author: VAN NORTWICK, J. WETHERELL, J.,

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Lyantie TOWNSEND, as Personal Representative of the Estate of Frank Townsend, Appellee.
    No. 1D10-4585.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.

      Gregory G. Katsas, of Jones Day, Washington, D.C.; Robert B. Parrish, Charles M. Trippe, and David C. Reeves, of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville; Stephanie E. Parker, John F. Yarber, and John M. Walker, of Jones Day, Atlanta, Georgia; Hada de Varona Haulsee, of Womble, Carlyle, Sandridge & Rice, PLLC, Winston-Salem, North Carolina, for Appellant.
    Steven Brannock, Celene H. Humphries, and Tyler K. Pitchford, of Brannock & Humphries, Tampa; Gregory D. Prysock, of Morgan & Morgan, P.A., Jacksonville; Keith R. Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellee.
   VAN NORTWICK, J.

In this Engle progeny case, R.J. Reynolds Tobacco Company (RJR) appeals a final judgment following a jury verdict awarding Appellee, Lyantie Townsend, as personal representative of the estate of Frank Townsend, her late husband, $10.8 million in compensatory damages and $80 million in punitive damages for the death of Mr. Townsend. Mr. Townsend died from lung cancer and was a long-time smoker of cigarettes manufactured by RJR. The jury found RJR 51% responsible for Mr. Townsend’s death and, based on that apportionment of fault (and after denying RJR’s motion for new trial or remittitur), the trial court entered judgment against RJR for $46,808 million, which comprised approximately $5.5 million in compensatory damages and $40.8 million in punitive damages.

In this appeal, RJR contends that 1) it is entitled to a new trial because of several improper comments by Appellee’s counsel in closing argument; 2) the use of the Engle findings to establish elements of Appellee’s claims violates Florida law and due process; 3) Appellee failed to prove reasonable reliance by Mr. Townsend on any statement or act of RJR or its predecessor companies; 4) the compensatory damage award is excessive; and 5) the punitive damage award is excessive and violates due process.

With respect to the “closing argument” issue, we hold that by waiting until the end of closing argument to object to the argument and move for mistrial and by failing to object specifically to distinct portions of the argument, RJR failed to preserve this issue for appellate review. Engle, 945 So.2d at 1271-74; see also Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000). Accordingly, we find no abuse of discretion in the denial of the motion for new trial based on the closing argument. We affirm the second and third issues based on Martin, 58 So.3d at 1060. For the reasons that follow, we affirm the compensatory damage award and we reverse and remand the punitive damage award for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment to be determined by the trial court in accordance with this opinion.

COMPENSATORY DAMAGES

RJR contends the compensatory damage award is excessive and, therefore, the trial court should have granted its motion for a new trial on damages or remittitur. We review the trial court’s denial of the motion for an abuse of discretion. See Engle, 945 So.2d at 1263; McCarthy Bros. Co. v. Tilbury Constr., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003).

The purpose of compensatory damages is “to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Mercury Motors Exp., Inc. v. Smith, 393 So.2d 545, 547 (Fla.1981); see also Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (explaining that compensatory damages “are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct”). The compensatory damage award in this case comprises only non-economic dam ages — e.g., mental pain and suffering and loss of consortium — suffered by Appellee due to the death of her husband, Mr. Townsend. These damages are inherently difficult to measure and, as explained by the Florida Supreme Court, our judicial system places great faith in the jury’s ability to assess the amount of these damages:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.

Braddock v. Seaboard Air Line R. Co., 80 So.2d 662, 668 (Fla.1955); accord Citrus County v. McQuillin, 840 So.2d 343, 348 (Fla. 5th DCA 2003) (“Who can place a dollar value on a human life, measured by the loss and grief of a loved one? That difficult decision is generally one for the jury or fact finder, not the appellate court.”).

“The fact that a damage award is large does not in itself render it excessive nor does it indicate that the jury was motivated by improper consideration in arriving at the award.” Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla. 1974). And “[n]ot every verdict which raises a judicial eyebrow should shock the judicial conscience.” Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970). A verdict should not be declared excessive “merely because it is above the amount which the court itself considers the jury should have allowed.” Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977). The verdict should be disturbed only when “it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Id. at 1184-85.

These general principles are consistent with the legislative policy expressed in section 768.74, Florida Statutes (2009). This statute recognizes that “the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified with caution and discretion.” § 768.74(6), Fla. Stat. But the statute also requires courts to give “close scrutiny” to damage awards, section 768.74(3), Florida Statutes, and it lists several criteria for the court to consider in determining whether an award “exceeds a reasonable range of damages.” § 768.74(5), Fla. Stat. The criteria in subsection (5) include whether the award is “supported by the evidence,” whether the award “bears a reasonable relation to the amount of damages proved and the injury suffered,” and whether the amount of the award is “indicative of prejudice, passion, or corruption” on the part of the jury.

Although the $10.8 million compensatory damage award in this case is higher than the non-economic damage awards affirmed by this Court in the other Engle progeny cases that we have reviewed to date, we cannot say that the award obviously exceeds the “reasonable range within which the jury may properly operate.” Bould, 349 So.2d at 1185. The highest post-Engle compensatory damages awards that have passed appellate muster thus far are the $7.8 million award in Liggett Group, 60 So.3d at 1078, and the $5 million award in Martin, 53 So.3d at 1066. We are persuaded from our review of the record that a proper evidentiary basis existed to justify the award and that, despite its size, it was not based merely on passion or prejudice.

The jury observed Appellee testify and heard her first-hand account of her life with Mr. Townsend. She and Mr. Townsend were wed young in 1956, enjoyed a very close relationship during their 39-year marriage, and were always together until Mr. Townsend became ill. Appellee was required to remain in Ocala to work to provide support for the couple while Mr. Townsend traveled to Chicago for medical treatment and surgery relating to his lung cancer, and then she cared for him as he lay dying during the final six months. Ap-pellee described Mr. Townsend’s suffering and premature death at age 59 from smoking, a tragic circumstance that had, and is likely to continue to have, an acute impact on Appellee for the rest of her life. Mr. Townsend was diagnosed just when Appel-lee was about to join him in retirement and realize their life-long dream of traveling together. Appellee has not remarried.

With this evidence, the jury was entrusted with the “difficult decision” of effectively placing a dollar value on Mr. Townsend to Appellee. See McQuillin, 840 So.2d at 348. Although the $10.8 million awarded by the jury is certainly at the outer limit of reasonableness for a case such as this, the award is not so inordinately large that it shocks our collective judicial conscience. Cf. id. at 347 (affirming $4.4 million non-economic damage award, but noting the award was “on the outer limit in size”). Judged by the factors set forth in section 768.74(5), Florida Statutes (2009), the amount of compensatory damages in this case is not beyond reason. Accordingly, we find no abuse of discretion in the trial court’s refusal to second-guess the jury’s award of compensatory damages.

PUNITIVE DAMAGES

RJR contends the punitive damage award in this case is excessive and violates due process. Our review of this issue is de novo. See Engle, 945 So.2d at 1263; Martin, 53 So.3d at 1071.

The purpose of punitive damages is “not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Owens-Coming Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla.1999). The amount of punitive damages to be awarded is an issue left to the discretion of the jury. Id. at 486-87 (quoting Wackenhut Corp. v. Canty, 359 So.2d 430, 435-36 (Fla.1978)). However, the imposition of a punitive damage award is subject to constitutional limitations because “[t]he Due Process Clause of the Fourteenth Amendment prohibits a state from imposing a ‘grossly excessive’ punishment on a tortfeasor.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); see also Martin, 53 So.3d at 1071-72 (quoting Cooper Indus., 532 U.S. at 433-34, 121 S.Ct. 1678). “[T]he relevant constitutional line is ‘inherently imprecise.’ ” Cooper Indus., 532 U.S. at 434, 121 S.Ct. 1678. The court in Gore, 517 U.S. at 574-85, 116 S.Ct. 1589, identified “three guideposts” for assessing the reasonableness of punitive damages: (1) the degree of reprehensibility of the defendant’s conduct; (2) the ratio between the punitive and compensatory damages; and (3) civil and criminal penalties for similar conduct. In Martin, we set forth the criteria for evaluating punitive damages under Florida law, as follows:

[T]he three criteria a punitive damage award must satisfy under Florida law to pass constitutional muster are: (1) “the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct”; (2) the award “bears some relationship to the defendant’s ability to pay and does not result in economic castigation or bankruptcy to the defendant”; and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded.

