author: TAYLOR, J.

text:
    Ralph SEXTON and Ranch Management Consultants, Inc., Appellants, v. Johnathan A. FERGUSON, Appellee.
    No. 4D10-2826.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Marcy I. LaHart of Marcy I. LaHart, P.A., Gainesville, for appellants.
    Johnathan A. Ferguson, Fort Pierce, for appellee.
   TAYLOR, J.

The issue in this appeal is whether section 57.105(1), Florida Statutes, authorizes an attorney’s fee award solely against a party’s attorney when the case against the attorney’s client has been voluntarily dismissed as a result of settlement negotiations, and the claim for attorney’s fees against the client has been waived. We hold that the statute does not authorize the award of fees solely against the attorney under these circumstances.

Ralph Sexton and Ranch Management Consultants, Inc. appeal the final order of an administrative law judge that denied their motion for attorney’s fees against appellee, Attorney Johnathan A. Ferguson. The underlying dispute arose when appellants petitioned the governing board of the St. Johns River Water Management District (the “District”) for a formal administrative hearing after the District issued a consumptive use permit to Wild Turkey Estates of Vero, LLC (“Wild Turkey”). The permit allowed Wild Turkey to de-water a sand mine located adjacent to the petitioners’ cattle ranch operation. Appellants objected that their ranch would be adversely impacted by the proposed dewa-tering on Wild Turkey’s property; it would impact the surface and groundwater levels on their ranch property. Appellants asserted that the District’s decision to issue the permit violated Florida’s statutes, violated Florida’s administrative code, and that it was contrary to public policy. They requested that the matter be referred to the Division of Administrative Hearings for a formal hearing and that the Board ultimately reverse its decision and deny Wild Turkey’s permit.

Wild Turkey’s counsel, Mr. Ferguson, filed a motion for attorney’s fees under section 57.105(1), Florida Statutes (2010), alleging that Wild Turkey was entitled to fees because appellants “knew or should have known their claims made in the Petition” were not supported by material facts necessary to establish the claims alleged in the petition. In response, appellants filed their own motion for attorney’s fees and requested that Attorney Ferguson and Wild Turkey each be held equally liable to pay the fees incurred in defending against Wild Turkey’s motion for attorney’s fees, based upon their petition for an administrative hearing.

Appellants asserted that Wild Turkey’s attorney had no basis for claiming that appellants filed a petition based on unsubstantiated facts. In support, appellants pointed out that on the same day that Ferguson filed his motion for attorney’s fees, he also filed his first discovery request — a request for production.

Appellants moved the administrative law judge (ALJ) for a summary final order denying Wild Turkey’s motion for section 57.105 attorney’s fees. They argued that their petition for an administrative hearing was supported by the facts, as it “was based upon technical review and expert opinions of a licensed professional geologist with three decades of experience in matters relevant to the water resource issues identified in the petition.” In addition, appellants argued that Wild Turkey’s motion for attorney’s fees “was a blatant attempt to intimidate Petitioners into withdrawing their petition.”

Before the time expired for filing a response to appellants’ motion for summary final order, Ferguson withdrew as Wild Turkey’s attorney. After Ferguson’s withdrawal, neither Wild Turkey nor its successor counsel ever responded to appellants’ motion for summary final order.

Soon after Ferguson withdrew from the matter, appellants and Wild Turkey negotiated a settlement to resolve all disputes between the parties. As a result of these negotiations, appellants filed a Notice of Voluntary Dismissal with Prejudice. They not only dismissed their request for an administrative hearing, but notified the ALJ of their withdrawal of their pending motion for attorney’s fees against Wild Turkey. The withdrawal specifically stated that, “Petitioners also give notice of withdrawal of Petitioners’ pending motion for attorney’s fees as to Respondent, Wild Turkey Estates of Vero Beach, LLC.” As appellants concede on appeal, “the notice of voluntary dismissal waived [appellants’] claim for attorney’s fees against Wild Turkey.” However, appellants argue that their withdrawal of their motion for attorney’s fees did not apply to releasing Wild Turkey’s prior attorney, Ferguson, from liability for fees.

The Notice of Voluntary Dismissal also requested that the ALJ retain jurisdiction to rule on appellants’ Motion for Summary Final Order, along with their motion for attorney’s fees against Ferguson. The ruling on the motion for summary final order was a condition precedent to appellants’ motion for attorney’s fees. As the ALJ noted in its final order, “If Petitioners prevail on the Motion for Summary Final Order, Petitioners will be the prevailing party on Wild Turkey’s motion for attorney’s fees and Wild Turkey will be the losing party, thus fulfilling a condition for an award of Section 57.105 fees.” Appellants requested that the ALJ review their request for attorney’s fees related to their costs for defending the motion filed by Ferguson.

In May 2010 the ALJ entered an order that relinquished jurisdiction over the petition and, as requested by appellants, retained jurisdiction over the Motion for Summary Final Order and Petitioners’ motion for attorney’s fees against Ferguson. Ferguson filed a response, opposing appellants’ request for a ruling on the Motion for Summary Final Order and for a hearing on his liability for attorney’s fees. Whereupon, the ALJ ordered both parties to file a memorandum of law on whether he could award fees solely against Ferguson under section 57.105(1) without also finding Wild Turkey similarly liable, as the “the statute calls for attorney’s fees to be borne equally by a ‘losing party’ and the losing party’s attorney.”

After reviewing both Ferguson’s and appellants’ memoranda, the ALJ denied appellants’ motion for summary final order on the ground that their attorney’s fees motion was “moot,” and subsequently denied their request for a hearing on Ferguson’s liability for fees. The ALJ held that because appellants withdrew their motion for attorney’s fees against Wild Turkey, they no longer had a claim against Ferguson for filing a baseless attorney’s fees motion. This appeal ensued.

Appellants concede that they waived their claims against Wild Turkey for attorney’s fees through their voluntary dismissal; they contend, however, that they did not waive their claim for fees against Wild Turkey’s past attorney, Ferguson. Appellants argue that the ALJ misinterpreted section 57.105(1) as not authorizing fees solely against an attorney if the attorney’s client is not also held liable for such fees.

The plain language of section 57.105(1) is clear and unambiguous; it does not authorize attorney’s fees to be awarded solely against a party’s attorney. Specifically, section 57.105(1), Florida Statutes, provides:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim ... or
(b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105, Fla. Stat. (2010) (emphasis added).

A plain reading of the statute does not support an attorney’s fee award solely against a party’s attorney where, as here, the case against the attorney’s client had been dismissed and the claim for attorney’s fees against the attorney’s client has been waived. Section 57.105 authorizes an attorney’s fee award to be paid “in equal amounts by the losing party and the losing party’s attorney.” See Maradriaga v. 7-Eleven, 35 So.3d 109, 110 (Fla. 1st DCA 2010); Skarka v. Lennar Homes, Inc. 29 So.3d 1170, 1171 (Fla. 1st DCA 2010); Gopman v. Dep’t of Educ., 974 So.2d 1208, 1212 n. 3 (Fla. 1st DCA 2008).

We distinguish Avemco Ins. Co. v. Tobin, 711 So.2d 128 (Fla. 4th DCA 1998), relied upon by appellants for the proposition that a lawyer can be held liable for attorney’s fees under section 57.105 where the lawyer’s client is not also held liable for such fees. In Avemco, after the insured prevailed in the underlying litigation, the insured’s lawyer obtained a portion of funds that were deposited in the court registry in payment of the insured’s judgment; however, the lawyer kept those proceeds for his own legal fees without his client’s knowledge. Id. at 129. Later, counsel moved ex parte to have the remaining funds released to his client, obtained a trial court order for the fund’s release, and despite knowing that the carrier filed an emergency motion to have the order vacated and the funds returned to the registry, counsel gave the funds to his client — the insured. Id. However, when the trial court vacated the order and required the insured to return the funds to the registry, counsel refused to comply, ultimately resulting in the trial court holding the insured liable in contempt of court. Id. The trial court found that while the lawyer’s actions were “frivolous” and “lacked legal merit,” this did not allow the court to award fees under section 57.105 as the statute “does not provide for fees solely against an attorney without coincident liability by the client.” Id.

On appeal, we disagreed with the trial court, noting that while section 57.105 “obviously authorizes joint awards of fees against both the client and the lawyer” as the “purpose here is to make the client who authorizes and encourages his lawyer to make a frivolous claim or defense share in the resulting liability for fees,” this case presented a unique set of circumstances. We explained that while this court would not hold the client liable for the attorney’s actions, “the client’s exoneration” should not effectively insulate the lawyer from section 57.105 liability.” Id. We reasoned that the term “party” in section 57.105 could have a different meaning depending upon the context. Id. “An attorney representing a client in pending litigation can certainly become a ‘party by asserting or defending the attorney’s own personal interests in that litigation....” Id. Because the lawyers in Avemco sought proceeds in a court registry for compensation allegedly due to them from the client, the lawyers “[h]aving so made themselves parties ... came under the statutory term ‘party’ in section 57.105(b) by their own conduct and were thus properly liable for fees even though their nominal client in the litigation was not liable for such fees.” Id. at 130-31.

Here, however, Ferguson did not file his motion for attorney’s fees against appellants in order to seek or defend his own personal interests in the pending litigation between Wild Turkey and appellants. Unlike the circumstances in Avemco, where the lawyers became “parties” because of their frivolous conduct, it does not appear that Ferguson filed his motion for attorney’s fees in order to gain something independent of Wild Turkey and without Wild Turkey’s consent. Moreover, as the ALJ correctly noted in his final order, there is no allegation in appellants’ motion that “Mr. Ferguson has made himself a party in this proceeding or acted in a manner that would have raised his status to a ‘party as did the lawyer in Avemco.”

