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

text:
    WASHINGTON NATIONAL INSURANCE CORPORATION, etc., Appellant, v. Sydelle RUDERMAN, etc., et al., Appellee.
    No. SC12-323.
    Supreme Court of Florida.
    July 3, 2013.

      Daniel J. Koleos of Koleos Rosenberg, P.A., Plantation, FL; Adam J. Kaiser and Jeffrey J. Amato of Dewey & LeBoeuf LLP, New York, NY, for Appellant.
    Gary M. Farmer, Sr., Steven R. Jaffe, and Mark S. Fistos of Farmer Jaffe Weiss-ing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, FL; Neil Rose of Bernstein, Chackman, Liss & Rose, Hollywood, FL; and Steven M. Dunn of Dunn & Johnson, P.A., Bay Harbor Islands, FL, for Appellees.
    Laura A. Foggan of Wiley Rein LLP, Washington, DC; William D. Horgan of Banker Lopez Gassier, Tallahassee, FL, for Amicus Curiae Complex Insurance Claims Litigation Association.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm, FL, Amicus Curiae, Florida Justice Association.
    Jason S. Mazer and Benjamin C. Hasse-brock of Ver Ploeg & Lumpkin, P.A., Miami, FL, for Amicus Curiae United Policyholders.
   LABARGA, J.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which that court has indicated there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In Ruderman ex rel. Schwartz v. Washington National Insurance Corp., 671 F.3d 1208 (11th Cir.2012), the Eleventh Circuit certified the following multi-part question:

I. IN THIS CASE, DOES THE POLICY’S “AUTOMATIC BENEFIT INCREASE PERCENTAGE” APPLY TO THE DOLLAR VALUES OF THE “LIFETIME MAXIMUM BENEFIT AMOUNT” AND THE “PER OCCURRENCE MAXIMUM BENEFIT”?

Id. at 1212. The Eleventh Circuit further explained that answering this question might include answering the three following sub-questions:

A.Does an ambiguity exist about whether the Policy’s “Automatic Benefit Increase Percentage” applies only to the “Home Health Care Daily Benefit” or whether it also applies to the “Lifetime Maximum Benefit Amount” and the “Per Occurrence Maximum Benefit”?
B. If an ambiguity exists in this insurance policy — as we understand that it does — should courts first attempt to resolve the ambiguity by examining available extrinsic evidence?
C. Applying the Florida law principles of policy construction, does the Policy’s “Automatic Benefit Increase Percentage” apply to the “Lifetime Maximum Benefit Amount” and to the “Per Occurrence Maximum Benefit” or does it apply only to the “Home Health Care Daily Benefit”?

Id. For the reasons set forth below we answer the main certified question in the affirmative, sub-question A in the affirmative, sub-question B in the negative, and sub-question C in the affirmative. We hold that under Florida law applicable to construction of insurance policies, because the policy is ambiguous it must be construed against the insurer and in favor of coverage without resort to consideration of extrinsic evidence. Thus, when so construed, the policy’s automatic benefit increase applies to the daily benefit, the lifetime maximum benefit, and the per occurrence maximum benefit.

BACKGROUND AND FACTS

This case arose when Sydelle Ruder-man, Sylvia Powers, and other Florida insureds filed a class action in the United States District Court for the Southern District of Florida against Pioneer Life Insurance Company, later succeeded by appellant Washington National Insurance Corporation (“Washington National”), concerning insurance policies that provide for reimbursement of certain home health care expenses. The controversy concerned whether the “Automatic Benefit Increase Percentage” (“automatic increase”) provision contained in the insureds’ limited benefit home health care coverage insurance policies applies only to the daily benefit amount or also applies to the per occurrence maximum benefit amount and the lifetime maximum benefit amount. Each policy contains essentially identical language concerning the automatic increase and each policy includes a “Certificate Schedule” that sets forth the coverage amounts for each of the insureds. The policies provide coverage through a maximum daily benefit, called the “Home Health Care Daily Benefit.” The policy coverage is limited by a “Per Occurrence Maximum Benefit” for each illness and a “Lifetime Maximum Benefit” for all injuries and sicknesses during the life of the Policy. See Ruderman, 671 F.3d at 1210. The policies at issue, under the heading “Benefits,” provide as follows:

A. HOME HEALTH CARE: We will pay 100% of the usual and customary charges for Home Health Care expenses if the care was pre-authorized. If the care was not pre-authorized we will pay 75% of the usual and customary charges for Home Health Care expenses incurred, up to 75% of the Daily Benefit Amount shown in the schedule. These benefits will be paid up to the Home Health Care Daily Benefit shown in the schedule. All benefits will be limited to the Per Occurrence Maximum Benefit for each injury or sickness and the Lifetime Maximum Benefit Amount for ALL injuries and sicknesses which are shown in the certificate schedule.

