author: LaROSE, Judge. DAVIS, Judge,

text:
    In the Interest of S.V.B., a child. K.G., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-2564.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Rehearing Denied June 25, 2012.
    Linda C. Clark of Linda C. Clark, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.

      Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   LaROSE, Judge.

K.G., mother of the minor child, S.V.B., appeals the order terminating her parental rights. We review the trial court’s order to determine whether competent, substantial evidence supports it. R.C. v. Dep’t of Children & Family Servs., 33 So.3d 710, 714 (Fla. 2d DCA 2010). The record contains competent, substantial evidence that the mother engaged in egregious conduct toward the child under section 39.806(1)(f), Florida Statutes (2010). Finding no error, we affirm.

K.G., the child, and the child’s father went out to dinner. Apparently otherwise healthy, the three-month-old child was extremely fussy because it was late and she was hungry. The father was frustrated by the child’s condition. On the way home after dinner, they stopped to shop. KG. went inside a store while the father remained in the car with the child. The child remained fussy and was crying. The father testified that he became frustrated and moved to the back seat to feed the child. The child continued to cry. K.G. was in the store for no more than ten minutes. Upon returning to the car, she saw the father standing outside the car, holding the child and talking on a cell phone. The father testified that the child started to “breathe funny” while he was feeding her; he called 911.

At the hospital, physicians discovered severe injuries. The child’s fontanel, the “soft spot” between the bones of a young baby’s skull, bulged. A CAT scan revealed a subdural hematoma. Doctors performed an emergency craniotomy. Additional testing revealed that the subdural hematoma was an acute bleed. Retinal hemorrhaging and retinal folds presented in both eyes. The child suffers vision problems due to the injuries. The long-term effects on her development remain unknown.

The Department of Children and Family Services (DCF) sheltered the child and filed a dependency petition. Because of the seriousness of the injuries, DCF later filed a petition to terminate the parental rights (TPR) of both parents. The treating physician, Dr. Brooks, a pediatric emergency medicine and child abuse expert, testified at the hearing. He diagnosed abusive head trauma — someone violently shook the child. He opined that the injuries were inflicted within minutes of the 911 call. Dr. Alexander, one of only seven Florida physicians board certified in child abuse pediatrics, testified that the child’s medical history indicated neither chronic hematoma nor any other brain disorder. He concluded that the child’s condition at the emergency room could not have manifested spontaneously. He, too, concluded that someone had shaken the child.

The father provided expert medical testimony that the subdural hematoma was not caused by shaking the child. Rather, the doctor asserted that it began with a prior unrecognized injury weeks or months earlier — likely at birth — and rebled acutely but spontaneously that night. The trial court found this testimony incredible. A biomechanics expert in reconstructing automobile accident injuries testified that it was physically improbable that someone could shake a child so violently that it would cause such an injury. The trial court found this testimony irrelevant and “completely non-persuasive to the facts of this case.”

K.G. testified that she did not believe anything was wrong with the child. She denied that the father caused the injuries. She refused to believe that he would ever harm the child. Yet, K.G. acknowledged that she asked the father if he had shaken or hurt the child. She admitted that they argued about the cause of the injuries. K.G. also tried to obtain a security video of the incident from the store. Obviously, K.G. questioned how her child went from healthy to severely injured in a ten-minute span. Despite her doubts, K.G. maintains her relationship with the father and plans to remarry him. He is her sole financial support.

The trial court found that the father injured the child. The trial court found that KG.’s conduct was egregious and that termination of her rights was the least restrictive means to protect the child. The trial court issued an order terminating K.G.’s and the father’s parental rights. We affirmed the order as to the father. A.B. v. Dep’t of Children & Family Servs., 73 So.Sd 768 (Fla. 2d DCA 2011) (unpubished table decision). The maternal grandparents have custody of the child.

K.G. argues that there is insufficient evidence of egregious conduct. She claims that the father never showed frustration or anger toward the child. K.G. also points to the conflicting medical testimony about the cause of the injuries. Instead of termination, K.G. wants a case plan with a goal of reunification. For the well-being of this child, we cannot agree with K.G.

Termination of parental rights is appropriate when “[t]he parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or child’s sibling.” § 39.806(1)(f). Egregious conduct is “abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct.” § 89.806(1)(f)(2). It may include an act or omission that occurred only once but was so severe that it endangered the child’s life. Id. Section 39.809(1) requires DCF to prove each element necessary to terminate parental rights by clear and convincing evidence. R.P. v. Dep’t of Children & Family Servs., 975 So.2d 435, 436 (Fla. 2d DCA 2007). We will not overturn a trial court’s determination that such evidence is clear and convincing unless we can say “ ‘as a matter of law that no one could reasonably find such evidence to be clear and convincing.’” Id. (quoting L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002)); see also I.D. v. Dep’t of Children & Families, 13 So.3d 1117, 1119 (Fla. 3d DCA 2009) (stating standard of review for termination of parental rights for egregious conduct is whether competent, substantial evidence supports the order (citing R.P., 975 So.2d at 436)).

K.G. refused to acknowledge that the child suffered injuries from which she likely will never fully recover. Faced with Dr. Brooks’ and Dr. Alexander’s opinions, the apparent frustration displayed that night by the father over the child’s fussiness, and her own doubts, K.G. has refused to recognize the father’s conduct. K.G. made clear that she will continue her relationship with the father and will remarry him. K.G. has placed her self-interest above the well-being of the child. The trial court had ample evidence to conclude that K.G. will not protect the child from the person who caused the severe injuries. The evidence of egregious conduct was clear and convincing. See R.P., 975 So.2d at 436.

Because K.G. engaged in egregious conduct, DCF is not required to make efforts to reunify the family. See § 39.806(2). The trial court did not err in terminating K.G.’s parental rights.

Affirmed.

BLACK, J., Concurs.

DAVIS, J., Dissents with opinion.

DAVIS, Judge,

dissenting.

I respectfully dissent. In my opinion, this record fails to include competent, substantial evidence that supports the trial court’s finding that KG.’s conduct was egregious. See I.D. v. Dep’t of Children & Families, 13 So.3d 1117, 1119 (Fla.3d A 2009) (“The standard of review where a trial court terminates parental rights on the basis of egregious conduct ... is whether the order is supported by competent substantial evidence.”). Accordingly, I would reverse and remand for the entry of an order of dependency as to K.G. and require that she be offered a case plan that may lead to reunification.

The trial court’s final judgment terminating K.G.’s rights to the child included the following finding as to K.G.’s egregious conduct:

[Gjrounds for termination in this case were established because ... the Mother has the opportunity and capability to prevent exposure of the child to the egregious conduct of the Father. This conduct has, in the past, proven to threaten the life, safety, physical, mental, and emotional health of the child.... The Mother is found to have knowingly failed to protect the child by refusing to accept the evidence of the child’s injury or to go against the Father in this cause of action.

The record before this court, however, simply does not support this finding. Initially, I note that DCF did not present any evidence below to show that K.G. was on notice prior to this incident that she needed to protect the child from the father. The testimony established that K.G. was not present when the child’s injuries were inflicted. And nothing in this record suggests that prior to the subject incident K.G. was aware of any indication that the child’s father had a propensity to injure the child. As such, the trial court’s finding that K.G. “knowingly failed to protect the child” from the father can only be referring to her continued belief that the father was not responsible for the child’s injuries. Any failure to protect, therefore, is prospective rather than a suggestion that the instant injuries to the child were the result of KG.’s having the “opportunity and capability” to prevent the injuries but failing to do so. See § 39.806(1)(f), Fla. Stat. (2010).

However, just as there is no evidence in the record to suggest that K.G. could have but failed to prevent the instant injuries to the child, I conclude that the evidence does not support the determination that KG.’s accepting the father’s denial of hurting the child rises to the level of egregious conduct. Egregious conduct is defined by statute as conduct that is “deplorable, flagrant, or outrageous by a normal standard of conduct.” § 39.806(1)(f)(2).

Here, K.G.’s decision to believe the child’s father’s claims of innocence must be viewed in light of the fact that, according to this record, the father had never done anything to the child or K.G. that would put K.G. on notice that he was a danger to the child. Instead, we have a factual scenario arising wherein K.G. leaves a fussy three and one-half-month-old infant with the father in the car in the parking lot of a store while she goes in to shop. Upon her return ten minutes later, the child is in distress. At the hospital, the doctors advise K.G. that the infant has been severely shaken and has serious brain injuries. The father denies, that he harmed the child, and K.G. is faced with a horrible dilemma: should she believe the father of her child in his protestations of innocence or should she accept the doctor’s findings that the child has been abused when she knows the father to be the only one with the opportunity to inflict such abuse.

