author: SCHWARTZ, Chief Judge:

text:
    The IZAAK WALTON LEAGUE OF AMERICA, Appellant, v. MONROE COUNTY and Windley Key, Ltd., et al., Appellee.
    No. 83-129.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Sireci, Allen, Kelly & Muldoon and Mark Kelly, Key West, for appellant.
    Lucien C. Proby, Jr., Key West, Roger A. Bridges, Coral Gables, for appellees.

      Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Chief Judge:

The Izaak Walton League of America, an environmental organization which is the present appellant, timely filed an appeal to the Monroe County Board of County Commissioners from a resolution of the Monroe County Zoning Board which rezoned property on Windley Key owned by the appellee, Windley Key, Ltd. The Monroe County Circuit Court, however, issued a writ of prohibition against the Commission precluding its consideration of the appeal on the grounds that (a) each member of the Commission had become disqualified because of prior public pronouncements, mostly at commission meetings, which were adverse to the rezoning of the property and (b) the League lacked standing to file the appeal under the pertinent provision of the Monroe County Code. We thoroughly disagree with the first reason but affirm the judgment under review on the basis of the second.

I

It is fundamental to our system that the members of a county commission or any governing body of a political subdivision who act in that capacity do not do so as judges — subject to judicial canons and standards — but rather, using the term in its Aristotelian sense, as politicians. Any supposed errors in the substance of their views or the manner in which their opinions are expressed are therefore ordinarily subject only to relief at the polls, not in the courts. See generally, Davis v. Keen, 140 Fla. 764, 192 So. 200 (1939); Osban v. Cooper, 63 Fla. 542, 58 So. 50 (1912); Broward County Rubbish Assn. v. Broward County, 112 So.2d 898 (Fla. 2d DCA 1959); Senior Citizens Protective League, Inc. v. McNayr, 132 So.2d 237 (Fla. 3d DCA 1961); 2 McQuillin, Municipal Corporations § 10.-33 (3rd ed. 1979); 12 Fla.Jur.2d Counties and Municipal Corporations § 145 (1979). Indeed, when there is no specific legislation to the contrary, the basic doctrine of the separation of governmental powers precludes judicial interference with the vote even of a commissioner with an identifiable personal interest in the particular issue. City of Miami Beach v. Schauer, 104 So.2d 129 (Fla. 3d DCA 1958), cert. discharged, 112 So.2d 838 (Fla.1959); compare Fossey v. Dade County, 123 So.2d 755 (Fla. 3d DCA 1960) (disqualifying county commissioner under specific terms of county charter).

As an aspect of this rule, the law is clear that political officeholders may not be prevented from performing the duties they have been elected to discharge merely because, as occurred in this instance, they have previously expressed, publicly or otherwise, an opinion on the subject of their vote. This court has specifically so held in the virtually all-fours case of City of Opa Locka v. State ex rel. Tepper, 257 So.2d 100 (Fla. 3d DCA 1972). There, the Opa Locka City Commission had unanimously requested city manager Tepper’s resignation at an open meeting. After the manager’s motion to dismiss the charges was denied by a three-man commission majority, he sought and was granted prohibition against the three commissioners on the grounds of bias and prejudice. On appeal, we reversed on the ground that the trial court had erroneously determined that the three commissioners’ predetermination to vote for the resolution removing the city manager either required or justified their recusal. Judge Hendry, writing for the court, stated that the resolution was a legislative act, and, citing City of Miami Beach v. Schauer, supra, concluded:

Whenever an act of the Legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expediency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act.

257 So.2d at 104.

Although Opa Locka would be alone sufficient to establish the incorrectness of the ruling below on this point, we think that the present situation even more obviously requires that holding. While Opa Locka involved what was at least arguably a quasi-judicial question, that of determining the validity of charges against a city employee, this case concerns the supremely legislative function of zoning, Florida Land Company v. City of Winter Springs, 427 So.2d 170, 174 (Fla.1983).

Accordingly, the cases have almost unanimously declined even to consider disqualification of a responsible official merely because he has expressed, or even committed, himself publicly on a zoning issue before a formal vote has taken place. This is true both when the acts complained of are committed prior to the time the official takes office, Furtney v. Simsbury Zoning Commission, 159 Conn. 585, 271 A.2d 319 (1970) (commissioner who, three years earlier, had expressed opinion supporting suitability of residential tract for shopping mall was not disqualified from hearing application to rezone property); Pearce v. Lorson, 393 S.W.2d 851 (Mo.App.1965) (fact that member of board which had revoked permit authorizing commercial use of residence had, before taking office, drafted and signed petition for change in zoning law precluding such use held insufficient to constitute grounds of bias or prejudice); and when his preconceived notions are aired during a political campaign. Thus, in City of Farmers Branch v. Hawnco, Inc., 435 S.W.2d 288 (Tex.Civ.App.1968), the court responded to the contention that the mayor and two councilmen who ran on a political platform opposing high density construction were disqualified from participating in the vote on an amendatory ordinance authorizing it by stating:

We do not agree. Campaign promises made in political races do not disqualify the successful candidates from exercising the duties of their offices after the election. To so hold would mean that very few successful candidates for political office would be able to qualify for their office or to perform their official duties. Under our theory of government the voters desire and even demand to be informed as to how candidates stand on the issues of the campaign... In any event public officials are not legally required to keep their campaign promises and whether they do or do not they are answerable to the voters at the next election, not to a particular private property owner.

435 S.W. at 292. Accord, Wollen v. Borough of Fort Lee, 27 N.J. 408, 142 A.2d 881 (1958) (councilmen who campaigned and were elected on promises to implement zoning changes qualified to vote on ordinance in manner consistent with prior positions).

The same rule applies when, as here, the official states his views on zoning questions or similar matters of community policy during his term of office. Binford v. Western Electric Co., 219 Ga. 404, 133 5.E.2d 361 (1963) (claim that commissioners passing upon application to rezone property had declared publicly that they favored such application in advance of proceedings held insufficient to void their action); Kramer v. Board of Adjustment, 45 N.J. 268, 212 A.2d 153 (1965) (no inference of bias or prejudice drawn from fact that member of board which granted variance for hotel construction had endorsed political candidates adopting positions favorable to hotel’s developer); City of Fairfield v. Superior Court of Solano County, 14 Cal.3d 768, 122 Cal.Rptr. 543, 537 P.2d 375, 382 (1975) (“A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance.”) (disapproving Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 237

P.2d 32 (1951)); compare and contrast Barbara Realty Co. v. Zoning Board of Review of Cranston, 85 R.1.152, 128 A.2d 342 (1957).

Since there is no provision in the Monroe County Code, the special act which governs Monroe County Zoning Board appeals or the applicable Florida statute, which requires or, indeed, permits disqualification of a county commissioner on the predisposition ground, we conclude that the lower court erroneously usurped the legislative function in effecting that result.

II

The order granting the writ is affirmed, however, on the alternative basis relied on below: the lack of standing of the present appellant to pursue the appeal. Section 19-77(b) of the Monroe County Code provides:

Any person or persons claiming to be aggrieved on account of any ruling of the zoning board or board of adjustment which enforces this chapter may appeal in writing to the board of county commissioners. Any such appeal must be filed within thirty (30) days after the act or decision upon which any appeal is made and must specify the grounds thereof.

In Chabau v. Dade County, 385 So.2d 129 (Fla. 3d DCA 1980), another panel of this court squarely held that a representative association like the Izaak Walton League was not “aggrieved” by an adverse zoning decision under a Dade County ordinance indistinguishable from this one and thus could not maintain an appeal from the Dade County Zoning Appeals Board to the county commission. We are unable to distinguish that decision on any principled basis. Since, under the present circumstances, we are bound to follow it, In re Rule 9.331, Determination of Causes by a District Court of Appeal, En Banc, 416 So.2d 1127 (Fla.1982); see also, State v. Whitehead, 443 So.2d 196 (Fla. 3d DCA 1983) (Schwartz, C.J., specially concurring), the judgment below is affirmed solely on the authority of Chabau.

Because of the obvious significance of the'issue, however, we certify to the Supreme Court of Florida that this decision passes upon the following question of great public importance:

Whether a representative group has standing as an “aggrieved” person or party to maintain an appeal of a zoning decision of a lower tribunal to the governing board of a county or municipality?

Affirmed, question certified.

      . There is none involved here. See notes 6-8, infra, and accompanying text.

      . It is significant — and wholly unacceptable— that under the ruling below, the citizens of Monroe County would be entirely deprived (putting the standing issue aside), of any review, as required in the code, by its elected County Commission of the Zoning Board decision in this important case.

      .Under our holding, which assumes that the comments of the commissioners did indicate a predisposition against the appellee, their precise contents arc irrelevant and are consequently not detailed in this opinion.

      . In response to Tepper's argument that, under due process principles, he was nevertheless entitled to demand recusal of the three commissioners under Section 120.09, Fla.Stat. (currently Section 120.71, Fla.Stat. (1981) (Administrative Procedure Act), the court stated that the terms of that section are "particularly inapplicable to city commissions and should not be applied or construed to govern the legislative deliberations of city commissions.” 257 So.2d at 104. Accord, e.g., Board of County Commissioners of Monroe County v. Marks, 429 So.2d 793, 794, n. 1 (Fla. 3d DCA 1983) ("The Administrative Procedure Act does not apply because Monroe County has not been defined as an ‘administrative agency’ by general or special law or judicial decision.")
      It is all the more obvious that the judicial recusal statute, Sec. 38.10, Fla.Stat. (1981), does not apply.

      . In Winter Springs, the Supreme Court approved the submission of a zoning change to a popular vote. Just as a voter in Winter Springs could obviously not be deprived of his franchise because of a publicly expressed opinion before the election, so a Monroe County Commissioner charged under the Code with the same responsibility, may not be disqualified for that reason.

