author: LaROSE, Judge.

text:
    Lloyd BEVERLY and Edith Beverly, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 2D09-2317.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2010.
    Rehearing Denied Jan. 3, 2011.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, and David J. Petti-nato of Merlin Law Group, P.A., Tampa, for Appellants.
    Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tampa, for Appellee.
   LaROSE, Judge.

Lloyd and Edith Beverly appeal a final summary judgment entered in favor of State Farm Florida Insurance Company. The Beverlys sued State Farm for insurance benefits after their home sustained hurricane damage. They also sought attorney’s fees under section 627.428, Florida Statutes (2004). Summary judgment was improper because genuine issues of material fact remain unresolved. Accordingly, we reverse.

Summary Judgment Standard

Summary judgment is proper only “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Clifton v. United Cas. Ins. Co. of Am., 31 So.3d 826, 828 (Fla. 2d DCA 2010). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); see also Clifton, 31 So.3d at 828 (“Even the slightest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.”). We review a summary judgment de novo. Suncoast Auto Ctr., Inc. v. Consol. Prop. & Cas. Ins. Co., 880 So.2d 728, 730 (Fla. 2d DCA 2004).

Factual Background

' Hurricane Charley blew through the Beverlys’ home on August 13, 2004. In addition to damage to their residence, the Beverlys suffered damage to a barn, trailers, shed, and personal property. They reported the loss to State Farm within three days. The Beverlys contend that upon initial inspection of their home on August 19, 2004, State Farm’s adjuster told them that the barn, shed, fencing, and trailers were not covered under the policy. According to the Beverlys, the adjuster also refused to advance living expenses. For its part, State Farm claims that it promptly advanced $3000 for emergency expenses and began adjusting the loss.

The Beverlys note that they submitted a personal property inventory form with line-item detail on August 23, 2004. Yet, they say, as of September 1, 2004, State Farm had paid no benefits. The Beverlys then hired a public adjuster, Epic, to assist them. On September 20, 2004, State Farm wrote to Epic, advising that the Beverlys had not yet provided a sworn statement in proof of loss required by the policy. Apparently, the Beverlys delivered a proof of loss on September 29, 2004; according to State Farm, they did not provide supporting details or documents. See swpra note 1. The Beverlys counter that on September 29, 2004, they delivered their sworn statement in proof of loss for $511,500 and $341,000 actual cash value and attached a line-item dwelling damage estimate.

The Beverlys sued State Farm on October 1, 2004, six weeks after the loss. Within a few days, State Farm received an engineering report evaluating structural damage to the Beverlys’ home. On November 5, 2004, State Farm paid the Bev-erlys $46,014.11. In the correspondence accompanying the payment, State Farm advised the Beverlys that the proof of loss was deficient, noted the applicable policy requirements, and requested compliance.

A week later, on November 12, 2004, State Farm wrote the Beverlys to request the specific amounts claimed and documentation for expenses required to be incurred before payment, such as additional living expenses (ALE). The Beverlys responded on November 14, 2004:

Mr. and Mrs. Beverly acknowledge State Farm’s request for what they believe are their total damages. To help Mr. and Mrs. Beverly out, and assist them coming to an informed decision on their total damages, they kindly request that State Farm provide them with all of State Farm’s estimates, opinions, photographs of the damages, or anything else State Farm may have (it uses to calculate damages) that will help Mr. and Mrs. Beverly calculate their total damages.

On November 22, 2004, State Farm met the Beverlys and Epic to inspect some of the damaged personal property and to review ALE receipts. The next day, State Farm paid the Beverlys $65,217.98 for building damage and ALE of $266.16.

In early May 2005, the Beverlys sent State Farm an estimate claiming $594,993.20 in damages. By July 2005, the Beverlys and State Farm still could not agree on the amount of loss.

State Farm then invoked the appraisal process of the policy. The Beverlys agreed but insisted that the appraisal address all coverages, including ALE. State Farm contended that ALE coverage was not disputed because State Farm reimbursed expenses as the Beverlys incurred them and submitted receipts. The trial court ordered appraisal for all coverages.

On August 26, 2005, the Beverlys advised State Farm that they were selling the home without repair. Four days later, State Farm wrote the Beverlys to advise that it had paid all ALE for which receipts had been submitted.

On June 8, 2006, the appraisers issued a partial award. The award listed replacement cost for the residence at $400,000 and $380,000 as its cash value, $55,000 replacement value and $45,000 cash value for the barn and shed, $22,500 for demolition and debris removal, and incurred costs for ALE and code upgrades. On August 7, 2006, State Farm paid the policy limits of $309,916 for the building, $30,992 for the dwelling extensions, and $15,495.80 for debris removal, and paid $6796.28 for contents and $266.16 ALE for generator gas, less prior payments.

On September 13, 2006, the appraisers issued a second partial appraisal award of $80,116.52 for the actual cash value of personal property. On November 10, 2006, State Farm paid this award, less prior payments. With each payment, State Farm asked the Beverlys to contact it if they disagreed with the amounts paid. They did not respond until December 2006, when they advised State Farm that it owed over $20,000, for which they claimed they had already provided documentation. This amount included $8190.40 in ALE for cleanup expenses, drinking water, documentary photographs, water chlorination, pool shock, generator fuel, and replacement of spoiled food and damaged clothing. State Farm claims to have sent seven letters requesting clarification and supporting documentation, to which the Bev-erlys did not respond.

The Beverlys filed an amended complaint on April 11, 2007, claiming $5078.36 in ALE for photographs, groceries, gasoline, drinking water, water chlorination, pool supplies, cleanup supplies, clothing, and medications. On April 23, 2007, State Farm filed a motion to compel a further appraisal. The trial court granted State Farm’s motion.

On June 18, 2008, the Beverlys’ appraiser sent State Farm’s appraiser a spreadsheet claiming State Farm owed another $117,874.14 for ALE, but did not include supporting documents. On July 2, 2008, the Beverlys’ appraiser provided a revised spreadsheet showing $97,159.09 for ALE and included supporting receipts. On August 6, 2008, the Beverlys’ appraiser provided two additional spreadsheets containing their final ALE demand of $141,629.57. On February 2, 2009, the appraisers issued a third award of $674.03. On March 5, 2009, State Farm paid $407.87, the award amount less prior payments.

Motion for Summary Judgment

State Farm filed a motion for summary judgment on November 29, 2006, and an amended motion on April 6, 2009, arguing that suit was premature, that the Beverlys failed to comply with policy conditions, and that State Farm did not breach the policy because it never denied coverage and paid the appraisal awards timely.

The Beverlys responded that State Farm was not entitled to summary judgment and could not avoid its obligation to pay attorney’s fees because initially it denied coverage for the barn and shed, it waived proof of loss by paying benefits without one, and it confessed judgment by tendering additional benefits after the lawsuit was filed. The Beverlys filed a cross-motion for partial summary judgment addressing numerous issues, including breach of contract and fraud. The trial court denied the Beverlys’ motion and granted summary judgment to State Farm. The trial court made no written or oral findings setting forth the undisputed material facts supporting its ruling.

Analysis

We surmise that, at its core, this case is about attorney’s fees under section 627.428. A trilogy of our cases governs entitlement to attorney’s fees where an insurer pays policy proceeds after suit is filed. In Goff v. State Farm Florida Insurance Co., 999 So.2d 684 (Fla. 2d DCA 2008), the Goffs’ home sustained hurricane damage. The parties disputed the amount of the actual cash value of the damage payable immediately upon loss and whether contractor overhead and profit were part of actual cash value. Id. at 686. The Goffs filed suit for breach of contract and a declaratory judgment regarding overhead and profit. Id. The Goffs moved for summary judgment on remaining unpaid benefits and for section 627.428 attorney’s fees, arguing that their lawsuit forced State Farm to pay significant additional amounts. 999 So.2d at 687. State Farm also moved for summary judgment, asserting that the lawsuit was unnecessary because it had complied with all policy terms and that the appraisal process, and not the lawsuit, prompted a resolution. Id. The trial court granted summary judgment to State Farm. Id. On appeal, we affirmed the summary judgment ruling that State Farm owed no additional benefits; we reversed the summary judgment on attorney’s fees, holding that State Farm paid disputed benefits to which the Goffs were entitled only after the Goffs were forced to sue. Id. at 688.

About two years later, we decided Clifton v. United Casualty Insurance Co. of America, 31 So.3d 826 (Fla. 2d DCA 2010). In that case, Mr. Clifton sued United seeking additional policy proceeds for hurricane damage to his home. Id. at 827. After United invoked an appraisal process that resulted in an award to Mr. Clifton, he filed a motion to confirm the appraisal award and for attorney’s fees. Id. United filed a motion for summary judgment alleging that it was not responsible for attorney’s fees because it had not wrongfully withheld benefits and that Mr. Clifton could not prove it breached the policy or that he suffered any damages because United had paid all of the amounts due. Id. at 828. In response, Mr. Clifton filed an affidavit asserting that United had refused to respond to his pleas for additional policy proceeds until after he filed suit. Id. United disputed this assertion and claimed that it had no notice that Mr. Clifton was dissatisfied until he filed suit, but the only affidavit supporting its position had been withdrawn and the record showed United had paid significant sums to Mr. Clifton after he filed suit. Id. The trial court granted summary judgment for United, finding that it had not breached the policy because it had complied with policy payment terms. Id. On appeal, we reversed and remanded, holding that fact issues remained as to whether Mr. Clifton was forced to file suit to resolve the dispute with United, precluding summary judgment.