The policies also provide:

B. AUTOMATIC DAILY BENEFIT INCREASE: On each policy anniversary, we will increase the Home Health Care Daily Benefit payable under this policy by the Automatic Benefit Increase Percentage shown on the schedule page.
E. PER OCCURRENCE MAXIMUM BENEFIT: No further benefits will be payable for a sickness or injury when the total sum of Home Health Care or Adult Day Care benefits paid for that occurrence equals the amount shown in the schedule for the Per Occurrence Maximum Benefit. Successive confinement due to the same or related cause not separated by at least 6 months of normal daily living will be considered as the same occurrence.
F. LIFETIME MAXIMUM BENEFIT: This coverage shall terminate and no further benefits will be payable when the total sum of Home Health Care or Adult Day Care benefits paid equals the amount shown in the schedule for the Lifetime Maximum Benefit Amount. Any premium paid for a period after termination will be refunded.

The certificate schedule which is contained in each policy states the following:

CERTIFICATE SCHEDULE
HOME HEALTH CARE DAILY BENEFIT $180 / Day
LIFETIME MAXIMUM BENEFIT AMOUNT $250,000
PER OCCURRENCE MAXIMUM BENEFIT $150,000 / Illness
AUTOMATIC BENEFIT INCREASE PERCENTAGE Benefits increase by 8% each year

See Ruderman, 671 F.3d at 1210.

The district court concluded that the various provisions in the policy, including the certifícate schedule, demonstrated an ambiguity concerning whether the automatic increase applied only to the daily benefit or also applied to the lifetime maximum benefit amount and the per occurrence maximum benefit amount. The district court granted summary judgment for the insureds based on the court’s understanding that Florida law requires that an ambiguous policy must be construed against the insurer and in favor of coverage. On appeal to the Eleventh Circuit, the appeals court stated:

We agree with the District Court’s conclusion that the Policy is ambiguous about whether the Lifetime Cap and Per Occurrence Cap increase each year or whether only the Daily Benefit increases each year. The way the “Benefits” section of the Policy and the Certificate are drafted, it is reasonable to read the Certificate language “Benefits increase by 8% each year” as applying solely to the Daily Benefit; but it is also reasonable to read the Certificate language to mean that all the amounts listed within the Policy’s “Benefits” section — including the “Per Occurrence Maximum Benefit” and the “Lifetime Maximum Benefit”— increase annually. Under Florida law, because “the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and [] another limiting coverage, the insurance policy is considered ambiguous.”

Ruderman, 671 F.3d at 1211 (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)). The Eleventh Circuit recognized that this Court held in Anderson that “[ajmbiguous policy provisions are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy.” Ruderman, 671 F.3d at 1211 (quoting Anderson, 756 So.2d at 34). However, the Eleventh Circuit concluded that “the correct approach under Florida law in resolving the ambiguity in the Policy is unclear.” Ruderman, 671 F.3d at 1211. The basis for this perceived lack of clarity was said to be the decision in Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979), which predated Anderson.

Although the Eleventh Circuit recognized that Anderson held ambiguous insurance policy provisions are to be construed against the insurer, the court expressed concern that Excelsior “qualified the longstanding rule of construing an ambiguity against the drafter, [by] stating that ‘[o]nly when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite.’ ” Ruderman, 671 F.3d at 1211 (quoting Excelsior, 369 So.2d at 942). The Eleventh Circuit was uncertain whether this language would require that the court consider extrinsic evidence concerning the terms of the policy before finally concluding that the policy provisions were ambiguous and subject to being construed in favor of coverage and against the insurer.

Whether Florida law allows resort to extrinsic evidence to clarify an ambiguity in an insurance policy was significant in this case, as the Eleventh Circuit explained:

Washington National offered in the District Court extensive extrinsic evidence to explain the marketing of the Policy and to show the understanding of various of the insureds — both when the Policy was purchased and during the life of the Policy — about what benefits in the Policy increased annually. There is at least a colorable position that Washington National’s proffered extrinsic evidence would resolve any ambiguity in the Policy about what benefits increase annually and would support Washington National’s position that only the Daily Benefit increases annually.

Ruderman, 671 F.3d at 1211-12. The Eleventh Circuit then concluded that the proper approach to take concerning admission of extrinsic evidence and resolution of ambiguity in insurance policies is an “unsettled question of Florida law” and certified the above-stated main question and sub-questions to this Court. Id. at 1212.

ANALYSIS

The issue in this case concerns construction of an insurance policy which is a question of law subject to de novo review. See Fayad, v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005). Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. See State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 569-70 (Fla.2011). In construing insurance contracts, “courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (quoting Anderson, 756 So.2d at 34); see also Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003) (same). Courts should “avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Id. at 165. However, “[pjolicy language is considered to be ambiguous ... if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” Menendez, 70 So.3d at 570 (quoting Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla.2004) (quoting Swire, 845 So.2d at 165)).