      . Section 19-77(a), Monroe County Code (1979):
      It shall be the duty of the board of county commissioners to hear and decide appeals where it is alleged there is error in any order, requirement, decision, determination or action of the zoning board or board of adjustment in the enforcement of this chapter.

      . Chapter 61-2503, Laws of Florida § 8(2) (1961):
      The Zoning Board shall have the authority and duty to consider and act upon application for District Boundary changes, after a public hearing as prescribed in Section 5. All decisions of the Zoning Board covering District Boundaries shall be by resolution concurred in by three (3) members of the Zoning Board, and shall become final after twenty-one (21) days from the date of said decision, unless appealed to the Board of County Commissioners. All appeals from decisions of the Zoning Board shall be filed with the County Zoning Director on forms prescribed by the County Commission, accompanied by a reasonable fee set by the County Commission, within twenty-one (21) days and not thereafter. An appeal from a decision of the Zoning Board may be taken by an applicant or his agent, or an aggrieved party whose name appears in the record of the Zoning Board. The Board of County Commissioners, after considering said appeal, shall by resolution either confirm, modify or reverse the decision of the Zoning Board.

      . Section 286.012, Fla.Stat. (1981) provides:
      No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.
      As was noted by the Florida Commission on Ethics, "none of [the, aforementioned sections] relate to bias or prejudice on the part of a public officer based on other than private economic interests or relationships.” Op. Comm. Ethics, 79-14, March 22, 1979. Consequently,
      [a] city council member may not abstain from voting on grounds of bias or prejudice against an individual when matters concerning that individual or the business he represents come before the council. It is present policy of this state that a public officer may vote upon any matter, so long as he files a memorandum of voting conflict. He also may abstain as provided by § 286.012, which has been interpreted by the attorney general to require that a voting officer have a personal financial interest in a matter in order to abstain. Therefore, in the absence of any applicable provision of law which would override policy established by § 112.3143, a public officer may abstain from voting only if there is or appears to be a conflict or interest under §§ 112.311, 112.313, or 112.3143....

        Ibid.

      . Ibid.

      . As in Chabau, none of the exceptions to the lack of standing rule of Renard v. Dade County, 261 So.2d 832 (Fla.1972) apply since only the wisdom of the zoning board was challenged by the League. See Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla.1984); compare City of Miami v. Save Brickell Ave. Inc., 426 So.2d 1100 (Fla. 3d DCA 1983) and cases cited.

      . In resolving this question as an original matter, the high court must decide whether, as we held in Chabau, the rules relating to court access, which deny standing, Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, supra, apply; or whether, because of the judicial-legislative dichotomy which we have discussed supra, a broader range of interests may be heard by the commission, as indicated by the out-of-state cases we declined to follow in Chabau and reflected in the more relaxed standards now applicable in administrative proceedings. Douglaston Civic Ass’n, Inc. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317 (1974); East Cam-elback Homeowners Ass’n v. Arizona Foundation for Neurology and Psychiatry, 19 Ariz.App. 118, 505 P.2d 286 (1973); Florida Home Builders Ass’n v. Dep’t of Labor and Employment Security, 412 So.2d 351 (Fla.1982); Florida Medical Ass’n, Inc. v. Dep’t of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983); Farmworker Rights Organization, Inc. v. Dep’t of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982); Caloosa Property Owners Ass’n, Inc. v. Palm Beach County Board of County Commissioners, 429 So.2d 1260 (Fla. 1st DCA 1983), rev. denied, 438 So.2d 831 (Fla.1983); Belmont, Public Interest Access to Agencies: The Environmental Problem for the 1980's, 11 S.L.R. 454, 473-4, n. 93 (1982) ("After the supreme court reversal in Florida Home Builders, standing appears to be once again readily available to environmental groups. See, e.g., Booker Creek [v. Dep’t of Environmental Regulation], 415 So.2d 781 (Fla. 1st DCA 1982) (reversing agency denial of standing, but affirming agency ruling on substantive claims)”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GRANITE STATE INSURANCE COMPANY, Appellant, v. Calvin LANE, Sr., as Personal Representative of the Estate of Calvin Lane, Jr., deceased, Appellee.
    Nos. 83-755, 83-1194.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 16, 1984.

      Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Goodman, Dunberg & Hochman, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Granite State Insurance Company, the excess liability insurance carrier in the instant cause, appeals from the entry of final summary judgment in favor of appellee on the issue of uninsured motorist coverage under the “umbrella” or excess liability insurance policy. For reasons more fully developed below, we reverse the ruling of the trial court and remand for further proceedings.

Calvin Lane, Jr. was struck and killed by a hit and run driver on January 5, 1980, while he was driving a truck in the course and scope of his employment with Waste Management, Inc. Appellee, as personal representative of the estate, filed the instant action seeking (1) a declaration that appellant provided excess uninsured motorist coverage under the excess liability policy issued to Waste Management, and (2) compensatory damages for the wrongful death of Mr. Lane, Jr. The resulting judgment for compensatory damages is not an issue on appeal.

The question of whether there was excess uninsured motorist coverage under the policy issued by Granite State was submitted to the trial court on cross-motions for summary judgment. Both parties acknowledged that the facts were essentially undisputed; that is, that Waste Management decided that it would not obtain uninsured motorist coverage unless such coverage was required by statute in the states where Waste Management operated, and then only for the minimum limits. It is also undisputed that there was little or no discussion at all between Granite State and Waste Management on the question of excess uninsured motorist coverage because both parties knew Waste Management’s position on the subject. Therefore, there was no written or oral offer of full coverage by Granite State and no written rejection thereof by Waste Management. The trial court entered final summay judgment in favor of the appellee on this issue, presumably on the basis of the estate’s argument that this court had issued several opinions determining that section 627.727, Florida Statutes, required that rejection of uninsured motorist coverage or selection of lower limits of coverage be made knowingly and in writing. Cf. Cohen v. American Home Assurance Co., 367 So.2d 677, 681 (Fla. 3d DCA), cert. denied, 378 So.2d 342 (Fla.1979). Thus, the failure to offer full coverage initially or to reject the excess uninsured motorist coverage in writing rendered the rejection invalid so that the coverage was deemed to exist. General Insurance Co. of Florida v. Sutton, 396 So.2d 855 (Fla. 3d DCA 1981).

Subsequent to the trial court’s ruling on the motion for summary judgment, the supreme court decided Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982), directly confronting the issue of whether section 627.727, Florida Statutes, requires rejection (or selection of lower limits of coverage) be made in writing. The court stated:

the statute does not require written rejection nor does it mandate rejection in a specific form. What the statute does require is that a rejection of uninsured motorist coverage or a selection of lower limits of coverage must be knowingly made. The question of whether an insured has knowingly rejected uninsured motorist coverage or knowingly selected coverage in a lesser amount than that which the insurer is required to make available is an issue to be decided by the trier of fact.

Id. at 1088 (citations omitted). Thus, the question of the lack of a written rejection is now resolved. The question of whether the insured made a knowing rejection of the coverage or a knowing selection of lower limits of coverage, however, is now a genuine issue of material fact for which summary judgment is improper, both as a well-established rule of law and under the facts of this case. Lane v. Waste Management, Inc., supra, 432 So.2d 70. Therefore, we reverse the entry of summary judgment on the issue of uninsured motorist coverage and remand for a determination of whether Waste Management’s rejection was knowledgeable.

With regard to the issue of attorneys’ fees, the amount awarded by the trial court is conditionally approved, pending appel-lee’s successful obtaining of uninsured motorist coverage on remand.

Reversed and remanded for further proceedings.

      . Another action for declaratory relief was filed in Broward County by Waste Management and American Motorist Insurance Co., the primary carrier, seeking a determination of whether the American Motorist policy afforded uninsured motorist coverage for Lane’s estate. That decision, Lane v. Waste Management, Inc., is reported at 432 So.2d 70 (Fla. 4th DCA 1983).

      . See Lane v. Waste Management, supra, 432 So.2d at 72, where the same fact pattern (although between Waste Management and American Motorist) is set out in greater detail.


author: DANIEL S. PEARSON, Judge.

text:
    Leonard WOOLFSON, Appellant, v. Alynn ROSE, Appellee.
    No. 83-1927.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      Abrams & Abrams and Brenda M. Abrams, Miami, for appellant.
    Hyman & Kaplan and Michael L. Hyman, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   DANIEL S. PEARSON, Judge.

The sole point on this appeal which merits discussion is the former husband’s contention that where the trial court had referred the former wife’s petition for increased child support, including a related request for attorneys’ fees and costs, to a general master whose report to the court addressed the issue of child support only, and where the wife's exceptions to the report did not allege as error the failure of the master to consider or reserve jurisdiction to consider the wife’s request for fees and costs, the trial court, in ruling favorably on the wife’s exceptions, was not empowered to reserve jurisdiction to make a later award of attorneys’ fees and costs to the wife.

Assuming, arguendo, that the master’s silence on the issue of attorneys’ fees and costs could be considered to be a ruling thereon, it is clear that the wife’s failure to file an exception to this “ruling” does not preclude the trial court from according the wife such relief as the trial court deems appropriate. Slatcoff v. Dezen, 74 So.2d 59, 60 (Fla.1954) (“[E]ven in the absence of exceptions to the special master’s report it is ‘the duty of the court to examine and carefully consider the evidence and determine whether under the law and the facts the court is justified in entering the decree recommended by the Master.’ ”) (quoting Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951)); McMullen v. McMullen, 68 So.2d 179 (Fla. 1953) (reversing because of insufficient evidence the court’s entry of final decree of divorce, notwithstanding lack of exceptions to master’s report recommending entry of decree); Bell v. Bell, 307 So.2d 911 (Fla. 3d DCA 1975). See also Ben-Hain v. Tacher, 418 So.2d 1107 (Fla. 3d DCA 1982). Florida’s rules and statutes providing for the filing of exceptions to the master’s report, however worded, have never been construed “to mean that, in the absence of exceptions, the entry of a final decree by the court in accordance with the findings and recommendations of the Master becomes a mere formality.” Lyon v. Lyon, 54 So.2d at 680.