53 So.3d at 1072 (quoting Engle, 945 So.2d at 1263-64).

As to the first Martin criterion, we agree with Appellee that the $40.8 million punitive damage award in this case is not “out of all reasonable proportion” to RJR’s conduct. The record of this case, like the record in Martin, 53 So.3d at 1070-72, is replete with evidence of the decades-long, wanton and intentional conduct by RJR in vigorously, persuasively marketing to the public (including young people) a product the company knew was addictive; willfully concealing the serious health hazards posed by cigarette smoking; affirmatively deceiving the public into believing that cigarettes may not be harmful; and refusing to remove certain ingredients in cigarettes (such as nicotine) that the company counted on to sustain sales.

As to the second criterion, we agree with Appellee that the $40.8 million punitive damage award will not cause RJR’s financial ruin because RJR’s stipulated net worth between 2006 and 2008 averaged approximately $8 billion. We are aware of the significant potential liability that RJR faces from thousands of other pending Engle progeny cases, but our review is limited to the impact of the award in this case on RJR. See Martin, 53 So.3d at 1072. Indeed, we have no way of knowing how many of the other Engle progeny cases will result in verdicts for the plaintiff, whether punitive damages will be awarded in those cases, and how much any such awards will be. Moreover, we note that protections exist against successive punitive damage awards that RJR presumably will be able to raise in future cases. See Owens-Corning, 749 So.2d at 488 n. 7 (explaining that “punitive awards in other cases is a proper factor for juries to consider in deciding the amount of punitive damages,” but noting that the defendant is required to present evidence on the amount of punitive damages actually paid); W.R. Grace & Co.-Conn. v. Waters, 638 So.2d 502, 506 (Fla.1994) (requiring a bifurcated trial for punitive damages and explaining that, at the second stage of the trial, the defendant could introduce evidence of prior punitive damage awards in mitigation and “build a record for a due process argument based on the cumulative effect of prior awards”); § 768.73(2), Fla. Stat. (2009) (precluding successive punitive damage awards against a defendant for the same conduct under certain circumstances).

As to the third criterion, the typical measure used to determine whether a “reasonable relationship” exists between the punitive and compensatory damages is the ratio of the awards. See Gore, 517 U.S. at 580, 116 S.Ct. 1589; Martin, 53 So.3d at 1071-72. Although there is no bright-line standard, the Florida Supreme Court observed in Engle that “[s]ingle-digit [ratios] are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution.” Engle, 945 So.2d at 1264-65 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)). The reasoning in Engle accords with the United States Supreme Court’s statement in State Farm that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” 538 U.S. at 425, 123 S.Ct. 1513.

Here, the ratio between the punitive damage award ($40.8 million) and the pre-apportionment compensatory damage award ($10.8 million) is 3.7 to 1, which is less than the 5 to 1 pre-apportionment ratio we upheld in Martin. The 3.7 to 1 ratio is also less than the 4 to 1 ratio the United States Supreme Court has suggested “might be close to the line of constitutional impropriety.” See State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and Gore, 517 U.S. at 581, 116 S.Ct. 1589, and referring to the long history of statutes providing only for up to quadruple damages, as “instructive” as to the multipliers likely to comport with due process). Nevertheless, we hold that the $40.8 million punitive damage award in this case is constitutionally excessive in view of the substantial $10.8 million compensatory damages award.

Both the compensatory and punitive damage awards in this case are significantly higher than any other damage awards approved by a Florida appellate court in a case involving the death of a single smoker. The $40.8 million award in this case is approximately 60% higher than the $25 million award in Martin, which is the highest punitive damage award to be affirmed thus far in an Engle progeny case. Although the record contains ample evidence of RJR’s wanton conduct in marketing cigarettes, we can find nothing in the record to suggest that RJR’s conduct toward Mr. Townsend was any more wanton or reprehensible than it was toward Mr. Martin. The conduct here is essentially the same conduct the Martin jury found to justify “only” $25 million in punitive damages. See Gresham v. Courson, 177 So.2d 33, 39-40 (Fla. 1st DCA 1965) (“[I]f the verdict and resulting judgment do not bear a reasonable relation to the philosophy and general trend of prior decisions in such cases, the judgment must either be set aside and a new trial awarded or a remitti-tur imposed reducing it to an amount which the appellate court in the exercise of its discretionary powers and in good conscience deems sustainable.”). We do not believe that it is necessary, however, for the punitive damages awarded here to be the precise amount of, or capped by the amount of, the punitive damages in Martin.

The Supreme Court has been “reluctant to identify concrete constitutional limits on the ratio between harm ... to the plaintiff and the punitive damages award,” State Farm, 538 U.S. at 424, 123 S.Ct. 1513. Nevertheless, it has identified a circumstance in which caution is required: “When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513. As the Supreme Court noted in Gore, however, there is no “simple mathematical formula” that marks the constitutional line. Gore, 517 U.S. at 582, 116 S.Ct. 1589. See also State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (“We decline again to impose a bright-line ratio which a punitive damages award cannot exceed.”); Martin, 53 So.3d at 1072 (rejecting RJR’s argument that the United States Supreme Court adopted a bright-line 1 to 1 ratio as a limit on punitive damages). We find instructive the reasoning of the Eighth Circuit in Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594 (8th Cir.2005). There the court found that the amount of the punitive damages award was excessive under both state law and federal due process guarantees. Applying the three Gore guidelines as restated in State Farm, the Boemer court found that the punitive award of $15 million was “excessive when measured against the substantial compensatory damages award.” Id. at 603. The court explained that:.

[notwithstanding the absence of a simple formula or bright-line ratio, the general contours of our past decisions lead to the conclusion that a low ratio is called for here.... Factors that justify a higher ratio, such as the presence of an “injury that is hard to detect” or a “particularly egregious act [that] has resulted in only a small amount of economical damages,” are absent here.... [T]here is no evidence that anyone at American Tobacco intended to victimize its customers .... Accordingly, given the $4,025,000 compensatory damages award in this case, we conclude that a ratio of approximately 1:1 would comport with the requirements of due process. Thus, we conclude that the punitive damages award must be remitted from $15 million to $5 million.

Id. (citations omitted).

Here, the $10.8 million compensatory damage award — which is substantial by any measure — justifies a lower ratio than 3.7 to 1. Although we find the $40.8 punitive damage award excessive under the Gore and State Farm criteria, a 1 to 1 ratio is unwarranted, however, because the evidence of the extreme reprehensibility and wantonness of RJR’s conduct was substantial. See Gore, 517 U.S. at 575, 116 S.Ct. 1589 (noting that “the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct”).

In sum, applying the Gore and State Farm criteria, in view of the substantial compensatory damages awarded here, we agree with RJR that the $40.8 million punitive damage award in this case is constitutionally excessive. Thus, it was error to deny RJR’s motion for new trial or remit-titur. Accordingly, we reverse and remand the punitive damages award for the limited purpose of permitting Appellee to choose between a new jury trial solely to determine punitive damages or acceptance of a remittitur judgment on the punitive damages award to be established by the trial court.

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

MARSTILLER, J., concurs; WETHERELL, J., concurs in part and dissents in part with written opinion.

WETHERELL, J.,

concurring in part and dissenting in part.

I agree with the majority that RJR’s first issue on appeal was not adequately preserved (and it is without merit in any event); that Martin is controlling as to the second and third issues; and that the punitive damage award is constitutionally excessive and must be reversed. However, for the reasons that follow, I would also reverse the compensatory damage award.