We have attempted to read the policy at issue in this case as a whole, and have endeavored to give meaning to every provision. In doing so, however, we are constrained to conclude, as did the federal district court and the Eleventh Circuit, that the policy is ambiguous. The policy states in paragraph B of the “Benefits” section that the daily benefit will increase on each policy anniversary “by the Automatic Benefit Increase Percentage shown on the schedule page.” Other portions of the policy also rely on and incorporate the certificate schedule to define the scope of the coverage. Paragraph E of the “Benefits” section of the policy, titled “Per Occurrence Maximum Benefit,” states that “[n]o further benefits will be payable for a sickness or injury when the total sum of Home Health Care or Adult Day Care benefits paid for that occurrence equals the amount shown in the schedule for the Per Occurrence Maximum Benefit.” Thus, the policy relies on the certificate schedule to set forth the maximum amount of coverage at which no further benefits will be payable for an occurrence.

Similarly, paragraph F of the “Benefits” section of the policy, titled “Lifetime Maximum Benefit,” states that “[t]his coverage shall terminate and no further benefits will be payable when the total sum of Home Health Care or Adult Day Care benefits paid equals the amount shown in the schedule for the Lifetime Maximum Benefit Amount.” Again, the policy leaves it to the certificate schedule to indicate at what amount the policy will be terminated due to reaching a maximum lifetime benefit. The certificate schedule provides that “Benefits increase by 8% each year.” This automatic increase provision in the certificate schedule is not expressly limited to the daily benefit and, further, is immediately preceded by reference to the “HOME HEALTH CARE DAILY BENEFIT,” the “LIFETIME MAXIMUM BENEFIT AMOUNT,” and the “PER OCCURRENCE MAXIMUM BENEFIT.” Even though the policy can be reasonably read in a way that limits the automatic increase to the daily benefit, it can also reasonably be read to apply the automatic percentage increase to all the “benefits” listed on the certificate schedule — benefits that include the per occurrence maximum benefit and the lifetime maximum benefit.

For these same reasons, the federal district court found the policy to be ambiguous and, in so doing, relied on the reasoning and conclusions in an earlier decision of the Eleventh Circuit, Gradinger v. Washington National Insurance Co., 250 Fed.Appx. 271 (11th Cir.2007), a decision which was withdrawn due to settlement. In Gradinger, the Eleventh Circuit had concluded that a home health care policy with benefits and automatic increase language identical to that in this case was ambiguous because it was susceptible to more than one reasonable interpretation. In so holding, the Eleventh Circuit noted that the policy did not clearly state that the 8% automatic increase did not apply to the per occurrence maximum benefit and the lifetime maximum benefit. Gradinger, 250 Fed.Appx. at 274. The Gradinger court also characterized the Lifetime Maximum Benefit and the Per Occurrence Maximum Benefit as two of “three benefits” set forth on the certificate. Id. at 274-75. The court noted that “[c]onsider-ing the grouping of the benefits and the alternate uses of the singular and plural forms of the word benefit, nothing in the schedule indicates that the Automatic Benefit Increase only applies to the first of three benefits listed.” Id. at 275. Relying on its understanding of Florida law governing the interpretation of insurance policies, the Gradinger court then determined that the ambiguous policy must be interpreted liberally in favor of the insured and strictly against the drafter of the policy. Id. at 275.

The Eleventh Circuit in the instant case did not rely on its reasoning in the Gra-dinger decision and, further, now expresses doubt that Florida law is settled on whether an ambiguous insurance policy should be strictly construed against the insurer or whether extrinsic evidence must first be allowed in an attempt to clarify any potential ambiguity. As noted earlier, the Eleventh Circuit based its uncertainty on this Court’s statement in Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979), a decision which substantially predated our decision in Anderson. The statement in Excelsior which caused the Eleventh Circuit’s concern — a statement referring to the rule requiring construction of ambiguous policy language against the drafter of the policy — was as follows: “Only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite.” Excelsior, 369 So.2d at 942. We now make clear that nothing in Excelsior expressly holds that extrinsic evidence must be considered in determining if an ambiguity exists. Further, nothing in Excelsior constitutes an implicit declaration that resort must be made to consideration of extrinsic evidence before an insurance policy is found to be ambiguous and construed against the insurer.

Moreover, since Excelsior, this Court has held many times, including in Anderson and thereafter, that where the provisions of an insurance policy are at issue, any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer. See, e.g., Menendez, 70 So.3d at 570; J.S.U.B., Inc., 979 So.2d at 877; Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla.2007); Fayad, 899 So.2d at 1086; Swire Pac. Holdings, 845 So.2d at 165; Anderson, 756 So.2d at 34; State Farm, Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998); Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993); Deni Assoc, of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1138 (Fla.1998); State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986).