Moreover, despite appellant's suggestion to the contrary, this is not a case where the trial court’s reservation of jurisdiction to award attorneys’ fees usurped the master’s fact-finding role or failed to pay due deference to facts found by the master. The master did not find that the wife was disentitled to attorneys’ fees and costs; indeed, he found nothing on this issue. Nor did the trial court's order determine a matter which was not the subject of appropriate notice and pleadings so that it could be said to have denied the appellant due process, cf. Gonzalez v. Gonzalez, 446 So.2d 237 (Fla. 3d DCA 1984); Barreiro v. Barreiro, 377 So.2d 999 (Fla. 3d DCA 1979); instead, the trial court merely reserved jurisdiction to determine in the future, presumably upon appropriate notice and after adequate hearing, the wife’s entitlement vel non to fees and costs. Finally, this is not a case where the trial court can be said to have lost jurisdiction to award attorneys’ fees and costs because of its failure to reserve or retain such jurisdiction. Cf. Maney v. Maney, 413 So.2d 131 (Fla. 1st DCA 1982); Berlin v. Berlin, 395 So.2d 1260 (Fla. 3d DCA), rev. denied, 402 So.2d 607 (Fla.1981); Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). It was the master who did not reserve jurisdiction, and his failure to do so, preceding as it did the entry of a final judgment, is inconsequential.

Affirmed.

      . Indeed, the rule and statute in existence when Lyon was decided provided that "[i]f no exceptions are filed within the said period [ten days] by either party, the report shall be confirmed by order of the court or in or by the final decree." Lyon v. Lyon, 54 So.2d at 680 (emphasis supplied). A less stringent rule which provided that in the absence of exceptions "the court shall take such action on the report as may be appropriate" was adopted in 1954. Slatcoff v. Dezen, 74 So.2d at 60. The rule controlling the case at bar, similar to its 1954 predecessor, provides that "[i]f no exceptions are filed within the period [ten days], the court shall take appropriate action on the report." Fla.R.Civ.P. 1.490(h).


text:
    Mario PEREZ, Appellant, v. UNDERWRITERS AT LLOYDS LONDON, Appellee.
    No. 83-1962.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      A.P. Walter, Jr., Coral Gables, for appellant.
    Hayden & Milliken and Robert W. Blanck, Miami, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter a judgment for the insured Mario Perez in the amount of $40,642.00 upon a holding that: (1) the relevant provision of the marine insurance policy in question [“In the event of loss or damage, cost of repairs to be paid without deduction, new for old ... the Company shall be liable for no more than the cost of repairs or a reasonable value”] affords cost of repair insurance coverage for the insured damaged vessel, (2) the “reasonable value” term, as stated above, is nowhere defined in the policy, is entirely ambiguous to whether it refers to a reasonable value of the cost of repairs or a reasonable value of the insured vessel, and to the extent it means the latter, cannot be employed to provide less insurance coverage than cost of repair coverage, DaCosta v. General Guaranty Insurance Co. of Fla., 226 So.2d 104, 107 (Fla.1969), (3) the undisputed evidence below establishes that the cost of repairing the insured damaged vessel was $40,642.00 although the present market value of the vessel was considerably lower, so that the insured Mario Perez was entitled to the above-stated cost of repairs under the aforesaid marine insurance policy and not to the reasonable value of the entire vessel as found by the trial court below. Travelers Indemnity Co. v. Kassner, 322 So.2d 80 (Fla. 3d DCA 1975), cert. denied, 333 So.2d 41 (Fla.1976).

Reversed and remanded.


author: LESTER, M. IGNATIUS, Associate Judge.

text:
    CHINOS VILLAS, INC., Appellant, v. Antonio BERMUDEZ and Flor De Maria Bermudez, individually, Appellees.
    No. 83-2096.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      Preddy, Kutner & Hardy, G. William Bis-sett, Miami, for appellant.
    Brumer, Cohen, Logan & Kandell, Karen A. Curran, Miami, for appellees.
    Before SCHWARTZ, C.J., and PEARSON, DANIEL S., J., and LESTER, M. IGNATIUS, Associate Judge.
   LESTER, M. IGNATIUS, Associate Judge.

This is an appeal by the defendant seeking review of an order of the trial court dismissing the counterclaim for contribution without leave to amend.

This action was commenced by the parents of Pablo Bermudez, both in their individual and representative capacity, against the defendant, Chinos Villas, Inc., alleging the defendants failed to provide lifesaving apparatus and other emergency assistance, which negligence caused or contributed to causing the drowning death of their four-year-old son. Defendant counterclaimed against the deceased’s parents in their individual capacity, seeking contribution predicated by the parents’ alleged negligent failure to properly supervise, control and protect their minor son, which negligence either caused or contributed to causing the drowning death of the child. The parents moved to dismiss the counterclaim on the grounds that section 768.31, Florida Statutes (1981) does not permit a counterclaim for contribution and defendant does not have the right to contribution pursuant to said statute. The trial court granted plaintiffs’ motion to dismiss without leave to amend, but without prejudice to assert the same claim in a separate and subsequent suit.

The threshold question raised in this appeal, which must be addressed is whether the order dismissing defendant’s counterclaim for contribution is a final appeala-ble order. We have jurisdiction. Ryder Truck Lines, Inc. v. Pough, 392 So.2d 590 (Fla. 3d DCA 1981).

It is now well settled, after the supreme court’s decision in Joseph v. Quest, 414 So.2d 1063 (Fla.1982), that an action for contribution is available to a third party tortfeasor against parents whose neglect in parental supervision and control contributes to causing injuries to their minor child.

The only question which now needs to be addressed by this court is whether the trial court can dictate the time and manner in which contribution can be pursued. The Uniform Contribution Among Tortfeasors Act, § 768.31, allows the defendant to file a permissive counterclaim for contribution. See Ryder Truck Lines, Inc. v. Pough. The policy expressed by our supreme court many times to encourage litigants to file permissive counterclaims has been set forth in Wincast Associates, Inc. v. Hickey, 342 So.2d 77 (Fla.1977). The most orderly and logical manner in which necessary “common liability” can be established should be in a single action, which is amply set forth in the opinion in New Hampshire Insurance Co. v. Petrik, 343 So.2d 48 (Fla. 1st DCA 1977):

The logic is recognized that to allow such a procedure efficiently conserves the court’s time, effort, expense, and provides consistency of result wherein the action which establishes the plaintiff’s right to recovery also establishes against whom that recovery should be made.

343 So.2d at 50.

We reverse the trial court order dismissing the defendant’s counterclaim and the cause is remanded to the trial court with directions to permit the maintenance of both the affirmative defense of the parents’ comparative negligence and the counterclaim for contribution in the present action. See Joseph v. Quest; Wincast Associates, Inc. v. Hickey; New Hampshire Insurance Co. v. Petrik.

Reversed and remanded.


author: NESBITT, Judge.

text:
    BANKERS INSURANCE COMPANY, Appellant, v. Luis SOSA, Appellee.
    No. 82-2462.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Weinstein & Bavly, Richard M. Gale, Miami, for appellant.
    Maguire & Friend and Michael Friend, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   ON MOTION FOR REHEARING GRANTED

NESBITT, Judge.

The sole issue for our resolution is whether summary judgment was improperly entered in favor of the insured finding that the insurer had breached its duty under section 627.739, Florida Statutes (1981) by issuing a personal injury protection policy which contained a deductible without first determining whether the insured had collateral coverage. We reverse.

Sosa applied to the Caribe Insurance Agency for insurance coverage on his automobile. The information pertaining to his insurance was taken by Lopez. In his deposition testimony, Sosa could not recall whether Lopez had asked him if he had other insurance or whether he had discussed PIP coverage and the deductible with Lopez, although he conceded that Lopez must have explained to him and showed him a form regarding deductibles since Sosa’s signature was on the form. Ultimately, Sosa was issued a policy by Bankers Insurance Company which contained an $8,000 deductible. An affidavit in support of Sosa’s motion for summary judgment indicated that at the time he. purchased insurance he neither had collateral insurance nor had anyone made inquiry of him concerning its existence.

The deposition testimony of Carlos Lopez was that he had asked Sosa whether he had other insurance and that Sosa replied that he was already covered, at which point Sosa signed the form regarding other insurance. During the coverage period, Sosa was involved in an accident. Bankers refused to pay for any damages below the $8,000 deductible amount which prompted the instant lawsuit. On the facts recited above, the insured moved for summary judgment arguing, under Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28 (Fla. 3d DCA 1981), aff'd, 447 So.2d 1337 (Fla.1983), that the deductible amount did not apply. The trial court found that Bankers made no inquiry and had no knowledge of whether the insured had other coverage which would have provided insurance in place of the $8,000 deductible in question.

The relevant statute, section 627.739, places the duty on the insurer to inquire whether the prospective insured has other coverage and only to offer personal injury protection deductibles to applicants with other coverage. In Kwechin, this court held that an insurer who failed to satisfy the requirements of this statute would be liable to the insured as if the policy contained no deductible.

We find that there is a material issue of fact as to whether the statute has been complied with in the present case. Sosa’s deposition testimony that he must have been informed of the necessity of other insurance since he signed the form is an admission which precludes summary judgment notwithstanding his affidavit in support of the summary judgment which stated that he was not informed. Additionally, Lopez’ testimony that Sosa told him he had other coverage available, if true, would have allowed Lopez to issue a policy with a deductible.

