text:
    The STATE of Florida, Appellant, v. Murray Herbert SAYERS and Richard M. Zzie, Appellees.
    No. 84-405.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Rehearing Denied Dec. 19, 1984.

      Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Walters, Costanzo, Russell, Zyne and Newman and David A. Russell, Mark King Leban, Miami, Ivan Tobias, Coral Gables, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The State appeals from an order granting the defendants’ separate motions to suppress. We affirm the order as to Sayers and reverse the order as to Zzie.

The trial court suppressed the evidence seized from Sayers’ person because it found that, although the investigative stop of Sayers was lawful, there was no reason to believe that Sayers was armed and thus no justification for a frisk for weapons, which, not unusually, disclosed cocaine instead. The trial court correctly acknowledged that it is not necessary that the agents have direct information that the person to be frisked is armed and that a law enforcement agent may reasonably believe that a person engaged in a transaction prospectively involving a large quantity of narcotics and large sums of money is likely to be armed to protect the drugs, the money, or himself. See United States v. Vasquez, 634 F.2d 41 (2d Cir.1980); United States v. Post, 607 F.2d 847 (9th Cir.1979); United States v. Oates, 560 F.2d 45, 62 (2d Cir.1977) (firearms are as much “tools of the trade” to “substantial dealers in narcotics” as other articles of narcotics paraphernalia); United States v. Wiener, 534 F.2d 15 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976) (same); United States v. Santana, 485 F.2d 365 (2d Cir.1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974). Ordinarily, then, the fact that the agents had reliable information that Sayers was flying to Miami to purchase $50,000 worth of cocaine from the co-defendant, Zzie, and that, immediately before the frisk, they had observed Sayers meet briefly with Zzie, would give rise to a reasonable belief that Sayers was armed. But the trial court was free to find, as it did, that where, as here, the agents knew that Sayers had “just stepped off a commercial airline flight in which they have radar detectors and metal detectors and ... had walked through them,” that the agents’ belief that Sayers was armed was not reasonable under these circumstances. Thus, the suppression of the narcotics seized from Sayers’ person must be affirmed.

Zzie’s motion to suppress was directed to narcotics and other items seized from his company’s warehouse pursuant to a search warrant obtained after the unlawful frisk of Sayers. The affidavit for the search warrant included not only allegations concerning the information that the law enforcement officers knew about the impending deal between Sayers and Zzie, but also an allegation that Sayers, in a post-arrest statement to the agents, confirmed that the cocaine seized from him had been purchased from Zzie at the premises to be searched. While the trial court correctly concluded that these allegations were sufficient to establish probable cause, it incorrectly concluded that Sayers’ statement, essential to a finding of,probable cause, could not be considered because of the illegality of Sayers’ arrest. Plainly, Zzie has no standing to complain of the frisk and arrest of Sayers, or the illegality of the seizure of narcotics or statements from Sayers. Zzie cannot vicariously assert constitutional rights personal to Sayers. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Spencer, 432 So.2d 718 (Fla. 3d DCA 1983). Since Sayers’ statement, standing alone, provided more than ample probable cause for the search of the warehouse, the items seized in such search should not have been suppressed.

Affirmed in part; reversed in part.

      . This court has held that robbery and kidnapping are foreseeable consequences of a conspiracy to effect a large drug transaction. See Martinez v. State, 413 So.2d 429 (Fla. 3d DCA 1982).

      . The agent-affiant's belief that there was more cocaine on the premises stemmed from the fact that the sale to be consummated was 32 ounces of cocaine for $50,000 and that Sayers was arrested with 11 ounces on his person, indicating that he had brought insufficient cash and that .the remainder of the cocaine was still with Zzie in the warehouse.

      . Therefore, we need not consider Zzie’s argument that the affidavit contained some knowingly false statements regarding information received from Canadian law enforcement authorities. We note, however, that although the trial court made no specific findings, it was obviously not impressed, nor are we, with the contention that any statement was false or misleading.


source: Caselaw Access Project

author: BARRETT, Judge.

license: Public Domain

text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellant, v. C.E. VIELE, et al., Appellees.
    No. 84-481.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    Rehearings Denied Dec. 18, 1984.

      Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellant.
    Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellees, C.E. Viele and Margaret Viele.
    William G. Earle of Earle & Patchen, P.A., Miami, for appellees, James C. Gavi-gan and Valerie V. Gavigan.
   BARRETT, Judge.

This is an appeal from an order denying a petition for an order of taking pursuant to eminent domain powers. We reverse.

In the late 1960’s the School Board of Broward County determined that it needed a new administration building. An architectural firm was hired, and after examining the feasibility of a number of sites the firm recommended two; the present location of the School Board offices, or “westside” site, and a “downtown” site. Some months later, the School Board decided on the downtown site and authorized its attorneys to proceed with the acquisition of the necessary parcels.

The chosen property originally consisted of 12 parcels of land. The School Board acquired title to five of these parcels through negotiated purchases. Of the remaining seven parcels, one is to be taken by the School Board after a judicial determination of value, and one is held by the School Board subject to a leasehold interest possessed by Western Union.

The School Board could not secure title to the remaining five parcels, and accordingly sought an order of taking under its eminent domain authority. After a lengthy hearing, the trial court denied the School Board’s petition for a declaration of taking. Appellant contends that the trial court applied an incorrect rule of law in assessing the necessity of the taking and reviewing the decision of the condemning authority as to its choice of location.

The issue of necessity in general is not in question here, as all parties agree that Broward County needs a new school administrative building. The issue of necessity in this case pertains to the choice of location and the amount of property to be condemned. The property owners argue that the “westside” site is the better location and therefore there is no necessity for the condemnation of property in the “downtown” site.

It is well established, however, that condemning authorities enjoy broad discretion in determining which property and how much of it is necessary for public purposes. “Unless a condemning authority acts illegally, in bad faith, or abuses its discretion, its selection of land for condemnation will not be overruled by a court.” Catholic Burse Endowment Fund v. State Road Dept., 180 So.2d 513 (Fla. 2d DCA 1965), cert. denied, 188 So.2d 814 (Fla. 1966).

Accordingly, the standard to be employed by the trial judge in reviewing this declaration of taking is limited to a determination of whether or not the condemning authority has abused its discretion:

Once a condemning authority decides that a taking is necessary, selects one of the alternatives open to it, and applies to a court for approval of the taking, the role of the court is limited to assuring that the condemnor acted in good faith, did not exceed its authority, and did not abuse its discretion.

Hillsborough County v. Sapp, 280 So.2d 443 (Fla.1973). See also Florida Power & Light Company v. Berman, 429 So.2d 79 (Fla. 4th DCA), pet. for rev. denied, 436 So.2d 98 (Fla.1983).

The trial judge’s obligation in reviewing a decision of a condemning authority is analogous to that of this court’s review of a trial court’s discretionary powers. The Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), has attempted to clarify and define the test to be used in measuring an abuse of discretion:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Id. at 1203.

In order to properly exercise its discretion, the condemning authority must consider and weigh the following: (1) availability of an alternate site; (2) costs, (3) environmental factors; (4) long-range area planning; and (5) safety considerations. Florida Power & Light Company v. Ber-man, supra. The court in Berman, in discussing the similar issue of alternate routes, noted:

Admittedly a condemning authority does not necessarily abuse its discretion by choosing one route over another equally suitable route. However, a con-demnor does abuse its discretion by making route selection determination without first properly considering and weighing the relevant factors considered determinative by Florida appellate courts.

Florida Power & Light Company v. Berman, supra, at 82, quoting Florida Power Corp. v. Gulf Ridge Council, 385 So.2d 1155, 1156 (Fla. 2d DCA 1980).

In the case before us, a review of the record demonstrates that the School Board considered and weighed the relevant factors prior to making its decision. The trial court, however, applied an incorrect rule of law and in essence substituted its judgment for that of the School Board. In its oral denial of the order of taking, the trial court stated:

Now, this brings us to the question of whether or not a necessity, a real necessity, has been shown or whether or not an abuse of discretion has been demonstrated here, and it boils down to the question, in my view, of whether or not, as opposing these two sites, the downtown site is not merely preferable to the westside site, but rather it’s so vastly ■preferable or so ideally located in all_ its ramifications as to render the west-side site an unacceptable alternative, because I respectfully suggest to you that is what it boils down to. (emphasis supplied)

One need only show a reasonable necessity to take a particular parcel, not an absolute or “real” necessity. Canal Authority v. Litzel, 243 So.2d 135 (Fla.1970). The record and briefs demonstrate that both sites have their good points and bad points, and if reasonable men can differ as to the propriety of the action taken, a trial court cannot say that the School Board abused its discretion. Nor can the trial court substitute its judgment for that of the School Board.

