source: Caselaw Access Project

author: LEWIS, J. LABARGA, J., CANADY, J.,

license: Public Domain

text:
    Rafael MATARRANZ, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1617.
    Supreme Court of Florida.
    Sept. 26, 2013.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Miami, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Richard L. Polin, Bureau Chief, and Douglas J. Glaid, Senior Assistant Attorney General, Miami, FL; for Respondent.
   LEWIS, J.

In his final remarks to the jury, Atticus Finch, the heroic protagonist of Harper Lee’s iconic novel, To Kill a Mockingbird, proclaims

I’m no idealist to believe firmly in the integrity of our courts and in the jury system — -that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.

Harper Lee, To Kill a Mockingbird, 205 (Warner Books, Inc., 1960). The case before us today addresses the very heart in which Atticus’s faith roots — -the integrity of our courts, the soundness of our juries, and the men and women who “make [them] up.” Id. The petitioner, Rafael Ma-tarranz, seeks review of the decision of the Third District Court of Appeal in Matarranz v. State, 99 So.3d 534 (Fla. 3d DCA 2011), in which he alleges a violation of his due process rights occurred because his trial was not conducted before a fair and impartial tribunal of his peers. We have jurisdiction on the basis that the decision of the Third District expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Huber v. State, 669 So.2d 1079 (Fla. 4th DCA 1996), on a question of law. See art. V, § 3(b)(3), Fla. Const.

Maintaining the sanctity of the jury trial is both critical and integral to the preservation of a fair and honest judicial system. It is also significant to the trust and confidence our citizens place in the judicial system. “The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence.” Sinclair v. U.S., 279 U.S. 749, 765, 49 S.Ct. 471, 73 L.Ed. 938 (1929). Without the “[e]xercise of calm and informed judgment” by the jury, we cannot expect “proper enforcement of law.” Id. Consequently, a failure to ensure that our jury panels are comprised of only fair and impartial members renders suspect any verdict reached.

Matarranz, who was found guilty of first-degree murder and burglary, Matarranz, 99 So.3d at 534-35, alleges that the trial court’s failure to remove a prospective juror (the Juror) for cause resulted in a denial of his right to a fair and impartial jury as guaranteed by article 1, section 16, of the Florida Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. The Third District disagreed with Matarranz and affirmed the decision of the trial court because the district court agreed that the Juror was competent to serve. See id. at 535.

Upon review, however, we disagree with the court below and hold that the Juror demonstrated that she could not fulfill her role as a fair and impartial arbiter and thus she should have been excused for cause. Accordingly, we quash the decision of the Third District, remand this case for a new trial, and clarify the law surrounding peremptory challenges and the removal of jurors for cause.

FACTS

The entirety of the interactions between the trial court, the prosecutor, the defense, and the Juror are excerpted below. The trial court began voir dire by providing prospective jurors with a general overview of criminal trial procedures and stating the charges against the defendant. The trial court then asked whether any of the charges “makes any of you [prospective jurors] think that you just could not be a fair juror....” Along with other jurors, the Juror raised her hand and responded that she could not be a fair juror because of reservations she held with regard to the defendant’s burglary charge.

Later, the trial court initiated questioning with the Juror and the following exchange transpired:

THE COURT: [Juror], I wanted to follow-up with you. You had answered a question about the fact that this is a burglary case and it had to do with whether or not you thought you could be a fair juror in this case. Tell me what you are thinking.
JUROR: It is just from past experiences. I have been the victim of burglaries like my house when I was younger and also I wrote down that my cousin was a victim of fraud and like trying to cash fake checks and it wasn’t really his fault and everything that happened with that and how it affected my family, that still affected me and I hold a grudge on that and he was pretty much fleeing from whoever that guy was taking checks on and my cousin was the unfortunate one that happened to cash it and that stayed on his record and it is something that I hold against him. How it affected me, my parents and my whole family. I don’t think I could be fair against [Matarranz] because I hold that grudge.
THE COURT: The grudge that you hold is against someone who violates the law?
JUROR: Right.
THE COURT: But the law holds a grudge on people who violate the law once a person is convicted of violating the law, if a person is convicted and it is in my division, it is my job to sentence the victim but I hear what you are saying, but I want to make sure that you understand that this trial would not be about whether or not it is okay to have a grudge against people who commit crimes. The question is going to be was a crime committed and if it was committed whether Mr. Matarranz is the one that committed it; you understand that?
JUROR: Yes.
THE COURT: Well, for example you told me it was your brother?
JUROR: My cousin.
THE COURT: Who was cashing checks and he ended up getting accused of something that he in fact didn’t do?
JUROR: Yes. He had no idea about it.
THE COURT: So, you don’t hold a grudge against people who are accused of something that they didn’t do?
JUROR: No. It is just — I don’t know how it affected like — I don’t know — it is something that just stays there. I know how it affected us and how everything happened. It was during the holiday season and it was just crazy and it just makes me sad about it and it brings back bad memories.
THE COURT: And I thank you and when you have the bad memories come back since you are approaching the holidays and this is going to be a burglary case, when you look over at these two tables which way does your judgment go, if you feel like you have one?
JUROR: Towards him.
THE COURT: And you are indicating towards the defense table?
JUROR: Yeah.
THE COURT: Let me ask the lawyers, if they have any questions?
PROSECUTOR: You have not heard any evidence yet with regard to Mr. Matarranz, right?
JUROR: Yes.
PROSECUTOR: Are you able to listen to the testimony and the evidence in this case with an opened mind?
JUROR: I could have an open mind about it, but it is still — knowing myself I think I would lean more towards the State of Florida just because I don’t think that it is right for someone to come in and take something that someone worked so hard for and take their life away from that person.
PROSECUTOR: Can you follow the judge’s law and the law in the State of Florida and say I know that I favor the defendant, because he looks like a family member or I favor the State because I want to be a State Attorney when I grow up. The question is, can you follow the law and not say I’m going to be more for the defendant or more for the State and just sit here and listen to the evidence and make the State prove our case beyond a reasonable doubt, because that is what we have to do?
JUROR: Yes.
PROSECUTOR: So my question is, can you do that even though you may feel more sympathetic particular towards one side or the other. Can you put aside your feelings and sit here with an open mind and see whether or not the State of Florida at the end of the case has proved the charges of murder in the first degree against the defendant, can you do that honestly?
JUROR: Yes, I think I could. Just like you say maybe I would lean a little more to one side, but I would have to hear everything before I can actually make a decision.
PROSECUTOR: You can’t lean. That is what you are saying when you say I think you are going to make the State nervous ... and you are going to make [defense counsel] nervous. You can’t say I think. My question, can you put aside your feelings for the State or the feelings for the defendant, put them aside if you are selected as a juror and listen to the evidence that comes forward on the case and make a determination at the conclusion of all the evidence as to whether or not the State of Florida has proved these two charges against the defendant. Can you do that, honestly?
JUROR: Yes.
THE COURT: Thank you....
DEFENSE COUNSEL: I’m confused. I’m sorry.... You started telling your honor that you couldn’t do what you just told the prosecutor that you are going to do.
JUROR: I can put it aside but, it is just that with my past experiences — I have an old mind in all things and I know that I can do it. It is just that I rather not, just because — I mean, put it aside, but I can have an open mind and put all my feelings aside....
DEFENSE COUNSEL: Are those feelings going to make it easier for the State to secure a conviction against Mr. Matarranz, if you sit as a juror in this case?
JUROR: I would have to hear — like I would have to hear the whole thing.
DEFENSE COUNSEL: What are you going to require me to do?
PROSECUTOR: Judge, I’m going to object.
THE COURT: Sustained....
DEFENSE COUNSEL: These feelings that you have right [ ] now that you are leaning towards the State because of your prior experiences, would you explain those prior experiences, please.
JUROR: No prior experience, just like I explained to the judge, I had a cousin.
DEFENSE COUNSEL: Tell me about the burglary?
JUROR: The burglary was when I was younger, someone broke into my house it was on Christmas day, they stole everything and they — it is not easy for me like, an eight year old come into my house, knowing all of my presents are gone and everything that my parents worked so hard for is now gone.
DEFENSE COUNSEL: And it still brings back bad memories as you think about it now.
JUROR: Sometimes. It has gotten easier. They have been moments that I don’t even think about it, but sometimes when something comes up I think a lot of it.
DEFENSE COUNSEL: Did you start thinking about it as soon as your honor told you that one of the charges w[as] burglary?
JUROR: Yes.
DEFENSE COUNSEL: Can you tell me what you started thinking about as soon as you heard that it was a burglary?
JUROR: Just me walking in my house and knowing that everything that my parents worked extremely hard for is now not there and now they have to work harder again to move on forward then that....
DEFENSE COUNSEL: Do you think those experiences that you have and those experiences that you are remembering today, do you think that they are going to affect you as you deliberate and make the decision whether or not Mr. Matarranz is guilty of the charge of burglary and the charge of murder.
JUROR: No, ’cause I would have to hear it. I don’t think so.
The next day, the Juror was questioned again by the prosecutor and defense counsel.
PROSECUTOR: [Juror], same questions to you. You kind of went back and forth and I want to ask you, if you can promise that you will not hold it against the defendant because he doesn’t have a burden, if he decides not to testify or if they decide not to put on witnesses, are you okay with that?
JUROR: Yes.
PROSECUTOR: And you understand that it is the State’s burden to prove him guilty beyond and to the exclusion of every reasonable doubt?
JUROR: Yes.
PROSECUTOR: And do you understand that they do not have the burden to do anything?
JUROR: Yes.
PROSECUTOR: The bottom line is, you may want to hear, can you follow the law that they do not have to do anything in this case?
JUROR: Yes.
PROSECUTOR: And hold the State to its burden?
JUROR: Yes....
DEFENSE COUNSEL: As we are sitting here today, have you been thinking about what we talked about yesterday?
JUROR: And I talked about it and I have a more opened mind about it and I gave a thought and I have opened mind and that anything that happened to me in the past has nothing to do with this case.
DEFENSE COUNSEL: Would you like Mr. Matarranz to testify?
JUROR: It doesn’t matter. It depends on the evidence whether he is guilty or not. As of right now he is innocent because there is nothing presented to me that proves otherwise.
DEFENSE COUNSEL: Have you ever heard of somebody that did something but in real[i]ty he didn’t do it?
JUROR: No.
DEFENSE COUNSEL: What do you think about it?
JUROR: It depends on the evidence that is there because words are just words.
DEFENSE COUNSEL: Are you opened to the possibility that somebody would say that he did something very terrible, very bad which in fact he didn’t? ... Are you opened to the possibility that somebody may admit to doing something terrible where in fact he didn’t do that?
JUROR: Yes.

