author: PER CURIAM. SALTER, J.

text:
    MASTER TECH SATELLITE, INC., etc., Appellant, v. MASTEC NORTH AMERICA, INC., etc., Appellee.
    No. 3D08-2509.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 20, 2010.

      Arthur Joel Berger, Miami, for appellant.
    Riehard D. Lara, Miami, Valentina M. Tejera, and Mase Lara Eversole, for ap-pellee.
    Before GERSTEN, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

Master Tech Satellite, Inc., (“Satellite”) appeals from a summary final judgment in favor of Mastec North America, Inc., (“Mastec”) in an action to recover for services rendered in installing digital satellite equipment. We affirm.

Mastec contracted for Satellite to install residential digital satellite systems. Satellite agreed that it was fully qualified and licensed to undertake the duties required under the contract, and further agreed to “be responsible for any permits, licenses, or other authorizations necessary for [Satellite] to perform the [contracted-for work].” Satellite did some work installing satellite equipment and subsequently sued for payment.

During discovery, Mastec learned that Satellite was neither licensed nor certified to install satellite equipment. Mastec moved for summary judgment based on section 489.532, Florida Statutes (2004), which makes an unlicensed contractor’s contracts unenforceable. Mastec also amended its answer to include an affirmative defense based on section 489.532.

Mastec submitted the affidavit of its senior vice president (“the SVP”). The SVP attested that the work Satellite performed included installation of “low notice blocks” (“LBNs”), which requires wiring to an electrical source of approximately 18 volts and grounding by the installer. The SVP further stated that he investigated and confirmed with the Florida Department of Business and Professional Regulation that Satellite never held a contractor license to perform digital satellite antenna installations.

In response, Satellite submitted two affidavits, one from Satellite’s president, and another from a licensed electrician. Both affiants generally stated that satellite television installation does not involve electrical work. The trial court granted Mastec’s motion for summary judgment, and Satellite appealed.

Satellite contends that the trial court erred in granting summary judgment because Mastec failed conclusively to establish Satellite’s status as an unlicensed contractor. On the other hand, Mastec asserts that the trial court, upon being presented with unrebutted evidence that Satellite was an unlicensed contractor, properly granted summary judgment under section 489.532. We agree with Mas-tec.

A trial court may enter a summary judgment when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Once the moving party establishes that there are no genuine issues of material fact, the burden shifts to the nonmoving party to show the existence of a disputed issue of fact. 191 So.2d at 43-44. A party does not create a disputed issue of fact, however, by merely stating factual conclusions. See, e.g., Carter v. Cessna Fin. Corp., 498 So.2d 1319 (Fla. 4th DCA 1986).

In Florida, in order to engage in electrical contracting, a person must be certified or registered with the state. § 489.516(2), Fla. Stat. (2004). The statutes generally define an “electrical contractor” as any person “who has the experience, knowledge, and skill to install, repair, alter, add to, or design ... electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form.” § 489.505(12), Fla. Stat. (2004). Additionally, section 489.532 states that, “As a matter of public policy, contracts entered into ... by an unlicensed contractor shall be unenforceable in law or equity by the unlicensed contractor.”

Here, the trial court properly determined that there were no genuine issues of material fact and that Satellite’s installation work required an electrical contractor’s license. Mastec’s SVP expressly stated that installation of LBNs included wiring to an electrical source and grounding. The parties’ contract also required Satellite to obtain a low-voltage electricity license. Satellite’s conclusory affidavits were insufficient to create a disputed issue of fact.

Accordingly, because section 489.532 proscribes court enforcement of an unlicensed contractor’s contract, the trial court correctly entered summary judgment in favor of Mastec.

Affirmed.

GERSTEN and SHEPHERD, JJ., concur.

SALTER, J.

(dissenting).

I respectfully dissent. The final summary judgment for Mastec should be reversed for two independently sufficient reasons. First, Mastec’s affidavit fails to eliminate genuine issues of material fact raised by Satellite’s opposing affidavits. Second, this case is one in which a contractor (appellee, Mastec) attempts to take financial advantage of its own subcontractor (appellant, Satellite), requiring a particularly skeptical look at Mastec’s “discovery” that its own subcontractor lacks the allegedly-neeessary electrician’s license. Mastec made no showing that it had either (a) reimbursed the consumers for the services performed by Satellite but paid for through DirecTV to Mastec (attaching satellite dishes to residences and apartments, and making service calls to help DirecTV customers operate or replace their satellite television recorders and receivers), or (b) sent a licensed electrician to those homes and apartments to be certain that the work done by Satellite conformed to the allegedly-applicable codes.

Mastec held out Satellite as a subcontractor qualified to install home satellite antennas, and Mastec charged and collected from the homeowners for Satellite’s work after the installation. Only when other disagreements arose did Mastec decide that Mastec could avoid payment to Satellite because Satellite supposedly needed an electrical contractor’s license. We should not permit a statute enacted for the protection of the public (from unlicensed contractors) to become the contractor-who-should-know-better’s device for stiffing the subcontractor but keeping the homeowners’ payments.

Background

The undisputed facts are straightforward. Mastec is part of a large publicly-traded corporate group with lines of business that include telecommunications products and services. Mastec provided equipment installation and service to national cable and satellite television providers, and it hired Satellite to execute work orders for specified dollar amounts. Under two contracts between the parties, Satellite was to install and service residential satellite dishes, outlets, receiver/decoders, and similar equipment. Mastec billed the satellite television customer, and Satellite billed Mastec for the flat amounts set forth in the contract.

Under them 2003 contract, Satellite agreed to be “responsible for any permits, licenses or other authorizations necessary for [Satellite] to perform the work,” and Satellite’s installers were to wear uniforms approved by Mastec. A 2005 “Home Services Subcontractor Agreement” provided additional terms and related particularly to the installation of home satellite equipment used for DirecTV systems. Under this agreement, Mastec required Satellite’s employees to be qualified, to have completed “SBCA certified installer training,” and to comply with “customer relations skills, technical skills and adherence to dress standards.” Another provision obligated Satellite to comply with “all safety, nondiscrimination, equal employment, drug and alcohol, business ethics and other rules and policies of [Mastec] and DirecTV and all applicable federal and state laws, rules and regulations of any governmental authority” in performing its work, and authorized Mastec to confirm and verify that compliance. Mastec required Satellite to waive any mechanic’s or other lien for its work and equipment, and Satellite’s right to payment was contingent on Mastec’s receipt of payment from DirecTV (which would in turn bill and collect installation charges from the homeowner). The agreements did not specifically obligate Satellite to use a licensed electrician for the installation at a home, nor did they identify any licenses, certificates, electrical codes or standards that might apply.

For reasons that are disputed, Mastec and Satellite parted company. In May 2005, Satellite commenced the lawsuit below seeking $301,553.00 for installation and other services allegedly rendered from January through April of that year. Copies of detailed invoices and job information were attached to the complaint. Mastec admitted that Satellite “purported to render services as a subcontractor,” but denied that Satellite was entitled to payment.

Mastec countered with an amended answer, affirmative defenses, and counterclaim against Satellite and six individuals, alleging breaches of contract, conspiracy, fraud, and diversions of “business, resources, personnel, and funds” to Satellite. Five of the six individual counter-defendants (which Mastec referred to as the “Gang of Five”), were former employees of Mastec and its “advanced technologies division” involved in Mastec’s work for DirecTV. The sixth individual counter-defendant allegedly was the spouse of a member of the “Gang of Five.” Essentially, Mastec alleged that its own employees allowed Satellite to operate out of Mastec’s warehouse “and to use the facilities, telephone lines, and other appurtenances free of charge.” Mastec further alleged that as work orders came in for residential satellite dish installations, one or more members of Mastec’s “Gang of Five” would pick the most lucrative jobs for diversion to Satellite or another (non-party) subcontractor. Allegedly, Satellite picked up equipment and materials from the Mastec warehouse, used it, and did not pay for it.

The description of a nasty business dispute in Mastec’s affirmative defenses and second amended counterclaim omits one salient allegation that was the keystone of the motion for summary judgment by Mas-tec. There was no allegation that Satellite lacked any necessary electrician’s license or that it unlawfully performed any electrical work.

Nevertheless, and without amending its pleadings, Mastec filed a motion for summary judgment asserting that Satellite was “never licensed to install or repair digital home satellite systems,” and that section 489.532, Florida Statutes (2005), precludes Satellite from recovering damages “regardless of the legal theory asserted.” Section 489.532(l)(a), a provision within the title, chapter, and part entitled “Electrical and Alarm System Contracting,” directs that an unlicensed contractor is precluded from enforcing “in law or in equity” any contract requiring licensure based on the “scope of the work to be performed under the contract.” The contractor may be considered “licensed” if it has “a primary or secondary qualifying agent” in accordance with part II of Chapter 489. Seventeen months after filing the motion for summary judgment, Mastec amended its affirmative defenses to add section 489.532 as an affirmative defense.

