source: Caselaw Access Project

author:
LABARGA, J. LEWIS, J.,
      POLSTON, C.J.,

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Robin CURRAN, Respondent.
    No. SC12-157.
    Supreme Court of Florida.
    March 13, 2014.

      Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami, FL; and The Turner Law Firm, LLC, Sarasota, FL, for Petitioner.
    Gary M. Farmer, Sr., of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, FL; O. John Alpi-zar, Palm Bay, FL; and Marjorie Gadari-an Graham, Palm Beach Gardens, FL, for Respondent.
    Bard Daniel Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, FL, for Amicus Curiae Florida Justice Association.
   LABARGA, J.

This case is before the Court for review of the decision of the Fifth District Court of Appeal, sitting en banc, in State Farm Automobile Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

WHEN AN INSURED BREACHES A [COMPULSORY MEDICAL EXAMINATION] PROVISION IN AN UNINSURED MOTORIST CONTRACT, (IN THE ABSENCE OF CONTRACTUAL LANGUAGE SPECIFYING THE CONSEQUENCES OF THE BREACH) DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE, OR DOES THE PREJUDICE ANALYSIS DESCRIBED IN BANKERS INSURANCE CO. V. MACIAS, 475 So.2d 1216, 1218 (Fla.1985), APPLY? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?

Id. at 806-07. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In line with the legal analysis we adopt, we clarify the issue presented by rephrasing the certified question as follows:

WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?

We answer the first portion of the certified question in the negative. As to the second portion of the certified question, we hold that the insurer as the defensive party pleading an affirmative defense has the burden of pleading and proving prejudice. For the reasons explained below, we approve the decision of the Fifth District.

BACKGROUND AND FACTS

The facts of this case are fully set forth in the Fifth District’s opinion in Curran. Id. at 794-800. We briefly summarize the facts here. This case arose as a result of a June 2006 traffic accident involving Robin Curran, insured by State Farm Automobile Insurance Company (State Farm), and the underinsured motorist who rear-ended Curran’s car. Subsequently, Curran and the underinsured motorist reached a settlement agreement, which was approved by State Farm. On July 19, 2007, through counsel, Curran requested her $100,000 underinsured motorist policy limits and offered to settle and release State Farm from an uninsured motorist (UM) lawsuit if it tendered the policy limits no later than August 18, 2007. In the letter to State Farm, Curran indicated that her damages were estimated to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (RSD) type l. On August 17, 2007, State Farm contacted Cur-ran’s counsel to schedule a compulsory medical examination (CME) with Dr. Joseph Uriechio pursuant to the terms of the policy, which provide that a claimant has the duty to

be examined by physicians chosen and paid by us as often as we reasonably may require. A copy of the report will be sent to the person upon written request. The person or his or her legal representative if the person is dead or unable to act shall authorize us to obtain all medical reports and records.

Further, in a different section, the policy also provided that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.”

After this initial letter, Curran and State Farm exchanged several contentious letters regarding attempts by State Farm to schedule the CME. Ultimately, however, Curran refused to attend a CME despite receipt of a reservation of rights letter from State Farm stating that her failure to “assist and cooperate” with the insurer may result in a denial of coverage. Instead, Curran filed suit against State Farm. State Farm answered and asserted an affirmative defense contending that Curran was not entitled to coverage under the policy because she breached the CME provision, which State Farm characterized as a condition precedent to coverage under the policy. Thereafter, State Farm moved for summary judgment on the coverage issue claiming it was entitled to decline coverage as a matter of law. Curran also filed a motion for summary judgment contending that the CME provision was not a condition precedent to coverage and that, at worst, her complaint was filed prematurely. Curran further claimed that she did not refuse to submit to a CME, but only asserted reasonable requests to protect her own personal interests, which requests had been ignored by State Farm. Following the hearing on both motions, the trial court entered its order granting summary judgment in favor of Curran.

Curran’s complaint then proceeded to a jury trial, which culminated in an award of $4,650,589 in damages to Curran. Curran, 83 So.3d at 800. The trial court entered a judgment against State Farm for the $100,000 UM policy limits and State Farm appealed the judgment to the Fifth District.

On appeal, the Fifth District sitting en banc concluded that under these undisputed facts, Curran did not act reasonably in insisting that State Farm abandon its contractual rights as a condition to an examination and, consequently, breached the contract when she failed to attend the CME. It concluded, however, that in order “to avoid liability under the insurance policy based on noncompliance with the CME clause, it was essential that State Farm plead and prove a material breach, which means a breach causing prejudice.” Id. at 803.

In concluding that State Farm must plead and prove prejudice, the Fifth District relied on this Court’s precedent in Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla.1985), and Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010), for support. The district court noted that in Macias, this Court concluded that neither the failure to timely report a claim nor the breach of the duty to cooperate gives rise to the automatic forfeiture of insurance benefits absent prejudice to the insurer. Curran, 83 So.3d at 802. Applying Macias to the contractual provision here, the Fifth District concluded that the provision was analogous to the claims notice provision discussed in Macias, but also overlapped with the insured’s duty to cooperate in that the insurer was given the opportunity to obtain evidence from the insured. Further, the court observed that in its reservation of rights letter dated September 18, 2007, State Farm treated Curran’s actions as a breach of the duty to cooperate. However, the Fifth District concluded that a determination of whether the CME clause in the contract was more analogous to a claims notice provision or a cooperation clause was relevant only to the question of who has the burden on the issue of prejudice. Curran, 83 So.3d at 802. The court then noted that Custer resolved this issue by finding that a “CME provision is a ‘condition subsequent,’ the nonoccurrence of which is an affirmative defense that the insurer has the burden to plead and prove.” See Curran, 83 So.3d at 802-03 (citing Custer, 62 So.3d at 1097-99).

Having determined that in order to defeat coverage State Farm had the burden to plead and prove that Curran’s breach caused prejudice, the Fifth District held that State Farm failed to meet its burden, stating:

Even had State Farm argued prejudice, the record refutes any such allegation, at least to the extent that it would affect entitlement to the UM contract benefits. Immediately upon filing suit (seven days after the scheduled examination), Cur-ran offered to submit to a medical examination pursuant to Florida Rule of Civil Procedure 1.360 (also well before the expiration of the time period under the Civil Remedies Notice). State Farm declined Curran’s offer, electing instead to defer an examination until after the court first decided “if your client’s failure to cooperate and failure to comply with all policy terms, conditions, limits, provisions and applicable Florida law affects coverage under the provisions which you now seek benefits.” After the lower court ruled, the record reflects that Curran submitted to a CME with Dr. Uricchio. State Farm elected not to call Dr. Uricchio as a trial witness. There is no indication that the validity of the CME was affected by the short lapse of time attributable to Curran or that the rule 1.360 examination was materially different from the CME State Farm would have performed under the contract. The effect of Curran’s breach was clearly inconsequential as it pertained to the merits of her claim for UM benefits.

Id. at 806 (footnote omitted). The Fifth District then certified a question to this Court as one involving great public importance. Curran, 83 So.3d at 807.

State Farm contends that Curran’s failure to attend a CME is a breach of a condition precedent to both coverage and to suit, which constitutes a material breach of the policy resulting in forfeiture of coverage irrespective of any showing of prejudice to State Farm. State Farm also contends that if prejudice is an issue, this Court should remand to the trial court so that State Farm has an opportunity to prove Curran’s breach resulted in actual prejudice. Because Curran does not contest the Fifth District’s finding that she breached the contract, the pertinent issue on appeal is whether the breach of such a provision precludes recovery under the policy as a matter of law without regard to whether the breach resulted in actual prejudice to the insurer. For the following reasons, we agree with the Fifth District and hold that the forfeiture of benefits under the policy will not automatically result upon an insured’s breach of a CME provision unless the insurer pleads and proves actual prejudice as an element of its affirmative defense. In addition, because the undisputed facts demonstrate that State Farm was not prejudiced, we conclude that it is unnecessary to remand the case for further proceedings relating to a determination on the question of prejudice.

ANALYSIS

Pursuant to section 627.727(1), Florida Statutes (2007), insurers issuing motor vehicle policies in Florida are mandated by statute to offer uninsured motorist coverage unless the insured has expressly rejected the coverage. The term “uninsured motor vehicle” includes an un-derinsured motor vehicle, which occurs where the liability insurer has provided lower bodily injury liability limits than the damages sustained by the person legally entitled to recover damages. § 627.727(3)(b), Fla. Stat. (2007). Uninsured motorist coverage is intended to protect persons who are legally entitled to recover damages for injuries caused by owners or operators of uninsured or un-derinsured motor vehicles. Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002). In addition, we have stressed that the statute is not designed “for the benefit of insurance companies or motorists who cause damage to others.” Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla.2000) (citing Brown v. Progressive Mut. Ins. Co., 249 So.2d 429, 430 (Fla.1971)). Indeed, section 627.727 was intended to place the injured party in the same position as he or she would have been had the tortfeasor been insured. See Moore v. Allstate Ins. Co., 570 So.2d 291, 293 (Fla.1990). We are mindful of these principles when deciding whether an insured’s failure to attend a CME prior to filing suit results in automatic forfeiture without regard to prejudice when such a breach is raised by an insurer as an affirmative defense.