I joined the opinions affirming the judgments in two prior Engle progeny cases, Martin and R.J. Reynolds Tobacco Co. v. Hall, 70 So.3d 642 (Fla. 1st DCA 2011), but I cannot join the decision in this case. The $5 million non-economic damage awards in Martin and Hall raised my proverbial judicial eyebrow, but the $10.8 million award in this case shocks my judicial conscience. Cf. Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970) (observing that “[n]ot every verdict which raises a judicial eyebrow should shock the judicial conscience”).

I recognize that a damage award should not be declared excessive simply because it is “conscience-shocking” or exceeds the amount the court considers appropriate; rather, as the majority explains, the award should only be disturbed by the court if it is “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla.1977); see also Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622, 627 (Fla.1977). This standard is, as it should be, difficult to meet. However, unlike the majority, I am persuaded that the compensatory damage award in this case meets this standard.

The award is comprised of only non-economic damages for the emotional suffering experienced by Appellee as a result of the death of her husband from lung cancer. I do not question that Appellee’s suffering from the loss of her husband is real and significant and, like the majority, I recognize that these types of damages are inherently difficult to measure and that the task of doing so is typically left to the jury. However, juries do not have free reign to turn widows of life-long smokers into decamillionaires simply because RJR is “a deep-pocket defendant and ‘a present-day popular villain’ ” and non-economic damages are difficult to measure. That is apparently what happened in this case because there is absolutely nothing in the record that would justify anything close to an eight-figure award for Appel-lee’s emotional suffering.

When the damages awarded by the jury have no logical or rational relationship to the extent of the injury suffered by the plaintiff or when the award was unduly influenced by passion and prejudice, the court can and should remit the award or order a new trial on damages. See generally § 768.74, Fla. Stat. (1995) (requiring courts to closely scrutinize damage awards to ensure that they are not excessive using criteria similar to those discussed in Bould and the cases cited therein). The cases cited by Appellee in an attempt to justify the excessive compensatory damage award in this case involved awards to parents for the death of a child, which is a far more traumatic loss than the loss of a spouse to lung cancer after a lifetime of smoking. Cf. Winner v. Sharp, 43 So.2d 634, 637 (Fla.1950) (“Those who have not brought a child into the world and loved it and planned for it, and then have it suddenly snatched away from them and killed can hardly have an adequate idea of the mental pain and anguish that one undergoes from such a tragedy. No other affliction so tortures and wears down the physical and nervous system.”). Additionally, in the McQuillin case relied on by Appellee and the majority, the Fifth District made a point of noting that the $4.4 million non-economic damage award in that case (for a 7-year-old child who lost his mother in a “horrific” car accident) was “on the outer limit in size.” See 840 So.2d at 347.

The non-economic damage award in this case is $6.4 million larger than the “outer limit” identified in McQuillin, and, in my view, the sheer size of the award is a clear indication that the jury was acting on passion and prejudice. Indeed, the only conceivable explanation for the amount of the award comes from Appellee’s closing argument, where her trial counsel suggested that the jury could use the annual compensation of one of RJR’s experts (Dr. Thomas) and one of its executives (Dr. Gentry) as “reasonable gauges or measuring sticks” to value the time Appellee lost with her husband as a result of his premature death from lung cancer. Although the amount awarded by the jury is towards the low end of the range suggested by counsel, there is no logical or rational relationship between the amount RJR pays its executives and experts for their work and the emotional injury suffered by Appellee. Rather, it appears that this false comparison was merely intended to shift the jury’s focus in assessing damages onto the wealth of the defendant who caused the damages, and to that end, counsel’s argument was nothing more than a thinly-veiled invitation for the jury to lavishly compensate Appellee for the death of her husband simply because RJR could afford to do so. This argument was improper because compensatory damages should be based on the loss suffered by the plaintiff, not the defendant’s ability to pay; however, it clearly worked, as reflected by the eight-figure compensatory damage award assessed by the jury.

I recognize that RJR did not object to this argument at trial or raise it as an issue on appeal, and I am not necessarily suggesting that the argument would have met the Murphy test and required reversal had it been raised on appeal. However, the substance of this argument fortifies my view that the jury’s compensatory damage award was based on passion, prejudice, or other improper considerations (namely, RJR’s ability to pay a large award), and not a legitimate assessment of Appellee’s emotional loss. Accord Gresham v. Courson, 177 So.2d 33, 39 (Fla. 1st DCA 1965) (finding support for the conclusion that non-economic damage award was excessive in the fact that the amount awarded by the jury was “the exact amount suggested by counsel for plaintiff in the course of oral argument to the jury and does not appear elsewhere in the trial proceedings.”). Indeed, aside from this argument, there is no way to explain the eight-figure compensatory damage award in this case because the evidence of Appel-lee’s non-economic damages consisted of little more than her testimony describing her long and happy marriage and testimony that her husband’s death has been “very hard” on Appellee. Surely the law requires more than a sympathetic plaintiff testifying that she is saddened by the death of a loved one to justify such a large non-economic damage award.

While I have no trouble concluding that the $10.8 million non-economic damage award in this case is excessive, I do not have a precise answer for what the award should be. However, for the reasons that follow, it appears to me that the high end of a reasonable range of non-economic damages in a case such as this is no more than $5 million.

The compensatory damage award in this case is well outside of this range, and according to the verdict information provided by Appellee, it is one of the highest awards in the Engle progeny cases tried to verdict thus far. The award is one of only five compensatory damage awards exceeding $10 million and it is more than twice the median award. Additionally, the award in this case is five times the largest non-economic damage award upheld by the Florida Supreme Court in Engle, $8 million more than the largest non-economic damage award affirmed by this court in an Engle progeny case, nine times the largest non-economic damage award affirmed by any other district court in an Engle progeny case, and almost 87 times larger than the non-economic damage award to the surviving spouse affirmed in Philip Morris USA, Inc. v. Lukacs, 34 So.3d 56 (Fla. 3d DCA 2010). These comparisons highlight the excessiveness of the compensatory damage award in this case and support my view that the award is far outside the reasonable range within which the jury may properly operate.

Accordingly, for the reasons discussed above, I would hold that the trial court abused its discretion in denying RJR’s motion for a new trial on damages or remitti-tur, and either reduce the pre-apportionment award (as this court did in Gresham and as the Third District did in Goldberg) to no more than $5 million, or remand the case for a new trial on damages. See Rowlands, 549 So.2d at 1382 (“[Wjhere the only problem is a dollar award so excessive to shock the conscience of the court, the trial court has discretion to deny the defendant’s motion for new trial if the plaintiff will accept a remittitur that reduces the award by subtraction to the maximum recovery supported by the evidence.”) (emphasis in original and footnote omitted); § 768.74(2), (4), Fla. Stat. (1995) (same).

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . Punitive damages are not typically subject to apportionment based on comparative fault, see R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1066 (Fla. 1st DCA 2010), rev. den., 67 So.3d 1050 (Fla.2011), but the record indicates that Appellee consented to the trial court's reduction of the punitive damage award to $40.8 million. Nothing in the record suggests that the trial court ordered the reduction because it found the $80 million award excessive and a $40.8 million award appropriate; rather, it appears the reduction was simply the result of a mathematical calculation by the trial court based on the comparative fault percentage found by the jury: $80 million x 51% = $40.8 million.

      . To the extent the district court in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011), disagreed with our decision in Martin because certain jury instructions were not given in Martin, the record here reflects that at Appellee's trial, the judge gave the same instruction as was given in Brown.

      . We are using the jury’s $10.8 million compensatory award, before the reduction due to Mr. Townsend’s 49% comparative negligence. See McQuillin, 840 So.2d at 347.

      . R.J. Reynolds Tobacco Co. v. Gray, 63 So.3d 902 (Fla. 1st DCA) (citing Martin in affirming a $7 million non-economic damage award), rev. den., 67 So.3d 1050 (Fla.2011); R.J. Reynolds Tobacco Co. v. Hall, 70 So.3d 642 (Fla. 1st DCA) (citing Martin in affirming a $5 million non-economic damage award), rev. den., 67 So.3d 1050 (Fla.2011); Liggett Group LLC v. Campbell, 60 So.3d 1078 (Fla. 1st DCA) (citing Martin in affirming a $7.8 million non-economic damage award), rev. den., 67 So.3d 1050 (Fla.2011); Martin, 53 So.3d at 1066 (affirming a $5 million pre-apportionment, non-economic damage award).