Reversed and remanded.

      . The application form in part provided:
      A WORD OF CAUTION: Most PIP is carried without a deductible of any amount, and deductibles are not recommended to those who do not have other coverages which will respond adequately for the payment of injuries in automobile accidents.


author: SMITH, CHARLES E., Associate Judge.

text:
    J. Edward FARRAR and Charlotte Farrar, his wife, Appellants, v. INVESTORS REALTY SERVICES, INC., a Florida corporation, Appellee.
    No. 82-1849.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 16, 1984.

      Edna L. Caruso of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellants.
    Paul Thibadeau of Law Offices of Paul Thibadeau, Palm Beach, for appellee.
   SMITH, CHARLES E., Associate Judge.

The sellers of a parcel of real property, Mr. and Mrs. J. Edward Farrar, appeal the award of a $165,000 brokerage fee to a broker, Investors Realty Service, Inc., who did not effect the sale of the property. The appellants contend they should have been granted a directed verdict. We agree, and reverse the trial court’s judgment. Basic to our conclusion is the condition upon which it was agreed the broker would become entitled to a commission.

In early 1979 Mr. Farrar made known to Christian Johannsen, president of Investors Realty Services, Inc., that the Farrars’ Phillips Point property was for sale. There was no discussion of when the broker would become entitled to a commission. Over a period of time Johannsen presented and Farrar rejected eight different sales contracts. In the summer of 1980, Johann-sen presented an offer from a Mr. Holland, who proposed to build a condominium on the property. Holland offered 3.6 million dollars. Farrar indicated willingness to sell at this price if the $100,000 earnest money would be put at his disposal, rather than in escrow, and if the buyer would agree to sell Farrar a two bedroom condominium unit at cost. A sales contract, drawn by Holland’s attorney on the standard form of the Florida Bar and the Florida Association of Realtors was discussed at a meeting of Farrar and his attorney with Holland and his two associates, his lawyer, and Johannsen. Because the contract’s provision respecting the earnest money as well as other lesser provisions failed to conform to Farrar’s wishes, and because the contract did not provide for Farrar’s acquisition of one of the condominium units at cost, Farrar rejected it. A second agreement was drawn conforming to Farrar’s wishes. An addendum to this contract provided that Investors Realty Services, Inc., would receive a 5 per cent commission from the seller if, as and when the transaction closed. The standard brokerage fee provision was stricken from the form contract. Johannsen was present when substitution of the new provision for the standard brokerage fee provision was discussed. Jo-hannsen admitted he agreed to this new brokerage fee provision.

Mr. Farrar accepted a better offer from another buyer, and consequently never signed the above-described contract. Nevertheless, the trial court should have found as a matter of law, as we do now, that the brokerage fee provision it contained memorialized the understanding reached between the owner and the broker. A provision with this language requires payment of the brokerage fee only when the real property transaction is actually completed. The realtor was employed to effect a sale, not merely to obtain a ready, willing and able buyer. E.g., Harding Realty, Inc. v. Turnberry Towers Corp., 436 So.2d 983 (Fla. 3d DCA 1983).

We reverse and remand for trial court action in harmony with this opinion.

GLICKSTEIN and HURLEY, JJ., concur.


author: HURLEY, Judge. WALDEN, Judge,

text:
    STATE of Florida, Appellant, v. David Wayne DOUSE, William Lewin Hamilton, Dennis Kenyon Macko and Michael Lewis, Appellees.
    No. 83-788.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 16, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard Ozeli, Fort Lauderdale, for ap-pellee-Douse.
    Steven Greenberg, Miami, for appellee-Hamilton.
    Mark Perry, Fort Lauderdale, for appel-lee-Macko.
    Sheldon Schwartz, Miami, for appellee-Lewis.
   HURLEY, Judge.

The State appeals from an order of the trial court suppressing taped telephone conversations between David Wayne Douse and a police detective. We affirm because the statements were deliberately elicited from the defendant by surreptitious means after his right to counsel attached under Florida law.

Two days after the defendant was arrested, but before the filing of an information against him, a police officer posing as a friend of a codefendant telephoned Douse in order to obtain information relating to the arrest. This call took place one day after the defendant’s first appearance, at which he was represented by retained counsel.

We recognize that the defendant had no federal constitutional right to suppress the conversation because his Sixth Amendment right to counsel had not attached at the time the statements were elicited. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Under the Sixth Amendment of the federal constitution, the accused’s right to counsel does not attach until “the initiation of adversary judicial criminal proceedings— whether by way of formal charge,' preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); see also Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Nonetheless, we find that in this instance state law provides greater protection than its federal counterpart and, therefore, the case at bar should be adjudicated under principles of Florida law. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489 (1977).

Article I, Section 16 of the Florida Constitution guarantees the right to assistance of counsel in all criminal prosecutions. Rule 3.130, Fla.R.Crim.P., in turn, states that the right to assistance of counsel attaches at least as early as the defendant’s first appearance which should occur within twenty-four hours of arrest. Thus, in this case the incriminating statements made one- day after Douse’s first appearance were elicited after his right to counsel attached under'Florida law.

Once the right to counsel has attached, the police may not deliberately elicit incriminating statements from a defendant through surreptitious means. See United States v. Henry, supra; Massiah v. United States, supra. Yet, this is precisely what occurred in the case at bar. On the-day after the defendant appeared at first appearance with his retained lawyer, a police officer, posing as an acquaintance of a codefendant, telephoned the defendant at home and elicited incriminating statements. We therefore conclude that the police officer’s conduct violated Douse’s state consti-' tutional right to assistance of counsel, and consequently affirm the suppression order.

DOWNEY, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

I respectfully dissent because, in my opinion, there had not been , an initiation of adversary judicial proceedings at-the timé of the conversations in question. Thus, I do not find any violation of either the federal or state constitution.

Moreover, I am unable to agree that here our state constitution provides greater protection to a defendant charged with a crime than- does the federal constitution.

      . The sole appellate-point framed by Douse was: WHETHER THE DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL ATTACHES IN STATE COURT AT A MAGISTRATE’S FIRST APPEARANCE HEARING PURSUANT TO RULE 3.130(b), Fla.R.Crim.P?
      The majority opinion, as reflected, decides this question adversely to Douse by saying that Douse had no federal constitutional right to suppress under the Sixth Amendment.


author: DOWNEY, Judge.

text:
    James R. GEORGES and Karen Georges, etc., et al., Appellants, v. INSURANCE TECHNICIANS, INC., a Florida corporation, Appellee.
    No. 83-1153.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 17, 1984.

      Richard F. O’Brien, III, Miami, for appellants.
    Ronald D. Poltorack of Law Offices of Ronald D. Poltorack, P.A., Fort Lauder-dale, for appellee.
   DOWNEY, Judge.

Appellants seek review of an order denying a motion to grant relief from an order striking pleadings and denying a motion to vacate a default. The order denying a motion to vacate is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii); Silva v. Pedro Realty, Inc., 411 So.2d 872 (Fla.1982).

Appellee, Insurance Technicians, Inc., sued appellants to recover the balance due from appellants for unpaid insurance premiums on insurance policies that appel-lee had procured for appellants. During the course of the litigation appellee filed a request for production of documents. On the last day of the time for production appellants filed a motion for a ninety day extension within which to comply. After a hearing on said motion, the trial court granted appellants an additional thirty days to produce. The new time for production came and went without any production or additional extension of time. Appellees then filed a motion for sanctions, which was heard on February 24, 1983. The trial court gave appellants ten additional days to produce the subject material. When production was not timely forthcoming a new motion for sanctions was filed. At the hearing on said motion on March 16, 1983, counsel for appellee advised the court that appellants’ counsel would not attend due to a conflict but that counsel objected to imposition of any sanctions. On March 18, 1983, the trial court entered an order in which it found that appellants had not complied with two court orders for production; that appellants had made misrepresentations to the court; that some pleadings were evasive and incomplete and generally there was an absence of good faith on the part of appellants. In fact, the court found that “Defendants have embarked upon and traveled down a path of intentional delay and abuse of the system in clear violation of the Orders of this Court validly entered on December 21, 1982 and February 24, 1983.”

We have seriously considered all of appellants’ contentions relative to the March 16, 1983, hearing which they did not attend and find little support in the record for them. On the other hand, the carefully prepared order of the trial court granting sanctions and entering a default against appellants makes findings of fact that adequately support the action taken.

Accordingly, appellants have failed to demonstrate reversible error which requires that we affirm the order appealed from.

AFFIRMED.

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


author: LEHAN, Judge.

text:
    In re The ESTATE OF Herman H. KILLINGER a/k/a H. Harold Killinger, Deceased.
    No. 83-1798.
    District Court of Appeal of Florida, Second District.
    April 18, 1984.

      J.C. O’Steen of Lager, Woodward & O’Steen, Tallahassee, for appellant.
    Sandra F. Diamond of Fisher & Sauls, P.A., Seminole, for appellee.
   LEHAN, Judge.

The beneficiary under decedent’s newly-discovered will appeals the trial court’s order refusing to revoke probate and reopen the decedent’s estate. We affirm.

After decedent died on December 27, 1981, his wife filed a petition for administration, alleging that she was unaware of any existing wills or codicils. The estate was administered pursuant to the intestate provisions of section 732.102, Florida Statutes (1981). Distribution of the assets was made to decedent’s wife. The circuit court closed the estate and discharged the personal representative on November 16,1982.