Later, the trial court, prosecutor, and defense counsel discussed which prospective jurors they believed should remain on the panel. When the trial court asked defense counsel whether he wanted to use a peremptory challenge to strike the Juror, the following dialogue transpired:

DEFENSE COUNSEL: We move to strike [the Juror] for cause yesterday. She essentially said she would hold a grudge against people who violate the law and people who steal and this was based upon her previous victimized — the fact that she was previously the victim of burglary. She has a grudge toward the defendant. She leans towards the State and I think she even said multiple times, originally she said that she had a problem with the charges when your honor asked her if she could be fair and impartial, she said to both, even though today she kind of backtracked a little bit, she said she now has more of an opened mind. It is clear that this is a woman or a juror who could not be fair and impartial beyond a reasonable doubt that being the standard we move to strike her for cause.
THE COURT: I’m going to deny the cause challenge. Having only had heard testimony from yesterday, I would have been inclined to grant it, but her testimony yesterday includes the fact that there had been this burglary when she was eight years old, that was emotional for her because it included the theft of her Christmas toys and today based on her demeanor, I believe from her reflection, I think she was embarrassed and she said that she thought about it last night and she said that she felt that she had more of an opened mind today and that she could be fair and she realized that that burglary that happened to her had nothing to do with this case. So, for those reasons I’m going to deny the cause challenge; do you wish to exercise a peremptory?

(Emphasis supplied.) Later, defense counsel was forced to use his sixth peremptory challenge to strike the Juror.

After defense counsel exhausted his tenth and final peremptory challenge, defense counsel stated that the trial court had erred because five of the ten jurors he had removed peremptorily should have been removed for cause. Defense counsel listed these jurors by name. The Juror at issue in this case was not included in defense counsel’s list. Defense counsel then requested an additional peremptory challenge. After listing the jurors whom defense counsel contended should have been removed for cause (rather than with peremptory strikes), counsel listed one juror he would strike if granted an extra peremptory challenge in addition to four other jurors. The trial court denied the request for an additional peremptory challenge. According to the opinion of the Third District, one of these “objectionable” jurors sat on the jury. See id. at 538. Before the jury was sworn, defense counsel renewed “all our motions and objections and challenges previously made.” Following the jury trial, Matarranz was found guilty of first-degree murder and burglary. Id. at 534-35.

On appeal, the Third District affirmed Matarranz’s convictions but wrote specifically to address the trial court’s denial of a challenge for cause against the Juror. See generally id. The district court concluded that, after having conducted a “thorough review of the record,” the trial court did not commit manifest error when it determined that the Juror was competent to serve. Id. at 539. The district court stated that the Juror consistently indicated:

1) she would not hold it against Mr. Matarranz if he did not testify or if the defense did not present witnesses;
2) she understood that it was the State’s burden to prove Mr. Matarranz’s guilt beyond a reasonable doubt;
3) Mr. Matarranz did not have any burden of proof; and
4) she would hold the State to its burden of proof based on the evidence presented.

Id. Additionally, the Third District identified that the Juror had stated “anything that happened to me in the past has nothing to do with this case.” Id.

This Court granted review of the Third District’s decision based on conflict with the decision in Huber, in which the Fourth District held that the trial court erred when it refused to dismiss a prospective juror for cause who originally expressed doubt regarding whether he could presume the defendant was innocent and follow the law. See Huber, 669 So.2d at 1082-83.

ANALYSIS

PRESERVATION

Matarranz contends that the Third District erred when it affirmed the trial court’s denial of his challenge for cause to the Juror. Matarranz alleges that the Juror’s responses during voir dire demonstrate her bias toward Matarranz and in favor of the State. In addition to disputing the merits of this claim, the State contends that Matarranz did not preserve it for review. As explained below, we disagree.

In Kearse v. State, this Court held that to preserve challenges for cause to prospective jurors, the defendant must “object to the jurors, show that he or she has exhausted all peremptory challenges and requested more that were denied, and identify a specific juror that he or she would have excused if possible.” 770 So.2d 1119, 1128 (Fla.2000); see also Trotter v. State, 576 So.2d 691, 693 (Fla.1990); Hill v. State, 477 So.2d 553, 556 (Fla.1985). As this Court explained in Carratelli v. State, “[b]y not renewing the objection prior to the jury being sworn, it is presumed that the objecting party abandoned any prior objection he or she may have had and was satisfied with the selected jury.” 961 So.2d 312, 318 (Fla.2007) (quoting Zack v. State, 911 So.2d 1190, 1204 (Fla.2005)). A court errs when it “force[s] a party to exhaust his peremptory challenges on persons who should have been excused for cause.... ” Leon v. State, 396 So.2d 203, 205 (Fla. 3d DCA 1981); see also Hill, 477 So.2d at 556.

Carratelli and related case law demonstrate that it is the objection/re-objection process — not the re-listing of specific, individual, and previously objected-to jurors — that is the decisive element in a juror-objection-preservation analysis. See Carratelli, 961 So.2d at 318; Kearse, 770 So.2d at 1128; Joiner v. State, 618 So.2d 174, 176 (Fla.1993). For example, in Joiner, this Court held that the district court properly concluded the defendant had not preserved his earlier objection to the composition of the jury because counsel had later accepted the panel without objection. See Joiner, 618 So.2d at 176. In so ruling, this Court stated:

It is reasonable to conclude that events occurring subsequent to his objection caused him to be satisfied with the jury about to be sworn. We therefore approve the district court to the extent that the court held that Joiner waived his ... objection when he accepted the jury. Had Joiner renewed his objection or accepted the jury subject to his earlier ... objection, we would rule otherwise. Such action would have apprised the trial judge that Joiner still believed reversible error had occurred. At that point the trial judge could have exercised discretion to either recall the challenged juror for service on the panel, strike the entire panel and begin anew, or stand by the earlier ruling.

Id. (footnote omitted). Once counsel has noted that he or she would strike a specific juror for cause, and again renews that objection before the jury is sworn, counsel has accomplished the purpose which underlies the Carratelli logic: to provide a trial court with notice that counsel believes a juror has been retained in error, and to provide the court with a final opportunity to redress the situation. See Joiner, 618 So.2d at 176.

Additionally, after moving to strike a juror for cause, precedent does not reflect that counsel is required to again list the juror by specific name a second time who should have been initially removed for cause, but was not. Although the question of preservation in this case would have been a non-issue had counsel simply identified the Juror by specific name a second time prior to swearing in, precedent reflects only that counsel must identify “a” specific juror whom counsel would have excused with an additional challenge. See Kearse, 770 So.2d at 1128 (“In order to preserve [a challenge for cause] for appeal, Florida law requires a defendant to ... identify a specific juror that he or she would have excused if possible.” (emphasis supplied)); see also Dillbeck v. State, 643 So.2d 1027, 1028 (Fla.1994).

Here, defense counsel moved to strike the Juror for cause after engaging in a thorough discussion with her regarding her capacity to be fair and impartial. The trial court denied this request. Thereafter, counsel was forced to use a peremptory challenge to strike this Juror. After already removing the Juror peremptorily, counsel did not need to then specifically identify her again as objectionable for cause (as he had earlier) to preserve the challenge. Counsel met the requirements of preservation by exhausting all of his peremptory challenges and then specifically identifying and listing jurors he would have excused if provided with an additional challenge.

Given that the requirements of preservation were satisfied, Matarranz would suffer a violation of his due process rights if the Juror should have been, but was not, removed for cause. “Florida ... adhere[s] to the general rule that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” Hill, 477 So.2d at 556. “The value of peremptory challenges is that they are intended and can be used when defense counsel cannot surmount the standard for a cause challenge.” Busby v. State, 894 So.2d 88, 100 (Fla.2004). This value is destroyed if counsel is forced to use a peremptory challenge on a juror who should have been removed for cause. See Hill, 477 So.2d at 556 (noting that “such error cannot be harmless because it abridged appellant’s right to peremptory challenges by reducing the number of those challenges available [to] him”); cf. Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989) (holding that the defendant did not suffer prejudice because he had “numerous peremptory challenges remaining, but chose not to exercise any on [the contested jurors]”).

Defense counsel exhausted all of his peremptory challenges, sought additional chai-lenges, and the trial court denied the request. The trial court was on notice that defense counsel was dissatisfied with the jury panel due to counsel’s objection at the time the jury was sworn. Therefore, we hold that this claim was preserved for review and now analyze it to evaluate whether Matarranz suffered a violation of his due process right to a fair and impartial jury.

STANDARD OF REVIEW

The question of the competency of a challenged juror is “one of mixed law and fact to be determined by the trial judge in his [or her] discretion. This decision will not be disturbed unless error is manifest.” Singer v. State, 109 So.2d 7, 22 (Fla.1959); see also Carratelli, 961 So.2d at 319 (noting that appellate courts review “the trial court’s discretionary decision for manifest error”). When evaluating a juror’s competency, an appellate court must keep in mind that “the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” Trotter, 576 So.2d at 694; see also Carratelli, 961 So.2d at 319.