The third case is Hill v. State Farm Florida Insurance Co., 35 So.3d 956 (Fla. 2d DCA 2010). In Hill, the only issue on appeal was “whether the final judgment confirming the previously paid insurance appraisal [was] a confession of judgment or otherwise an event that entitle[d] Ms. Hill to a judgment to receive an award of [section 627.428] attorneys’ fees.” Id. at 960. Because the judgment was entered before Goff and Clifton, we reversed and remanded the case “for a renewed determination of whether Ms. Hill filed her lawsuit in good faith in order to force State Farm to adjust the claim or whether she filed suit merely as an effort to seek attorneys’ fees for the normal process of adjusting the claim.” Hill, 35 So.3d at 958. We wrote:

Adjusting and settling property claims under insurance policies is never an easy process. It requires a level of good faith and cooperation from all parties. The law does not provide any general mechanism to impose attorneys’ fees against one party or the other merely because the negotiation process is difficult. It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award of fees under section 627.428....
The line between rigorous negotiations and breach of contract is undoubtedly difficult to describe and it is a determination that is fact intensive.... The fees we envisioned in Goff were the fees necessary to force State Farm back to the negotiations table to resolve the dispute within the terras of the insurance contract. The appraisal process, for example, is not legal work arising from an insurance company’s denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim. Thus, except under the most extraordinary of circumstance, we do not envision fees for such work to be recoverable under the rule announced in Goff.

Id. at 960-61 (internal citations omitted).

This trilogy establishes that an insurer’s post-suit payment of additional policy proceeds entitles the insured to section 627.428 attorney’s fees where the insurer “wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.” See Clifton, 31 So.3d at 829 (citing First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007)); see also Hill, 35 So.3d at 960-61; Goff, 999 So.2d at 688. Here, State Farm asserts that it never denied coverage and that the Beverlys repeatedly failed to comply with policy conditions for payment. The Bever-lys assert that State Farm denied coverage for the barn, shed, fencing, and trailers, and that they timely provided State Farm with the required documentation. Significant factual issues remain unresolved. Therefore, as in Clifton and Hill, we must reverse because material questions of fact remain as to whether the Beverlys were forced to file suit to resolve their claim under the insurance policy.

Reversed and remanded for further proceedings.

CASANUEVA, C.J., and KHOUZAM, J., Concur.

      . The policy specified:
      SECTION I — CONDITIONS
      2. Your Duties After Loss. After a loss to which this insurance may apply, you shall see that the following duties are performed:

      d. as often as we reasonably require:
      (2)provide us with records and documents we request and permit us to make copies;

      e. submit to us, within 60 days after the loss, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
      (1) the time and cause of loss;
      (2) interest of the insured and all others in the property involved and all encumbrances on the property;
      (3) other insurance which may cover the loss;
      (4) changes in title or occupancy of the property during the term of this policy;
      (5) specifications of any damaged building and detailed estimates for repair of the damage;
      (6) an inventory of damaged or stolen personal property described in 2.c.;
      (7) receipts for additional living expenses incurred and records supporting the fair rental value loss;
      (8) evidence or affidavit supporting a claim under the Credit Card, Bank Fund Transfer Card, Forgery and Counterfeit Money coverage, stating the amount and cause of loss.

      8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions.

      . SECTION I □ CONDITIONS

      6. Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser.

      . The Beverlys did not cross-appeal the denial of their motion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Andre FLORENCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2707.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Rehearing Denied Jan. 6, 2011.
    Andre Florence, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(B).

BENTON, PADOVANO, and CLARK, JJ., concur.


author: WOLF, J.

text:
    Jose GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2490.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2010.
    Rehearing Denied Jan. 10, 2011.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

We affirm but address one issue: whether appellant’s sentence of life in prison for first-degree premeditated murder, which he committed as a juvenile, violates federal and state prohibitions against cruel and unusual punishment.

“[Cjases addressing the proportionality of sentences fall within two general classifications.” Graham v. Florida, — U.S.-,-, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). “The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case.... The second classification of cases has used categorical rules to define Eighth Amendment standards.” Id. at 2021-22.

Appellant’s life sentence for first-degree premeditated murder is not categorically barred because he was a juvenile. In Roper v. Simmons, 543 U.S. 551, 578-579, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Supreme Court found categorically the “imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed” was unconstitutional, but affirmed a life sentence for the juvenile offender. Recently in Graham, the Supreme Court found categorically “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 130 S.Ct. at 2034 (emphasis added).

However, appellant argues his sentence was grossly disproportionate given the circumstances in his particular case. He notes that in a post-Miranda statement to police, he stated he was intoxicated at the time he committed the murder. He also notes during sentencing, his counsel asserted generally that he “may” have a mental disorder which testing would “probably” reveal.

The State presented evidence that appellant, who was 16 years old at the time, killed the victim by stabbing him 12 times. The victim was a 49-year-old man in poor health who weighed only 108 pounds. In a post-Miranda interview, appellant told police he decided to seek out and kill the victim because he wanted revenge for a racist comment the victim previously made towards him.

“[A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Courts “analyze [grossly disproportionate] claims with ‘substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.’ ” Adaway v. State, 902 So.2d 746, 748 (Fla.2005) (quoting Solem, 463 U.S. at 290, 103 S.Ct. 3001).

The Supreme “Court has held unconstitutional a life without parole sentence for the defendant’s seventh nonviolent felony, the crime of passing a worthless check. In other cases, however, it has been difficult for the challenger to establish a lack of proportionality.” Graham, 130 S.Ct. at 2021 (citation omitted). In Adaway, 902 So.2d at 751, the Florida Supreme Court found a life sentence for capital sexual battery of a child less than 12 years of age was not cruel and unusual punishment, noting the United States Supreme Court “has upheld a life sentence without the possibility of parole for the possession of 672 grams (about 1.5 pounds) of cocaine ... and a sentence of twenty-five years to life for shoplifting three golf clubs.” (Internal citations omitted). The court concluded, “[t]o classify Adaway’s life sentence without parole as grossly disproportionate, we would have to conclude that an adult’s oral union with the vagina of an eleven-year-old girl is an objectively lesser offense ... Adaway’s sexual abuse arguably constitutes a substantially greater offense.” Id.

Therefore, to find appellant’s sentence is grossly disproportionate, this court would have to find the premeditated first-degree murder committed by appellant is an objectively lesser offense than possession of cocaine or shoplifting. Clearly, it is a substantially greater offense.

Courts have similarly found a life sentence for first-degree murder is not grossly disproportionate. In Phillips v. State, 807 So.2d 713, 717-18 (Fla. 2d DCA 2002), a 14-year-old defendant was convicted of the first-degree murder of his 8-year-old neighbor and sentenced to life in prison. The Second District found “the penalty of life imprisonment is not grossly disproportionate to the crime of first-degree murder,” reasoning, “[i]f, as Justice Kennedy’s opinion noted, ‘the crime of felony murder without specific intent to kill ... [is] a crime for which no sentence of imprisonment would be disproportionate,’ ... then the sentence of life imprisonment for the specific intent crime of first-degree murder cannot be disproportionate.” Id. at 718 (quoting Harmelin v. Michigan, 501 U.S. 957, 1004, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring)). The court found although the defendant’s “culpability may be diminished somewhat because of his age at the time of the commission of the crime, the factor of his age is outweighed by his heinous conduct and the ultimate harm-death-that he inflicted upon his victim.” Id.See also Tate v. State, 864 So.2d 44, 54-55 (Fla. 4th DCA 2003) (finding a life sentence for a 12-year-old convicted of the first-degree murder of an 8-year-old was not grossly disproportionate, relying on Phillips, 807 So.2d 713).

Furthermore, despite appellant’s contention, his voluntary intoxication at the time he committed the murder does not render the sentence grossly disproportionate. The Supreme Court has upheld a statute which prohibits raising voluntary intoxication as a defense as not violating due process. In Montana v. Egelhoff, 518 U.S. 37, 49-50, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), Supreme Court reasoned:

Disallowing consideration of voluntary intoxication has the effect of increasing the punishment for all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk. The rule also serves as a specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison. And finally, the rule comports with and implements society’s moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences.

Considering the Court’s findings on the deterrent value of precluding consideration of a defendant’s voluntary intoxication, as well as its alignment with society’s moral perceptions, appellant’s argument that his voluntary intoxication entitles him to a lesser sentence is without merit.

Moreover, although appellant argues he has a mental disability and urges this court to reverse his sentence based in part on this fact, there is nothing in the record, nor was there a motion to include anything in the record, demonstrating a mental disability other than his counsel’s comment during sentencing that he “may” have a mental disorder which testing would “probably” reveal.

Therefore, we find appellant’s sentence is not grossly disproportionate and affirm.

AFFIRMED.

ROBERTS, J., concurs.

WETHERELL, J., concurs in result.


text:
    OFFICE OF INSURANCE REGULATION and Financial Services Commission, Appellants, v. SERVICE INSURANCE COMPANY, Appellee.
    No. 1D09-5799.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Rehearing Denied Jan. 10, 2011.
    S. Marc Herskovitz and Elenita Gomez, Office of Insurance Regulation, Tallahassee, for Appellants.
    Douglas A. Mang and Richard J. San-turri of Mang Law Firm, P.A., Tallahassee; Maria E. Abate and Randon E. Loeb of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Ft. Lauderdale, Amicus Curiae, for Appellee.
   PER CURIAM.

The Office of Insurance Regulation and the Financial Services Commission, Appellants, appeal a final order determining that Florida Administrative Code Rule 690-170.105(l)(d) was an invalid exercise of delegated legislative authority. They argue, among other things, that the administrative law judge (“ALJ”) erred in exercising jurisdiction to review the rule, which had expired by repeal of its enabling statute before Service Insurance Company, Appellee, initiated its rule challenge. We agree. For this reason, we reverse the ALJ’s final order without reaching the remaining issues raised on appeal.

In 1996, the Florida Legislature amended section 627.062, Florida Statutes, to create an option for insurers to choose arbitration in lieu of a hearing pursuant to section 120.57, Florida Statutes, for the resolution of issues that arose when the then-existing Department of Insurance (“DOI”) took agency action with respect to a rate filing. Ch. 96-194, § 4, Laws of Fla. This option, which was codified at section 627.062(6), became effective January 1, 1997. Ch. 96-194, § 4, Laws of Fla. In addition to granting insurers the right to arbitrate, the Legislature directed DOI to adopt rules for arbitration. § 627.062(6)(b), Fla. Stat. (1996). DOI did so, and these rules were later transferred to the Financial Services Commission and the Office of Insurance Regulation pursuant to a government reorganization statute. Ch. 2002-404, § 2, Laws of Fla.; § 20.121, Fla. Stat. (2002).

