name had been changed subsequent to entering into the guaranty. Among the reasons for this estoppel were that the principal had participated in the name change and “at no time disclaimed responsibility under the guaranty until the suit,” id. at 313. In the instant case, considering Frell and the above-quoted “substitution” provision of the indemnification agreement, Balboa has alleged sufficient ultimate facts showing it to be entitled to relief to be allowed an opportunity to prove the truth of those allegations. See Copeland; Fla.R.Civ.P. 1.110(b).

Reversed and remanded for further proceedings.

      . Alternatively, we believe that Balboa has sufficiently stated a cause of action against the Websters under the "personal liability of a corporate officer” test contained in Eig v. Insurance Co. of North America, 447 So.2d 377 (Fla. 3d DCA 1984). See AMC Jeep of Vero Beach, Inc. v. Funston, 403 So.2d 602 (Fla. 4th DCA 1981).


text:
    Alan ROTH, Appellant, v. 783 CORPORATION, Harold Lee and Ben Avick, individually and as trustees, Appellees.
    No. 83-2038.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied April 27, 1984.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Tralins & Potash and Richard Potash, North Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line R.R., 349 So.2d 1187, 1189 (Fla.1977); Prall v. Corum, 403 So.2d 991 (Fla. 2d DCA 1981); Willner v. Wilder, 280 So.2d 1 (Fla. 3d DCA), cert. denied, 287 So.2d 97 (Fla.1973); Hershey v. Keyes Co., 209 So.2d 240 (Fla. 3d DGA), cert. denied, 214 So.2d 623 (Fla.1968).


text:
    KAMPHUIS EXCAVATORS, INC., Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 83-2103, 83-2104.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied April 27, 1984.
    Dunn, Schouten & Snoap and Eugene W. Pyatenko, Grand Rapids, Mich., for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

Affirmed. United States v. United Pacific Insurance Company, 545 F.2d 1381 (4th Cir.1976); United States v. Grubb, 358 F.2d 508 (9th Cir.1966).


author: DOWNEY, J.

text:
    Jane Winifred McGREGOR, Appellant, v. Bruce McGREGOR, Appellee.
    No. 82-1421.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Rehearing Denied April 24, 1984.
    Joel M. Weissman of Sales & Weissman, P.A., West Palm Beach, for appellant.
    Kenneth G. Spillias of Considine & Spilli-as, Palm Beach, for appellee.
   DOWNEY, J.

Appellant, Jane Winifred McGregor, seeks reversal of a final judgment of dissolution of marriage.

This marriage endured for approximately 23 years and resulted in the birth of two children, a daughter nineteen and a son thirteen. The wife was 44 years of age at the time of the final hearing and had some permanent medical problems. Since moving to Florida she had not done any appreciable work outside the home. The husband is a carpenter by trade and worked as a building inspector prior to the divorce.

The last several years of this marriage were not blissful. The wife testified the husband said he hated her and the children. The husband testified that she constantly criticized him in front of the children and generally made life miserable for him. According to the husband, she drove him away from the home — he could not stand it any longer. Two weeks later they discussed his returning but she wanted the marital home placed in her name first. He conveyed the property to her but things did not really improve after his return. The husband testified that she kept telling him to leave until finally they decided to get a divorce. He told her to get the cheapest lawyer she could find to represent them both. The wife employed a lawyer who drew an agreement for them in which the wife received all of their property except a 1973 Ford with 90,000 miles on it, his tools, clothes and approximately $600 worth of bank stock.

The final judgment set aside the agreement upon a finding that the property settlement agreement was grossly unfair on its face, was impossible of performance by the husband, and was not freely and voluntarily entered into by him. It also set aside the deed for the marital home for much the same reasons. The judgment then made provision for alimony and child support independent of the provisions of the agreement. It also provided that the wife and child should have exclusive possession of the home for two years after which it should be sold and the proceeds divided after payment to the wife of $10,000 lump sum alimony out of the husband’s one-half.

We have carefully considered the evidence adduced by the parties relative to the issue of the voluntariness of the agreement and evidence and hold that, considered in the light most favorable to the judgment, there is adequate, legal support for the trial judge’s findings.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

BERANEK and WALDEN, JJ., concur.


text:
    Renard Antonio DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 83-433.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Jones v. State, 443 So.2d 434 (Fla. 5th DCA 1984).