We also distinguish Korte v. U.S. Bank National Ass’n, 64 So.3d 134 (Fla. 4th DCA 2011), a mortgage foreclosure case wherein we affirmed the trial court’s decision that an attorney was responsible for the full amount of attorney’s fees based on the inequitable conduct doctrine. Notably, in Korte the attorney did not challenge the trial court’s finding, under the inequitable conduct doctrine, that he was responsible for the full amount of the fees, as opposed to the usual fifty-fifty split required by section 57.105(1). Id at 137. As we observed in a footnote, the inequitable conduct doctrine is rarely applied and is reserved for cases of egregious conduct or extreme bad faith. Id. at 137 n. 2. Such circumstances were not present in this case, and we can see no basis for expanding the scope of section 57.105, Florida Statutes, to allow an award of attorney’s fees solely against Ferguson, whose client was dismissed from the case and any claims for fees against the client were waived by appellants.

We therefore affirm the order denying appellants’ request for attorneys fees pursuant to section 57.105(1) and appellants’ request for a hearing regarding those fees.

Affirmed.

STEVENSON and GROSS, JJ., concur.


source: Caselaw Access Project

author:
CORTINAS, J.
      ROTHENBERG, J.

license: Public Domain

text:
    GEICO INDEMNITY COMPANY, Appellant, v. VIRTUAL IMAGING SERVICES, INC., Appellee.
    Nos. 3D10-2595, 3D10-2667.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Rehearing Denied Feb. 15, 2012.

      Banker Lopez Gassier and Mark D. Tinker, St. Petersburg; Shutts <& Bowen and Frank A. Zacherl, Douglas G. Brehm, and Maria N. Vernace, Miami, for appellant.
    Kane and Kane and Harley N. Kane; Ausley and McMullen and John Beranek, Tallahassee, for appellee.
    Fowler White Boggs and Edward K. Cottrell and John P. Marino, Jacksonville; Hala Sandridge, Tampa, as Amici Curiae, for appellant.
    Before CORTIÑAS and ROTHENBERG, JJ., and LEVINE, Associate Judge.
   CORTINAS, J.

This appeal presents identical certified questions submitted in two Personal Injury Protection (“PIP”) cases. The defendant in each case, Geico Indemnity Company (“Geico”), had tendered payment to Virtual Imaging, LLC (“Virtual Imaging”) for MRI services provided to Rafael Bojos and Merelis Gomez (the “Insureds”) in accordance with separate automobile insurance policies. Virtual Imaging objected to Geico’s determination of the amount due under the policies. In each case, the county court entered summary judgment in favor of the plaintiff, Virtual Imaging. On appeal, the cases were consolidated, and the county court certified the following question as a matter of public importance:

May an insurer limit provider reimbursement to 80% of the schedule of maximum charges described in F.S. 627.736(5)(a) if its policy does not make a specific election to do so?

We answer the certified question in the negative.

Within Florida’s Motor Vehicle No-Fault Law, sections 627.730 — 627.7405, Florida Statutes (2008), is the section governing PIP coverage, section 627.736 (the “PIP statute”). The PIP statute requires insurers to pay “[ejighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services.” § 627.736(l)(a). In 2007, the Legislature amended the PIP statute to incorporate Medicare fee schedules. Section 627.736(5)(a)(2)(f) provides that an insurer may limit reimbursement to providers of MRI services to 80 percent of “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.” Relying on the Medicare fee schedule, Geico reimbursed Virtual Imaging for MRI services provided to the Insureds in the amounts of $1,014.46 and $975.50, respectively. Virtual Imaging disputed the reimbursement, arguing that Geico was obligated under the policies to pay 80% of the amount billed, or $1400 for each of the Insureds. In support of this view, Virtual Imaging points to the language in each policy indicating “the Company [Geico] will pay ... 80% of medical expenses,” defining “medical expenses” as “reasonable expenses for necessary medical, surgical, [and] X-ray ... services.”

Virtual Imaging points this Court to two cases, one of which is directly on point. In Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63, 64 (Fla. 4th DCA 2011), an insurance company, relying on section 627.736(5)(a)(2)(f), paid medical bills at 80% of 200% of the Medicare Part B schedule. This amount was less than 80% of the amount billed by the service provider. The Fourth District found that the language of the policy controlled, and that “[t]he applicable policy made no reference to the permissive methodology of subsection 627.736(5)(a)(2).” Id. at 67. In making its ruling, the court adopted the analysis found in State Farm Insurance Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009). In Nichols, which involved homeowner’s insurance, “the insurer argued that it was entitled to pay in accordance with the limitation language in a statute that was not specifically mentioned in the policy, while at the same time the policy provided a means to determine payment.” Kingsway, 63 So.3d at 67. The court in Nichols rejected this argument. In Kingsway, the court similarly ruled that “[i]f the [Insurer] wanted to take advantage of the permissive fee schedule, it should have clearly and unambiguously selected that payment methodology in a manner so that the insured patient and healthcare providers would be aware of it.” Id. (internal citations omitted).

This Court is faced, as were the courts in Kingsway and Nichols, with a dispute regarding whether there is a conflict between the language in the policies and the language in the PIP statute. Geico argues that its payment to Virtual Imaging was consistent with both the PIP statute and the policies issued to the Insureds. According to Geico, the permissive language of section 627.736(5)(a)(2) is present in the policies for two reasons. First, section 627.7407(2) states that “[a]ny personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act.” (emphasis added). Consequently, the policies must be read so as to include the provision stating that Geico “may limit reimbursement to 80 percent” of the requisite amount on the Medicare Part B fee schedule. Second, the policies themselves clearly state that reimbursements will be made “in accordance with the Florida Motor Vehicle No-Fault Law, as amended.... ” Therefore, Geico argues, no conflict between the statute and the policies arises. Both the policies and the statute clearly state that reimbursements will be made for 80% of reasonable medical expenses, while section 627.736(5)(a)(2), which is incorporated into the policies by language found both in the policies and the PIP statute, clarifies that Geico may determine the specific amount constituting “reasonable medical expenses” by referring to the Medicare Part B fee schedule. Geico asks this Court to rule that Kingsway was wrong to find that the PIP statute “allows an insurer to choose between two different payment calculation methodology options.” Kingsway, 63 So.3d at 67. According to Geico, there is only one methodology: 80% of reasonable medical expenses.

This argument is at best flawed. In this case, Geico was faced with at least two ways of reimbursing reasonable medical expenses: (a) reimbursing Virtual Imaging for 80% of the amount billed, or (b) reimbursing them for 80% of 200% of the amount listed on the Medicare fee schedule. When two distinct payment amounts are possible under the statute, it is misleading to insist that there is only one calculation methodology being used. Furthermore, as section 627.736(5)(a)(2) provides that insurers “may” consult the Medicare fee schedule, it follows that, under the statute, insurers who choose not to do so have recourse to some alternative means for determining a reimbursement amount. This is clearly, as Kingsway indicated, affording insurers a choice between two different payment calculation methodologies.

Geico’s position is further weakened by the ambiguities that necessarily result from incorporating section 627.736(5)(a)(2) into the policies under section 627.7407(2). The policies state that Geico will pay 80% of all reasonable medical expenses. If, as Geico insists, we read them also to state that Geico will pay 80% of 200% of the maximum allowable amount under the physician fee schedule of Medicare Part B, we must reconcile the reference to “reasonable medical expenses” with the reference to the Medicare fee schedule. It is possible to conclude that “200% of the maximum allowable amount under the fee schedule” is being used to define “reasonable medical expense.” It is also, however, possible to conclude that there are simply two alternatives present in the policies: that Geico will either pay 80% of reasonable medical expenses, or that it will pay 80% of 200% of the maximum allowable amount under the fee schedule. Because the policies nowhere expressly define the former with reference to the latter, Geico’s interpretation is not the only logical or necessary reading of the text. Furthermore, even if the logical equivalency of the two methods were established, the permissive language of section 627.736(5)(a)(2) itself creates ambiguity. A provision indicating that an insurer may limit reimbursements leaves unclear whether this option will be exercised, and therefore provides no indication to policyholders as to a crucial aspect of their policies: the amount the insurer will pay for necessary medical services. A policy indicating that an insurer may distribute reimbursements according to one method without clarifying alternative methods or identifying the factors to be considered in selecting among methods is ambiguous. Ambiguities in insurance contracts are resolved in favor of the insured. See, e.g., State Farm Mutual Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla.2011). Therefore, even if Geico were correct that section 627.736(5)(a)(2) is incorporated into the policies, the resulting ambiguity regarding which method Geico would use in determining a reimbursement amount supports the conclusion that Geico should have reimbursed Virtual Imaging for the greatest amount possible within the language of the policies.

We answer the certified question in the negative, and affirm the summary judgments granted by the trial court.

Affirmed.

LEVINE, Associate Judge, concurs.

ROTHENBERG, J.

(dissenting).

GEICO Indemnity Company (“GEICO”) appeals two final orders from the Miami-Dade County Court granting Virtual Imaging, LLC’s (“Virtual Imaging”) motions for summary judgment in two separate actions. In these cases, the trial court certified the following question as an issue of great public importance: “May an insurer limit provider reimbursement to 80% of the schedule of maximum charges described in F.S 627.736(5)(a)[] if its policy does not make a specific election to do so?” This Court accepted discretionary jurisdiction under Florida Rule of Appellate Procedure 9.160(e)(2) and consolidated the two cases for all purposes on appeal. Virtual Imaging has only challenged GEICO’s application of section 627.736(5)(a)2.f., which is the subsection that applies to Virtual Imaging’s claim. We, therefore, limit our review to Virtual Imaging’s specific challenge.