Prior to turning to the language of the insurance provisions at issue here, we briefly review the role of compulsory medical examinations in the UM coverage context. As was the case here, after an insured has been injured in an accident with an uninsured or underinsured motorist, an insured will generally settle a claim with the uninsured or underinsured motorist with approval from the insured’s UM coverage carrier. See § 627.727(6)(a), Fla. Stat. (2007) (providing that if an injured person agrees to settle a claim with a liability insurer and its insured, and the settlement would not fully satisfy the claim for personal injuries so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted to all underinsured motorist insurers that provide coverage). The insured then submits a claim for UM benefits to the insurer alleging legal entitlement to additional damages because the total loss was not covered by the underin-sured motorist’s policy. Here, Curran sent a demand letter to State Farm requesting payment of the policy limits.

As a result of submitting the notice of a claim, the insured then typically has a duty under the insurance policy to provide medical bills, medical records, and any other information the insurer believes will help with processing the claim. If the UM insurer, after review of information compiled from medical bills, medical records, and other information that is provided to substantiate an insured’s claim, questions the severity of the injury, it may request a medical examination to aid its review of the insured’s claim. Cf. U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla.2000) (noting that, in a personal injury protection benefits context, a medical examination is a potential step in the direction of litigation because the insured is claiming an entitlement to benefits and the insurer is questioning the necessity for same). Thus, a CME is typically requested to provide the insurer additional information used to determine whether the insured is legally entitled to recover damages after an injury is sustained and a UM claim has been submitted.

Given this context, we reject the approach State Farm has asked this Court to approve. Specifically, State Farm argues that the provision at issue is a condition precedent to coverage and to suit, the breach of which constitutes a material breach of the policy resulting in forfeiture of coverage irrespective of any showing of prejudice to the insurer. Curran, on the other hand, argues that the provision is a condition subsequent requiring proof of prejudice. The terms “condition precedent” and “condition subsequent” are defined as follows in Florida:

A condition precedent is one that is to be performed before the contract becomes effective. Conditions subsequent are those that pertain not to the attachment of the risk and the inception of the policy but to the contract of insurance after the risk has attached and during the existence thereof. A condition subsequent presupposes an absolute obligation under the policy and provides that the policy will become void, or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event or the doing or omission of some act.

31 Fla. Jur.2d Insurance § 2686 (2013) (footnotes omitted).

Pursuant to the terms of the automobile insurance policy in this case, Curran was required to

be examined by physicians chosen and paid by [State Farm] as often as we reasonably may require. A copy of the report will be sent to the person upon written request. The person or his or her legal representative if the person is dead or unable to act shall authorize us to obtain all medical reports and records.

Further, a section titled “Suits Against Us” provides in pertinent part that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.” According to State Farm, the CME provision is a condition precedent to suit and coverage because of the “Suits Against Us” provision. We disagree. As discussed below, we conclude that a CME provision in the UM context is a post-loss obligation of the insured and is not a condition precedent to coverage.

First, in Custer, we held that an insured’s attendance at a medical examination was not a condition precedent to the existence of an automobile insurance policy that provided personal injury protection (PIP) benefits. See 62 So.3d at 1100. The Court reasoned that medical examinations in a PIP context are not scheduled prior to the existence of a policy or prior to an injury, but instead are scheduled after a policy has been issued, injuries have been sustained, and the insured has notified the insurer of a loss. Id. at 1099. We further noted that “an unreasonable failure to attend a requested medical examination may be a condition subsequent that divests the insured’s right to receive further PIP benefits.” Id. at 1098-99. Similarly, as discussed above, compulsory medical examinations in the UM coverage context may be requested by insurers after a policy has been issued, an insured has sustained an accident or loss, and an insured has submitted a claim for UM benefits.

Second, the “no action” language in the policy applies to every term of the policy, regardless of whether the insured’s duties are capable of being performed prior to filing an action against the insurer. Consequently, adherence to State Farm’s argument would turn every duty, including the duty to assist and cooperate, eonsid-ered a condition subsequent in Macias, into a condition precedent to coverage and suit. Macias, 475 So.2d at 1218 (failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer). Further, the term “until” suggests that any cause of action filed before compliance with all of the terms of the policy is simply premature, which generally results in an abatement of the action. See Bierman v. Miller, 689 So.2d 627, 628 (Fla. 3d DCA 1994) (“The proper remedy for premature litigation is an abatement or stay of the claim for the period necessary for its maturation under the law.” (quoting Angrand v. Fox, 552 So.2d 1113, 1115 (Fla. 3d DCA 1989))).

Accordingly, a CME provision in the UM coverage context is not a condition precedent to coverage and we find that an insured’s breach of this provision should not result in post-occurrence forfeiture of insurance coverage without regard to prejudice. Cf. Macias, 475 So.2d at 1217-18 (noting that a showing of prejudice is relevant when an insured breaches a cooperation clause, which is a condition subsequent, or a notice provision); Tiedtke v. Fidelity & Cas. Co. of New York, 222 So.2d 206, 209 (Fla.1969) (adopting the view that a showing of prejudice is relevant when considering whether an insured’s breach of a notice provision relieves the insurer of liability).

Having concluded that prejudice is a necessary consideration when the insured breaches a CME provision, we also hold that the burden of pleading and proving that issue is on State Farm. State Farm raised this issue as an affirmative defense. “An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.” St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483, 487 (Fla. 5th DCA 2002). “[T]he plaintiff is not bound to prove that the affirmative defense does not exist.” Custer, 62 So.3d at 1096. Further, in Macias, we held that “[a] failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer.” 475 So.2d at 1218; accord Ramos v. Nw. Mut. Ins. Co., 336 So.2d 71 (Fla.1976) (an insurer may not avoid liability under its policy by merely showing the violation of a clause requiring assistance and cooperation of the insured without a further showing of how this violation prejudiced the insurer). Accordingly, because the insurer is the defensive pleader, it has the burden of pleading and persuasion of each element of the defense.

Given the UM statute’s intended purpose of protecting persons who are legally entitled to recover damages for injuries caused by owners or operators of uninsured or underinsured motor vehicles, our conclusion that the insurer must plead and prove prejudice as an element of its affirmative defense fully comports with this purpose. See Flores, 819 So.2d at 744 (discussing the intended purpose of the UM coverage statute). It also places the injured party in the same position as the injured party would have been had the tortfeasor been insured. See Moore, 570 So.2d at 293. Further, the insurer still has two remedies for such a breach: (1) it may seek to abate the proceedings until the insured has complied with the CME provisions; or (2) if the insured’s breach did indeed prejudice the insurer, it may assert a breach of the CME requirement as a complete defense to coverage under the policy upon proof of the prejudice. We now turn to State Farm’s argument that this Court should remand the case to the trial court for a determination regarding prejudice.

We agree with the Fifth District that the undisputed facts demonstrate that State Farm was not prejudiced by Cur-ran’s refusal to submit to a CME prior to the initiation of litigation. Although State Farm did not advance a specific argument that it was prejudiced below, the record demonstrates that Curran’s refusal to submit to a CME did not prejudice State Farm in any fashion. Shortly after filing suit, Curran offered to submit to a medical examination pursuant to Florida Rule of Civil Procedure 1.360. State Farm, however, elected to defer the examination until after the trial court determined whether Curran had forfeited coverage under the policy. After the trial court found that Curran had not unreasonably refused to attend the examination, Curran attended a CME with Dr. Uricchio, the same expert that State Farm requested Curran see pri- or to litigation. Dr. Uricchio was not called to testify as a trial witness and there is nothing in the record that indicates the delayed CME affected the integrity of the evaluation. Thus, the record is devoid of evidence that would suggest that Curran’s refusal to submit to a CME prior to suit prejudiced State Farm. Accordingly, it is unnecessary to remand the case for determination of prejudice. See Tiedtke, 222 So.2d at 209 (unnecessary to remand case for determination of prejudice where record amply establishes no prejudice to insurer).

CONCLUSION

For the reasons set forth above, we answer the restated certified question by holding that an insured’s breach of a CME provision in an uninsured motorist policy of insurance does not result in forfeiture of benefits unless the insurer pleads and proves it was prejudiced as part of its affirmative defense. Accordingly, we approve the decision of the Fifth District in State Farm Automobile Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011).

It is so ordered.

PARIENTE and PERRY, JJ., concur.

LEWIS, J., concurs in result, with an opinion.

QUINCE, J., concurs in result.

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

LEWIS, J.,

concurring in result.

While I concur with the result reached in this case, I write separately because I believe this issue is also governed by an additional body of law other than that expressed by the majority. Every motor vehicle liability insurer in this State is statutorily mandated to offer uninsured motorist coverage unless the insured has expressly rejected the coverage. See § 627.727, Fla. Stat. (2007). When an insured seeks to recover uninsured motorist benefits from its insurance carrier, the insured’s uninsured motorist carrier stands in the shoes of the uninsured motorist, thereby placing the insurer in a position adverse to the insured. Diaz-Hernandez v. State Farm Fire & Cas. Co., 19 So.3d 996, 999 (Fla. 3d DCA 2009). The Legislature intended for this statutorily mandated coverage to broadly protect innocent persons who are injured through the negligence of an uninsured motorist, and not to benefit insurance companies or motorists who cause damage to others. Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla.2000); see also Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 5 (Fla.1972) (noting that “the intention of the Legislature, as mirrored by the decisions of this Court, is plain to provide for the broad protection of the citizens of this State against uninsured motorists”). Furthermore, we have repeatedly recognized that “as a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection.” Salas, 272 So.2d at 5; see also Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 237-38 (Fla.1971) (noting that uninsured motorist coverage is “not to be ‘whittled away’ by exclusions and exceptions”). For these reasons, provisions in uninsured motorist' policies that provide less coverage than required by the statute are void as contrary to public policy. Young, 753 So.2d at 83.