During the administration of the estate, the decedent’s brother and sister had made a diligent search for a will, but were unable to find one. Approximately three months after the estate was closed, however, the decedent’s will was located at the law office of one of the attorneys who had previously been contacted during the search for the will. The discovered will provides that the decedent’s entire estate would pass to his mother.

A petition to reopen and readminister the estate was filed pursuant to section 733.-903, Florida Statutes (1981), which allows revocation' of an order of discharge “if it becomes necessary that further administration of the estate be had for any cause.” The circuit court concluded that the finding of the will did not justify reopening the estate under section 733.903 and denied the petition to revoke administration of decedent’s estate.

The parties raise several arguments on appeal. The first issue is whether section 733.208, Florida Statutes (1981), applies to intestate estates. That section provides as follows:

On the discovery of a later will or codicil expressly or impliedly revoking the probated will in whole or in part, pending or during administration, any interested person may offer the later will for probate. The proceedings shall be similar to those for revocation of probate. No later will or codicil may be offered after the closing of the estate.

By its language, section 733.208 seems to apply only to testate estates because it refers to a later will which revokes the probated will and prohibits the offering of any such later will after the closing of the estate. Appellee argues that the last sentence of this section is not specifically limited to a testate estate and should be construed to prohibit the offering of a will after the closing of an intestate estate. However, we believe that the language of this section does limit its application to testate estates. The statutes says that no “later will” can be offered after the closing of an estate; the statute does not say that no later-discovered or newly-discovered will can be offered. The term “later will” refers to a will later in date than the will being probated. The use of the term “later will” implies that the legislature was referring only to testate estates, since that term would be meaningless in a discussion of intestate estates.

Section 733.208, Florida Statutes (1981), is derived from section 732.32, Florida Statutes (1973). The earlier statute contained substantially the same language but did not include the last sentence of section 733.208, which prohibits the offering of a later will after the closing of an estate. The 1973 statutes also contained a section pertaining to the discovery of an unknown will or a later will after termination of probate proceedings and discharge of the personal representative. That section, section 732.33, Florida Statutes (⅞973), allowed interested persons to sue in equity to impress a trust upon the funds or property received by an heir in the terminated probate proceedings which, because of the newly-discovered will, the recipient was not justly entitled to retain.

In 1974, the legislature substantially revised the probate code. The provisions of section 732.32 were incorporated into section 733.208, Florida Statutes (1975). The provisions of section 732.33 were transferred to section 733.902, Florida Statutes (1975).

The legislature made further changes in 1975. The wording of section 733.208 was changed slightly and the last sentence, prohibiting the offering of a later will after the closing of an estate, was added. The legislature also repealed section 733.902 which had allowed the equity proceedings' upon the discovery of an unknown will or later will.

In summary, the 1973 statutes contained section 732.32 which allowed the offering for probate of a later will discovered during probate proceedings, and section 732.33, which provided for proceedings upon the discovery of an unknown will or later will after the termination of probate proceedings; but after the amendments to the probate code in 1974 and 1975, the statutes have contained no provisions similar to the prior section 732.33 allowing proceedings upon the discovery of a will after termination of probate. In addition, the legislature added a sentence to the section pertaining to discovery of a later will during probate and thereby specifically provided that no later will could be offered after the closing of the estate. From this legislative history, it can be inferred that the legislature intended, subsequent to the 1974 and 1975 revisions, to allow no proceedings upon the discovery of a later will or unknown will after the termination of probate and the discharge of the personal representative in either testate or intestate proceedings.

The common law lacks clarity in this area. It has been suggested that a probate court has the inherent power to revoke probate upon “strong factual allegations of fraud, overreaching or mistake.” See Yellen v. Long, 387 So.2d 384 (Fla. 4th DCA 1980); Padgett v. Padgett, 318 So.2d 484 (Fla. 1st DCA 1975). But that language from those cases relative to mistake is dicta. None of the cases reveal mistake as an asserted ground for relief. Yellen relies upon Padgett, and Padgett relies upon State v. Byington, 168 So.2d 164 (Fla. 1st DCA 1964). Byington, however, which contains similar dicta, is materially different in several respects. Byington did not involve discovery of a will after intestate proceedings were closed. Byington involved revocation of probate of a will, and the revocation was sought prior to the discharge of the personal representative. Therefore, we do not believe the common law justifies a reopening of this estate.

Appellant also argues that section 733.903, Florida Statutes (1981), would allow the reopening of this estate. That section provides that the discharge of the personal representative would not prevent a revocation of the order of discharge “if other property of the estate is discovered or if it becomes necessary that further administration of the estate be had for any cause.” We agree with the trial court that the discovery of a will after the termination of probate of an intestate estate does not justify revocation of probate under section 733.903. That section allows revocation if it becomes “necessary” that further administration of the estate be had. There is little Florida case law to assist in an interpretation of this section, but we believe that the statute refers to those situations in which a mistake has been made in the administration of the estate which necessitates reopening the estate to allow proper and complete administration. Examples of this type of mistake could include circumstances involving property in the estate having not been distributed. Cf. In re Estate of Sackett, 171 So.2d 906 (Fla. 1st DCA 1965). We do not believe the later discovery of a will makes it “necessary” to reopen administration. Cf. Minto v. Heischman, 290 So.2d 528 (Fla. 2d DCA 1974); In re Estate of Jackson, 236 So.2d 475 (Fla. 4th DCA 1970).

Accordingly, we cannot find error by the trial court. We affirm the order denying the petition to revoke administration of decedent’s estate. While the justice of this result which benefits the wife and not the mother can be argued, certainly, at least absent fraud, some deadline must be placed on the time during which a newly-discovered will can be offered for probate. See generally Fair v. Tampa Electric Co., 158 Fla. 15, 17, 27 So.2d 514, 515 (1946).

We believe, under the circumstances of this case and the foregoing statutory construction, that the deadline must be the closing of the estate and the discharging of the personal representative. We note that under the prior section 732.33, Florida Statutes (1973), the legislature provided that the proceedings allowed under that statute upon the later discovery of a will could be brought no later than three years after the discharge of a personal representative. When that section was transferred to become section 733.902, Florida Statutes (1975), the legislature amended the section and changed the arbitrary deadline to require that the proceedings be brought no later than one year after the discharge of the personal representative. By eliminating the provisions of this section altogether, we believe the conclusion must be inescapable that the legislature intended the time period for presenting a newly-discovered will to end with the discharge of the personal representative. .

AFFIRMED.

OTT, C.J., and CAMPBELL, J., concur.


text:
    Gay N. SALYER, Appellant, v. GAINESVILLE, DODGE, INC., a Florida corporation, Osceola Truckin’ Company, a Florida corporation, and Liberty Mutual Insurance Co., a foreign corporation, Appellees.
    No. AR-243.
    District Court of Appeal of Florida, First District.
    April 18, 1984.

      James P. Jamieson, Gainesville, for appellant.
    Barry D. Graves, Gainesville, for appel-lee Southeastern Fidelity Ins. Co.
    John M. Green, Jr., Ocala, for appellee Liberty Mut. Ins. Co.
   PER CURIAM.

All parties in this appeal have stipulated that this Court’s decision is to be governed by the holdings of the Vanbibber case, decided by the Florida Supreme Court subsequent to the filing of this appeal. Vanbibber v. Publix Supermarket, Inc. and Hartford Casualty Insurance Co., 439 So.2d 880 (Fla.1983).

In Vanbibber, the Florida Supreme Court found section 627.7262, Florida Statutes, to be constitutional but applicable only prospectively. See also, Randel v. General Insurance Company, 439 So.2d 986 (Fla. 3d DCA 1983). Because the incident in this cause occurred prior to the effective date of Section 627.7262 (October 1, 1982), prior state law controlled the suit. This prior state law authorized, simultaneously, a suit in tort against a tort-feasor and a claim against that tort-feasor’s insurance company. Shingleton v. Bussy, 223 So.2d 713 (Fla.1969).

Because the incident in the present case occurred prior to the effective date of the statute, a simultaneous suit against both the corporate defendants and their insur-anee carriers must be permitted.

REVERSED and REMANDED.

SMITH, WENTWORTH and JOANOS, JJ., concur.


author: WENTWORTH, Judge. MILLS, Judge,

text:
    UTLEY-JAMES, INC., and Continental Ins. Co., Appellants, v. Richard G. LADY, Appellee.
    No. AT-188.
    District Court of Appeal of Florida, First District.
    April 18, 1984.

      Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Joseph L. Thury, of Antinori & Thury, Tampa, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order by which claimant was awarded temporary disability benefits. We affirm the order appealed because we find the award properly based on evidence of work search commensurate with claimant’s medical condition during the four month period in question.

Claimant is a 53 year old eighth-grade educated worker who has done only heavy manual labor, and who sustained a fracture of his right wrist in an industrial accident. After receiving treatment from Dr. Williamson claimant was initially released without restriction on November 22, 1982. However, on returning to his former employment claimant found that his job activities produced disabling pain which precluded him from continuing such employment. Claimant returned to Dr. Williamson, who then referred him to Dr. Boling, an orthopedist specializing in hand surgery, for further examination and treatment including the possibility of surgery. Claimant continued under Dr. Boling’s care until April 13, 1983, during which period medical reports in the record show advice that his condition “could be improved ... by a wrist fusion,” and on March 21 “I told him if he wasn’t having much pain certainly don’t consider any surgery, and go back to work and see what he can do with it.” The report of April 13 states “[i]f he goes back to laboring and he does have pain obviously we will consider him disabled until he makes up his mind what he wants to do.” Although he did not make any final decision with regard to surgical intervention, claimant did express his reluctance to pursue this course of treatment, having been told “[i]t is doubtful even with a wrist fusion he would return to full duty of what he was doing before.” Dr. Boling ultimately testified that claimant’s condition had remained essentially unchanged throughout the term of his care, and that without surgery no further improvement is reasonably anticipated.