This appeal arises from two separate actions filed by Virtual Imaging, a provider of magnetic resonance imaging (“MRI”) services, against GEICO to recover additional personal injury protection (“PIP”) benefits. Virtual Imaging provided MRI services to Rafael Bojos and Merelis Gomez (collectively, “the insureds”) under their GEICO automobile insurance policies for injuries they sustained in separate automobile accidents in 2008. Under an assignment of insurance benefits, Virtual Imaging billed GEICO $1800 for each of the MRI services.

The insureds’ policies state: “[T]he Company will pay, in accordance with and subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law, as amended, to or for the benefit of the injured person: (a) 80% of medical expenses.... ” (emphasis added). The term “Medical expenses” is defined in the policies as “reasonable expenses for medically necessary [services].” (emphasis added).

Relying on the fee schedule provided in section 627.736(5)(a)2.f., Florida Statutes (2008) (“the PIP fee schedule”), which states, “The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: ... 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B,” GEICO reimbursed Virtual Imaging eighty percent of the 200 percent allowable under the Medicare Part B schedule. Under this formula, Virtual Imaging was reimbursed $1,014.46 and $975.50, for its services to Rafael Bajos and Merelis Gomez, respectively, which was less than eighty percent of the amounts Virtual Imaging charged.

Virtual Imaging filed suit against GEI-CO for the outstanding balance. The parties entered into a joint stipulation, narrowing their positions to the legal question at issue on this appeal, and filed cross-motions for summary judgment. The trial court, relying on State Farm Florida Insurance. Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009), determined that, since the fee schedule in subsection (5)(a)2.f. is permissive, it is not “legally required” and therefore not automatically incorporated into the policies by operation of law. Based on this reasoning, the trial court concluded the “plain language” of the policies controlled and entered final summary judgment in favor of Virtual Imaging.

On appeal, Virtual Imaging maintains that: (1) GEICO may not limit reimbursement based on the PIP fee schedule because GEICO’s policies neither reference nor make an election to use the PIP fee schedule; and (2) when, as here, insurance policies provide greater coverage than the amount required by the fee schedule, the terms of the policy must control. The majority concludes that the PIP statute provides two separate methodologies for the reimbursement of reasonable medical expenses and, because the language of subsection (5)(a)2. is permissive, the incorporation of subsection (5)(a)2. in the insureds’ policies creates an ambiguity which must be interpreted in favor of the insureds.

Our standard of review is de novo. See Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 331 (Fla.2007) (“[T]o interpret provisions of the Florida Motor Vehicle No-Fault Law ... the standard of review is de novo.”). For the reasons that follow, I respectfully disagree with both Virtual Imaging and the majority, and issue the following dissent.

THE PIP LAW

The 2008 version of Florida’s Motor Vehicle No-Fault statute, which governs and mirrors the language in the insureds’ policies, mandates that PIP insurers “shall provide personal injury protection to the named insured ... [for] eighty percent of all reasonable expenses for medically necessary ... services,” up to $10,000. § 627.736(l)(a), Fla. Stat. (2008) (emphasis added). To avoid unnecessary litigation regarding the “reasonableness” of a medical charge, Florida’s Motor Vehicle No-Fault statute was amended in 2007 to include section 627.736(5)(a)2., which provides a reimbursement fee schedule for all PIP claims. The fee schedule set forth in section 627.736(5)(a)2.f., which is at issue in this appeal, provides, in pertinent part:

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services [including MRI services], supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.

(Emphasis added). The amended statute became effective on January 1, 2008, and governs the insureds’ policies. The parties agree that because their policies went into effect after January 1, 2008, there is no issue regarding retroactive application of the reenacted, amended PIP statute to their policies.

PIP INSURERS MAY CALCULATE REIMBURSEMENT UTILIZING THE PIP FEE SCHEDULE WITHOUT SPECIFICALLY ELECTING TO DO SO IN THEIR POLICIES.

Virtual Imaging argues that by utilizing the reimbursement fee schedule, GEICO breached its contracts because: (A) the insureds’ policies make “absolutely no reference to the new Medicare fee schedule”; and (B) an insurer may not rely on the fee schedule when reimbursing providers without including specific language in the policy stating that payment will be made pursuant to the PIP fee schedule. Essentially, Virtual Imaging contends, and the majority agrees, that section 627.736(5) provides for two separate methodologies for reimbursement of medical costs: (1) to pay 80 percent of reasonable costs under subsection (5)(a)l.; or (2) to pay 80 percent of 200 percent of the allowable amount under the Medicare Part B schedule; and that the insurer must elect and specify which methodology it will use in the policy. I disagree.

A. The fee schedule was incorporated by law into the insureds’ policies.

Section 627.7407(2) states, “[a]ny personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this Act.” (emphasis added). It is uncontested that the insureds’ policies were in effect on or after January 1, 2008. Further, the fee schedule provision is located squarely within the confines of the Florida Motor Vehicle No-Fault Law. See § 627.730, Fla. Stat. (2008) (“Sections 627.730-627.7405 may be cited and known as the ‘Florida Motor Vehicle No-Fault Law.’ ”). Thus, the fee schedule was statutorily incorporated into the insureds’ policies.

Additionally, in Grant v. State Farm Fire & Casualty Co., 638 So.2d 936, 938 (Fla.1994), the Florida Supreme Court specifically held that “where a contract of insurance is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become part of the contract.” (emphasis added) (citations omitted). The PIP fee schedule was therefore clearly incorporated by law into the insureds’ policies.

B. The insureds’ policies also specifically incorporate by reference Florida’s Motor Vehicle No-Fault Law, as amended.

“A document may be incorporated by reference in a contract if the contract specifically describes the document and expresses the parties’ intent to be bound by its terms.” Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999); see also OBS Co. v. Pace Constr. Corp., 558 So.2d 404, 406 (Fla.1990) (“It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.”). The ability to incorporate by reference applies equally to statutes. See Century Vill., Inc. v. Wellington E, F, K, L, H, J, M, & G, Condo. Ass’n., 361 So.2d 128, 133 (Fla.1978). The insureds’ policies state that reimbursements will be made “in accordance with, and subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law, as amended.” (emphasis added). This language unequivocally evinces the parties’ intent to be bound by the terms of the Florida Motor Vehicle No-Fault Law, which includes the PIP fee schedule. Thus, it is clear that the fee schedule provided in subsection (5)(a)2.f. was incorporated by reference and became a part of the contract.

Consequently, the fact that GEICO’s policies do not make specific reference to the Medicare fee schedule is irrelevant. Requiring GEICO to amend its existing policies, or create new ones, to incorporate a fee schedule that is already incorporated by law and by reference into the insureds’ policies is contrary to Florida law. See Northbrook Prop. & Cas. Ins. Co. v. R & J Crane Serv., Inc., 765 So.2d 836, 839 (Fla. 4th DCA 2000) (“Generally, all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law of the land at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention.”) (citation omitted).

C. PIP insurers may utilize the fee schedule to calculate reimbursement without electing to do so in their policies.

Virtual Imaging’s argument that GEICO must “elect” to use the fee schedule in the policy contravenes the plain language of the fee schedule. Section 627.736(5)(a)2. begins with the words: “The insurer may limit reimbursement to the following schedule of maximum charges.... ” This provision contains neither an election requirement nor any conditional language. The permissive words “insurer may” clearly show that this provision grants the insurer the unconditional, unilateral right to limit reimbursement according to the fee schedule, and does not provide for or contemplate any objection by an insured. It would therefore be a strained reading to conclude that an “election” must be made as a condition precedent to use of the fee schedule. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001). Accordingly, I would find that the PIP statute unambiguously permits PIP insurers to calculate reimbursement under the fee schedule without electing to do so in them policies.

Despite the PIP statute’s clear guidance, the majority has determined that the PIP fee schedule’s functionality is “ambiguous.” “[Wjhen a statute is unclear or ambiguous as to its meaning, the Court must resort to traditional rules of statutory construction in an effort to determine legislative intent.” Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008). Rather than examining the legislative intent behind the enactment of the PIP fee schedule, the majority resolves the ambiguity in favor of the insured because it is an insurance contract. However, a study of the legislative history, which is “the polestar that guides a court’s inquiry under the Florida No-Fault Law,” Rodriguez, 808 So.2d at 85, demonstrates that the majority’s interpretation is at odds with the legislative intent behind the enactment of the fee schedule.

Virtual Imaging argues, and the majority agrees, that the PIP statute merely authorizes insurers to offer policies that limit reimbursement to the PIP fee schedule. Under this reading, some insurers would offer policies electing to limit reimbursement under the fee schedule while others would not. In this free market construct, some consumers would accept such a limitation, but others would seek out insurers who do not limit their reimbursements in this way. The fallacy in this interpretation is that it describes the situation as it existed prior to implementation of the PIP fee schedule, while the fee schedule was enacted to remedy the broken PIP reimbursement system.