Mastec’s motion for summary judgment was supported by an affidavit of a senior vice president, Mr. Retherford. Mr. Reth-erford declared that he had “operated in the field of digital satellite antenna installation and servicing as an installer and supervisor since 1994;” that the scope of work to be performed by Satellite under the written contracts with Mastec included “installation of electrical wiring to conduct no more than 50 volts of electricity as part of the satellite antennas” and installation of a low noise block component “attached to each satellite dish requiring a low voltage power source of approximately 18 volts and requiring wiring to an electrical source and grounding by the installer;” and that based on his investigation, Satellite had never held any license to perform digital satellite antenna installations. Mr. Reth-erford’s affidavit did not qualify him as a licensed electrical contractor or electrician at any time; did not express any qualified expert opinion that Satellite’s work required any specific license or certificate; and did not address whether Satellite employed a qualifying agent with any such license or certificate. His affidavit did not deny the allegation in the amended complaint or the plain language of the Mastec-Satellite agreements regarding Mastec’s receipt and retention of the homeowners’ payments for the supposedly-unlicensed work performed by Satellite. His affidavit reported that he had checked with the Florida Department of Business and Professional Regulation (DBPR) to investigate whether Satellite was licensed as an electrician, and that he confirmed Satellite held no such license.

For its part, Satellite filed opposing affidavits executed by its president and by a licensed electrician who provided electrical quality control and authorized Satellite to “operate under my license.” The president of Satellite, though not herself a licensed electrician, declared that Satellite “never installed, maintained, repaired, altered or extended any low voltage electrical construction or wiring;” that Satellite did not ground live wire, but grounded the wire from a dead source that was not plugged in; and that Satellite did not engage in the electrical trade. The licensed electrician explained in his affidavit that Satellite does not work with live electrical cables, merely running an antenna cable from the dish to the receptor cable below. He further declared that the “grounding” does not involve the electrical current from the house; it “is done in case of electrical charges originating from lightning.”

The trial court granted Mastec’s motion for summary judgment, and this appeal followed.

Analysis

We review the final summary judgment de novo. The trial court was not to weigh the evidence or adjudge the credibility of the witnesses; all doubts and inferences were to be resolved in favor of Satellite; and if the “slightest doubt” existed, then summary judgment should not have been granted. Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243-44 (Fla. 3d DCA 2006).

Mastec’s affidavit and Satellite’s two opposing affidavits created genuine issues of material fact regarding at least these issues: (1) the requirement that Satellite be licensed or certified at all for the type of work performed, and (2) if there was any such requirement, whether Satellite had a licensed qualifying agent for the work. Mastec’s affiant does not appear to have been qualified to express any opinion regarding the electrical work allegedly performed. The definition of “electrical contractor” in section 489.505(12), Florida Statutes (2005), includes terms that are fact intensive: “a person who conducts business in the electrical trade field and who has the experience, knowledge, and skill to install, repair, alter, add to, or design, in compliance with the law, electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form.... ” Rules, electrical codes and standards, and interpretive positions in particular cases guide the DBPR Electrical Contractors’ Licensing Board in determining whether a license is or is not required for specific types of work.

My learned colleagues agree with the trial court that Satellite was required to install “wiring” and that this must require a license. In fact, however, Satellite provided evidence that voice and data cables are exempt from National Electrical Code and licensure requirements. Did “wiring” in Satellite’s scope of work refer to lines conducting electricity, or to voice and data cables? Is an “outlet” a receptacle for a data cable rather than a standard 110-volt electrical outlet? The majority’s references to Mastec’s “investigation” with DBPR and to a DBPR on-line webpage regarding “satellite television wiring” are not “summary judgment evidence” as defined in Florida Rule of Civil Procedure 1.510(c) and would not be admissible in evidence. No licensed electrician or representative of DBPR offered a professional opinion that Satellite’s work had to be licensed. A genuine issue of fact exists regarding the types of work performed by Satellite.

The limited record before us does not establish that Satellite was required, as a matter of law, to obtain an electrical license for the work it performed and for which it sought payment. In the recent case of MMII v. Silvester, 42 So.3d 876 (Fla. 4th DCA 2010), the Fourth District conducted a similar analysis and determined that an “elaborate audio entertainment system” in a residence, requiring the installer to deal in “low voltage electricity and wiring,” does not require the installer to obtain a contractor or electrical contractor license. For these reasons, the summary judgment should be reversed.

The second legal issue presented by the pleadings and this record is whether a statute expressly enacted for the protection of the homeovmers, not Mastec, from “incompetent or dishonest contractors” is now to be relied upon by the sophisticated contractor, Mastec, which contracted for, oversaw, and collected payment for, the purportedly unlicensed work. In my view, the statutory bar should not be available to a contractor that knowingly retains the payments for the very work that Mastec now contends was unlawfully performed. Absent detailed pleading and the disgorgement of the proceeds of the supposedly-unlawful work to the homeowners who paid, Mastec should be estopped to assert the statutory bar. Moreover, in its counterclaims, Mastec sought to recover from Satellite the proceeds of “the most lucrative installation jobs” supposedly diverted by Mastec’s “Gang of Five” employees to Satellite. Mastec’s contrary position in its motion for summary judgment (that no such proceeds could be payable because the installations were unlicensed) left open a genuine and material factual issue. Our de novo review must include Mastec’s directly contradictory positions that it owes Satellite nothing for the installations (because the work was purportedly unlicensed); that Mastec may nonetheless retain the payments from consumers for Satellite’s work; that Mastec need not remedy the supposedly-unlicensed work as part of its obligation to its own customers; and that Satellite owes Mastec money for installations that should not have been directed to Satellite by Mastec employees. To ignore that sophistry is to countenance misapplication of the statutory bar. See Kvaerner Const., Inc. v. Am. Safety Cas. Ins. Co., 847 So.2d 534 (Fla. 5th DCA 2003) (finding that contractor’s knowledge regarding subcontractor’s unlicensed work barred indirect recovery from surety by contractor).

For this second reason as well, I respectfully dissent. I would reverse the summary judgment and remand this case for trial.

      . The Florida Department of Business and Professional Regulation’s webpage also states that an electrical license is required to install satellite television wiring. Http:www.my floridalicense.co m/dbpr/pro/division/Services thatrequirealisence_Electrical.

      . After Mastec's affirmative defenses and counterclaims were filed, Satellite amended its complaint to add claims for violations of Florida’s Deceptive and Unfair Trade Practice Act, sections 501.201-.23 (2005), and fraudulent inducement. Mastec then filed an answer and affirmative defenses to the amended complaint and Mastec’s own second amended counterclaim.

      . Although Mr. Retherford declared that he had been a satellite antenna installer and supervisor for 12 years, he did not say that he himself had ever obtained any license or certificate to perform that work.

      . Indulging all inferences in favor of the non-moving party as required by the applicable standard of review, the affiant agreed to be a qualifying agent for Satellite.

      . Installation or repair of lightning rods or related systems is expressly exempted from the electrical contracting licensure provisions in section 489.503(22), Florida Statutes (2008).

      . Additionally, Satellite’s contracts and invoices in the record reflect numerous "service calls” for $25.00, "Tivo upgrades” for $10.00 each, and other recorder/receiver charges. Mastec's affidavit does not address these charges or the work performed. As a matter of common sense, Mastec reviewed the invoices for a satellite dish installation — for $60.00 — a charge that hardly could have in-eluded any significant work by a licensed electrician. On the record before us, Mastec could not have been shocked, shocked, to find that Satellite's employees were dish installers, not electricians.

      . Castro v. Sangles, 637 So.2d 989, 991 (Fla. 3d DCA 1994) (reviewing the history of, and rationale for, the licensure requirement).


source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    William ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2615.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant claims that the trial court committed reversible error in denying his motions (1) to suppress his statements to two Jehovah’s Witnesses based on the clergy communications privilege; (2) to suppress his statements to a jailer, a map drawn by him, and all evidence recovered based on the map; (3) for judgment of acquittal on the charge of first-degree murder because there was insufficient evidence of premeditation; and (4) for judgment of acquittal on the charge of tampering with evidence because there was insufficient evidence of a pending or imminent investigation. We affirm the denial of appellant’s motion for judgment of acquittal as to both charges without further discussion. For the reasons that follow, we also affirm the denial of appellant’s motion to suppress.

I.

A.

On November 7, 2007, the victim, appellant’s 79-year-old mother, was reported missing after she failed to keep her scheduled appointments as a real estate agent. Appellant, who lived with the victim, told the sheriff that his mother left with a man in a dark-colored pickup truck. Deputies searched the immediate area and gained access to the victim’s truck, which contained the victim’s driver’s license, credit cards, cell phone, business cards, appointment book and money. The following day, law enforcement from several agencies and volunteer searchers with dogs began searching the victim’s 22-acre property and the surrounding area. At approximately noon, appellant agreed to talk with two investigators at the sheriffs office about the possible whereabouts of the victim. Appellant specifically was told that he was not under arrest. Eventually, appellant conceded that he made up the story about the victim leaving with a man in a pickup truck. After three hours of questioning, appellant said that he wanted a lawyer, and the interview ended. Appellant was arrested on an unrelated charge of possession of a firearm by a convicted felon, and was held in the county jail on that charge.