Here, Curran’s policy with State Farm contained a compulsory medical examination provision that allowed State Farm to require Curran to “be examined by physicians chosen and paid by [State Farm] as often as [State Farm] reasonably may require.” No such right exists in any third-party action. As the plain language of the provision indicates, the CME provision does not account for or protect the interests, requests, or concerns of the insured. Rather, this provision attempts to vest an insurer with exclusive power to require medical examinations as long as the insurer desires medical examinations, with nothing in the provision that limits how many medical examinations the insurer can require or under what conditions the insurer may require an examination. See State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793, 801 (Fla. 5th DCA 2011) (noting that the CME provision in Cur-ran’s policy provided that it was “not necessary that State Farm agree to any proposed condition proffered by Curran” even if the condition was reasonable from the standpoint of the insured).

In effect, this provision could operate to provide State Farm with unfettered discretion to require CMEs and empower State Farm with the contractual authority to constrict the availability of uninsured motorist benefits by precluding any action for such benefits when the insured fails to comply with State Farm’s demands for CMEs. See Majority op. at 1074 (noting that State Farm contended “that Curran was not entitled to coverage under the policy because she breached the CME provision”). However, nothing in the uninsured motorist statute authorizes an insurer to place this type of direct and substantial burden upon the insured or to deny coverage on the basis that the insured failed to submit to a compulsory medical examination. Thus, this provision is not authorized by statute, and is directly contrary to the statutory purpose of uninsured motorist coverage. See Diaz-Hernandez, 19 So.3d at 999-1000 (invalidating a contractual provision as contrary to the public policy of the UM statute in part because there was “nothing in the UM statute” that authorized the insurer to require the insured to join the uninsured motorist in the insured’s contractual action against the insurer for UM coverage). Accordingly, I would invalidate the compulsory examination provision as contained in Curran’s policy with State Farm along with the asserted result as an illegal contractual provision more restrictive than, and not supported by, the statutorily mandated uninsured motorist coverage. See Young, 753 So.2d at 83 (holding that “provisions in uninsured motorist policies that provide less coverage than required by the statute are void as contrary to public policy”); see also Salas, 272 So.2d at 5; Mullis, 252 So.2d at 237-38.

POLSTON, C.J.,

dissenting.

I respectfully dissent because the insurance policy at issue unambiguously includes a condition precedent that was not satisfied. The policy plainly conditions Curran’s right to sue to recover uninsured motorist (UM) benefits from State Farm on her pre-suit submission to a compulsory medical examination (CME). Specifically, it requires her to “be examined by physicians chosen and paid by [State Farm] as often as [State Farm] reasonably may require” and provides that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.” Curran did not attend either CME that State Farm acted in good faith to schedule despite Curran’s attempts to “unilaterally change the contract terms under the guise of proffered conditions” for the CME. State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793, 801-02 (Fla. 5th DCA 2011).

Under these facts, though State Farm argues for a complete forfeiture of benefits, the contract requires dismissal of Cur-ran’s action because she had no right to bring it. Of course, nothing in the contract prohibits Curran from submitting to the requested CME and refiling her suit against State Farm, if she may do so within the applicable statute of limitations period.

However, instead of concluding that Curran’s failure to comply with the contract precludes her from suing State Farm until such time as she satisfies the condition precedent, the majority allows her judgment to stand over State Farm’s argument that it has no obligation to pay benefits that Curran had no right to sue for. To reach this result, the majority imposes an unprecedented requirement that the insurance company plead and prove that it is prejudiced by the insured’s failure to submit to a CME. Moreover, the majority erroneously extends its holding to all UM policies regardless of what those policies might actually say. See majority at 1073 (rephrasing the certified question to apply to all UM policies without deference to policy language specifying the consequences for failing to submit to a CME); see also State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla.2011) (“In interpreting an insurance contract, we are bound by the plain meaning of the contract’s text.”).

The linchpin of the majority’s decision is its determination that a CME provision is a condition subsequent (akin to a cooperation clause) and not a condition precedent. Every other conclusion — who has the burden to plead and prove compliance with the CME provision; whether prejudice to the insurance company must result if the insured does not submit to a CME before filing suit; and, if prejudice is required, who has the burden to plead and prove it — flows from this determination. Cf. Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303-04 (Fla. 4th DCA 1995) (“A substantial line of cases supports the rule that an insurer need not show prejudice when the insured breaches a condition precedent to suit.... On the other hand, if the provision is a [condition subsequent such as a] cooperation clause, the burden would be on the insurer to demonstrate substantial prejudice before a breach would preclude recovery under the policy.”) (footnote omitted) (citations omitted). Respectfully, the majority is incorrect on this critical issue.

The error originates from the majority’s definition of a condition precedent as a condition that must be performed before a contract becomes effective. See majority at 1077-78. By defining a condition precedent this way, the majority implies that every other type of condition is a condition subsequent that the insurance company must plead and prove to avoid liability. See id. However, this is incorrect because Florida also recognizes “a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006); see also Black’s Law Dictionary 334 (9th ed. 2009) (defining a “condition precedent” as “[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises”). Further, this Court has consistently recognized that the party seeking to avoid a condition precedent to the other party’s duty to perform has the burden to plead and prove its satisfaction. See, e.g., Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985) (“The burden should be on the party seeking an avoidance of a condition precedent.”); see also Saris v. State Farm Mut. Auto. Ins. Co., 49 So.3d 815, 818 (Fla. 4th DCA 2010) (recognizing that the insured’s duty to “submit to a physical examination” is a duty that “relate[s] to the insured’s burden to establish that he is entitled to coverage”).

In addition to case law, treatises recognize that there are conditions precedent to the right to sue to recover contract benefits, not just to the contract’s existence. See, e.g., Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 196:23 (3d ed. 2012) (addressing the consequences of failing to comply with “condition[s] precedent to recovery or to suit”). For instance, one insurance treatise has explained that “[t]he CME requirement” at issue here “is analogous to the requirement for an examination under oath and is deemed a condition precedent to suit and to the recovery of benefits under the policy where the policy so provides” through a no-action provision. 2 Automobile Liability Insurance § 26:17 (4th ed. 2013) (emphasis added). See also 8-31 Corbin on Contracts § 31.1 (2012) (explaining that a no-action provision is “[a] very common method” of creating a condition precedent to suit for recovery of contract benefits); Robert H. Jerry, II & Douglas R. Richmond, Understanding Insurance Law 589 (5th ed. 2012) (“The insured’s submission to an examination under oath when requested by an insurer is a valid condition precedent to coverage.”).

Here, by virtue of the contract’s plain language, Curran’s submission to a CME was a condition precedent to her right to sue for UM benefits and, as a necessary corollary, a prerequisite to State Farm’s duty to provide coverage under the policy by paying those benefits. See S. Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (1909) (recognizing that an insured’s refusal to submit to an examination under oath required by a fire insurance policy “will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such condition”); Shaw v. State Farm Fire & Cas. Co., 37 So.3d 329, 331 (Fla. 5th DCA 2010) (“It is undisputed that a provision in an insurance policy that requires the insured to submit to an [examination under oath] qualifies as a condition precedent to recovery of policy benefits.”); Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513-14 (Fla. 5th DCA 2007) (barring recovery under a property insurance policy because the insured failed to submit a proof-of-loss form, which was a “condition precedent to maintaining suit”); see also 20 John A. Appleman & Jean Appleman, Insurance Law and Practice § 11416 (2013) (“A plaintiff must, in order to recover under a policy, plead and prove the performance of all conditions precedent to recovery.... and, if there is a condition precedent, the party in whose favor the condition exists is not liable to an action until that condition has been met.”) (footnote omitted).

Therefore, under the plain language of the policy, any time before filing this suit, Curran could have submitted to the requested CME. However, by filing suit without satisfying this condition (or pleading and proving facts excusing her failure to do so), Curran discharged State Farm’s obligation to perform under the contract (at least with respect to this action). See Restatement (Second) of Contracts § 225 (1981) (“Performance of a duty subject to a condition cannot become due unless the condition occurs.... [T]he non-occurrence of a condition discharges the duty when the condition can no longer occur.”); see also Kinman v. State Farm Mut. Auto. Ins. Co., 411 Fed.Appx. 261, 261 (11th Cir.2011) (concluding the trial court did not err by finding the insured was “not entitled to coverage under the uninsured motorist provision” because the “policy required him to submit to the [medical examination] and he unreasonably refused to do so”); Orozco v. State Farm Mut. Auto. Ins. Co., 360 F.Supp. 223, 224 & n. 3 (S.D.Fla.1972) (concluding a UM policy’s physical examination requirement was a “condition[ ] precedent to the imposition of liability upon the [insurer]” where the policy contained a no-action clause prohibiting suit “unless, as a condition precedent thereto,” the insured fully complied with the policy’s terms).