Prior to the enactment of the fee schedule, the Florida Supreme Court in Holy Cross confirmed that PIP insurers were authorized to offer policies which limit reimbursement to eighty percent of a contractually agreed-upon rate, stating:

First, there is no provision in ... the entire PIP statute that specifically precludes an insurer from entering into a contract with a provider to create an agreed-upon fee schedule for reduced rates. See [Nationwide Mut. Ins. Co. v.] Jewell, 862 So.2d [79], 83 [(Fla.2007) ]. Second, payment at a reduced rate does not violate subsection (l)(a) so long as the insurer pays “eighty percent of all reasonable expenses.” § 627.736(l)(a), Fla. Stat. [ (2006) ] (emphasis supplied). What a provider customarily charges or has previously accepted are important factors for determining whether a fee is reasonable. See § 627.736(1)(a), Fla. Stat.... Accordingly, “[i]f a provider has agreed in a valid and enforceable contract to accept payment for services at a particular rate, that rate would necessarily be a ‘reasonable amount for the services ... rendered.’ ” Jewell, 862 So.2d at 86 (quoting § 627.736(5)(a), Fla. Stat.).

Holy Cross, 961 So.2d at 335 (emphasis added).

The “factors” for determining the reasonableness of a fee that the Court referenced are found in section 627.736(5)(a)l., which has been in effect since 2003:

With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community, and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

(emphasis added). The Florida Supreme Court’s opinion in Holy Cross clearly demonstrates that prior to the enactment of the fee schedule, insurers were authorized to offer policies that contractually limit reimbursement based on the factors outlined in subsection (5)(a)l., including “federal fee schedules” such as Medicare, and consumers were free to accept or reject them.

This, however, was the system the Florida Legislature found to be broken. Indeed, the legislative history is replete with evidence demonstrating that providers abused their calculation leverage, leading to widespread fraud and inflation of prices. Prior to the fee schedule’s enactment, when presented with an “unreasonable” bill, PIP insurers were often forced to pay the amount billed because their sole alternative was costly litigation. In September of 2000, Florida’s Fifteenth Statewide Grand Jury issued a report titled “Report on Insurance Fraud Related to Personal Injury Protection,” detailing the dilemma. The report explained:

[A] number of greedy and unscrupulous legal and medical professionals have turned [the] $10,000 [PIP] coverage into their personal slush fund. Paying kickbacks for patients, abusing diagnostic tests, grossly inflating costs by engaging in sham transactions and filing fraudulent claims of injury, these individuals think nothing of enriching themselves by exploiting the misfortunes of others. The result is loss of coverage and marginal medical treatment for those who are injured, as well as higher insurance rates for all drivers.
Because there is no fee schedule set by the government in PIP claims, and because of the strict rules regarding PIP claims, ... insurance companies must pay almost any amount billed. For example, a lumbar MRI scan would typically be billed on average at $1,700 to a PIP insurer. Medicare, however, would only pay $592 for that same test, a workers compensation carrier would only pay $546, and a typical preferred patient plan would on average pay $653.

(Emphasis added). The grand jury concluded its report by recommending that the Florida Legislature “[consider adopting a fee schedule for reimbursement under the PIP statute similar to the schedule employed in the worker’s compensation statute.”

In 2001, the Florida Legislature adopted the grand jury’s findings and enacted a fee schedule for a narrow class of PIP claims. See § 627.736(5)(b), Fla. Stat. (2001). Specifically, the Legislature stated:

The legislature finds that the Florida Motor Vehicle No-Fault Law is intended to deliver medically necessary and appropriate medical care quickly and without regard to fault, and without undue litigation or other associated costs. The legislature further finds that this intent has been frustrated at significant cost and harm to consumers by ... fraud, medically inappropriate over-utilization of treatments and diagnostic services, [and] inflated charges.... Many of these practices are described in the second interim report of the Fifteenth Statewide Grand Jury.... The Legislature ... adopts and incorporates in this section by reference as findings the entirety of the Grand Jury report.

Fla. SB 1092 (2001); Ch. 2001-271, § 1 Laws of Florida.

After several years, however, the Florida Legislature concluded that a fee schedule for only a narrow class of PIP claims was insufficient to drive down the costs of PIP. In a report commissioned in 2005 and prepared for the Florida Senate by the Committee on Banking and Insurance, the Committee found that “[p]remium rates for PIP increased significantly from 2002 to 2003,” and that this increase was attributable to an “increased amount paid for the average PIP claim.” Comm, on Banking & Ins., Florida’s Motor Vehicle No-Fault Law, Report No. 2006-102 at 62 (2005).

To remedy this problem, the Committee recommended that the Florida Legislature:

1. Reenact the no fault law,[] provided that additional reforms are enacted to control costs, most importantly, a medical fee schedule as listed below.
2. Adopt a medical fee schedule for PIP, set at a specified percentage above the Medicare fee schedule. In addition to helping control PIP medical costs, a fee schedule would also reduce litigation over the reasonableness of medical fees and thereby reduce PIP loss adjustment expenses and attorney fee awards by insurers.

Id. at 96-97. In making this recommendation, the Committee cited New York, New Jersey, and Oregon as states that have enacted PIP fee schedules to contain PIP costs. Id. at 64. Notably, each of these fee schedules limits reimbursement of PIP charges to a specified maximum amount, and none of them contain an election requirement.

In 2007, based on the Committee’s report and recommendations, the Florida Legislature enacted a fee schedule for all PIP claims. See Ch. 2007-324, § 19, Laws of Fla. (2007) (stating that the reenactment of the No-Fault Law and the creation of the PIP fee schedule “was intended to be remedial and curative in nature”). Against a backdrop of widespread billing fraud, the PIP fee schedule was designed to curtail the calculation leverage historically wielded by providers by statutorily affording insurers the unilateral option of limiting reimbursement under a safe harbor schedule of maximum charges.

In sum, the Florida Supreme Court’s decision in Holy Cross demonstrates that prior to the enactment of the PIP fee schedule, insurers were authorized to do what the majority concludes the PIP fee schedule authorizes them to now do. The Legislature, however, determined that the PIP reimbursement system as it previously existed was broken, and enacted the PIP fee schedule to cure the problem. Accepting Virtual Imaging’s interpretation, therefore, would render the statute superfluous. Because “[statutory language is not to be assumed superfluous” and “a statute must be construed so as to give meaning to all words and phrases contained within that statute,” Terrinoni v. Westward Ho!, 418 So.2d 1143, 1146 (Fla. 1st DCA 1982), I submit that even if the PIP statute were ambiguous, the legislative history does not support the majority’s interpretation.

SECTION 627.736 DOES NOT PROVIDE FOR TWO SEPARATE REIMBURSEMENT METHODOLOGIES.

The majority concludes that section 627.736 provides for two separate methodologies for reimbursement: (1) payment of eighty percent of all reasonable medical expenses under section 627.736(l)(a); and (2) payment of eighty percent of the fee schedule provided in section 627.736(5)(a)2. I respectfully disagree. There is only one reimbursement methodology under the PIP statute — that the insurer must reimburse the insured eighty percent of reasonable medical expenses. To satisfy the mandatory reimbursement requirement, subsection (5)(a)l. authorizes consideration of federal and state medical fee schedules in determining what is “reasonable”; subsection (5)(a)2. identifies a particular fee schedule that the Legislature has concluded is reasonable; and payment under the fee schedule provided in subsection (5)(a)2. satisfies the PIP statute’s mandatory reimbursement requirement.

THE POLICIES DO NOT PROVIDE FOR GREATER COVERAGE THAN THE PIP STATUTE.

Relying on Nichols and Kingsway Amigo Insurance. Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011), Virtual Imaging contends that the insureds’ insurance policies provide “greater coverage” than the PIP statute’s permissive reimbursement provision, and, therefore, the terms of the policies must control. However, because the insurance policies do not provide “greater coverage” than the PIP fee schedule, Nichols is inapplicable, and for the reasons that follow, I submit that Kingsway was incorrectly decided.

In Nichols, the Fifth District was confronted with a dispute between homeowners regarding the timing of reimbursement to insureds under Florida’s sinkhole insurance provisions. The insureds’ policies in Nichols required State Farm to submit payment to the insureds within sixty days of the filing of an appraisal award and State Farm’s receipt of proof of loss, while section 627.707(5)(b), Florida Statutes (2007), a permissive statute that was not mentioned in the insureds’ policies, enabled the insurer to withhold payment until the policyholder entered into a contract for repairs. Under the circumstances presented to the Nichols court, the insureds’ policies and the permissive statute required distinct performances; payment was due sooner under the policies than under the statute. The Fifth District concluded that because the language in the statute was permissive and not in conflict with the policy language, the policy was binding on the parties to the insurance contract. Id. at 904.

In Kingsway, the Fourth District was confronted with the same legal question at issue in the instant appeal. As in Nichols, the court in Kingsway determined that the insureds’ policies, which mirror the PIP statute’s mandatory reimbursement requirement, and the permissive PIP fee schedule, provide two distinct payment methodologies, and payment under the policies would amount to greater coverage than under the PIP fee schedule. Kingsway, 63 So.3d at 67. Applying the logic of Nichols, the Fourth District held that when the insurance policy provides “greater coverage” than the amount required by a permissive statute not mentioned in the policies, the terms of the policy will control, and that if the insurer wants to utilize the permissive fee schedule, it must clearly select that payment methodology. Id.

Interestingly, although the majority cites to Kingsway, the majority opinion conflicts with Kingsway, and is decided on completely different grounds. Although both the majority and the Fourth District conclude that the PIP statute provides for two different methodologies for reimbursement, the Fourth District concluded that the statute’s provisions are unambiguous, but because the insureds’ policies did not specify the payment methodology contained in subsection (5)(a)2., the insurer could not limit its reimbursement under this provision. Id. In contrast, the majority concludes that the statutes are ambiguous and because “[ajmbiguities in insurance contracts are resolved in favor of the insured,” the insurer could not limit reimbursement to eighty percent of the fee schedule provided in subsection (5)(a)2. without electing to do so in the policy.