Although Dr. Boling stated that he would defer to Dr. Williamson’s opinion regarding claimant’s attainment of maximum medical improvement, and Dr. Williamson suggested that MMI had been attained in December 1982, these opinions were reached retrospectively, after Dr. Bol-ing terminated his active care of claimant. To compel a deputy’s acceptance of such opinion based on retrospective contemplation would clearly constitute misapplication of the concept of maximum medical improvement under the statute. Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969), explains:

The nature of medical treatment is not to be determined by the ultimate success or failure of the treatments. Treatments are curative in nature if administered or prescribed by a qualified physician with a reasonable expectation that they will bring about some degree of recovery.... Temporary disability continues as long as recovery or lasting improvement in the injured person’s condition can reasonably be expected_ Maximum medical improvement is the date after which recovery or lasting improvement can no longer reasonably be anticipated.

In the present case Dr. Williamson testified that he referred claimant to Dr. Boling for such further treatment as Dr. Boling might deem advisable, and claimant continued under Dr. Boling’s active care until April 13, 1983. At no time before that date in the course of Dr. Boling’s attendance was claimant unequivocally released from care or advised that any medical care other than surgery was useless. Regardless of the ultimate success or failure of his attendance in effecting improvement in claimant’s condition, Dr. Boling’s care was remedial in nature since it was continued with an expectation that some degree of further recovery might be effected. Such expectation precludes an earlier determination of maximum medical improvement, and the deputy did not err in finding that claimant reached this plateau only upon the termination of Dr. Boling’s attendance.

Evidence of medical incapacity causing total economic disability, or evidence of a good faith work search, is required to establish entitlement to temporary disability benefits. See e.g., Huntley Jiffy Stores v. Allen, 445 So.2d 630 (Fla. 1st DCA 1984). In the present case claimant’s physicians all agreed that throughout the course of Dr. Boling’s care claimant remained unable to return to his former employment or any other heavy laboring endeavor. Although claimant admittedly did not contact all prospective employers whom he listed on the wage loss forms he submitted, claimant did testify as to a significant number of contacts with listed employers, as well as other unlisted employment contacts. The deputy was accordingly entitled to conclude that claimant’s effort to find other employment, together with the medical evidence presented, was sufficient to satisfy the requirements for entitlement to compensation, during the total time in question based on temporary partial disability.

The order appealed is affirmed.

McCORD, Jr. (Ret.), Associate Judge, concurs.

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting:

I dissent. I would reverse the deputy’s compensation order.

The deputy found that Lady reached maximum medical improvement on 13 April 1983 and awarded him temporary total disability compensation from 22 November 1982 to 13 April 1983. The employer/carrier contend the deputy erred. I agree. The order is not supported by competent substantial evidence.

On 22 November 1982, Dr. Williamson, the treating physician, released Lady for return to work without restrictions.

After attempting to work for two days, Lady returned to Dr. Williamson who referred him to Dr. Bolling for a recommendation as to whether he suggested surgery. Dr. Bolling suggested surgery but Lady has not decided to undergo surgery. Dr. Bolling suggested that Dr. Williamson should be consulted on the MMI date. Dr. Williamson set the MMI date as 17 December 1982.

The uncontradicted medical evidence is that without surgery no further improvement is anticipated and that Lady reached MMI on 17 December 1982.

The uncontradicted medical evidence is that Lady was released for return to work without restrictions on 22 November 1982. Lady is not entitled to TTD compensation for the period of time he is deciding whether he will undergo surgery. If he elects to undergo surgery, he will be entitled to TTD compensation at that time.

In my judgment, the deputy has no authority to “deem” that a claimant has rejected surgery on a certain date where the claimant has not rejected surgery and there is no evidence to support the deputy’s finding.

In addition, the evidence of a work search is insufficient here. It is my opinion that even a minimal search was not made. Lady admitted that he filed false job contact lists. He admitted that he contacted only half of the prospective employers he listed.

I would reverse.

      . The order finds:
      The claimant has a severe injury to his right wrist, which prevents him from performing heavy manual labor, which has been his lifelong occupation. He is probably in need of surgery, but he has been unable to decide whether to submit to surgery. He is, of course, entitled to a reasonable period of time to make such a significant decision, but there must be a limit on the duration of the decision-making process. Considering all the circumstances, I feel that he should be deemed to have refused surgery when he saw Dr. Boling on April 13, 1983, and that he reached maximum medical improvement on that date. Despite a minimal job search, I find, based upon the testimony of Dr. Boling and the claimant, that he is entitled to compensation for temporary partial disability at the maximum rate until the date of máximum medical improvement. He did make some efforts to find employment, including an unsuccessful attempt to return to work with the employer; moreover, he was continuing to receive medical treatment and attempting to decide whether to submit to surgery. His employer refused to offer him light work.

      . Although the decretal portion of the order refers to compensation for "temporary total disability," that language must be read in conjunction with the preceding paragraph of the order, note 1, supra, to award compensation at the full applicable rate for the time in question under • the statutory provision for total wage loss during temporary partial disability. The date of MMI is not, accordingly, dispositive of the issues on appeal, but the nature of continuing medical care and instructions is properly argued by the parties in this case as a circumstance pertinent to the evaluation of claimant’s evidence of work effort in establishing wage loss. As noted in Regency Inn v. Johnson, 422 So.2d 870, 977 (Fla. 1st DCA 1982):
      We submit ... that consideration of the factors [claimant’s actual physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and the like] is still required, as in the past, in determining the adequacy and good faith of the job search, and in determining under the 1979 amendments whether the employee has voluntarily limited his employment or failed to accept employment commensurate with his abilities.

      . The deputy’s determination of maximum medical improvement, and further statement that claimant "should be deemed to have refused surgery" upon his last visit to Dr. Boling, does not preclude claimant from applying for further temporary disability benefits should he elect to undergo surgery at some time in the future.


text:
    EXCHANGE BANK & TRUST COMPANY and Aetna Casualty & Surety Company, Appellants, v. Catherine OLSEN, Appellee.
    No. AT-413.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Thomas R. Bopp of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, and Lawrence, Anza-lone, Tampa, for appellee.
   PER CURIAM.

AFFIRMED. We find this appeal to be frivolous.

WENTWORTH, ZEHMER and BAR-FIELD, JJ., concur.


text:
    R.D.F. ENTERPRISES, INC. and Assurance Company of North America, Appellants, v. Walter GILL, Appellee.
    No. AU-196.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Bernard J. Zimmerman and Paul J. Morgan, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    J.J. Goodmark of Goodmark & Good-mark, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. We find this appeal to be frivolous.

WENTWORTH, ZEHMER and BAR-FIELD, JJ., concur.


text:
    Melvin NICHOLAS, Appellant, v. MOVSOVITZ & SONS OF FLORIDA, INC. and Zurich Insurance Company, Appellee.
    No. AV-25.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Melvin Nicholas, in pro. per., for appellant.
    Charles M. Johnston of Taylor, Day, Rio & Mercier, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. See Chittick v. Eastern Air Lines, Inc., 403 So.2d 595 (Fla. 1st DCA 1981).

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


text:
    EAST BAY FOOD SERVICE, Appellant, v. Barbara STEPHENSON, Appellee.
    No. AV-318.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellant.
    Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, and Lawrence Anza-lone of Hamilton & Douglas, P.A., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See Sears, Roebuck and Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983).

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


text:
    SUNSHINE JR. STORES, and Morrison Assurance Company, Appellants, v. Daisy WHIDDON, Appellee.
    No. AW-165.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Bernard J. Zimmerman and Marshall S. Adler of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    ' John L. Myrick of Kinsey, Myrick & Troxel, P.A., Pensacola, for appellee.
   PER CURIAM.

AFFIRMED. See Sears, Roebuck and Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983) and Schult Mobile Home Corp. v. Walling, 384 So.2d 251 (Fla. 1st DCA 1980).

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


author: WIGGINTON, Judge.

text:
    James D. ZINK, Petitioner, v. STATE of Florida, Respondent.
    No. AX-157.
    District Court of Appeal of Florida, First District.
    April 18, 1984.
    Rehearing Denied May 9, 1984.
    Louis 0. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   WIGGINTON, Judge.

By petition for writ of certiorari, Zink seeks review of the circuit court’s order affirming the county court’s denial of his motion to dismiss the charge against him. We deny the petition.

On December 20, 1983, Zink was charged with driving while under the influence of alcohol, in violation of section 316.193(l)(a), Florida Statutes (Supp.1982). Immediately prior to his arrest, the arresting officer had observed Zink “spinning donuts” in the dirt of a construction site on private property owned by Alton Box Company. He had no possessory or proprietary interest in the property. Undisputedly, the property was not a public street, highway or thoroughfare. The arresting officer had been called to the scene by the construction foreman, who informed the officer that Zink had been harassing the construction workers by trying to run them over with his car. After administering field sobriety tests, the officer determined that Zink was driving while drunk.

Zink contends that the section 316.-193(l)(a) prohibition against driving while under the influence of alcohol cannot be applied to him since his offense was committed on private property and not on a public highway. He recognizes that section 316.193(l)(a) makes it is unlawful for a person under the influence of alcohol, to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle “within this state.” Zink argues, however, that the phrase “within this state,” when considered in pari materia with the remainder of chapter 316 (in which the terms “highways, streets, or thoroughfares of this state” are often used) and when considered in light of the preamble to chapter 316, should be given the strict interpretation of meaning “upon the streets and highways and elsewhere throughout the state where the public might have the right to travel.”