According to the testimony, the child’s injuries caused conflict between K.G. and the father. K.G. went to the store to determine if the store’s surveillance video might provide some answers, but she was unable to obtain a videotape. The videotapes unfortunately were inconclusive. The majority suggests that K.G.’s investigation of the incident evidences egregious conduct on her part because she obviously questioned the father’s innocence yet ultimately determined that she would continue her relationship with him. I, however, would suggest that by questioning the father’s story and attempting to obtain all the information she could about the incident, K.G. exhibited the commitment she had to her child and to discovering the truth about what happened to her. Taken by itself, this investigation fails to establish clear and convincing evidence of egregious conduct.

Then, prior to trial, the father produced three experts who supported his claims of innocence. A radiologist testified that in his opinion, his examination of the child’s brain scan revealed injuries of three different ages, including one that would have been from five to seven days old. An expert in biomechanics testified that in his opinion, these injuries could not have resulted from the severe shaking of the child and that in essence, he questioned the whole area of shaken baby syndrome. Finally, another medical doctor testified that the child’s injuries were a “rebleed” of a preexisting condition. He too questioned the shaken baby syndrome reasoning.

Faced with the claims of innocence from the child’s father, the lack of any indication from the past that the father would commit such an act, and three experts who supported the father’s innocence — two of whom are medical doctors and one who has earned a Ph.D. in a related field — K.G. proceeded to trial accepting as true the father’s declaration of innocence. In doing so, K.G. also accepted the experts’ opinions that the child was not injured by a shaking but that the injury was the result of a preexisting condition. It is this reliance on these three experts that the trial court and the majority find to be egregious conduct on the part of K.G. I must disagree.

In doing so, I do recognize that the trial court did have before it expert testimony that contradicted the father’s experts and that it chose to disregard the father’s experts’ testimony. I also recognize that such a weighing of the evidence is perfectly within the purview of the trial court in making the determination of whether the father’s actions amounted to egregious conduct. However, I reject the conclusion that K.G.’s failure to completely ignore the opinions of the father’s three expert witnesses prior to the trial court’s determination of their value amounts to “deplorable, flagrant, or outrageous” conduct. I would conclude instead that the record fails to provide competent, substantial evidence to support the trial court’s finding of egregious conduct by K.G., and I would reverse the final judgment of termination. I also would note that with the trial court’s determination of the “guilt” of the father and KG.’s potential for choosing to disregard that finding by the trial court, a dependency order may be appropriate with the provision of a case plan for K.G. that would include a requirement that she prevent the father’s further contact with the child.

      . K.G. and the father were previously married to each other.

      . Subdural hematoma, also known as subdural hemorrhage, is a localized mass of clotting blood that has exuded from a vessel into the tissues surrounding the brain. Stedman’s Med. Dictionary 144180, 175540, 178110 (27th ed. 2000).

      . Cf. D.O. v. S.M., 981 So.2d 11 (Fla. 4th DCA 2007) (affirming termination as to mother on grounds of egregious conduct where both parents were child’s only caregivers and thus both necessarily were present during the abuse and where even if mother did not herself inflict the abuse, she was aware that father had history of domestic violence and child was displaying manifestations of repeated abuse over a five-week period yet mother did not seek medical attention or remove child from the home).

      . This is also the conclusion by the majority opinion: "The trial court had ample evidence to conclude that K.G. will not protect the child from the person who caused the severe injuries.”


source: Caselaw Access Project

author: CRENSHAW, Judge.

license: Public Domain

text:
    USAA CASUALTY INSURANCE COMPANY, Appellant, v. PRIME CARE CHIROPRACTIC CENTERS, P.A. a/a/o Darlene Woodard, Appellee.
    No. 2D10-6217.
    District Court of Appeal of Florida, Second District.
    May 9, 2012.
    Rehearing Denied July 25, 2012.

      Douglas H. Stein of Seipp & Flick, LLP, Miami, for Appellant.
    Kevin B. Weiss of Weiss Legal Group, P.A., Maitland, for Appellee.
   CRENSHAW, Judge.

USAA Casualty Insurance Company (USAA) appeals a county court final judgment for attorney’s fees and costs entered in favor of Prime Care Chiropractic Centers, P.A. a/a/o Darlene Woodard (Prime Care) that applied a contingency risk multiplier. In so doing, the county court certified a question of great public importance as to whether expert testimony alone could constitute sufficient proof to apply a contingency fee multiplier. Because the county court abused its discretion by awarding a multiplier that was not supported by competent, substantial evidence, we do not reach the certified question.

In December 2008, Prime Care filed a complaint alleging that USAA failed to pay the full amount owed for medical services rendered to Prime Care’s assignor, Ms. Woodard, a patient insured under personal injury protection (PIP) coverage issued by USAA. USAA initially disputed the allegations but eventually confessed judgment by paying the claim in full, plus interest, in May 2010. Prime Care thereafter moved for attorney’s fees and costs under section 627.428, Florida Statutes (2008), seeking a multiplier pursuant to Massie v. Progressive Express Insurance Co., 25 So.3d 584 (Fla. 1st DCA 2009), review dismissed, 32 So.3d 60 (Fla.2010).

At the hearing on Prime Care’s motion for attorney’s fees, Prime Care presented the testimony of its corporate representative, John R. Tucker III, its attorney, Kimberly A. Driggers, and an expert witness, attorney Kevin Weiss. Mr. Tucker testified that he contacted three law firms in Polk County about his claim, but none of the firms would handle his case. He then contacted the Florida Chiropractic Association, who in turn referred him to Ms. Driggers, an attorney based in Tallahassee who ultimately took the case on Prime Care’s behalf. The county court found that Mr. Tucker’s testimony did not establish that Prime Care had any difficulty finding a lawyer who would accept its case without the possibility of a multiplier. Rather, Prime Care’s initial problem retaining counsel with the original three law firms stemmed from a general unwillingness to take the case, not a specific refusal to take the case without the possibility of a multiplier. Nonetheless, the county court decided that a multiplier of 2.0 was necessary in accordance with Massie based on Mr. Weiss’s expert testimony. The county court noted that an opposite result would have occurred if the court applied the Fifth District’s holding in Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA), review denied, 966 So.2d 968 (Fla.2007).

USAA believed that Massie and Schultz conflicted and sought to certify the question as to the sufficiency of the evidence required to obtain a multiplier and to establish that a plaintiff would have difficulty finding competent counsel. The county court agreed that a conflict existed and certified the following question as one of great public importance:

IN AN ACTION INVOLVING A CLAIM FOR A STATUTORILY DIRECTED ATTORNEY FEE UNDER ... SECTION 627.428, CAN EXPERT TESTIMONY ALONE CONSTITUTE SUFFICIENT PROOF UNDER STANDARD GUARANTY INSURANCE CO. v. QUANSTROM, 555 So.2d 828 (Fla.1990), ON THE ISSUE OF WHETHER THE RELEVANT MARKET REQUIRES A CONTINGENCY FEE MULTIPLIER TO OBTAIN COMPETENT COUNSEL?

This court accepted jurisdiction of the appeal, and thus we are able to “decide all issues that would have been subject to appeal if the appeal had been taken to the circuit court.” Fla. R.App. P. 9.160(f)(1); State v. Muldowny, 871 So.2d 911, 913 (Fla. 5th DCA 2004).

“[T]he standard of review with respect to the application of a multiplier is one of abuse of discretion.” Holiday v. Nationwide Mut. Fire Ins., 864 So.2d 1215, 1218 (Fla. 5th DCA 2004); see also Discovery Experimental & Dev., Inc. v. Dep’t of Health, 824 So.2d 195,196 (Fla. 2d DCA 2002) (“Appellate courts apply an abuse of discretion standard in reviewing a trial court’s determination on the entitlement of attorney’s fees.”). The application of a contingency risk multiplier must be reversed if it is not supported by competent, substantial evidence. See State Farm Mut. Auto. Ins. Co. v. Cedolia, 571 So.2d 1386, 1387 (Fla. 4th DCA 1990).

A contingency risk multiplier should be applied only upon the trial court’s consideration of the following factors:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in [.Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985) ], are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.