Accordingly, the order denying the petition for order of taking is reversed, and the trial court is directed to enter an order of taking for the parcels in question.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM.

text:
    Jerome CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-779.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1984.
    Rehearing Denied Dec. 5, 1984.
    Robert C. Hill, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The recent decision in United States v. Leon, 468 U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), renders it unnecessary for us to pass on the merits of appellant’s technical attack on the validity of the search warrant executed in this case. We find that there was sufficient evidence of appellant’s conviction for possession of the marijuana found under the bed and in the dresser drawer. However, appellant’s conviction for possession of drug paraphernalia cannot stand because there was no proof that the scales found in the bedroom closet had been used in violation of law. Cf. Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980) (possession of tools of ordinary use does not constitute possession of burglary tools without proof that the tools were used to commit or to attempt to commit a burglary).

Appellant’s convictions for possession of cannabis and obstructing the service of a search warrant are affirmed. His conviction for the possession of drug paraphernalia is reversed.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: SHARP, Judge. COWART, Judge,

text:
    In re the ESTATE OF Charles E. MUNDELL, Jr., Deceased. Mary Lenora SANDERS, Appellant, v. Virginia Mundell COWAN, Appellee.
    No. 83-1022.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 29, 1984.
    David C. Holloman of Holloman & Lambert, Arcadia, for appellant.
    J. Thomas Gurney and Bruce M. Wigle, III, of Gurney & Handley, P.A., Orlando, for appellee.
   SHARP, Judge.

Mary Sanders appeals from the decision of the probate court, which held that Virginia Cowan was entitled to reimbursement from Charles Mundell’s estate by right of subrogation for the life insurance proceeds of a policy for which she was the designated beneficiary, which were used to pay a debt Mundell owed his first wife, Marjorie. We disagree that subrogation should be allowed in this case because the record clearly indicates that the insured decedent intended that the insurance proceeds be used to pay his debt owed to Marjorie. Therefore, the general rule allowing subrogation should not be applied.

Mundell died on July 15, 1978. His will left 65% of his residuary estate to his second wife, Virginia, and 85% to his daughter by a prior marriage, Mary. Should subro-gation be allowed, Mary’s share of the residuary would be substantially reduced.

The debt involved in this case arose when Mundell divorced his first wife, Marjorie. They agreed to split their marital assets essentially equally, and to compensate Marjorie for taking property unequal in value, Mundell executed a promissory note for $57,000.00. As security for the note, Mun-dell gave Marjorie a second mortgage on some real property, and pledged all the stock of his closely held business corporation.

In addition, the separation agreement and promissory note provided that Mundell would maintain in full force and effect a life insurance policy in the face amount (at least) of $50,000.00 on his life to secure payment of the debt. The policy was assigned to Marjorie. Later, Virginia was named beneficiary of the policy. When Mundell died, he still owed Marjorie more than the sums payable under the insurance policy. The insurance company paid Marjorie the full amount of the proceeds, $53,-747.60.

We have found no controlling appellate decisions in Florida on the question of whether a beneficiary • of a life insurance policy, which was pledged as collateral for an insured’s debt, has the right to be subro-gated to a creditor’s claim against the estate of the insured, when the proceeds of the policy are used to pay the creditor’s debt after the death of the insured. Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960), indicates that this state follows the majority view that generally allows the beneficiary of an insurance policy the right of subrogation against the estate. In re Gallagher’s Will, 57 N.M. 112, 255 P.2d 317 (1953); In re Brock’s Will, 208 N.Y.S.2d 772 (Surrogate’s Ct. 1960); Chamberlin v. First Trust and Deposit Company, 172 Misc. 472, 15 N.Y.S.2d 168 (1939). However, Ulery stressed the fact that the insurance in that case had been used to pay a debt of a third party who was primarily liable, rather than the deceased insured.

The key issue, according to the case law, is whether the insured intended the beneficiary to have a right of subrogation. See Smith v. Coleman, 184 Va. 259, 35 S.E.2d 107 (1945); 16 Couch on Insurance 2d § 61:333 (Rev.ed.1983); Annot., 91 A.L. R.2d 496 (1963). Rarely, however, is there an express indication one way or the other by the insured decedent on this question. In point of fact, he or she probably did not even think about it. The case law has developed, however, that absent an indication in the documentation of the loan or in the assignment opposing or inconsistent with the right of subrogation, courts favor the beneficiary by presuming the insured intended that subrogation be allowed.

The case law which developed this presumption in the absence of a showing to the contrary is not current. Query whether in this age of using life insurance to liquidate and pay debts as a part of good estate planning practices, designed to prevent forced sales of estate assets, such a rule would have developed. The result of such a rule may force sales of non-liquid assets in an estate — the precise reason for having obtained the life insurance in the first place. In fact, this probably would have resulted in this case. As Virginia noted in a memorandum in the record, the insured’s estate has “serious cash-flow problems.... ”

In any event, the general rule allowing subrogation is not applied if there is a positive or an express indication that subro-gation would defeat the intent of the deceased insured, or if it would be inequitable. Cases deny subrogation where the insurance proceeds were designated as the primary source for repayment of the debt, or where the beneficiary’s rights were made “subject to” the assignment, or where the insurance assignment was the only collateral given for the debt.

In this case, all three exceptions to the application of the general rule appear in the documentation. The insurance proceeds were expressly designated as the primary source for repayment in the event of death before, the note was paid in full. Both the property settlement agreement entered into by the deceased and his first wife, Marjorie, and the promissory note carrying out its terms state that the provision dealing with maintaining a life insurance policy to secure payment of the note “is designed to fund the payment of this note in the event of my [the insured’s] death....” The meaning of this provision is clear. The insurance was intended as the primary source of repayment if the insured died before the debt was repaid.

Further, unlike other cases where a creditor has access to more than one item of collateral and it elects to satisfy the debt out of insurance proceeds rather than other properties, in this case the language of the assignment gave the creditor (Marjorie) no alternative. The assignment provided that in the event the insured died the proceeds must be paid to her: “any sum or sums that may become payable under the said policy by reason of the insured’s death shall be paid to the said Marjorie S. Mun-dell up to but not exceeding the balance due as principal and interest on the said note_” (emphasis added). This language clearly made the rights of the beneficiary subject to the debt owed to Marjorie. Froman v. Froman Ex’r., 293 Ky. 1, 168 S.W.2d 361 (1943); Berger v. Berger, 264 Ky. 225, 94 S.W.2d 618 (1936).

The additional collateral in this case, a second mortgage on real estate, was to be released after $10,000.00 of the principal was repaid; and all the stock of the insured’s corporation was to be released after $25,000.00 was repaid. Had the note been paid according to its terms, these items of collateral would have been released by the time the insured died, and the insurance would have been the sole collateral. Clearly it must be deemed to be the primary source of repayment. See 16 Couch, supra, at § 61:335.

Further, denial of the right of subrogation is not inequitable in this case. The insurance policy originally belonged to the deceased’s first wife, Marjorie, and she was its beneficiary. She assigned it back to the deceased so he could use it to fulfill the requirements of their property settlement agreement. In dividing their marital assets, consisting of various businesses and properties, Marjorie came out some $57,-500.00 short. The note given was meant to compensate her for receiving less than an equal share.

The decedent obviously meant to pay the note in full from income, over an approximately ten year period. He was concerned that the stock and second mortgage on real estate be released as soon as possible; and that there be no forced sale of those assets if he died before paying the note off, by application of the insurance proceeds. All of these arrangements had been made before the present claimant, the second wife, Virginia, entered the picture.

In his will, the insured defendant provided that his second wife would take approximately 65%, and his daughter 35%, of his net estate. This division would be distorted by allowing subrogation against the estate, by drastically limiting the daughter’s inheritance. This appears to be inequitable, as well as contrary to the insured’s intent and plan for disposition of his assets. Subrogation should not be allowed if it works any injustice to the rights of others. Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883 (1933); Whyel v. Smith, 101 Fla. 971, 134 So. 552 (1931).

Accordingly, the judgment entered below is REVERSED.

DAUKSCH, J., concurs, without participation at oral argument.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This case involves the right of subrogation of a life insurance beneficiary against the estate of the insured when a debt of the estate has been discharged with the insurance proceeds because the insurance policy was pledged as collateral for the debt.

THE ISSUE: A buys a policy of insurance on his life. B is the beneficiary. A pledges (assigns) the policy as collateral security for a debt A, as obligor, owes to C, as obligee. A dies. Rather than obtaining payment of the debt from A’s estate, C makes demand on the life insurance company which uses some or all of the insurance proceeds to discharge the debt. Is B sub-rogated to C’s claim against A’s estate?