JUROR BIAS

In Singer, this Court articulated the applicable rule to evaluate whether a trial court’s denial of a challenge for cause constitutes reversible error:

[I]f there is basis for any reasonable doubt as to any juror’s possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial, he should be excused on motion of a party, or by the court on its own motion.

Singer, 109 So.2d at 23-24; see also Banks, 46 So.3d at 995; Kopsho v. State, 959 So.2d 168, 170 (Fla.2007) (“A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.”); Hamilton v. State, 547 So.2d 630, 632 (Fla.1989). We have also held that if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors’ — which is interpreted to mean that the mind of the proposed juror should not contain any element of prejudice for or against either party in a cause to be tried before him. Johnson v. Reynolds, 97 Fla. 591, 121 So. 793, 796 (1929) (quoting Temples v. C. of Ga. Ry. Co., 15 Ga.App. 115, 82 S.E. 777, 779 (1914) (citation omitted)).

Trial courts are endowed with the responsibility to determine that jurors render a verdict solely on the evidence presented and the law given by the court. Banks, 46 So.3d at 995; Hamilton, 547 So.2d at 633; Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). It is evidence and facts, not emotions or passions, that must inform a juror’s decision. A trial court’s determination of whether a juror can render a verdict based on the evidence presented involves an evaluation of “all of the questions and answers posed to or received from the juror.” Banks, 46 So.3d at 995 (quoting Parker v. State, 641 So.2d 369, 373 (Fla.1994)); see also Johnson v. State, 969 So.2d 938, 946 (Fla.2007). Although a juror’s assurances of impartiality may suggest to a court that the denial of a challenge for cause may be appropriate, see Banks, 46 So.3d at 995, such assurances are neither determinative nor definitive, see Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). See also Overton v. State, 801 So.2d 877, 892 (Fla.2001) (holding that a juror’s assurances were insufficient to persuade this Court as to the juror’s impartiality); Singer, 109 So.2d at 24 (“a juror’s statement that he [or she] can and will return a verdict according to the evidence submitted and the law announced at trial is not determinative of his [or her] competence .... ”). Assurances of impartiality after a proposed juror has announced prejudice is questionable at best.

This Court is keenly aware of the unique biases, prejudices, predilections, predispositions, and viewpoints that each of us possesses and that cannot be altered or undone by the court or counsel over the course of voir dire. These proclivities may be neither wrong nor perverse. Rather, they are realities of human nature, and their existence underscores the logic upon which our judicial system provides courts with the power to remove prospective jurors for cause. In Reynolds, we recognized these realities of human nature when we reversed the lower court’s decision not to remove a juror for cause who acknowledged personal bias, but also appeared to reject that sentiment over the course of voir dire. See Reynolds, 121 So. at 796. In that case, the prospective juror stated to the court that he was concerned about his ability to render a fair and impartial verdict because of his “friendly relations” with the plaintiffs’ attorney, and that it “would embarrass him to render a verdict against the plaintiffs.” Id. Although the prospective juror later conceded that he would be able to decide the case in accordance with the evidence presented, we held that this concession provided insufficient support to justify the court’s conclusion that the juror was competent to serve. See id. We found it

difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?

Id.

In O’Connor v. State, this Court emphasized its commitment to juror impartiality when it noted that “jurors should if possible be not only impartial, but beyond even the suspicion of partiality.” 9 Fla. 215, 222 (Fla.1860). The goal sought is

a jury composed of persons whose minds are free of any preconceived opinions of the guilt or innocence of an accused, persons who can in fact give to an accused the full benefit of the presumption of innocence, persons who can because of freedom from knowledge of the cause decide it solely on the evidence submitted and the law announced at the trial.

Singer, 109 So.2d at 28.

Over the years, trial court discretion with regard to the removal of compromised jurors has at times become so broad that our courts have lost sight of the principles of law that undergird juror-qualification determinations. This, however, need not be the case. Partialities, biases, prejudices, and misconceptions are not all of one character and can be distinguished as prohibitive or non-prohibitive to jury service. Today we clarify the law to delineate this distinction.

Trial courts and counsel regularly find themselves addressing prospective jurors who maintain fixed opinions and firmly held beliefs based on personal life experiences. Such opinions and beliefs are defining qualities of these individuals. At least with regard to whether a prospective juror is unfit to serve given the circumscribed time frame provided by voir dire, we recognize opinions and biases that arise from these circumstances as immutable. However, courts and counsel also find themselves addressing jurors who misunderstand aspects of the law and the judicial process. These misunderstandings are based not on personal experience and beliefs, but on a lack of familiarity with or misinformation concerning the law. We clarify today that courts and counsel are correct to engage prospective jurors in a dialogue addressing their partialities, biases, prejudices, and misconceptions when they are rooted in a lack of familiarity with the judicial system as part of an effort to rehabilitate in contrast to those immutable opinions and attitudes that arise from personal life experiences and firmly held beliefs. Florida law “allows ‘the rehabilitation of jurors whose responses in voir dire raise concerns about their impartiality.’” Rimes v. State, 993 So.2d 1132, 1134 (Fla. 5th DCA 2008) (quoting Juede v. State, 837 So.2d 1114, 1115 (Fla. 4th DCA 2003)). Concerns that stem from misinformation and confusion concerning the law or process are ripe for discussion and redress through rehabilitation.

In Overton, this Court addressed a denial of a challenge for cause against a prospective juror, and, in so doing, implicitly addressed when it is and is not appropriate to retain a juror who manifests particular biases with regard to the death penalty. See 801 So.2d at 889-95. In Overton, Juror Russell admitted multiple times during voir dire that he “always believed” that when individuals do not “take the stand ... they’ve got something to hide.” Id. at 891-92 (emphasis supplied). However, Juror Russell also asserted that he could “shut that [belief] out” if he was selected to serve. Id. at 892. Given the totality of responses, we concluded that Juror Russell’s assurance was insufficient to negate his pronouncement that a decision not to testify suggested a consciousness of guilt, and, therefore, we held that he should have been removed for cause. See id. at 893.

In contrast, in the same case, we did not find error in the trial court’s refusal to excuse Juror Heuslein who “note[d] that he favored the death penalty,” but, as voir dire proceeded and counsel explained the capital sentencing scheme, ultimately “expressed a ‘great deference’ to the trial court’s instructions, ... that he would ‘start from a clean slate,’ ” and would “follow the law.” Id. at 894 (emphasis supplied). Juror Heuslein also indicated that he could consider a life recommendation even if the jury found the defendant guilty of first-degree murder. See id. Based on the record, we held that the trial court did not abuse its discretion when it denied a challenge for cause to Juror Heuslein. See id.

Our decision in Overton to affirm the trial court’s ruling as to Juror Heus-lein, but not Juror Russell, reflects discernment between those viewpoints that stem from firmly held beliefs that will not be altered during voir dire through dialogue with the court and counsel, and those opinions that are open to exploration and modification. We understand that “[i]t may be quite easy for either the State or the defense to elicit strong responses that jurors would genuinely reconsider once they are instructed on their legal duties and the niceties of the law.” Id. at 894 (quoting Johnson v. State, 660 So.2d 637, 644 (Fla.1995)). “[J]urors brought into court face a confusing array of procedures and terminology they may little understand at the point of voir dire.” Id. (quoting Johnson, 660 So.2d at 644). Prospective jurors may be “overwhelmingly unaware” of the varied trial procedures and processes they will confront in a given case. Id. at 893 (discussing jurors’ lack of familiarity with the “bifurcated process” in a death case). Therefore, it is necessary for courts to distinguish between those biases and beliefs that define a prospective juror — and thus produce little if any actual change in him or her from intensive questioning — and those in which information and explanation may provide a prospective juror with the “requisite familiarity” and insight into the judicial process that will render him or her competent to serve.

It was a type and degree of equivocation similar to that in the case currently before this Court that led us to hold in Hamilton that a contested juror did not exhibit the “requisite impartial state of mind necessary to render a fair verdict, and thus should have been dismissed from the jury pool.” Hamilton, 547 So.2d at 633; see also Trotter, 576 So.2d at 694 (holding that the prospective juror’s equivocal responses, though ultimately followed with affirmations of impartiality, did not provide support for this Court to reject the trial court’s removal of a juror for cause). In Hamilton, a juror stated that she would require evidence presented by the defendant to convince her that the defendant was not guilty. Hamilton, 547 So.2d at 632. That same juror also “eventually stated that she could base her verdict on the evidence at trial and the law as instructed by the court.” Id. Although we recognized that the juror stated she would be able to evaluate the case with an open mind, “her other responses raised doubt as to whether she could be unbiased.” Id. at 633. Consequently, we determined that the trial court erred in retaining her for the jury and that the failure to excuse her “deprived [the defendant] of his constitutional right to a fair trial.” Id. Accordingly, we reversed the conviction and remanded the case for a new trial. See id.

Similarly, in Hill, this Court rejected the determination of the trial court that a contested juror possessed the requisite state of mind and, consequently, held that the juror at issue should have been dismissed for cause because of preconceived opinions as to the guilt or innocence of those charged with the crimes. Hill, 477 So.2d at 555-56. We noted that when the trial court asked whether the juror would allow preconceived opinions to control his decision, he replied, “ ‘That’s a hard decision to make right now. I think I can say I can. I don’t know for sure.’ ” Id. at 555. When defense counsel asked how he would prevent his opinions from affecting his deliberations, the juror responded:

Well, basically, like I said, I have not associated that opinion with [the defendant]. It was just a blank feeling that ... someone that shoots someone else should be punished.... I feel anyone that shoots anyone else in the type of incident as much as I know about it now, the death penalty should be imposed upon them. That’s basically what I felt at the time.