      . RJR also contends that the punitive damage award was based on "improper considerations,” including the Engle findings, youth marketing not seen or relied on by Mr. Townsend, and argument of counsel. We reject these claims without further comment. Accord Martin, 53 So.3d at 1070 ("We are satisfied Mrs. Martin produced sufficient evidence independent of the Engle findings to allow the jury to find RJR guilty of intentional misconduct or gross negligence.”).

      . Harm to nonparties caused by the conduct that harmed the plaintiff is admissible and relevant to show the extent of reprehensibility of the defendant's conduct. Philip Morris USA v. Williams, 549 U.S. 346, 355, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). While the jury may consider such evidence when evaluating a defendant's reprehensibility, "a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.’' Id. Punishing a defendant for harm caused to nonparties “creates the possibility of multiple punitive damages awards for the same conduct.” State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408, 423, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The jury here was instructed on the permissible uses of evidence of harm to non-parties.

      . We note that in one of the Engle progeny cases recently affirmed by this Court, the jury awarded $7.8 million in compensatory damages and no punitive damages. See Liggett Group, 60 So.3d at 1078.

      . The 7.58 to 1 ratio referenced in Martin was based on the post-apportionment compensatory damages of $3.3 million, not the $5 million awarded by the jury. See 53 So.3d at 1072. Here, the ratio would be 7.4 to 1 if the post-apportionment damages of approximately $5.5 million were used.

      . Additionally, Appellee has brought to our attention only two other cases in the entire country involving the death of a single smoker in which a punitive damage award higher than the award in this case has been approved on appeal: Williams v. Philip Morris USA, Inc., 344 Or. 45, 176 P.3d 1255 (2008) ($79.5 million), and Boeken v. Philip Morris, Inc., 127 Cal.App.4th 1640, 26 Cal.Rptr.3d 638 (2005) ($50 million).

      .- Although I agree with the reversal of the punitive damage award, I disagree with the statement in the majority opinion that "a 1 to 1 ratio is unwarranted” in this case. On this issue, I recognize the reprehensibility of RJR’s conduct over the years in marketing an addictive product it knew would harm its users while at the same time actively misleading the public about the serious health risks of smoking, and I also recognize that RJR has likely made many billions of dollars over the years from selling cigarettes. Nevertheless, it seems to me that a 1-to-l ratio may very well be appropriate on remand because the $10.8 million compensatory damage award is, as the majority notes, "substantial by any measure” and it clearly includes a punitive component already. Indeed, in the "instructive” Boemer case cited by the majority, the court held that a ratio of approximately 1-to-l was constitutionally required based on a compensatory damage award that was $6.8 million less than the award in this case. See 394 F.3d at 603. I also disagree with the majority’s statement that punitive damages in this case should not be capped at the amount awarded in Martin, particularly in light of the majority’s observation (with which I agree) that there is "nothing in the record to suggest that RJR's conduct toward [Appellee] was any more wanton or reprehensible than it was toward [the plaintiff in Martin ].”

      . I agree with the majority that the determination of whether a damage award is excessive should focus on the amount awarded by the jury, not the amount reduced by the plaintiff's comparative negligence. See note 4, supra.

      . R.J. Reynolds Tobacco Co. v. Hall, 67 So.3d 1084, 1092 (Fla. 1st DCA 2011) (quoting Philip Morris, Inc. v. French, 897 So.2d 480 (Fla. 3d DCA 2004)).

      . See, e.g., Goldberg v. Fla. Power & Light Co., 899 So.2d 1105 (Fla.2005) ($10 million award for parents of 12-year-old child killed in a motor vehicle accident); Parham v. Fla. Health Scis. Ctr., 35 So.3d 920 (Fla. 2d DCA 2010) ($12 million award, reduced by statute to $700,000, for parents of infant who died due to medical malpractice); Gen. Motors Corp. v. McGee, 837 So.2d 1010 (Fla. 4th DCA 2002) ($60 million award for family that was severely injured in a motor vehicle accident, with $15 million attributable to the emotional loss suffered by parents of 13-year-old child who died from serious burns he received in the accident).

      . The majority’s statement that the award in this case is "certainly at the outer limit of reasonableness” appears to set (or, at least, imply) an upper limit on non-economic damage awards in future Engle progeny cases. However, I do not see how the "outer limit” set by the majority can be squared with the "outer limit” set by our sister court in McQuillin, particularly since that case involved a more traumatic loss. Also, I am concerned that the majority has "set the market” far too high and that by affirming the $10.8 million award in this case, the majority has made it nearly impossible for a court to declare an non-economic damage award up to that amount excessive in any future Engle progeny case. As a result, unless the Florida Supreme Court steps in, it appears that juries (at least in this District) will be free to continue awarding Engle plaintiffs non-economic damages that resemble Lotto jackpots simply because the tobacco company defendant has deep pockets and such damages are inherently difficult to measure.

      . The amounts identified by counsel— $400,000 per year for Dr. Thomas and $2.6 million per year for Dr. Gentry — equate to $6 million to $39 million over Appellee’s remaining life expectancy.

      . RJR did not provide the jury or the trial court any guidance on this issue. In fact, it was not until oral argument in this court that RJR first articulated what a proper compensatory damage award in this case might be; there, in response to a question as to what this court should remit the compensatory damage award to if that was the course the court took, RJR's counsel answered "ballpark ... a million dollars.” I recognize why a defendant would not want to "bid against itself” by suggesting a damage award to the jury that might be in excess of what the jury might otherwise be inclined to award, but the case law seems to require that in order to obtain a remittitur from the trial court, the defendant must be able to show what the maximum award should be based on the evidence presented. See Rowlands v. Signal Const. Co., 549 So.2d 1380, 1382 (Fla. 1989); Evering v. Smithwick, 526 So.2d 185, 186 (Fla. 3d DCA 1988) (citing Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla. 1978), for the proposition that "[t]he amount of the excess must be readily apparent from the record” to support a remittitur of the verdict). However, it seems to me that the failure to identify the amount of the excess would not preclude the trial court (or this court) from ordering a new trial on damages if it was convinced that the award was excessive.

      . I recognize that this statement is difficult to square with the prior decisions of this court approving non-economic damage awards of as much as $7.8 million. See note 5, supra. However, I am not persuaded that the awards affirmed by this court to date are a representative sample of Engle progeny cases that should be used to "set the market” for the proper measure of damages in these cases.

      . See Appellee’s Notice of Judgments and Request to Take Judicial Notice, filed Sept. 27, 2011; Appellee's Request to Take Judicial Notice,.filed Nov. 9, 2011.

      . The median compensatory damage award is $4.5 million based on my calculations using the verdict information provided by Appellee. This figure excludes defense verdicts, but includes verdicts awarding both economic and non-economic damages, as well as verdicts in favor of multiple plaintiffs. Accordingly, the median non-economic damage award to a single plaintiff is likely much lower than $4.5 million. Additionally, many of these awards have yet to withstand appellate review.

      . The Engle court reinstated the verdicts in favor of class representatives Farnan and Della Vecchia. See 945 So.2d at 1255, 1276. The total award to Farnan was $2.85 million, but only $1.6 million was for “intangible damages” such as her pain and suffering, mental anguish, and loss of capacity to enjoy life. See Engle v. R.J. Reynolds Tobacco Co., Case No. 94-08273CA, Verdict Form for Phase II, at 17-18 (Fla. 11th Jud. Cir. Apr. 7, 2000). The total award to Della Vecchia was $4,023 million, but only $3.5 million was for non-economic damages, and of that amount, $1.5 million was for the loss of companionship suffered by Della Vecchia’s surviving husband and $2 million was for the loss of parental companionship suffered by her surviving son. Id.