In 2008, the Legislature amended section 627.062(6) to remove the arbitration option. Nevertheless, in June 2009, Ap-pellee sought a determination from an ALJ that one of the rules adopted under the directive of the former version of section 627.062(b) was an invalid exercise of delegated legislative authority. The ALJ reviewed the rule and declared it invalid.

Section 120.56(3)(a), Florida Statutes (2008), sets forth the parameters of an ALJ’s jurisdiction to entertain a rule challenge. It provides that “[a] substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.” § 120.56(3)(a) (emphasis added). This statute does not authorize a rule challenge to a rule that is no longer in existence. See id.; Dep’t of Revenue v. Sheraton Bal Harbour Ass’n, Ltd., 864 So.2d 454 (Fla. 1st DCA 2003). Once a rule’s enabling statute is repealed, the rule itself automatically expires. Canal Ins. Co. v. Cont’l Cas. Co., 489 So.2d 136, 138 (Fla. 2d DCA 1986) (citing Hulmes v. Div. of Ret., Dep’t of Admin., 418 So.2d 269 (Fla. 1st DCA 1982)). Therefore, even if the rule is still in print, it is no longer effective and does not meaningfully “exist.”

We recognize that our sister court in Witmer v. Department of Business and Professional Regulation, 662 So.2d 1299 (Fla. 4th DCA 1995), held that an expired rule could be challenged as long as it was still being applied to the petitioner. While this holding may be a good policy, it does not reflect the plain language of section 120.56(3), which requires that a challenge be initiated during the existence of the rule. The plain language of the statute makes this requirement an issue of timing rather than substance. See § 120.56(3)(a) (“A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.”) (emphasis added). For this reason, we disagree with the Witmer court and hold that the ALJ in the instant case erred in reviewing the expired rule. Because Appellee did not file its challenge during the rule’s eleven years of existence, the challenge was too late, and the ALJ should have declined to review it. Consequently, we reverse.

REVERSED.

KAHN, LEWIS, and CLARK, JJ., concur.

      . The rule was adopted on August 31, 1997, and the amendments to section 627.062(6) eliminating the arbitration option became effective July 1, 2008.


text:
    Kuran ADAMS, Appellant, v. DEPARTMENT OF REVENUE o/b/o Keya T. LONGSTREET, Appellee.
    No. 3D10-297.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Kuran Adams, in proper person.
    Bill McCollum, Attorney General; Toni C. Bernstein, Tallahassee, Senior Assistant Attorney General, Child Support Enforcement, for appellee.
    Before GERSTEN and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980); Giallanza v. Dep’t of Revenue o/b/o Giallanza, 799 So.2d 256 (Fla. 2d DCA 2001).


text:
    Hugo G. MORALES, Appellant, v. GRASSY KEY BEACH SUBDIVISION, INC., et al., Appellees.
    No. 3D10-808.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 16, 2010.
    Greenberg Traurig and Elliot H. Scherker, Elaine D. Walter, William R. Clayton, Fort Lauderdale, Jerold I. Bud-ney, Fort Lauderdale, and Alaine S. Greenberg, Fort Lauderdale, for appellant.
    Lehtinen Riedi Brooks Moncarz and Dexter Lehtinen, Miami; Richard W. Gross, for appellees.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. Stat. §§ 687.03, 687.071; St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982); Velletri v. Dixon, 44 So.3d 187 (Fla. 2d DCA 2010); Saralegui v. Sacher, Zelman, Van Sant Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048 (Fla. 3d DCA 2009); Antonelli v. Neumann, 537 So.2d 1027 (Fla. 3d DCA 1988).


text:
    Kerry Delane DeYOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5574.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2010.
    Rehearing Denied Jan. 6, 2011.

      Kerry Delane DeYoung, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Logan v. State, 846 So.2d 472 (Fla.2003).

WEBSTER, DAVIS, and ROWE, JJ„ concur.


text:
    SHERIFF OF BROWARD COUNTY, Appellant, v. Jeffrey STANLEY, Appellee.
    No. 1D10-922.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 6, 2011.
    Robert L. Norton, Dena H. Sokolow, Jason E. Vail of Allen Norton & Blue, P.A., Tallahassee, for Appellant.
    Kathleen M. Phillips, Holly E. Van Hor-sten of Phillips & Richard, P.A., Miami, for Appellee.
   PER CURIAM.

The appellant, the Sheriff of Broward County, appeals an order of the Florida Public Employee Relations Commission (PERC) finding that the Sheriff violated sections 447.501(1)(a) and (b), Florida Statutes, when it declined to rehire appellee Jeffrey Stanley. The Sheriff raises two issues on appeal: (1) whether PERC’s finding that the Sheriff violated section 447.501(1)(a) was error because Stanley was a job applicant, not an employee, when the Sheriff declined to rehire him; and (2) whether PERC erred in finding that the Sheriff violated section 447.501(1)(b) by not rehiring Stanley because of his union activities as opposed to his political involvement. We hold that Stanley as a job applicant is not a public employee within the plain meaning of section 447.501(l)(a) and that PERC lacked competent substantial evidence to support its finding that Stanley was not rehired because of his union involvement in violation of section 447.501(l)(b). We therefore reverse PERC’s order on both grounds.

Facts and Procedural History

Stanley worked as a certified detention deputy for the Sheriffs Office from February 2001 to December 2007, when he resigned to accept an outside position. During his employment'by the Sheriffs Office and all periods relevant to this case, Stanley was a member of the Federation of Public and Private Employees (Union). In April or May 2008, Stanley applied to be rehired by the Sheriffs Office in his former position. A human resources representative informed Stanley that a policy required employees who are rehired to be paid at “step two,” which is a lower rate of pay than Stanley received before resigning from the Sheriffs Office. Stanley discussed the policy with Lieutenant Benjamin, the executive officer to the Sheriff of Broward County, A1 Lamberti, and sent emails to Sheriff Lamberti requesting a meeting to discuss the pay grade. Stanley also contacted Union representative Tony Olive; Olive spoke with Tony Fenoy, director of the Union’s bargaining unit, regarding the policy. Both Olive and Fenoy contacted the Sheriffs Office several times on Stanley’s behalf.

While Stanley and representatives of the Union were in discussions with the Sheriffs Office regarding the rate of pay, Stanley’s application for rehire was deactivated. Upon learning of the deactivation, Stanley agreed to accept a “step two” salary, and the Sheriffs Office reactivated his application. On September 25, 2008, Stanley received a conditional offer of employment pending successful completion of a background check and other requirements.

At the same time Stanley was seeking approval of his application, Sheriff Lam-berti was running for re-election against challenger Scott Israel. The Union endorsed Israel. Union representatives told Stanley that supporting Israel could help Stanley obtain a review of his salary if Israel were elected.

Also during this time, the Union had declared an impasse in a wage dispute unrelated to Stanley. On October 15, 2008, Stanley exited the Sheriffs Office after dropping off paperwork for his background check. About 500 Union members were picketing in front of the Sheriffs Office regarding the impasse. Union representatives participating in the picket asked Stanley to join them, and Stanley did so. At the picket, Stanley learned about a debate between Sheriff Lamberti and Israel that evening. Stanley attended the debate wearing a pro-Israel T-shirt he received from Union members at the picket. A Sheriffs Office photographer took photos of the Union picketers and Union members at the debate. Stanley is identifiable in some of the photos. Stanley also handed out pro-Israel leaflets at a polling place at the direction of Union representatives.

On November 4, 2008, Sheriff Lamberti won re-election. On November 14, a human resources representative wrote in an e-mail to Stanley that she received the completed background check on Stanley and planned to rehire Stanley in December. On December 4, 2008, Stanley received a call from Lieutenant Benjamin, who told Stanley that the Sheriff was not going to rehire him because he had supported Israel.

After Stanley received a letter from human resources stating he was no longer being considered for re-employment, he filed an unfair labor practice charge with PERC, alleging the Sheriff discriminated against him because of his political activities and Union involvement. At an eviden-tiary hearing on July 31, 2009, Stanley testified that during their December 4, 2008, telephone call, Lieutenant Benjamin blamed the Union for getting Stanley involved in the Israel campaign:

[Stanley]: It was maybe thirty, forty five minutes later, Lieutenant Dave Benjamin, the Executive Officer to the Sheriff called me to discuss the fact that they were not going to re hire me because BSO had a photograph of me wearing a Scott Israel for Sheriff T-shirt.
Q: Did he tell you where that photo came from?
A: He did not.
Q: Did he say anything else during that conversation?
A: Yes, he did. He blamed the Union, for me listening to the Union and doing the things the Union asked me to do.

On January 26, 2010, PERC issued a final order concluding the Sheriff violated sections 447.501(l)(a) and (b) for failing to rehire Stanley because of his Union activities. PERC ordered the Sheriff to cease and desist from declining to rehire Stanley.

Whether the Sheriff Violated Section 447.501(l)(a), Florida Statutes

The Sheriff argues that because section 447.501(l)(a) only applies to public employees and Stanley was not a public employee when the Sheriff declined to rehire him, the Sheriff could not have violated section 447.501(l)(a).

Section 447.501(l)(a) provides that,

(1) Public employers or their agents or representatives are prohibited from:
(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

(Emphasis added.) “Public employee” is defined by section 447.203(3), Florida Statutes, as any person employed by a public employer except appointed or elected persons, military employees, negotiating representatives, managerial or confidential employees, employees of the Florida Legislature, criminal inmates, fruit and vegetable inspectors, employees of the Public Employees Relations Commission, and undergraduate state university students who conduct part-time work for the university. Contrary to PERC’s finding, at the time of his application for rehire, Stanley was not a public employee within the section 447.203(3) definition.