Id. (emphasis omitted). Later, with regard to the juror’s feelings on the death penalty, the following dialogue transpired:

DEFENSE COUNSEL: Do you feel like from under the facts that you know now, do you feel like this might be an appropriate case [to impose the death penalty]?
JUROR: I don’t feel I have really been given any more facts than I have before coming into the courtroom.
DEFENSE COUNSEL: You formed an opinion before though?
JUROR: Yes, sir.
DEFENSE COUNSEL: Have you discarded that opinion?
JUROR: Not necessarily.
DEFENSE COUNSEL: Do you feel that in all cases of premeditated murder that the death penalty should be applied?
JUROR: It’s a hard question to answer.
DEFENSE COUNSEL: Yes, sir, sure is.
JUROR: I’m not saying in all eases, [it’s] dependent upon the evidence.
DEFENSE COUNSEL: Are you still inclined towards the death penalty in this case if in fact there is a conviction?
JUROR: Yes, sir.
DEFENSE COUNSEL: That’s the presumption that you came into this court with?
JUROR: Yes, sir.

Id. In reversing the refusal by the trial court to strike this juror for cause, we concluded that discretion was not even at issue because the trial court simply had “failed to apply the rules of law set forth in Singer.” Id. at 556.

The above analysis, coupled with our articulation of a test to distinguish between biases that render an otherwise objectionable juror competent to serve highlight that our holding today does not constitute, as the dissent contends, “a fundamental alteration of the established structure for the disqualification of jurors for bias ... [that is] radically flawed.” Dissenting op. at 488. Rather, today we offer a crystallization and clarification of the rules and procedures that already define the voir dire process. Our ruling provides a formulaic framework for the trial courts to employ when rendering decisions with regard to juror fitness to serve. The only “radical” element with regard to the opinions issued in this case is the dissent’s implicit admission that it would have our courts empanel biased and compromised jurors rather than adhere to the principle that our courts empanel only fair and impartial jurors. Our ruling today is not one of sacrificing justice for judicial expediency as the dissent would hold; to the contrary, it furthers a much more important and sacred objective: to protect and safeguard the rights of all those who participate in the judicial process and to enhance trust and confidence in that process.

Although uttered “with all due respect,” the dissent incorrectly asserts that our decision today rebuffs the notion that “human beings can learn and ... change” and characterizes our conclusion regarding relatively instantaneous opinion changes by jurors during voir dire as an affront to “human experience.” Dissenting op. at 493. Not only does the position of the dissent overrule clear precedent of this Court, see Reynolds, 121 So. at 796, but it draws an even more preposterous conclusion that “the human capacity for rational reflection,” Dissenting op. at 493, is but a light switch that can be flipped on or off, and a trial court may thereby procure a juror who mere minutes before expressed unacceptable bias and partiality, is suddenly objective and neutral such that we, as members of the judiciary and servants of the public, can maintain the requisite degree of confidence in our legal system to attest to its integrity and fairness. To the extent that members of this Court “depart” from our framework for determining juror bias, see Dissenting op. at 493, it is the dissent which today compromises our efforts to safeguard and defend one of the great bulwarks of democracy — fair juries.

As was the case in Hill, in the present case the trial court simply failed to apply Singer’s rule of law, which provides that if there is a reasonable basis to doubt a juror’s impartiality, then that juror should be excused. See Hill, 477 So.2d at 555-56. Notwithstanding “tortured attempts at rehabilitation,” the totality of the Juror’s responses in this case sufficiently placed in doubt her ability to be impartial. Overton, 801 So.2d at 893.

The true test of the fixedness of an opinion in the mind of a juror is not whether the opinion will readily yield to the evidence. Singer, 109 So.2d at 24. The accused is not required to present evidence of innocence. Id. “The accused, guilty or innocent, is entitled to the presumption of innocence in the mind of every juror until every element of the offense charged against him [or her] has been proved.... ” Id. (quoting Powell v. State, 131 Fla. 254, 175 So. 213, 216 (1937)); Smith v. State, 463 So.2d 542, 545 (Fla. 5th DCA 1985). The test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions. Moreover, if an individual takes the additional step of admitting concern that he or she may be biased, an expression of such sentiment must necessarily inform a court’s analysis of juror partiality. See Singer, 109 So.2d at 24.

In the case currently before us, not only did the Juror admit to the trial court while describing an upsetting incident in her life that she believed she was biased in favor of the State, it appears that the court may have “embarrassed” her into rejecting her expressed sentiments. A court should assess a juror’s ability to be fair and impartial based on the genuineness of his or her statements, not on whether the juror has reached a sufficient level of discomfort to reject or conceal genuinely-held feelings. Here, the trial court’s own observations support the conclusion that the Juror rejected her earlier admissions based on embarrassment, which does not thereby establish her impartiality or competence to serve. Matar-ranz’s right to a fair and impartial jury was thus compromised by the failure of the trial court to excuse her for cause.

As evidenced in the transcript of the voir dire, the Juror identified herself when the trial court asked if anyone thought he or she could not be a fair juror. She explained that because her family’s home was burglarized during Christmas when she was eight years old, and because one of her family members had been a victim of fraud, she was concerned she would be biased against the defendant. Among other charges, Matarranz was charged with burglary, and the trial was scheduled to occur during the holiday season.

The Juror explained to the trial court that even at the present moment, when she reflected on the Christmas burglary, she was saddened and, because she did not think “it [wa]s right for someone to come in and take something that someone worked so hard for ...,” she would favor the State in Matarranz’s case. When questioned further as to whether she could set aside her negative feelings and listen to the evidence presented by the prosecutor and defense counsel, the Juror responded that she believed she could, but that she had “an old mind in all things” and that she would prefer not to be forced to do so.

Before her final day of voir dire, the Juror consistently answered questions as to whether she could be fair to Matarranz and make a determination based solely on the evidence with the opinion that she “thought” she could — an equivocal response. It was only on her last day of being skillfully questioned, after the Juror stated that she had reflected on her discussions with the court and counsel, that she concluded she could maintain an open mind during the trial. The Juror stated “anything that happened to me in the past has nothing to do with this case.” It appears that this statement and the exchange surrounding it informed the trial court’s decision not to grant defense counsel’s challenge for cause. The trial court stated that

[hfcving only had heard testimony from yesterday, I would have been inclined to grant it, but her testimony from yesterday includes the fact that there had been this burglary when she was eight years old, that was emotional for her ... and today based on her demeanor, I believe from her reflection, I think she was embarrassed and she said that she thought about it last night and she said that she felt that she had more of an opened [sic] mind today and that she could be fair and she realized that that burglary that happened to her had nothing to do with this case.

Matarranz, 99 So.3d at 537 (emphasis supplied).

Although the Juror was eventually embarrassed and urged into a posture that she could distinguish her personal experiences from Matarranz’s trial, the majority of her responses — and particularly her initial reactions — raised sufficient doubt as to her ability to be impartial. Initial reactions and comments from a prospective juror offer a unique perspective into whether an individual can be fair and unbiased. Here, the Juror’s responses clearly indicated that she was- not suited to serve in this trial. It was only after skillful lawyering and questioning that the process produced a contradiction from the Juror. Which statements do we trust?

Furthermore, we have concerns with regard to any measure of impartiality that roots itself in juror “embarrassment.” Id. (“I believe from her reflection, I think she was embarrassed-”). Although the dissent has no qualms with adopting a per se rule that if sufficient pressure from the trial court and counsel yields recantation of prior expressions of personal bias, we, in contrast, harbor serious concerns for both the sanctity of the judicial process and the well-being of our civically minded public. The dissent demonstrates an unfortunate lack of experience and understanding of classic problems which have been arising during voir dire for years under the per se “recantation” rule. Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective jurors expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition, which generates such embarrassment as to produce a socially and politically correct recantation. When a juror expresses his or her unease and reservations based upon actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to “rehabilitate” a juror into rejection of those expressions — as occurred here. At no point should prospective jurors feel compelled to reject genuine feelings regarding actual life experiences because courts or counsel have engaged in a dialogue that generates embarrassment, nor should our courts empanel jurors who maintain attitudes and feelings regarding the issue currently before the court that are anything but impartial.

Although the Juror in this case did not serve because defense counsel exercised a peremptory challenge to remove her from the jury, Matarranz was prejudiced because he had one less peremptory challenge to use against other objectionable jurors. Matarranz, therefore, was denied his right to a fair and impartial tribunal as guaranteed by the constitutions of this State and the United States.

CONCLUSION

This case concerns the “the great foundation and first principle and essence of a common law trial” — a jury trial. Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 438, 440, 3 Pet. 433, 7 L.Ed. 732 (1830).

[Trial by juries impartially selected is one of the components forming] the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages, and blood of our heroes have been devoted to [its] attainment.

Thomas Jefferson, First Inaugural Address in Washington, D.C. (March 4, 1801). The most basic guarantees of the American justice system — such as due process, habeas corpus, and the presumption of innocence — fully turn upon the impartiality of our arbiters of justice. See Christopher A. Cosper, Rehabilitation of the Juror Rehabilitation Doctrine, 37 Ga. L.Rev. 1471, 1472 (2003). Here, we cannot conclude that Matarranz was judged by a fair and impartial panel based on the responses of the Juror during voir dire. Therefore, we quash the decision of the Third District, remand this case for a new trial, and approve the decision of the Fourth District in Huber v. State.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

LABARGA, J., concurs with an opinion, in which PARIENTE, LEWIS, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

LABARGA, J.,

concurring.

I wholeheartedly concur with the majority opinion in this case but write separately to emphasize that trial courts must take great care to ensure that prospective jurors are not pressured or embarrassed by counsel or the court in an attempt to “rehabilitate” them when they have expressed sincere doubt about their ability to be fair when their doubt stems from actual adverse past personal experiences. Indeed, I would take the majority opinion one step further and hold that where a juror’s expressed reservations about his or her ability to be fair and impartial arise from the juror’s personal experience, true “rehabilitation” of that juror is not possible.