      . Liggett Group LLC v. Campbell, 60 So.3d 1078 (Fla. 1st DCA 2011) (citing Martin in affirming $7.8 million non-economic damage award to spouse of deceased smoker).

      . See R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011) (affirming $1.2 million non-economic damage award to spouse of deceased smoker).

      . The total award affirmed in Lukács was $24,835 million, but only $125,000 was for the surviving spouse's non-economic damages. The jury awarded the surviving spouse $12.5 million in non-economic damages, but the trial court remitted that award to $125,000 because the evidence did not justify damages of the magnitude awarded by the jury. See Lukacs v. RJ. Reynolds Tobacco Co., Case No. 01-03822 CA 23, at ¶¶9-10 (Fla. 11th Jud. Cir. Mar. 22, 2003) (Order on Remittitur).

        . Fla. Power & Light Co. v. Goldberg, 856 So.2d 1011, 1028-29 (Fla. 3d DCA 2002) (summarily reducing damage award from $37 million to $10 million because that amount was not disputed by the defendant and "would not shock the conscience of the court, nor is it grossly disproportionate to awards in similar cases”), vacated on rehearing en banc, id. at 1034 n. 1 (Fla. 3d DCA 2003), reinstated, 899 So.2d 1105, 1108 (Fla.2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roger W. GRIFFIS, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D10-5645.
    District Court of Appeal of Florida, First District.
    Feb. 23, 2012.
    Roger W. Griffis, pro se.
    Pamela Jo Bondi, Attorney General and Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business and Professional Regulation, Tallahassee, for Ap-pellee.
   PER CURIAM.

Roger Griffis appeals the final administrative order of the Florida Department of Business and Professional Regulation, Construction Industry Licensing Board (“DBPR”) rendered on January 26, 2010. The order revoked two licenses the Department had previously issued to Griffis, imposed a fine and ordered Griffis to pay restitution to a customer. Dep’t Bus. & Prof'l Regulation v. Griffis, DBPR case no. 2007-040723.

Griffis did not file his notice of appeal until October 15, 2010. He argues that his late filing should be excused because he did not learn of the final order until October, 2010 due to the Department’s failure to deliver a copy of the order to the state correctional facility where he was serving unrelated sentences at the time the order was issued.

The limitations period for the filing of a notice of appeal of administrative action is jurisdictional. Fla. R.App. P. 9.110(b); Fire & Cas. Ins. Co. of Connecticut v. Sealey, 810 So.2d 988, 990 (Fla. 1st DCA 2002). When the notice of appeal is not filed within 30 days of rendition, “the untimely filing ... precludes the court from exercising jurisdiction over the appeal.” Pennywell v. Dep’t of Revenue ex rel. Woodard, 62 So.3d 19, 20 (Fla. 1st DCA 2011); see also Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (Fla. 4th DCA 2004). Because an appellate court has no jurisdiction to consider a late-filed appeal, it must dismiss the appeal. Tyler v. Chiles, 718 So.2d 811 (Fla. 2d DCA 1998).

In addition, Griffis’ failure to timely file his notice of appeal cannot be excused due to his incarceration because as a licensee of the Department he had a statutory duty to keep the Department apprised of his current mailing address. See §§ 455.275 & 489.124, Fla. Stat. Having failed to do so, Griffis cannot now complain that the Department failed to provide him with notice of entry of the order and of his time limit for appealing the order. As provided in section 455.275(2), Florida Statutes, “service by regular mail to a licensee’s last known address of record with the department constitutes adequate and sufficient notice to the licensee for any official communication to the licensee by the board or the department except where other service is required pursuant to s. 455.225.” Here, the Department mailed its final order to the last known address of record for Grif-fis and the time for Griffis to file an appeal was not tolled by any requirement that the Department conduct an additional search for his mailing address or whereabouts.

DISMISSED.

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: SALTER, J. ROTHENBERG, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. VIRTUAL IMAGING SERVICES, INC., (a/a/o Maria Tirado), Appellee.
    No. 3D11-581.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.

      Banker Lopez Gassier and Mark D. Tinker, St. Petersburg; Shutts & Bowen, and Frank A. Zacherl and Suzanne You-mans Labrit and Maria N. Vernace, Tampa and Miami, for appellant.
    Kane & Kane, and Harley Kane and Joseph R. Littman, Boca Raton; Ausley & McMullen, and John Beranek, Tallahassee, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

This is another in a series of appeals and petitions addressing the 2008 amendment to the personal injury protection (PIP) insurance law authorizing insurers to limit reimbursable charges to 200% of the reimbursable rates under the Medicare Part B fee schedules, section 627.736(5)(a)2.f., Florida Statutes (2008). In this case, the policy issue date and effective date, the insured’s accident date, and the delivery of covered diagnostic services (two MRIs) all occurred after the January 1, 2008, effective date of the amendment.

The sole issue before the county court was one of law: did the insurer correctly apply the PIP law, as amended, in limiting reimbursement to the appellee based on the amendment and fee schedules, or was the insurer obligated to reimburse the amount claimed by the MRI provider to be “reasonable” without reference to the amendment and schedules? The county court found for the appellee, but certified to this court under section 34.017, Florida Statutes (2011), the following question:

MAY AN INSURER LIMIT PROVIDER REIMBURSEMENT TO 80% OF THE SCHEDULE OF MAXIMUM CHARGES DESCRIBED IN F.S. 627.736(5)(a) IF ITS POLICY DOES NOT MAKE A SPECIFIC ELECTION TO DO SO?

The county court aptly observed in her final judgment that the “issue is capable of great repetition in County Courts throughout the State of Florida,” that the same issue is being litigated by this PIP insurer alone, one among many, in “hundreds of lawsuits throughout different counties,” and that uniformity “will serve to avoid the needless waste of judicial resources.”

This court has now decided this issue, and we affirm based on that decision. Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011). This court concluded in that split decision that the 2008 PIP amendment impermissibly and ambiguously incorporated into PIP insurance policies “two different payment calculation methodologies”— “80% of all reasonable medical expenses,” versus “80% of 200% of the maximum allowable amount under the physician fee schedule of Medicare Part B.” Id. at 58.

That opinion does not mean, however, that the issue is so free from debate, unimportant, or unlikely to recur as to preclude further consideration by the Florida courts. Rather, and as the county court correctly noted, this is an issue that is important, recurring, and statewide. The Legislature’s amendment to the PIP statute sought to address the enormous costs and inefficiencies of the law prior to amendment. Litigation and fee-shifting to determine “reasonable” costs of standardized medical procedures should be passé by now. An MRI, for example, is now a common procedure. The medical cost accounting and national metrics supporting the Medicare Part B reimbursement figures for MRIs and other standard medical services are widely used and understood. An alternative charge based essentially on whatever the market will bear, on the other hand, invites litigation. A prevailing provider or insured may also recover attorney’s fees and costs, and resolution of these disputes also requires judicial resources at the expense of all State taxpayers. All of these circumstances are contrary to the original, no-fault objectives of the PIP statute.

Specific claim comparisons from this and another case involving this issue (replicated in those PIP cases that produce claims among the “approximately 250,000 auto accidents involving personal injuries” each year in Florida), illustrate the economics. In this case, the appellee charged $3,600 for the two MRIs in question, and 80% of that amount is $2,880. Under the 2008 amendment, 80% of 200% of the allowable Medicare Part B charge came to $1,989.57. The “reasonable” charge, established after a lawsuit was filed and ruled upon, is over 44% higher than the amount computed using the schedule under the 2008 amendment (without even factoring in the legal and judicial costs of arriving at that result).

In MGA Ins. Co. v. All X-Ray Diagnostic Services, Case No. 3D12-414, the x-ray provider billed $2,475, for which 80% or $1,980 was claimed under the PIP policy. The computation under the 2008 statutory amendment came to 80% of $435.22, for an allowable payment of $348.18. The “reasonable” amount invoiced is over 468% times the amount computed using the fee schedule. Runaway medical insurance costs and claims, of course, are borne by our citizens in the form of higher PIP premiums.