While PERC’s interpretation of section 447.501(1)(a) is entitled to deference, BellSouth Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla.1998), a court need not defer to an agency’s construction of a statute “if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute.” Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002). Under the plain and ordinary meaning of the term “public employee” as used in section 447.501(1)(a), “interfering with, restraining, or coercing” a job applicant who is not a public employee does not violate section 447.501(l)(a). Because Stanley was not a public employee at the time the Sheriff declined to rehire him, PERC erred by finding the Sheriff violated section 447.501(1)(a). See Daniels v. Florida Department of Health, 898 So.2d 61, 64 (Fla.2005) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language_”).

In support of its interpretation, PERC relied on Southwest Florida Police Benevolent Ass’n v. City of Bradenton, 9 FPER ¶ 14100 (1983), aff'd, 440 So.2d 358 (Fla. 2d DCA 1983). In Southwest Florida, the City of Bradenton discharged a managerial employee who was excluded from the definition of a public employee for the purposes of Chapter 447, Part II, for refusing to discriminate against subordinates who belonged to a union. Id. at 189. Under those facts, PERC held that the dismissal or discipline of a managerial employee violates section 447.501(l)(a) when it indicates restraint and coercion of employees who are public employees under Chapter 447, Part II. Id. at 193; see also § 447.203(3)(d), Fla. Stat. (noting that managerial employees do not meet the definition of public employees). PERC held that in order to establish a violation of section 447.501(l)(a), the charging party must show that public employees know the individual was disciplined or discharged for unlawful reasons. Id.

We reject the rationale in Southwest Florida for two reasons. First, PERC’s interpretation in that case conflicts with the plain and ordinary meaning of section 447.501(l)(a). In Southwest Florida, PERC looked to the National Labor Relations Act for guidance in its interpretation; however, the Florida Legislature knows how to extend protection to job applicants, see § 447.501(l)(b), Fla. Stat., but it specifically limited the application of section 447.501(l)(a) to public employees.

Second, we decline to adopt the broad interpretation of Southwest Florida because a separate statute, section 447.17, Florida Statutes, provides a remedy to individuals who are not public employees for discrimination based on their union activities:

(1) Any person who may be denied employment or discriminated against in his or her employment on account of membership or nonmembership in any labor union or organization shall be entitled to recover from the discriminating employer ... such damages as he or she may have sustained and the costs of suit....
(3) The remedy and relief provided for by this section shall not be available to public employees as defined in [Chapter 447, Part II.]

§ 447.17, Fla. Stat. The existence of this separate remedy further demonstrates that section 447.501(l)(a) does not apply to job applicants such as Stanley.

Finally, we decline to follow Southwest Florida because the policy rationale in that case is not present here. Southwest Florida held that an employer violates section 447.501(l)(a) by dismissing or disciplining an employee who is not a public employee if doing so interferes with, restrains, or coerces public employees. Here, Stanley was not an employee, and there is no evidence that any public employees experienced interference, restraint, or coercion as a result of the Sheriffs decision not to rehire Stanley. Therefore, because Stanley was not a public employee and because we decline to follow Southwest Florida, we find the Sheriff did not violate section 447.501(l)(a) by declining to rehire Stanley.

Whether the Sheriff Violated Section 447.501(l)(b), Florida Statutes

The Sheriffs Office argues that because it declined to rehire Stanley due to Stanley’s support of Scott Israel, and not because of Stanley’s Union activities, PERC erred by finding it violated section 447.501(1)(b). We review findings of fact made by an agency under a competent substantial evidence standard. § 120.68(10), Fla. Stat.; Legal Envtl. Assistance Foundation, Inc. v. Clark, 668 So.2d 982, 987 (Fla.1996).

Section 447.501(l)(b) prohibits employers from, among other things, discouraging membership in any employee organization through discrimination in hiring:

(1) Public employers or their agents or representatives are prohibited from:
(b) Encouraging or discouraging membership in any employee organization by discrimination in regard to hiring, tenure, or other conditions of employment.

Therefore, in order to establish a violation of section 447.501(l)(b), a party must show that the employer engaged in discrimination in hiring decisions, tenure, or other conditions of employment that was intended to encourage or discourage membership in a union.

Here, there was no competent substantial evidence showing that the Sheriff declined to rehire Stanley because of an intent to discourage involvement with the Union. The evidence shows that a Sheriffs Office employee photographed Union picketers and Israel rally attendees, including Stanley. And while knowledge and intent may be proven by circumstantial evidence, Goin v. Comm’n on Ethics, 658 So.2d 1131, 1135 (Fla. 1st DCA 1995), in this case, aside from hearsay evidence, there is no record evidence that the Sheriff or any decision maker in the Sheriffs Office was aware of the photographs or based the decision not to rehire Stanley on the existence of the photographs. Therefore, the photographs are not competent substantial evidence of discriminatory intent.

Stanley further argues that the photos along with his testimony provided competent substantial evidence to support PERC’s conclusion. Stanley testified that Lieutenant Benjamin said the Sheriff declined to rehire him because of his support for Israel and that the Union was to blame; however, this testimony tends to support the Sheriffs argument that it failed to rehire Stanley because of his support of Israel, not because of his involvement with the Union. Furthermore, Stanley’s testimony regarding Benjamin’s comments is hearsay. While hearsay is admissible in administrative cases to supplement or explain evidence, hearsay alone is not competent substantial evidence. Forehand v. Sch. Bd. of Gulf County, 600 So.2d 1187, 1191 (Fla. 1st DCA 1992); see also § 120.57(l)(c), Fla. Stat. Accordingly, the hearsay evidence offered by Stanley, without other competent substantial evidence, is insufficient as a matter of law.

Because we conclude that Stanley was not a public employee and he failed to show by competent substantial evidence that the Sheriff declined to rehire him as a result of his Union activities, PERC erred by finding the Sheriff violated sections 447.501(l)(a) and (b). Accordingly, we reverse and vacate PERC’s decision.

REVERSED.

HAWKES, C.J., ROBERTS, and ROWE, JJ., concur.


author: PER CURIAM. VAN NORTWICK, J.,

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant/Cross-Appellee, v. Herbert J. ASHE, Appellee/Cross-Appellant.
    No. 1D09-1546.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 12, 2011.

      G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    Louis K Rosenbloum and Steven J. Baker, Pensacola, for Appellee.
   PER CURIAM.

Citizens Property Insurance Corporation (Citizens) appeals a final judgment requiring it to pay Appellee Herbert J. Ashe $109,729.48 under the windstorm insurance policy issued by Citizens for damages to the Ashe’s home caused by Hurricane Ivan in September 2004. In arriving at the amount of damages, the trial court based its ruling on the “Other Insurance” clause in the Citizens policy. Both parties contend, and we agree, that application of the “Other Insurance” clause in the Citizens policy was erroneous.

Citizens also argues that the trial court erred in denying summary judgment under the so-called “total loss recovery rule,” asserting that Ashe was fully compensated for his loss with payment of the policy limits under his flood policy and the partial payment under the wind policy. For the reasons that follow, we reject Citizens’ contention that the total loss recovery rule applies here.

Finally, Citizens contends that the trial court erred in granting Ashe’s motion in limine and excluding the introduction of evidence that Ashe’s home was covered by flood insurance and that Ashe recovered $225,200 in proceeds from his flood insurance policy. For the reasons explained below, we agree in part, and reverse the trial court’s order granting Ashe’s motion in limine except with respect to the amount of insurance proceeds Ashe received.

On cross-appeal, Ashe contends that the trial court erred by precluding him from submitting to the jury a claim that wind caused a total loss to his insured property under Florida’s Valued Policy Law (VPL), section 627.702, Florida Statutes (2004). We find that the trial court erred in ruling that Ashe could not submit to the jury a claim that wind caused a total loss. As noted, however, Citizens is entitled to introduce evidence and argument that Ashe successfully sought recovery under his flood insurance.

Accordingly, the final judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Factual and Procedural Background

Ashe’s Pensacola residence was constructed on pilings; the ground level included a garage and storage area, and the upper level had breakaway walls and contained the living spaces. The home was completely destroyed by Hurricane Ivan on September 16, 2004, with nothing remaining but the pilings.

Ashe had insured the home with a Citizens wind-only insurance policy with limits of $188,000. Citizens is a governmental entity created under section 627.351(6), Florida Statutes (2004), to provide insurance for residential and commercial property for property owners who are unable to procure insurance through the private insurance marketplace.

Because the Citizens policy expressly excludes flood damage, Ashe had also obtained a separate flood insurance policy on the home through the National Flood Insurance Program (NFIP), which was issued through United Service Automobile Association (USAA) with policy limits of $225,200.

Citizens and USAA used the same adjuster. The adjuster inspected the property and determined that the actual cash value of the house was $238,720 and the total replacement cost value was $258,716.51. Once the replacement cost was determined, after deducting depreciation of $30,000 and the $500 deductible under the flood policy, the adjuster found the actual cash value of the total loss to be $228,216.51. As found by the trial court and undisputed by the parties, Ashe “received payment of the full policy amount of $225,200 from the flood carrier, although [Ashe] never executed or submitted to the flood carrier a Proof of Loss form. [Ashe] accepted the payment from the flood carrier and endorsed the check for the benefits.”

The adjuster also estimated that wind caused damage of $30,580.32 to the home. Citizens paid Ashe $26,770.32, which is the adjuster’s estimate less the deductible provided in the Citizens wind-only policy. Thus, in total, Ashe was paid $251,970.

Ashe asserted below that the home was a total loss because of wind damage and that the evidence would establish that it was blown from its pilings prior to any storm surge. He contended that he was entitled to recover a total loss under his wind-only VPL policy. Citizens disagreed that Ashe was entitled to any further payment. This action ensued.