Contrary to the majority’s suggestion otherwise, Curran’s duty to submit to a CME is not the same as the duty to cooperate that we have previously held is a condition subsequent. See majority at 1079. First, and most importantly, Cur-ran’s policy says these duties are different because it addresses her duty to “cooperate” and “assist” in “making settlements!,] securing and giving evidence!, and] attending and getting witnesses to attend hearings and trials” separately from her duty to submit to a CME. Further, a duty to cooperate with the insurance company while litigation is pending is markedly different from a CME requirement designed to give the insurance company the opportunity to investigate a claim and, if it is meritorious, pay benefits without resort to litigation. Finally, the majority’s concern that recognizing the CME requirement as a condition precedent would, because of the no-action provision, turn every other contractual duty into a condition precedent is unfounded. See majority at 1078-79 & n. 12. If a duty is incapable of being performed before suit is filed, its performance cannot be a condition precedent to suit. However, here, submission to the CME clearly could and should have occurred presuit, independent of Curran’s duty to cooperate during litigation. See Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949, 952 (Fla. 4th DCA 2012) (using a plain language analysis to conclude that an insurance policy’s notice and proof-of-loss requirements were conditions precedent to suit, not cooperation clauses).

Because the CME provision is a condition precedent, prejudice to State Farm as a result of its breach is immaterial, and the correct result is that no action lies against State Farm as the contract provides. See Goldman, 660 So.2d at 303 (“[A]n insurer need not show prejudice when the insured breaches a condition precedent to suit.”); see also Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 196:2 (3d ed. 2012) (“[B]reach of a true condition precedent bars recovery without regard to prejudice.”) (citing Goldman, 660 So.2d at 300); 31A Fla. Jur.2d Insurance § 3233 (2013) (“Policy provisions requiring insureds to submit to an examination under oath (EUO) are conditions precedent to a suit, rather than cooperation clauses, and thus, a failure to comply precludes an action on the policy by the insured regardless of a showing of prejudice by the insurer. The refusal of the insured to submit to an EUO when required to do so is also a material breach of the policy, which will justify the insurer’s denial of recovery.”) (footnotes omitted).

Several courts have prevented plaintiffs who failed to submit to the presuit CMEs required by their insurance policies from recovering UM benefits. For example, the Third District held that an insured who filed suit without submitting to a medical examination that was “a condition precedent to coverage” could not maintain her action for UM benefits regardless of whether her failure to submit to the examination prejudiced the insurance company. De Ferrari v. Gov’t Emps. Ins. Co., 613 So.2d 101, 103 (Fla. 3d DCA 1993). Similarly, the Fourth District held that an examination under oath requirement was “a condition precedent to suit” under a homeowner’s policy and that the insured’s failure to submit to the examination before filing suit “preclude[d] an action on the policy regardless of a showing of prejudice by the insurer.” Goldman, 660 So.2d at 306. Also, the District Court for the Northern District of Florida concluded that an insured materially breached a fire insurance policy by filing suit without submitting to a required examination under oath. Laine v. Allstate Ins. Co., 355 F.Supp.2d 1303, 1304 (N.D.Fla.2005). In granting summary judgment for the insurance company, the federal court rejected the argument that an insured’s failure to appear for an examination excuses the insurance company’s obligation to pay benefits only if it prejudiced the insurance company, concluding that argument is “subject to considerable doubt” under Florida law, which is concerned with the “materiality of the breach, not prejudice.” Id. at 1306 (citing Goldman, 660 So.2d 300; Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993); De Ferrari, 613 So.2d 101).

In this case, I reject State Farm’s argument for a total forfeiture of benefits based on the plain language of the policy. Specifically, the policy provides that Cur-ran has “no right of action” against State Farm “until” the CME requirement is satisfied. Therefore, because Curran sued without first submitting to the requested CME, I would require dismissal. Cf. Clark v. Sarasota Cnty. Pub. Hasp. Bd., 65 F.Supp.2d 1308, 1310, 1312 (M.D.Fla.1998) (recognizing that Florida’s statutory medical malpractice presuit requirements are conditions precedent to suit and that, under Florida law, claims filed absent compliance with these requirements must be dismissed with or without prejudice, depending on whether the defects can be cured before the statute of limitations runs).

Instead of enforcing the contract’s plain language, the majority relies on this Court’s decisions in Macias, 475 So.2d 1216, and Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010), to hold that compliance with any CME requirement in any UM policy is a condition subsequent and, therefore, any insured who files suit without first submitting to a CME is precluded from recovering benefits only where the insurance company pleads and proves prejudice. See majority at 1078-79,1080. Respectfully, neither decision compels nor supports the majority’s holding.

In Macias, this Court held that a provision in a PIP policy requiring the insured to give notice of an accident was a condition precedent to a claim instead of a condition subsequent. 475 So.2d at 1218. We explained that, under our precedent regarding notice provisions, “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. (citing Nat’l Gypsum Co. v. Travelers Indem. Co., 417 So.2d 254 (Fla.1982); Tiedtke v. Fid. & Cas. Co. of N.Y., 222 So.2d 206 (Fla.1969)). Therefore, we concluded that “[t]he burden should be on the insured” as “the party seeking an avoidance of a condition precedent” to establish “lack of prejudice where the insurer has been deprived of the opportunity to investigate the facts and to examine the insured.” Id.

While Macias says that its holding “should apply to claims under a PIP policy just as well as to claims under other policies,” Macias involved the breach of a notice provision. Id. Accordingly, our district courts have expressly declined to extend Macias to breaches of presuit examination requirements serving different purposes than notice provisions. See De Ferrari, 613 So.2d at 108 (“[Prejudice is not at issue when an insurer’s reasonable request for [a medical examination] is refused by an insured. The Macias case in no way created a new duty to establish prejudice, where none previously existed.”); see also Goldman, 660 So.2d at 304, 306 (holding that an examination under oath provision was “a condition precedent to suit and that [the insured’s] noncompliance precludes an action on the policy regardless of a showing of prejudice by the insurer” after noting that Macias did not decide this issue).

However, even if Macias applied to the breach of an examination provision, thereby making prejudice an issue, it still would not support the majority’s decision to place the burden of pleading and proving prejudice on the insurance company. As the Fourth District recognized in Goldman, “if prejudice were to be considered, the burden would fall on the insured to prove no prejudice to the insurer.” 660 So.2d at 305 n. 8 (citing Macias, 475 So.2d 1216); see also Laine, 355 F.Supp.2d at 1306 (recognizing that “even under the most favorable view of [Florida] law,” Macias would place the burden on the insured “to establish lack of prejudice”). Accordingly, Macias does not justify the majority’s decision.

Custer also does not support the majority’s holding making the CME requirement a condition subsequent and placing the burden on the insurance company to plead and prove prejudice. In Custer, 62 So.3d at 1089, an insurance company refused to pay PIP benefits when its insured failed to appear for a medical examination the company scheduled after the insured completed all treatment for which PIP benefits were requested. The governing statute provided that the insurance company is “no longer liable for subsequent personal injury protection benefits” if “a person unreasonably refuses to submit to an examination.” Id. at 1090 (quoting § 672.736(7)(b), Fla. Stat. (2001)). We explained that, under the PIP statute, “[attendance at a medical examination may be a condition precedent to the payment of subsequent PIP benefits or, perhaps more accurately, an ‘unreasonable ’ failure to attend a requested medical examination may be a condition subsequent that divests the insured’s right to receive further subsequent PIP benefits. Id. at 1098-99. Therefore, we noted in dicta that to avoid liability for subsequent PIP benefits (which were not at issue in Custer because all treatment occurred before the examination was requested), the insurance company must prove that the insured unreasonably refused to attend the examination. Id. at 1100.

Unlike the PIP statute in Custer, neither the UM statute nor Curran’s policy requires proof that Curran unreasonably refused to submit to a CME. Likewise, Custer’s dicta concerning the burden of proof in the PIP context does not apply where the parties are litigating over uninsured motorist benefits. Cf. Custer, 62 So.3d at 1099 (finding the Third District’s decision in De Ferrari “inapposite” because it pertained to “uninsured motorist benefits, and did not address PIP coverage”).

Accordingly, neither Macias nor Custer provides a basis for this Court to condition enforcement of the parties’ contract on the insurance company’s ability to prove prejudice. Moreover, by moving beyond the facts of this case to adopt a general rule applicable to all UM policies that provides no deference for what those policies might actually say, the majority contravenes law requiring courts to enforce the plain language of unambiguous contracts. See Or-ozco, 360 F.Supp. at 225 (“[T]he insurance policy is the contract between the parties and ... the provisions of that contract which are clear and unambiguous and which are neither illegal by statute nor by reason of their being against public policy, should be enforced by the courts. The courts may not rewrite for the parties insurance contracts which are clear and unambiguous.”). Therefore, I respectfully dissent.

Because the contract at issue specifies the consequences for Curran’s breach, I would rephrase the certified question as follows: Where an insurance policy requires the insured to submit to a CME prior to filing suit against the insurance company, does an insured who inexcusably failed to submit to a CME have a right of action for UM benefits against the insurance company? I would answer the rephrased question in the negative and quash the Fifth District’s decision in favor of the insured.

CANADY, J., concurs.

      . Reflex sympathetic dystrophy syndrome (RSD), also known as complex regional pain syndrome, "is an uncommon form of chronic pain that usually affects an arm or leg.” Mayo Clinic, Complex regional pain syndrome, Definition (Mar. 31, 2011), http://www. mayoclinic.com/health/complex-regional-pain-syndrome/DS00265 (last visited Nov. 5, 2012). RSD "typically develops after an injury, surgery, stroke or heart attack, but the pain is out of proportion to the severity of the initial injury, if any.” Id. Type 1 RSD "occurs after an illness or injury that [did not] directly damage the nerves in [an] affected limb.” Mayo Clinic, Complex regional pain syndrome, Causes (Mar. 31, 2011), http:// www.mayoclinic.com/health/complex-regional-pain-syndrome/DS00265/ DSECTION=causes (last visited Nov. 5, 2012).