Quanstrom, 555 So.2d at 834. If there is no evidence that the relevant market required a contingency fee multiplier to obtain competent counsel, then a multiplier should not be awarded. See Sun Bank of Ocala v. Ford, 564 So.2d 1078, 1079 (Fla.1990); Allstate Ins. Co. v. Materiale, 787 So.2d 173,176 (Fla. 2d DCA 2001).

Here, the county court’s findings reflected that Prime Care did not have any difficulty retaining counsel who would accept its case without the possibility of a multiplier. Similarly, although Mr. Weiss summarily concluded that the market required a multiplier for Prime Care to obtain competent counsel, he did not provide the court with any evidence to support his broad assertion. Thus, there was no competent, substantial evidence that Prime Care faced any substantial difficulties in finding competent counsel, and the county court abused its discretion by awarding the multiplier. In light of this error, we do not reach the certified question. Accordingly, we reverse the county court’s determination of attorney’s fees as to the multiplier and remand for further proceedings.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.

      . USAA only challenges the amount of the attorney's fees awarded, not Prime Care’s entitlement to an award of attorney fees under section 627.428.


author: LaROSE, Judge.

text:
    M.L.J., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2310.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

M.L.J. appeals the trial court’s disposition order finding that he violated section 877.03, Florida Statutes (2009), which prohibits disorderly conduct. The trial court withheld adjudication and placed M.L.J. on probation. We have jurisdiction. See Fla. R.App. P. 9.145(b)(1) (providing for appeal of an order of adjudication of delinquency or withholding adjudication of delinquency or any disposition order entered thereon). We affirm the delinquency finding but reverse for the trial court to enter a proper disposition order.

The charge against M.L.J. arose from a schoolyard tussle with another boy. M.L.J. said that he acted in self-defense; the other boy was the aggressor. M.L.J. argues on appeal that fundamental error or ineffective assistance of trial counsel on the face of the record occurred where counsel failed to move for a judgment of dismissal based on self-defense. • We are unpersuaded.

When charged with disorderly conduct, a defendant who does not initiate the fight and acts to protect himself or herself from the attacker may assert self-defense. S.D.G. v. State, 919 So.2d 704, 705 (Fla. 5th DCA 2006). The defense applies only if the defendant did not provoke the fight. D.M.L. v. State, 773 So.2d 1216, 1217 (Fla. 3d DCA 2000). However, our record reflects disputed facts as to whether M.L.J. was the aggressor. See, e.g., Rasley v. State, 878 So.2d 473, 476 (Fla. 1st DCA 2004); Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCÁ 2002); Hoffman v. State, 708 So.2d 962, 964 (Fla. 5th DCA 1998). On such disputed facts, a motion for judgment of dismissal would have failed. We observe, nonetheless, that M.L.J.’s counsel pleaded strenuously in her closing argument to the trial court that M.L.J. acted in self-defense. We see neither fundamental error nor ineffective assistance of counsel on the face of the record.

M.L.J. argues, and the State concedes, that we must reverse and remand M.L.J.’s case for entry of a separate disposition order for the disorderly conduct offense. See Fla. R. Juv. P. 8.115(d); W.S.G. v. State, 32 So.3d 725, 726 (Fla. 2d DCA 2010) (holding that entering one order of commitment in two separate cases constituted error and reiterating that each case requires a separate disposition order); G.V. v. State, 863 So.2d 1271, 1272 (Fla. 2d DCA 2004) (reversing and remanding for entry of separate disposition orders). M.L.J. preserved this issue by filing a motion to correct disposition error which was deemed denied when not ruled upon within thirty days by the trial court. See Fla. R. Juv. P. 8.135(b)(1), (2).

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

CASANUEVA and WALLACE, JJ., Concur.

      . We reject the State’s argument that the appeal is moot because M.L.J. received a withhold of adjudication and his probationary period had expired. M.L.J. raised the legality of his disposition as well as his sentence. See, e.g., Sramek v. State, 946 So.2d 1235, 1236 (Fla. 2d DCA 2007) (noting that the fact that a defendant has already served his sentence does not render his appeal moot) (citing Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003)); Lamb v. State, 526 So.2d 998, 998 (Fla. 1st DCA 1988) (holding that appeal is not moot even though the defendant had completed his sentence because the "possibility of removing the stigma of a conviction represents a significant practical purpose demonstrating the continuing viability of the appeal”). There are also financial and social consequences of M.L.J.’s case even though he received a withhold of adjudication. And, a withhold of adjudication could be relevant to future dispositions if M.L.J. ever was rearrested or sought admission or employment in an area requiring disclosure of any trial record. See J.M. v. State, 677 So.2d 890, 893 (Fla. 3d DCA 1996). Our rules specifically provide for appeal of an order adjudicating or withholding adjudication of delinquency. See Fla. R.App. P. 9.145(b)(1). One juvenile case, although not relying on rule 9.145(b)(1), held that orders withholding adjudication were ap-pealable in their own right under Florida Rule of Appellate Procedure 9.140(b)(1)(B). See S.D.G. v. State, 919 So.2d 704, 705 n. 1 (Fla. 5th DCA 2006).


author: NORTHCUTT, Judge.

text:
    Antonio TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4377.
    District Court of Appeal of Florida, Second District.
    May 11, 2012.
    Frances Martinez of Escobar & Associates, Tampa, for Appellant.
   NORTHCUTT, Judge.

Antonio Torres appeals the summary dismissal of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The postconviction court ruled that the motion was untimely, and we agree. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As we did in Barrios-Cruz, we hold that Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify the following question of great public importance:

SHOULD THE RULING IN Padilla v. Kentucky, — U.S.—, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


author: ALTENBERND, Judge.

text:
    Jennifer LAWRENCE, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D09-710.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.
    Rehearing Denied June 13, 2012.

      Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, Tallahassee, and James Fisher, Assistant General Counsel, Orlando, for Respondent.
   ALTENBERND, Judge.

Jennifer Lawrence petitions this court for a writ of certiorari to review a circuit court order that denied her petition for writ of certiorari. This case involves an administrative hearing officer’s decision that sustained the suspension of Ms. Lawrence’s driver’s license. The circumstances of this case are very similar to those in Arenas v. Department of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012). We grant the petition for the same reasons that this court granted the petition in Arenas. We likewise remand this case to the circuit court to determine the mechanism by which the lawfulness of the arrest may be decided. We write briefly to explain one distinction between this case and the Arenas case.

According to the arresting officer’s report, which is the only factual information in our record, a deputy stopped Ms. Lawrence on October 16, 2008, at 11:17 p.m. The deputy’s report states that Ms. Lawrence was traveling at seventy miles per hour in a forty-flve-mile-per-hour zone. When stopped, she had a strong odor of alcohol and exhibited other signs of intoxication. She refused to take a breath test. She was arrested for driving under the influence and for criminal refusal to submit to a breath test.

The administrative hearing in this case occurred several years ago. The circuit court denied the petition for certiorari review in January 2009. The second-tier certiorari proceeding in this court was stayed from January 25, 2010, to January 17, 2012, pending the Florida Supreme Court’s decisions in Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011), which quashed our decision in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008). See also McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, — So.3d —, 2012 WL 752355 (Fla. 2d DCA 2012). Unlike the circumstances in Arenas, the charges against Ms. Lawrence were not dropped. She ultimately pleaded to a reduced charge of reckless driving and a term of probation. Apparently, both her license suspension and the period of probation are over.

Although Ms. Lawrence has never had an opportunity to challenge the lawfulness of her stop in this civil administrative proceeding, she may have had such an opportunity in her criminal proceeding. Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether the criminal proceeding provided an adequate mechanism. We express no opinion on that subject and do not have a sufficient record to analyze the issue.

Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion.

WHATLEY and VILLANTI, JJ., Concur.

      . § 316.193(1), Fla. Stat. (2008).

      . § 316.1939, Fla. Stat. (2008).

      .This information obviously was not in our initial record. We requested this information from the parties because we thought this case might be moot. Both patties agree that the case is not moot.


author: BENTON, C.J.

text:
    INTERSTATE FIRE & CASUALTY COMPANY, Appellant, v. Tatiana ABERNATHY, as natural guardian and mother of Dakota Abernathy, her minor child, and Tatiana Abernathy, Individually, Choctaw Touchdown Club, Inc., Emerald Coast Entertainment, LLC, and Funtastic Factory, Inc., Appellees.
    No. 1D11-1905.
    District Court of Appeal of Florida, First District.
    May 24, 2012.
    Rehearing Denied Aug. 9, 2012.