Section 627.702(1) provides in pertinent part that “[i]n the event of the total loss of any building ... insured by any insurer as to a covered peril, ... the insurer’s liability under the policy for such total loss, if caused by a covered peril, shall be in the amount of money for which such property was so insured as specified in the policy and for which a premium has been charged and paid.” The trial court granted summary judgment for Ashe on the authority of Mierzwa v. Florida Windstorm Underwriting Association, 877 So.2d 774 (Fla. 4th DCA 2004); subsequent to the entry of final summary judgment, however, Mierz-wa was disapproved in Florida Farm Bureau Casualty Insurance Co. v. Cox, 967 So.2d 815 (Fla.2007). On appeal of the summary judgment, this court reversed, citing Cox. See Citizens Property Ins. Co. v. Ashe, 967 So.2d 420 (Fla. 1st DCA 2007).

In Cox, the supreme court held that when the total loss is caused by the combination of covered and non-covered perils, the VPL does not apply. As this court recently explained in Florida Farm Bureau Casualty Insurance Co. v. Mathis:

In Cox, the Florida Supreme Court ruled that section 627.702(1), Florida Statutes (2004) was ‘intended only to set the value of the property insured by the policy in order to conclusively establish the property’s value when there is a total loss.’ 967 So.2d at 819. In short, the VPL is simply a valuation statute. Id. - The court ruled that under the statute, ‘an insurer is liable for a loss by a peril covered under the policy for which a premium has been paid.’ Id. at 820. The Court in Cox rejected the Fourth District Court of Appeal’s decision in Mierzwa ...., explaining:
‘In Mierzwa, as here, the insured property was damaged by a combination of wind and water in a hurricane. The insurer asserted that it was responsible for the percentage of the total loss attributable to wind. The insurer did not contest the total value of the property. We find that the Fourth District misconstrued the VPL in holding that ‘if the insurance carrier has any liability at all to the owner for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy.’ Mierzwa, 877 So.2d at 775-76.’
Id. at 821. Importantly, the Court expressly limited its holding ‘to only those cases in which a covered peril did not cause a total loss or constructive total loss.’ Id. n. 6 (emphasis added).

33 So.3d 94, 97 (Fla. 1st DCA 2010) (emphasis in original).

On remand, the case was set for trial. Ashe filed a motion in limine asking the court to exclude any reference to flood insurance coverage or payments made by the flood insurer. Ashe argued that the flood insurance adjuster’s estimate and the amount he was paid was irrelevant and immaterial because the issues to be tried were the amount of wind damage and whether the wind caused a total loss. Although he acknowledged that Citizens could defend by introducing evidence that flood waters caused some or all of the damage, Ashe contended that the existence or nonexistence of a flood insurance policy did not tend to prove a material fact that would assist the jury in determining the issues. He argued that evidence concerning other insurance would be confusing, inflammatory, and highly prejudicial. The trial court granted the motion in limine.

Citizens filed a motion for summary judgment based upon the total loss recovery rule applied in other jurisdictions. Under this rule, when an insured has coverage under both a flood policy and a wind policy, the insured’s recovery is limited to the total amount of flood and wind insurance coverage, or to the pre-storm value of the structure, whichever is less. Citizens argued that after Ashe was paid the full flood policy limits by USAA and the wind payment from Citizens, under the total loss recovery rule, Ashe had been paid more than the pre-storm value of the house and was not entitled to any further recovery. The trial court denied Citizens’ motion.

After the jury was chosen, the court announced its intention to apply the “Other Insurance” clause in the Citizens policy. That clause provides:

11. Other Insurance
a. If a loss covered by this policy is also covered by other insurance, we will pay only the proportion of the loss that the Limit of Liability that applies under this policy bears to the total amount of insurance covering the loss.

Neither Ashe nor Citizens argued that the Other Insurance clause applied, and both parties objected to the trial court’s ruling.

Applying this clause, the trial court announced that Ashe would be entitled to recover from Citizens 45.5% of the pre-storm value of the house. The court determined the percentage by calculating the proportion of the Citizens policy limits to the total amount of wind and flood limits of $413,200. The court divided the $188,000 wind limit by the total wind and flood limits of $413,200 to reach a percentage of 45.5%. The court indicated that the only question to be determined was the pre-storm actual cash value of the house. The court found that Citizens was required to pay 45.5% of whatever the jury determined was the pre-storm value of the house. In addition, the trial court announced its agreement with the total loss recovery rule and stated that, but for application of the “Other Insurance” clause, it would have applied that rule.

After the trial court announced its intention to apply the “Other Insurance” clause, the parties stipulated, solely for purposes of the application of that clause, that the pre-storm value of the house was $800,000. Both parties reserved the right to present evidence to the contrary regarding the pre-storm value if this court determined that the trial court erred in applying the “Other Insurance” clause. Thereafter, the trial court entered an order conforming to its oral ruling and determining that Ashe was entitled to recover from Citizens the sum of $109,729.48, together with prejudgment interest, for a total of $154,694.96.

The “Other Insurance” Clause

Interpretation of the provisions of an insurance policy is reviewed de novo. Barnier v. Rainey, 890 So.2d 357, 859 (Fla. 1st DCA 2004). As stated, the Citizens policy provides that the “Other Insurance” clause applies only “[i]f a loss covered by this policy is also covered by other insur-ance_” The Citizens policy also expressly excludes a loss due to “[fjlood, surface water, waves, tidal water, storm surge, wave rush, or tidal wave.... ” In bold-faced type, the policy states:

“THIS IS A POLICY LIMITED TO HURRICANE, OTHER WINDSTORM OR HAIL. IT DOES NOT PROVIDE FLOOD, STORM SURGE OR WAVE WASH COVERAGE. CONSULT YOUR AGENT FOR AVAILABILITY OF FLOOD COVERAGE.”

In American Fire & Casualty Company of Orlando, Florida v. Marathon Aviation Marathon, Inc., 196 So.2d 782, 783 (Fla. 2d DCA 1967), the court explained that “other insurance” exclusions “are applicable when two or more insurance policies are on the same subject matter, risk and interest. The reason for said exclusionary clauses is to avoid double collection, and thereby discourage fraud.” (Citations omitted.) We agree with the parties that the purpose of Citizens’ “Other Insurance” provision is to address the situation where an insured has multiple polices that insure the same risk; for example, a wind policy of $200,000 with one carrier and a second $200,000 wind policy with another carrier. It is not applicable when the insured has a wind policy and a flood policy, each covering a different peril.

In reaching its decision, the trial court reasoned that

pursuant to the contract, where the loss is a total loss of the structure and the loss has been caused by the effects of two perils insured under separate policies, Citizens is responsible for the pro rata share that its coverage bears to the combined limits of coverage.

Nothing in the insurance policy, however, supports requiring Citizens to pay for actual wind damage in the event of partial loss, but only a pro rata amount of the total wind damage in the event of a total loss. Under its policy, Citizens is obligated to pay for damage “solely attributable to wind.” See Citizens Property Ins. Corp. v. Mallett, 7 So.3d 552, 555 (Fla. 1st DCA 2009). Further, the trial court’s ruling erroneously precluded Ashe from introducing evidence seeking to prove that the wind caused the total loss to the insured’s property before the storm surge arrived, thereby triggering the VPL.

Although our holding on the erroneous application of the “Other Insurance” clause is dispositive, we address the remaining issues raised on appeal to assist the trial court and the parties on remand. See Sturdivan v. State, 419 So.2d 300, 301 (Fla.1982).

Total Loss Recovery Rule

Citizens contends that the trial court erred in refusing to grant summary judgment under the total loss recovery rule because Ashe had been fully compensated for his loss. The total loss recovery rule limits the insured to recover the lesser of either the pre-storm value of the insured property or the total policy limit for perils that led to the property’s destruction. In support of its argument, Citizens relies upon unreported federal court decisions applying Louisiana and Mississippi law. See Webster v. State Farm Fire & Cas. Ins. Co., 2008 WL 2080907 (E.D.La. May 14, 2008); Dickinson v. Nationwide Mut. Fire Ins. Co., 2008 WL 941783 (S.D.Miss. April 4, 2008); Robichaux v. Nationwide Mut. Ins. Co., 2007 WL 2783325 (S.D.Miss. September 21, 2007); Letoha v. Nationwide Ins. Co., 2007 WL 2059991 (S.D.Miss. July 12, 2007); Ruiz v. State Farm Fire & Cas. Co., 2007 WL 1514015 (S.D.Miss. May 21, 2007); Esposito v. Allstate Ins. Co., 2007 WL 1125761 (E.D.La. April 16, 2007); Weiss v. Allstate Ins. Co., 2007 WL 891869 (E.D.La. March 21, 2007). Citizens argues that the total loss recovery rule is consistent with the principle that an insurance contract is a contract of indemnity, and an insured should be compensated only for losses suffered. See, e.g., DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill., 193 So.2d 224, 226 (Fla. 3d DCA 1966) (explaining that, under the principle of indemnity, restitution for the insured’s loss is the keystone).

In response, Ashe argues that while insurance policies generally are indemnity contracts, the VPL is an exception and is based on “calculated risk” rather than principles of indemnity. Millers’ Mut. Ins. Ass’n of Ill. v. La Pota, 197 So.2d 21, 25 (Fla. 2d DCA 1967). A calculated risk value policy is present when “parties ... ascertain and agree in advance what the value is and in the case of total loss by the insured peril this amount shall be paid as liquidated damages.” Springfield Fire & Marine Ins. Co. v. Boswell, 167 So.2d 780, 784 (Fla. 1st DCA 1964). Ashe cites numerous Florida decisions in which a double recovery was allowed under the VPL. See, e.g., Cooper v. Alford, 446 So.2d 1093 (Fla. 1st DCA 1984); La Pota; Boswell. Ashe distinguishes the cases applying Louisiana and Mississippi law, arguing that Louisiana and Mississippi are indemnity states adhering to the rule that under an indemnity contract, an insured cannot recover an amount greater than his actual loss. Ashe contends that, unlike the law applicable in Louisiana and Mississippi, the VPL provides for the insured to recover the agreed amount of insurance when there is a total loss due to a covered peril. Cox, 967 So.2d at 820. Finally, Ashe cites Miles v. AAA Insurance Company, 771 So.2d 607, 609 (Fla. 3d DCA 2000), in which the Third District explained, “Their pretrial settlement with their flood insurer does not preclude them from claiming that they suffered as much or more damage from the perils covered by the homeowner’s policy they obtained through AAA, and in no way supports a theory of judicial estoppel or fraud on the court.”