As we stated in Berkshire Life Insurance Co. v. Adelberg, 698 So.2d 828 (Fla.1997), “[i]t has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer.” Id. at 830. Thus where, as here, one reasonable interpretation of the policy provisions would provide coverage, that is the construction which must be adopted. We reiterated this special rule for construction of insurance contracts in Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528 (Fla.2005), where we stated:

Under Florida law, insurance contracts are construed according to their plain meaning. Ambiguities are construed against the insurer and in favor of coverage. As we recently said:

[W]e must follow the guiding principle that this Court has consistently applied that insurance contracts must be construed in accordance with the plain language of the policy. Further, we consider that “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous.” An ambiguous provision is construed in favor of the insured and strictly against the drafter.

Taurus Holdings, 913 So.2d at 532 (quoting Swire, 845 So.2d at 165 (citations omitted) (quoting Anderson, 756 So.2d at 34.)).

In 2008, the Eleventh Circuit recognized this same principle in Penzer v. Transportation Insurance Co., 545 F.3d 1303, 1306 (11th Cir.2008), when it cited our decision in State Farm Fire & Casualty Co. v. CTC Development Corp., 720 So.2d 1072, 1076 (Fla.1998), for the principle that “[a]mbi-guities are construed against the insurer.” As recently as 2011, this Court again voiced the longstanding tenet of Florida law that “[w]here the policy language ‘is susceptible to more than one reasonable interpretation, one providing coverage and ... another limiting coverage, the insurance policy is considered ambiguous’ ” and must be “‘construed against the drafter and in favor of the insured.’ ” Chandler v. Geico Indem. Co., 78 So.3d 1293, 1300 (Fla.2011) (quoting Anderson, 756 So.2d at 34).

The certifícate schedule, as the Eleventh Circuit noted, “sets forth the exact coverage amounts specific to each of the insureds and provides a level of differentiation between each Policy.” Ruderman, 671 F.3d at 1210. For this reason, greater reliance may be placed by the insured on the provisions of the certificate schedule. Thus, the certificate schedule should make perfectly clear to which benefits the automatic percentage increase will apply. This is not a matter which the insured may learn for certain only after years of paying premiums and after utilizing home health care services for which required payment has been incurred.

As we noted in Hartnett v. Southern Insurance Co., 181 So.2d 524, 528 (Fla.1965), where an insurance policy is “drawn in such a manner that it requires the proverbial Philadelphia lawyer to comprehend the terms embodied in it, the courts should and will construe them liberally in favor of the insured and strictly against the insurer to protect the buying public who rely upon the companies and agencies in such transactions.” We recognize that “[u]nless restricted by statute or public policy, insurance companies have the same right as individuals to limit their liability and impose conditions upon their obligations.” Canal Ins. Co. v. Giesenschlag, 454 So.2d 88, 89 (Fla. 2d DCA 1984). However, the insurance company has a duty to do so clearly and unambiguously. Similarly, the insurer has the burden to make clear the circumstances under which the policy coverage will terminate after reaching the máximums set forth in the certificate schedule. The certificate schedule in this case does not do so and, thus, under our long-established rules of construction of insurance contracts, the ambiguous policy must be strictly construed against the insurer.

CONCLUSION

For the reasons set forth above, we find the limited home health care policy at issue is ambiguous, with one reasonable interpretation being that the “Automatic Benefit Increase Percentage” by which “benefits increase by 8% each year” applies to all the benefit categories set forth on the certificate schedule. We further hold, consistent with our precedent, that where a contract of insurance is ambiguous, it is to be liberally construed in favor of coverage and strictly against the insurer. Based on these holdings, we answer the main certified question in the affirmative, sub-question A in the affirmative, sub-question B in the negative, and sub-question C in the affirmative. Under Florida law, because the policy is ambiguous it must be construed against the insurer and in favor of coverage without resort to consideration of extrinsic evidence. Thus, the policy’s automatic benefit increase applies to the daily benefit, the lifetime maximum benefit, and the per occurrence maximum benefit.

We conditionally grant the appellees’ motion for appellate attorneys’ fees under section 627.428, Florida Statutes (2012), for proceedings in this Court in which the appellees prevail, but leave to the Eleventh Circuit Court of Appeals to determine the procedure by which that amount shall be set. Having answered the certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

PARIENTE and PERRY, JJ., concur.

LEWIS, J., concurs in result.

POLSTON, C.J., dissents with an opinion, in which QUINCE and CANADY, JJ., concur.

POLSTON, C.J.,

dissenting.

I respectfully dissent. The insurance policy is not ambiguous. It means what it plainly says, that the insurer “will increase the Home Health Care Daily Benefit payable under this policy by the Automatic Benefit Increase Percentage shown on the schedule page.” (Emphasis added.) No reference is made to increasing the Per Occurrence Maximum Benefit and the Lifetime Maximum Benefit Amount, which are both defined without reference to the automatic increase and listed separately as line items on the schedule page. Moreover, if the policy was ambiguous, our precedent requires allowing the admission of extrinsic evidence to determine the policy’s meaning.