As to the issue of “greater coverage,” the majority concludes that since the PIP fee schedule language is permissive, and because the coverage in the insureds’ policies provides broader coverage than the PIP fee schedule, the policy language should control. The majority’s interpretation is premised on the notion that the insureds’ policies and the PIP statute provide different reimbursement options. Specifically, as the majority states: “Geico was faced with at least two ways of reimbursing reasonable medical expenses: (a) reimbursing Virtual Imaging for 80% of the amount billed, or (b) reimbursing them for 80% of 200% of the amount listed on the Medicare fee schedule.” This analysis, however, incorrectly assumes that the “amount billed” by providers is “reasonable.” Indeed, decades of widespread fraud and overbilling have proved that the amount providers bill is often far from reasonable. And under the majority’s interpretation, the recourse for insurers is litigation. As has already been established, however, the PIP statute was intended to reduce litigation by circumscribing the calculation leverage historically abused by providers.

Contrary to the majority’s interpretation, the insureds’ policies do not provide greater coverage than the fee schedule. The PIP statute mandates that all PIP insurers “shall provide personal injury protection to the named insured ... [for] eighty percent of all reasonable expenses for medically necessary ... services.” § 627.736(l)(a) (emphasis added). Because there are no exceptions listed in the statute, this reimbursement requirement is unequivocally mandatory across the board. Thus, any PIP reimbursement of less than eighty percent of reasonable medical expenses would be a statutory violation.

Reading the PIP fee schedule with reference to the PIP statute’s mandatory reimbursement requirement, it follows that the Legislature intended any reimbursement under the PIP fee schedule to satisfy the mandatory reimbursement requirement. I therefore disagree with the majority’s conclusion that it is “possible to conclude that there are simply two alternatives present in the policies: that Geico will either pay 80% of reasonable medical expenses, or that it will pay 80% of 200% of the maximum allowable amount under the fee schedule.” Construing the statute in such a manner creates an “absurd” situation where one of the statute’s provisions plainly violates another. Since “[sjtatutes, as a rule, ‘will not be interpreted so as to yield an absurd result,’ ” State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995) (quoting Williams v. State, 492 So.2d 1051, 1054 (Fla.1986)), I disagree with Virtual Imaging’s contention that the PIP statute contains two conflicting payment methodologies. There is only one payment methodology under the PIP statute— eighty percent of reasonable medical expenses — and payment under the PIP fee schedule has been legislatively determined to satisfy this requirement.

In sum, while the policies and statute in Nichols required distinct performances, namely the submission of payment at different times, in this appeal, the insureds’ policies and the PIP fee schedule require the same performance — payment of eighty percent of reasonable medical expenses. Nichols is therefore inapplicable. Additionally, as is clear from the PIP statute’s mandatory reimbursement requirement, the PIP fee schedule outlines a safe harbor method for satisfying both the policy and statutory reimbursement requirements.

CONCLUSION

The PIP fee schedule was incorporated by law and by reference into the insureds’ policies. Consequently, the fact that GEI-CO did not specifically elect in the insureds’ policies to calculate reimbursement according to the fee schedule is of no moment. Further, because the PIP statute mandates reimbursement of eighty percent of reasonable medical expenses in all PIP reimbursement cases, there can only be one reimbursement requirement under the PIP statute: eighty percent of reasonable medical expenses. Thus, the PIP fee schedule must be construed as a safe harbor reimbursement method of satisfying the PIP statute’s mandatory reimbursement requirement. For the foregoing reasons, I would answer the certified question in the affirmative and, to the extent that this analysis conflicts with Kingsway, I would respectfully certify conflict with the Fourth District.

      . Though this action was brought by the service provider and not the policyholders, the distinction is immaterial. Virtual Imaging was an assignee beneficiary of both policyholders. An assignee "stands in the shoes of the assignor and may enforce the contract against the original obligor in his own name.” Price v. RLI Ins. Co., 914 So.2d 1010, 1013 (Fla. 5th DCA 2005) (citing Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003)).

      . As has been noted, Virtual Imaging stands in the shoes of the policyholders, and the benefit of the interpretation passes to it.

      . The trial court was referring specifically to the fee schedule in section 627.736(5)(a)2.

      . See Ch. 2007-324, § 21, Laws of Fla. (2007).

      . This report is available at the Attorney General's website at: http://myfloridaIegal.com/ pages.nsf/Main/9ab243305303a0e085256cca 005b8e2e

      . The No-Fault Law was scheduled to be automatically repealed on October 1, 2007. See 2003 amendment.

      . N.Y Ins. Law § 5108(b).

      . N.J.Rev.Stat. 39:6A-4.6 (2004).

      . Or.Rev.Stat. § 742.525 (2004).

      . Section 627.736(5)(a)l. states:
      With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobiles and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
      (Emphasis added).


author: PER CURIAM.

text:
    TWIN OAKS VILLAS, LTD., Appellant, v. JOEL D. SMITH, L.L.C., and Con Cor Construction, Inc., Appellees.
    No. 1D11-1594.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Rehearing Denied Jan. 20, 2012.

      Michael G. Meyer and George W. Tate, III, of Broad and Cassel, Orlando; Ginger Barry Boyd of Broad and Cassel, Destín, for Appellant.
    Larry D. Kellar, Pensacola; Charles F. Beall, Jr., of Moore, Hill & Westmoreland, Pensacola, for Appellees.
   PER CURIAM.

Twin Oaks Villas, Ltd., appeals a nonfi-nal order denying its motion to set aside a default final judgment on the ground that Joel D. Smith, L.L.C. failed to effect service of process, rendering the final judgment void under Florida Rule of Civil Procedure 1.540(b). We reverse, having concluded that the subcontractor’s single attempt to personally serve Twin Oaks at its Cocoa Beach address did not amount to reasonable diligence under the circumstances. See Hudson v. Pioneer Fed. Savs. & Loan Ass’n, 516 So.2d 339, 340 (Fla. 1st DCA 1987) (on review of a circuit court’s determination that a plaintiff conducted a diligent search to locate the defendant, the appellate court determines whether the decision is supported by competent, substantial evidence). Accord Gir on v. Ugly Mortgage, Inc., 935 So.2d 580, 582 (Fla. 3d DCA 2006).

Twin Oaks Villas, Ltd. contracted with Con Cor Construction, Inc. in 2005 to build an apartment complex, and Con Cor hired subcontractor Joel D. Smith, L.L.C. to render labor, materials, and services. After the subcontractor ceased working on the project, it sought unsuccessfully to recover $48,078 for work performed, then recorded a claim' of lien listing a Cocoa Beach address for Twin Oaks. Twin Oaks, in turn, sued the subcontractor to release the defective lien, but the trial court dismissed Twin Oaks’ suit.

The subcontractor subsequently filed suit against Twin Oaks to foreclose on the claim of lien and attempted to serve Twin Oaks at the same Cocoa Beach address. The Sheriffs Return of Service dated February 22, 2006, stated that “after diligent search and inquiry,” the registered agent — Jacqueline McPhillips — could not be found, and included the comment, “vacant bldg.” The subcontractor then served an alias summons on the Secretary of State, asserting in a letter that, pursuant to section 48.061, Florida Statutes, “[w]e previously attempted service on the Registered Agent listed and it is now a vacant building and we are unable to serve them at that address. We were also unable to locate or serve any general or limited partner for this partnership.” The circuit court entered a default final judgment foreclosing the construction lien.

When it received a copy of the final judgment in the mail, Twin Oaks filed a motion to vacate the clerk’s default and set aside the final judgment. Twin Oaks filed an affidavit of Jim Kincaid, vice president and sole shareholder of Heritage Partners Group, Inc., general partner of Twin Oaks Villas, Ltd. He averred that Heritage Group’s main offices had moved from the Cocoa Beach address to Cape Canaveral during late 2004 and early 2005, but that it had failed to change the address of its (and Twin Oaks’) registered agent from Cocoa Beach to Cape Canaveral until March 2008. Neither Heritage, Twin Oaks, nor Mr. Kincaid had been served with the subcontractor’s complaint or summons, nor were copies posted at either the Cocoa Beach or Cape Canaveral addresses, nor were copies received by certified mail at either address, nor did they receive notice of the subcontractor’s motion for clerk’s default or the motion for final judgment. The defendants first gained knowledge of this suit when they received a letter from plaintiff’s attorney at the Cape Canaveral address, enclosing a copy of the final judgment. The offices and building in Cocoa Beach were not vacant, he said, and mail was collected daily from that address. Moreover, Joel Smith had personally trav-elled to the Heritage Group main office in Cape Canaveral to discuss what he believed he was owed on the Twin Oaks project.

The subcontractor filed an affidavit of Joel Smith in opposition, averring that the annual reports on file with the Secretary of State since 2005 listed the address of Twin Oaks, Heritage Partners, and Con Cor in Cocoa Beach, with Jacqueline McPhillips as registered agent for service of process. The subcontractor further averred that before the instant suit was filed, he had mailed the claim of lien to Mr. Kincaid at the Cocoa Beach address by certified mail and a return receipt showed that Mr. Kincaid had received it. The subcontractor also said he had told the manager of the apartments in Pensacola that he had sued Twin Oaks and Con Cor in February 2007 to enforce his lien. He thus believed James Kincaid was fully aware of the lawsuit against him.