      . Curran’s physician also referred her to Dr. Uriechio independently. Curran stated in her deposition that she attempted to schedule an appointment with Dr. Uriechio, but she was informed that he was no longer scheduling appointments with new patients. In addition, the trial court took judicial notice that Dr. Uricchio had over thirty years of experience as a testifying expert on behalf of insurers. State Farm, however, claimed that Dr. Uric-chio was an expert on RSD and often lectured about RSD on behalf of plaintiffs.

      .A complete discussion of the substance of these letter exchanges is set forth in Curran, 83 So.3d at 795-99. Most of the letters involved Curran's attempts to condition her attendance at the CME on provisos that would prevent State Farm from fully asserting its contractual rights under the policy. For instance, Curran would only submit to a CME if it were the only CME State Farm would request both prior to litigation and during potential litigation. Further, Curran sought to limit State Farm’s choice of physicians to conduct the examination.

      . The trial court found that State Farm’s request for a CME was “not unreasonable,” but also found that Curran’s requested conditions were "not unreasonable,” except for the condition that State Farm waive further examinations. Thus, the trial court concluded that Curran did not refuse to appear for the examination as asserted by State Farm.

      . The Fifth District initially rendered a panel decision in favor of State Farm, finding that Curran refused to attend a scheduled CME prior to filing suit and that Curran’s breach prohibited recovery under the policy. The Fifth District, however, granted Curran’s motion for rehearing en banc and withdrew the panel opinion. Curran, 83 So.3d at 794-95.

      . The Fifth District affirmed the trial court's decision on a different basis. Specifically, the trial court granted summary judgment in favor of Curran finding that she had not refused to appear for the CME as argued by State Farm. The Fifth District, however, held that she refused to appear, but that State Farm did not prove it was prejudiced by Curran's failure to attend the CME. Thus, Curran’s breach of the CME provision did not result in forfeiture of UM benefits.

      . In Bankers Insurance Co. v. Macias, the Court held that a presumption of prejudice arises where an insured fails to give timely notice of an accident to the insurer. 475 So.2d at 1217. In reaching this result, the Court noted that different presumptions arise depending on which duty has been breached. Specifically, if the insured breaches a notice provision, prejudice to the insurer is presumed, but may be rebutted, whereas if a cooperation clause has been breached, the insurer must show a material failure to cooperate which substantially prejudiced the insurer. Id. at 1217-18. Further, the Court held that a "failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer.” Id. at 1218.
      In Custer Medical Center v. United Automobile Insurance Co., a case primarily discussing the limitations of second-tier certiorari review, we held that an insured’s attendance at a medical examination was not a condition precedent to the existence of an automobile insurance policy that provided personal injury protection benefits. 62 So.3d at 1100. The Court reasoned that medical examinations in the personal injury protection context, as opposed to the life insurance context, were not scheduled prior to the existence of an automobile insurance policy or prior to an injury, but instead occur when the insured has sustained an accident after a policy has been issued. Id. at 1099. Thus, the Court also held that the insurer has the burden of proof on this issue. Id. at 1100.

      . The Fifth District also certified conflict with De Ferrari v. Government Employees Ins. Co., 613 So.2d 101 (Fla. 3d DCA 1993), and Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995). Because we granted review based on the certified question, we do not address the certified conflict cases.

      . Although two doctors diagnosed Curran with RSD and she independently attempted to make an appointment with Dr. Uricchio prior to State Farm’s request for a medical examination and subsequent suit, State Farm argued in its briefs that a medical examination is essential, especially in cases where an insured is claiming a significant loss due to complications from injuries, such as RSD, which are subjective in nature.

      . The Supreme Court of Nebraska has given examples of conditions precedent as the obligation of the applicant to satisfy the requirements of insurability, be in good health for life and health insurance policies, pay the required premium, and answer all questions in the application to the best of the applicant’s knowledge and belief. D & S Realty, Inc. v. Market Ins. Co., 280 Neb. 567, 789 N.W.2d 1, 9-10 (2010).

      . State Farm sent a reservation of rights letter to Curran stating that her failure to "assist and cooperate" with the insurer may result in a denial of coverage.

      . Some tasks that form the duty to assist and cooperate are not necessarily capable of being performed prior to filing an action against the insurer. For instance, an insured’s duty to assist an insurer in making settlements and attending and getting witnesses to attend hearings and trials are unlikely to be capable of performance prior to trial.

      . As Judge Monaco explained in his concurring opinion below, the "rather transparent motive” for Curran's behavior was to put State Farm "in a position where it could not offer up the policy limits prior to suit, unless it did so without having a medical consultation that it had confidence in. This was about as thinly disguised a bad faith trap as is imaginable.” Curran, 83 So.3d at 808 (Monaco, J., concurring).

      . The Fifth District acknowledged conflict between the decision on review and Goldman and De Ferrari. See Curran, 83 So.3d at 807. However, the majority elected not to address the issue. See majority at 1075 n. 8. In doing so, it ignored decisions supporting a contrary result, one of which — De Fenari — expressly and directly conflicts with the decision on review. See 2 Automobile Liability Insurance § 26:17 (4th ed. 2013) (recognizing that the Fifth District's decision in Curran "depart[sj from the rule” that a "CME requirement ... is deemed a condition precedent to suit and to the recovery of benefits under the policy where the policy so provides [and it] does not require the insurer to show that it was prejudiced by the breach”) (footnotes omitted).

      . Even if I agreed with the majority’s new prejudice rule, I would disagree with its conclusion that the facts preclude a finding of prejudice to State Farm. See majority at 1080. The fact that Curran hied suit without submitting to the CME deprived State Farm of its right to investigate and evaluate Curran’s injuries prior to litigation and unjustifiably exposed State Farm to a bad-faith claim. This is sufficient to prove prejudice. See Laine, 355 F.Supp.2d at 1306 n. 2 ("Depriving the insurer of th[e] opportunity [to conduct an examination under oath] is sufficient prejudice, even if, indeed, prejudice is required.”).


author: PER CURIAM.

text:
    In the Interest of J.L., a child. A.J.L., Petitioner, v. R.H. and S.P., and Department of Children and Family Services, Respondents.
    No. 2D11-6258.
    District Court of Appeal of Florida, Second District.
    June 1, 2012.
    George J.F. Werner, Anthony B. Márch-ese, and Martin B. Schwartz, Tampa, for Petitioner.
    Jane H. Grossman of Law Offices of Jane H. Grossman, St. Petersburg, for Respondents, R.H. and S.P.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Respondent, Department of Children and Family Services.
   PER CURIAM.

By petition for writ of certiorari, A.J.L. challenges orders vacating a judgment of paternity and according S.P. party status in this very unusual unified dependency and paternity action. Because we are unconvinced that the orders depart from the essential requirements of the law and because this matter could be adequately reviewed on appeal after a full evidentiary hearing and entry of a final judgment, we deny the writ.

R.H., the Mother, gave birth to J.L. in late 2006. At the time, A.J.L. was her boyfriend. He has never married R.H. The Mother had difficulties raising J.L., and the Department of Children and Family Services (“DCF”) brought a dependency action against R.H. before the child’s first birthday. Apparently, DCF initially treated A. J.L. as the biological father but later realized that he was an unrelated boyfriend.

During the period when DCF assumed that A.J.L. was the biological father, J.L. was placed with A.J.L. Apparently, the child has been with A.J.L. at all times since December 2007. There can be little doubt that a strong bond has developed between the child and this man who has served as the child’s father. A.J.L. understandably wants all of the rights and responsibilities of a legal father.

In 2008, the Department of Revenue filed a paternity action seeking to obtain support from A.J.L. In that action DNA testing was performed in 2010, and the results excluded A.J.L. as a possible biological father. DCF was apparently aware of these test results.

In August 2010, during a mediation aimed at resolving the dependency proceeding, DCF, R.H., and A.J.L. entered into a stipulation that A.J.L. would be treated as the legal father. That stipulation resulted in the entry of a final judgment of paternity in the dependency action in December 2010.

The Mother moved to set this judgment aside, asserting that she was under duress at the mediation and did not have a full opportunity to digest the ramifications of the stipulation or to ask questions. She also asserted that she believed S.P. was the biological father of J.L. The trial court declared the Mother’s motion moot and vacated the judgment of paternity pursuant to Florida Rule of Juvenile Procedure 8.265(a) based on invited error in that no one had ever advised the trial court that DNA testing revealed that A.J.L. was not the biological father of J.L. Because A. J.L. was not the biological father of J.L. and had never been married to the Mother, the court ruled that A.J.L. could not be declared the legal father of J.L.

In June 2011, the mother filed a paternity action against S.P. In that proceeding, DNA had established a high probability that S.P. is the biological father of J.L. The paternity action was united with the dependency action as companion cases. Subsequently, the trial court granted S.P.’s motion to intervene in the dependency action and accorded him party status.

From this record, it appears that the trial court has merely reopened the final judgment of paternity and decided to revisit the entire case to determine the actual facts and then make a considered legal decision based on those facts. We see nothing in these orders that should be disturbed by a writ of certiorari.

This court initially denied this petition by unpublished order. On rehearing, both A.J.L. and DCF have taken the position that we must grant certiorari because DCF is a respondent and has conceded error. This argument is somewhat disingenuous. The orders entered are adverse to A.J.L. and apparently adverse to the outcome that DCF desires. The orders are favorable to S.P. and the Mother.