LAW-BACKGROUND: The earliest proceedings in common law courts were resti-tutionary in nature. Replevin, ejectment and assumpsit were conceived of as restoring to the plaintiff that to which he was entitled. Originally a form of action known as trespass on the case required the express undertaking of a duty or as it was called, “an assumpsit.” .Later law actions were allowed where there was no express promise or obligation but the promise could be inferred from the facts and circumstances. These situations are now described as creating “contracts implied in fact” and include cases where the defendant has received a consideration (goods or services) for which the law implies that he intended to pay and, therefore, the law implies a promise in fact to pay and creates causes of action to enforce the implied agreement to pay. These causes of action in general assumpsit came to be called “the common counts” and included quantum meruit. Later, in order to give an ex delicto remedy at law in addition to an ex contractu remedy, the common law action of general assump-sit was extended to cases beyond promises and obligations expressed or implied in fact and on to cases where the obligation was purely implied in, or imposed by, law. This latter class of cases are called “contracts implied in law” or “quasi contracts.” As to both express obligations and obligations implied in fact, the actual or inferred intent of the obligor is relevant but as to obligations implied in law, the intent of the obli-gor, actual or inferred, is immaterial.

Causes of action at law on express obligations and on obligations implied in fact and those implied in law are all limited to the recovery of money. It was largely for this reason that the development of common law causes of action was paced and somewhat overlapped by a parallel development of proceedings in equity to provide more adequate remedies to redress situations in which one person was accountable to make restitution to another on the ground that otherwise he would be unjustly benefitted or the other would unjustly suffer loss. This evolution of equitable remedies also progressed from those relating to expressed equitable obligations (such as express trusts) to those implied in fact (resulting trusts) and finally to those purely implied by law (equity). Because the common law forms of action for restitution were adequate to secure the payment of money the development of equitable resti-tutionary remedies related lastly to situations in which a person was entitled (1) to obtain a specific thing or fund, or (2) to have a lien established thereon, or (3) to be subrogated to the claim of another. These equitable remedies for restitution, sometimes, along with resulting trusts, collectively called remedies for “unjust enrichment,” are (1) a decree establishing and enforcing a constructive trust of property; (2) a decree establishing and enforcing an equitable lien upon property; and (3) a decree that the plaintiff be subrogated to the position of another claimant against the defendant.

CONSTRUCTIVE TRUSTS: A constructive trust, like a quasi-contractual obligation at law, is imposed by equity not because of any express or inferred intention of the parties but as an equitable remedy because the person holding the legal title to property would be unjustly enriched if he were permitted to keep the property at the expense of the true or beneficial owner.

EQUITABLE LIENS: Where the owner of property would be unjustly enriched at the expense of another unless the latter is given a security interest against the property, equity will imply an equitable lien against the property.

SUBROGATION: Where property of a third person (the plaintiff) is used to discharge the debt or obligation owed by an obligor (the defendant) to an obligee under such circumstances that the obligor (the defendant) would be unjustly enriched by the retention of the benefit of the discharged debt or obligation at the expense of the third person (the plaintiff), the third person (the plaintiff) is entitled to be subro-gated to the position of the obligee as against the obligor (the defendant). Where the plaintiff uses his own property to pay the debt of another (but does not do so officiously or with the intention of making a gift), and also where, for any reason, a third person, without the plaintiffs consent, uses the plaintiffs property to discharge the obligation of another, the plaintiff is entitled to reimbursement and is entitled to the equitable remedy of subro-gation to obtain reimbursement from the obligor (the defendant).

Interesting parallels between the restitu-tionary actions at law and those provided by equitable remedies and between the equitable remedies themselves illuminate and explain the nature of each cause of action. The term “constructive trust” might be thought to suggest that it is based on a fiduciary relationship similar to an express trust but the two concepts are quite different and are not even divisions of the same fundamental concept. They are not species of the same genus. In equity a constructive trust differs from an express trust and a resulting trust in much the same way as, at law, a quasi-contractual obligation differs from an express obligation and from an obligation implied in fact. An express trust, like an express legal obligation, arises from a manifestation of an intention to create it. A resulting trust, like a legal contractual obligation implied in fact, arises where a transfer of property (including, tangible property, lien interests and evidences of indebtedness and other choses in action) is made under circumstances which raise an inference that, as a matter of fact, the person making the transfer or causing it did not intend the transferee to have its beneficial interest.

Just as a constructive trust establishes a plaintiffs equitable right to ownership and possession of property and an equitable lien establishes a plaintiffs equitable right to a lien against property, where the property of the plaintiff is used in discharging an obligation or lien he obtains restitution through subrogation. Where the plaintiff’s property is used to purchase a claim against a third person, or a lien held by a third person, the purchaser of such claim or lien holds it upon a constructive trust for the plaintiff; but where the plaintiffs property is used in discharging such claim or lien, equity gives analogous relief by subrogating the plaintiff to the position which the obligee or lien holder occupied prior to the discharge.

Like a quasi-contractual obligation at law, a constructive trust, and an equitable lien, subrogation ■ in equity does not arise because of any express or inferred intention of any person or party to create, or not to create, the legal obligation and rights but it arises by operation of law from a particular factual circumstance and as an equitable remedy to prevent an unjust enrichment of one or the unjust deprivation of another.

In keeping with their historic development all causes of action in law and equity may be classified into three general categories according to the origin and nature of the obligation and rights:

CATEGORY 1: OBLIGATIONS INTENTIONALLY CREATED: (Causes of action where the legal obligations and rights are expressly intended to be created by the obligor and to bind him, his successors and assigns.) In these causes of action the specific subjective intent of the person creating the legal rights and duties is sought and is of controlling importance. This category includes causes of action to enforce all legal rights under formal written documents such as deeds, mortgages, express contracts, assignments, wills, express trusts, etc., as well as expressed oral agreements.

CATEGORY 2: OBLIGATIONS PRESUMPTIVELY INTENDED (IMPLIED IN FACT): (Causes of action that the law permits the fact finder to infer from the facts because in the usual course of human conduct the law presumes that just persons in similar circumstances would intehd, by their actions, to create legal obligations and legal rights.) These causes of action involve a permissible factual inference as to an objective intent to be obligated but the actual and expressed intent of the obligor is considered relevant to that inquiry. In law, this category now includes causes of actions on all contracts implied in fact (causes of action on general assumpsit or “the common counts” which include quantum meruit); in equity, this category includes resulting trusts relating to the ownership of, and security interests against, property including choses in action.

CATEGORY 3: OBLIGATIONS IMPOSED BY LAW WITHOUT REGARD TO ACTUAL OR IMPLIED INTENTION: (Causes of action based on legal obligations and rights imposed strictly as a matter of law without regard to expressions of assent by either words or acts and completely independent of any express or implied intentions of the obligors or obligees or third persons to incur the obligation "or create the right.) This category in law includes all ex delicto causes of action which include all intentional torts and negligence claims, as well as all (ex contractu) causes of action in quasi-contract. In equity it includes constructive trusts, equitable liens and sub-rogation.

From this short summary of the development and purpose of causes of action it is clear that an equitable cause of action for subrogation is not dependent upon the intention of any person or party and that the intention of any person or party as to the possibility or effect of subrogation is not relevant or material to the existence of the legal (equitable) right of subrogation.

The following are classic illustrations of subrogation:

A owes a debt to B. C has no legal obligation to pay that debt. Without C’s consent A, or D, a third party, uses C’s money to pay and discharge the debt. C is subrogated to the rights that B had as obligee against A, as obligor.
A owes a secured debt to B. A owns Blackacre which is subject to a mortgage to secure A’s debt to B. Without C’s consent A, or a third person D, uses C’s money to pay B and discharge the mortgage and the debt it secured. If C had no legal obligation to pay the debt, C is subrogated to the rights which B had as obligee and mortgagee.

In these illustrations it is clear that C’s equitable right to subrogation exists independently of any intent on the part of A or B or C or D that C is to be subrogated to the rights of B as obligee and mortgagee. Accordingly the law should be that the beneficiary of a life insurance policy which has been pledged as collateral for the debt of the insured or of a third person or anyone other than that of the beneficiary, has the right to be subrogated to the secured creditor’s claim against the estate of the insured when the proceeds of the policy are used to pay the secured debt.

As the majority opinion indicates, general case law has made the right of subrogation in this situation dependent upon the intent of the insured as to the beneficiaries’ right of subrogation; however, in this situation case law has developed in an erroneous direction. Such does not appear to be the law in the State of Florida. The most applicable Florida case is Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960). The facts in Ulery are as follows:

A buys a policy of insurance on his life. Bl, B2 and B3 are the beneficiaries. A is the president and principal stockholder of X Corp. A pledges the policy as collateral security for a debt X Corp., as obligor, owes to Cl and C2. A dies. Rather than obtaining payment of the debt from X Corp., Cl and C2 make demands on the life insurance company which uses the insurance proceeds to discharge the debt. Are Bl, B2 and B3 subrogated to the claims of Cl and C2 against X Corp.?