This Court has long held that if there is a basis for any reasonable doubt as to a juror’s ability to render a fair and impartial verdict, that juror should be excused. See Singer, 109 So.2d at 23. As the majority aptly points out, a juror’s statement that he or she will base his or her verdict solely on the evidence and law is not determinative where it appears from other statements that the juror is not “possessed of a state of mind which will enable him to do so.” Id. at 24. This Court correctly noted in Parker that “[i]n evaluating a juror’s qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror.” Parker, 641 So.2d at 373. The existence of a juror’s true lack of bias may not be judged simply based on the last response in a long line of questions and answers which finally result in a promise by that juror to consider all the evidence and be fair. In this case, the totality of the juror’s questions and answers, which were initially and strongly based on her actual life experience, discloses that she had serious reservations about whether she could put aside her deeply held, adverse feelings about the crime of burglary in order to render a completely fair and impartial verdict. Only after lengthy efforts at “rehabilitation,” taking place over the course of several days, did the juror relent and concede that she would put aside her concerns and abide by the evidence and the law.

As long ago as 1911, this Court held that if a prospective juror “is sensible of any bias or prejudice, he is excluded by the law.” Walsingham v. State, 61 Fla. 67, 56 So. 195, 198 (1911) (quoting Richardson v. Planter’s Bank of Farmville, 94 Va. 130, 26 S.E. 413, 413 (1896)). This same tenet was reiterated in Singer. See 109 So.2d at 23. Certainly, the juror at issue in the present case was “sensible” of her own prejudice based on her early unpleasant experience with the crime of burglary, which sensibility should have been honored by the court and counsel.

A juror’s fairly expressed, honestly held belief that he or she cannot be fair based on an unfortunate past life experience— and not simply based on a misunderstanding of the law — is not so easily overcome simply because counsel and the court manage to extract promises of fairness after much questioning. Such a process does not necessarily dispel the reasonable doubt that appertains to the juror’s initial honest statement of his or her personal feelings and beliefs. It certainly did not dispel such a reasonable doubt in this case. For the reasons expressed in the majority opinion, I fully concur.

PARIENTE, LEWIS, and PERRY, JJ., concur.

CANADY, J.,

dissenting.

Because I agree with the Third District Court of Appeal’s conclusion that there was no manifest error in the trial court’s determination that the challenged juror was qualified to serve, I dissent. I would approve the decision on review and disapprove the decision of the Fourth District Court of Appeal in Huber v. State, 669 So.2d 1079 (Fla. 4th DCA 1996).

Having tipped its hat to the “manifest error” standard of review, majority op. at 484, the majority effectively ignores our recognition “that the trial court has a unique vantage point in the determination of juror bias,” Smith v. State, 699 So.2d 629, 635 (Fla.1997). The majority likewise fails to heed the statutory framework established in section 913.03(10), Florida Statutes (2009), which requires the trial court to assess the prospective juror’s “state of mind” and recognizes that a juror’s expression of bias may be credibly recanted. The majority substitutes its own categorical judgment concerning the credibility of a class of prospective jurors for the individualized judgment made by the trial court who presided over the voir dire. And at the same time, the majority displaces the legislative judgment reflected in section 913.03(10) concerning the rehabilitation of prospective jurors. In this one decision, the majority thus distorts the allocation of responsibility between trial and appellate courts and violates the separation of powers between the legislative and judicial branches.

As the United States Supreme Court has stated, “the question whether a venireman is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venireman’s state of mind” — “a finding [which] is based upon determinations of demeanor and credibility that are peculiarly within the trial judge’s province.” Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). In line with this point, we have recognized that the manifest error standard of review applies because the “trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record.” Smith, 699 So.2d at 635-36 (citing Taylor v. State, 638 So.2d 30, 32 (Fla.1994)).

Section 913.08(10) points to the fundamental role of the trial court in assessing the credibility of declarations made by prospective jurors in voir dire to determine whether a “juror has a state of mind” “that will prevent the juror from acting with impartiality.” The statute provides that a prospective juror’s “formation of an opinion or impression” that is biased does not warrant disqualification of the juror if the juror “declares and the court determines” that the juror “can render an impartial verdict according to the evidence.” § 918.03(10), Fla. Stat.; see also Busby v. State, 894 So.2d 88, 98-99 (Fla.2004) (recognizing that section 913.03(10) outlines the grounds that support excusing jurors for cause based upon bias).

In derogation of both section 913.03 and our case law recognizing the manifest error standard of review and the role of trial courts in making credibility determinations, the majority makes the unprecedented declaration that there is a class of prospective jurors with “immutable opinions and attitudes that arise from personal life experiences and firmly held beliefs.” Majority op. at 486 (emphasis added); see also concurring op. (Labarga, J.) at 1 (“[W]here a juror’s expressed reservations about his or her ability to be fair and impartial arise from the juror’s personal experience, true ‘rehabilitation’ of that juror is not possible.”). For this class of prospective jurors, the majority concludes that it is the “biases and beliefs that define [the] prospective juror.” Majority op. at 486-87 (emphasis added). With all due respect to the majority, this branding of certain jurors based on their “life experiences” is wholly unjustified. Most human beings possess the capacity to overcome bad experiences and the ability to cast aside opinions and attitudes that — upon reflection — are shown to be irrational or unwarranted. No matter what their prior experiences, ordinarily human beings can learn and they can change. The majority’s failure to recognize the human capacity for rational reflection — even after a painful life experience — flies in the face of human experience.

Here, the majority, based on its categorical “immutable opinions” rule, discredits the juror’s unequivocal recantation of her prior expression of bias — a recantation that the trial court expressly credited. The majority’s view is summed up in the question it poses: “Which statements do we trust?” Majority op. at 490. By framing the issue in that manner, the majority demonstrates just how far it has departed from the established framework for determining whether a juror should be disqualified for bias. The proper question is not whether “we” trust certain statements. Our law recognizes that the trial court must make determinations of credibility and that “[i]f there is competent record support for the trial court’s conclusions regarding rehabilitation, then the appellate courts of this state will not reverse the determination on appeal based on a cold record.” Johnson v. State, 660 So.2d 637, 644 (Fla.1995).

The majority’s decision works a fundamental alteration of the established structure for the disqualification of jurors for bias. This change in the law — which disregards section 913.03(10) — has far-reaching implications and is radically flawed.

POLSTON, C.J., concurs.

      . The exchanges are transcribed exactly as they appear in the record, which includes numerous grammatical mistakes, run-on sentences, and other syntactical errors.

      . The transcript is clear, however, that the defense specifically requested that the Juror be removed for cause.

      . In response to the trial court's question as to whom defense counsel would use one extra peremptory challenge to strike if the court granted the request, counsel responded, "[a]t this particular point Mr. Devera would be one, Ms. Garcia, Ms. Gonzalez, juror number thirteen that is agreed, Mr. Gabriel, juror number twenty eight and Mr. Ramos juror number 46.” In response, the trial court stated "[t]he motion is denied.” All of these jurors sat on the jury, though Mr. Devera, who initially was an alternate, was later removed for cause.

      .In its opinion, the Third District stated, ”[t]he trial court denied the request for an extra peremptory challenge and only one named ‘objectionable’ juror sat on the jury.” Matarranz, 99 So.3d at 538 (emphasis supplied). This Court has been unable to verify this statement. Our review of the record suggests that Matarranz would have removed four of the jurors who sat on the jury had he been given additional peremptory challenges, not just one.

      . Indeed, the prosecutor responded "I think you are going to make the State nervous ... and you are going to make [defense counsel] nervous. You can’t say I think."


author: QUINCE, J. CANADY, J.,

text:
    INTERVEST CONSTRUCTION OF JAX, INC., et al., Appellant, v. GENERAL FIDELITY INSURANCE COMPANY, Appellee.
    No. SC11-2320.
    Supreme Court of Florida.
    Feb. 6, 2014.

      W. Braxton Gilliam, IV and Robert M. Dees of Milam Howard Nicandri Dees & Gilliam, P.A., Jacksonville, FL, for Appellants.
    Louis Schulman of Dutton Law Group, P.A., Tampa, FL, for Appellee.
   QUINCE, J.

This case is before the Court for review of two questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that are determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. For the reasons that follow, we hold that the insured in this ease can use the payments to it from a third party to satisfy the self-insured retention provision.

FACTUAL AND PROCEDURAL HISTORY

This case involves the terms of a general liability insurance contract entered into by General Fidelity Insurance Company (General Fidelity) with Intervest Construction of Jax, Inc., and ICI Homes, Inc. (ICI). The dispute arose out of a personal injury lawsuit filed against ICI by an injured homeowner.

In 2000, ICI contracted with Custom Cutting, Inc. (Custom Cutting) to provide trim work, including installation of attic stairs in a residence that ICI was in the process of building. The contract between Custom Cutting and ICI contained an in-damnification provision requiring Custom Cutting to indemnify ICI for any damages resulting from Custom Cutting’s negligence. In April 2007, Katherine Ferrin, the owner of a residence constructed by ICI, fell while using the attic stairs installed by Custom Cutting. This fall resulted in serious injuries to Ferrin. Ferrin filed suit against ICI for her injuries; she did not file suit against Custom Cutting. In turn, ICI sought indemnification from Custom Cutting under the terms of the subcontract.

At the time of the accident, Custom Cutting maintained a commercial general liability insurance policy with North Pointe Insurance Company (North Pointe). ICI was not an additional insured under Custom Cutting’s policy with North Pointe. ICI held the General Fidelity policy at the time of the accident. Contained in the General Fidelity policy was a Self-Insured Retention endorsement (“SIR”) in the amount of $1 million. The SIR endorsement stated that General Fidelity would provide coverage only after the insured had exhausted the $1 million SIR. The policy also included a transfer of rights clause granting the insurer some subrogation rights, the extent to which the parties dispute.