I. The Policy Is Not Ambiguous

Based on the plain language of the policy, the 8% automatic increase applies solely to the daily benefit. See 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.”). Specifically, the policy expressly defines the automatic increase as applying only to the daily benefit:

B. AUTOMATIC DAILY BENEFIT INCREASE: On each policy anniversary, we will increase the Home Health Care Daily Benefit payable under this policy by the Automatic Benefit Increase Percentage shown on the schedule page.

Consistent with this language, the certificate schedule identifies the “Automatic Benefit Increase Percentage” as 8%. Therefore, on every policy anniversary, the daily home health care benefit limit increases by 8%.

Nowhere does the policy provide for an increase to the Per Occurrence Maximum Benefit and the Lifetime Maximum Benefit Amount, which the majority correctly recognizes are caps on the total amount of daily benefits payable under the policy. See majority op. at 945-46. Moreover, the benefits section describes these to be caps, not benefits. The Home Health Care Benefits section of the policy states: “These benefits will be paid up to the Home Health Care Daily Benefit shown in the schedule. All benefits will be limited to the Per Occurrence Maximum Benefit for each injury or sickness and the Lifetime Maximum Benefit Amount for ALL injuries and sicknesses which are shown in the certificate schedule.” This Benefits section does not include within its definitional scope the caps provided by the Per Occurrence Maximum Benefit and the Lifetime Maximum Benefit Amount as benefits. Had it done so, the policy would have applied the automatic benefit increase to the caps as well as to the daily benefit. But instead, the policy definition explicitly makes the benefits subject to, not including, the limits of those caps.

Moreover, the certificate schedule separately lists these items rather than mixing them together, and shows the amounts of coverage provided by the policy:

CERTIFICATE SCHEDULE
HOME HEALTH CARE DAILY BENEFIT $180/Day
LIFETIME MAXIMUM BENEFIT AMOUNT $250,000
PER OCCURRENCE MAXIMUM BENEFIT $150,000/Illness
AUTOMATIC BENEFIT INCREASE PERCENTAGE Benefits increase by 8% each year

In interpreting the contract, the majority acknowledges, but fails to apply, the rule that the certificate schedule must be read together with the entire policy. See majority op. at 948; see also Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003) (“[W]hen analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.”); Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000) (recognizing that for an ambiguity to exist in an insurance policy the language must be susceptible of more than one reasonable interpretation after the policy is read as a whole). When the policy is read as a whole, it is clear that the scope of what is included within the increase percentage is limited to what is expressly defined as the Home Health Care Daily Benefit, while the certificate schedule sets the amount of the daily benefit, sets the amount of the per occurrence and lifetime caps, and identifies the amount of the increase percentage (just as the policy’s definition of Automatic Daily Benefit Increase said it would), without expanding the scope of what the policy defined as being subject to the increase percentage. See Black’s Law Dictionary 1462 (9th ed. 2009) (defining a “schedule” as “a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document”).

By concluding that the schedule functions to increase the caps higher than the policy actually says they are, the majority improperly rewrites the parties’ contract to provide coverage for which the parties did not bargain and the insureds did not pay. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979) (explaining that, in interpreting insurance contracts, courts are not permitted to “rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties”). The majority rewrites the policy to state: “On each policy anniversary, we will increase the Home Health Care Daily Benefit, the Per Occurrence Maximum Benefit, and the Lifetime Maximum Benefit Amount payable under the policy by the Automatic Benefit Increase Percentage shown on the schedule page.”

I would give effect to the policy as it is written by applying the automatic increase solely to the daily benefit. Accordingly, I would answer the main certified question in the negative.

II. If the Policy Was Ambiguous, Extrinsic Evidence Should Be Considered

Moreover, even if the contract was ambiguous (which it is not), it is well-settled Florida law that parties may attempt to resolve an ambiguity through available extrinsic evidence before applying the last-resort principle of construction against the drafter. To reach the opposite conclusion, the majority misconstrues the certified question and improperly recedes from our precedent.

In reaching its holding, the majority concludes that our precedent does not require “that extrinsic evidence must be considered in determining if an ambiguity exists.” Majority op. at 949 (emphasis added). I agree. Our precedent is clear that a contract must be ambiguous before extrinsic evidence may be introduced. See, e.g., Dimmitt Chevrolet, Inc. v. Se. Fid. Ins. Corp., 636 So.2d 700, 705 (Fla. 1993) (“Because we conclude that the policy language is unambiguous, we find it inappropriate and unnecessary to consider the arguments pertaining to the drafting history of the [clause].”). But significantly, this is beside the point, and the majority widely misses the mark by answering a question that the Eleventh Circuit has not asked. The Eleventh Circuit did not ask whether Florida law allows the use of extrinsic evidence to render a clear contract ambiguous. Instead, with sub-question B, the Eleventh Circuit asked: “If an ambiguity exists in this insurance policy — as we understand that it does — should courts first attempt to resolve the ambiguity by examining available extrinsic evidence?” Ruderman ex rel. Schwartz v. Wash. Nat’l Ins. Corp., 671 F.3d 1208, 1212 (11th Cir. 2012).