Ulery answers this question in the affirmative without regard to any mental intent, expressed or inferred or supposed, on the part of A, the insured, who pledged the policy or on the part of any other person or party. The primary question in Ulery was the interpretation of a statutory provision relating to insurance beneficiaries which statutory provision is not relevant to the question of subrogation. The reference in Ulery to the fact that the primary obligor on the debt secured by the insurance policy was a third person (X Corp.) and not the insured (A) was made in connection with distinguishing a prior case (the Bancroft case) that related to the primary question of the precedence of a policy assignment to secure a debt and the statutory rights of the life insurance beneficiaries. The court in Ulery explained:

On the second appearance [of the Bancroft case], the Supreme Court held that the rights of the bank [the secured obli-gee] under the assignment were superior to those of the daughter [the life insurance beneficiary]. The same is true as between the rights of the appellant widow, children and executrix of the insured [Bl, B2, and B3, the Ulery life insurance beneficiaries] and those of the assignees [the secured creditors Cl and C2 in Ulery] in the ease presently on review, and the complaint so admits. This admission does not mitigate, however, against appellants’ substantive right of subrogation, which subject was not involved in the Bancroft ease. The sole issue there was whether the assignment to the bank took precedence over the rights of the daughter of the insured under the statute. The primary issue on this appeal is whether the complaint states a case entitling appellants [Bl, B2, and B3, the Ulery life insurance beneficiaries] to a declaratory decree settling their rights in the premises. Collateral to that determination is the question of whether, assuming the allegations of the complaint are established, they [Bl, B2, and B3, the Ulery life insurance beneficiaries] are entitled to be subrogated to the claims of the assignee-creditors [the secured creditors Cl and C2] against the appellee [X Corp.] to the extent that such claims are reduced by application of the proceeds of the respective policies of insurance assigned to secure those claims. Subrogation, a creation of equity, is founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another. Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734. The right of subrogation has been sustained in almost every conceivable type of transaction where the party invoking it has been required to pay a debt for which another is primarily answerable, and which in equity and good conscience the other ought to pay. (emphasis supplied) Those claiming interests by, through or under a deceased surety or guarantor, as heirs or otherwise, assume the position of the decedent in respect to the right of subrogation.

⅜ ⅜ sK ⅜ ⅜ ⅜:

Thus in the instant suit the appellants [Bl, B2 and B3, the Ulery life insurance beneficiaries], who seek a decree declaring their rights in the premises, are entitled, in the event their rights are determined in accordance with their contentions, to enforce their claim of subrogation against the party primarily liable [X corp.]_

OTHER CONSIDERATIONS: The scenario giving rise to the legal question in this case always includes the following cast of interested parties:

A’s estate, which is the primary obligor on a debt owed by A at his death to C as creditor which debt is secured by a pledge of life insurance on A’s life.
B is the beneficiary of the pledged life insurance policy.
C is A’s creditor and the owner of the debt secured by the insurance policy. XX are the heirs, devisees or other beneficiaries of A’s estate.

The ultimate question is always whether the debt due C is to be paid at the expense of B the policy beneficiary or XX the beneficiaries of A’s estate. If B and XX are the same parties with the same percent interest there is no problem.

Two collateral points of law are always relevant to resolution of the question of whether B is to be subrogated to the rights of C against A’s estate.

(1) A’s estate is the primary obligor on the secured debt and in the absence of an agreement to the contrary C, the secured creditor, always has an option to waive the right to look to the pledged policy proceeds and to proceed personally against A’s estate, for payment of the debt secured. Thus, as a very practical matter, it is always the creditor C, who makes the decision to look for payment of the debt to insurance proceeds owned by B, the policy beneficiary, rather than to the primary obli-gor which is A’s estate. If C waives his security and looks to A’s estate the question in this case never arises. It is only when C elects to look to the insurance proceeds for payment that the question as to whether B is to be subrogated to the rights of C against A’s estate is presented.

(2) Whether or not the insured during his life had the right to change the beneficiary, the rights of the named beneficiary vest at the instant of the insurer’s death and the beneficiary becomes the owner of the policy proceeds. The policy proceeds belong to B, the policy beneficiary, although those proceeds are subject to the priority rights of a secured creditor, to whom the policy proceeds are pledged as collateral.

When the secured creditor has elected to obtain payment from the insurance proceeds rather than from A’s estate, in deciding whether the beneficiary of the pledged policy is subrogated to the creditor’s claim against the insured’s estate, as the majority opinion asserts, most cases have held that the determining factor is the intent of the deceased insured. For the reasons set forth above it is suggested, however, that this is not the best approach because the legal question can, and should, be decided objectively on legal principle rather than from case to case on the unexpressed intention of a deceased person (who probably never thought about the problem) as that interest is subjectively perceived by a court from circumstances having no real inferential value. This “intent of the insured” approach to this subrogation problem permits any result desired by the court, favoring the policy beneficiary or the estate beneficiary, at will. This permits a result oriented decision which may be emotionally rewarding but this advantage is far offset by the need for uniformity under a rule of law.

In this case B, the policy beneficiary, is the second wife of A, the insured, while A’s daughter by his first wife is a thirty-five percent beneficiary of A’s estate. C, the secured creditor, is A’s ex-wife and also the mother of the thirty-five percent beneficiary in A's estate. Thus, it is easy to understand why C the secured creditor elected to have her $57,000 debt partially paid from the $50,000 insurance proceeds otherwise owned by the second wife B, as beneficiary under the pledged policy, rather than to collect the indebtedness from the primary obligor, A’s estate, which would have cost C’s daughter about thirty-five percent of $50,000 or about $17,500. The result of C’s decision will be permitted to control B’s rights as policy beneficiary unless subrogation in this case is permitted either as a matter of law or on the basis of a factual finding as to A’s intent. To deny subrogation on the basis of some finding as to A’s supposed intent may be viscerally satisfying in this case but a good rule of law should be applied equally in every similar case so that if, in the next case the only difference is that A’s daughter is the beneficiary of the pledged policy and the second wife is the sole beneficiary of A’s estate, the result under the law will be the same.

ANOTHER FACTOR: Even the cases that purport to make a decision as to subro-gation turn on the intent of the insured make an exception in a case, such as this one, where the debt is secured by a lien or claim against other property in addition to the pledged policy. Under such circumstances, the policy beneficiary does not merely seek subrogation to the right, as a general creditor against the general assets of the insured’s estate, but also seeks sub-rogation to the position of a secured creditor having the right to foreclose against other specific property of A’s estate securing the debt. In this situation the pledge of the other property is taken as sufficient evidence that the insured intended the property to be used as a primary security for the debt and to permit subrogation by the policy beneficiary. The following are the relevant cases:

In Ex parte Boddie, 200 SC 379, 21 SE2d 4 (1942), reviewed by 91 ALR.2d 496, 504 (1968), the insured obtained a loan from an insurance company evidenced by his note and secured by a mortgage on real estate owned by him. The mortgage contained the requirement that the mortgagor procure a life policy and assign it to the mortgagee as additional collateral, which was done by the insured; and the named beneficiary of the policy was the insured’s wife. After the death of the insured the question arose whether the mortgagee-insurer was required to apply the proceeds of the life policy to the balance due on the mortgage, or whether it could instead foreclose the mortgage to use the proceeds of the foreclosure sale as payment upon the debt. Declaring that it was the intention of the parties that the real estate should be the primary security for the indebtedness and the insurance proceeds the secondary security, the court held that the mortgaged premises should be sold in foreclosure and the proceeds of such sale applied to the indebtedness due to the insurer, and that the proceeds of the policy should be paid over to the beneficiary.
The insured, in Smith v. Wells, 72 Ind.App. 29, 122 N.E. 334, 123 N.E. 644 (1919), reviewed by 91 A.L.R.2d 496, 505 (1963), assigned a contract of insurance on his life as security for his debt, in addition to giving a note and mortgage on real estate. At the time of such assignment he entered into an agreement providing that in the event his debt should be paid out of the insurance proceeds, the beneficiaries of the insurance should have the right to be subrogated to the creditor’s interest in the mortgaged property. The indebtedness of the assured having been paid out of the insurance, it was held that a beneficiary having a one-third interest in the insurance contract was entitled to a decree of foreclosure against the mortgaged real estate, and to have distributed to him a one-third amount of the proceeds of sale.
The children of the insured, beneficiaries of a policy on his life assigned by him to a bank to secure a loan, were held in Barbin v. Moore, 85 N.H. 362,159 A 409, 83 A.L.R. 62 (1932), reviewed by 91 A.L. R.2d 496, 505 (1963), to have the right to be subrogated against moneys in the hands of the administrator of the insured’s estate derived from the sale of real estate mortgaged to secure the debt, to the amount of the policies paid in satisfaction of deceased’s indebtedness, the court stating that if the insured had wished the proceeds of the policies to be first applied in satisfaction of the debt he could have done so by mere direction in the assignment, or he could have made the bank beneficiary of the insurance to the extent of its claim.
Russell v. Owen, 203 N.C. 262, 165 S.E. 687 (1932), reviewed by 91 A.L.R.2d 496, 505 (1963), was a proceeding by the administrator of the decedent’s estate to sell certain lands owned by the deceased to provide assets for the payment of his debts. It appeared that the decedent had secured two loans from an insurance company, and in addition to executing two trust deeds on real estate to secure the debts, assigned as collateral two policies on his life issued by the insurance company aforesaid. On the demise of the deceased, the company applied the amount owing by it on the policies to the debts in question,- canceled the notes evidencing the indebtedness, and paid the overplus due on the policies to the beneficiary thereunder, decedent’s wife. She filed a petition asking that she either be subrogated to the rights of the insurance company under the trust deeds to the amount of the debts deducted by it from the policies, or that she be declared an unsecured creditor of her husband’s estate for such sum. In reversing the action of the lower court in denying her any relief, the court said that the proceeds of the policies were, subject to the rights of the insurance company, her property, “free from all the claims of the representatives of her husband or any of his creditors,” and that she “became a creditor of his estate,” and was “entitled to be subrogated to all the rights of the [company] under the deeds of trust.” Where husband insured under life policy on which former wife was named beneficiary assigned the policy to a mortgage creditor who was paid policy proceeds on husband’s death, wife was subrogated to mortgagee’s rights under the mortgage. Rountree v. Frazee, 282 Ala. 142, 209 So.2d 424 (1968), reviewed by 16 Couch on Insurance 2d § 61:335 n. 7 (Rev.Ed. 1983).
Where mortgage recited that it was given in order to secure the payment of the debt and merely provided that mortgagee may require the mortgagor to carry life insurance in a sum sufficient to pay sums secured by the mortgage, mortgage was considered primary security by the parties, and where mortgagor had procured a life policy and assigned it to the mortgagee as. collateral security for the debt, after payment of policy proceeds to mortgagee the named beneficiary in the policy was entitled to be subrogated to the mortgagee’s claim against the insured’s estate for the amount paid under the policy to the mortgagee. Murphy v. Murphy, 259 S.C. 147, 190 S.E.2d 735 (1972), reviewed by 16 Couch on Insurance 2d § 61:335 n. 7 (Rev.Ed.1983).