Finally, the Florida Supreme Court has repeatedly urged Florida courts to read statutes relating to the same subject or object in pan materia, in order to harmonize the provisions and give effect to the Legislature’s intent. Fla. Dept. of Highway Safety and Motor Vehicles v. Hernandez, 74 So.3d 1070, 1075 (Fla.2011); Hill v. Davis, 70 So.3d 572, 577 (Fla.2011). Policy provisions that this and other district courts may deem ambiguous or antithetical ultimately may be deemed unambiguous by our Supreme Court. State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566 (Fla.2011). In this case, that Court may ultimately conclude that “eighty percent of all reasonable expenses” for covered services that are not in the schedule of reimbursable amounts for Medicare Part B remains a viable and necessary computation methodology under PIP policies, while any covered service that is in the Medicare Part B schedule should be computed as specified by the 2008 amendment.

For these reasons, as well as those enumerated by the county court in certifying this case to us, we now certify to the Florida Supreme Court the following restated question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WITH RESPECT TO PIP POLICIES ISSUED AFTER JANUARY 1, 2008, MAY THE INSURER COMPUTE PROVIDER REIMBURSEMENTS BASED ON THE FEE SCHEDULES IDENTIFIED IN SECTION 627.736(5)(a), FLORIDA STATUTES, EVEN IF THE POLICY DOES NOT CONTAIN A PROVISION SPECIFICALLY ELECTING THOSE SCHEDULES RATHER THAN “REASONABLE MEDICAL ' EXPENSES” COVERAGE BASED ON SECTION 627.736(l)(a)?

Final judgment affirmed; question of great public importance certified.

SUAREZ and ROTHENBERG, JJ., concur.

ROTHENBERG, J.

(concurring).

I concur with the majority opinion that this Court is bound by our recent decision in Geico Indemnity Co. v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3d DCA 2011) (“Geico I”). I write separately to reiterate my disagreement with the panel opinion in Geico I, which I contend was wrongly decided.

This appeal arises from an action filed by Virtual Imaging Services, Inc. (“Virtual Imaging”), a provider of magnetic resonance imaging (“MRI”) services, against Geico General Insurance Company (“GEI-CO”) to recover additional personal injury protection (“PIP”) benefits. Virtual Imaging provided MRI services to Maria Tirado (“the insured”) under her GEICO automobile insurance policy for injuries she sustained in an automobile accident in 2008. Under an assignment of insurance benefits, Virtual Imaging billed GEICO $3,600 for its services (two MRIs).

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

Relying on the fee schedule provided in section 627.736(5)(a)2.f., Florida Statutes (2008) (“the PIP fee schedule”), which states, “The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges: ... 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B,” GEICO reimbursed Virtual Imaging 80% of the 200% allowable under the Medicare Part B schedule. Under this formula, Virtual Imaging was reimbursed $1,987.57 (80% of $2,487.46), for its services to the insured, which was $892.42 less than 80% of the amounts Virtual Imaging charged.

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

We are bound by this Court’s decision in Geico I. In Geico I, the majority concluded the PIP statute provides two separate methodologies for the reimbursement of reasonable medical expenses and, because the language of subsection (5)(a)2. is permissive, the incorporation of subsection (5)(a)2. in the insureds’ policies creates an ambiguity which must be interpreted in favor of the insureds. I respectfully disagree.

THE PIP LAW

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

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

(emphasis added). The amended statute became effective on January 1, 2008, and governs the insured’s policy. Because the insured’s policy went into effect after January 1, 2008, there is no issue regarding retroactive application of the reenacted, amended PIP statute to the insured’s policy-

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

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

A. The fee schedule was incorporated by law into the insured’s policy.

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

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

B. The insured’s policy also specifically incorporates by reference Florida’s Motor Vehicle No-Fault Law, as amended.

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

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

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

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

Despite the PIP statute’s clear guidance, the majority in Geico I determined the PIP fee schedule’s functionality is “ambiguous.” “[W]hen a statute is unclear or ambiguous as to its meaning, the Court must resort to traditional rules of statutory construction in an effort to determine legislative intent.” Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008). The majority in Geico I purported to resolve the ambiguity “in favor of the insureds” because the policies at issue were insurance contracts. However, the majority in Geico I failed to consider that interpreting PIP insurance policies to cover “the greatest amount possible within the language of the policies” adversely affects insureds by more rapidly depleting their $10,000 coverage limit. In reality, given the prohibition of “balance billing” in section 627.736(5)(a)(5), interpreting PIP insurance policies in favor of the insureds actually requires reading the policies to cover the lowest amount possible.

In addition, a study of the legislative history, which is “the polestar that guides a court’s inquiry under the Florida No-Fault Law,” Rodriguez, 808 So.2d at 85, confirms that the interpretation of the majority in Geico I is at odds with the legislative intent behind the enactment of the fee schedule. Virtual Imaging argues, and the majority in Geico I held, that the PIP statute merely authorizes insurers to offer policies that limit reimbursement to the PIP fee schedule. Under this reading, some insurers would offer policies electing to limit reimbursement under the fee schedule while others would not. In this free market construct, some consumers would accept such a limitation, but others would seek out insurers who do not limit their reimbursements in this way. The fallacy in this interpretation is that it describes the situation as it existed prior to implementation of the PIP fee schedule, while the fee schedule was enacted to remedy the broken PIP reimbursement system.

Prior to the enactment of the fee schedule, the Florida Supreme Court in Holy Cross confirmed that PIP insurers were authorized to offer policies that limit reimbursement to 80% of a contractually agreed-upon rate, stating:

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

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

The “factors” for determining the reasonableness of a fee that the Court referenced are found in section 627.736(5)(a)1., which has been in effect since 2003:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECTION 627.736 DOES NOT PROVIDE FOR TWO SEPARATE REIMBURSEMENT METHODOLOGIES.

The majority in Geico I concluded section 627.736 provides for two separate methodologies for reimbursement: (1) payment of 80% of all reasonable medical expenses under section 627.736(1)(a); and (2) payment of 80% of the fee schedule provided in section 627.736(5)(a)2. I respectfully disagree. There is only one reimbursement methodology under the PIP statute — insurers must reimburse the insured 80% of the reasonable medical expenses incurred. To satisfy the mandatory reimbursement requirement, subsection (5)(a)l. authorizes consideration of federal and state medical fee schedules in determining what is “reasonable”; subsection (5)(a)2. identifies a particular fee schedule that the Legislature has concluded is reasonable; and payment under the fee schedule provided in subsection (5)(a)2. satisfies the PIP statute’s mandatory reimbursement requirement. Thus, there is only one methodology for reimbursement — payment of 80% of the reasonable medical expenses incurred.

THE POLICY DOES NOT PROVIDE FOR GREATER COVERAGE THAN THE PIP STATUTE.

Relying on Nichols and Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 68 (Fla. 4th DCA 2011), Virtual Imaging contends the insured’s policy provides “greater coverage” than the PIP statute’s permissive reimbursement provision, and, therefore, the terms of the policy must control. However, because the insurance policy does not provide “greater coverage” than the PIP fee schedule, Nichols is inapplicable, and for the reasons that follow, I submit that Kingsway was incorrectly decided.

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

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

Interestingly, although the majority in Geico I cites to Kingsway, the majority opinion conflicts with Kingsway, and is decided on completely different grounds. Although both the majority in Geico I and the Fourth District conclude that the PIP statute provides for two different methodologies for reimbursement, the Fourth District concluded that the statute’s provisions are unambiguous, but because the insureds’ policies did not specify the payment methodology contained in subsection (5)(a)2., the insurer could not limit its reimbursement under this provision. Id. In contrast, the majority in Geico I concluded the statutes are ambiguous, and because “[ajmbiguities in insurance contracts are resolved in favor of the insured,” the insurer could not limit reimbursement to 80% of the fee schedule provided in subsection (5)(a)2. without electing to do so in the policy.