Under Florida Rule of Appellate Procedure 9.100(b), when a party to a circuit court proceeding elects to file a petition for writ of certiorari, as an original proceeding in this court, it is required to list all other parties to the circuit court action as respondents. Thus, A.J.L. properly listed DCF as a respondent. However, because DCF wished to support the position of A.J.L., it should not have filed a response to the petition as a respondent. Instead, it should have filed a motion under rule 9.360(a) to join as a petitioner. Its “concession” does not deprive S.P. and the Mother of their right to argue that the challenged orders do not depart from the essential requirements of the law.

The petition for writ of certiorari is denied.

ALTENBERND, WHATLEY, and WALLACE, JJ., Concur.

      . A.J.L.’s name appears on a birth certificate, but there are strong indications that this certificate is a forgery.


text:
    ENERGY AIR AND AMERISURE INSURANCE COMPANY, Appellants, v. Ronald LALONDE, Appellee.
    No. 1D13-5213.
    District Court of Appeal of Florida, First District.
    Date of Accident: June 22, 2012.
    April 24, 2014.
    Wayne Johnson of DeCiccio & Johnson, Winter Park, for Appellants.
    Nicholas A. Shannin of the Shannin Law Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) finding Claimant’s heat exhaustion injury compensable and awarding past medical bills. The E/C argues that the JCC erred both in finding compensability of the heat exposure injury in the absence of evidence that Claimant “was exposed to dangers materially in excess to which the community is exposed,” and in awarding the past medical bills in the absence of evidence that they were related to Claimant’s heat exhaustion. We affirm on both points, and write solely to confirm that prior court-created causation standards are superseded by the Legislature’s adoption of the “major contributing cause” standard effective January 1, 1994, see sections 440.09(1) & 440.02(36), Florida Statutes (2012), and to restate that diagnostic tests are compensable if they are “reasonably necessary to determine whether the industrial accident was the cause of’ Claimant’s injuries, see Grainger v. Indian River Transport, 869 So.2d 1269, 1272 (Fla. 1st DCA 2004).

AFFIRMED.

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


text:
    Thomas L. ALTIMAS and Lise Girard, Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION BOARD, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, Jason M. Wavra and Michelle R. Wavra, Appellants, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, William G. Smith and Judith L. Smith, Appellants, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, Orris A. Rodahl, Appellant, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, Nancy A. Miller, Appellant, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, Garry Kuhn, Appellant, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, Charise M. Davis, Appellant, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee, John Steven Burton, Appellant, v. National Credit Union Administration Board, in its capacity as Liquidating Agent for Huron River Area Credit Union, Appellee.
    Nos. 2D11-2816, 2D11-2839, 2D11-2817, 2D11-2821, 2D11-2823, 2D11-2825, 2D11-2826, 2D11-2828, 2D11-2831, 2D11-2837, 2D11-2838.
    District Court of Appeal of Florida, Second District.
    March 27, 2013.
    Dineen Pashoukos Wasylik (withdrew after briefing), and G. Wrede Kirkpatrick of Conwell Kirkpatrick, P.A., Tampa, for Appellants.
    Laurence S. Litow, Donna K. Knapton, and Christopher D. Donovan of Roetzel & Andress, LPA, Fort Lauderdale, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right the appellants may have to seek amended deficiency judgments as a result of Wavra v. National Credit Union Administration Board, 86 So.3d 609, 610-11 (Fla. 2d DCA 2012).

KELLY, KHOUZAM, and BLACK, JJ., Concur.


text:
    S.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5478.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2013.
    Howard L. Dimmig, II, Public Defendant, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

S.R. appeals his adjudication of delinquency and disposition for resisting an officer without violence. We affirm, but we note a probable disposition error.

According to the record, S.R. was born on November 26, 1994. Thus, he was seventeen years and approximately eleven months old at the time of his disposition on October 24, 2012. The court adjudicated him delinquent and placed him on probation for an indefinite period of time not to exceed his nineteenth birthday. Because the court adjudicated S.R. delinquent, his juvenile probation could not exceed one year for a first-degree misdemeanor. See §§ 775.082(4)(a), 843.02, 985.435(5), Fla. Stat. (2012); R.F. v. State, 42 So.3d 333, 334-35 (Fla. 2d DCA 2010). If S.R. serves a term of probation until his nineteenth birthday, this term may exceed the statutory maximum by approximately one month.

Affirmed.

ALTENBERND, NORTHCUTT, and BLACK, JJ., Concur.


author: PER CURIAM. CASANUEVA, Judge, WALLACE, Judge,

text:
    Little R. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2626.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2013.

      Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Little R. Henderson appeals his judgments and sentences for three counts of criminal use of personal identification information. Mr. Henderson filed a motion to suppress evidence obtained from an iPad, claiming that it was obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. The trial court denied the motion after a hearing, and Mr. Henderson entered a guilty plea to the offenses and was sentenced to concurrent terms of 17.4 months in prison for the three offenses and was given credit for 215 days previously spent in jail. He argues on appeal that the trial court erred in denying his motion to suppress. We affirm because there was no finding by the trial court that the motion was dispositive and therefore the issue may not be raised on direct appeal.

I. Facts and Procedural History

At the hearing on Mr. Henderson’s motion to suppress, Stephanie Hess testified that on October 10, 2010, she was working at the front desk of the Hampton Inn and Suites in downtown St. Petersburg. She testified that a woman named Crystal Brown arrived between 12:30 and 1:00 a.m. and checked into a room for one night. Ms. Brown had made the reservation through the website Travelocity, and Mr. Henderson was with her when she checked in at the hotel. About ten minutes after Ms. Brown checked in, a representative from Travelocity called Ms. Hess and told her that Ms. Brown’s credit card was declined. Ms. Hess transferred the call to Ms. Brown’s room. The representative from Travelocity called again and told Ms. Hess that Ms. Brown was going to come back to the front desk and pay for the room. Ms. Hess waited about ten to fifteen minutes, and when Ms. Brown never came back to the front desk to pay for the room, she called the police.

Officer Brian Bilbrey and another officer arrived about fifteen minutes later. Officer Bilbrey testified that he was responding to a call regarding a person who had used a fraudulent credit card to purchase a room through an online travel service. Upon arrival, they went to Ms. Brown’s hotel room with another hotel employee. The employee knocked on the door several times for “a good two minutes” and there was no response. The hotel employee opened the door and they could see that the room was empty. There were no lights on inside the room, and there were no personal items in the room except for an iPad left underneath the edge of one bed in plain view. Because there were no other personal belongings in the room, such as luggage, clothes, or a toothbrush, they concluded that the room had been vacated. Officer Bilbrey took the iPad from the room to determine who owned it. After talking again to Ms. Hess, Officer Bilbrey contacted the Travelocity employee, who informed him that Ms. Brown had used a credit card belonging to Lisa Nelson, who lives in Minnesota, when she made the hotel reservation with Travelocity-

Officer Bilbrey was not able to determine who owned the iPad because there was no indentifying information on the outside of the iPad. In an attempt to locate the name of the owner, he looked for the serial number of the iPad by pressing the stand-by button and looking at the settings application. While Officer Bilbrey was obtaining the serial number of the iPad, he noticed that the notes application had been open and he touched that icon. Several names with fifteen to twenty-digit numbers and dates appeared on the open note, which Officer Bilbrey believed were credit card numbers and expiration dates. Officer Bilbrey then went back to the police station to create a photo lineup of Ms. Brown to show to Ms. Hess.

Ms. Brown later called the hotel between 2:00 and 2:30 a.m., and Ms. Hess told her that she was no longer welcome at the hotel. Ms. Brown then came back to the hotel with Mr. Henderson about an hour and a half to two hours after the room had been searched and asked for the iPad. However, by this time, Officer Bil-brey had left the hotel with the iPad. Ms. Hess called Officer Bilbrey and informed him that Ms. Brown and Mr. Henderson were at the hotel, and she informed them that Officer Bilbrey was returning to the hotel. Ms. Brown and Mr. Henderson did not want to wait at the hotel for Officer Bilbrey to arrive with the iPad and they left the hotel again.

When Officer Bilbrey arrived back at the hotel, he telephoned Ms. Brown, who stated that she was driving back to the hotel. However, from the background noise on the telephone, it sounded like Ms. Brown was not in a car and was most likely standing close to the hotel. Officer Bilbrey broadcast a description of Ms. Brown and Mr. Henderson on the police radio, and they were found about 300 yards away from the hotel in a park watching Officer Bilbrey.

Officers brought the pair back to the hotel and Officer Bilbrey read them the Miranda warnings. When asked separately about the iPad, Ms. Brown stated that she purchased the iPad with cash several months ago, but Mr. Henderson claimed that a relative had given him the iPad. Neither Ms. Brown nor Mr. Henderson provided Officer Bilbrey with the serial number of the iPad.

Detective Nancy Pillucere investigated the possible fraud case and, as part of that investigation, called Lisa Nelson, the owner of the credit card which Ms. Brown had used. Ms. Nelson did not know Ms. Brown or Mr. Henderson and she had never given either of them permission to use her credit card. Detective Pillucere then interviewed Ms. Brown, who stated that Mr. Henderson was with her when she purchased the iPad at Best Buy and they both used it, but she was the person who paid for it. Ms. Brown then gave Detective Pillucere consent to search the iPad. Detective Pillucere testified that Ms. Brown also gave her consent to search other computers and hard drives that were recovered that night.