CONCLUSION: Subrogation is a creature of equity founded on the proposition of doing justice without regard to form and was designed to afford relief where the money of one is used to pay a legal obligation which ought to have been met, either wholly or partially by a primary obligor (Trueman Fertilizer Co. v. Allison, 81 So.2d 734 (Fla.1955)) and is sustained in every circumstance where the money of the party invoking it has been used to pay a debt for which another is primarily liable and which in equity and good conscience the other ought to pay; therefore, when insurance proceeds are used to pay an obligation for which the insured estate is primarily obligated to pay, the beneficiary of the pledged insurance policy should be sub-rogated as a matter of law to the secured creditor’s claim against the insured’s estate.

      . See Chaplin v. Merchants Nat’l Bank of Aurora, III., 186 F.Supp. 273 (N.D. 111.1959); Mutual Life Ins. Co. of New York v. Illinois Nat’l Bank of Springfield, III., 34 F.Supp. 206 (E.D. Mich. 1940); Rountree v. Frazee, 282 Ala. 142, 209 So.2d 424 (1968); Murnane v. Murnane, 447 S.W.2d 590 (Ky.1969); Seitz v. Seitz, 238 Miss. 296, 118 So.2d 351 (1960); Walzer v. Walter, 3 N.Y.2d 8, 163 N.Y.S.2d 632, 143 N.E.2d 361 (1957); Ex parte Boddie, 200 S.C. 379, 21 S.E.2d 4 (1942).

      . But see Walzer v. Walzer, 3 N.Y.2d 8, 164 N.Y.S.2d 632, 143 N.E.2d 361 (1957).

      . See Kash’s Ex’r v. Kash, 260 Ky. 508, 86 S.W.2d 273 (1935); 16 Couch on Insurance 2d § 61:334 (Rev. ed. 1983).

      . For further detail see C. Crandall, A Treatise on the Practice in Action at Law (1928), Chapters 7 and 9, and Introductory Notes and Matters to the American Laws Institute’s Restatement of the Law of Restitution (1937); 1 Willi-ston on Contracts §§ 3-3A (3d Ed.1957); 1 Cor-bin on Contracts §§ 18-19 (1963 Ed. and Supp. 1980).

        . Bancroft v. West, 128 Fla. 193, 174 So. 327 (1937).

      . See 16 Couch on Insurance 2d § 61:333 at 349 (Rev.ed.1983); Annot., “Right of Beneficiary Where Policy is Pledged as Collateral", 91 A.L. R.2d 496 (1963).


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

text:
    Jesse CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1045.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 27, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Jesse Carroll was charged by indictment with seven counts, Count I, violation of Florida’s Racketeer Influence and Corrupt Organization Act (RICO), Counts II, III, VI, and VII with sale and delivery of heroin on four different dates, Count V with sale and delivery of cocaine, and Count IV with trafficking in heroin. He was previously charged by information with two counts of sale and delivery of heroin and cocaine. The cases were consolidated for trial. Carroll was found guilty of counts I, IV, V and VI of the indictment and of both counts in the information.

On appeal, Carroll contends that his double jeopardy rights were violated when he was adjudicated and sentenced on Count I (the RICO violation) as well as the predicate crimes charged in the other counts. Carroll argues that the offenses which formed the basis for the RICO charge are in essence necessarily lesser included offenses of that charge and that therefore he cannot be convicted and sentenced for both. We disagree and affirm.

Carroll was charged with violating Florida’s RICO Act, section 895.03(3), Florida Statutes (1983), which provides that, “It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” Section 895.02(4) states:

“Pattern of racketeering activity” means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

Carroll does not contend that the predicate crimes are inappropriate for a RICO charge, only that he cannot be convicted and sentenced for both. He contends that Carlson v. State, 405 So.2d 173 (Fla.1981), is controlling. In that case, Carlson was convicted of maintaining a house of prostitution, in violation of section 796.01, Florida Statutes. Subsequently, he was charged under the RICO Act [then sections 943.46-943.464, Florida Statutes (1977) ] for conducting or participating in an enterprise through a pattern of racketeering activity, in violation of section 943.462(3), Florida Statutes. The predicate offense underlying this pattern of racketeering activity was the alleged operation of a house of prostitution in violation of section 796.-07(2)(a), Florida Statutes, encompassing the same time span as that of Carlson’s previous conviction. The supreme court, applying the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) stated:

[T]he offense of maintaining and operating a house of prostitution, in violation of section 796.07(2)(a), requires no proof beyond that which is necessary for conviction under section 796.01. For double jeopardy purposes, we conclude that the former offense, when used as the sole basis to establish a pattern of racketeering activity proscribed by section 943.-462(3) of Florida’s RICO Act, is by definition the ‘same’ as the latter offense. The same conduct cannot, under the guise of a RICO prosecution, be fragmented so as to create two separate offenses. (emphasis in original) (footnotes omitted)

405 So.2d at 176.

Carlson only holds that the same criminal act, although charged under separate statute, cannot serve as the basis for a RICO charge which requires a pattern of criminal activity. It is distinguishable from the instant case where the predicate offenses involve separate and distinct criminal acts.

While under a strict Blockburger analysis it might seem that the same elements necessary for conviction of the predicate offenses are also necessary for conviction under RICO, the inquiry does not end there. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning legislative purpose, the rule should not be controlling where there is a clear indication of contrary legislative intent. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Gibson, 452 So.2d 553 (Fla.1984). In other words, even if the crimes are the same under Blockbur-ger, if it is evident that the legislature intended to authorize cumulative punishments, judicial inquiry is at an end. Ohio v. Johnson, — U.S. -,-, 104 S.Ct. 2536, 2541, n. 8, 81 L.Ed.2d 425 (1984). See also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Such a clear indication of legislative intent exists in the statutory framework of RICO. In adopting RICO in 1977, the legislature stated its intent to “resist and eliminate” infiltration of organized crime into this state and determined “it is necessary to provide new criminal ... remedies” to assist in the battle. See Chapter 77-334, Laws of Florida. By establishing the RICO Act, the legislature clearly intended that those persons who engage in a pattern of criminal activity be punished more severely than those convicted only of one of the predicate offenses. We note that the Eleventh Circuit Court of Appeals, in United States v. Hartley, 678 F.2d 961 (11th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983), has come to the same conclusion in considering the federal RICO Act.

In conclusion, we hold that the trial court did not err in adjudicating and sentencing Carroll for RICO and the underlying predicate offenses. Having considered the other points raised and finding no reversible error, the convictions and sentences are AFFIRMED.

COBB, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge.

I respectfully dissent from the majority’s conclusion that double jeopardy does not bar the prosecution in sentencing for both a RICO violation and the underlying predicate offenses. I believe that the double jeopardy clause in both the State and United States Constitutions bar Carroll’s conviction.

Section 895.03(3), Florida Statutes (1983) states that: “It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity_” A person engages in “racketeering activity” who “means to commit, to attempt to commit, or to solicit, coerce, or intimidate another to commit” one of any of twenty-six crimes, or any “conduct defined as racketeering activity under 18 U.S.C. § 1961(l)(a), (b), (c), and (d).” § 895.02, Fla.Stat. (1983). A “pattern” is established when a person engages

[I]n at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

§ 895.02(4), Fla.Stat. (1983). Although there is but one offense, there are alternative elements which would serve to define it.