      Larry A. Matthews and Raymond F. Higgins of Bozeman, Jenkins & Matthews, P.A., Pensacola, Katherine E. Giddings and Kristen M. Fiore of Akerman Senter-fitt, Tallahassee, and Robert R. Baugh and Jaime C. Erdberg of Sirote & Permutt, P.C., Birmingham, AL, pro hac vice, for Appellant.
    Dixie D. Powell of Powell, Powell & Powell, Crestview and Arden J. Lea, Homer, LA, for Appellee Tatiana Abernathy.
   BENTON, C.J.

Interstate Fire & Casualty Company (Interstate) appeals (antecedent summary judgments and) the final judgment against it awarding Tatiana Abernathy $6,250,430. The trial court ruled that a certificate of insurance a broker issued on April 18, 2007, conferred coverage on a purported additional insured for liability for an injury alleged to have occurred four days earlier, on April 14, 2007. We reverse and remand for entry of summary judgment in favor of Interstate, and against Ms. Abernathy, on all claims predicated on the putative liability of the Choctaw Touchdown Club (Club).

“[L]osses which exist at the time of the insuring agreement, or which are so probable or imminent that there is insufficient ‘risk’ being transferred between the insured and insurer, are not proper subjects of insurance” 7 Lee R. Russ in consultation with Thomas F. Segalla, Couch on Insurance § 102:8 (3d ed.2011). “Public policy considerations and the general nature of insurance prevent an insurance policy from providing coverage for a policyholder’s losses unless those losses are fortuitous.” M. Elizabeth Medaglia & 3 Marc A. Peritz, Law & Practice of Insurance Coverage Litigation § 35:3 (2011).

One of the fundamental assumptions deeply embedded in insurance law is the principle that an insurer will not pay for a loss unless the loss is “fortuitous,” meaning that the loss must be accidental in some sense. The public policy underlying the fortuity requirement is so strong that if the insurance policy itself does not expressly require that the loss be accidental courts will imply such a requirement. The fortuity principle is often expressed with reference to certainty: losses that are certain to occur, or which have already occurred, are not fortuitous. In some jurisdictions, the fortuity doctrine is codified.78
78. See, e.g.:
CA — Cal. Ins.Code § 22 (“Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event”);
NY — N.Y. Ins. Law § 1101[a] (“ ‘Insurance Contract’ means any agreement or transaction whereby one party, the insurer, is obligated to confer a benefit of pecuniary value upon another party, the insured or beneficiary, depending upon the happening of a fortuitous event”).

1 Robert H. Jerry, II, New Appleman on Insurance Law Libra'ry Edition § 1.05(2)(a) (2009) (footnote omitted). See also Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Cos., Inc., 265 F.3d 97, 107 (2d Cir.2001) (holding “fortuity and known loss principles are integral to the nature of insurance and thus apply as a matter of public policy, irrespective of specific [insurance] policy terms”); Intermetal Mexicana, S.A. v. Ins. Co. of N. Am., 866 F.2d 71, 77 (3d Cir.1989) (“It is generally recognized that it is against public policy to allow insurance coverage on a certainty.”).

On April 14, 2007, the Club conducted a fundraiser it called the Jellyfish Festival. Emerald Coast Entertainment, LLC (Emerald Coast) supplied recreational gear for the festival, including an “inflatable bungee run,” manufactured by Funtastic Factory, Inc. (Funtastic), on which Dakota Abernathy (14 years old at the time) was allegedly seriously injured. The Club did not have liability insurance coverage at the time of the accident, and had made no application, request or agreement concerning such coverage.

Emerald Coast was, however, insured under a policy issued by Interstate, which included an endorsement entitled “ADDITIONAL INSURED — OWNERS, LESSEES OR CONTRACTORS — SCHEDULED PERSON OR ORGANIZATION.” The endorsement provided that “Who is An Insured” under the policy was “amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured.” No person or organization was named or scheduled. But the Schedule, under the heading “Name of Person or Organization,” contained this language: “AS REQUIRED BY WRITTEN CONTRACT.” At the time of the accident, Emerald Coast had no written contract with the Club, nor did the Club have any agreement concerning liability insurance, written or oral, either with Emerald Coast or Interstate.

On Monday, April 16, 2007, two days after the accident, a representative of the Club contacted Jack Jernigan, owner of Emerald Coast, and requested a certificate of insurance naming the Club as an additional insured under Emerald Coast’s policy. Mr. Jernigan forwarded the request to Dick Wardlow Insurance Brokers (Wardlow), the insurance broker that had procured the Interstate liability policy for Emerald Coast. Wardlow prepared and faxed to the Club a form certificate of insurance on April 18, 2007, which stated that the certificate “CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER” but also stated that the Club “is named as additional insured” for “[o]p-erations at Jelly Fish Festival on 4/13/07 to 4/14/07.”

On August 20, 2009, Ms. Abernathy filed suit against Emerald Coast, the Club, and Funtastic, stating negligence and products liability claims. Interstate undertook defense of Emerald Coast, but notified the Club that it would not defend Ms. Abernathy’s claims against the Club. On November 30, 2009, Ms. Abernathy and the Club entered into a settlement agreement under which the Club consented to entry of judgment for $6.25 million. As part of the same agreement, the Club assigned to Ms. Abernathy all of its rights under the Interstate policy, and Ms. Abernathy agreed not to execute the judgment against the Club. The trial court entered judgment on the same date, which recited and adjudged: “[T]he Court being fully advised and having reviewed the Joint Stipulation and Agreement between the parties and having approved the same,” the “[plaintiffs ... shall recover from Defendant, CHOCTAW TOUCHDOWN CLUB, INC., ... the sum of $6,250,000.00 with costs in the sum of $480.”

Ms. Abernathy then filed an amended complaint on December 18, 2009, adding Interstate as an additional defendant and alleging breach of contract, statutory bad faith, and common law bad faith based on Interstate’s “wrongful decision to deny both a defense and coverage to defendant Choctaw Touchdown Club, Inc., although this Defendant was clearly entitled under the terms and conditions of the subject policy to both.” The amended complaint alleged that Ms. Abernathy was entitled to receive from Interstate the full amount of the judgment rendered against the Club. The certificate of insurance issued four days after the event was the sole basis upon which coverage for the Club was alleged.

Ms. Abernathy and Interstate then filed a series of motions for summary judgment. Ms. Abernathy asserted there were no genuine issues of material fact and that coverage existed for the Club under the Interstate policy, that Interstate wrongfully refused to defend the Club, and that the settlement between Ms. Abernathy and the Club was reasonable and made in good faith. Interstate opposed these motions and filed its own motion for summary judgment, arguing that the certificate of insurance (COI) clearly stated it was “issued as a matter of information only” and did not “amend, extend or alter the coverage afforded” by the policy; that the COI issued after the alleged injury; that there was no privity of contract between Interstate and the Club at the time the injury occurred, and that the Club could not acquire insurance to cover an injury that had already occurred. Interstate also contended that Ms. Abernathy had not presented any evidence that the amount of damages set out in the settlement agreement was objectively reasonable and agreed to in good faith.

On April 29, 2010, the trial court denied Ms. Abernathy’s motion for summary judgment as to coverage under the policy, but granted summary judgment in favor of Ms. Abernathy on the issue of the reasonableness of the Coblentz settlement agreement. On July 7, 2010, the trial court denied Ms. Abernathy’s renewed motion for summary judgment regarding coverage. But on August 24, 2010, the trial court granted summary judgment in favor of Ms. Abernathy, ruling the Interstate policy covered the Club, on grounds that Wardlow, as an insurance broker, had authority to issue the COI, that the COI was part of the policy, based on the definition of “policy” in section 627.402, Florida Statutes (2006), and that there was no reason why an injured party could not acquire insurance coverage after the fact of the injury:

4. § 627.402, Fla. Stat., defines “policy” as “a written contract of insurance or written agreement for or effecting insurance, or the certificate thereof, by whatever name called, and includes all clauses, riders, endorsements, and papers which are a part thereof.”
5. The undisputed testimony of Barbara Robedee provides that Dick Ward-low Insurance Brokers had the authority to issue the certificate of insurance at issue. The only dispute is the effect of the certificate. As stated above, by statute they are considered a part of the policy.
6. The certificate clearly describes the coverage it provides as including the dates and activities at issue in this case.
7. The Court has struggled with several issues raised in this case. In multiple foreign state jurisdictions the outcome would be different based on their treatment of certificates of insurance and on the “known loss” rule. Florida Courts do not appear to have adopted the “known loss” rule found in these other jurisdictions. Even though it seems evident that a sound public policy argument could be made against post-injury insurance, this Court can find no appellate support for any similar rule or public policy in Florida that would override a party’s freedom of contract.