On November 11, 2007, while he was still in custody on the firearm charge, appellant motioned for two elders of the Jehovah’s Witnesses, Joseph Westbrook and Michael Prentice, to come over to his holding cell. After receiving permission, West-brook and Prentice entered the cell, and Prentice asked appellant what was wrong. Appellant told them that his mother had been killed, “they were trying to pin it on him,” and he “messed up” by disposing of the body. Appellant explained that he had been drinking for days and, when he came home after working on his tractor, he found his mother lying in a pool of blood with no pulse. When appellant said that he did not want to talk about it anymore, Prentice quoted scripture about the resurrection. According to Westbrook, appellant did not indicate that he was seeking spiritual counseling and guidance and did not want to talk about the Bible or pray. Westbrook and Prentice left appellant’s cell and told Deputy Law what appellant had said. Law told them that appellant’s mother was missing and presumed dead, that they could not find the body and that, if appellant was talking, they should go back and talk to him. They went back, and Westbrook told appellant to “tell them where the body is because then the forensic evidence should be able to clear you and show your innocence.” Appellant was quiet for a while and then said that he needed to talk to a lawyer. Westbrook brought up the resurrection again, asked appellant if he wanted to see his mother again, and referred to the Bible where Jesus said, “All of those in memorial tombs would come out.” Westbrook noted that appellant seemed receptive to this message. Westbrook asked if appellant wanted his mother to have a decent burial, and urged him to “tell them where she’s buried.” Appellant responded that his mother was not buried, but was “on top of the ground” on the farm, in bones or in pieces. Appellant again said that he wanted to talk to a lawyer. The two elders then left and were asked to write a statement about what appellant had said. On the issue of confidentiality, Westbrook explained that Jehovah’s Witnesses believed that if they had knowledge of a crime and did not disclose it, they would be “a sharer in that.”

Shortly after he spoke to the Jehovah’s Witnesses elders, appellant motioned for one of the jailers, Officer Golub, to come to his cell. Appellant asked Golub his name and said, “It was an accident.” Golub asked, “What was an accident?” Appellant responded, “Mother.” Appellant went on talking, saying that he was “F’ed up,” that her bones were in a field and the rest was in the flower beds, that it was an accident, that he did not mean for it to happen, and that he burned her and spread her out in the field. Appellant described the location of the field, but Golub could not understand the field’s location and placed a pen and paper on appellant’s bed. Appellant drew a map, and Golub called the sheriff. Golub acknowledged that he was aware that appellant was in jail on a firearm charge, that appellant had been questioned about his mother’s disappearance, and that a massive search for her body was being conducted while appellant was in jail. The map drawn by appellant was taken to the sheriff, who took a cadaver dog to the area, where the dog alerted to bones on the surface. According to the sheriff, the area would have been searched even without a map, and the bones were in plain view and would have been found eventually.

B.

On March 28, 2008, appellant was indicted for first-degree murder, abuse of a dead human body and tampering with evidence. Prior to trial, appellant filed a motion to suppress (1) his statements to the two elders of the Jehovah’s Witnesses based on the clergy communications privilege; (2) his statements to Officer Golub after he invoked his right to an attorney; (3) the map drawn by him; and (4) all evidence recovered based on the map. After holding a hearing, the trial court denied the motion to suppress, concluding that appellant’s statements to the Jehovah’s Witnesses elders were not subject to the clergy communications privilege because (1) appellant’s conduct demonstrated that he was not seeking spiritual counsel from the elders, but was merely trying to get someone to listen to his side, and (2) the elders did not qualify as members of the clergy. The court also concluded that the statements initiated by appellant to Officer Go-lub, while appellant was in custody on an unrelated offense, were not subject to suppression and that the victim’s remains inevitably would have been discovered.

At the conclusion of appellant’s trial, the jury returned a verdict finding appellant guilty on all three counts as charged. Appellant was sentenced to life in prison ■without parole on the murder count, followed by concurrent sentences of fifteen and five years in prison on the remaining counts. This appeal follows.

II.

A.

Appellant claims that the trial court committed reversible error in denying his motion to suppress his statements to the Jehovah’s Witnesses elders based on the clergy communications privilege. Pursuant to section 90.505(2), Florida Statutes (2007), “[a] person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.” For the clergy communications privilege to apply, four requirements must be satisfied: (1) the communication must be made to a “member of the clergy,” as defined in the statute; (2) the statement must be “made ... for the purpose of seeking spiritual counsel and advice”; (3) the information must be received “in the usual course of [the clergy member’s] practice or discipline”; and (4) the communication must be “made privately,” and “not intended for further disclosure except to other persons present in furtherance of the communication.” § 90.505(l)(b), Fla. Stat. (2007); Nussbaumer v. State, 882 So.2d 1067, 1074 (Fla. 2d DCA 2004).

The trial court found that appellant’s statements to the elders failed to satisfy the first two requirements. On appeal, the state concedes that one could “reasonably believe” that Jehovah’s Witnesses elders qualify as members of the clergy. Assuming for the sake of argument that the elders were members of the clergy, we agree with the trial court that appellant’s statements to the elders were not made “for the purpose of seeking spiritual counsel and advice.” When reviewing the trial court’s denial of a motion to suppress, we must interpret the evidence and all reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). According to elder Westbrook, appellant did not indicate that he was seeking spiritual counseling and guidance and did not want to talk about the Bible or pray. The trial court could conclude that appellant’s words and actions indicated that he was not seeking spiritual advice or counseling, but was trying to explain his side of the story.

Although not addressed by the trial court or the parties on appeal, we also believe that the evidence failed to establish that appellant’s communications were either “made privately” or “not intended for further disclosure except to persons present in furtherance of the communication.” First, the conversations took place in a jail holding cell, which is not usually considered a place for private communications. Furthermore, it is clear from elder West-brook’s testimony that he did not consider the conversations with appellant to be confidential, and there was no testimony that Westbrook told appellant that the conversations would be confidential. In fact, the exchange between appellant and the elders resembled an interrogation, with the elders repeatedly encouraging appellant to tell the authorities where his mother’s body was buried and appellant repeatedly telling them that he needed to talk to a lawyer. Accordingly, we conclude that the trial court correctly found that appellant’s statements to the elders were not subject to the clergy communications privilege.

B.

Appellant also claims that the trial court committed reversible error in denying his motion to suppress his statements to Officer Golub, the map he drew for Golub, and all evidence recovered based on the map. Appellant asserts that, because he had previously invoked his Fifth Amendment right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Officer Golub could not “interrogate” him at the jail, even if appellant initiated the contact, unless appellant knowingly and intelligently waived his right to counsel which, at a minimum, required appellant to be advised of his Miranda rights. See Davis v. State, 698 So.2d 1182, 1189 (Fla.1997) (holding that a police officer who interviewed the defendant in jail after reinitiation of contact by the defendant, who had initially invoked his right to counsel, was required to first administer Miranda warnings). However, “[i]t is well established that Miranda warnings apply only to custodial interrogations.” State v. Edenfield, 27 So.3d 222, 224 (Fla. 2d DCA 2010). The fact that a person makes incriminating statements to a law enforcement officer in jail does not entitle that person to Miranda warnings outside the context of a custodial interrogation. Id. at 225.

Here, appellant initiated the contact with Officer Golub and said, “It was an accident.” Golub responded, “What was an accident?” Appellant then made the incriminating statements about what he did with his mother’s body. Contrary to appellant’s assertion, Officer Golub did not interrogate appellant when he asked, “What was an accident?” First, it was appellant rather than Golub who initiated the questioning. Id. at 224 (noting that the term “custodial interrogation” refers to “questioning initiated by law enforcement” after a person has been taken into custody) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). Moreover, Golub, as a jailer, was responsible for the security and well-being of the jail’s inmates and could justifiably ask appellant what he meant by “an accident,” which could have referred to any number of things completely unrelated to appellant’s mother. Under the circumstances, a reasonable person could not conclude that Golub’s inquiry in response to appellant’s oblique statement was designed to lead to an incriminating response. See Ramirez v. State, 739 So.2d 568, 573 (Fla.1999) (“ ‘Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response’ ”) (quoting Traylor v. State, 596 So.2d 957, 966 n. 17 (Fla.1992)). Therefore, appellant’s statements to Golub were not subject to suppression under Miranda.

The state concedes that Officer Golub should have known that his action in giving appellant a pen and paper on which to draw a map at the end of appellant’s statement would result in an incriminating response. However, we agree with .the state that the admission of the map was harmless because appellant had already made a statement to Golub about the location of his mother’s remains and the evidence recovered based on the map was admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (holding that evidence obtained as the result of unconstitutional police conduct may still be admissible provided that the evidence ultimately would have been discovered by lawful means). The victim’s remains, which were scattered in a field on her property, would have been discovered eventually based on appellant’s statement to Golub and the fact that the victim’s property was being combed by search teams with specially trained dogs. Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress.

III.

For the reasons expressed, appellant’s convictions and sentences are affirmed.

AFFIRMED.