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

These insurance policies do not provide greater coverage than the fee schedule. The PIP statute mandates that all PIP insurers “shall provide personal injury protection to the named insured ... [for] eighty percent of all reasonable expenses for medically necessary ... services.” § 627.736(1)(a) (emphasis added). Because there are no exceptions listed in the statute, this reimbursement requirement is unequivocally mandatory across the board. Thus, any PIP reimbursement of less than 80% of reasonable medical expenses would be a statutory violation.

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

In sum, while the policies and statute in Nichols required distinct performances, namely the submission of payment at different times, in this appeal, the insured’s policy and the PIP fee schedule require the same performance — payment of 80% of reasonable medical expenses. Nichols is therefore inapplicable. Additionally, as is clear from the PIP statute’s mandatory reimbursement requirement, the PIP fee schedule outlines a safe harbor method for satisfying both the policy and statutory reimbursement requirements.

CONCLUSION

The PIP fee schedule was incorporated by law and by reference into the insureds’ policies. Consequently, the fact that GEI-CO did not specifically elect in the insured’s policy to calculate reimbursement according to the fee schedule is of no moment. Further, because the PIP statute mandates reimbursement of 80% of reasonable medical expenses in all PIP reimbursement cases, there can only be one reimbursement requirement under the PIP statute: payment of 80% of reasonable medical expenses. Thus, the PIP fee schedule must be construed as a safe harbor reimbursement method of satisfying the PIP statute’s mandatory reimbursement requirement.

CERTIFICATION

I concur with the majority that the issue presented in this case is of great public importance. The Legislature amended the PIP statute to include the PIP fee schedule in an effort to reduce the fraud and enormous costs associated with PIP litigation. However, contrary to the Legislature’s intent, the issue presented here is being litigated in lawsuits across the state, with differing results. As an issue of great public importance, I submit that it should be resolved by our highest court.

SALTER, J., concurs.

      . See, e.g., Geico Indem. Co. v. Virtual Imaging Servs., Inc., 79 So.3d 55 (Fla. 3d DCA 2011), and MGA Ins. Co. v. All X-Ray Diagnostic Servs., Case No. 3D12-414, 2012 WL 1150475 (order denying certiorari entered Feb. 27, 2012).

      .In certifying this question to us in the order below, the county court judge relied upon the Department of Highway Safety and Motor Vehicles estimates.

      . In this case, the insurer’s petition for certio-rari was denied in an unreported order.

      . See, e.g., DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840 (Fla. 4th DCA 2012).

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

      . Section 627.736(5)(a)(5) states:
      If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy benefits.

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

      . The No-Fault Law was scheduled to be automatically repealed on October 1, 2007. See Ch. 2003-411, § 19 Laws of Florida.

      . N.Y Ins. Law § 5108(b).

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

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

      . Section 627.736(5)(a)1. states:
      With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobiles and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
      (emphasis added).


text:
    Gerald GARY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3374.
    District Court of Appeal of Florida, First District.
    April 27, 2012.
    Rehearing Denied June 27, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence but remand for entry of a written order of revocation of probation. The trial court orally found that Appellant willfully and substantially violated condition five of his probation in two ways. Although the court revoked Appellant’s probation, it neglected to enter a formal, written order of revocation. Such an order is required. Fowler v. State, 79 So.3d 868, 868 (Fla. 1st DCA 2012) (citing Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011)). We, therefore, remand for entry of a revocation order consistent with the trial court’s oral pronouncement. Appellant need not be present for the entry of the order. See Fowler, 79 So.3d at 868.

AFFIRMED.

DAVIS, THOMAS, and RAY, JJ., concur.

        Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    William Alex WELLS, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6895.
    District Court of Appeal of Florida, First District.
    June 1, 2012.

      William Alex Wells, III, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the December 16, 2010, order granting rehearing and denying the motion for postconviction relief, in Santa Rosa County Circuit Court case number 95-133-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


author: WOLF, J.

text:
    STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellants, v. D.A., Father of C.A., a minor child, Appellee.
    No. 1D12-0648.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    Ward L. Metzger, Department of Children and Families, Jacksonville; Kelley Schaeffer, Guardian ad Litem Program, Tavares, for Appellants.
    Doris Rompf, Jacksonville, for Appellee.
   WOLF, J.

The Department of Children and Families (Department) appeals from an order denying a petition to terminate the parental rights of D.A., appellee, as to his minor son C.A. The trial court specifically denied the petition for termination based on its findings that the Department failed to make reasonable efforts to assist appellee in completing his case plan and failed to explore relatives for placement.

We find the trial court erred in failing to address two of the grounds for termination alleged by the Department: (1) that continuing the parental relationship with appellee, who was incarcerated, would be harmful to C.A., as set forth in section 39.806(1)(d)(3), Florida Statutes (2011); and (2) abandonment, as set forth in section 39.806(1)(b), Florida Statutes (2011). We find there was competent evidence that would have supported a finding of termination as to either of these grounds. Because the trial court specifically denied the petition for termination based on the Department’s failure to assist appellee with his case plan and to find a relative placement, without addressing the grounds related to subsections 39.806(1)(d)(3) and (l)(b), it is unclear that the trial court actually considered these grounds. Thus, we reverse and remand for the trial court to address these grounds specifically.

Further, the trial court’s finding that the Department failed to make an adequate search for a relative placement is inconsistent with the court’s finding that there was no suitable relative placement for C.A.’s brother, D.A. In the Interest of D.A., No. 16-2010-DP-388-AXXX (Fla. 4th Cir.Ct. Feb. 8, 2012) (The cases were tried together below, and the same evidence was presented for both children on the issue of relative placement). See also K.W. v. Dep’t of Children & Families, 959 So.2d 401, 402 (Fla. 1st DCA 2007) (“[T]he possibility of a relative placement is plainly not a reason to delay a decision to terminate parental rights if termination is otherwise in the manifest best interest of the child.”); § 39.810(1), Fla. Stat. (2011) (“If a child has been in a stable or preadoptive placement for not less than 6 months, the availability of ... a placement with a relative, may not be considered as a ground to deny the termination of parental rights.”).

For the foregoing reasons, we reverse and remand for further proceedings.

REVERSED and REMANDED.

LEWIS and THOMAS, JJ., concur.


text:
    BLUEGREEN VACATIONS UNLIMITED, INC., Appellant, v. JOSEPH M. SCHEYD, JR., P.A., Hubert A. Laird; and MSB of Destin, Inc., Appellees.
    No. 1D11-3863.
    District Court of Appeal of Florida, First District.
    June 6, 2012.

      Charles F. Beall, Jr. of Moore, Hill, & Westmoreland, P.A., Pensacola, and Paul A. Wilson of Litvak, Beasley, & Wilson, LLP, Pensacola, for Appellant.
    Patrick K. McCarthy, Destín, for Appel-lees.
   PER CURIAM.

Bluegreen Vacations Unlimited, Inc., (“Bluegreen”) appeals from a final judgment ruling that it, as the purchaser, breached a contract for the purchase of land by terminating the contract without a proper basis for doing so. Some of the trial court’s oral pronouncements suggest that it concluded, as a matter of law, that Bluegreen was required to obtain a decision from the City Council on its application for a development order in order to fulfill its obligation under the contract to seek governmental approval of its anticipated development and preserve its right to terminate the contract if the governmental approval was denied. We do not interpret the contract as imposing such a requirement. The contract required Blue-green to exercise good faith and due diligence in seeking governmental approvals with requirements that were acceptable to Bluegreen, acting reasonably. To determine, factually, whether Bluegreen did so, the trial court was required to- consider the entire application process. While we recognize that there may be sufficient evidence in the record to support a finding that Bluegreen failed to meet its obligations under the contract, we are not certain whether the trial court’s ruling was based on a consideration of the entire application process or whether it stemmed from undue emphasis on the endpoint of the process without regard to other factors. Because it is unclear whether the trial court’s ultimate finding of breach was colored by a misinterpretation of the contract, we cannot affirm based on the evidence that would support that finding under a proper construction. See Featured Properties, LLC v. BLKY, LLC, 65 So.3d 135, 138 (Fla. 1st DCA 2011) (noting this Court’s lack of authority to make factual findings in the first instance). As a result, we reverse and remand for clarification and further proceedings. Cf. WSOS-FM, Inc. v. Hadden, 951 So.2d 61, 64 (Fla. 5th DCA 2007). If the trial court’s first ruling was based on a misinterpretation of the contract, as construed in this opinion, the court may reconsider the result.