(footnotes omitted). The trial court denied Interstate’s motion for summary judgment, and, on February 2, 2011, granted Ms. Abernathy’s motion for summary judgment on the breach of contract count of the amended complaint and entered judgment in favor of Ms. Abernathy in the amount of $6,250,430. On March 14, 2011, the trial court entered an amended final summary judgment against Interstate, awarding Ms. Abernathy $6,250,430 plus interest in the amount of $642,511.24, reserving jurisdiction to determine fees and costs in the event the parties were unable to agree.

“Summary judgment is proper [only] if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Thus, our standard of review is de novo.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citation omitted). See also Liebel v. Nationwide Ins. Co. of Fla., 22 So.3d 111, 114-15 (Fla. 4th DCA 2009) (holding “ ‘construction of an insurance policy is a question of law for the court and is subject to de novo review’ ” (quoting Flaxman v. Gov’t Emps. Ins. Co., 993 So.2d 597, 599 (Fla. 4th DCA 2008))); Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095-96 (Fla. 1st DCA 1999) (“When a defendant moves for summary judgment, ‘[t]he function of the court is solely to determine whether the ... record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law.’ ” (quoting Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995))).

The COI issued on April 18, 2007, stated in boldface type that it did not confer new coverage, and it could not then have conferred coverage on the Club for injuries sustained by Dakota Abernathy as a result of the accident on April 14, 2007, four days earlier. If construed as an agreement to pay a loss already incurred, it would be contrary to important public policy. Florida’s insurance laws embody the fortuity and known loss principles, precluding coverage for losses that have already taken place. “Insurance” is defined as “a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.” § 624.02, Fla. Stat. (2006). The explicitly stated purpose for regulating insurance is to “promote the public welfare by regulating insurance rates ... to the end that they shall not be excessive, inadequate, or unfairly discriminatory,” and to “protect policyholders and the public against the adverse effects of excessive, inadequate, or unfairly discriminatory insurance rates.” § 627.03l(l)-(2), Fla. Stat. (2011).

To qualify for and hold a certificate of authority, an insurer must maintain reserves and surpluses. See §§ 624.404 & 624.408, Fla. Stat. (2011). The Legislature established the Florida Financial Services Commission, whose purpose is to “safeguard the public by regulating the banking, securities, and insurance industries.” The Commission oversees the Office of Insurance Regulation, whose purpose is to “protect[ ] the public through oversight of insurance company solvency, and market conduct performance,” and “[t]o ensure that insurance companies licensed to do business in Florida are financially viable.” The Insurers Rehabilitation and Liquidation Act was enacted to “[p]rotect the interests of policyholders, creditors, and other claimants and the public.” § 6S1.001(3)(a), Fla. Stat. (2011). The Florida Insurance Guaranty Association Act was enacted to “avoid financial loss to claimants or policyholders because of the insolvency of an insurer,” “[ajssist in the detection and prevention of insurer insolvencies,” and “[a]ssess the cost of such protection among insurers.” § 631.51(1)-(4), Fla. Stat. (2011). This Act established the Florida Insurance Guaranty Association (FIGA) to handle claims of insolvent property and casualty insurance companies “for the benefit of Florida residents.”

The rule forbidding “insuring against” known losses is part and parcel of the public policy to protect other policy holders against insolvent insurers. An agreement to assume a known loss is not insurance. “The concept of insurance is that the parties, in effect, wager against the occurrence or non-occurrence of a specified event; the carrier insures against a risk, not a certainty.” Bartholomew v. Appalachian Ins. Co., 655 F.2d 27, 29 (1st Cir.1981). “Whether the contract is one of insurance or of indemnity there must be a risk of loss to which one party may be subjected by contingent or future events and an assumption of it by legally binding arrangement by another. Even the most loosely stated conceptions of insurance and indemnity require these elements]. Hazard is essential.... If there is no risk, ... there can be [no] insurance.” Jordan v. Group Health Ass’n, 107 F.2d 239, 245 (D.C.Cir.1939). “The principle of public policy that insurance should only cover fortuitous losses is universally recognized.” Scott C. Turner, Insurance Coverage of Construction Disputes § 3:18 (2011).

That Emerald Coast disclosed the fact that Dakota had been injured at the festival to Wardlow before Wardlow issued the COI makes no difference. While the holding in Nourachi v. First American Title Insurance Co., 44 So.3d 602, 607 (Fla. 5th DCA 2010), rested on “the general principle that a party may not insure against a loss that he knows has already occurred and that he fails to disclose to the insurer,” more is at issue, as observed by Judge Lawson:

This basic doctrine does not arise from a desire to protect an individual insurance company from something akin to fraud, ... but from a recognition that “the insured’s risk is, in a real sense, borne by the insurer’s policyholders as a group, from whose pool of premiums all claims must be paid if the insurer is to remain in business.” In other words, because society as a whole relies on insurance, public policy will not permit a transaction that is anathema to the very concept of insurance which, if allowed in the aggregate, could put insurance at risk for all.

Id. at 610 (Lawson, J., concurring) (citation omitted). See also Burch v. Commonwealth Cnty. Mut. Ins. Co., 450 S.W.2d 838, 840-41 (Tex.1970) (“[I]t is contrary to public policy for an insurance company, the business of which is affected with a public interest, knowingly to assume the burden of a loss that occurred prior to making the contract. This is the basis of the statements found in some opinions that an agent has no authority to issue a policy to cover a known loss.”).

The COI was not “a contract whereby [Interstate undertook] to indemnify [the Club] or pay or allow a specified amount or a determinable benefit upon determinable contingencies,” and therefore it did not meet the definition of “insurance.” At the time the Club requested the COI, it knew Dakota had suffered an injury at the festival it sponsored and that the Club would be legally responsible for any negligence on the part of the Club. See Standard Structural Steel Co. v. Bethlehem, Steel Corp., 597 F.Supp. 164, 191 (D.Conn.1984) (“Damage which is certain and inevitable and which ... proceeds from an inherent vice or infirmity present at the time that the policy was issued as a veritable time-bomb, already set and ticking, ... is not the result o'f a casualty and cannot be covered.”); USAA Cas. Ins. Co. v. McInerney, 355 Ill.Dec. 773, 960 N.E.2d 655, 664 (Ill.App.Ct.2011) (Under the loss-in-progress or “known loss” doctrine, ‘[i]f the insured knows or has reason to know, when it purchases a comprehensive general liability policy, that there is a substantial probability that it will suffer a loss, the risk ceases to be contingent and becomes a probable or known loss that will not be covered by the policy.’ For example, a homeowner cannot insure against flood damage when flooding has already occurred.” (citation omitted)); In re Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 658 (Tex.2005) (“In an insurance arrangement, the insurer is not promising to compensate the insured for an actual, expensive loss in exchange for the relatively small, individual premium paid by the insured. Rather the insurer is assuming the risk ... loss may occur.”). The COI prepared on April 18, 2007, was not effective to create coverage for the Club for an event which had occurred four days before the COI issued.

The final judgment is reversed, and the case is remanded with directions to enter judgment in favor of Interstate, and against Ms. Abernathy, on all claims predicated on the Club’s putative liability.

WETHERELL and RAY, JJ., concur.

      . Judgment was entered in her favor individually and as mother and natural guardian of Dakota Abernathy.

      . See also, e.g., Alaska Stat. § 21.97.900(25) (2011) (defining insurance as “a contract whereby one undertakes to indemnify another or pay or provide a specified or determinable amount or benefit upon determinable contingencies”); Ga.Code Ann. § 33-1-2(2) (2011) (" 'Insurance' means a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another or to pay a specified amount or benefits upon determinable contingencies."); Md.Code Ann., Ins. § 1-101(s) (West 2011) (Insurance is "a contract to indemnify or to pay or provide a specified or determinable amount or benefit on the occurrence of a determinable contingency.”); Or.Rev.Stat. § 731.102(1) (2011) ("Insurance” means "a contract whereby one undertakes to indemnify another or pay or allow a specified or ascertainable amount or benefit upon determinable risk contingencies.”).

      . The Interstate policy stated bodily injury liability limits of two million dollars in the aggregate and one million dollars per occurrence.

      . The certificate of insurance prepared on April 18, 2007, stated, in part:
      THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.... THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.