Although we agree that a VPL policy is a “calculated risk” policy, the supreme court’s decision in Cox now establishes that indemnity principles are not abandoned in VPL cases. Specifically, the court determined that the VPL establishes the value of the property when there is a total loss, but it does not impose liability on the insurer for a loss caused by an uncovered peril for which no premium has been paid. Cox, 967 So.2d at 820. While the insurer cannot contest the value of the property, the insurer can contest “whether it is liable for the entire loss when the covered peril alone did not cause a total loss but was only responsible for a relatively small amount of the damage.” Id. at 821. The court recognized, however, that the VPL applies if a covered peril causes a total loss or constructive total loss. Id. at n. 6. Thus, Ashe is correct that if he is able to prove that wind alone caused a total loss before the storm surge arrived, despite his successful recovery of flood insurance payments, the VPL would require Citizens to pay the policy proceeds. Thus, we find no error in the trial court’s denial of Citizens’ motion for summary judgment.

Citizens argues that Ashe will receive a windfall, or double recovery, if the jury concludes that wind caused a total loss to his home. We are not persuaded, however, that applying these principles will result in Ashe obtaining a windfall in the event he succeeds in convincing the jury that wind caused the total loss of his property. Although we do not address the issue of subrogation here because it was not raised below, we note that by federal regulation, all NFIP policies contain a sub-rogation clause, which provides in pertinent part:

Whenever we make a payment for a loss under this policy, we are subrogated to your right to recover for that loss from any other person. That means that your right to recover for a loss that was partly or totally caused by someone else is automatically transferred to us to the extent that we have paid you for the loss.... If you make any claim against any person who caused your loss and recover any money, you must pay us back first before you may keep any of the money.

44 C.F.R. 61.13, App. A(l) subsection (VIIXS) (2002); see also Bradley v. Allstate Ins. Co., 606 F.3d 215 (5th Cir.2010) (noting the existence of this subrogation provision in discussing whether the insured or the insurer should receive a potential windfall from an overpayment by the flood policy).

Evidence of Flood Insurance Payments

Citizens contends that the trial court erred in granting Ashe’s motion in limine and excluding essentially all evidence of Ashe’s demand for flood insurance payments for the purported flood damage caused to his home, and that his demand resulted in his receiving $225,200 in flood policy benefits. We agree except as to the amount of benefits received.

Ashe admits that the extent of flood damage to his home, along with other meteorological and scientific evidence relating to the wind and storm surge, are relevant. He argues, however, that evidence concerning the existence of flood insurance or the amount of money he received from his flood insurance carrier is irrelevant because that evidence does not tend to prove or disprove any material fact. Further, Ashe contends that receipt of flood insurance policy benefits is inadmissible under the collateral source rule, which allows the injured party to recover the full amount of damages from the wrongdoer, irrespective of any funds the injured party may be entitled to from independent sources.

Relevant evidence is evidence “tending to prove or disprove a material fact.” § 90.401, Fla. Stat. “All relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (emphasis added); Gibson v. Metropolitan Life Ins. Co., 381 So.2d 376 (Fla. 1st DCA 1980) (no error in permitting cross examination of plaintiff regarding her rehabilitation attempts, as the evidence was relevant to the question of whether she was disabled). Evidence that such flood insurance benefits were received was relevant to the issue of whether flood or wind caused the total loss of the home, and the trial court abused its discretion in excluding such evidence. Where Ashe now claims that his house was totally destroyed by wind, the jury can and should be allowed to hear evidence that he sought and accepted payment from his flood insurer, which by contract only provided compensation in the event of losses from a flood peril. In fact, to hold otherwise would contradict the thrust of the holding in Cox, in which the supreme court made it clear that a YPL insurer is not required to pay for damages caused by “excluded or noncovered perils.” 967 So.2d at 820. Ashe accepted the payment of his flood insurance policy, thus acknowledging that he was entitled to the payment because his home was damaged, or perhaps completely destroyed, by flood waters.

Furthermore, Ashe’s argument is not persuasive that the evidence of his receipt of the flood insurance payment is inadmissible under the collateral source rule. There is no reason in law to exclude the evidence that Ashe asked for the full policy limits from his flood insurer. In fact, in Citizens Property Insurance Corporation v. Hamilton, 43 So.3d 746 (Fla. 1st DCA 2010), this court found no error under the collateral source rule where the trial court allowed extensive evidence regarding the homeowner’s application for flood insurance benefits, including the homeowner’s claim that his entire loss was due to flood and other actions taken by the flood insurer adjuster, but excluded evidence of the amount of the payment. Furthermore, the homeowner did not challenge the admission of the evidence of the flood insurance policy or the documentation accompanying the claim; rather, the homeowner’s motion in limine addressed only “evidence of the amount of flood carrier payments and estimates.” Id. at 750. The trial court’s ruling on the motion allowed Citizens “to reference the flood coverage, the flood damage, and the flood loss claim, except as to dollar amount.” Id.

In the appeal of that ruling, Citizens “contends that these representations [regarding the flood coverage, the flood damage, and the flood loss claim], in addition to a letter from trial counsel acknowledging full payment of the [insureds’] ‘total loss’ flood claim, are admissible as statements against interest, pursuant to section 90.803(18), Florida Statutes (2003).” Id. at 751. The insureds countered that “such evidence is irrelevant and barred by the common law collateral source rule.” Id. After discussing this court’s prior application of the collateral source rule to contract actions, this court noted that “the common law collateral source rule militates against evidence of the dollar amount of flood insurance payments, disbursed by an entity wholly independent of appellant, under a plainly distinct contractual obligation, and paid for entirely by premiums remitted by [the insured].” Id. (emphasis added). Consequently, this court affirmed the trial court’s ruling excluding evidence of the amount the insureds received from their flood insurance policy. Id.

By contrast, the trial court here issued a blanket order excluding all references to Ashe’s request for and receipt of the full benefits of his flood insurance, even though he seeks the full benefits of his wind insurance. Clearly, it is relevant to the fact finder to know that Ashe reported to one insurer that flood caused all the damage to his home, and now claims that wind caused all the damage to his home. Consequently, the trial court erred in excluding this evidence except with respect to the amount of benefits received.

Our decision in Rease v. Anheuser-Busch, Inc., 644 So.2d 1383 (Fla. 1st DCA 1994), also supports our rationale. In Rease, this court held that the trial court correctly admitted evidence of a plaintiffs worker compensation benefits in her suit for wrongful retaliation against her employer:

We hold that the collateral source rule does not apply here because the fact of Rease’s receipt of benefits was relevant to the issue of Anheuser-Busch’s liability.... Exclusion of the evidence of her receipt of benefits would have prevented Anheuser-Busch from defending itself against Rease’s claim of economic coercion. If this evidence was prejudicial, it was prejudicial only in the sense that it contradicted Rease’s allegations of intimidation and coercion. Given the relevancy of the evidence here, this case is distinguishable from those wherein the evidence was held to be immaterial and misleading and a subversion of the jury process. See e.g., Gormley v. GTE Products Corp., 587 So.2d 455 (Fla.1991).

644 So.2d at 1387 (emphasis added).

Appellant cites footnote 3 in the Rease opinion in support of his argument. There, however, this court simply acknowledged that, as a “general proposition,” the collateral source rule functions as a rule of damages, but the fact that the rule bars admission of evidence of collateral payments is not relevant where it can mislead the jury on the issue of liability. Rease, 644 So.2d at 1387 n. 3. However, Rease also stands for the proposition that evidence of the receipt of payments from another source can be relevant where the evidence rebuts a party’s theory of the case.

Here, as in Rease, excluding evidence of Ashe’s receipt of flood insurance payments would limit Citizens from its defense that Ashe’s home was destroyed by flood, not wind. The fact that both Ashe and his flood insurer determined the cause was flood is relevant. Evidence of the monetary amount Ashe received from his flood policy is relevant to show the extent of his home’s damage, should the jury decide that the flood insurance only compensated Ashe for a portion of the total damages incurred by both flood and wind.

As we noted in Hamilton, we are constrained by precedent to apply the collateral source rule to contract actions, and not to only tort actions. We note that the Hamilton court also cited footnote 3 in Rease, explaining that the case provides that in either a tort or contract action, total or partial compensation received by a plaintiff from a collateral source wholly independent of the defendant wrongdoer will not operate to lessen the damages otherwise due. 43 So.3d at 751. As noted in Hamilton, that footnote cites to the Third District’s opinion in Hartnett v. Riveron, 361 So.2d 749 (Fla. 3d DCA 1978). In Hartnett, the Third District held that evidence that the Florida Insurance Guaranty Association paid the plaintiffs claim in full was not barred by the collateral source rule on the issue of damages. Id. at 750-51.

Subsequent to Riveron, in City of Miami Beach v. Carner, 579 So.2d 248, 253-54 (Fla. 3d DCA 1991), the Third District stated, “It has been held that the collateral source rule does not apply to pure breach of contract cases.” There, the appellee cited in support of its collateral source argument Bangert v. Beeler, 470 So.2d 817 (Fla. 1st DCA 1985), and Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976), both of which were also cited in Hamilton when acknowledging our contrary precedent. The Third District found these cases were distinguishable, explaining:

Bangert and Walker, also relied on by [appellee] are equally unconvincing since they both involved insurers and the possibility of subrogation as set out in section 768.76, Florida Statutes (1989), dealing with use of the collateral source rule in negligence cases.

City of Miami Beach, 579 So.2d at 254 (full citations omitted). The court also noted that Hartnett was “unavailing” because “the statement therein on use of the collateral source rule was clearly dicta.” Id. It seems to us that the better view is that the collateral source rule should not apply in pure contract actions. We suggest it may be time to revisit this issue.