ORFINGER, C.J., and DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.


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

text:
    Lewis O. SIVERLING, Appellant, v. Evelyn M. SIVERLING, Appellee.
    No. 83-441.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    Angus W. Harriett of Harriett & Sproull, P.A., Palatka, for appellant.
    Edward E. Hedstrom of Hedstrom & Smith, Palatka, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Lewis Siverling appeals from a final judgment of dissolution of his marriage to appellee Evelyn Siverling contending that the trial court should have permitted him to amend his petition to allege a special equity in jointly-owned property of the parties. Appellee cross appeals the award of rehabilitative alimony.

Florida Rule of Civil Procedure 1.190 provides for the amendment of pleadings. Subdivision (b) provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment...

In this case, testimony was given before a special examiner. An examination of the report of the special examiner reflects that evidence typically used to prove or disprove a special equity, e.g., the furnishing of all of the consideration for the home, the intent of the party transferring title, etc., was addressed at the hearing before the examiner.

Testimony regarding appellee’s acquisition of her interest in the property was first introduced on cross-examination by appellant. Appellee went into the matter on redirect at length all without objection or qualification. Appellant also testified without objection and was cross-examined by appellee as to his contributions to the acquisition of the property as well as his intention in conveying an interest to appel-lee.

Amendment of a pleading after receipt of the evidence is not a matter of right. See Fla.R.Civ.P. 1.190(a). However, where issues not raised by the pleadings have been tried with the implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Florida has long followed a rule of liberality in permitting amendments. Penn Cork & Closures, Inc. v. Piggyback Shippers Assoc. of Fla., Inc., 281 So.2d 46 (Fla. 3d DCA 1973). Doubts should be resolved in favor of allowing amendments unless and until it appears that the privilege to amend will be abused. Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959). In this instance, the motion for leave to amend was made on February 18, 1983, after completion of the report of the special examiner, but prior to entry of final judgment on March 3, 1983. For some reason, a ruling on the motion was not made until March 9, 1983, after entry of the final judgment. No record of argument on the motion was made and the order denying the motion does not recite any reasons for the denial.

In view of the liberal rule regarding amendments of pleadings and the mandatory language of rule 1.190(b) when issues have been tried with the parties’ express or implied consent, we can ascertain no valid reason for denying the motion to ámend. Accordingly, we reverse the order below denying appellant’s motion to amend.

Appellant also contends that he has conclusively demonstrated his entitlement to a special equity, and that not only should the trial judge have granted the amendment, he should have declared a special equity for appellant. We disagree. We have been burdened by appellant’s disregard of the requirements of Florida Rule of Appellate Procedure 9.210(b)(3) requiring references to the record and perhaps have overlooked the “conclusive” showing to which he refers. However, it is obvious that the court below did not consider the evidence in support of a special equity because of its denial of the motion to amend. We therefore remand for reconsideration after the amendment.

On cross appeal, appellee contends she should have been awarded permanent alimony instead of rehabilitative alimony. The evidence revealed that appellee has been employed in the past as a sales clerk. The marriage is of relatively short duration (six years) and appellee has been unemployed for only a few years. There was no showing that she could not become self-supporting within the rehabilitative period. We therefore conclude there was no abuse of discretion by the trial court in failing to award permanent alimony. See O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982); Myrick v. Myrick, 402 So.2d 452 (Fla. 5th DCA 1981); Patrick v. Patrick, 399 So.2d 72 (Fla. 5th DCA 1981).

. We recognize that appellee’s need for alimony may be affected by the court’s decision regarding appellant’s claim for a special equity. On remand, the court may receive such further evidence touching on the issue of the husband’s entitlement to a special equity and appellee’s need for alimony as it deems necessary.

AFFIRMED in part, REVERSED in part and REMANDED for further consideration consistent herewith.

COBB and COWART, JJ., concur.


author: COWART, Judge.

text:
    IOWA NATIONAL MUTUAL INSURANCE COMPANY, Appellant/Cross-Appellee, v. Elease WORTHY, Appellee/Cross-Appellant.
    No. 83-487.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.