ICI, Custom Cutting, North Pointe, General Fidelity, and Ferrin participated in a mediation of Ferrin’s claim. At the mediation, the parties agreed to a $1.6 million settlement of Ferrin’s claim. As part of the settlement, North Pointe agreed to pay ICI $1 million to settle ICI’s indemnification claim against Custom Cutting. ICI, in turn, would pay that $1 million to Ferrin. The instant dispute then arose as to whether ICI or General Fidelity was responsible for paying Ferrin the remaining $600,000.

Because of the disagreement between General Fidelity and ICI over coverage, North Pointe paid the $1 million into the trust account of ICI’s counsel and each party reserved all rights and claims against the other. Approximately one month later, both ICI and General Fidelity each paid $300,000 to Ferrin, in addition to the $1 million from North Pointe, in order to settle Ferrin’s claim for the full $1.6 million. However, the parties reserved the right to bring their claims against each other in order to be reimbursed for their contribution to the settlement.

ICI filed suit in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida for breach of contract and a declaratory judgment seeking return of the $300,000 ICI paid above the $1 million indemnification payment and for attorneys’ fees and costs incurred in the Ferrin lawsuit. General Fidelity then removed the case to the United States District Court for the Middle District of Florida based on diversity jurisdiction. General Fidelity filed a counterclaim seeking return of the $300,000 it had paid to Ferrin. The parties filed cross-motions for summary judgment.

In its complaint, ICI alleged that General Fidelity failed to perform its obligation under the policy by refusing to pay $600,000 of the $1.6 million settlement. ICI maintained that Custom Cutting/North Pointe’s contribution of $1 million to settle ICI’s indemnification claim, which was then passed on to Ferrin, satisfied the SIR obligation in the policy and General Fidelity was required to pay the remaining $600,000. General Fidelity argued that North Pointe’s $1 million payment to settle the indemnity claim did not reduce the SIR because the payment originated from Custom Cutting, not ICI. Thus, General Fidelity maintained that the terms of the policy required ICI to pay the additional $600,000 to settle Ferrin’s claim.

The district court denied ICI’s motion for summary judgment but granted General Fidelity’s motion, holding that ICI could not use the $1 million indemnification payment to satisfy the SIR. The district court cited four California cases addressing similar SIR provisions in insurance policies. Based on the reasoning in those California cases, the district court concluded that the language in the SIR provision at issue in this case is unambiguous because it provides that the “Retained Limit” must be paid by the insured and that the “Retained Limit” will only be reduced by payments made by the insured. Thus the district court found that the indemnity payment that ICI received from Custom Cutting did not exhaust the SIR obligation as required by the language of the policy. Additionally, the district court found that even if ICI had paid the $1 million out of pocket, General Fidelity had paid out the additional $600,000, and ICI was indemnified by Custom Cutting at a later date, ICI would still not have exhausted the SIR as required by the policy because the “transfer of rights” provision in section IV(8) of the policy provides that if the insured has rights to recover all or part of any payment that the insurer has made, those rights are transferred to the insurer. Accordingly, the district court entered judgment in favor of General Fidelity for $300,000.

ICI appealed the district court’s ruling to the Eleventh Circuit Court of Appeals. The Eleventh Circuit identified two issues that governed the outcome of the case, but concluded there was no controlling Florida law on either issue. Unlike the district court, the Eleventh Circuit did not find the California cases persuasive in interpreting the General Fidelity policy because the California policies were materially different. Thus, the Eleventh Circuit certified two questions to this Court for resolution:

1. DOES THE GENERAL FIDELITY POLICY ALLOW THE INSURED TO APPLY INDEMNIFICATION PAYMENTS RECEIVED FROM A THIRD-PARTY TOWARDS SATISFACTION OF ITS $1 MILLION SELF-INSURED RETENTION?
2. ASSUMING THAT FUNDS RECEIVED THROUGH AN INDEMNIFICATION CLAUSE CAN BE USED TO OFFSET THE SELF-INSURED RETENTION, DOES THE TRANSFER OF RIGHTS PROVISION FOUND IN THE GENERAL FIDELITY POLICY GRANT SUPERIOR RIGHTS TO BE MADE WHOLE TO THE INSURED OR TO THE INSURER?

Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co., 662 F.3d 1328, 1332-33 (11th Cir.2011). We address each question in turn below.

ANALYSIS

Under Florida law, the interpretation of insurance contracts, such as the commercial general liability policy in this case, is governed by generally accepted rules of construction. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007). “Insurance contracts are construed according to their plain meaning. Ambiguities are construed against the insurer and in favor of coverage.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005). However, courts only look to the rules of construction “when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.” Id. (quoting State Farm, Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986)). Courts may not “rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Id. (quoting Pridgen, 498 So.2d at 1248). Further, “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” J.S.U.B., 979 So.2d at 877 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)). “Although exclusionary clauses cannot be relied upon to create coverage, principles governing the construction of insurance contracts dictate that when construing an insurance policy to determine coverage the pertinent provisions should be read in pari materia.” Id. (quoting State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1074-75 (Fla.1998)).

The text of the SIR endorsement in the instant case provides, in pertinent part:

THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY
SELF-INSURED RETENTION Per Occurrence
Self-Insured Retention: $1,000,000 Per Occurrence
Including Loss Adjustment Expense
In consideration of the premium charged, it is agreed the insurance afforded by the policy to which this endorsement is attached is subject to the following additional terms, conditions and provisions. In the event of a conflict between any of the terms, conditions or provisions of the policy and this endorsement, this endorsement will control the application of insurance to which the policy applies.
Unless otherwise specified, all terms used in this endorsement have the meaning set forth in the policy.
1.The Self-Insured Retention, shown above, applies to each and every “occurrence” or offense made against any insured, to which this insurance applies, irrespective of the number of claims which may be joined in to any one “suit” or claim.
2. Our total liability will not exceed the Limits of Insurance as specified in the policy Declarations, Coverage Parts or endorsements. The Limits of Insurance will apply only in excess of the Self-Insured Retention, hereinafter referred to as the “Retained Limit.”
3. We have no duty to defend or indemnify unless and until the amount of the “Retained Limit” is exhausted by payment of settlements, judgments, or “Claims Expense” by you.
5. Should any claim arising under this policy result in a settlement or judgment, including “Claims Expense” incurred by the insured or on the insured’s behalf, in excess of the “Retained Limit,” we will pay those amounts in excess of the “Retained Limit” to which this insurance applies subject to the Limits of Insurance as specified in the Declarations.
6. The “Retained Limit” will only be reduced by payments made by the insured.
11. With respect to any claim payable under this insurance and subject in whole or in part to the “Retained Limit” as provided in this endorsement, we will have the right, but not the obligation to assume the control of said claim and to pay any part of or all of the amount of any such loss including “Claims Expense” within the “Retained Limit” on behalf of and for the account of the insured to affect settlement of said claim. Amounts paid by us pursuant to this paragraph will be reimbursed to us by the insured within ten (10) days from the date of our written request to the insured. We will have the right to make partial recoveries from the insured when partial settlements or “Claims Expense” are incurred by us within the “Retained Limit” as provided by this endorsement.
14. The insolvency, bankruptcy, receivership of the insured, or any refusal by or inability of the insured to satisfy its obligations pursuant to this endorsement will not reduce the “Retained Limit” as set forth in the endorsement, nor will it require us to pay any amounts within the “Retained Limit.” The payment of the “Retained limits” by the insured is a condition precedent for our obligation to pay any sums either in defense or indemnity and we shall not pay any such sums until and unless the insured has satisfied its “Retained limits.”

The underlined portions of the endorsement were cited by the district court as unambiguously requiring the insured to pay the “Retained Limit” from his or her own funds.

Both parties filed motions for summary judgment on the issue of whether ICI’s self-insured retention obligation was exhausted by an indemnification made by one of its subcontractors. The district court denied ICI’s motion and granted General Fidelity’s motion, entering judgment in its favor for $300,000. Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co., Case No. 3:09-cv-00894-HES-JRK (M.D.Fla. Apr. 22, 2010). The district court recognized that no Florida law addressed this narrow issue and cited three California decisions as persuasive authority. Id. at 6. The cited cases included Vons Cos. v. United States Fire Insurance Co., 78 Cal.App.4th 52, 92 Cal.Rptr.2d 597 (2000), Travelers Indemnity Co. v. Arena Group 2000, L.P., 2007 WL 935611 (S.D.Cal. Mar. 8, 2007), and Forecast Homes, Inc. v. Steadfast Insurance Co., 181 Cal.App.4th 1466, 105 Cal.Rptr.3d 200 (2010). The district court briefly summarized the reasoning in the cases and noted that “the instant case does not fall directly in line with any of the policy language discussed” in these cases. Intervest Constr., Case No. 3:09-cv-00894-HES-JRK, slip op. at 8. However, the district court found that the SIR endorsement in the policy repeatedly stated that the retained limit must be paid by the insured and that the limit would only be reduced by payments made by the insured. The district court found these terms to be unambiguous and required ICI to exhaust the SIR by payment of its own funds, not by application of the indemnification funds. Id.