REVERSED and REMANDED.

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Nancy WEAR, Appellant, v. ALCA CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D11-1798.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Nancy Wear, in proper person.
    Gaebe Mullen Antonelli & DiMatteo and Miriam Merlo, Coral Gables, and Elaine D. Walter, for appellee.
    Before SALTER and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal, primarily claiming insufficiency, of a final judgment for attorney’s fees and costs, which was entered after Wear v. Alca Condominium Ass’n, Inc., 34 So.3d 102 (Fla. 3d DCA 2010). As conceded by the appellee, we remand for modification of the judgment by providing for an additional award of interest on the costs, from June 10, 2010, the date of the judgment as to which the order of entitlement was entered below. No other error has been demonstrated.

Affirmed and remanded.


text:
    DIVERSIFIED DEVELOPMENT OF KANSAS CITY, INC./BRIDGEFIELD INSURANCE COMPANY, Appellants/Cross-Appellees, v. Justo SANCHEZ, Appellee/Cross-Appellant, and D & T Enterprise Group, LLC/Chartis Claims, Inc., Appellees/Cross-Appellants.
    No. 1D11-5170.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Michael L. Cantrell of the Cristal Law Group, Tampa, for Appellants/Cross-Ap-pellees Diversified Development of Kansas City, Inc./Bridgefield Insurance Co.
    Ivan D. Voronec of Morgan & Morgan, P.A., Tampa, and Bill McCabe, Longwood, for Appellee/Cross-Appellant Justo Sanchez.
    Mark K. Eckels and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville for Appellees/Cross-Appellants D & T Enterprise Group, LLC/Chartis Claims, Inc.
   PER CURIAM.

In this workers’ compensation matter, Appellants argue that the Judge of Compensation Claims (JCC) erred on four counts, none of which have merit. Accordingly, we AFFIRM the issues on appeal without further comment. On cross-appeal, Claimant argues that the JCC erred in denying his claim for penalties and interest upon awarding him temporary total disability benefits. Appellants concede that the JCC erred in not doing so. Based on Appellants’ concession, we REVERSE the denial of penalties and interest and REMAND this matter for entry of an order awarding Claimant penalties and interest due to the late payment of temporary total disability benefits.

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Ronald Austin MILLSAP, Appellant, v. STATE of Florida, Appellee.
    No. 5D113612.
    District Court of Appeal of Florida, Fifth District.
    June 12, 2012.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Lowry v. State, 963 So.2d 321 (Fla. 5th DCA 2007), review denied, 977 So.2d 576 (Fla.2008).

SAWAYA, MONACO and COHEN, JJ., concur.


author: CRENSHAW, Judge.

text:
    Dorothy FITZHERBERT and Jeffrey Fitzherbert, Appellants, v. INLAND U.S. MANAGEMENT, a foreign limited liability corporation, and R. Daniel Guinsler, Appellees.
    No. 2D11-4003.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.
    John L. Salter of Law Office of John L. Salter, P.A., Newberry; K. Mitch Espat of Powell & Espat, Tampa; and Audrey H. Schechter of Law Office of Audrey Hildes Schechter, Largo, for Appellants.
    Marilyn Muir Beccue of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Tampa; and Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellee Inland U.S. Management.
    No appearance for remaining Appellee.
   CRENSHAW, Judge.

Dorothy and Jeffrey Fitzherbert appeal a final summary judgment entered in favor of Inland U.S. Management and R. Daniel Guinsler (collectively Inland). The Fit-zherberts previously filed a negligence action against Inland seeking damages for injuries Mrs. Fitzherbert sustained after tripping on the side of a ramp in front of a Marshalls store on October 27, 2007. Because we conclude that Inland’s summary judgment evidence was insufficient to establish as a matter of law that Inland discharged its duty, we reverse the final summary judgment and remand for further proceedings.

The Fitzherberts contended that Mrs. Fitzherbert fell because the ramp and adjoining road surface were not properly painted or repaired. Therefore, they believed that Inland had a duty to detect and warn of dangerous conditions on the premises and a duty to exercise reasonable care in the maintenance, inspection, and repair of the premises. Inland moved for final summary judgment, arguing that the condition of the ramp and the contiguous pavement was not a dangerous condition as a matter of law and that it had no duty to warn patrons of the open and obvious condition of the ramp and surrounding pavement. The trial court conducted a hearing and, based on Inland’s summary judgment evidence, found that Inland had no duty to warn because the sidewalk and ramp did not create a dangerous condition or foreseeable zone of risk. Accordingly, the trial court concluded that Inland was entitled to a judgment as a matter of law.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The party moving for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact and must tender competent evidence to support the motion. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979). Our review of a trial court order granting a motion for summary judgment is de novo. Sherry v. Regency Ins. Co., 884 So.2d 175, 177 (Fla. 2d DCA2004).

Here, the parties’ arguments below focused on whether Inland was entitled to a judgment as a matter of law over its duty to warn of an alleged dangerous condition. Yet the trial court’s determination on Inland’s duty to warn did not discharge Inland of its duty to maintain the premises in a reasonably safe condition.

In Bryant v. Lucky Stores, Inc., 577 So.2d 1347 (Fla. 2d DCA 1990) (en banc), this court distinguished between the types of duties owed to a business invitee by a landowner. Mrs. Bryant sustained injuries in front of a supermarket when she stepped from the sidewalk onto a raised speed bump in the fire lane and fell. Id. at 1348. She and her husband filed an action against the owner of the premises, “asserting that the speed bump was not ‘reasonably visible’ to pedestrians and constituted a hazardous condition of which Lucky Stores had a duty to warn.” Id. Lucky Stores moved for summary judgment, asserting that the speed bump was an open and obvious condition which it had no duty to warn about. The trial court agreed with Lucky Stores and granted final summary judgment in its favor.

This court reversed, holding that a party moving for summary judgment in a negligence case must show that there was no duty owed to the plaintiff or that it did not breach a duty which was owed. Id. at 1349. Ultimately, we determined that there were disputed questions of fact as to whether Mrs. Bryant should have seen the speed bump and whether the manner in which the speed bump was placed constituted an unsafe condition. See id. In so doing, this court pointed out that Lucky Stores also owed a duty to Mrs. Bryant “to maintain its premises in a reasonable and safe manner.” Id.; see also Hogan v. Chupka, 579 So.2d 395, 396 (Fla. 3d DCA 1991) (“While the open and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not discharge the landowner’s duty to maintain the property in a reasonably safe condition.”).

The trial court in this case ruled that there was no duty to warn based on the obvious conditions of the ramp and the surrounding surface. However, Inland failed to provide any attachments in its summary judgment motion demonstrating the nonexistence of any genuine issue of material fact as to its duty to maintain the premises, and the trial court neither discussed nor made such a determination in the final summary judgment. Therefore, Inland simply failed to meet its burden to establish that it was entitled to a judgment as a matter of law, and we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

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


author: PER CURIAM. NORTHCUTT,

text:
    Cedar HAMES and Nora H. Scholin, Appellants/Cross-Appellees, v. The SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee/Cross-Appellant.
    No. 2D11-1817.
    District Court of Appeal of Florida, Second District.
    June 15, 2012.
    David Smolker and Jay J. Bartlett of Bricklemyer Smolker & Bolves, P.A., Tampa, for Appellants/Cross-Appellees.
    Laura Jacobs Donaldson, General Counsel, and Joseph J. Ward, Assistant General Counsel of Southwest Florida Water Management District, Brooksville, and Dominick J. Graziano of Bush Graziano & Rice, P.A., Tampa, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.

NORTHCUTT,

Judge, Specially concurring.

I join in the panel’s decision to affirm, and I write separately to commend the trial judge for his deft handling of this complex case and for his thoughtful final judgment, which aided our review.