      H. David Luff' of Sanders, McEwan, Mims & McDonald, Orlando, for appellant/cross-appellee.
    Elizabeth J. Gulden of Gulden, Heller & Sheaffer, and Marcia K. Lippincott, Orlando, for appellee/eross-appellant.
   COWART, Judge.

This is an appeal from a judgment based on a jury verdict awarding punitive damages against a PIP insurer for allegedly fraudulently obtaining a release from an insured.

Appellee, hereinafter called the insured, sustained personal injuries in a motor vehicle accident caused by a negligent tortfeasor. The insured had personal injury protection coverage under a no-fault policy with appellant, Iowa National Mutual Insurance Company, hereinafter called the insurer or PIP insurer. The tortfeasor negligently causing the insured’s injuries had liability coverage with State Farm. The insured was admitted to a hospital for treatment of a low back injury resulting from the accident and while there discovered that she had a cancerous condition which was successfully treated by surgery. The insured submitted all of her medical bills and a lost wage statement to her insurer. The insurer undertook to separate the medical bills and lost wages attributable to the back injury, for a portion of which the PIP insurer was liable, from those attributable to the cancer treatment, for which the PIP insurer was not liable. The insurer’s adjuster met with the insured and it was agreed that, to settle the claim, the insurer would pay eighty percent of all medical expenses incurred through a certain date when the cancer was discovered and sixty percent of the insured’s lost wages. The insured stated that her back was still hurting. The adjuster offered an additional $200 to cover future medical expenses and offered two checks; one check for $645.84 for lost wages; the other for $1,421.95 for medical expenses including the $200 for future medical expenses. At this point the conversation between the insurer’s adjuster and the insured is disputed and has become the issue of the trial from which this appeal is taken. Before the insured accepted the insurer’s checks and signed a release, the insured, understanding she was making a binding settlement with her PIP insurer, asked the adjuster what she should do if her back continued to hurt. According to the insured the adjuster replied that the insurer should “take it up with State Farm,” the at-fault insurer. The insured signed the release and accepted the checks and directed her doctor to send all medical bills to State Farm. Subsequently State Farm sent the insured a letter denying it insured anyone involved in the accident in which the insured was injured. The insured consulted an attorney who presented the insured’s personal injury claim to, and negotiated a $6,000 recovery from, State Farm. The insured’s attorney then presented to the PIP insurer a claim for $280 for medical expenses incurred after the settlement date. The PIP insurer declined to pay because of the release. The insured then sued her PIP insurer in four counts, count two claiming punitive damages and alleging that the insurer fraudulently induced the insured to sign the release by misrepresenting to the insured that State Farm “was the responsible party for any medical expense that was incurred in excess of $200.” The insured testified that State Farm paid none of her medical expense. The trial court admitted into evidence the letter from State Farm denying liability but granted the insured’s pretrial motion in limine and prohibited the insurer at trial from making any reference to the insured’s tort recovery of the $6,000 from State Farm. The jury found the insurer fraudulently induced the insured to sign the release and awarded $24.00 compensatory damages and $60,000 punitive damages. The insurer appeals.

An order in limine should only be used as a shield and never to gag the truth and permit other evidence to mislead the jury because the limine order prevents such evidence from being rebutted. We agree with the insurer that the order in limine was erroneous and that the insured’s testimony, together with the letter from State Farm and the order in limine were used to give the jury an erroneous impression that the adjuster had no reason to refer the insured to State Farm because that liability carrier insured no person involved in the accident in which the insured was injured, that State Farm was not legally liable to the insured in any manner and that State Farm never paid the insured anything. Nevertheless, because of our disposition of this case, those matters are moot.

The original 1972 “no-fault” statutes provided in section 627.736(1), Florida Statutes, for PIP benefits of 100 percent of medical expenses and 100 percent of lost earnings up to a limit of coverage of $5,000. Section 627.737, Florida Statutes, gave exemption from tort liability to the extent of the PIP benefits payable under section 627.736(1), Florida Statutes, and provided that if certain thresholds relating to permanency and seriousness were met the injured party could recover from the tortfeasor for pain, suffering, mental anguish and inconvenience. In upholding the constitutionality of these first statutes, the Florida Supreme Court in Lasky v. State Farm Insurance Company, 296 So.2d 9, 14 (Fla.1974), stated:

Thus the insured party will receive such benefits as payment of his medical expenses and compensation for any loss of income and loss of earning capacity under the insurance policy he is required by law to maintain, up to the applicable policy limits, and may bring suit to recover such of these damages as are in excess of his applicable policy limits, (emphasis supplied)

Thereafter the legislature in 1977 reduced PIP benefits to 80 percent of medical expenses and 60 percent of lost income and, in 1979, raised PIP coverage from $5,000 to $10,000. When the constitutionality of these amended statutes was questioned the supreme court in Chapman v. Dillon, 415 So.2d 12, 18 (Fla.1982), stated:

Under the new provisions the injured party still recovers most of his out-of-pocket expenses from his own insurer and is allowed to bring suit for the remainder, (emphasis supplied)

Section 627.737(1), Florida Statutes, undertakes to exempt a tortfeasor from tort liability for damages because of bodily injury caused by a motor vehicle only “to the extent that benefits described in s. 627.-736(1) are payable for such injury, or would be payable but for any [authorized] exclusion....” Therefore, under the statutes cited and Lasky and Chapman, without meeting the thresholds in section 627.-737(2), Florida Statutes, the tortfeasor and his liability carrier, here State Farm, is liable to the injured party for the 20 percent of medical expenses not payable under the PIP coverages provided by section 627.-736(l)(a) and the 40 percent of lost gross income and earning capacity not payable under the PIP coverage provided by section 627.736(l)(b), Florida Statutes, and for 100 percent of those damages as exceeds the applicable policy limits. Of course, after meeting the thresholds of section 627.-737(2), Florida Statutes, the injured party may also recover in tort from the tort-feasor and his liability carrier for all pain, suffering, mental anguish and inconvenience resulting from bodily injury caused by the negligent operation of a motor vehicle.

While we cannot say that the parties negotiating the $6,000 settlement with State Farm intended for it to include payment in settlement of the liability of State Farm for part of the medical expense and lost earnings suffered by the insured, if $1,221.95 represented 80 percent of her medical expenses (other than the subsequent $280 of medical expense) and $645.84 represented 60 percent of her lost earnings, we can say that, subject to adjustment for comparative negligence, if any, the $6,000 settlement should have included $361.49, representing 20 percent of her medical expenses (including the $280) and $430.56, representing 40 percent of her lost earnings, being a total of $792.05 for which State Farm was responsible for the share of the insured’s medical expense and lost earnings for which the tortfeasor was legally liable.

For these reasons, whether the insured’s question to the adjuster is construed to relate to payment of medical expenses, as the insured’s counsel contends, or to the possibility of recovery for pain and suffering resulting from a significant and permanent injury under section 627.737(2), Florida Statutes, as the PIP insurer suggests, the suggestion of the insurer’s adjuster for the insured to “take it up with State Farm” was fair and appropriate because of State Farm’s legal liability and was reasonable in reality and fact as shown by the $6,000 paid by State Farm to the insured, apparently as a direct result of the insured’s reaction to the adjuster’s very remark which was the basis for this law action. Accordingly, the evidence as to the insured’s ambiguous query and the adjuster’s reply, taken in the light most favorable to the insured and according to the insured’s own testimony, was insufficient as a matter of law as the factual basis for the jury to infer that the adjuster's statement was intentionally false and misleading and fraudulent. We hold that the trial court should have granted the insurer’s motion for a directed verdict.

We approve the trial court’s dismissal of the insured’s count alleging constructive fraud since in the context of this case there was no fiduciary relationship between the insurer and its insured. See Smith v. Standard Guaranty Insurance Co., 435 So.2d 848 (Fla. 2d DCA 1983), review denied, 441 So.2d 633 (Fla.1983); Shupack v. Allstate Insurance Co., 367 So.2d 1103 (Fla. 3d DCA 1979); Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973), cert. dismd., 317 So.2d 725 (Fla.1975); Kocse v. Liberty Mutual Insurance Co., 152 N.J.Super. 371, 377 A.2d 1234, 1237-1238 (N.J.Law Div.1977).

We reverse the judgment and remand for entry of judgment in favor of the insurer.

REVERSED AND REMANDED.

SHARP, J., and WOLFMAN, STANLEY, Associate Judge, concur.

      . See § 627.736(1), Fla.Stat. (1983).