Mr. Henderson elected not to testify at the hearing on his motion to suppress. At the end of the hearing, the trial court denied the motion to suppress based on three findings: “there was no standing,” the iPad was abandoned, and Ms. Brown consented to the search of the iPad.

II. Analysis

When Mr. Henderson entered the guilty plea, he reserved the right to appeal the denial of the motion to suppress but did not assert that the motion was disposi-tive, and the trial court made no such finding. Florida Rule of Appellate Procedure 9.140(b)(2)(A) provides that a defendant may not appeal from a guilty plea if he or she does not expressly reserve the right to appeal a prior dispositive order of the trial court. Mr. Henderson made no suggestion that the motion to suppress was dispositive at the plea hearing, the sentencing hearing, or in the written plea agreement. Because there was no finding or agreement that the motion was disposi-tive, Mr. Henderson may not appeal the denial of the motion. See Leonard v. State, 760 So.2d 114, 119 (Fla.2000) (holding that a district court should summarily affirm “when the court determines that an appeal does not present ... a legally dis-positive issue that was expressly reserved for appellate review”).

Further, it appears that the suppression of the iPad was not dispositive of the case. At the sentencing hearing, the State announced a factual basis for the charges, indicating that in addition to the iPad, the officers had obtained the victims’ information in a vehicle and Mr. Henderson admitted to his involvement in the offenses. It was also noted that Ms. Brown had previously entered a plea to these charges and the offense of fraudulent use of a credit card. Therefore, Ms. Brown may have been agreeable to testify against Mr. Henderson. Additionally, according to Detective Pillucere’s testimony at the suppression hearing, other computers and hard drives were recovered that evening. “A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion.” M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009). Even if Mr. Henderson had prevailed in this appeal, it appears that the State may have been able to proceed to trial.

III. Conclusion

Mr. Henderson is precluded from raising on appeal the denial of his motion to suppress where he entered a guilty plea to the charges without any indication that the motion was dispositive. We therefore affirm Mr. Henderson’s convictions and sentences.

Affirmed.

BLACK, J., Concurs.

CASANUEVA, J., Concurs specially with an opinion.

WALLACE, J., Concurs in result only with opinion.

CASANUEVA, Judge,

Specially concurring.

I fully concur in the majority opinion. I write only to remind counsel that to present a legal challenge to the constitutionality of a search, a defendant must establish a reasonable expectation of privacy in the item searched. To meet this burden of proof, the defendant may be called upon to testify.

“The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed.” Hicks v. State, 929 So.2d 13, 16 (Fla. 2d DCA 2006) (citing Raleas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). A defendant must establish a privacy expectation in not only the place searched but also the item seized. United States v. Mancini, 8 F.3d 104, 107 (1st Cir.1993). In most instances, to comply with this legal standard, it will be necessary for the defendant to testify.

To establish what has been traditionally referred to as “standing,” Mr. Henderson had to demonstrate that he personally had an expectation of privacy in the iPad and that this expectation was reasonable. See State v. Washington, 884 So.2d 97, 98 (Fla. 2d DCA 2004). As the movant, the burden of proof remained with Mr. Henderson. See United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993) (“Because Fourth Amendment rights are personal, Mr. Lyons, as the proponent of the motion to suppress, had the burden of proving that his own Fourth Amendment rights were violated by the search in question.”); Hendley v. State, 58 So.3d 296, 299 (Fla. 2d DCA 2011) (“ ‘The law is clear that for a defendant to have standing to challenge a search, he or she must show a proprietary or possessory interest in the area of search or that there are other factors which create an expectation of privacy which society is willing to recognize as reasonable.’ ” (quoting State v. Singleton, 595 So.2d 44, 45 (Fla.1992))).

Here, the record discloses that scant evidence was brought forth to meet this burden of proof. The evidence consisted of a law enforcement officer’s unobjected to hearsay testimony that Mr. Henderson had told him that the iPad belonged to him. As Mr. Henderson did not testify, no other proof was adduced to support his reasonable expectation of privacy in the iPad.

The present case is similar to Hicks. Hicks’s car was stopped by a deputy and Hicks gave his consent to search the car. 929 So.2d at 15. During the search, a briefcase containing a .computer was found in the backseat. Id. A deputy turned on the computer and looked through the computer’s files in an attempt to locate the owner of the computer. Id. On appeal, Hicks argued that the search of the computer, which turned out to be stolen, exceeded the scope of his consent to search the car. Id.

This court noted that “[a] search violates a defendant’s Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable.” Id. at 16; see Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). This court held that Hicks failed to carry his burden to establish that he had a reasonable expectation of privacy in the computer where he never introduced any evidence at the suppression hearing. Hicks, 929 So.2d at 19. Similar to Mr. Henderson’s case, a deputy testified that Hicks told him at the scene of the traffic stop that his uncle gave him the computer, but Hicks failed to introduce any evidence at the hearing relating to his ownership, such as whether he had any programs on the computer or how long he had used the computer. Id.

This court held that where there was only testimony from the officers at the suppression hearing, “Hicks failed to demonstrate an actual, subjective expectation of privacy in the computer.” Id. This court further noted that even if Hicks had met this burden, in order to challenge the search of the computer, “he would still have to establish that society would have accepted such an expectation as reasonable — an unlikely scenario.” M

In addition to ownership, the following factors are relevant in determining whether a defendant has a reasonable expectation of privacy in an item: “‘possession and/or control; historical use of the property searched or the thing seized; ability to regulate access; [and] the totality of the surrounding circumstances....’” Mancini, 8 F.3d at 109 (quoting United States v. Sanchez, 943 F.2d 110, 113 (1st Cir.1991)).

Here, Mr. Henderson did not present a scintilla of evidence that he possessed or controlled the iPad on the day in question, much less that he had the authority or power to exclude other persons from using the iPad. See Lyons, 992 F.2d at 1031 (noting that “expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation of privacy in the area searched, i.e. the hard disks”); see also Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (holding that petitioner did not meet his burden to establish that he had a legitimate expectation of privacy in his girlfriend’s purse and therefore could not successfully move to suppress drugs found in the purse). Further, there was no evidence concerning the frequency, extent, or purpose of Mr. Henderson’s historical use of the iPad.

Because this is an issue that is likely to be regularly presented to our trial courts, I urge counsel to insure that sufficient evidence is brought forth to establish the requisite burden of proof.

WALLACE, Judge,

Concurring in result only.

I concur with the majority that Mr. Henderson failed to preserve for appellate review the issue of whether the evidence gathered from an iPad was obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. For this reason, I agree that Mr. Henderson’s judgment and sentences must be affirmed. In my view, because Mr. Henderson has failed to preserve any issue for review, it is unnecessary to reach the various additional matters discussed in the per curiam opinion and in Judge Ca-sanueva’s concurring opinion.

      . According to Ms. Hess's testimony, a hotel guest pays Travelocity for the room and Tra-velocity then pays the hotel for the room.

      . Officer Bilbrey was still in his police car at the hotel parking lot when he searched for the serial number of the iPad. There is no indication in the record that Officer Bilbrey was able to discover the name of the owner from the serial number.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Further, there was evidence that Mr. Henderson was not the owner, as Ms. Brown told both Officer Bilbr'ey and Detective Pillu-cere that she was the person who purchased the iPad. Based on Ms. Brown’s statements to law enforcement, the trial court specifically found that Ms. Brown "was the one that had paid for it.”

      . It was not the State’s burden to bring forth evidence showing the extent of Mr. Henderson’s use of or ability to control access to the iPad. See United States v. Freitas, 716 F.2d 1216, 1220 n. 2 (9th Cir.1983) ("Where a defendant fails to meet this burden in the suppression hearing, he cannot prevail on appeal even though the Government also did not establish the contrary, unless, of course, the record on appeal independently demonstrates the requisite standing.”).


author: ALTENBERND, Judge.

text:
    James Edward SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6221.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Mr. Sims appeals his judgment and sentence for manslaughter with a firearm. Unfortunately, during his trial Mr. Sims was excluded from an in-chambers conference at which the trial judge and the assistant state attorney addressed their concerns that Mr. Sims’ attorney was impaired and unable adequately to represent Mr. Sims. Although we fully understand why the trial judge elected to hold this conference in private, Mr. Sims had a constitutional right to be present at this crucial stage of the proceeding. In this case, the closer question is whether this error requires a new trial. We conclude that it does and, accordingly, reverse the judgment and sentence and remand for a new trial.

The death resulting in these charges occurred in 1981. Mr. Sims avoided arrest for nearly thirty years. Thus, this case was not tried until 2011. In 1981, Mr. Sims frequented a “bikini bar” in Lee County. He was good friends with one of the female employees of the bar. Prior to the incident in question, this woman told Mr. Sims that she had been raped by a man named Roy Radabaugh.

On January 18, 1981, Mr. Sims learned that Mr. Radabaugh was in the bar’s parking lot. Mr. Sims exited the bar and approached Mr. Radabaugh, who was sitting in the driver’s seat of a parked car. Mr. Sims pointed a .38 caliber firearm at Mr. Radabaugh’s head and the gun discharged, killing Mr. Radabaugh. Mr. Sims’ theory of defense was that Mr. Ra-dabaugh reached out his hand and pulled the trigger to commit suicide.

The State charged Mr. Sims with second-degree murder. The jury rejected Mr. Sims’ suicide theory but convicted him of the lesser offense of manslaughter. The trial court sentenced him to seventeen years’ imprisonment.