      THIS IS TO CERTIFY THAT THE POLICIES OR INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY BE REDUCED BY PAID CLAIMS.

      DESCRIPTION OF OPERATIONS/LOCATIONS/ VEHICLES/SPECIAL ITEMS Choctaw Touchdown Club is named as additional insured, but only insofar as the operations under this contract are concerned.
      Operations at Jelly Fish Festival on 4/13/07 to 4/14/07 1 — Rock Wall 1-22' Slide 1-30' x 16' Obstacle Course 1-3 Person Bungee Run 1-3 in 1 Space Jump 1-2 Person Power Jump

      . The parties have referred to this type of agreement as a Coblentz agreement. See Perera v. U.S. Fid. & Guar. Co., 35 So.3d 893, 899-900 (Fla.2010) (citing Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir.1969)).

      . See §§ 624.155(1)(b) 1. & 626.9541, Fla. Stat. (2009).

      .The Club did not assert any written contract between Emerald Coast and the Club, and no evidence suggests that Emerald Coast had orally promised or had, prior to the accident, been requested to add the Club as an additional insured.

      . The bad faith counts stated in the amended complaints had been dismissed without prejudice.

      ."When determining whether a contract violates public policy, it is necessary to carefully balance the public interest with the right to freely contract. Bituminous Cas. Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944). When a contract 'is not prohibited under [a] constitutional or statutory provision, or prior judicial decision, it should not be struck down on the ground that it is contrary to public policy, except it be clearly injurious to the public good or contravene some established interest of society.' Id. at 101.” Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, 67 So.3d 315, 318 (Fla. 2d DCA 2011). See Gessa v. Manor Care of Fla., Inc., 86 So.3d 484 (Fla. 2011) (holding that whether the limitation of liability provisions in arbitration agreement violate public policy is a pure question of law); Chandris, S.A. v. Yanakakis, 668 So.2d 180, 185 (Fla.1995) ("A contract that contravenes an established interest of society can be found to be void as against public policy.”); Am. Cas. Co. v. Coastal Caisson Drill Co., 542 So.2d 957, 958 (Fla.1989) ("We can, however, find a contract that contravenes an established interest of society void as against public policy.”). See also United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42-44, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) ("[A] court may refuse to enforce contracts that violate law or public policy. That doctrine derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public’s interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements.... [The public] policy must be ‘ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests.” ’ " (citations omitted)).

      . "Contingency" is defined as “[a]n event that may or may not occur; a possibility,” and the "condition of being dependent on chance; uncertainty.” Black’s Law Dictionary 315 (7th ed.1999). "Contingent” is defined as "[p]ossible; uncertain; unpredictable” or "conditional.” Id.

      . The Florida Legislature has preempted the field of regulating insurers and their agents and representatives, and no person may transact insurance without complying with applicable statutory provisions and obtaining a certificate of authority. See §§ 624.11 & 624.401, Fla. Stat. (2011).

      . Florida Financial Services Commission, http://www.oppaga.state.fl.us/profiles/4137/ (last visited May 1, 2012).

      . Id.

      . Florida Office of Insurance Regulation Mission Statement, http://www.floir.com/ Office/MissionStatement.aspx (last visited May 1, 2012).

      . Florida Insurance Guaranty Association, http://www.figafacts.com/ (last visited May 1, 2012). "Since inception of the property and casualty guaranty association system, there have been about 600 insolvencies. In all, the system has paid out about $24.2 billion.” Florida Insurance Guaranty Association, Frequently Asked Questions, http://www.figafacts. com/faq (follow "How prevalent are insurance insolvencies?”) (last visited May 1, 2012).


author: PER CURIAM.

text:
    Shimeek GRIDINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2517.
    District Court of Appeal of Florida, First District.
    May 29, 2012.
    Rehearing Denied May 29, 2012.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   On Motion for Kehearing and Certification

PER CURIAM.

Having considered appellant’s motion for rehearing and certification, we deny the motion for rehearing but grant the motion to certify a question of great public importance to the Florida Supreme Court.

We hereby certify the following question to be one of great public importance:

DOES THE UNITED STATES SUPREME COURT DECISION IN Graham, v. Florida, — U.S.—, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), PROHIBIT SENTENCING A FOURTEEN-YEAR-OLD TO A PRISON SENTENCE OF SEVENTY YEARS FOR THE CRIME OF ATTEMPTED FIRST-DEGREE MURDER?

WOLF, ROBERTS, and MAKAR, JJ., concur.


text:
    Nicholas DIMONDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-388.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Nicholas Dimonda, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion to correct illegal sentence. Without passing on the merits of appellant’s claim that he did not knowingly or voluntarily enter a plea, the denial is without prejudice to his right to file a rule 3.850 motion in the trial court, should that be appropriate, within thirty (30) days of this opinion. See Fla. R.Crim. P. 3.850.

Affirmed.

STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Billy D. OWENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6506.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Rehearing Denied Aug. 8, 2012.
    Billy D. Owens, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied. The denial of a motion to dismiss is not an appealable order. See Fla. R.App. P. 9.140(b). As the petition fails to allege that Owens requested that his attorney file an appeal of the judgment and sentence (as opposed to the order denying the motion to dismiss), the petition is denied.

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    GOOD TO GO FOOD STORE, INC., Appellant, v. LRM REALTY, LLP, Appellee.
    No. 2D11-1917.
    District Court of Appeal of Florida, Second District.
    June 13, 2012.
    Rehearing Denied July 25, 2012.
    David A. Geller of The Geller Law Group, P.A., Hollywood, for Appellant.

      John D. Agnew and Suzanne M. Boy of Henderson, Franklin, Starnes & Holt, PA., Fort Myers, for Appellee.
   LaROSE, Judge.

Good To Go Food Store, Inc., appeals a final judgment for possession entered by the circuit court in favor of LRM Realty, LLP. We have jurisdiction, see Fla. R.App. P. 9.030(b)(1)(A), and affirm.

This case involves a commercial tenancy dispute. Good To Go leased property from LRM pursuant to a month-to-month tenancy, following the expiration of a 1993 written lease. The month-to-month tenancy relied upon the provisions of the written lease to define the parties’ rights and obligations. LRM terminated the month-to-month tenancy in October 2010. Despite receiving notice, Good To Go failed to vacate the property. LRM sued in county court, seeking Good To Go’s removal and recovery of past due rents. See §§ 83.06, .21, Fla. Stat. (2010).

Good To Go moved to dismiss, alleging, among other matters, that the complaint failed to state a cause of action because it did not attach a copy of the month-to-month lease. LRM filed a motion to determine rents, asserting that the then unpaid rent totalled $11,682.12. LRM sought double rents, pursuant to section 83.06.

The county court denied Good To Go’s motion to dismiss, granted LRM’s motion to determine rents, and ordered Good To Go to deposit past due rents of $11,682.12 into the court registry. See § 83.232. Good To Go did not comply. Instead, it filed a second motion to dismiss, challenging the county court’s jurisdiction; Good To Go claimed that double rent would total $23,364.24, an amount above the county court’s $15,000 jurisdictional limit. See §§ 34.01(l)(c), .011, Fla. Stat. (2010). LRM filed and the county court granted a motion to transfer the action to circuit court pursuant to Florida Rules of Civil Procedure 1.060(a) and 1.170(j). The circuit court then adopted the county court’s order requiring Good To Go to deposit $11,682.12 into the court registry. Thereafter, it entered a final judgment for possession.

Good To Go argues that the final judgment is void because the county court lacked jurisdiction. Because the circuit court adopted and enforced a void order, Good To Go argues that the circuit court’s order and judgment is also void. Additionally, Good To Go argues that LRM failed to state a cause of action by failing to comply with the pleading requirements of Florida law and failed to plead the amount of past due rents. We are not persuaded.

Good To Go premises its first argument on the fact that double rent would exceed the county court’s jurisdiction amount. But, the county court properly transferred the action to the circuit court. See Fla. R. Civ. P. 1.060(a), 1.170(j). Furthermore, the county court’s order to deposit past due rents specified an amount less than $15,000. The county court’s order was not void, and the circuit court’s order was not based on a void order.

We also reject Good To Go’s second argument that the complaint failed to state a cause of action and failed to comply with Florida pleading requirements. LRM attached the written lease to the complaint and alleged how it formed the basis of the month-to-month tenancy. LRM also attached to the complaint a letter to Good To Go, advising that the month-to-month tenancy was being terminated. LRM also alleged the amount of then due rent due in its motion for deposit of rents into the court’s registry.