LEWIS and MARSTILLER, JJ., concur.


author: SHEPHERD, J.

text:
    MONROE COUNTY, Florida, Appellant, v. Charles M. CISNEROS, et al., Appellees.
    No. 3D09-2981.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 30, 2010.
    Cynthia L. Hall, Assistant County Attorney, Key West, for appellant.
    Andrew M. Tobin, Tavernier, for appel-lees.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal by Monroe County from an order granting mandamus relief to Charles M. Cisneros and Griset Cisneros, rendered by the Monroe County Circuit Court, sitting in its appellate capacity, pursuant to a request made by the Cisneroses to that court while the court had pending before it the Cisneros’ statutorily authorized appeal, see § 162.11, Fla. Stat. (2009), of two code enforcement orders pertaining to the same subject matter. On well-established principles that mandamus relief lies only to compel a ministerial act, see City of Miami Beach v. Mr. Samuel’s, Inc., 351 So.2d 719 (Fla.1977), where the respondent has a clear legal duty to perform the act, see Adams v. State, 560 So.2d 321 (Fla. 1st DCA 1990); Ferris v. Bd. of Pub. Instruction of Sumter Cnty., 119 So.2d 389 (Fla. 2d DCA 1960), and the petitioner has no other adequate or complete remedy, see Shevin ex rel. State v. Pub. Serv. Comm’n, 333 So.2d 9 (Fla.1976), we reverse the order granting petition for mandamus.

Reversed and remanded for further proceedings.


author: COHEN, J. LAWSON, J.,

text:
    HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. David WIRTH and Renee Wirth, Respondents.
    No. 5D10-423.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Rehearing Denied Dec. 22, 2010.

      David O. Doyle, Jr., Adam M. Pastis, and Charles T. Wells of Gray Robinson, P.A., Orlando, for Petitioner.
    Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando, and Paul R. Linder of Griffin & Linder, P.A., Orlando for Respondents.
   COHEN, J.

Holmes Regional Medical Center, Inc. (hereafter “HRMC”), petitions for a writ of certiorari, challenging an order denying its motion to dismiss the medical malpractice claim of David Wirth and Renee Wirth due to their alleged failure to comply with the pre-suit requirements of Chapter 766, Florida Statutes (2007). We deny HRMC’s petition and hold that the affidavits submitted by the Wirths fulfilled the pre-suit requirements.

The complaint alleges that David Wirth was admitted to HRMC in November 2005, for evaluation and observation after complaining of abdominal pain. His physician prescribed narcotics, among other things, to address his pain, but the nurses did not monitor him appropriately for possible known side effects and failed to document his vital signs throughout the night. At 5:15 a.m., nurses found Mr. Wirth unresponsive and suffering respiratory distress. Mr. Wirth allegedly stopped breathing for thirteen minutes and suffered brain damage as a result.

In February 2008, the Wirths presented HRMC with a notice of intent to initiate litigation in accordance with Chapter 766. Attached to their notice was an affidavit and curriculum vitae from Elena Licata, R.N., B.S.N., C.D.M.S., C.C.M., Q.R.P. Ms. Licata’s CV indicated that from 1993 through 2006, she was the president/owner of Medical Management and Re-Employment and it appeared that her responsibilities were primarily supervisory and administrative. Ms. Licata’s affidavit did not indicate that she had any experience as a hospital nurse within the three years prior to Mr. Wirth’s incident. However, the affidavit outlined Ms. Licata’s understanding of the facts and her opinion that HRMC and its staff were negligent and breached the applicable standard of care which caused severe harm to Mr. Wirth.

HRMC notified the Wirths that it believed Ms. Licata was not qualified to render an expert opinion. HRMC asserted that it was very clear from Ms. Licata’s CV that she had not devoted any time to clinical practice or consulting in hospital-based nursing since 1993, and did not have the appropriate training or experience to opine about the medical causation of Mr. Wirth’s injuries for pre-suit purposes. Insisting that Ms. Licata exceeded the necessary qualifications, the Wirths served their complaint on HRMC. In response, HRMC moved to dismiss based on the Wirths’ failure to comply with Chapter 766’s pre-suit requirements.

Prior to the hearing on the motion to dismiss, the Wirths filed a second affidavit from Ms. Licata to clarify her qualifications. In relevant part, this affidavit stated that since August 1985, Ms. Licata

worked as a medical case manager providing nursing care and consultation for all types of orthopedic and neurologic injuries, including many catastrophic cases that involve traumatic brain injury, spinal cord injury and multiple traumas. In assessing, coordinating, evaluating, documenting and providing patient teaching and hands on medical care, I have to frequently consider the impact that all types of pre-existing or other medical conditions (i.e., cardiovascular, respiratory, gastroenterology, endocrinology, urology) may have in my patients’ total recovery. From my experience as both a floor nurse and as a medical case manager, I can affirm that I typically spend more time with a patient and them doctors and in assessing and coordinating their medical care than a hospital floor nurse, who typically practices in one specialty area.

Ms. Licata further averred that her training and experience enabled her to state, within a reasonable degree of certainty that “a patient left without sufficient oxygen over a 3-6 minute period of time would incur loss of brain cells and permanent brain damage and/or death as a result.”

At the motion to dismiss hearing, the trial court found the affidavits were insufficient because Ms. Licata did not specifically “tie down” her experience for the three years prior to the incident, but only generalized about her experience for the past thirty-one years. However, the trial court granted the Wirths ten days to file an amended affidavit that “clarified” Ms. Li-cata’s experience for the three years prior to the incident. The Wirths timely filed the third, “clarifying” affidavit. Read in its entirety, Ms. Licata averred that, from 2002-2005, she worked as a nursing and medical consultant. In this capacity, she actively consulted with patients and them medical providers to assess, recommend, and coordinate the patients’ medical care.

HRMC renewed its motion to dismiss, still asserting the affidavits were insufficient. Just prior to the hearing on HRMC’s motion to dismiss, the Wirths filed a fourth affidavit from Ms. Licata. At the hearing on HRMC’s renewed motion to dismiss, HRMC argued that the third and fourth affidavits were filed outside the statute of limitations and, additionally, the fourth affidavit was untimely. Without addressing this argument, the trial court denied the motion to dismiss.

HRMC’s petition for writ of certiorari challenges whether the Wirths satisfied the pre-suit notice requirements set forth in subsection 766.203(2), Florida Statutes (2007). Specifically, HRMC asserts that Ms. Licata’s affidavits did not establish that she engaged in the active clinical practice or consulting with respect to nursing during the three years prior to the incident to qualify her as a medical expert. HRMC also contends that Ms. Licata was not qualified to render an opinion on causation.

Granting certiorari relief is an extraordinary remedy. As such, it requires the petitioner to establish a departure from the essential requirements of law that has resulted in a material injury that cannot be remedied on appeal. Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996). This court’s prior precedent establishes that certiorari review is proper when a plaintiff fails to comply with section 766.203’s pre-suit notice requirements. See Cent. Fla. Reg’l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998). Thus, the issue is whether the trial court departed from the essential requirements of law in denying HRMC’s motion to dismiss. As the supreme court has directed, this court should only exercise its discretion to grant certiorari relief “when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 486 So.2d 93, 96 (Fla.1983).

An injured plaintiff who desires to institute a medical malpractice suit must first conduct an investigation that provides reasonable grounds to believe that the defendant(s) was negligent and that negligence resulted in injury. § 766.208(2). After conducting this investigation, the plaintiff must then serve each defendant with a notice of intent to initiate litigation. § 766.106(2)(a). This notice must be corroborated with a “verified written medical expert opinion from a medical expert as defined in s. 766.202(6).” § 766.203(2).

A medical expert is “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.” § 766.202(6). As the parties recognize, Ms. Licata could qualify as an expert “health care provider other than a specialist or a general practitioner” if she “devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action” to the “active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.” § 766.102(5)(c).

.[2] The purpose of these requirements is to screen out frivolous claims, give a defendant notice of a potential claim so it can investigate the matter, and if the claim has merit, promote pre-suit settlement. Apostolico v. Orlando Reg’l Health Care Sys., Inc., 871 So.2d 283, 286 n. 3 (Fla. 5th DCA 2004). They are not intended to be a Daedalean labyrinth that denies a plaintiff access to the courts. Id. at 286.

In rejecting HRMC’s argument that Ms. Licata did not qualify as a medical expert, this court initially assumes, but does not decide, that the fourth affidavit was filed outside of the applicable statute of limitations period, as HRMC asserts. However, a review of the second and third affidavits indicate that in the three years prior to Mr. Wirth’s incident, Ms. Licata did, in fact, actively engage in both the practice of nursing and nurse consulting. Although it is not clear which affidavits) the trial court relied on in reaching its decision, it could have looked at all three affidavits in their totality. The third affidavit clarified and supplemented the second, as the second had the first. Consequently, the trial court properly determined that Ms. Licata was qualified to opine about the prevailing professional standard of care for hospital nurses for purposes of pre-suit notice.

HRMC also contends that Ms. Li-cata was not qualified to render a causation opinion because she did not have any expertise in neurology or neurological injuries to “corroborate medical causation between alleged nursing negligence ... with a serious brain injury manifesting in short term memory loss, impulsivity, attention deficit, generalized pain and impaired manual motor function....” However, Ms. Li-cata did not attempt to identify the specific extent or nature of Mr. Wirth’s injuries. Instead, she averred that Mr. Wirth was not breathing for thirteen minutes, as a result of his respiratory distress, and that serious brain damage or death could result if a person was deprived of oxygen for three to five minutes. Given the experience and background set forth in her CV and affidavits, Ms. Licata was qualified to offer this opinion both pre-suit and at trial. The fact that she did not state the specific nature and extent of Mr. Wirth’s injuries is not dispositive because section 776.203 only requires the expert corroborate reasonable grounds that negligence occurred and caused injury. Ms. Licata’s affidavits satisfied this requirement.