Finally, Ashe’s argument that evidence of his request for flood insurance benefits is inadmissible under section 90.408, Florida Statutes, also fails, as that statute prohibits consideration of evidence of compromise or settlement, and Ashe’s application for his flood policy limits was not a settlement offer. The statute only excludes evidence of settlement discussions between Ashe and Citizens, not Ashe and his flood insurer. Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997). Furthermore, Ashe presented no evidence that his receipt of flood insurance proceeds was the result of a compromise or settlement negotiation, rather than simply a payment of insurance benefits. For this court to accept his argument here, every payment of insurance benefits would constitute a settlement rather than simply fulfilling a contractual duty.

CONCLUSION

For the foregoing reasons, we REVERSE the trial court’s application of the “Other Insurance” clause in the Citizens insurance policy. We AFFIRM the trial court’s denial of Citizens’ motion for summary judgment. We REVERSE the trial court’s ruling on Ashe’s motion in limine excluding the introduction of evidence that Ashe’s home was covered by flood insurance and that he received proceeds from his flood insurance policy, except as to the court’s ruling excluding evidence of the amount recovered.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

HAWKES, C.J. and THOMAS, J., concur.

VAN NORTWICK, J., concurs in part and dissents in part with opinion.

VAN NORTWICK, J.,

concurs, in part, and dissents, in part.

I concur in all parts of the majority opinion except for the reversal of the trial court’s granting of the motion in limine which excluded evidence of flood insurance. Because I conclude that the collateral source rule requires the exclusion of evidence of flood insurance in this case, I find no error in the trial court’s granting the motion. Accordingly, I respectfully dissent as to that issue.

Citizens argues that the claim Ashe made to his flood insurer and the proceeds he received are relevant to the jury’s determination of his damages since the fundamental issue in this case is what peril (wind or flood, or a combination of both) destroyed Ashe’s house. Citizens acknowledges that Ashe did not submit an executed proof of loss because the Federal Emergency Management Agency (FEMA) waived the requirement of a proof of loss in order to expedite claims given the catastrophic nature of Hurricane Ivan. Nevertheless, Citizens contends the fact that Ashe did not sign a proof of loss is not pivotal because he made a claim for flood policy benefits and received them. Citing unreported federal decisions, Preis v. Lexington Insurance Co., 2008 WL 2247140 (11th Cir.2008), and Letoha v. Nationwide Insurance Co., 2007 WL 2059991 (S.D.Miss. July 12, 2007), Citizens asserts that evidence of flood payments is admissible and that, when an insured accepts benefits tendered under a flood insurance policy, the insured makes a judicial admission that the insured property sustained flood damage at least equal to the flood insurance benefits that were accepted and therefore is estopped to deny that this amount of flood damage has occurred.

Ashe admits that the extent of flood damage to the structure and other meteorological and scientific evidence relating to the wind and storm surge of the hurricane are relevant in this case. He argues, however, that evidence concerning the existence of flood insurance or the amount of money Ashe received from his flood insurance carrier is irrelevant because that evidence does not tend to prove or disprove any material fact. Further, Ashe contends that receipt of flood insurance policy benefits is inadmissible under the collateral source rule, which allows the injured party to recover the full amount of damages from the wrongdoer, irrespective of any funds the injured party may be entitled to from independent sources.

As the majority opinion notes, our court has recently addressed a trial court’s granting of a motion in limine to bar evidence of the amount of flood insurance payments in a case involving a wind insurance claim arising out of damage caused by Hurricane Ivan. Citizens Property Ins. Corp. v. Hamilton, 43 So.3d 746 (Fla. 1st DCA 2010). In Hamilton, as here, Citizens asserted that the trial court erred in granting Hamilton’s motion in limine, contending, in pertinent part, that the insured’s flood loss claim and the amount paid under the flood insurance policy were admissible as statements against interest under section 90.803(18), Florida Statutes (2003). Hamilton rejected Citizens’ argument, holding that “the common law collateral source rule militates against evidence of the dollar amount of flood insurance payments, distributed by an entity wholly independent of [Citizens], under a plainly distinct contractual obligation, and paid for entirely by premiums remitted by the Hamiltons.” Id. at 751. As the majority opinion states, the trial court in Hamilton allowed the introduction of evidence of a flood insurance policy, but excluded evidence of the proceeds paid under that policy. Hamilton affirmed the trial court’s exclusion of evidence of the payment under the flood insurance policy. Id. The homeowner in Hamilton did not challenge the admission of evidence of the existence of flood insurance and, thus, that issue was not addressed by the Hamilton court. In my view, Hamilton controls the evidentiary issue raised here.

In Gormley v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla.1991), the Florida Supreme Court held that the admission of evidence of a collateral source to reduce damages constitutes reversible error because it prejudices the jury’s determination of liability. The court noted that the collateral source rule functions both as a rule of damages and as a rule of evidence. Id. Citing a long line of cases prohibiting the admission of evidence of collateral sources in a liability trial, id. at 457-58, the Court explained the rationale for the rule, as follows:

[Introduction of collateral source evidence misleads the jury on the issue of liability and, thus, subverts the jury process. Because a jury’s fair assessment of liability is fundamental to justice, its verdict on liability must be free from doubt, based on conviction, and not a function of compromise. Evidence of collateral source benefits may lead the jury to believe that the plaintiff is “trying to obtain a double or triple payment for one injury,” or to believe that compensation already received is “sufficient recompense.” Despite assertions that collateral source evidence is needed to rebut or impeach, “there generally will be other evidence having more probative value and involving less likelihood of prejudice than the victim’s receipt of insurance-type benefits.”

Id. at 458 (citations omitted). The court concluded that “[gjiven the various ways of properly rebutting and impeaching evidence, it is error to disclose the irrelevant and prejudicial fact of insurance.” Id.

In so ruling, the Gormley court recognized that the legislature had enacted statutes addressing automobile insurance and tort recovery, sections 627.7372 and 768.76, which allowed reduction of the jury’s damages by certain collateral source payments. The court explained that these statutes allow collateral sources to reduce damages, but do not require admission of collateral sources into evidence in the liability portion of the trial. The court stated:

We draw the logical conclusion that the legislature intended neither the admission of privately-obtained insurance benefits into the liability trial, nor the reduction of damages based on these insurance benefits. Here the [Gormleys] paid for insurance against the very loss which occurred. To permit [GTE] to benefit from this prudent act would result in an unearned windfall to [GTE].

Id. at 459.

Similarly in the case before us, allowing Citizens to benefit from Mr. Ashe’s prudent act of purchasing flood insurance could result in an unearned windfall to Citizens. More importantly, Gormley instructs that the legislature is fully capable of addressing issues of collateral sources and, to the extent that the legislature has left in place the common law collateral source rule, it remains applicable. This does not mean, however, that a plaintiff such as Ashe is entitled to a double recovery, because in the event of a duplication of insurance payments, the insurer who has overpaid is entitled to a right of subro-gation. Purdy v. Gulf Breeze Enters., Inc., 403 So.2d 1325, 1328 (Fla.1981). As recognized in the majority opinion, supra at 14, all NFIP policies contain a subrogation clause. As a result, applying the collateral source rule in this case would allow protection to all the parties. Ashe would have the opportunity to prove his wind damages without being prejudiced by the jury hearing evidence of his recovery against the flood insurer and, if indeed there was overpayment by the flood policy, 44 C.F.R. 61.13, App. A(l) subsection (VII)(S) can be invoked.

Next, I disagree with Citizens’ assertion that the collateral source rule does not restrict the introduction of evidence in this case because the rule does not apply to contract actions. I recognize that the Third District has held that the rule is limited to tort actions. See City of Miami Beach v. Carner, 579 So.2d 248, 253-54 (Fla. 3d DCA 1991) (“the collateral source rule does not apply to pure breach of contract cases”). In Rease v. Anheuser-Busch, Inc., 644 So.2d 1383, 1386 n. 3 (Fla. 1st DCA 1994), however, this court has found that the rule applies in both tort and contract actions. The Rease court explained: “As a general proposition, the collateral source rule states that ‘in a tort or contract action total or partial compensation received by the plaintiff injured party from a collateral source fully independent of the defendant wrongdoer will not operate to lessen the damages otherwise due to the plaintiff from the defendant wrongdoer.’ ” Id. (quoting Hartnett v. Riveron, 361 So.2d 749, 751 (Fla. 3d DCA 1978)). Although jurisdictions are split on the issue, compare, e.g., Hubbard Broadcasting, Inc. v. Loescher, 291 N.W.2d 216, 218 (Minn.1980); and Amalgamated Transit Union Local 1321 v. Roberts, 263 Ga. 405, 434 S.E.2d 450, 452-53 (1993), I see no reason to apply the collateral source rule differently in tort and contract actions. A noted commentator has observed, “the policies underlying the law of contract do not dictate an application of the collateral source rule different from that in tort.” Joseph M. Perillo, The Collateral Source Rule in Contract Cases, 46 San Diego L. Rev. 705, 707 (2009) (quoting John G. Fleming, The Collateral Source Rule and Contract Damages, 71 Cal. L. Rev. 56, 62 (1983)). As Professor Perillo explains:

The collateral source rule has many positive effects in contract cases.... It helps to discourage opportunistic breaches when the breaching party relies on the victim’s insurance or the possibility that a third party, such as a parent corporation, a major shareholder, or a beneficent donor will come to the rescue of the victim of the breach. Moreover, the application of the rule is a premier example of preventing a wrongdoer’s unjust enrichment. Efficient breach theory is not at war with these results: “[T]he contract breaker would be taking advantage of an externality and thus distort the true cost of his reallocation of resources.”

Id. at 711, 434 S.E.2d 450 (quoting Fleming, 71 Cal. L. Rev. at 62 n. 29). Here, I see no rationale to support the reduction of breach of contract damages by the amount of payments that the non-breaching party has received from an insurer to which it paid premiums. Applying the collateral source rule in such a situation prevents the breaching party from receiving the benefits of insurance premiums paid by the non-breaching party. Further, applying the collateral source rule here would allow the jury to perform its proper role by deciding the issues of causation and damages without consideration of improper evidence of other insurance. See, e.g., Florida Farm Bureau Casualty Insurance Co. v. Mathis, 33 So.3d 94 (Fla. 1st DCA 2010); Landry v. Louisiana Citizens Prop. Ins. Co., 964 So.2d 463, 473 (La.App. 3d Cir.2007), vacated in part on other grounds, 983 So.2d 66 (La.2008) (“What forces or causes brought about the total destruction or “constructive total loss” of a structure is a question left for resolution by the fact-fínder. The same is true in answering whether a particular structure sustained a total loss.”).