LRM was not required to follow verbatim form 1.947, as Good To Go suggests. See Fla. R. Civ. P. 1.900(b) (providing that “forms are sufficient for the matters that are covered by them. So long as the substance is expressed without prolixity, the forms may be varied to meet the facts of a particular case.”); Gomes v. LeGrand, 560 So.2d 389, 389 (Fla. 1st DCA 1990) (holding that complaint that alleged existence of agreement to pay rent and failure to pay that rent stated cause of action); Thrasher v. First Nat’l Bank of Miami, 288 So.2d 288, 288-89 (Fla. 3d DCA 1974) (for purposes of motion to dismiss complaint for failure to state cause of action, all allegations in complaint are taken to be true and all reasonable inferences are permitted on behalf of plaintiff; failure of complaint in conversion action to allege value of automobile allegedly converted was not fatal under forms; citing rules 1.900(b), 1.939); Cabot v. Clearwater Constr. Co., 89 So.2d 662, 664 (Fla.1956) (“Now the objective of all pleading is merely to provide a method for setting out the opposing contentions of the parties. No longer are we concerned with the ‘tricks and technicalities of the trade[.’] The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.”).

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.


author: GERBER, J.

text:
    Jose BRIBIESCA-TAFOLLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2243.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Rehearing Denied Aug. 17, 2012.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion fob Rehearing

GERBER, J.

We grant in part and deny in part the defendant’s motion for rehearing. We withdraw our April 18, 2012 opinion and substitute the following opinion with corrected facts regarding the location of the defendant’s home. We have modified our legal analysis accordingly.

The defendant appeals his convictions for two counts of driving under the influence causing serious bodily injury. He argues that the state’s evidence was insufficient to prove the corpus delicti of the crime before the trial court allowed the state to introduce his admission of being the driver of the truck which caused the crash. We conclude that the state’s evidence was sufficient to prove corpus de-licti. We affirm.

The state presented the following evidence primarily through the investigating officer. At 7:10 a.m., the defendant and his friend were in a truck traveling southbound on U.S. 1 in Jupiter. The truck crossed into the northbound lane and struck a car, causing serious bodily injury to the car’s two occupants. The truck then flipped, and the defendant and his friend were ejected. The truck then struck another car.

The two cars’ occupants did not see who was driving the truck at the time of the crash. The police also were unable to identify who was driving the truck based on the locations where the defendant and his friend were found after the crash.

The defendant and his friend were taken to a hospital. There, the officer first met with the defendant’s wife. According to the wife, sometime between 2:00 and 2:30 a.m., the defendant received a phone call at their home in Fort Pierce. He told his wife that he was leaving to pick up a friend, and that they were going to play soccer in Jupiter later that day. His wife knew that the friend lived close to their home in Fort Pierce. The defendant then left in a truck registered to his wife. He was alone when he left.

The officer then met with the defendant. The defendant appeared to be impaired based on his bloodshot eyes, the odor of an alcoholic beverage on his breath, and how he spoke to the police. A sample of the defendant’s blood was taken later. The sample showed that, five hours after the crash, the defendant’s blood alcohol level was .13. A sample of the defendant’s friend’s blood was not taken.

The officer read the defendant his Miranda warnings, and the defendant agreed to speak with the officer. Before the officer could testify further, the defendant objected. At sidebar, the defendant said that the officer was about to testify regarding the defendant’s admission of being the driver of the .truck at the time of the crash. The defendant argued that the state’s evidence up to that point was insufficient to prove the corpus delicti of the crime without the defendant’s admission.

The trial court overruled the objection. The court recognized that the state’s evidence of who drove the truck at the time of the crash was circumstantial. However, the court found that the state’s evidence was sufficient, reasoning: “[The defendant’s wife] owns the car. She allows [him] to use it. He left alone.”

Following the ruling, the officer continued his testimony in front of the jury. According to the officer, the defendant admitted to driving the truck that caused the crash.

The state charged the defendant with five DUI counts: counts one and two— DUI causing serious bodily injury to the first car’s occupants; count three — DUI causing serious bodily injury to the defendant’s friend; count four — DUI causing damage to the second car; and count five — DUI causing damage to property owned by the Town of Jupiter.

The jury found the defendant guilty as charged of counts one and two, and guilty of the lesser included offenses of DUI in counts three, four, and five. The trial court dismissed counts three, four, and five as violating double jeopardy. The court then adjudicated and sentenced the defendant. on counts one and two.

This appeal followed. The defendant argues that the state’s evidence was insufficient to prove the corpus delicti of DUI causing serious bodily injury before the trial court allowed the state to introduce his admission of being the driver of the truck at the time of the crash. We review the trial court’s decision for an abuse of discretion. See Tanzi v. State, 964 So.2d 106, 116 (Fla.2007) (“[T]he trial court did not abuse its discretion in finding the corpus delicti and admitting [the defendant’s] confession”).

We conclude that the trial court did not abuse its discretion in finding the state’s evidence sufficient to prove the corpus de-licti of DUI causing serious bodily injury before allowing the state to introduce the defendant’s admission of being the driver of the truck at the time of the crash. We base our conclusion on a review of corpus delicti and its application in other driving under the influence cases.

Corpus delicti “means literally ‘the body of the crime.’ It is regularly used in appellate decisions to mean the legal elements necessary to show that a crime was committed.” State v. Allen, 335 So.2d 823, 824 n. 2 (Fla.1976). “[B]efore a confession is admitted the state has the burden of proving by substantial evidence that a crime was committed.” Id. at 824. “[S]uch proof may be in the form of circumstantial evidence.” Id. The identification of the defendant as the guilty party is not a necessary predicate for the admission of a confession. Id. at 825. Instead, the state need only “bring forth ‘substantial evidence’ tending to show the commission of the charged crime.” Id. (footnote omitted). This “substantial evidence” standard “does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.” Id. (footnote omitted).

Thus, we turn to the elements of the crime of driving under the influence causing serious bodily injury. The elements are met if: (1) a person driving or in actual physical control of a vehicle, (2) who was under the influence of alcoholic beverages to the extent that the person’s normal faculties are impaired or has a blood or breath alcohol level of .08 or more, (3) causes or contributes to causing serious bodily injury to another person as a result of operating the vehicle. Esler v. State, 915 So.2d 637, 640 (Fla. 2d DCA 2005); Fla. Std. Jury Instr. (Crim.) 28.3 (2010); §§ 316.193(1) and 316.193(3)(a), (3)(b), (3)(c)2., Fla. Stat. (2010).

Here, the first and second elements are at issue. If the state possessed evidence that both the defendant and his friend were impaired or had a blood or breath alcohol level of .08, then it would have been unnecessary for the state to prove which of the two men — the defendant or his friend — drove the truck at the time of the crash. See State v. Walton, 42 So.3d 902, 909 (Fla. 2d DCA 2010) (the exact identity of the driver of a car which caused a crash was not necessary to establish that DUI with serious bodily injury had occurred where all three occupants of the car “had been drinking, had been smoking marijuana, and showed signs of impairment”).

However, the state did not possess evidence that the defendant’s friend was impaired or had a blood or breath alcohol level of .08. Therefore, with the state possessing evidence that only the defendant was impaired or had a blood or breath alcohol level of .08, the state had to prove by substantial evidence that the defendant drove the truck at the time of the crash before the court could allow the state to introduce the defendant’s admission to that effect. See id. at 907 (although identifying a defendant as the driver generally is not a necessary predicate to the introduction of the defendant’s admission, such identification may be a necessary predicate if the defendant’s identity as the driver is critical to establishing that a crime occurred).

Here, we conclude that the state proved by substantial evidence that the defendant drove the truck at the time of the crash. The state met this burden of proof using a combination of three pieces of circumstantial evidence.

First, the state showed that the defendant was driving the truck when he left his home four to five hours before the crash. We recognize there is no exact amount of time by which to measure the likelihood that a defendant was driving a vehicle at the time of a crash. Compare Allen, 335 So.2d at 825 (corpus delicti shown where, among other things, the defendant was seen driving the car earlier in the day and was seen entering the vehicle’s driver’s side within five to ten minutes of the crash), with State v. Hepburn, 460 So.2d 422, 426 (Fla. 5th DCA 1984) (corpus de-licti not shown where, among other things, the defendant was not known to be in possession of the vehicle until the day after the accident). However, we consider the four to five hour period to be significant here because it provided the defendant with a sufficient amount of time to leave his home in Fort Pierce, pick up his friend, and then drive to Jupiter by the time of the crash.