When Ms. Licata’s three affidavits are reviewed in their totality, they are sufficient to qualify her as an expert under section 776.102, and to corroborate that HRMC committed negligence and that negligence caused Mr. Wirth’s injuries. Consequently, we affirm the trial court’s order denying HRMC’s motion to dismiss.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

GRIFFIN, J., concurs.

LAWSON, J., dissents with opinion.

LAWSON, J.,

dissenting.

I respectfully dissent. In my view, none of Nurse Licata’s affidavits demonstrate that she was qualified to render an opinion regarding the standard of care for hospital nurses monitoring a patient in Mr. Wirth’s condition. Instead, Nurse Licata’s affidavits and CV demonstrate that her experience in the three years prior to Mr. Wirth’s injury was limited to the rehabilitation of persons impaired as a result of some medical condition. Although the later affidavits attempt to demonstrate that Nurse Licata was qualified to render her standard of care opinion by virtue of her “consulting” in a hospital setting, it appears that she was simply consulting with hospital patients regarding their rehabilitation plan — not consulting with clinical hospital nurses regarding the monitoring of patients in their care.

The statute requires a health care provider to have “devoted professional time during the 3 years immediately preceding the date of the” alleged negligence either to the “active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom ... the testimony is offered[.]” § 766.102(5)(c), Fla. Stat. (2007). Because it is not clear that Nurse Licata meets that requirement in this case, I would remand for an evidentiary hearing on the matter, as the Second District recently did in Holden v. Bober, 39 So.3d 396 (Fla. 2d DCA 2010).

In doing so, I would expressly reject petitioner’s argument that a trial court can only consider facts regarding a purported expert’s qualifications that appear in an affidavit served prior to expiration of the statute of limitations. Rather, as explained in Holden, the hearing to determine pre-suit compliance, provided for in section 766.206, Florida Statutes, may necessarily need to be an evidentiary hearing. Section 766.206(1) delays this hearing until after the completion of pre-suit discovery. So, it seems reasonable to read the statute as contemplating that evidence uncovered during pre-suit discovery might be presented at the hearing. And, as a practical matter, that hearing might routinely be held after expiration of the statute of limitations. Given those facts, it does not make sense to read the statute as limiting the hearing to consideration of the attestations of qualification that appear in the original affidavit.

Finally, I am uncomfortable with the majority’s finding that Nurse Licata is categorically qualified to render a proximate cause opinion in this case. If the only question is whether cessation of breathing for thirteen minutes leads to brain damage, I would agree with the majority that any licensed health care provider is probably qualified to testify to that. But, I am not convinced the issue is that simple. See Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283, 288 (Fla. 5th DCA 2004) (“complex medical and factual issues are involved in a determination of proximate cause in a medical malpractice case”). For that reason, I would have the trial court take evidence on this issue as well. Clearly, a more fully developed record would aid the court in determining what “medical and factual issues” are involved in rendering a qualified proximate cause opinion in this case.

      . At oral argument, HRMC asserted that only the first affidavit was filed within the statute of limitations. This argument was not raised before the trial court or in its petition, and therefore, appears to be raised for the first time at oral argument. Further, it is not apparent from the appendix submitted with the petition when the statute of limitations expired, and thus, we do not address this issue.

      . In this court’s view, the second affidavit was more than sufficient to establish Ms. Licata’s qualifications as a medical expert under the statute.

      . Both parties seem to accept clinical hospital nursing as a unique "health profession,” such that a nurse without the requisite experience in that setting could not render an opinion as to the prevailing standard of care for nurses practicing as clinical hospital nurses. This makes sense. To take the apparent facts of this case, for example, I do not see how a nurse who had spent the previous decade in a patient rehabilitation specialty would be qualified to render an opinion as to the prevailing standard of care for in-hospital patient monitoring.

      . I agree with this court’s opinion in Yocom v. Wuesthoff Health Systems, Inc., 880 So.2d 787 (Fla. 5th DCA 2004), holding that a claimant who failed to serve an affidavit at all before the statute of limitations ran could not cure the pre-suit defect by filing an untimely affidavit. Similarly, it follows that a claimant cannot cure a defective pre-suit affidavit by serving an affidavit from a new or different expert, after the statute of limitations has run. But, the question of whether a person was actually qualified to render an otherwise sufficient opinion timely served seems categorically different. In the latter case, the claimant is simply being given an opportunity to provide clarifying information on historical facts.

      . For example, if the parties dispute whether a claimant’s expert was a "licensed health care provider,” as required by section 766.102(5), it is difficult to see how that dispute could be resolved absent fact-finding at an evidentiary hearing.

      . The Apostólico panel held that a registered nurse could provide a medical causation opinion, in certain cases, for presuit purposes. Id. at 287 ("We conclude that a plain reading of section 766.202(5) indicates that a nurse or any other medical professional, with appropriate experience or training, may, under the proper facts, be qualified to provide corroboration about medical causation for presuit purposes.”) This holding was based upon language in the 2002 version of the statute, which provided "a less stringent standard for qualification of experts in the medical malpractice presuit screening process than might be required of an expert to offer testimony at trial.” Id. at 288, n. 4. The language relied upon by the Apostólico panel was removed from the statute in 2003. See Laws of Fla., Ch. 2003-416, § 58.


author: PER CURIAM.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. Herbert KINDL, Respondent.
    No. 5D10-1722.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2010.
    Rehearing Denied Dec. 21, 2010.

      James S. Curtis, of Groelle & Salmon, PA., Tampa, for Petitioner.
    Mark A. Nation, of The Nation Law Firm, Longwood, for Respondent.
   PER CURIAM.

The petitioner, United Services Automobile Association, seeks certiorari relief to quash an order compelling discovery of its claim file. We grant the petition and quash the order because discovery of an insurer’s claim file, while a coverage issue is pending, is improper. Seminole Cas. Ins. Co. v. Mastrominas, 6 So.3d 1256, 1258 (Fla. 2d DCA 2009); GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 126 (Fla. 2d DCA 2006) (insured’s breach of contract suit against insurer raised a coverage issue, which was not settled by insurei'’s payment of part of what the insured was claiming in breach of contract action); see also Illinois Nat Ins. Co. v. Bolen, 997 So.2d 1194 (Fla. 5th DCA 2008); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998).

PETITION GRANTED; ORDER QUASHED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Mary L. QUINTERO, Appellant, v. Jon E. KENYON, Appellee.
    Nos. 3D09-2564, 3D09-3390.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    Rehearing Denied Dec. 30, 2010.
    Schweitzer & Schweitzer-Ramras, Darlene Schweitzer-Ramras, and Daniel Kent, Coral Gables, for appellant.
    Steven N. Abramowitz, for appellee.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Mary L. Quintero appeals from a final judgment of paternity and an order on timesharing entered after the trial court denied her motion to continue a non-jury trial. We reverse.

A trial court has discretion in ruling on a motion for continuance. Bryan v. Bryan, 824 So.2d 920, 923 (Fla. 3d DCA 2002). However, the trial court should consider several factors, including whether: (1) a denial would create an injustice to the moving party; (2) unforeseeable circumstances, rather than dilatory practices, caused the need for continuance; and (3) the opposing party would suffer prejudice. 824 So.2d at 923.

Here, Quintero became unemployed and was unable to pay for her attorney’s services. As a result, Quintero’s counsel withdrew from the case on the eve of the scheduled trial. The record does not show that prejudice would have resulted from granting the continuance. Thus, the trial court abused its discretion in denying Quintero’s request.

Accordingly, we reverse and remand for a new trial.

Reversed.


author: WARNER, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Petitioner, v. Neil TRANCHESE and Patricia Tranchese, Respondents.
    No. 4D10-2940.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Anthony J. Russo and John W. Weih-muller of Butler Pappas Weihmuller Katz Craig L.L.P., Tampa, for petitioner.
    Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Henry A. Seiden of The Seiden Law Firm, West Palm Beach, for respondents.
   WARNER, J.

State Farm petitions for writ of certiorari to quash two orders of the trial court, one of which denied a motion to abate a cause of action for violation of section 624.155(1), Florida Statutes, for failing to settle a claim in good faith on uninsured motorist coverage, and the other of which compelled State Farm to respond to requests for admissions regarding its claims handling procedures and business practices. The cause of action for bad faith was one of multiple claims, including ones for determination of liability and the amount of damages sustained as a result of two automobile accidents suffered by State Farm’s insured Neil Tranchese and his wife, Patricia Tranchese. We grant the petition as to the abatement, because the final determination of coverage and damages for the underlying claim has not been made, which must precede a statutory bad faith action. See Progressive Select Ins. Co. v. Shockley, 951 So.2d 20 (Fla. 4th DCA 2007). Where causes of action for both the underlying damages and bad faith are brought in the same action, the appropriate step is to abate the bad faith action until coverage and damages have been determined. See Allstate Indem. Co. v. Ruiz, 899 So.2d 1121 (Fla.2005). As to the requests for admissions regarding business practices and claims policy procedures, we grant the petition, holding that until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims filed or to the insurer’s business policies or practices regarding handling of claims. See State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633 (Fla. 2d DCA 2008).