On appeal, the Eleventh Circuit stated that the crux of the dispute between the parties focuses on two provisions of the General Fidelity policy, the SIR endorsement and the transfer of rights clause. Intervest Constr., 662 F.3d at 1329. The Eleventh Circuit noted that the particular language at issue in the General Fidelity policy is different from the language in the California cases. Id. at 1330. The Eleventh Circuit considered these distinctions to be “potentially significant” and found the policies in the California cases to be “materially different for two reasons: (1) the General Fidelity Policy, unlike those policies examined by other courts, does not contain an explicit provision addressing the precise issue in question, and (2) the language of the General Fidelity Policy is arguably less restrictive than the language of the policies at issue in those cases.” Id. (footnotes omitted). The Eleventh Circuit explained that “[rjequiring that a payment be made from one’s ‘own account’ is not necessarily the same as requiring that the retained limit be paid ‘by you’.” Id. In fact, the Eleventh Circuit reasoned that “a strong argument could be made that ICI exhausted its SIR because it paid for the protection afforded in the indemnification clause; to wit, ICI paid for that indemnity protection in the purchase price of the Custom Cutting subcontract and therefore hedged its retained risk, just as it could have paid for a loan or paid a premium on an insurance policy.” Id. Thus the Eleventh Circuit expressed skepticism of the district court’s analysis of this issue of Florida law. Id. at 1330-31. The Eleventh Circuit also noted that the policy at issue here “appears on its face to be more permissive” than those in the California cases because it did not contain any other provision requiring payments directly from the insured’s own account or expressly prohibiting the use of indemnification payments to satisfy the SIR. Id. at 1331.

Although each of the California cases cited by the district court and the Eleventh Circuit addressed the satisfaction of a SIR obligation, none involved the same policy language at issue here. What the cases have in common with each other, and with the resolution of the instant case, is that the policy language controlled — because it either clearly addressed or was ambiguous on the issue of how or by whom the SIR could be paid.

Vons involved an issue similar to the one presented here. A person was injured by a pallet jack being operated by a Vons employee in the common area of a shopping center owned by Vons’ landlord, Longs Drug Stores (Longs). Vons, 92 Cal.Rptr.2d at 599. The victim sued Vons for his injuries. Vons in turn cross-complained against Longs, alleging that Longs had expressly agreed to indemnify Vons for injuries that occurred in the common area and that Longs was partially to blame for the accident. Id. As part of Vons’ lease agreement with Longs, Vons was named an additional insured under Longs’ comprehensive general liability (CGL) insurance policy. The insurance policy contained a SIR endorsement, but it had been exhausted at the time the injured man filed his complaint. Thus the insurance policy provided first dollar coverage for the victim’s injuries. Id.

Vons was also insured under its own CGL policy issued by U.S. Fire. The Vons policy provided $1 million in coverage, but also included a $1 million SIR endorsement. The SIR endorsement in the Vons policy also provided that it was “subject to the limits of liability, exclusions, conditions, and other terms of the policy to which this agreement is attached ...” and that “all other terms and conditions of this Policy remain unchanged.” Id. Longs’ insurer issued a $1 million check to Vons as an additional insured under the Longs policy; Vons contributed $539,905 of its own funds to pay all of the settlement to the injured man. Vons and U.S. Fire disagreed on whether the $1 million SIR in the Vons policy would be deemed exhausted if that sum were paid on behalf of Vons as an additional insured under the Longs policy.

Vons sued U.S. Fire for declaratory relief on the issue. The trial court ruled that U.S. Fire had to reimburse Vons the $589,905 contributed to the settlement. The trial court determined that the Vons policy did not limit the source of the $1 million SIR in any way and did not require Vons to pay the SIR exclusively from its own pocket. Id. at 600. U.S. Fire appealed to the California appellate court, which concluded that the “subject to” language in the SIR endorsement made the endorsement subordinate to the other policy terms and conditions, including the “other insurance” provision that made the insurance excess in the event that other insurance was available. Id. at 604-05. The court explained that the SIR standing alone would ordinarily make the Vons policy excess, but this provision was expressly made subject to policy terms which also provided that U.S. Fire’s coverage was excess if any other valid insurance were available for the same coverage. The appellate court concluded that the most reasonable construction of this provision permitted the payment of the SIR amount through other valid and collectible insurance. Id. at 605. At the very least, the court stated, it rendered the SIR ambiguous on this point. Id. As the appellate court explained:

Nowhere does the SIR expressly state that Vons itself, not other insurers, must pay the SIR amount. Because the SIR was subject to the other insurance provisions, which also made the Vons policy excess if there were another policy covering the accident, Vons as a reasonable insured could read the policy as permitting the use of other insurance proceeds to cover the SIR amount.

Id.

Another case which involved the question of whether a policy required the SIR to be paid from the insured’s own account is Arena Group. The underlying action involved personal injuries sustained when a two-ton marquee sign at the San Diego Sports Arena fell on two individuals. Arena Group, 2007 WL 935611, at *1. The Arena Group was an additional insured under a policy that included a SIR of $500,000. The court noted that “a policy may prohibit the use of other insurance to satisfy a retention by including a policy provision requiring the insured to personally pay the retained amount.” Id. at *5. The court focused on the language of the policy, which stated, “Insured shall pay from its own account all amounts within the Retained Amount” and “The Retained Amount is the responsibility of the Insured and is to be paid from the Insured’s own account.” Id. Thus, the court concluded, the policy “unambiguously requires the Insured to pay the Retained Amount from its ‘own account’ ” and payments made by Arena Group’s other insurers to the injured parties did not satisfy the SIR. Id.

The language of the insurance policy in Forecast Homes was even more explicit, expressly limiting who could satisfy the SIR. The SIR endorsement required that the named insured “make actual payment” of the SIR amount and provided that “[pjayments by others, including but not limited to additional insureds or insurers, do not serve to satisfy the self-insured retention.” Forecast Homes, 105 Cal.Rptr.3d at 208. The court found that “[tjhis section of the policy regarding who can make the payment to satisfy the SIR is clear and unambiguous.” Id.

Acceptance Insurance involved a number of underlying actions for construction defects and property damage in homes based on work performed by a developer of residential real estate and the developer’s subcontractors. 2002 WL 32515066 at *1. The developer had a number of insurance contracts, including two with Insurance Company of the State of Pennsylvania (ISOP) and a comprehensive general liability policy with North American Capacity Insurance Company (NACIC). Id. Pursuant to its contracts, ISOP expended substantial funds in defending the underlying actions and making settlement payments. ISOP sought indemnification from NACIC for a portion of the expenditures. Id. The NACIC policy included a $250,000 per occurrence SIR endorsement. NA-CIC argued that the SIR had not been satisfied because the developer did not pay any portion of its defense or settlement costs. Id. at *2. Those costs were paid by ISOP and other insurance companies not parties to the action between ISOP and NACIC. Thus, the issue to be resolved was whether the NACIC insurance contract required the developer to fund the SIR itself.

The court determined that the SIR provision “clearly and unambiguously” required the developer to be responsible for satisfying the SIR with its own funds, regardless of any insurance coverage applicable to the underlying actions. Id. at *7. The SIR contained a provision stating that regardless of other insurance, the insured would continue to be responsible for the full SIR before the limits of insurance under the NACIC policy would apply. Id. The court noted that this provision in the SIR endorsement would be meaningless if not interpreted as requiring the insured to satisfy the SIR with its own funds. Id. Otherwise, the provision “would be reduced to simply reiterating the more general terms” of the policy. Id. Additionally, the endorsement expressly stated that it changed the policy and that it controlled in the event of a conflict with other policy provisions. Id. at *6. The court explained that the SIR endorsement in the NACIC policy “clearly place[d] the insured on notice that the additional provisions of the Endorsement change[d] the general policy terms and conditions and [were] separate requirements.” Id.

We agree with the Eleventh Circuit that the policies at issue in the California cases are materially different from the instant policy. See Intervest Constr., 662 F.3d at 1330. While the SIR endorsement in the instant case contains the same notice of change to the policy that the SIR endorsement in Acceptance Insurance contained, it does not contain a provision addressing other insurance within the context of the SIR. The policy in Acceptance Insurance contained a provision expressly stating that regardless of other insurance the insured would continue to be responsible for the full SIR before the limits of the policy applied. Acceptance Ins., 2002 WL 32515066 at *7. The SIR endorsement in the Forecast Homes policy required the named insured to “make actual payment” of the SIR amount and expressly provided that “[p]ayments by others, including but not limited to additional insureds or insurers, do not serve to satisfy the self-insured retention.” Forecast Homes, 105 Cal. Rptr.3d at 208. There is no similar language or provision in the instant case.

The Eleventh Circuit also noted that the language of the instant policy “is arguably less restrictive than the language of the policies at issue in [the California] cases.” Intervest Constr., 662 F.3d at 1330. For example, in Arena Group, the “other insurance” provision required the insured to pay all amounts within the retained amount “from its own account” and was also stated prominently on the first page of the policy — “The Retained Amount is the responsibility of the Insured and is to be paid from the Insured’s own account.” Arena Group, 2007 WL 935611 at *5. The Arena Group policy clearly and unambiguously informed the insured that the retained amount had to be paid from its own funds. The language of the instant policy states that the retained limit must be paid by the insured, but does not specify where those funds must originate. Requiring payment to be made from the insured’s “own account” is not necessarily the same as requiring that it be paid “by you.”

Moreover, as the Eleventh Circuit noted in its opinion, “a strong argument could be made that ICI exhausted its SIR because it paid for the protection afforded in the indemnification clause.” Intervest Constr., 662 F.3d at 13B0. The contract between Custom Cutting and ICI, which included the right to indemnification, was entered into six years before the General Fidelity policy was purchased by ICI. ICI paid for the indemnity protection in the purchase price of the Custom Cutting subcontract and therefore hedged its retained risk in this manner. ICI bargained for and paid for this right to indemnification and, without an express policy provision to the contrary, should be able to use it to satisfy the SIR. The instant case is more akin to the policy in Vons, in which the SIR did not “expressly state that Vons itself, not other insurers, must pay the SIR amount.” Vons, 92 Cal.Rptr.2d at 605.

In light of the language of the policy and the right to indemnification for which ICI paid, we answer the first certified question in the affirmative and find that the General Fidelity policy allows the insured to apply indemnification payments received from a third party toward satisfaction of its $1 million self-insured retention.