On appeal, Mr. Sims raises four issues. We conclude that he is entitled to a new trial for the reasons discussed and, thus, we have no need to resolve the remaining issues.

Following lunch on the second day of trial, the court interrupted proceedings to conduct an in-chambers conference. The conference was recorded by the court reporter but attended only by the judge, the assistant state attorney, and Mr. Sims’ counsel. The conference took place immediately after defense counsel had cross-examined a State witness. At the conference, the assistant state attorney disclosed that people in the courtroom were concerned that defense counsel was not functioning at her full capacity and that her speech and comprehension seemed abnormal. The court was similarly concerned with defense counsel’s mental status and inquired specifically as to whether she had been consuming alcohol. Defense counsel denied any allegations of alcohol consumption but instead stated that she had had a “knock-down drag-out” with another judge and that she “ha[d] a cold,” for which she was taking only vitamins and aspirin.

The trial judge acknowledged that he was aware that Mr. Sims’ counsel had had an incident with another judge. But he also explained that another person had questioned whether defense counsel had something to drink before she came to court on the first day of trial. The trial judge summarized the preceding day of trial by stating: “I found jury selection to be a rather bizarre experience, but I think we got through jury selection all right.”

Although defense counsel maintained that she was not impaired, when the judge asked if she was ready to proceed, she replied:

No, Judge. Just declare a mistrial. I don’t think — I mean — I think it’s my fault and jeopardy hasn’t attached.
I got to live in this town, you know? And if you don’t think it will take five minutes for this to get all over this courthouse—

Rather than grant a mistrial as requested by defense counsel, the trial court adjourned proceedings for the day and allowed defense counsel to continue the following morning. At least from our record, counsel appears to have been competent during the remainder of the trial. As earlier explained, counsel did -convince the jury to return a verdict for a lesser offense. Mr. Sims appeals that judgment and sentence.

I. Mr. Sims’ Right to Attend the In-Chambers Conference

On appeal, Mr. Sims argues that he had a constitutional right to be present during this conference. We agree. The United States Supreme Court has held that in a criminal trial, the Confrontation Clause of the Sixth Amendment offers the accused the right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence. See U.S. Const, amend. VI; Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citing Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). A defendant has a right to be present at such stages where his absence might frustrate the fairness of the proceedings. Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2525. Florida has since adopted a comparable standard. See Garcia v. State, 492 So.2d 360, 363-64 (Fla.1986) (holding that a defendant has a constitutional right to presence at all crucial stages of the trial where his absence might frustrate the fairness of the proceeding and that it is a constitutional question of whether fundamental fairness has been thwarted which determines whether the error is reversible). Yet, this right does not confer upon a defendant an absolute right to be present at every conference. For instance, a defendant is not entitled to attend bench conferences that involve purely legal matters or those in which a defendant’s presence would be of no assistance to counsel. See Rutherford v. Moore, 774 So.2d 6S7, 647 (Fla.2000); Hardwick v. Dugger, 648 So.2d 100, 105 (Fla.1994).

In this case, the trial judge and the attorneys were not discussing purely legal issues at the in-chambers conference. Rather, they were trying to determine whether Mr. Sims’ attorney was competent to proceed and, if not, why she was impaired. They were addressing a factual issue relating to Mr. Sims’ right to have competent counsel at this trial. We conclude that such a hearing is a crucial or critical stage of the proceeding. Nothing in this record suggests that Mr. Sims was even aware of the subject of this conference, much less that he knowingly waived his right to attend.

II. This Error Entitles Mr. Sims to a New Trial

Having concluded that the trial court erred by excluding Mr. Sims from the in-chambers conference, we turn to whether this error warrants a new trial. We have struggled with this issue, in part, because Mr. Sims was convicted of a lesser-included offense. All in all, it might seem that he received a reasonably favorable outcome. On the other hand, Mr. Sims is almost seventy years of age, and the seventeen-year term of imprisonment that he is serving is probably longer than his life expectancy.

It is well established that a violation of the right to be present at a crucial stage of a criminal proceeding is not a per se error; it is subject to a harmless error analysis. See Garcia, 492 So.2d at 364; Turner v. State, 580 So.2d 45, 49-50 (Fla.1987). The case law tends to rely on the test used to determine the right to be present, i.e., “at all crucial stages of his trial where his absence might frustrate the airness of the proceedings,” see Garcia, 492 So.2d at 363, and affirmatively inquires into whether it appears that the absence of the defendant actually did frustrate the fairness of the proceeding, see, e.g., Turner, 530 So.2d at 50; Williams v. State, 785 So.2d 652, 653 (Fla. 2d DCA 2001). At least in cases where this issue is raised on direct appeal, the burden is typically placed on the State to show beyond a reasonable doubt that the defendant’s absence was not prejudicial. See Garcia, 492 So.2d at 364; Roberts v. State, 510 So.2d 885, 890-91 (Fla.1987).

It is useful to consider that this analysis is somewhat unique. This is not a situation where our concepts of “preserved” or “fundamental” error serve the courts well. In most cases, the error is not preserved in the trial court. If one of the lawyers or the judge realizes that there is an issue as to whether the defendant needs to be present, this issue is almost always well handled by the trial court.

Even if this error is unpreserved, the notion that it should be treated as a fundamental error, with the burden shifted to the defendant to prove the error was harmful, is questionable. See Heed v. State, 837 So.2d 366, 369-70 (Fla.2002). Fundamental error assumes that the defendant had the opportunity to object and did not. See Ray v. State, 403 So.2d 956, 960 (Fla.1981). This is typically not the case when the defendant has been excluded from a crucial stage of the proceedings.

The harm that Mr. Sims established was the deprivation of his Sixth Amendment Right to presence. This type of error, which directly impacts a basic constitutional right, is sometimes referred to as a “constitutional error.” See Goodwin v. State, 751 So.2d 537, 543 (Fla.1999). Such a constitutional error is not per se reversible. See Chapman v. California, 386 U.S. 18, 21-22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (rejecting the notion that all constitutional errors are harmful errors). For this type of error, Florida has placed the burden of persuasion on the State to convince the appellate court that the error is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1134-35 (Fla.1986).

We are convinced that in many instances a defendant’s absence from an in-chambers conference attended by the court reporter could be shown to be harmless beyond a reasonable doubt. For instance, had the attorneys and trial judge been discussing mere technical, procedural, or legal issues that would not have been assisted by Mr. Sims’ presence, any error in his exclusion from such a conference would be deemed harmless. See, e.g., Coney v. State, 653 So.2d 1009, 1012 (Fla.1995). In this case, however, the conference addressed the competence of Mr. Sims’ counsel under circumstances where neither the trial court nor the assistant state attorney was convinced that defense counsel was capable of representing the defendant at that moment in time.

In evaluating whether Mr. Sims’ is entitled to a new trial, we observe that the record does not demonstrate whether Mr. Sims was even aware of this issue of competency. Although Mr. Sims was obviously not consulted as to his attorney’s motion for mistrial, if he had been aware that people, including the trial judge, thought his attorney was acting strangely and that jury selection had been a “rather bizarre experience,” it is reasonable to assume that he would have been concerned whether he needed to move for a mistrial.

If Mr. Sims had been present at this conference, it seems obvious to this court that the experienced trial judge would have realized that Mr. Sims needed and was entitled to independent counsel who could provide him with competent legal advice as to what steps he should take at the hearing — given that his counsel was not competent to proceed at that moment. In light of the evaluation of defense counsel’s performance by the trial court itself, it is hard to imagine that independent counsel would have advised Mr. Sims not to move for a mistrial. If such a motion had been made, on the face of this record we are convinced that Mr. Sims would have been entitled to a mistrial. Accordingly, we conclude that Mr. Sims’ absence actually did frustrate the fairness of the proceeding, and we must reverse this judgment and sentence and remand the case for a new trial.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ, Concur.

      . A poem was found on Mr. Radabaugh’s person, which Mr. Sims argued was a suicide note. The note — which was undated and did not directly mention suicide — was excluded by the trial court.

      . We note that jeopardy had in fact attached when Mr. Sims’ jury was impaneled and sworn. See Thomason v. State, 620 So.2d 1234, 1236 (Fla.1993). However, counsel would have been correct that a mistrial would not have prevented a retrial in this case because the error that may have warranted a mistrial was not attributable to prosecutorial misconduct or judicial overreaching. See State v. McNeil, 362 So.2d 93, 95 (Fla. 1st DCA 1978).

      . The extensive case law addressing this issue sometimes refers to a ‘‘crucial” stage, as in Garcia, and other times to a "critical” stage, see, e.g., Dunbar v. State, 89 So.3d 901, 907 (Fla.2012). These terms in ordinary usage seem to have different meanings, but they apparently are equivalent terms in this context, as they have even been used interchangeably in a single opinion. See Johnson v. State, 750 So.2d 22, 27-28 (Fla.1999); but see Ibar v. State, 938 So.2d 451, 469 (Fla.2006) (suggesting that, in the context of the related right to the presence of counsel, "crucial” refers to the test under the state constitution, while "critical” applies to the federal one).

      . Florida Rule of Criminal Procedure 3.180(a) also sets forth an enumerated list of instances in which a defendant has a right to presence.

      . A defendant may waive his right to be present at a crucial stage of trial and exercise constructive presence through counsel, but such a waiver must be offered knowingly, intelligently, and voluntarily. See Coney v. State, 653 So.2d 1009, 1013 (Fla.1995); Papageorge v. State, 710 So.2d 53, 54-55 (Fla. 4th DCA 1998).