GROSS, C.J., and GERBER, J., concur.

      . State Farm paid the amount it claims was Neil Tranchese’s UM coverage. Although Mr. Tranchese maintains that he is not making a claim for his own injuries, that is contradicted by the allegations of the count in which he claims that his damages exceeded what State Farm claimed was its UM limits. Tranchese claims that his UM limits were unlimited and contends that State Farm misrepresented the policy to him. Without knowing the extent of his damages or the coverage, one could not determine whether State Farm breached any duty with respect to the settling of his claim.


text:
    Ana NIEVES, as Personal Representative of the Estate of Joaquin Nieves, Appellant, v. NORTH RIVER INSURANCE COMPANY, Appellee.
    No. 4D09-4730.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Rehearing Denied Jan. 20, 2011.

      Christopher J. Lynch of Hunter, Williams & Lynch, P.A., Coral Gables, and Michael F. Audie, Miami, for appellant.
    Barry L. Davis and Jennifer A. Cos-grove of Thornton, Davis & Fein, P.A., Miami, for appellee.
   WARNER, J.

The issue presented in this case is whether an excess insurer has satisfied the terms of section 627.727(2), Florida Statutes, requiring an excess carrier to “make available” uninsured motorist protection, when it notifies the insured that excess UM coverage is available without charge, conditioned on the insured’s purchase of uninsured motorist protection in its primary policy. We hold, as did the trial court, that the excess insurer has complied with the statute. We thus affirm.

This declaratory judgment action emanated from a wrongful death action brought by Ana Nieves, as personal representative of the Estate of Joaquin Nieves, her husband who was killed in an automobile accident after being struck by another vehicle. At the time of the accident, Mr. Nieves was operating a vehicle owned by his employer, Megatran, Inc. The vehicle was insured under a primary commercial automobile policy issued by Liberty Mutual, which did not provide uninsured/under-insured motorist coverage. The vehicle was also insured under a commercial umbrella policy issued by defendant North River Insurance Company.

Following the accident, Nieves made a claim for UM/UIM coverage under the North River umbrella policy. The North River policy contains an endorsement entitled “Important Notice,” which pertains to excess UM/UIM coverage and provides as follows:

To Our Florida “Umbrella” Policyholders:
Section 627.727 Florida Statutes requires that we give you the option of purchasing Uninsured Motorist coverage under this policy up to a maximum limit of $1,000,000 each occurrence. This coverage would apply in EXCESS of the Uninsured Motorist limit provided by your primary automobile liability policy.
We have included this $1,000,000 EXCESS Uninsured Motorist coverage in this policy at no additional cost to you. But in order for it to become effective you must purchase a PRIMARY Uninsured Motorist limit of $1,000,000 in your automobile liability policy which must apply to all owned or operated motorized automobiles.
If primary Uninsured Motorist coverage in the amount of $1,000,000 is not maintained in your automobile liability policy Uninsured Motorist coverage is EXCLUDED by this policy.

North River denied the plaintiffs claim for UM/UIM coverage under the North River policy, relying on the above endorsement, because Megatran had not purchased UM coverage in its primary policy.

Nieves filed a declaratory action seeking a declaration that North River’s denial of coverage violated section 627.727(2), Florida Statutes. She further sought an order reforming the North River policy to provide UM/UIM coverage in the amount of $1 million. North River moved to dismiss the complaint on the grounds that it did not state a cause of action for a violation of section 627.727(2). North River argued section 627.727(2)’s requirement that coverage be made available to policyholders required only that North River offer UM/ UIM coverage. It claimed that it complied with the statute by offering UM/UIM coverage at no additional cost, with the condition that the policyholder must purchase a primary UM/UIM policy.

Following a hearing on the motion to dismiss, the trial court granted North River’s motion without prejudice to the plaintiff amending the complaint. After Nieves chose not to amend the counts against North River, the trial court entered a final judgment of dismissal in favor of North River. This appeal follows.

Because the issue in this case is a question of law involving statutory interpretation, this court’s review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). “A court’s purpose in eonstru-ing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). However, “[w]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

The dispute in this case centers around section 627.727(2)’s requirement that an excess insurer “shall make available” excess UM/UIM coverage to policyholders. Section 627.727, Florida Statutes (2006), provides that every automobile liability policy provide UM/UIM coverage for the protection of the policy insureds in an amount not less than the liability limits of the policy, unless the insured specifically rejects such coverage in writing. Because an excess insurance policy may also insure the automobile, the legislature created a specific rule applicable to excess policies. It provides:

(2) ... The limits set forth in this subsection, and the provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle. However, an insurer issuing such a policy shall make available as a part of the application for such policy, and at the written request of an insured, limits up to the bodily injury liability limits contained in such policy or $1 million, whichever is less.

§ 627.727(2), Fla. Stat. (2006).

As a remedial statute, section 627.727 is to be broadly and liberally construed. Ferrigno v. Progressive Am. Ins. Co., 426 So.2d 1218, 1219 (Fla. 4th DCA 1983). The uninsured motorist statute “was enacted to provide relief to innocent persons who are injured through the negligence of an uninsured motorist; it is not to be ‘whittled away by exclusions and exceptions.” Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 238 (Fla.1971). Thus, provisions in uninsured motorist policies that provide less coverage than required by the statute are void as contrary to public policy. Young v. Progressive Se. Ins. Co., 753 So.2d 80, 82 (Fla.2000).

A key amendment to section 627.727 occurred in 1984, when the legislature substantially rewrote subsections (1) and (2), and “for the first time explicitly exempted policies which do not provide primary liability insurance for specifically insured motor vehicles from the requirements set forth in subsection (1).” O’Brien v. State Farm Fire & Cas. Co., 999 So.2d 1081, 1087 (Fla. 1st DCA 2009); see also Ch. 84-41, § 1, at 95-96, Laws of Fla. In discussing the legislative history of section 627.727, the O’Brien court cited to the House of Representatives’ Final Staff Analysis, which explains that subsection (2) exempts “excess or umbrella-type policies” from the “written rejection” requirements of subsection (1). However, the excess insurer still must notify its insured of the availability of such coverage. See Tres v. Royal Surplus Lines Ins. Co., 705 So.2d 643, 645 (Fla. 3d DCA 1998).

Under section 627.727(2), an excess insurer’s only duty with respect to its offer of uninsured motorist coverage is to ‘make available as a part of the application for such policy, and at the written request of an insured,’ uninsured motorist coverage in an amount equal to the bodily injury limits contained in the policy or one million dollars.

O’Brien, 999 So.2d at 1083. Here, North River complied with its obligation under section 627.727(2) to “make available” excess UM/UIM coverage to the insured. Merriam-Webster’s Dictionary provides one definition of the word “offer” is “to make available.” See Merriam-Webster Online Dictionary (2010), available at http://www.merriam-webster.com/ dictionary/offer. Thus, the appropriate interpretation of section 627.727(2)’s requirement means simply that the excess insurer must offer the insured an opportunity to obtain UM/UIM coverage.

Nieves contends, however, that when the statute requires that the excess insurer make coverage available, it must unconditionally offer such insurance, without requiring the purchase of underlying UM/ UIM coverage. We disagree. Nowhere does the statute set forth any required terms, other than the excess insurer must offer the amount of the liability coverage or $1 million in UM/UIM coverage. At oral argument Nieves conceded that North River could require payment for such coverage, and the payment would not violate the statute. In this case, North River made an offer to provide excess UM/UIM coverage at no cost, conditioned upon the insured’s purchase of underlying UM/UIM coverage. We see no legal difference between the two. Moreover, if there were no underlying coverage for UM/UIM, Nieves seeks to turn the excess liability carrier into the primary carrier for this purpose, something which would significantly alter the relationship between the insured and excess insurer.

Nieves relies on Ferreiro v. Philadelphia Indent. Ins. Co., 816 So.2d 140, 141 (Fla. 3d DCA 2002). We find that case, as well as those on which it relies, distinguishable. In Ferreiro, where an insured purchased excess liability coverage on her rental vehicle and was subsequently injured in an accident, the court held that the excess insurer was obligated to provide UM/UIM coverage pursuant to the terms of section 627.727(2), even though the car rental company was not required to provide the underlying UM/UIM coverage. Unlike this case, however, the insured in Ferreiro was never offered the excess UM/ UIM coverage. Thus, the insurer clearly violated the statute in failing to make the offer of such insurance to the insured. Here, on the other hand, the insurance company offered excess UM/UIM coverage to its insured, who simply elected not to accept it under the terms offered.

To summarize, we hold that where an excess insurer agrees to provide to the insured excess UM/UIM coverage in the amount required under section 627.727(2), Florida Statutes, upon the condition that the insured purchase UM/UIM coverage under its primary policy of limits equal to the amount offered in excess coverage, the excess insurer has complied with its statutory obligation. We thus affirm the trial court.

POLEN and LEVINE, JJ., concur.