As discussed below, our precedent requires answering this question in the affirmative because our precedent provides that an ambiguous contract is construed against the insurer only as a last resort, meaning only after all available construction aids, including extrinsic evidence, fail to resolve the ambiguity.

Under Florida law, “the rights and obligations of the parties under an insurance policy are governed by contract law since they arose out of an insurance contract.” Lumbermens Mut. Cas. Co. v. August, 530 So.2d 293, 295 (Fla.1988). Whether any contract is ambiguous is a legal question. See DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428 (Fla.1990). If a contract is unambiguous, it must be enforced pursuant to its plain language. See Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla.2004). If, and only if, a contract is ambiguous should the court construe it in order to determine the parties’ intent. See Se. Fire Ins. Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4th DCA 1984) (“Courts should resort to complex rules of construction to determine coverage or the applicability of exclusions only when the language used in the policy is ambiguous or otherwise susceptible of more than one meaning.”). If all available construction tools, including extrinsic evidence, fail to resolve the ambiguity, only then is the contract construed against the drafter, under the theory that “having chosen the language employed and being responsible for the alleged uncertainty and ambiguity,” the drafter “must suffer the result of having such [ambiguous] language construed against [it].” W. Yellow Pine Co. v. Sinclair, 83 Fla. 118, 90 So. 828, 831 (1922) (concluding that the rule of construing an ambiguous contract against its drafter “is not to be resorted to unless necessary” and “[w]here satisfactory results can be reached by other rules of analysis and construction, it may not be invoked”); see also Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1247-48 (11th Cir.2002) (recognizing that, under Florida law, construction against the drafter is a rule of last resort that is to be applied only if all other aids of construction, including the use of extrinsic evidence, fail to resolve the ambiguity) (citing Excelsior, 369 So.2d at 942); DSL Internet Corp. v. TigerDirect, Inc., 907 So.2d 1203, 1205 (Fla. 3d DCA 2005) (“The construction-against-the-drafter principle is a rule of last resort and is inapplicable when there is evidence of the parties’ intent at the time they entered into the contract.”).

Florida insurance law has long adhered to this traditional contract analysis framework. In Excelsior, 369 So.2d at 942 (emphasis added), we recognized that determining the parties’ intent “is the central concern of the law of contracts even in the realm of insurance.” Accordingly, we held that ambiguous insurance contracts should be construed against the insurer as the drafter in the same circumstance that general contract law authorizes this result, namely “[o]nly when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction. Id. (emphasis added).

Excelsior’s “ordinary rules of construction” include the use of extrinsic evidence, which is defined as “[e]vidence relating to a contract but not appearing on the face of the contract because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement.” Black’s Law Dictionary 637 (9th ed. 2009). For example, over 100 years ago, this Court explained that

[i]f a written contract is ambiguous or obscure in its terms, so that the contractual intention of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence of the subject-matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument.

L’Engle v. Scottish Union & Nat’l Fire Ins. Co., 48 Fla. 82, 37 So. 462, 467 (1904) (quoting 9 Cyc. 772).

Many times since then, we have recognized the role that extrinsic evidence plays in the construction of ambiguous insurance contracts:

Where either general language or particular words or phrases used in insurance contracts are ‘ambiguous,’ that is, doubtful as to meaning, or, in the light of other facts, reasonably capable of having more than one meaning so that the one applicable to the contract in question cannot be ascertained without outside aid, extrinsic evidence may be introduced to explain the ambiguity.

Friedman, 56 So.2d at 517; see also Stuyvesant Ins. Co. v. Butler, 314 So.2d 567, 570-71 (Fla.1975) (approving reliance on extrinsic evidence to resolve a liability policy’s ambiguous use of the word “minor”); Price v. S. Home Ins. Co. of the Carolinas, 100 Fla. 338, 129 So. 748, 751 (1930) (“Evidence of the situation of the property and the parties, as well as other surrounding facts and circumstances at the time of the issuance of the policy, [wa]s admissible to aid the court in construing the word ‘additions.’ ”); 30B Fla. Jur.2d Insurance § 1590 (2d ed. 2013) (explaining that, “[i]n the case of an ambiguous insurance contract provision,” Florida courts “should consider extrinsic evidence to give effect to the parties’ intention”).

Moreover, since Excelsior, we have recognized that, in appropriate circumstances, extrinsic evidence may be considered to clarify the parties’ intent if an insurance contract is ambiguous. See Anderson, 756 So.2d at 36 (recognizing that a court “may consider established custom and usage in the insurance industry”) (citing Nat’l Merck. Co. v. United Serv. Auto. Ass’n, 400 So.2d 526, 530 (Fla. 1st DCA 1981)); Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139 (Fla.1998) (concluding that “it would be inappropriate” to consider extrinsic evidence concerning the policy’s drafting history unless the Court first found the policy ambiguous); Dimmitt, 636 So.2d at 705 (same).