      . Because NFIP policies covering flood insurance are not VPL policies, loss for purposes of payment under NFIP policies is computed differently than under a VPL policy. See Monistere v. State Farm Fire & Cas. Co., 559 F.3d 390 (5th Cir.2009) (holding that constructive total loss doctrine does not apply to NFIP policies).

      . Although the legislature amended section 627.702(1) in 2005, the parties agree the 2004 statute is applicable to these facts. Under the 2005 version of section 627.702(l)(b), the insurer would not be liable for more than the amount necessary to repair, rebuild or replace a structure following a total loss after considering all other benefits actually paid for the loss. Specifically, the 2005 statute provides:
      (b) The intent of this subsection is not to deprive an insurer of any proper defense under the policy, to create new or additional coverage under the policy, or to require an insurer to pay for a loss caused by a peril other than the covered peril. In furtherance of such legislative intent, when a loss was caused in part by a covered peril and in part by a noncovered peril, paragraph (a) [providing for payment of policy proceeds in the event of a total loss caused by a covered peril] does not apply. In such circumstances, the insurer’s liability under this section shall be limited to the amount of the loss caused by the covered peril. However, if the covered perils alone would have caused the total loss, paragraph (a) shall apply. The insurer is never liable for more than the amount necessary to repair, rebuild, or replace the structure following the total loss, after considering all other benefits actually paid for the total loss.

      . Unreported decisions do not have prece-dential value. U.S. v. Cromer, 389 F.3d 662, 682 n. 13 (C.A.6 2004).

      . "Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982) (reversible error to admit evidence of workers’ compensation benefits in violation of statute); Clark v. Tampa Elec. Co., 416 So.2d 475 (Fla. 2d DCA 1982) (reversible error to admit evidence of plaintiff's income before and after accident; error could not be cured even by repeated instruction), rev. denied, 426 So.2d 29 (Fla.1983); Grossman v. Beard, 410 So.2d 175 (Fla. 2d DCA 1982) (reversible error to admit evidence that plaintiff’s hospital bill was paid by workers’ compensation); Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975) (reversible error to admit evidence of plaintiff’s receipt of welfare benefits, even for the purpose of impeaching motive to work); Cook v. Eney [277 So.2d 848 (Fla. 3d DCA 1973) ] (admission of collateral source evidence is reversible error on the issue of liability, despite defendant's assertion that it could affect only the issue of damages); Seminole Shell Co. v. Clearwater Flying Co., 156 So.2d 543 (Fla. 2d DCA 1963) (error occurred when defense counsel asked whether plaintiff had been compensated by insurance, despite that it was plaintiff who first mentioned insurance; error could not be cured by instruction at close of case); cf. Sosa v. Knight-Ridder Newspapers Inc., 435 So.2d 821, 825 (Fla.1983) (new trial approved where "record supports a conclusion that the jurors were influenced by considerations outside the record [workers’ compensation benefits] which affected their decision”); Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla. 4th DCA 1990) (failure of court to give requested collateral source instruction resulted in verdict for less than medical expenses and lost wages; new trial on liability required).”

      . Section 627.7372 was repealed in 1993 and partially incorporated in section 768.76. Ch. 93-245, §§ 1, 3, Laws of Fla.

      . I also found helpful Professor Perillo's discussion of the relationship between the collateral source rule and subrogation:
      The presence of the possibility of subrogation is often critical to the application of the collateral source rule. If the collateral source will be subrogated for its payment to the plaintiff, this fact provides a secure basis for application of the collateral source rule. The fact that an insurance company or the government will be subrogated to the plaintiff’s recovery of actual damages rebuts any argument that the plaintiff will reap the reward of double recovery.
      * * ⅜
      The importance of subrogation is illustrated in Metoyer v. Auto Club Family Insurance Co. [536 F.Supp.2d 664 (E.D.La.2008).] The plaintiff’s property suffered major damage from Hurricane Katrina. The defendant had insured the property against wind damage. The Louisiana Recovery Authority made a grant of $150,000 to the plaintiff. In exchange it would be subrogated pro tanto to plaintiff’s claim against the insurer'. This was held to be a major reason for application of the collateral source rule to the plaintiff's claim against the insurer. By virtue of subrogation, the insured’s recovery against the insurer effectively would be reduced by $150,000. For example, if its insurance policy provided a maximum coverage of $150,000 or less, plaintiff would have had zero incentive to sue its insurer. Indeed, because of the transaction cost of litigation, plaintiff would have an incentive not to sue inasmuch as the insured would be less well off by suing than by not suing. Of course, the state as subrogee could sue.
      Joseph M. Perillo, The Collateral Source Rule in Contract Cases, 46 San Diego L. Rev. 705, 719-20 (2009).


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. C.D.M., Appellee.
    No. 2D09-4236.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2010.
    Rehearing Denied Jan. 5, 2011.

      Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    J.S. Lucas Fleming of The Fleming Law Group, St. Petersburg, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting C.D.M.’s motion to suppress marijuana. C.D.M. was a passenger in a vehicle driven by C.C., which vehicle was stopped by Deputy Vinson for a traffic violation. The trial court granted C.D.M.’s motion to suppress the marijuana based on a finding that, although it was C.C. who asked C.D.M. to give him the marijuana that was in C.D.M.’s possession, C.C. was acting as an agent for Deputy Vinson when he did so. We conclude that the trial court erred in finding that C.C. was an agent of the police where Deputy Vinson did not ask C.C., or even know that he was planning, to tell C.D.M. to hand over the marijuana.

At the hearing on C.D.M.’s motion to suppress, Deputy Vinson testified that he stopped C.C.’s vehicle for a traffic violation. After asking C.C. for his driver’s license, Deputy Vinson asked C.C. to step out of the vehicle and told C.C. that he could smell marijuana coming from his person and coming from the vehicle. Deputy Vinson testified that he told C.C., “I believe that there might be marijuana inside, and if you’re willing, go ahead and voluntarily, you know, if you’re willing to voluntarily give it up, you know, go ahead and do so.” C.C. then walked back to his vehicle and told C.D.M., “Hey, give me it.” C.D.M. then gave the marijuana to C.C.

C.C. testified that when he was talking to Deputy Vinson outside of the car, Deputy Vinson asked him, “Where’s the weed?” C.C. told him that it was in the car. Deputy Vinson then asked C.C., ‘Will you go over there and get it?” C.C. testified that Deputy Vinson told him that he would let them off easy if he got the marijuana. C.C. testified that he felt he did not have a choice because Deputy Vinson told him to get the marijuana.

We conclude that Deputy Vinson’s interaction with C.C. did not transform C.C. into an agent of the police. To establish that C.C. was acting as an agent of the police, C.D.M. was required to show that Deputy Vinson was aware of and acquiesced in C.C.’s actions. See State v. Butler, 1 So.3d 242, 246 (Fla. 1st DCA 2008) (“One seeking the exclusion of evidence as the fruit of an unreasonable search must demonstrate, first, that the government perpetrated the intrusion that led to the discovery of incriminating information.”). In State v. Iaccarino, 767 So.2d 470, 475 (Fla. 2d DCA 2000), this court held that in determining whether an individual acts as an instrument of the police, the court must decide “(1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends.” The necessary level of governmental participation involves some amount of knowledge and acquiescence in the search. United States v. Walther, 652 F.2d 788, 792 (9th Cir.1981).

While a certain degree of governmental participation is necessary before a private citizen is transformed into an agent of the state, de minimis or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions before we deem the citizen to be an instrument of the state.

Id. at 791.

In the present case, Deputy Vinson testified that when he asked C.C. to get the marijuana from his vehicle, he had no idea where it was located and he was not attempting to gather evidence against C.D.M. We note that C.C. testified that when Deputy Vinson asked him where the marijuana was, C.C. told him that it was in the car, not that it was in C.D.M.’s possession. Therefore, as far as Deputy Vinson knew, the marijuana was in C.C.’s car. Even the trial court acknowledged that Deputy Vinson was probably not targeting C.D.M. when he asked C.C. for the marijuana, stating, “I do feel-and the officer may very well have been targeting [C.C.] as the potential defendant with the marijuana....” There was no evidence that Deputy Vinson knew that C.C. was going to ask C.D.M. for the marijuana, much less that he acquiesced in the conduct. See Iaccarino, 767 So.2d at 475.

Further, according to the testimony of C.C., he was attempting to further his own needs when he asked C.D.M. for the marijuana. He testified that he asked C.D.M. for the marijuana because he thought they would get off easier if he gave it to the deputy. In fact, neither C.D.M. nor C.C. was arrested at the time and they were allowed to go home after the traffic stop.

Finally, the fact that C.C. testified that he felt obligated to cooperate with Deputy Vinson did not transform him into an agent of the police. In Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court held that, even though a witness may have felt obliged to cooperate, “it is no[t] part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” In holding that the witness was not acting as an agent of the police in that case, even though she may have felt obliged to cooperate, the Court stated that the evidence could only be excluded if “some type of unconstitutional police conduct occurred.” Id. We conclude that Deputy Vinson’s conduct in asking C.C. if he was “willing to voluntarily give” up the marijuana was proper and in no way coercive. See State v. Martissa, 18 So.3d 49, 52 (Fla. 2d DCA 2009) (“During a traffic stop an officer may ask if a person is in possession of a weapon or drugs.”).

Accordingly, we reverse the trial court order granting C.D.M.’s motion to suppress because C.C. was not acting as an agent of the police when he asked C.D.M. to give him the marijuana.

Reversed and remanded.

WALLACE and LaROSE, JJ., Concur.