The circuit court conducted a non-evi-dentiary motion hearing and decided the issue based upon the parties’ affidavits and the sheriffs return of service. The court found that the service attempted to be effected on Twin Oaks’ registered agent was valid and there was no deficiency, that the Secretary of State had complied with the law in serving the alias summons, and that Twin Oaks did not exercise due diligence and thus failed to show excusable neglect in failing to update the address of its registered agent with the Secretary of State.

Sections 48.061 and 620.1117, Florida Statutes (2007), each authorized substituted service on the Secretary of State following failure of personal service on a limited partnership. Section 48.061(2) stated: “If a general partner cannot be found in this state and service cannot be made on an agent ... because the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership as provided for in s. 48.181.” Section 620.1117(2) authorized service on the Secretary of State if the “registered agent cannot with reasonable diligence be found at the address of the registered office.”

We reject the subcontractor’s claim that section 620.1117 alone applies in this case rather than section 48.061, and that section 620.1117(2) requires only the exercise of reasonable diligence to serve the registered agent at its listed registered office. The subcontractor contends that section 620.1117 is a specific provision addressing the procedure for serving process on limited partnerships and thus controls in this case.

Section 620.1117 is entitled “service of process” and is found in Chapter 620, which addresses “partnership laws.” Section 48.061 is entitled “service on partnerships and limited partnerships,” and is found in Chapter 48 which deals with “process and service of process.” Neither provision is more specific than the other for the purpose of applying the maxim that when two provisions conflict, the more specific controls over the general regarding the same subject. See Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000). Indeed, there appears to be no conflict between the provisions, particularly in light of the principle directing courts to “adopt an interpretation that harmonizes the laws, for the Legislature is presumed to have intended that both laws are to operate coextensively and have the fullest possible effect.” Id. With regard to the relationship between section 620.1117 and 48.061, “related statutory provisions must be read as a cohesive whole,” and “a statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision.” Id. See, e.g., 1321 Whitfield, LLC v. Silverman, 67 So.3d 435 (Fla. 2d DCA 2011) (rejecting. defendant’s argument that the more specific service provision of section 48.061 controlled over section 49.021, instead pointing out that the courts are required to reconcile seemingly disparate provisions unless there is a “hopeless inconsistency”).

Moreover, the subcontractor expressly informed the Secretary of State that it was proceeding pursuant to section 48.061, enclosing the $8.75 fee required by that statute, saying: “we previously attempted service on the Registered Agent listed and it is now a vacant building and we are unable to serve them at that address. We were also unable to locate or serve any general or limited partner for this partnership.”

The evidence showed that although the subcontractor had previously gone to Twin Oaks’ new headquarters in Cape Canaveral, it made but one attempt at service at the Cocoa Beach address, then gave up and served the Secretary of State, and even then declined to send a copy of the process to both the Cocoa Beach and Cape Canaveral addresses. Notwithstanding this, after obtaining the Final Default Judgment, the subcontractor mailed it to the proper Cape Canaveral address.

The supreme court has stated that the reasonable diligence a plaintiff must exhibit before effecting substituted service consists of employing knowledge that is at the plaintiffs command, making diligent inquiry, and exerting an honest and conscientious effort that is appropriate to the circumstances to acquire the information necessary to effect service on the defendant. Grammer v. Grammer, 80 So.2d 457, 460-61 (Fla.1955). In short, “the failure of delivery of sendee must be attributable to the defendant,” not the plaintiff. All Mobile Video, Inc. v. Whitener, 773 So.2d 587, 590 (Fla. 1st DCA 2000) (reversing for lack of diligence, because the plaintiffs attempted only to send copies of the summons, service, and complaint by certified mail to the registered agent listed with the New York Department of State, which was returned as undeliverable because the law firm had dissolved twenty years before, yet one of the plaintiffs had had recent telephone conversations with company representatives, and the plaintiffs counsel had been in contact with the defendant’s insurance company).

Although Twin Oaks did not explain why it had not updated the address of its registered agent with the Department of State, and thus failed to show excusable neglect, this did not negate the subcontractor’s obligation to use more initiative to locate Twin Oaks. See id. (although it was inexcusable for the defendant to have failed to update the addresses of its agent and of its CEO, “its negligence in this regard does not negate the fact that [the plaintiffs] failed to use knowledge at them command and exercise due diligence in attempting to notify [the defendant] of the suit.”).

We REVERSE and REMAND for further proceedings.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Michael Charles DeSUE, Petitioner, v. Mr. Ken TUCKER, Secretary of The Florida Department of Corrections and Warden of Calhoun Correctional Institution and Mrs. Sherrie Porter, Respondents.
    No. 1D11-5726.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2011.
    Rehearing Denied Feb. 2, 2012.
    Michael Charles DeSue, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., HAWKES and WETHERELL, JJ., concur.


author: LaROSE, Judge.

text:
    Raymond Weldon MARSTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-305.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 2011.
    Rehearing Denied Feb. 10, 2012.
    James Marion Moorman, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Raymond Weldon Marston appeals his convictions and sentences for aggravated battery with great bodily harm, kidnapping, three counts of sexual battery using force causing injury, and attempted robbery. See §§ 784.045(1)(a)(1); 787.01(l)(a)(2); 794.011(3); 812.13(1), (2)(c), Fla. Stat. (2007). We affirm the convictions and sentences but write to discuss Mr. Marston’s prosecutorial misconduct claim.

During jury selection, the following exchange occurred:

[PROSECUTOR]:.... You can’t hold it against Mr. Marston or his attorneys if they sit there and play dominoes the whole time. Do you understand that? [VENIRE MEMBER]: Kind of. So you will be talking the whole time to prove that he’s guilty?
[PROSECUTOR]: Exactly. Exactly. Because it is the State of Florida’s burden and everybody has this right. You are presumed innocent until I prove that you are guilty.
So like I said, Mr. Marston can sit there and not say a word. He can read magazines. He could bring in a laptop and play on Facebook all day long if he wanted to, and you cannot hold that against him. Do you understand? Does everyone understand that?
And I touched upon Mr. Marston doesn’t have to say a word. He doesn’t have to say a single word this whole trial. You may not even hear [Mr. Mar-ston’s] voice at all because I can’t put him on the stand.

This comment elicited questions from and discussion with another juror:

[VENIRE MEMBER]: So he doesn’t have to be here?
[PROSECUTOR]: He has a right to stay completely quiet. It’s my job to prove this case.
[VENIRE MEMBER]: But he can talk?
[PROSECUTOR]: He can if he wants to.
[VENIRE MEMBER]: His people, they can talk for him?
[PROSECUTOR]: They can do whatever they feel is appropriate. Like I said, they may want to put him on the stand. Do you have a problem with that?
[VENIRE MEMBER]: No.
[PROSECUTOR]: You would hold me to my burden and make sure it is only to this table that you look to for the evidence; do you understand that?
[VENIRE MEMBER]: They can’t give any evidence?
[PROSECUTOR]: I’m sure the defense will probably go into that a little more.
[DEFENSE COUNSEL]: Judge, I object. May we approach?

Defense counsel requested a curative instruction because the prosecutor was improperly commenting on Mr. Marston’s right to remain silent: “Basically, Judge, I think I see where [the prosecutor] is going with this, but this guy is getting confused, and he’s going to ask us to address his right to remain silent. Can the court give[ ] some kind of curative that he has a right to remain silent because this guy is getting the wrong idea?” The trial judge denied the request. Instead, the judge directed the prosecutor, “Make clear to him [the juror] that they [the defense] have no obligation.” The prosecutor returned to discussing Mr. Marston’s right to remain silent. A venire member continued to express concern, saying: “So he will not explain his position at all as far as — he would just remain silent?” The prosecutor asked the juror whether she accepted that “Mr. Marston has the absolute right to keep his mouth shut this entire time.” She responded, “No.” The prosecutor answered, “Okay. And the defense will probably get into that a little more with you. Anyone else feel the same way?”

Mr. Marston argues that the trial court abused its discretion in refusing to give a curative instruction. The State contends that the prosecutor’s remarks were not improper and that any error in denying a curative instruction was harmless.

The prosecutor’s remarks were improper. They are remarkably similar to the improper remarks in Varona v. State, 674 So.2d 823, 824 (Fla. 4th DCA 1996):

Now, you understand obviously that the defendant has a right to remain silent ... [I]f the defendant does decide to testify, and he doesn’t have to do anything. He could sit there and play crossword puzzles as long as he behaves himself. [I]f the defendant were to choose to testify, were to give a statement, would you look at his testimony as you would the testimony of any other witness or person?
And you understand he doesn’t have to do anything in a criminal case. He doesn’t have to even say one word and that’s his right, okay? ... You understand I can’t comply [sic] the defendant to take the witness stand either. So I can’t call him as a witness for any reason. ...

Any remark “fairly susceptible” of interpretation as a comment on the defendant’s failure to testify is an impermissible constitutional violation, and even cursory references to it during voir dire are improper. Id. at 825.

However, we find no reasonable possibility that the failure to give a curative instruction affected the verdict. See Hitchcock v. State, 755 So.2d 638, 643 (Fla.2000) (“Any error in prosecutorial comments is harmless if there is no reasonable probability that those comments affected the verdict.” (citing King v. State, 623 So.2d 486, 487 (Fla.1993)). Comment on a defendant’s right to remain silent, inferring that he has any burden to prove his innocence, potentially can affect a verdict in two ways. First, the jury may infer guilt because the defendant did not take the stand. Second, the comment on silence may have a coercive effect on the defendant, who decides he had better testify, when otherwise he may have chosen to remain silent.