Second, the state showed that the defendant’s course of travel at the time of the crash was consistent with his statement to his wife that he intended to leave his home in Fort Pierce, pick up his friend, and then drive to Jupiter. At least one court has found a defendant’s course of travel to be significant in determining whether the defendant was driving the subject vehicle. See Syverud v. State, 987 So.2d 1250, 1252 (Fla. 5th DCA 2008) (corpus delicti shown where, among other things, the crash occurred on the only direct route from the place the defendant was seen earlier in the day to his home).

Third, the state showed that the truck in which the defendant was traveling was registered to his wife. We recognize that the fifth district has issued two opinions where the fact of a spouse’s ownership or registration of a subject vehicle resulted in two different outcomes as to whether corpus delicti was shown. Compare Syverud, 987 So.2d at 1252 (corpus delicti shown where, among other things, the defendant’s wife was the vehicle’s owner), with Hepburn, 460 So.2d at 426 (corpus delicti not shown where, among other things, the vehicle was registered to the defendant’s husband). However, we believe that a spouse’s ownership or registration of the subject vehicle should weigh in favor of determining that corpus delicti was shown in cases such as these.

While these three pieces of circumstantial evidence, by themselves, might not have been sufficient to prove beyond a reasonable doubt that the defendant drove the truck at the time of the crash, we conclude that they are, in the aggregate, sufficient circumstantial evidence to lay the predicate for the admission into evidence of the defendant’s admission to that effect. See Allen, 335 So.2d at 825-26 (“While the facts just recited might not constitute proof beyond a reasonable doubt that [the defendant] was driving the vehicle at the time of the accident ... they are in the aggregate sufficient circumstantial evidence to lay the predicate for the admission into evidence of [the defendant’s] confession that he was the driver.”) (footnote omitted).

In reaching this conclusion, however, we are compelled to note that, in some cases, courts have considered eyewitness identification and the location of bodies after a crash to be significant in determining whether sufficient circumstantial evidence exists to prove that the defendant was the driver. Compare Allen, 335 So.2d at 825 (corpus delicti shown where, among other things, the defendant was seen entering the vehicle’s driver’s side within five to ten minutes of the crash and was found at the crash site with his feet on the driver’s side, whereas the passenger’s body was found several feet from the vehicle), with State v. Colorado, 890 So.2d 468, 470-72 (Fla. 2d DCA 2004) (corpus delicti not shown where, among other things, no witnesses could identify the defendant as having driven the vehicle at any time and the state did not argue that it could meet its burden of proof based on the bodies’ locations). Here, the two cars’ occupants did not see who was driving the truck, and the police were unable to identify who was driving the truck based on the locations where the defendant and his friend were found after the crash.

However, we do not consider the lack of eyewitness identification and the police’s inability to identify who was driving the truck as precluding the state from relying on the circumstantial evidence cited above to establish a preliminary showing that the defendant was driving the truck at the time of the crash. As our supreme court stated in Allen:

We are well aware that varying interpretations of circumstantial evidence are always possible in a case which involved no eye witnesses. Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.

335 So.2d at 826.

Based on the foregoing, we conclude that the trial court did not abuse its discretion in finding the state’s evidence sufficient to prove the corpus delicti of DUI causing serious bodily injury before allowing the state to introduce the defendant’s admission of being the driver of the truck at the time of the crash. We affirm.

Affirmed.

MAY, C.J., and DAMOORGIAN, JJ., concur.


author: SWANSON, J.

text:
    FT INVESTMENTS, INC., Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 1D11-3052.
    District Court of Appeal of Florida, First District.
    June 14, 2012.
    Rehearing Denied Aug. 8, 2012.

      Robert D. Fingar of Guilday, Tucker, Schwartz & Simpson, Tallahassee, for Appellant.
    Kellie D. Scott, Senior Assistant General Counsel, and Janet Tashner, Senior Assistant General Counsel, Tallahassee, for Ap-pellee.
   SWANSON, J.

Appellant, FT Investments, Inc., seeks review of a final order of the Department of Environmental Protection finding appellant strictly liable for petroleum contamination on property purchased by appellant. Although conceding it did not qualify for the “innocent purchaser defense” under section 376.308(1)(c), Florida Statutes, because it knew of the petroleum contamination before it purchased the property, appellant argues it did qualify for the “third party defense” under section 376.308(2)(d), Florida Statutes, because the petroleum contamination was caused solely by the acts or omissions of a third party. We disagree and affirm.

In 1999, appellant purchased property containing an underground petroleum storage tank system for a gasoline service station that operated on the property from 1968 to 1980. Prior to purchasing the property, appellant contracted for an environmental assessment of the property, which revealed petroleum contamination. Appellant did not report the discovery of the petroleum contamination until 2003, when it submitted an application for eligibility in the Petroleum Cleanup Participation Program. The Department denied the application and later initiated an administrative enforcement action to compel appellant to undertake assessment and remediation of the reported petroleum contamination. After it was determined that there were no disputed issues of material fact, the Department assigned a presiding officer to conduct an informal proceeding. Appellant argued it was entitled to a third party defense to strict liability for the petroleum contamination under section 376.308(2)(d) because the petroleum contamination was caused solely by the acts or omissions of a third party. However, the presiding officer issued a final order concluding that appellant’s knowing purchase of contaminated property, which precluded the assertion of an innocent purchaser defense under section 376.308(1)(c), also precluded the assertion of a third party defense under section 376.308(2)(d). Alternatively, the final order concluded that even if appellant could assert a third party defense, appellant failed to exercise due care with respect to the contamination. This appeal followed.

Created in 1992, the innocent purchaser defense of section 376.308(l)(c) protects the purchaser of contaminated petroleum and drycleaning sites from strict liability under the statute if the purchaser can show that it (1) acquired title to property contaminated by the activities of a previous owner, operator, or third party; (2) did not cause or contribute to the discharge; and (3) did not know of the polluting condition at the time it acquired title after conducting an appropriate inquiry. Ch. 92-30, § 10, at 223, Laws of Fla. Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20, 24 (Fla.2004). Because the innocent purchaser defense is limited to petroleum and drycleaning sites, purchasers of other contaminated sites remain strictly liable unless they fall within one of the other defenses listed in section 376.308. Aramark, 894 So.2d at 24. Of these, the third party defense of section 376.308(2)(d) allows a defendant to escape liability if it can show that (1) a third party’s act or omission was the sole cause of the contamination; (2) the defendant exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such pollutant, in light of all relevant facts and circumstances; and (3) the defendant took precautions against any foreseeable acts or omissions of any such third party and against the consequences that could fore-seeably result from such acts or omissions. Id. The third party defense preexisted the innocent purchaser defense and carried over, essentially unchanged, from earlier versions of the statute. See § 376.308(4), Fla. Stat. (1991). See also Sunshine Jr. Stores, Inc. v. State, Dep’t of Envtl. Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990) (en banc) (applying the third party defense of section 376.308(4) to the purchase of petroleum contaminated property).

Appellant asserts the third party defense is distinct and independent from the innocent purchaser defense and its knowledge of the contamination prior to purchase, while precluding it from asserting the innocent purchaser defense, did not prevent it from asserting the third party defense. However, we cannot agree. When it amended section 376.308 to explicitly provide an innocent purchaser defense, the legislature expressed the clear intent that a purchaser of property must establish he or she did not have knowledge of the petroleum contamination after making an appropriate inquiry, essentially adopting Judge Ervin’s position in his dissenting opinion in Sunshine. 556 So.2d at 1184. This requirement would be rendered superfluous if a purchaser could simply circumvent it by asserting a third party defense. A basic rule of statutory construction provides the legislature does not intend to enact useless provisions, and courts should avoid interpretations that would render part of a statute meaningless. State v. Goode, 830 So.2d 817, 824 (Fla.2002). Moreover, a statute should be interpreted to give effect to all of its provisions. Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996). Accord Aramark, 894 So.2d at 25. Accordingly, we conclude appellant could not use the third party defense as a means of avoiding strict liability when it knew of the petroleum contamination before it purchased the property. This properly places the burden on prospective purchasers of petroleum contaminated property to pursue reasonable options to minimize liability, such as negotiating a lower sales price, obtaining insurance, or simply choosing not to proceed with the purchase. Because the third party defense was not available to appellant, we do not reach the issue of whether appellant established due care.

AFFIRMED.

BENTON, C.J., and THOMAS, J., concur.