We decline to adopt Zink’s strained interpretation of the clear terminology of section 316.193(l)(a). The phrase “within this state” is not ambiguous and very lucidly indicates the legislature’s intent to encompass all lands in the state. As the circuit judge expressed in his order, it is not objectionable that the Florida Legislature has chosen to apply the statutory prohibition against driving while under the influence of alcohol more broadly throughout the state than certain other prohibitions contained in chapter 316. Since the circuit judge did not depart from the essential requirements of law in his decision, but instead reasonably and accurately construed the statutory language in question, the petition for certiorari is denied. See Combs v. State, 436 So.2d 93 (Fla.1983).

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

      . In Ch. 71-135, Laws of Florida, the preamble to the enactment of Ch. 316 states that the purpose of Ch. 316 is to regulate "the movement of all vehicular, all pedestrian and all other traffic upon the streets and highways and elsewhere throughout the state where the public might have the right to travel."


author: ORFINGER, Chief Judge.

text:
    Mary D. PANZIRER, Appellant, v. DECO PURCHASING & DISTRIBUTING CO., INC., Leona M. Helmsley, Ruth A. Panzirer, Florida National Bank at Orlando, N.A., Harold A. Ward, III, as Successor Personal Representative of Jay Robert Panzirer, Appellees.
    No. 83-719.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.

      Russell Troutman of Troutman, Parrish Williams & Blankenship, P.A., Winter Park, for appellant.
    C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellee Ward.
    Davisson F. Dunlap and Robert L. Young of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellees Deco, Helmsley and Ruth Panzirer.
    No appearance for Fla. Nat. Bank.
   ORFINGER, Chief Judge.

When Mary Panzirer, the appellant here, resigned as the personal representative of her late husband’s intestate estate, she filed a final accounting. The successor personal representative filed objections, contending that appellant had not accounted for the contents of a securities account which the decedent had owned at his death. It was Mary’s position, however, that her husband had made a valid gift to her of a joint interest in the securities account before his death, so that upon his death it belonged to her by right of survivorship. On trial of the objections, the trial court held that although decedent had possessed the donative intent to transfer his individual account to a joint account with the wife, no effective gift had been made. The wife appeals, and we reverse.

Jay Panzirer died of a heart attack on March 31, 1982, at the age of 40. Approximately a year earlier he had opened an individual securities account with a brokerage firm now known as Shearson/Ameri-can Express, Inc. At the time of his death the bulk of the account consisted of Shear-son Daily Dividend, Inc., a money market account, and was worth $68,008.21. Included in this total were fifty shares of stock worth $775.00, which Panzirer had ordered sold several weeks prior to his death, but the sale of which was not effected until after he died.

On or shortly before March 25, 1982, Panzirer called Frank Grasso, his account executive at Shearson, and told Grasso that he wanted to transfer his entire account to a joint account with his wife, appellant Mary Panzirer. Grasso informed him that to accomplish this he (Grasso) would need a signed and notarized authorization letter from Panzirer and a new standard Shear-son Customer Agreement form signed by both Panzirer and his wife. Grasso sent the customer agreement form to Panzirer.

On March 30, 1982, one day before Pan-zirer’s death, Grasso received a signed, notarized letter of authorization together with the signed customer agreement form. Upon receipt of these documents Grasso placed them in his pending file folder in his desk drawer. Although informed of Pan-zirer’s death, Grasso several days later obtained his branch manager’s approval of the documents and sent the papers to New York for processing. The joint account was then opened and Mrs. Panzirer ultimately withdrew the contents of this account and transferred the funds to another account which she had opened with Shear-son in her own name.

The personal representative of Jay Pan-zirer’s estate, sought to recover the value of the brokerage account on the theory that no transfer had been accomplished prior to Panzirer’s death, and that the entire account was an asset of the estate on the date of Jay Panzirer’s death. The trial court held that Panzirer possessed the do-native intent to consummate the gift to his wife, but that the other elements of a gift had not been shown, and thus found that the account in question was an asset of decedent’s estate.

We agree with the trial court that the evidence clearly shows that donative intent existed. In addition to his conversations with Grasso, it was also shown that Panzirer was aware of his serious heart condition. On March 26, 1982, he and his wife entertained some friends and during the party he told them of his recent medical examination in Boston and of his poor outlook, and stated that he had completed arrangements to take care of his wife and son Craig, if anything happened to him.

In holding that the other elements of a completed gift were not shown, the trial court relied on Dodson v. National Title Insurance Company, 159 Fla. 371, 31 So.2d 402 (1947). There, the court found no completed gift in a letter of authorization to a title company requesting a certain manner of disbursement of escrow funds after a real estate closing. In explaining its holding, the court stated:

Delivery, actual or constructive, is essential to the validity of a gift.
In the case of deeds and formal transfers under seal, many courts hold that delivery of the instrument is sufficient delivery to meet the requirements of the rule. But: “It is generally held, where a paper is not a deed, a sealed instrument, or a formal instrument purporting to pass title, it is only an informal instrument, such as a letter, order, or memorandum, that the instrument is ineffective as a gift without a delivery of the property ...” [citations omitted].

Id. at 405.

Dodson, however, is distinguishable because there was no intent on Dodson’s part to create a joint account, but instead, he had requested that all his share of the funds be disbursed to others, and no delivery had taken place at his death. But the rule of law requiring “delivery” of personal property is not literally applied when the intention of the donor is to create a joint interest between the donor and donee in a securities or bank account. In Spark v. Canny, 88 So.2d 307 (Fla.1956) (en banc) the supreme court addressed the problem of delivery with respect to an inter vivos establishment of a, joint bank account, with right of survivorship. There, the court said:

It is true, as contended on behalf of Mrs. Canny, that the rules relating to gifts inter vivos cannot be strictly and literally applied in determining whether a joint bank account with right of survivor-ship has been established. Thus, the very nature of a joint bank account is such that one essential element of a gift inter vivos is missing — that of surrender of dominion and control by the donor— since each party has an equal right to withdraw the funds on deposit ... Nor is the rule as to “delivery” of the gift applicable in this situation. This is so because the thing given is not the money, in specie, on deposit in the joint bank account; it is a gift of an interest in the funds on deposit equal to that of the donor. But we think that the third essential of a gift inter vivos — that of do-native intent — is just as relevant to the question here under discussion as it is in cases involving the establishment of a bank account by a person with his own funds in the name of another.... or in the establishment of a joint bank account by a husband in his and his wife’s names ... [citations omitted].

Id. at 311.

Other courts have recognized constructive or symbolic delivery as satisfying the "delivery” requirement of a valid gift when a joint bank account or a joint securities account is created between the donor and the donee. Thus, in Tanner v. Robinson, 411 So.2d 240 (Fla. 3d DCA 1982) the court held that a letter from the decedent to her stockbroker directing the transfer of the securities in her individual account to a joint account with her nephew constituted a constructive or symbolic delivery of the stock thus completing a valid gift of those securities. Similarly, in Green v. Green, 314 So.2d 801 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 600 (Fla.1976) the court held that the required element of delivery by surrender of dominion and control is satisfied where the nature of the gift is a joint fund, if there exists a present intention that each party shall have a present, equal right to that fund. See also, Liebler v. Liebler, 413 So.2d 1246 (Fla. 3d DCA 1982).

Here, the stockbroker testified, without contradiction, that Panzirer wanted his securities account transferred to joint ownership with his wife, and that Panzirer had done everything required of him to effectuate that transfer. The fact that the stockbroker took six days to perform the necessary paperwork internally, just to accomplish a journal transfer from the single account to the joint account should not be a basis for defeating the expressed donative intent of Panzirer and the submission of the only documentation required of him because he died before the broker got around to doing the in-house paperwork. The donative intent was present, there was constructive or symbolic delivery of the assets of the account and the donee accepted the gift as indicated by her exercise of control over the funds.

Wood v. McClellan, 247 So.2d 77 (Fla. 1st DCA 1971) is inapposite. There, the decedent submitted to the savings and loan association the required forms to transfer his individual account to a joint account with his daughter, and as here, it was necessary that a new account be opened and the old one closed. The association was specifically instructed not to close the old account until December 29th so that interest for the preceding six months period would be paid. Decedent died on December 23rd and the court correctly held that no completed gift was made before his death. Those are not the facts here, because Panzirer’s intent was for the transfer to take place immediately. It was not Panzirer who caused the delay in the paperwork.

Appellee contends that Shearson was Panzirer’s agent for effecting the transfer, and that Panzirer’s death revoked that agency. A similar situation was addressed in White v. Bank of America National Trust and Savings Association, 53 Cal. App.2d 838, 128 P.2d 600 (1942). Adeline Soares had requested the bank to convert her individual account to a joint account with herself and Maria and David Torres. All three had previously signed and returned signature cards to the bank, and on a Friday evening, because Soares was ill, a bank employee visited her home where she signed a withdrawal order and delivered it and her passbook to the bank employee. This was done after banking hours and the bank did not reopen until the following Monday. Mrs. Soares died on Sunday and the executrix of her estate contended that the funds in the account were properly assets of the estate because no transfer had been made prior to her death. In rejecting the argument the appellate court said:

That decedent intended to transfer a joint tenancy interest in her account to the Torres’ by way of gift is plain from her entire course of conduct ... Certainly before her death she had done everything within her physical power to complete the gift. She had procured and delivered to the bank the joint account card duly signed, and she had delivered to Reece [the bank employee] her bank book and a withdrawal order with instructions to have the account transferred on the books of the bank to a joint tenancy account.
All that is necessary to a completed gift of personal property is the delivery, actual or symbolic, to the donee or to another for his benefit with the intent to vest title in the donee.... If the decedent, when she delivered the bank book and withdrawal orders to Reece intended thereby to transfer to the Torres’ a joint tenancy interest in her account ... the gift was accomplished at that time. When the clear intention of the donor to make a gift can be carried out without doing violence to the established principles of law, the court should not seek highly technical reasons for defeating the gift.