The former situation presented itself in Varona. The evidence as to the robbery was “strong, but not ‘clearly conclusive,’ ” and the victim did not identify the appellant in court as her assailant. 674 So.2d at 825. Here, however, the evidence was stronger. Mr. Marston’s DNA matched DNA found on the victim’s breast. The victim’s description of her assailant matched Mr. Marston, including a protruding Adam’s apple, a scabbed patch she had felt on top of his head, long thinning hair, and facial scruff. She identified him from a photopack and said she was seventy-five percent sure he was her attacker.

Andrews v. State, 443 So.2d 78 (Fla.1983), illustrates the second way that comment on a defendant’s right to remain silent can affect a verdict. In Andrews, the trial court refused a cautionary instruction after the prosecutor’s comment on the defendant’s right to remain silent, and the appellant decided to testify on his own behalf. Id. at 83. The supreme court reversed and remanded for a new trial, concluding that the comment on silence may have had a coercive effect on the appellant. Id. at 85; see also Harrell v. State, 647 So.2d 1016, 1018 (Fla. 4th DCA 1994) (same). In contrast here, the possibility of coercion to testify is absent; Mr. Marston remained silent.

Although the trial judge declined to give a formal curative instruction, he directed the prosecutor to make it clear to the jurors that the defense had no burden of proof. And, the trial judge instructed the jury before deliberating that they must not be influenced in any way by Mr. Martson’s decision not to testily. We must assume that the jury followed these instructions. See Crain v. State, 894 So.2d 59, 70 (Fla.2004) (citing Burnette v. State, 157 So.2d 65, 70 (Fla.1963)). Under these circumstances, we cannot say that the trial court abused its discretion in denying a curative instruction.

Affirmed.

SILBERMAN, C.J., and NORTHCUTT, J., Concur.

      . The State claims that this issue is not preserved because Mr. Marston failed to move for a mistrial. However, a defendant is not required to move for a mistrial to preserve this issue for appeal where the objection is overruled. Holton v. State, 573 So.2d 284, 288 (Fla.1990).


text:
    PARAVANT, INC. and Paravant Computer, Etc., Appellants, v. William LANGFORD, Appellee.
    No. 5D10-3894.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 2011.
    Rehearing Denied Feb. 9, 2012.
    Larry A. Klein of Holland & Knight LLP, West Palm Beach and Stephen T. Ball and David Jones, of Holland & Knight LLP, Orlando, for Appellants.
    Edward C. Tietig, Malabar, and Nancy Allen Wegener, Austin, TX, for Appellee.
   PER CURIAM.

Paravant, Inc. and Paravant Computer Systems, Inc. appeal a cost judgment in favor of William Langford, challenging the sufficiency of the evidence to support the costs as to three of Langford’s experts. See, e.g., Elder v. Islam, 869 So.2d 600, 602-03 (Fla. 5th DCA 2004) (recognizing a party seeking expert fees as part of a cost award is “required to provide evidence as to the breakdown of the expert’s fee before the trial court c[an] properly award same”). On appeal, Paravant argues that Langford only submitted into evidence lists of invoice totals from experts Edward Kinberg and Paul Dorf. We agree with Paravant that the evidence relating to fees paid to Kinberg and Dorf was insufficiently detailed tó support the cost award relating to these two experts. See id. However, Langford did submit detailed billing records relating to the work performed by Morris Hollander — and Paravant did not object to the sufficiency of these records below. Accordingly, we reverse the order on appeal and remand with directions that the trial court enter an amended cost judgment in the amount of $48,852.96 (the amount previously awarded, less the awards relating to Kinberg and Dorf).

REVERSED AND REMANDED WITH DIRECTIONS.

SAWAYA and LAWSON, JJ., and WALLIS, F.R., Associate Judge, concur.


text:
    Allen Robert WILLICH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2629.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Rehearing Denied Feb. 9, 2012.
    Allen Robert Willieh, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Allen Willieh appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm except insofar as his claim of ineffective assistance of counsel, set forth in ground two of the amended motion for postconviction relief. In ground two, Mr. Willieh stated a cognizable claim of ineffective assistance of counsel in alleging that trial counsel failed to impeach Patricia Sa-lamanca with her prior inconsistent statement to investigating officers. See, e.g., Delarosa v. State, 24 So.3d 741, 742 (Fla. 2d DCA 2009) (concluding that allegation that trial counsel was ineffective for failing to impeach a state witness with a prior inconsistent statement was legally sufficient). Because the claim is not conclusively refuted by the record on appeal, we reverse the trial court’s order as to disposition of ground two only, and remand to the trial court with directions that it either attach portions of the record conclusively refuting the allegations in ground two of the amended motion, or, in the alternative, conduct an evidentiary hearing on the allegations.

Affirmed in part, reversed in part, and remanded with directions.

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.


text:
    Anthony COELLO, Appellant v. DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Appellee.
    No. 3D11-69.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2011.
    Rehearing Denied Feb. 15, 2012.
    Robert Finlay, for appellant.
    Garnett Chisenhall, Tallahassee, for ap-pellee.
    Before WELLS, C.J, and CORTIÑAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).


text:
    Dwayne L. STANELY, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-740.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2011.
    Rehearing and Rehearing En Banc Denied Feb. 14, 2012.
    Dwayne L. Stanely, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Denson v. State, 775 So.2d 288, 289 (Fla.2000) (extraordinary writ petition cannot be used to litigate or relitigate issues that were or could have been raised on direct appeal or in prior postconviction proceedings).

EVANDER, COHEN and JACOBUS, JJ., concur.


author: WOLF, J.

text:
    Bernd TAUBERT, Appellant, v. STATE of Florida, OFFICE OF the ATTORNEY GENERAL, Appellee.
    No. 1D10-4933.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 10, 2012.

      Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Allison Finn, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges a judgment that found him in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) for receiving payments based on phony invoices his company sent to over 1,000 corporations. The order on appeal directed appellant to repay each of the defrauded consumers, totaling $2,587,771.29, and to pay civil penalties in the amount of $2,116,500. In addition, the order directed appellant to repatriate all foreign assets and to provide an accounting within 90 days of all assets located outside the country. On appeal, appellant raises two issues. We affirm, but write to address each issue.

First, appellant argues the trial court erred in denying his motion to dismiss the underlying complaint, asserting the Office of the Attorney General (OAG) erroneously failed to provide the names of the defrauded consumers. However, there exists no procedural rule, statutory provision, or controlling case requiring the OAG to name consumers on whose behalf it is litigating a FDUTPA action.

Section 501.207(l)(c), Florida Statutes (2006), authorizes the OAG to bring an action “on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of this part.” In addition, section 501.207(3) authorizes a trial court to “make appropriate orders ... to reimburse consumers or governmental entities found to have been damaged.” There is no requirement in chapter 501 that the OAG list each allegedly affected consumer. Further, the only civil pleading requirements state the complaint must (1) provide an allegation of ultimate facts which state a cause of action and (2) provide well-pled facts upon which a damage award is based. See Fla. R. Civ. P. 1.110(b) (2006); see also Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1233 (Fla. 1st DCA 1995) (stating a defendant may only be ordered to provide relief for which it specifically prayed) (citing Freeman v. Freeman, 447 So.2d 963, 964 (Fla. 1st DCA 1984)). Here, the complaint meets both of these pleading requirements.

Moreover, none of the legislative notes on the statute evidence that such a requirement was contemplated when the statute was created. Fla. H.R. Comm, on Governmental Operations, HB 1915 (1973) Staff Analysis 1 (final May 3, 1973) (on file with State Archives). There is, however, a stated intent that state enforcement of FDUTPA be consistent with federal enforcement. § 501.202(3), Fla. Stat. (2006). The federal government does not require that consumers be named in federal deceptive trade actions. See Maryland v. Universal Elections, 787 F.Supp.2d 408, 418 (D.Md.2011) (holding the federal Telephone Consumer Protection Act does not require the attorney general “include individual names of persons who received calls”).

The only cited support for appellant’s position comes from State ex rel. Reno v. Barquet, 358 So.2d 230 (Fla. 3d DCA 1978). In Barquet, the Third District reversed a motion to dismiss for failure to state a cause of action in a very short opinion. Id. The underlying case arose from the OAG’s filing of a FDUTPA complaint alleging defendants had engaged in the unlawful practice of medicine by performing abortions. Id. at 231. The OAG’s complaint was not included in the opinion; however, the opinion noted that the question before the court was “whether the State Attorney may obtain damages on behalf of the State” pursuant to FDUTPA. Id. In concluding the OAG could not, the court stated in pertinent part:

501.207(l)(c) explicitly provides all actions for actual damages shall be brought on behalf of an aggrieved consumer. The first Complaint was dismissed for failure to name aggrieved consumers and the Amended Complaint does not remedy this omission. The State, in its memorandum to this Court at page 42, states it is not seeking any damages in its own name yet that is what their Complaint expressly requests. It is not possible for both the State and aggrieved consumers to obtain actual damages suffered by the consumers; to hold otherwise would subject Defendants to double damages.

Id The parties dispute the breadth of the above holding. Appellant asserts this holding requires that all FDUTPA complaints on behalf of consumers must list the actual consumers to be reimbursed because the opinion states the complaint failed to “name aggrieved consumers.” Id. OAG asserts this language is dicta and the broader holding only requires the OAG to assert in the complaint that it is seeking damages on behalf of consumers, not itself. We agree with the OAG’s reading of the case. The opinion explains the OAG may not obtain damages on its own behalf and further criticizes the OAG for attempting to obtain actual damages for both the State and consumers. Id. Thus, the broader concern of the opinion was the OAG’s failure to assert it was litigating on behalf of consumers, not that specific consumers were missing from the complaint. Id. Thus, Barquet is distinguishable.