      . We note that dismissal of the complaint was not the appropriate action, as a party is entitled to a declaration of its rights, even when the declaration is against her interest. See, e.g., X Corp. v. Y Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993). However, Nieves has not argued against the dismissal on this ground, and the ground of the court's ruling is not in doubt.


text:
    Reginald BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5964.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.

      Reginald Baker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(C).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Lyron WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5600.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2010.
    Lyron Walker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: GERBER, J.

text:
    Alexander G. SARIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, State Farm Florida Insurance Company, Hustriberto Hernandez, Bruno M. Pires, National Union Fire Insurance Company Of Pittsburgh Pennsylvania, and American Home Assurance Company, Appellees.
    No. 4D09-886.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Richard A. Sherman Sr. and James W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and C. Richard Fulmer, Jr., and Loren Gant of Fulmer, LeRoy, Albee, Baumann & Glass, P.L.C., Fort Lauderdale, for appellant.
    Neil Rose of Bernstein, Chackman, Liss, & Rose, Hollywood, for appellees State Farm Mutual Automobile Company and State Farm Florida Insurance Company.
    No appearance for appellees Hernandez, Pires, National Union Fire Insurance Company of Pittsburgh Pennsylvania, and American Home Assurance Company.
   GERBER, J.

Alexander G. Saris (the “insured”) appeals the circuit court’s final judgment in favor of State Farm Automobile Insurance Company and State Farm Florida Insurance Company (collectively, the “insurer”). The court found that the insured was not entitled to uninsured motorist coverage because the insured failed to comply with a policy provision requiring the insured to sue the owner or driver of the uninsured motor vehicle. We find that the policy provision is void against the public policy of the uninsured motorist statute, section 627.727(1), Florida Statutes (2007). Therefore, we reverse.

The insurer issued an automobile insurance policy to the insured. The policy provided that the insurer would “pay damages for bodily injury [the] insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” The policy also provided that, to obtain uninsured motorist coverage, “the insured SHALL ... file a lawsuit in the proper court against the owner or driver of the uninsured motor vehicle AND [the insurer].” According to the policy, the only exceptions to that condition precedent would be if the owner or driver of the uninsured motor vehicle was “unknown” or “has been released from liability.”

The insured sued the insurer for uninsured motorist benefits. Although the owner or driver of the uninsured motor vehicle was known and had not been released from liability, the insured did not sue that person because, as stated in the complaint, the statute of limitations to sue that person had expired.

The insurer moved for summary judgment. The motion alleged that the insured failed to comply with the policy provision requiring the insured to sue the owner or driver of the uninsured motor vehicle. The motion further alleged that the insured could not comply with that provision because the statute of limitations to sue that person had expired.

In response to the motion, the insured did not argue that the provision at issue was void against the public policy of the uninsured motorist statute. Instead, the insured raised other arguments not relevant here.

The circuit court granted the motion by entering an order tracking the insurer’s arguments. The court then entered final judgment for the insurer.

This appeal followed. Before the insured’s initial brief was due, the third district decided Diaz-Hernandez v. State Farm Fire and Casualty Co., 19 So.3d 996 (Fla. 3d DCA 2009). In that case, the third district held that the same provision at issue here was void against the public policy of the uninsured motorist statute. Id. at 999. The insured here, relying upon Diaz-Hernandez, primarily argues that the provision at issue is void against the public policy of the uninsured motorist statute. In response, the insurer contends that the insured failed to raise that argument in the circuit court. The insurer also contends that the provision at issue is not void against public policy.

Our review is de novo. See Morales v. Weil, 44 So.3d 173, 176 (Fla. 4th DCA 2010) (“A trial court’s final order granting a motion for summary judgment is reviewed de novo.”); Rando v. Gov’t Employees Ins. Co., 39 So.3d 244, 247 (Fla.2010) (the enforceability of a policy provision affecting uninsured motorist coverage is a pure question of law and, consequently, the standard of review is de novo).

We agree with the third district that the provision at issue is void against the public policy of the uninsured motorist statute, section 627.727(1), Florida Statutes (2007). That statute provides, in pertinent part:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state ... unless uninsured motor vehicle coverage is provided therein....

§ 627.727(1), Fla. Stat. (2007). Comparing the provision at issue to the uninsured motorist statute, the third district held:

While the provision in [the insurer’s] UM policy does not limit the scope of the Insured’s UM coverage, it does add an additional burden upon the Insured by requiring the Insured to join the uninsured motorist (tortfeasor) in the Insured’s contractual action against [the insurer] for UM coverage. There is nothing in the UM statute that imposes such a burden upon the Insured.
We find that the additional burden this policy provision places upon the Insured violates the clear policy ... that the purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist.... Placing the burden upon the Insured by making it a contractual obligation benefits [the insurer], not the Insured. We, therefore, conclude that the provision is against the public policy of the UM statute, section 627.727, and therefore invalid.

Diaz-Hernandez, 19 So.3d at 999-1000 (internal citations omitted). We join in the third district’s reasoning.

We find it irrelevant that the insured failed to raise the public policy argument in the circuit court.- As a court of law, we are compelled to abide by plain statutory intent, regardless of whether or not the appellant first raises that argument in the circuit court. Cf. Toiberman v. Tisera, 998 So.2d 4, 8 (Fla. 3d DCA 2008) (“As courts of law, we are compelled to abide by the plain statutory prohibition against arbitration of [family law] cases whether or not the objection to arbitration was first raised in the trial court.... ”). Thus, we find that enforcement of the provision at issue is fundamental error which we must correct in this appeal. See Sec. Bank, N.A. v. BellSouth Adver. & Publ’g Corp., 679 So.2d 795, 803 (Fla. 3d DCA 1996) (“[A]n appellate court may consider and rule upon a ... fundamental error when first raised or revealed on the record on appeal.”) (emphasis and citation omitted).

The insurer argues that, even if the provision at issue imposes a burden beyond those which the uninsured motorist statute requires, that burden is no greater than other non-statutory burdens which insurance policies typically require. For example, the insurer contends, policies typically require the insured to provide notice and details of the claim, submit to a physical examination, and submit to an examination under oath. The insurer argues that all of these requirements impose some minimal burden upon the insured without violating public policy. See, e.g., Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995) (“An insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy.”).

We disagree with the insurer’s comparison. The examples to which the insurer refers all relate to the insured’s burden to establish that he is entitled to coverage. See Diaz-Hernandez, 19 So.3d at 999 (“[I]n a UM claim the insured must prove that she is legally entitled to recover from the owner or operator of the uninsured or underinsured vehicle. Just as she would in a suit against the tortfeasor, the insured bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident.”) (citation omitted). Conversely, suing the tort-feasor is not necessary for the insured to establish that he is entitled to uninsured motorist coverage.

In further support of its argument that the provision at issue does not violate public policy, the insurer cites several cases: Robinson v. Auto Owners Ins. Co., 718 So.2d 1283 (Fla. 2d DCA 1998); Jones v. Integral Ins. Co., 631 So.2d 1132 (Fla. 3d DCA 1994); Dill v. Montana Thirteenth Judicial Dist. Ct., 294 Mont. 134, 979 P.2d 188 (1999); and Snyder v. State Farm Mut. Auto. Ins. Co., 2007 WL 1206783 (Mich.Ct.App.2007). In Robinson and Jones, the second and third districts held that where policies did not expressly require the insureds to sue the tortfeasors, the insureds had no obligation to do so before recovering their uninsured motorist benefits. Robinson, 718 So.2d at 1285; Jones, 631 So.2d at 1133. In Dill, the Montana Supreme Court held that insureds who had satisfied a policy provision requiring them to sue the tortfeasor were entitled to recover their uninsured motorist benefits. 979 P.2d at 191. In Snyder, the Michigan Court of Appeals held that insureds who had not satisfied a policy provision requiring them to sue the tort-feasor were not entitled to recover their uninsured motorist benefits. 2007 WL 1206783 at 2.

We find that the foregoing cases are not applicable. None of the cases expressly addressed the validity of a provision requiring an insured to sue the tortfeasor as a condition precedent to recovering uninsured motorist benefits. However, in Diaz-Hemandez, the third district expressly addressed that issue and held that such a provision was contrary to the public policy of Florida’s uninsured motorist statute. As stated above, we join in that holding.

The insurer cites one case, Bodden v. State Farm Mutual Auto. Insurance Co., 195 F. App’x 858 (11th Cir.2006), which expressly addressed the validity of a policy provision requiring an insured to sue the tortfeasor as a condition precedent to recovering uninsured motorist benefits. In that case, the Eleventh Circuit Court of Appeals held that it was unpersuaded by an insured’s argument that such a requirement “is so offensive to public policy as to be unenforceable.” Id. at 860. The court’s only reasoning was that it saw nothing in the uninsured motorist statute which prohibited such a requirement. Id.

We respectfully disagree with the federal court’s reasoning. In Diaz-Hemandez, the third district considered the federal court’s decision on the insurer’s motion for rehearing. Our sister court stood by its decision that the provision at issue cannot lawfully restrict the rights of an insured seeking uninsured motorist coverage beyond those specifically provided by statute. 19 So.3d at 1000. The court reasoned that any “additional burdens on [an insured] are contrary to the salutary rule that UM coverage contemplates neither no less nor no more than a simple contractual action against the [insurer].” Id. at 1001. We also stand by that reasoning.