Likewise, our district courts allow the use of extrinsic evidence to resolve ambiguities in insurance contracts. See, e.g., Kiln PLC v. Advantage Gen. Ins. Co., Ltd., 80 So.3d 429, 432 (Fla. 4th DCA 2012) (“In the case of an ambiguous insurance policy, where extrinsic evidence is available, consideration of that evidence may be appropriate.”); Castillo v. State Farm Fla. Ins. Co., 971 So.2d 820, 823 (Fla. 3d DCA 2007) (holding that the insurance company’s internal operating guideline was “both instructive and admissible as parole evidence” to explain an ambiguous provision in an insurance contract); Williams v. Essex Ins. Co., 712 So.2d 1232, 1232 (Fla. 1st DCA 1998) (concluding that the parties were “entitled to offer extrinsic evidence as to the intent of the insurer and the insured at the time the policy was purchased” to resolve an ambiguity regarding the policy’s coverage); Mut. Fire, Marine & Inland Ins. Co. v. Fla. Testing & Eng’g Co., 511 So.2d 360, 363 (Fla. 5th DCA 1987) (concluding that the trial court correctly relied on extrinsic evidence to resolve an ambiguity in an insurance contract).

Federal courts have also recognized that Florida law allows the use of extrinsic evidence to clarify ambiguous insurance contracts. See, e.g., Estevez v. N. Assurance Co. of Am., 428 Fed.Appx. 966, 967 n. 1 (11th Cir.2011) (“[The insured’s] argument that extrinsic evidence is not admissible to resolve ambiguities in an insurance contract is without merit” under Florida law.); Burlington Ins. Co. v. Indus. Steel Fabricators, Inc., 387 Fed.Appx. 900, 902 (11th Cir.2010) (recognizing that, under Florida law, “if the relevant policy language is ambiguous then extrinsic evidence of the parties’ intentions may be introduced to explain the ambiguity”); Monticello Ins. Co. v. City of Miami Beach, 2009 WL 667454, at *10 (S.D.Fla.2009) (explaining that federal courts applying Florida law “have also found it appropriate to admit extrinsic evidence to resolve the ambiguity in insurance policies”); Great Am. Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 574 F.Supp.2d 1294, 1299 (S.D.Fla.2008) (quoting Friedman, 56 So.2d at 517, for the proposition that where an insurance contract is ambiguous and, therefore, its meaning “cannot be ascertained without outside aid, extrinsic evidence may be introduced to explain the meaning”).

These decisions are in accord with insurance treatises explaining that contract law traditionally allows the use of extrinsic evidence to attempt to resolve an ambiguous insurance contract instead of simply construing it against the drafter. For example, Couch on Insurance provides that the

rule of strict construction of an ambiguous policy against [the] insurer is a rule of last resort, and not to be permitted to frustrate [the] parties’ expressed intention if such intention could be otherwise ascertained, where there is extrinsic evidence of [the] parties’ intention, which is pro[f]ferred and admissible, and which resolved [the] ambiguity, albeit in favor of noncoverage, the rule of strict construction need not be applied.

2 Steven Plitt, Daniel Maldonado, and Joshua D. Rogers, Couch on Insurance § 22:16 (3d ed. 2012) (footnote omitted); see also 1 Barbara O’Donnell, Law and Practice of Insurance Coverage Litigation § 1:6 (2012) (explaining that, under “traditional contract interpretation analysis,” the rule of construing the ambiguity against the insurer is a “rule of last resort” applicable only where other construction aids, including the use of extrinsic evidence, fail); 2 Allan D. Windt, Insurance Claims and Disputes 5th § 6:2 (2012) (“[I]f a policy term is ambiguous, the court should consider extrinsic evidence in an attempt to resolve the ambiguity to reflect the parties actual intent.”); Robert H. Jerry, II & Douglas R. Richmond, Understanding Insurance Law 129 (5th ed.2012) (recognizing that where a contract is unclear within its four corners “evidence extrinsic to the writing can be examined for the purpose of determining a document’s meaning”); 1-5 Jeffrey E. Thomas, New Appleman on Insurance Law Library Edition § 5.04 (2012) (explaining that “[u]nder the contract law approach to ambiguity” finding an insurance policy ambiguous “opens the matter to extrinsic evidence”).

Accordingly, if extrinsic evidence resolves the ambiguity, the policy is enforced pursuant to its clarified meaning. Because the ambiguity has been resolved, there is no justification for applying the last-resort rule of construction against the drafter. See Excelsior; 369 So.2d at 942 (holding that the rule of construction against the drafter is inapplicable because it may be applied “[o]nly when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction”).