As noted by the OAG, the requirement to list every potential affected consumer could stifle further enforcement and place a heavy burden on the enforcing body. Furthermore, the practical concerns for creating such a requirement are readily apparent. In FDUTPA actions, the OAG, as an enforcement body, is entitled to litigate on behalf of injured consumers. Depending on the alleged violation, the list of affected consumers could reach much higher than the 1,411 consumers alleged to have been injured in the underlying action. Requiring that each consumer be named in the complaint for these types of actions would unnecessarily burden the courts and the enforcing body. Thus, because there exists no such requirement in Florida law, and matters of policy do not support reversal, we affirm.

Appellant next argues the order requiring him to transfer all international assets in his control to the States and provide an accounting of those assets violates the Fifth Amendment of the U.S. Constitution and article I, section 9 of the Florida Constitution. “To meet the intended purpose of the protection against self-incrimination ... this court has broadly and independently construed the protections .... ” Rigterink v. State, 66 So.3d 866, 889 (Fla.2011).

Further, “[a] witness may assert the privilege against self-incrimination during discovery in a civil case when he has reasonable grounds to believe that his answers would provide a link in the chain of evidence necessary for a criminal conviction.” Belniak v. McWilliams, 44 So.3d 1282, 1284 (Fla. 2d DCA 2010) (citing Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Novak v. Snieda, 659 So.2d 1138, 1140 (Fla. 2d DCA 1995)). However, it is not for the witness to determine whether the answers are protected; it is a decision left to the sound discretion of the trial court after considering the circumstances of the case. Id. (citing Delisi v. Smith, 423 So.2d 934, 938 (Fla. 2d DCA 1982)). In addition, to assert the privilege there must be a “substantial and ‘real’ ” threat of incrimination and not one that is “merely trifling [sic] or imaginary.” Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). See also State v. Mitrani, 19 So.3d 1065, 1068 (Fla. 5th DCA 2009). Because of this requirement, “[a] blanket assertion of the Fifth Amendment right is insufficient to invoke the privilege against self-incrimination.” Urquiza v. Kendall Healthcare Group, Ltd., 994 So.2d 476, 477 (Fla. 3d DCA 2008).

While post-judgment assertion of the privilege is authorized in Florida where questions asked in post-judgment discovery are incriminating, the privilege must be considered in relation to the questions asked. DeLeo v. Wachovia Bank, N.A., 946 So.2d 626, 629-30 (Fla. 2d DCA 2007) (reversing for the trial court to consider whether appellant could assert the Fifth Amendment when asked post-judgment deposition questions and ordering the trial court to consider the privilege as to each individual question); see also Rainerman v. Eagle Nat. Bank of Miami, 541 So.2d 740, 741 (Fla. 3d DCA 1989) (holding borrower was entitled to assert privilege against self-incrimination in post-judgment deposition held to aid in execution of final judgment where answers to the questions potentially bore on appellant’s criminal liability arising out of illegal banking transactions).

Here, appellant argues the repatriation of assets and documents, as well as the accounting of those assets, “could provide a link in the chain of evidence that could lead to criminal charges against [appellant].” This blanket assertion is insufficient to support the application of the privilege. This is not a situation in which it is readily apparent that the repatriation and accounting would incriminate appellant further. He offers no further explanation, either in the trial court or in his brief, as to how the requested action could lead to self-incrimination. Appellant was accused of defrauding corporations with phony invoices for over $2,000,000, and the trial court ruled appellant was civilly liable for that conduct. While post-judgment assertion of the privilege is authorized in Florida, the existence of money in an international account does nothing to further incriminate appellant; the trial court’s order is simply an attempt to reimburse the consumers who were defrauded. See, e.g., United States v. Sellers, 848 F.Supp. 73, 77 (E.D.La.1994) (rejecting a similar claim where the government’s attempt to repatriate tainted assets was not used as evidence in trial and was an attempt to make the victim whole). There is no indication of why the production of these items would bear on appellant’s potential criminal liability for defrauding consumers over and above the evidence already presented at trial regarding his guilt. For these reasons, we affirm.

AFFIRMED.

HAWKES and ROBERTS, JJ., concur.

       Since this opinion, the statute has been changed to allow the OAG to seek damages on behalf of a state agency. See § 501.207, Fla. Stat. (2006).


author: HAWKES J.

text:
    DIOCESE OF ST. PETERSBURG/Commercial Risk Management, Appellants, v. Ronald CAYER, Appellee.
    No. 1D11-1868.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 10, 2012.
    Robert P. Byelick, Allison G. Mawhin-ney of Abbey, Adams, Byelick & Mueller, L.L.P., St. Petersburg, for Appellants.
    Jason Fox of the Law Offices of Carlson and Meissner, Clearwater, for Appellee.
   HAWKES J.

The Employer/Carrier (E/C) seeks review of an order of the Judge of Compensation Claims (JCC) awarding Claimant permanent total disability (PTD) benefits. The E/C argues the JCC employed an improper standard in finding Claimant entitled to the benefits. We reverse and remand this matter because it is unclear which standard the JCC applied.

The controlling statute is section 440.15(1), Florida Statutes (2008). To establish entitlement to PTD benefits, if an injured employee cannot prove he or she sustained one of the enumerated catastrophic injuries listed in section 440.15(l)(b)l.-5., then “the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” § 440.15(1), Fla. Stat. (2008).

In the order on appeal, the JCC accepted the vocational testimony offered by Claimant’s expert and made the following findings:

11. The Claimant underwent a vocational evaluation with Steven Cooley. Mr. Cooley opined that the significant vocational handicaps the Claimant suffers as a result of the injuries have caused him to be totally disabled and unable to obtain even sedentary employment within a 50-mile radius of his home. Mr. Cooley testified that the Claimant does not have transferable skills from his maintenance work history that actually apply to the potential jobs found for him by Rehabilitation Counseling Associates. Mr. Cooley testified that given the most recent restrictions placed on the Claimant by Dr. Abraham-sen and Dr. Maiocco that he is not capable of engaging in the full range of light or sedentary employment pursuant to the definitions given in the Dictionary of Occupational Titles.
14. I have had the opportunity to observe the Claimant during the lengthy Final Hearing. He made no physical attempt to impress me with his difficulties, other than a normal guarding of both shoulders. I find that the Claimant was a credible and straight forward witness in his own behalf and that his hesitation to attempt potential jobs that could lead to a further deterioration of his condition was logical. I accept the testimony of Steven Cooley that the Claimant does not have actual transferable job skills that would lead to future employment. I accept that the Claimant cannot do the full range of sedentary employment given the restrictions placed on him from the two shoulder injuries. As such, I find that the Claimant has established that he is entitled to permanent total disability.
15.... On [June 1, 2010, Dr. Maiocco] filled out a report indicating that the Claimant’s restrictions were no lifting more than 15 pounds overhead. When the Claimant was evaluated by Dr. Mai-occo on September 23, 2010, his restrictions were clarified to include no carrying, no lifting floor to waist, and lifting waist to overhead, and no reaching overhead over 15 pounds. Based on the testimony of Mr. Cooley it is the combination of all of these restrictions, combined with the restrictions of Dr. Abra-hamsen, that make the Claimant unable to do the full range of sedentary. As such, I find that the Claimant has established that he is permanently totally disabled as of September 23, 2010, pursuant to Dr. Maiocco’s permanent restrictions.

Here, because Claimant did not sustain one of the statutorily-enumerated injuries, the JCC correctly noted it was Claimant’s burden to prove entitlement to PTD benefits utilizing one of the three methods outlined in Blake v. Merck & Company, 43 So.3d 882 (Fla. 1st DCA 2010). In Blake, we explained:

[A] claimant who does not have a listed injury may prove entitlement to PTD benefits by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.

Id. at 883. Again, the JCC correctly eliminated the first and second methods. The confusion arises, however, because of the JCC’s repeated reference to Claimant’s inability to “engage in a full range of sedentary activities.”

Effective October 1, 2003, the Legislature enacted the test described above— inability “to engage in at least sedentary employment.” See Ch. 03-412, § 18, at 3916, Laws of Fla. From 1994 through September 2003, the PTD statute required a claimant to prove he or she was otherwise qualified to receive social security disability benefits utilizing the five-step sequential analysis adopted by the Social Security Administration. See Butler v. City of Jacksonville, 980 So.2d 1250, 1252 (Fla. 1st DCA 2008). See also Ch. 93-415, § 2, at 69, and § 20, at 118, Laws of Fla. The fifth step of the sequential analysis asks “whether, based on the claimant’s age, education, and work experience, the claimant can perform other similar work found in significant number in the national economy.” Butler, 980 So.2d at 1252. It is at this point that a claimant’s ability to “engage in a full range of sedentary activities” enters the analysis — whether “other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors.” 20 CFR § 404.1560(c)(2) (1992). The JCC’s use of this phraseology — “engage is a full range of sedentary activities — brings into question whether the JCC used the correct standard. We do not equate “engage in a full range of sedentary employment,” part of the previous standard, with “engage in at least sedentary employment,” the current standard.

Because it is not clear which standard the JCC used in awarding PTD benefits, reversal is necessary. See Blake, 43 So.3d at 883. Accordingly, as in Blake, we reverse and remand “with directions that the JCC determine whether Claimant is entitled to PTD benefits based on evidence of permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.” Id. at 883-84.

REVERSED and REMANDED for proceedings consistent with this opinion.

WOLF AND ROBERTS, JJ., concur.