The second certified question asks whether the common law rule of the “made whole doctrine” applies here or whether the transfer of rights clause in the policy abrogated the doctrine. The district court did not address this issue. However, the Eleventh Circuit considered the effect of the transfer of rights clause if ICI was permitted to use the Custom Cutting indemnification to satisfy the SIR obligation. See Intervest Constr., 662 F.3d at 1331. As the Eleventh Circuit explained, that right alone “would be of little value if the General Fidelity Policy gave General Fidelity the priority to be made whole before ICI could use any of the indemnity payment towards the SIR.” Id. at 1331 n. 6.

The text of the transfer of rights provision is found in SECTION IV — -COMMERCIAL GENERAL LIABILITY LIMITS, and provides in full:

8. Transfer Of Rights Of Recovery Against Others To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring ‘suit’ or transfer those rights to us and help us enforce them.

As the Eleventh Circuit stated, the language of this provision is clear — it gives the insurer General Fidelity subrogation rights. However, the provision gives no guidance as to the priority to recover when the indemnity amount is insufficient to “make whole” both parties. See Intervest Constr., 662 F.3d at 1331. In its appeal to the Eleventh Circuit, ICI made two arguments regarding why the transfer of rights provision did not affect its priority to the indemnification funds. First, the plain language of the provision allows General Fidelity to recover only for payments “we have made,” and, at the time ICI received the indemnification payment from Custom Cutting, General Fidelity had not yet made any payment. Second, even if the court disregards the tense of the language, the General Fidelity policy did not abrogate the “made whole doctrine” and thus ICI has priority to receive any indemnification before General Fidelity. Id. In turn, General Fidelity argued that the court cannot place excessive emphasis on the tense of the language, and further that the transfer of rights provision in the policy abrogated the common law rule of the “made whole doctrine” by writing into the policy priority rights for General Fidelity. Id.

“Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.” W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So.2d 204, 206 (Fla. 5th DCA 1986) (quoting Boley v. Daniel, 72 Fla. 121, 72 So. 644, 645 (1916)). Florida recognizes two types of subrogation: conventional subrogation and equitable or legal subrogation. Conventional subrogation arises or flows from a contract between the parties establishing an agreement that the party paying the debt will have the rights and remedies of the original creditor. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). Since subrogation is an offspring of equity, equitable principles apply, even when the subrogation is based on contract, except as modified by specific provisions in the contract. In the absence of express terms to the contrary, the insured is entitled to be made whole before the insurer may recover any portion of the recovery from a tortfeasor. See Fla. Farm Bureau Ins. Co. v. Martin, 377 So.2d 827, 830 (Fla. 1st DCA 1979).

The “made whole doctrine” provides, absent a controlling contractual provision that states otherwise, that the insured has priority over the insurer to recover its damages when there is a limited amount of indemnification available. See Schonau v. GEICO Gen. Ins. Co., 903 So.2d 285, 287 (Fla. 4th DCA 2005) (“Decisions applying the ‘made whole’ doctrine essentially hold that where both the insurer and the insured simultaneously attempt to recover all of their damages from a tortfeasor who cannot (because of insolvency, limited insurance coverage, or other reasons) pay the full value of damages, the insured has priority of recovery over the insurer.”). Martin and the subsequent cases involving the “made whole doctrine” all deal with the insured’s primary right to recover before the insurance carrier. See, e.g., Monte de Oca v. State Farm Fire & Cas. Co., 897 So.2d 471 (Fla. 3d DCA 2004); Centex-Rodgers Constr. Co. v. Herrera, 761 So.2d 1215 (Fla. 4th DCA 2000); Humana Health Plans v. Lawton, 675 So.2d 1382 (Fla. 5th DCA 1996). We have acknowledged the application of the made whole doctrine in Florida. See Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 529-30 (Fla.1992) (“Using the common law subrogation principle, endorsed by Florida courts, the district court reasoned that the insured was entitled to be made whole before the subro-gated insurer could participate in the recovery from a tortfeasor.”).

ICI cites a Washington case for the proposition that the specific language of the transfer of rights provision found in the General Fidelity policy does not write out the “made whole doctrine,” thereby preserving ICI’s right of priority. See Bordeaux, Inc. v. Am. Safety Ins. Co., 145 Wash.App. 687, 186 P.3d 1188, 1192-93 (2008) (holding that “[t]he trial court properly ruled that [the insureds] were entitled to be made whole before any third-party recovery funds are paid to the insurers”). General Fidelity argues that Bordeaux is not on point.

Bordeaux addressed the nature of SIR provisions in commercial general liability policies that American Safety Insurance Company (American Safety) issued to the condominium developer, Bordeaux, Inc. When the condominium association filed a lawsuit against Bordeaux alleging extensive construction defects and property damage relating to the condominiums, Bordeaux tendered its defense to its two insurers, American Safety and Steadfast Insurance. Id. at 1189. The American Safety policy contained a SIR provision that obligated Bordeaux to pay $100,000 before American Safety had an obligation to provide indemnity, coverage, or defense under the policy. Id. The policy also contained a subrogation provision which stated that “[i]f the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us.” The policy defined the word “we” as “American Safety.” Id. at 1190. The Washington court determined that “the subrogation provision clearly only allows American Safety to recover payments it actually made.” Id. at 1192 (emphasis added). Additionally, despite the subrogation provision in the policy, the court concluded that the “made whole doctrine” applied in the case and affirmed the trial court’s ruling that the insureds “were entitled to be made whole before any third-party recovery funds are paid to the insurers.” Id. at 1192-93.

Bordeaux cited two Florida cases in support of its conclusion that the SIR did not operate as primary insurance, thereby making American Safety’s policy provide excess insurance. This conclusion was significant because had the self-insurance provisions constituted insurance and American Safety’s policy been deemed “excess” insurance, then American Safety’s rights to subrogation would have been superior to Bordeaux’s, and American Safety would have been entitled to recover third-party settlement funds before its insured. The Bordeaux court cited the Fourth District Court of Appeal’s decision in Zinke-Smith, Inc. v. Florida Insurance Guaranty Ass’n, 304 So.2d 507, 509 (Fla. 4th DCA 1974), and this Court’s decision in Young v. Progressive Southeastern Insurance Co., 753 So.2d 80, 85-86 (Fla.2000), for the proposition that self-insurance does not constitute insurance. Both parties make much of the fact that Florida cases were cited in Bordeaux. ICI cites this as evidence that Washington law is similar to Florida’s. However, General Fidelity correctly notes that the Florida cases cited turned on a different point of law. Zinke-Smith is based on statutory construction, not on interpretation of policy language. The Fourth District held that an employer who secures worker’s compensation as a self-insurer does not become an insurer under the insurance code. In Young, this Court dealt with the meaning of “insurance” in the Uninsured Motorists Statute, holding that a self-insured party is not insured. Young did not involve interpretation of policy terms at all, only statutory interpretation.

However, the language of the transfer of rights clause in the instant case is exactly the same as that in Bordeaux. While Bordeaux is not controlling precedent in this case, it is persuasive authority that the “made whole doctrine” is still applicable despite the insurance subrogation provision. As Florida law explains, because subrogation is an offspring of equity, equitable principles (such as the “made whole doctrine”) apply even when the subrogation is based on contract, unless the contract contains express terms to the contrary. See Fla. Farm Bureau, 377 So.2d at 830. Here, the transfer of rights clause does not address the priority of reimbursement nor does the clause provide that it abrogates the “made whole doctrine.” In the absence of such express language, equitable principles prevail. Thus, we answer the second certified question by stating that the transfer of rights provision in the policy does not abrogate the made whole doctrine, thereby preserving ICI’s right of priority.

CONCLUSION

Accordingly, we answer the Eleventh Circuit’s first certified question in the affirmative and the second certified question by concluding that the transfer of rights provision in the policy does not abrogate the made whole doctrine. Having answered the certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion in which POLSTON, C.J., concurs.

CANADY, J.,

dissenting.

Based on the unambiguous allocation of risk under the provisions of the policy, I would conclude that indemnification payments received from a third party may not be applied to satisfy the self-insured retention. I thus would answer the first certified question in the negative. That negative answer to the first question renders the second certified question moot.

Paragraph 3 of the self-insured retention endorsement plainly states that the insurer has “no duty to defend or indemnify unless and until the amount of the ‘Retained Limit’ is exhausted by payment of settlements, judgments, or ‘Claims Expense’ by you” — that is, by the insured. Paragraph 6 of the endorsement plainly states that “the ‘Retained Limit’ will only be reduced by payments made by the insured.” No other provisions of the policy render these provisions ambiguous.

A payment made by a third party pursuant to an indemnification agreement is not a payment “made by the insured.” The insurance policy should not be rewritten to allow satisfaction of the self-insured retention limit in a manner other than the manner specifically provided for in the policy. I thus would reject the legal fiction adopted by the majority that a payment made by a third party pursuant to a contractual indemnity provision is a payment “made by the insured.” Imposing that legal fiction effectively reads the phrase “by you” out of paragraph 3. And it reads the entirety of paragraph 6 out of the endorsement. The majority’s unjustified interpretation of the endorsement gives the endorsement a meaning that is no different than if those provisions were absent from the policy.

I dissent.

POLSTON, C.J., concurs.

      . The transfer of rights clause is set forth and addressed in the analysis of the second certified question below.

      . The Eleventh Circuit also cited a fourth California case as being materially different from the instant case. The Eleventh Circuit noted in a footnote that the SIR endorsement at issue in Insurance Co. of the State of Pennsylvania v. Acceptance Insurance Co., 2002 WL 32515066 (C.D.Cal. Apr. 29, 2002), contained a provision expressly addressing the possibility that the insured had other insur-anee covering the same claims.

      . The court did not use the term "made whole doctrine,” instead referring to the “longstanding rule ... favoring full compensation of insureds over subrogation rights of insurers.” Bordeaux, 186 P.3d at 1192. This cleariy is the same as the "made whole doctrine” under Florida law.

      . General Fidelity did not make that argument in this case.