Thus, the RICO charge and the crimes charged in the instant case of sale and delivery of controlled substances and trafficking, may or may not contain common elements depending upon how the state chooses to define the RICO violation in its pleadings. I have previously maintained this position as to the operation of the double jeopardy clause:

Double jeopardy analysis requires a further consideration of whether the essential building blocks of proof of the elements for each offense are essentially the same in any particular case.

Baker v. State, 425 So.2d 36, 40 (Fla. 5th DCA 1983) (Sharp, W., J., concurring), reversed, 456 So.2d 419 (Fla.1984).

This statement is not necessarily in conflict with the well-accepted rule that the statutory elements of each offense are analyzed in order to determine whether the offenses are the same for purposes of double jeopardy. State v. Baker at 456 So.2d 419. However, in the case of a RICO prosecution, the state has numerous building blocks or elements from which to obtain a conviction. Therefore, in order to properly analyze a double jeopardy problem under a statute such as RICO, it is necessary that the pleadings be consulted as they reveal the building blocks that the state must use in order to obtain a conviction. In other words, the state’s pleadings in effect, define the offense.

This approach is taken implicitly by the courts considering the analogous double jeopardy problem of an information or indictment charging felony murder and the underlying felony. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Gonzalez v. State, 449 So.2d 882 (Fla. 3rd DCA 1984); Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), review granted, Case No. 65,179 (Fla. Aug. 24, 1984); Wicker v. State, 445 So.2d 583 (Fla. 2d DCA 1983). This is also the approach employed by the Florida Supreme Court in their treatment of this exact issue under the former RICO act. Carlson v. State, 405 So.2d 173 (Fla.1981).

Once the pleadings in the instant case are consulted, it becomes obvious that the offenses which serve as the predicate for the RICO charge are entirely the same as the substantive offenses alleged in the information. It is apparent that Carroll’s double jeopardy rights are violated as neither the RICO offense nor any predicate offenses requires proof of an element that the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The majority tacitly admits the correctness of this conclusion in its opinion. However, unlike the majority, I am not willing to accord preeminence to legislative intent over appellant’s constitutional rights. Accordingly, I dissent.

      . Art. I, § 9, Fla. Const.

      . U.S. CONST., amend. V.

      . See abo Judge Cowart’s dissent in Baker v. State, 425 So.2d 36, 46 (Fla. 5th DCA 1983), where he states that the felony murder situation is an "inherent limitation” on the statutory element test. Id. at 60 (Cowart, J., dissenting).


author: COBB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Efmiya TAMVAKIS, Joseph Frederick Capuzzo and William Soto, Appellees.
    Nos. 83-1447, 83-1470 and 83-1543.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 29, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, and Margene Roper, Asst. Attys. Gen., Daytona Beach, for appellant.
    Marc L. Lubet of Lubet & Woodard, P.A., Orlando, for appellee Tamvakis.
    Luis F. Gomez, P.A., Orlando, for appel-lee Soto.
    Jay Paul Cohen, Orlando, for appellee Capuzzo.
   COBB, Chief Judge.

The appellant, State of Florida, timely appeals non-final orders of the trial court dismissing various defendants’ informa-tions. The trial court ruled that the infor-mations were defective as a matter of form in that they were improperly signed by an assistant state attorney, although reciting in the body that the presecution was brought by the state attorney, Robert Ea-gan. Under the signature line at the end, “Robert Eagan, State Attorney,” appears. The informations are not signed by Robert Eagan, however, but by various assistant state attorneys. The identification of the status of the assistant does not appear at the signature line on the informations, only in the acknowledgements below. The issue on appeal is whether these defects render these informations legally insufficient.

The appellees acknowledge that a designated assistant state attorney has full authority to sign an information. See State v. Miller, 313 So.2d 656 (Fla.1975). They argue, however, that the form is misleading. The signer is not described as an assistant state attorney under the signature line or in the body of the information. The appellees assert, and the lower court held, that the informations should recite that prosecution is being brought by the state attorney through the designated assistant state attorney who signed the information.

Although the issue raised by the defense motions may be pettifogging, the informa-tions were technically defective. It would have been a simple matter for the state attorney’s office to correct the errors in their form and be done with it. See Cantanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). The opportunity to do so was afforded by the trial court’s dismissal with leave to amend. Instead, the state elected to appeal. Adding insult to injury, it even filed an emergency motion to continue oral argument in this cause rather than waiving it, thereby enlarging the molehill. Certainly, the state and the court system should spend time on weightier matters.

AFFIRMED.

DAUKSCH J., concurs.

COWART, J., dissents without opinion.


author: WIGGINTON, Judge.

text:
    Johnnie SEWELL, Appellant, v. Leo Michael FLYNN, JR., M.D., Physicians Protective Trust Fund, the Florida Medical Malpractice Joint Underwriters Association, and Florida Patient’s Compensation Fund, Appellees.
    No. AW-218.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.

      Joel D. Eaton, of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Kerrigan, Estess & Rankin, Pensacola, for appellant.
    Danny L. Kepner, of Shell, Fleming, Davis & Menge, Pensacola; Edward P. Nic-kinson, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola; and W.H.F. Wiltshire, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for Leon Michael Flynn, Jr., M.D., Physicians Protective Trust Fund and The Florida Medical Malpractice Joint Underwriters Association.
    Susan S. Thompson and Thomas A. Wad-dell, of Boyd, Thompson & Williams, P.A., Tallahassee, for Florida Patient’s Compensation Fund.
   WIGGINTON, Judge.

The appeal and cross appeal are from a final summary judgment entered against the plaintiff in a malpractice action, and an order denying the defendants’ motion for attorneys’ fees and costs. We reverse the final summary judgment and therefore find it unnecessary to reach the fee issue on cross appeal.

■In the summary judgment the trial court held that plaintiff’s action was barred by the limitations period in section 95.11(4)(b), Florida Statutes (1981), as his deposition testimony conclusively proved that he had “discovered or should have discovered” his cause of action more than two years prior to his having filed suit. Plaintiff filed his complaint on April 21,1982, in which it was alleged that, on May 22, 1978, defendant Dr. Flynn failed to properly perform surgery to implant a patellofemoral prosthesis in plaintiff’s knee, in that he placed the prosthesis in upside down. The complaint further alleged that in a second operation performed on April 26, 1979, Dr. Flynn improperly removed one portion of the pa-tellofemoral prosthesis, leaving plaintiff’s knee with metal moving over bone. As a result of the allegedly faulty surgical procedures, plaintiff was required to undergo surgery in October, 1981, for a total knee replacement, performed by Dr. Campbell.

The final summary judgment recites that plaintiff knew “that there was some deficiency in the medical services rendered by Dr. Flynn since immediately subsequent to the first surgery in May, 1978.” Plaintiff argues that he did not become aware of the position of the prosthesis until he awoke from the October, 1981 surgery to learn that a total knee replacement had been performed by Dr. Campbell because of the damage caused by the misplaced prosthesis. We hold that whatever knowledge plaintiff possessed following the 1978 surgery was not dispositive of his knowledge concerning the prosthesis, and that an issue of material fact as to his knowledge of the prosthesis remains.

Plaintiff’s deposition reveals-that he originally injured his knee in 1963, for which he underwent surgery. As a result of the injury, he developed degenerative arthritis that caused gradual deterioration of the knee in the following years. In 1978, plaintiff underwent further surgery on his knee, performed by Dr. Flynn. Following the surgery, plaintiff experienced difficulty with his knee “popping out,” and was subsequently informed by another physician, whom plaintiff was seeing on an unrelated matter, that a tendon had been misaligned and that he should return to the physician who performed the operation to have it corrected. When plaintiff returned to Dr. Flynn for examination, Dr. Flynn scheduled the April, 1979 surgery to correct the placement of the tendon, which in turn corrected the “popping” problem. However, following surgery, the knee became stiff and painful and grew progressively worse. Plaintiff stated that Dr. Flatt, the rheumatologist to whom Dr. Flynn had referred him to treat the degenerative arthritis, had remarked that the prosthesis appeared “too large” from an “aesthetic” point of view, but that “there was nothing to worry about,” the prosthesis was “adequate” and was probably not contributing to his stiffness and pain. No recommendation was made that it be removed.

Plaintiff admitted having become irritated in late 1979 over Dr. Flynn’s bill, feeling that he should not pay for what he felt was Dr. Flynn’s error in surgical technique. However, he continued to be treated by Dr. Flynn because of the increasing severity of the pain and swelling in his knee. Dr. Flynn opined that plaintiff required a total knee replacement, but preferred to wait until a new type of prosthesis would be available. Plaintiff was asked to bide his time and wear a brace.