      . See § 627.736(l)(a), Fla.Stat. (1983).

      . See § 627.736(l)(b), Fla.Stat. (1983).

      . At trial on the issue in question the insured testified as follows:
      Q. Please tell the jury what you said before you signed the paper about medical bills in the future, or whoever started the conversation.
      A. Well I did. I asked her: Suppose my back would hurt fight [sic] off? And she said this, that I sign the paper, that they couldn’t pay me any more money and to take it up — I discussed it about State Farm myself with her. And she said take it up with State Farm ... (emphasis supplied) And again:
      ... And I asked her then: Suppose my back continued to hurt? And she said I'd have to take it to State Farm. Because I had told her about State Farm, I guess ... (emphasis supplied).

      . Based on Garrett v. Morris Kirschman and Company, Inc., 336 So.2d 566 (Fla.1976), we reject the insurer’s argument that it was harmful error for the trial court to admit into evidence a bill for $40.00 from one Doctor Brown without requiring a predicate as to its reasonableness or necessity.

      . During direct examination the insured testified as follows:
      Q. Mrs. Worthy, did you receive a response or correspondence from State Farm after you had indicated to your doctor to forward any bills to them?
      A. No. No, I did not.
      Q. Did you receive a letter from State Farm?
      A. Yes, I did.
      Q. Did State Farm pay any of your medical expenses when you sent them the bill?
      A. No, no, they did not.

      . Although a jury .verdict need not directly relate to the facts, and often does not, the $24.00 compensatory damages may result from sub-trading the $200 paid by the PIP insurer from 80% of the rejected claim for $280 of post-settlement medical expense. Eighty percent of $280 equals $224; $224 minus $200 equals $24.00.

      . Even a Miranda violating statement can be used for rebuttal in a criminal case, see Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

      . During closing argument counsel for the insured exploited the misimpression that State Farm's letter concluded, adversely, the insured’s claim against State Farm:
      ... and Mrs. Worthy [the insured] asked a question, simply: What do I do, Mrs. Bentsen [the adjuster], if two hundred dollars isn’t enough. "Oh, you take that up with State Farm.” And Mrs. Worthy said: Oh, fine. And so Mrs. Worthy testified she believed that. In fact, she carried out those instructions and got a letter back from State Farm and it said, “not us." (emphasis supplied)
      And again:
      And she [Mrs. Worthy] said to nice Mrs. Bent-sen [the adjuster]. She said: "What do we do?” "Take that up with State Farm." Thank you. When the bill came she said, “Doctor Lee, you have to write to State Farm because they're the one.” And State Farm wrote back saying, no. (emphasis supplied)

      . Without being properly advised as to the law (i.e., as to State Farm’s liability to the insured for the portion of the insured’s medical expenses and lost earnings not paid by the PIP insurer) and given the impression that State Farm was not legally liable and that the insured recovered nothing from State Farm, and not allowed to learn the true facts about State Farm paying the insured $6,000, the jury in this case was mislead, not the insured.

      . Although we have not relied on it in making a decision in this case the principle of law in Life Ins. Co. of North America v. Del Aguila, 417 So.2d 651 (Fla.1982), might have been a sufficient independent basis for the trial court to have directed a verdict as to the liability of the PIP insurer for punitive damages in this case. Aside from the fact that we find the evidence as to the adjuster’s alleged intent to defraud insufficient to go to the jury we likewise find insufficient proof of fault on the part of the insurer, as principal, to be vicariously liable in punitive damages under the doctrine of respondeat superior for the acts of the adjuster. Mere use of the release, allegedly procured by fraud, would not constitute ratification in absence of knowledge of the (alleged) fraudulent inducement itself.


text:
    Jimmy Lee SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 83-579.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

We affirm this case without prejudice to file an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850 raising the issue of proper credit for jail time served. Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981); see also Jablonskis v. State, 422 So.2d 356 (Fla. 5th DCA 1982).

AFFIRMED.

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


text:
    Leberton ANIDOS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1632.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Lee Kretschmer, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction and remand for a new trial because it does not appear that appellant, in writing, waived a jury trial with the consent of the State. Williams v. State, 440 So.2d 1290 (Fla. 4th DCA, 1983).

Reversed and remanded for new trial.

HURLEY, DELL and WALDEN, JJ., concur.