During the hearing on the objections, the estate presented a handwriting expert who testified that the signatures on the two documents received by Grasso were not the signatures of Jay Panzirer. However, in the order appealed from, the trial court specifically “reach[ed] no conclusion regarding the testimony of the handwriting expert.” What we have said here depends, of course, on the authenticity of those documents and for the purposes of this opinion we have assumed that the signatures are genuine. On remand, the trial court must necessarily reach a conclusion on that issue.

Because Jay Panzirer clearly had dona-tive intent to immediately create a joint account with his wife, when he delivered the signed and notarized letter of authorization and the signed customer’s agreement to the stockbroker before his death, there was constructive or symbolic delivery of the contents of the account and a valid inter vivos gift of a joint interest in the account was made at that time. Jay Pan-zirer could have done nothing more, and his unfortunate death before the stockbroker could complete an internal journal transfer should not defeat the clearly intended and executed gift.

The portion of the order relating to the “Shearson/American Express, Inc. account” is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

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


author: FERGUSON, Judge.

text:
    James A. ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2136.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.

      Bennett H. Brummer, Public Defender and Harry W. Prebish and Gregory Pre-bish, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   ON MOTION FOR REHEARING

FERGUSON, Judge.

The defendant appeals his conviction for manslaughter by operation of a motor vehicle while intoxicated, claiming that the trial court improperly denied his motion to suppress the results of a blood-alcohol test.

The State maintains that appellant, while driving under the influence of alcohol, crossed the center lane of a residential street and collided head-on with another automobile causing serious bodily injury to the occupant of the other vehicle. Sergeant Molinari of the Public Safety Department arrived at the scene after the accident. He observed that appellant had bloodshot eyes, slurred speech, and an odor of alcohol, and was unsteady on his feet. Officer Molinari arrested Adams and charged him with driving under the influence of alcohol. He told Adams that he was going to take him to Ward D of the hospital to be treated for his minor injuries.

Upon arriving at the hospital, the officer did not request any treatment for Adams, but instead took him to the emergency room for a blood test. Appellant executed a hospital consent form that was given to him by the officer. A hospital physician, who said nothing to appellant about the reason for the blood sampling, drew appellant’s blood for the purpose of examination. After the blood was taken, Sergeant Moli-nari took appellant back to Ward D (prison ward of the hospital) and placed him in a cell. Molinari shortly thereafter received a call from Detective Dorn, who was also at the scene of the accident, informing him that the driver of the other vehicle had expired. Detective Dorn then took over to begin a homicide investigation.

Appellant moved to suppress the results of the blood test as being inadmissible as evidence in the criminal prosecution, relying on Section 316.066(4), Florida Statutes (1981). The trial court denied the motion to suppress. As the motion was well-founded, we reverse.

Section 316.066(4) deals with accident reports made by persons involved in accidents, and provides in pertinent part: “No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident....” Initially, this provision was applied to exclude statements required by law to be made by persons involved in accidents when such statements comprised a part of the accident report. Stevens v. Duke, 42 So.2d 361 (Fla.1949); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961), cert. dismissed, 142 So.2d 733 (Fla.1962). In Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966), the court first interpreted the provision to require suppression of a blood sample test when it was taken as part of an investigation for the declared purpose of completing the accident report.

The Florida Supreme Court approved the Cooper decision in State v. Coffey, 212 So.2d 632 (Fla.1968), but held on dissimilar facts that a blood test was admissible where the respondent was made aware that the accident-report phase of the investigation had ended, and the test was being given in connection with possible criminal charges. While the Cooper decision had focused on whether the blood test was administered for the purpose of completing the accident report, the Florida Supreme Court in Coffey seemed more concerned with the respondent’s knowledge that the accident investigation had ended and a criminal investigation had begun. Thus, the Coffey court noted that after completing the accident report, the same investigator could “change his hat” and begin a criminal investigation, thereby ensuring that the accused’s constitutional rights are protected. See 212 So.2d at 635 (statute designed in part to protect right against self-incrimination).

Despite a later modification of the Coffey holding, numerous decisions still look to the accused’s knowledge that the accident investigation has ended as the dis-positive factor in ruling on a statement’s admissibility under the accident report statute. See Martinez v. State, 425 So.2d 181 (Fla. 3d DCA 1983) (motion to suppress statement made at stationhouse properly denied where defendant was sufficiently alerted to fact that accident report phase of investigation had ended and homicide investigation begun); Porter v. Pappas, 368 So.2d 909 (Fla. 3d DCA 1979) (statement inadmissible where officer did not advise minor defendant that report was part of homicide investigation rather than traffic accident investigation); Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979) (statement inadmissible where tortfeasor not apprised of distinction between detective’s interrogation and the accident investigation). In the instant case, there is no evidence that appellant was informed, or by other means might have known, that the blood test was being administered to him as part of an investigation for the crime of manslaughter by operation of a motor vehicle while intoxicated.

Subsequently, the Florida Supreme Court had an opportunity to revisit its holding in Coffey when taking certiorari review in State v. Mitchell, 245 So.2d 618 (Fla.1971). The second district had interpreted Coffey to require suppression of any blood test which was taken before the accident report was completed. In rejecting this construction, the court set forth a new rule for statutory exclusion and thereby returned to the near-forgotten Cooper rationale. Under Mitchell, the test for suppression is “whether the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report.” [e.s.] 245 So.2d at 623. The fact that the accident report was filed subsequent to the taking of the blood test was held not to justify an inference that the test was taken for, or formed a basis for, the report.

In the present case, not only was the test taken prior to the investigating officer's completion of the accident report, but further, the following colloquy at trial reveals that the blood test was taken for the express purpose of completing the report, and was made a part of the report. On cross-examination of Sergeant Molinari, the officer testified as follows:

Q. As I understand it, your situation as far as the accident scene was concerned, you were there for the purpose of investigating the accident, right?
A. Correct.
Q. You were taking him to Jackson Hospital for treatment for injuries and giving of the blood test in connection with your accident investigation, right, sir?
A. Correct.
Q. Now, I would like to speak to you briefly about the accident report. I have an extra copy.
Q. Now, with regard to the word, “chemical tests,” we see this toward the bottom of the page. The word “chemical tests,” there is some marks “Driver Number 1”; the block is marked, “no driver.” Number 2, the block marked is “yes.” Then beside that word, “blood,” and this was inserted by you?
A. Yes.
Q. This was in connection with your preparation and taking of the blood in this case?
A. Yes. It simply indicates that there was blood analysis taken.
Q. This is part of your investigation, taking the blood, filling out the report and making what other investigations you made in connection with this case, right, sir?
A. Yes.

The responses given by Officer Mol-inari show clearly that he gave appellant the blood test for the purpose of completing the accident report and that the test did, in fact, become a part of the report. Under the rule set forth in Mitchell, then, the blood test results are inadmissible and the trial court erred in denying appellant’s motion to suppress. Accord Duval Motor Co. v. Woodward, 419 So.2d 303 (Fla.1982) (results of field sobriety test inadmissible where information obtained as a part of accident investigation for use in preparing accident report); cf. Barrentine v. Makely, 406 So.2d 1237 (Fla. 2d DCA 1981) (results admissible where officer affirmatively testified that neither the blood test nor its results were necessary to his accident report); McKissack v. State, 243 So.2d 14 (Fla. 3d DCA 1971) (evidence of blood test admissible where defendant made no showing that any information obtained was used in accident report). See generally State v. Edge, 397 So.2d 939 (Fla. 5th DCA), rev. denied, 407 So.2d 1103 (Fla.1981) (combining Coffey and Mitchell tests, court finds results of blood test admissible where trooper who arranged for taking of blood sample was not responsible for making traffic accident report and where appellee was specifically told that sample was needed for homicide investigation).

Reversed and remanded for a new trial.

      . Although the fifth amendment to the United States Constitution has been held inapplicable to the taking of a blood sample, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the State of Florida has the right to extend to its citizenry greater protections than those afforded by the federal constitution. Sambrine v. State, 386 So.2d 546, 548 (Fla. 1980).

      . We note that the statute has now been changed and that a suspect in such cases may be forced to submit to a blood test if there is probable cause that an accident involving death or serious bodily injury was committed through the operation of a motor vehicle while intoxicated. The new statute, Section 316.1933, Florida Statutes (Supp.1982), did not become effective until after the date of the offense. As the statute is substantive in nature, see Coffey, 212 So.2d at 635 (statute designed in part to protect constitutional right against self-incrimination), it will not be applied retrospectively to pending proceedings. Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973); Marshall v. Johnson, 301 So.2d 134 (Fla. 1st DCA 1974). See also State v. Lavazzoli, 434 So.2d 321 (Fla.1983) (constitutional amendment mandating conformity of interpretation of state constitutional rule with United States Supreme Court’s interpretation of fourth amendment altered substantive right, and would not be applied retrospectively). Thus, we presently need not determine the effect of this new provision on established case law.


text:
    Michael I. ROSE and Janice Revitz, P.A., Appellants, v. CHASE MANHATTAN BANK, N.A., Appellee.
    No. 83-542.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Jeanne Heyward, Michael I. Rose and Janice Revitz, Miami, for appellants.
    Alan J. Kluger and Amy M. Dean, Miami, for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Wolf v. Buchman, 425 So.2d 182 (Fla. 3d DCA 1983); Sections 679.9-206, 679.9-316 Florida Statutes (1981); Compare: Cortina v. Cortina, 98 So.2d 334, 335 (Fla.1957).


text:
    Sylvester SEALS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1091.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Sylvester Seals, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Section 775.087(l)(a) Florida Statutes (1981).