In the meantime, Dr. Flynn performed an operation on plaintiff’s elbow, which proved to be unsuccessful. Plaintiff was thereafter, in late 1980 or early 1981, referred to Dr. Campbell by Dr. Flatt. Dr. Campbell repaired the damaged elbow and advised further knee surgery, as the degenerative arthritis had destroyed the surfaces of the joints. No mention was made of the prosthesis, nor did Dr. Campbell indicate that Dr. Flynn had done anything incorrectly, although he was of the opinion that the total knee replacement proposed by Dr. Flynn was unnecessary and that he intended to do some repair work instead. However, when Dr. Campbell performed the surgery in October, 1981, he discovered that the prosthesis had been installed upside down; that the improper installation of the prosthesis had caused considerable damage to the joint; and, consequently, that a total knee replacement was required after all.

Contrary to the holding of the trial court, the above-recounted facts do not establish the absence of a genuine issue of material fact as to what plaintiff discovered or should have discovered concerning the prosthesis. At most the deposition establishes that plaintiff was aware in late 1978 or early 1979 of an improperly placed tendon. That condition, however, was rectified by Dr. Flynn by the April, 1979 surgery. The limitation established by section 95.11(4)(b) is predicated on the “incident giving rise,” to the cause of action. The alleged incident giving rise to the present cause of action was not the separate incident of the misplaced tendon, but was Dr. Flynn’s installing the prosthesis upside down. The deposition testimony is far from conclusive that plaintiff discovered or should have discovered that fact in 1978. Compare Florida Patient’s Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984). Consequently, the trial court erred in entering final summary judgment.

Plaintiff also argues that the trial court committed reversible error in entering summary judgment without first affording him an opportunity to depose Dr. Flynn. As the record reflects that plaintiff’s trial counsel made a substantial effort to depose Dr. Flynn, though thwarted in that endeavor through no fault of his own, he was entitled to complete his discovery before summary disposition of his case. Danna v. Bay Steel Corporation, 445 So.2d 704 (Fla. 4th DCA 1984); Moore v. Freeman, 396 So.2d 276 (Fla. 3d DCA 1981). Consequently, on remand, plaintiff shall be entitled to depose Dr. Flynn.

Finally, plaintiff contends that the trial court erred in entering final summary judgment based on the statute of limitations in favor of the Florida Patient’s Compensation Fund, since the fund did not plead the statute as an affirmative defense. However, due to our reversal of the final summary judgment, we need not reach the merits of this argument. Similarly, we need not reach the issue raised on cross appeal regarding the denial of the defendants’ motion for attorneys’ fees.

REVERSED and REMANDED for further proceedings consistent with this opinion.

JOANOS arid BARFIELD, JJ., concur.


text:
    The CELOTEX CORPORATION, Appellant, v. Leonard H. PICKETT, Sr., and Linda N. Pickett, his wife, Appellees.
    No. AW-264.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 17, 1984.
    Charles P. Schropp and Raymond T. Elli-gett, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant. ■
    Wayne Hogan, of Brown, Terrell, Hogan & Ellis, P.A., Jacksonville, for appellees.
   WIGGINTON, Judge.

Appellant, Celotex Corporation, appeals a judgment entered pursuant to a jury verdict assessing compensatory and punitive damages in favor of appellee Pickett and his wife. The Picketts brought this suit against Celotex, in its capacity as successor in interest to the Philip Carey Manufacturing Company (Philip Carey), and other defendants seeking damages for negligence and strict liability arising from Mr. Pickett’s exposure to asbestos in the 1960’s. We affirm.

Appellee Pickett worked in a shipyard in Jacksonville from 1965 through June, 1968, as an insulator on ships and in the carpenter’s shop and machine department. According to his testimony, 95 percent of the cement he used in his work was Philip Carey asbestos cement. Extensive evidence was presented at trial as to negligence on the part of Philip Carey and as to the nature of appellee’s lung problems and the devastating effects on the human body resulting from exposure to asbestos. Finding that Philip Carey, as predecessor of Celotex, was negligent in placing “asbestos-containing insulation products on the market with a defect” that caused injury to appellee Pickett, the jury awarded compensatory damages to appellee of $500,000 and to his wife of $15,000. The jury also found that Philip Carey acted so as to warrant punitive damages which were assessed in the amount of $100,000 against Celotex. Appellant has raised several issues on appeal which merit discussion.

Punitive Damages Against A Successor Corporation.

Celotex argues that punitive damages should not be assessed against it as a statutory successor corporation for a predecessor’s actions. Evidence at trial gave the following history of the chain of ownership leading to Celotex’s merger with Philip Carey. The Philip Carey Corporation was begun in 1888 and subsequently merged with Glen Alden Corporation in 1967. Thereafter, Philip Carey merged with another Glen Alden subsidiary, Briggs Manufacturing Company, and became known as Panacon Corporation. Celotex purchased Glen Alden’s controlling interest in Pana-con in 1972 and later purchased the remaining shares of Panacon and merged it into Celotex.

In Bernard v. Kee Manufacturing Company, Inc., 409 So.2d 1047 (Fla.1982), the court recognized that the general rule that no liability survives in a successor even for compensatory damages has several exceptions, two of which are: when the successor expressly or impliedly assumes obligations of the predecessor and when the transaction is a de facto merger. Additionally, the Florida Legislature has enacted section 607.231(3), Florida Statutes, which provides that when a merger or consolidation has been effected:

(c) Such surviving or new corporation shall have all the rights, privileges, immunities, and powers, and shall be subject to all the duties and liabilities, of a corporation organized under this chapter. (Emphasis supplied).

Celotex concedes that it is liable, pursuant to the merger, for the compensatory damages awarded to appellees.

In Hanlon v. Johns-Manville Sales Corporation, et al., 599 F.Supp. 376 (N.D. Iowa 1984), in dealing with the same defendant, Celotex, and the question of punitive damages against successor corporations, the court concluded that Celotex could be held liable for punitive damages transposed from its predecessor corporation, Panacon. The court based that decision on the provision in Iowa law, very similar to the exceptions recognized in the Bernard case, that a successor can be held responsible for the liabilities of the predecessor corporation where there was an express agreement to assume liability or where there was a consolidation or merger. The court stated that section 11 of the merger agreement between Panacon and Celotex provides in part that “all debts, liabilities and duties of Panacon shall upon the effective date of the merger attach to Celotex and may be enforced against it to the same extent as if such debt, liabilities and duties had been incurred or contracted by Celotex.” Similarly, under Florida law, specifically section 607.231(3), Florida Statutes, and the Bernard case, Celotex as a successor corporation due to merger, may be held liable for all liabilities of its predecessor corporation, including punitive damages.

Although authority exists to the contrary, the greater weight of authority from other jurisdictions supports the conclusion we have reached based on Florida law. In Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Pa.1982), Celo-tex was found liable for punitive damages as a successor corporation of Philip Carey in the same circumstances as are present here. See also Martin v. Johns-Manville Corp., 469 A.2d 655 (Pa.Super.1983), in which the court found a sufficient degree of identity between Celotex and Philip Carey to justify an award of punitive damages against Celotex as Philip Carey’s successor.

In Hanlon, as in the instant case, Celo-tex argued that the justifications for the imposition of punitive damages — punishment and deterrence — would not be met by imposing such liability on Celotex since Cel-otex is not the guilty party in this instance. The Hanlon court also found that argument of Celotex unpersuasive. We agree.

In Johns-Manville Sales Corporation v. Janssens, — So.2d-, No. AJ-109 (Fla. 1st DCA September 26, 1984) [9 F.L.W. 2048], this Court rejected Johns-Manville’s contention that punitive damages should not be allowed in that case because the rationale of punishment and deterrence underlying the concept of punitive damages was absent since the people who will bear the award are current management, directors, shareholders, employees and customers' who had nothing to do with the alleged misconduct and lack of warnings on asbestos products in the 1930’s, 1940’s and 1950’s; that since the actual wrongdoers have long been replaced at Johns-Manville, the award can neither punish the absent wrongdoers nor deter them from continued misconduct in the future. This court concluded that a corporate entity continues to be liable for its past tortious acts, regardless of any change in ownership, its directors, or the personnel through whom it acts. The court further recognized that punitive damages operate not only to punish the actual wrongdoer, but also, by way of example, to deter others from committing similar wrongs. Compare also Martin.

Punitive Damages in Mass Tort Litigation.

Celotex also argues that punitive damage awards have no place in the mass tort litigation setting. This argument arises from the fact that Celotex and other asbestos defendants are currently defending a large number of civil suits across the country engendered by the same products and similar claims that are the subject of the instant action. Celotex argues that punitive damages are inappropriate under these circumstances since the defendants are being exposed to the possibility of exhaustion of corporate assets contrary to the well recognized principle that punitive damages are improper when they would serve to bankrupt the defending tort-feasor. Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982). Although it did not rule on this point, the court in Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1967) recognized the merit in this argument and reflected upon the practical need to limit punitive recoveries in mass tort litigation in order to avoid depletion of assets which would thereupon preclude late-coming plaintiffs from any recovery at all. Also, in Jackson v. Johns-Manville Sales Corporation, 727 F.2d 506 (5th Cir.1984), the court, observing that the basic policy objectives of punitive damages are satisfied in mass tort litigations by the multiple exposure to compensatory damages, ruled in favor of the asbestos companies on this point. However, rehearing en banc has been ordered in the Jackson decision at 727 F.2d 506, 533. Pursuant to Fifth Circuit Rule 17, the effect of granting a rehearing en banc is to vacate the previous opinion.