The supreme court’s recent holding in Metropolitan Casualty Insurance Co. v. Tepper, 2 So.3d 209 (Fla.2009), further supports our decision. In Tepper, the court held that the limitations period for an insurer to bring an uninsured motorist subrogation action does not begin to run until the final resolution of the uninsured motorist claim. Id. at 215. Thus, allowing an insured to recover uninsured motorist benefits without suing the tortfeasor does not prejudice an insurer’s ability to bring a subrogation action against the tortfeasor.

In sum, we find that requiring an insured to sue a tortfeasor to obtain uninsured motorist coverage is, in effect, no less burdensome than requiring the insured to recover a judgment or settlement against the tortfeasor before obtaining coverage. Both such requirements violate public policy. See Weinstein v. Am. Mut. Ins. Co. of Boston, 376 So.2d 1219, 1220 (Fla. 4th DCA 1979) (“To require the [insured] to first obtain payment of a judgment or settlement is requiring more than the statutory intention and effectively limits the effect of [the uninsured motorist] statute....”). Thus, we remand this case for the circuit court to allow the insured to resume his action to recover uninsured motorist benefits from the insurer.

Reversed and remanded.

HAZOURI, J., and KELLEY, GLENN D., Associate Judge, concur.


author: DAMOORGIAN, J.

text:
    Nathaniel COLBERT, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-805.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Rehearing Denied Dec. 20, 2010.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

Defendant, Nathaniel Colbert, III, appeals his conviction and sentence for robbery with a deadly weapon, armed burglary, leaving the scene of an accident with damages, attempted carjacking with a deadly weapon, carjacking with a deadly weapon, kidnapping with intent to commit or facilitate robbery and/or burglary, and kidnapping of a child thirteen years of age or younger. We reverse Defendant’s convictions for burglary and leaving the scene of an accident with damages, and affirm his convictions and sentences on all other counts.

This case arises from a series of criminal acts beginning with a robbery at a retail store. Defendant walked into the store, during business hours, with a shirt covering his face and holding a hammer. Defendant walked to the front panel of a jewelry counter, smashed the side glass panel facing him, grabbed some jewelry and exited the store. The jewelry counter, as it appeared in the surveillance video, was configured in a square with an opening to permit employees behind the counter. The counter had four sides. The front and top sides were glass, while the back and bottom sides were made of a solid material, most probably wood. The customer could see the jewelry from the front and top. The back side of the counter had locked doors and was on the side where only employees were permitted. The public was not permitted behind the counter and did not have access to the interior of the case. The exterior area surrounding the counter was open to the public.

Upon fleeing from the store, Defendant entered a truck located in the parking lot and began driving in reverse. The truck collided with a parked car. No one was in the parked car at the time of the collision. Defendant abandoned the truck, walked to a fast-food restaurant, and forced his way into a vehicle, which was in the restaurant’s drive-thru line. The vehicle was occupied by a woman and her two children. After a brief altercation with the driver, Defendant drove the vehicle away with the woman and her children in the back seat of the vehicle. Defendant drove the vehicle and its occupants for approximately 80 to 45 minutes before abandoning the vehicle and its occupants in Belle Glade.

At trial, Defendant moved for a judgment of acquittal on the burglary charge, arguing that a burglary could not have occurred since the store, including the area where the jewelry case was located, was open to the public at the time of the robbery. The State argued that the interior of the jewelry case was not open to the public area. Therefore, the Defendant entered into an area not open to the public when, after breaking the front side glass, he inserted his hand into the jewelry case. The trial court denied the motion for judgment of acquittal.

A trial court’s denial of a motion for judgment of acquittal is reviewed de novo. See Dumais v. State, 40 So.3d 850, 852 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). A conviction will generally be upheld if supported by competent, substantial evidence. Id. (citing Pagan, 830 So.2d at 803). We hold that the evidence is insufficient in the present case to sustain the burglary conviction.

Section 810.02(l)(b)l., Florida Statutes (2006), defines burglary as: “Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.... ” “[I]f a defendant can establish that the premises were open to the public, then this is a complete defense” to burglary. Miller v. State, 733 So.2d 955, 957 (Fla.1998).

The Florida Supreme Court most recently examined the “open to the public” defense in Johnson v. State, 786 So.2d 1162 (Fla.2001). In that case, Steve Johnson and his co-defendant entered a convenience store with the intent to rob the store. Id. at 1162 (citing Johnson v. State, 737 So.2d 555, 556 (Fla. 1st DCA 1999)). Johnson followed one of the store owners behind the check-out counter where the cash register was located. Id. (citing Johnson, 737 So.2d at 556). A struggle ensued between the perpetrators and the store owners resulting in the co-defendant and one of the owners being shot. Id. at 1162-63 (citing Johnson, 737 So.2d at 556). On appeal, Johnson argued that his conviction for causing bodily injury during the commission of a felony could not stand because the State failed to establish an essential element of the crime, i.e., burglary. Id. at 1163. Johnson asserted that, because the convenience store was open to the public when he entered, he did not commit burglary, as defined under section 810.02(l)(b)l., by walking behind the counter where the cash register was located, even after being told by the store owner that he was not permitted to do so. Id. Johnson reasoned that, since the structure which he entered was open to the public, an open space within the public area cannot be parsed out in order to meet the definition of burglary. See id. Ultimately, the Florida Supreme Court concluded that, while the store was open to the public, whether the area behind the counter was open to the public was a question for the jury. Id. at 1164.

In the present case, Defendant established that the store was open to the public. In direct contrast to the defendant in Johnson, who walked behind the checkout counter, Defendant did not walk into an area of the store that was not open to the public. Defendant stood in the same place that customers stand to view the contents of the jewelry case. He then broke the glass panel facing him, reached in, and grabbed several pieces of jewelry. The State’s argument that Defendant’s actions transformed into a burglary when he accessed the interior of the jewelry case, while standing in an area clearly open to the public, simply takes the burglary statute too far. Moreover, the State’s reliance on Johnson is misplaced. We read Johnson to apply only where there is a factual dispute as to whether the area in question is open to the public.

There is no disputed fact that the area where Defendant was standing when he broke the side glass panel was open to the public. Moreover, we find no support in the State’s argument that Defendant’s subsequent act of placing his hand inside the jewelry counter, while standing in an area open to the public, constitutes “[e]n-tering a dwelling, a structure, or a conveyance” as required by the burglary statute. Cf. Collett v. State, 676 So.2d 1046, 1047 (Fla. 1st DCA 1996) (reversing burglary conviction for theft of coins from a vending machine located in a motel alcove where alcove itself was open to the public). Accordingly, under the undisputed facts of this case, Defendant cannot be convicted of burglary. See Miller, 733 So.2d at 957.

Turning to Defendant’s conviction for leaving the scene of an accident, Defendant was charged with violating section 316.061(1), Florida Statutes (2006). Defendant argues that his conviction cannot be sustained because the vehicle he struck was not being driven or attended by any person. This issue was not preserved for review. However, a conviction for a crime for which the evidence is insufficient constitutes fundamental error. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003).

Section 316.061(1) prohibits leaving the scene of a crash causing damage to a vehicle or other property, when such vehicle or property is “driven or attended by any person.” § 316.061(1), Fla. Stat. Defendant’s truck collided with a parked car. The State presented evidence that the car’s owner parked the car directly in front of the garage where the owner worked. However, the owner was not in or near the vehicle at the time of the crash. Sometime after the crash, the owner’s employee called the owner to advise him that his vehicle had been struck. The State argues that these facts establish that the vehicle was attended for purposes of the statute.

We disagree. The plain meaning of the word “attended” means to be present. Neither the owner nor someone in possession was present when the crash occurred. The broad interpretation suggested by the State would require anyone involved in a crash with a parked car to investigate the surrounding areas in search of someone who can be considered “attending” the vehicle. In situations such as the present case, where the owner parked his car and then completely deserted the area, finding an appropriate person to leave information with could be difficult or impossible. See Vrchota, Corp. v. Kelly, 42 So.3d 319, 322 (Fla. 4th DCA 2010) (“The legislature is not presumed to enact statutes that provide for absurd results.”).

Further evidence of legislative intent comes from the fact that section 316.063(1), Florida Statutes (2006), addresses crashes with “unattended” vehicles. In such instances, the legislature does not require the vehicle’s owner to be tracked down, but provides the alternative of leaving a note. If the legislature intended for collisions with unattended parked cars to be covered under the attended vehicles provision in section 316.061(1), then enactment of the unattended vehicles statute would have been unnecessary. As such, the evidence is insufficient to establish the “driven or attended” element of section 316.061(1), and Defendant’s conviction for leaving the scene of an accident constitutes fundamental error.

We, therefore, reverse Defendant’s convictions for burglary and leaving the scene of an accident, and affirm Defendant’s convictions and sentences for the remaining charges.

Affirmed in part; Reversed in part.

GROSS, C.J., and FARMER, J., concur.

      . Merriam-Webster Online Dictionary (Nov. 01, 2010), http://www.merriam-webster.com.