Celotex’s argument on this point has been rejected by other courts. Moran v. Johns-Manville Sales Corporation, 691 F.2d 811 (6th Cir.1982); Fischer .v. Johns-Manville Corporation, 472 A.2d 577 (N.J. Super. A.D.1984); Hansen v. Johns-Manville Products Corporation, 734 F.2d 1036 (5th Cir.1984); Neal, supra; Martin, supra; and Hanlon, supra. We agree with this Court’s recent opinion in Janssens, supra, that followed the reasoning of the above authorities on this issue and decline to adopt a contrary view immunizing asbestos companies, and more particularly appellant, from punitive damage awards in mass tort litigation.

We have considered appellant’s remaining two points and find them to be without merit.

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.

      . See In re Related Asbestos Cases, 566 F.Supp. 818 (N.D.Cal.1983) for a more detailed review of the history of this merger. According to that opinion, none of the shareholders of Panacon became shareholders of Celotex.

      . In In re Related Asbestos Cases, the court specifically ruled that Celotex could not be found liable for punitive damages as the successor corporation to Panacon. However, that case was based upon California law and not Florida law.


author: DANIEL S. PEARSON, Judge.

text:
    Lowell M. HALLMAN and Eva B. Hallman, his wife, Appellants, v. CARNIVAL CRUISE LINES, INC., Appellee.
    No. 84-445.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 17, 1984.
    Horton, Perse & Ginsberg and Edward A. Perse, John B. Ostrow, Miami, for appellants.
    Holland & Knight and Michael T. Moore and George Mencio, Jr., Miami, for appel-lee.

      Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

This appeal is from a summary judgment entered in favor of the defendant Carnival Cruise Lines, Inc. on the ground that the plaintiff-passengers’ action to recover for injuries sustained by the plaintiffs when Mr. Hallman slipped and fell on the deck of Carnival’s cruise ship, the T.S.S. Festival, was barred by the one-year limitations period provided for in the passenger tickets. We affirm.

The facts are not in dispute. The Hall-mans participated in a tour package offered by a travel agency. After reading the brochure supplied by the agency which described the cruise, set forth the applicable rates, and contained a “Tour Participation Contract,” the Hallmans filled out and mailed a reservation form along with their check for the full purchase price to the group sponsoring the cruise. Thereafter, the Hallmans received a “cruise package” from Carnival through the travel agency. The package contained tickets, baggage tags, boarding passes, and another brochure. Only the baggage tags and boarding passes were required to be filled in by the Hallmans.

The passenger tickets consist of two pages — a cover page, on the reverse side of which is page number 1; and a second page, numbered 2 and 3. In the lower left corner of the cover page there appears in upper case type, “SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES,” and immediately below that, again in upper case type, the words “IMPORTANT: PLEASE READ CONTRACT ON LAST PAGES 1, 2, 3.” In the lower right corner of the cover page in lower case type is the statement: “The provisions on the reverse hereof are incorporated as though fully rewritten.” On page 1, in upper case type and underlined, are the words, “TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET.” Terms and conditions numbered 1 through 9 are listed beneath this title. The one-year limitations period is found in condition 7 on contract page 1. It reads:

“Suit to recover any claim shall not be maintainable in any event unless commenced within one year after the date of the loss, injury or death.”

When the Hallmans boarded the ship on June 20, 1981, their boarding passes were taken; however, they retained copies of their tickets. Four days later, on June 24, 1981, Mr. Hallman slipped and fell on a deck of the ship sustaining injuries. Approximately a year and a half after the incident, the Hallmans filed their action, alleging that the deck was negligently maintained. The defendants successfully moved for summary judgment on the ground that the one-year limitations period barred the Hallmans’ action. This appeal ensued.

The appellants contend that they were not adequately informed by the contract of the one-year limitation for bringing suit and, therefore, that this condition of the contract is unenforceable. At the threshold, they argue that the adequacy vel non of the notice of the one-year limitation is to be decided under Florida law and, in any event, is not to be decided as a matter of law. We briefly dispose of these arguments. First, while the plaintiffs are clearly entitled to sue in state courts for damages arising from maritime torts accruing on navigable waters in this country, maritime law is the substantive law to be applied irrespective of where the action is brought. Branch v. Schumann, 445 F.2d 175 (5th Cir.1971); Still v. Dixon, 337 So.2d 1033 (Fla. 2d DCA 1976); Rountree v. A.P. Moller Steamship Co., 218 So.2d 771 (Fla. 1st DCA 1969); Foresman v. Eastern Steamship Corp., 177 So.2d 887 (Fla. 3d DCA 1965). Second, it is well established that the issue of whether the carrier has adequately notified a passenger of a condition of the contract is one to be determined by the court and is thus suitable for disposition by summary judgment. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1983); DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981); Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir.1979); McQuillan v. “Italia” Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974), affd, 516 F.2d 896 (2d Cir.1975); Schroeder v. Holland-America Cruises, 171 NJ.Super. 584, 410 A.2d 281 (App.Div.1980). Compare McCaffrey v. Cunard Steamship Co., 139 F.Supp. 472 (S.D.N.Y.1955); Azrak v. Panama Canal Co., 117 F.Supp. 334 (S.D.N.Y. 1953).

Under maritime law as it has evolved, a notice appearing in the contract must be a reasonable warning to the passenger in order to incorporate into the contract the conditions to which it refers. Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 (2d Cir.1968). Thus, in Silvestri, notwithstanding that the ticket face bore the words “PASSAGE CONTRACT” in large type, the statement which followed in small type, viz., “Subject to the conditions printed on the cover of this ticket which form part of this contract,” was held to be inconspicuous and not sufficiently “eye-catching” to “warn the passenger that the terms and conditions were important matters of contract affecting his legal rights.” Id. at 17. See Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir. 1983); Raskin v. Compania de Vapores Realma, S.P., 521 F.Supp. 337 (S.D.N.Y. 1981). But where the ticket is “likely to alert the holder to the menace of its fine-print terms,” the fine-print terms of the contract will be enforced. Lipton v. National Hellenic American Lines, 294 F.Supp. 308, 309 (E.D.N.Y.1968). In Lipton, the cover of the five-page ticket was clearly labeled, in large type, “Passage Contract Ticket,” and contained, in smaller but readily legible type, the words “Important Notice” followed by the caveat, “[ejach passenger should carefully examine this ticket, particularly the conditions on pages 2, 3, 4 and 5.” The top of page 2 was conspicuously headed “CONDITIONS OF CONTRACT.” Pages 2 through 5 contained a list of conditions. The “conditions” opened with language to the effect that the passengers, by accepting the ticket, agree to the terms stated and that the passengers’ attention is directed to the terms and limitations appearing on the following pages of the contract. The court concluded that the ticket met the standard of reasonable communicativeness.

Other courts have considered tickets closely resembling the ticket in Lipton. They, too, have concluded that such tickets meet the Silvestri requirement that the contract reasonably communicate the importance of its terms and conditions to the passenger. See DeNicola v. Cunard Line Ltd., 642 F.2d 5; McQuillan v. “Italia" Societa Per Azione Di Navagazione, 386 F.Supp. 462 (ticket similar to one in Lipton; cover of Lipton ticket “phrased in stronger terms”). Our examination of the ticket in the present case reveals that the conspicuousness and clarity of notice on the face of the ticket is virtually indistinguishable from the tickets held to adequately warn in Lipton, DeNicola and McQuillan. Accordingly, we hold that the trial court correctly concluded that the plaintiffs were adequately notified of the condition of the contract requiring that they commence an action within one year after the date of the injury and that, having brought suit outside of that limitations period, the plaintiffs are barred from maintaining their action. The summary judgment in favor of the appellee is

Affirmed.

      . Conditions 10 through 16 and 17 through 25 appear on contract pages 2 and 3.

      . The appellants do not challenge the validity of the one-year limitation. It appears, however, that under controlling maritime law, see McQuillan v. “Italia" Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974), aff’d, 516 F.2d 896 (2d Cir.1975), the parties were free to agree to a limitation period of not less than one year. See Catterson v. Paquet Cruises, Inc., 513 F.Supp. 645 (S.D.N.Y.1981); Foresman v. Eastern Steamship Corp., 177 So.2d 887 (Fla. 3d DCA 1965).

      . Were this a case where the notice on the face of the ticket was questionable, the circumstances surrounding the passenger’s purchase and retention of and familiarity with the ticket could be decisive on the issue of whether the passenger was bound by the ticket provisions. See Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1983). To the extent that these circumstances must be considered even where the warnings are prominent and the conditions of the contract clear, there is no circumstance in the present case which would nullify or detract from the adequacy of the notice.