While some states have moved away from attempting to discern the parties’ intent using the ordinary rules of contract construction (particularly extrinsic evidence) in favor of a pro-insured rule that automatically construes an ambiguous insurance contract against the insurer, until today, Florida has not. See 1 Barbara O’Donnell, Law and Practice of Insurance Coverage Litigation § 1:11 (2012) (noting that New Jersey, Indiana, and Texas subscribe to the rule that “any ambiguity in the relevant policy language is automatically construed in favor of coverage” while other states, including Florida, construe an ambiguity against an insurer “only after exhausting efforts to discern the meaning of disputed language through reference to extrinsic evidence”) (footnotes omitted).

None of the decisions the majority cites justifies its departure from our established framework for construing insurance contracts, under which “[t]he central concern ... is the intent of the parties,” just as it is with any contract. Travelers Ins. Co. v. Bartoszewicz, 404 So.2d 1053, 1054 (Fla.1981) (citing Excelsior, 369 So.2d at 942). To the contrary, as discussed above, two of them indicate that extrinsic evidence may be considered in appropriate circumstances. See Deni, 711 So.2d at 1139; Anderson, 756 So.2d at 36. The others are unhelpful in answering the certified question concerning extrinsic evidence because they either find no ambiguity or simply recite the general last-resort rule that an ambiguous insurance contract is to be construed against the insurer without indicating whether the parties attempted to resolve the ambiguity with extrinsic evidence. Because we do not silently overturn our precedent, it is inappropriate to read a prohibition against extrinsic evidence into general statements of law from cases that, for all we know, had nothing to do with extrinsic evidence. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (“[T]his Court does not intentionally overrule itself sub silentio.”). Accordingly, by applying the rule that ambiguities are construed against the insurer other than as a rule of last resort, the majority recedes from precedent and prematurely abandons the search for the parties’ intent.

III. Conclusion

Because the majority ignores the plain language of the contract and our binding precedent, I respectfully dissent. I would answer the main certified question and sub-questions A and C in the negative because the policy plainly limits the automatic increase to the daily benefit that does not include the caps. In addition, I would answer sub-question B in the affirmative because well-settled Florida law allows the use of available extrinsic evidence to construe an ambiguous insurance contract, and no justification has been given for receding from our precedent.

QUINCE and CANADY, JJ., concur.

      . The “policy" referred to by the Eleventh Circuit and by this Court is a "Limited Benefit Home Health Care Coverage Certificate of Insurance” which was issued to the policyholder as evidence of insurance under a group policy. Within each policy is a "Certificate Schedule” which sets forth the policy's daily benefit amount, the per occurrence maximum benefit amount, and the lifetime maximum benefit amount. The Certificate Schedule also sets forth the automatic benefit increase percentage at issue in this case.

      . "Florida Insureds” is defined in the motion for class certification as individuals named as insureds in the insurer’s policy or the attorney-in-fact for such individuals, where the insured individuals currently reside in Florida and whose policies were issued to them in Florida. The class period ran from December 1, 2003, to the date of issuance of the summary judgment on September 8, 2010.

      . Because this Court's precedent has long set forth special rules regarding construction of insurance contracts, Florida case law cited by Washington National that allows extrinsic evidence to clarify latent ambiguity in contracts other than contracts of insurance does not govern the resolution of the question now before this Court. Moreover, the ambiguity in this case is patent rather than latent, in that it appears on the face of the contract. We are aware that several district courts of appeal in Florida have allowed extrinsic evidence in cases involving construction of insurance contracts. See, e.g., Kiln PLC v. Advantage Gen. Ins. Co., Ltd., 80 So.3d 429, 432 (Fla. 4th DCA 2012) (allowing consideration of extrinsic evidence in part because there was a factual dispute as to which party chose the language of the policy); Castillo v. State Farm Florida Ins. Co., 971 So.2d 820, 823 (Fla. 3d DCA 2007) (allowing consideration of State Farm's internal operating guidelines to assist in defining terms in insurance contract). However, district court decisions such as these and others that have allowed consideration of extrinsic evidence in an attempt to explain, clarify, or resolve an ambiguity in an insurance contract do not alter this Court’s established precedent that ambiguous contracts of insurance are to be construed against the insurer as drafter of the policy, as was the insurer in this case.

      . The Fourth District Court of Appeal held in Rucks v. Old Republic Life Insurance Co., 345 So.2d 795 (Fla. 4th DCA 1977), that under group life insurance policies, ambiguities or conflicts between the certificate of insurance and the master policy must be resolved so as to provide the broadest coverage. The court in Rucks then stated, "Where the representations in an insurance certificate indicate broader coverage than that provided by the master policy, the insurer is bound by the terms of the certificate.” Id. at 797 (quoting Evans v. Holly Corp., 15 Cal.App.3d 1020, 1023, 93 Cal.Rptr. 712 (4th Dist.1971)). While not strictly on point here because the question in this case concerns ambiguity between language in the certificate schedule, which is tailored to the insured's individual coverage, and language in the remainder of the certificate of insurance rather than the group master policy, similar concerns would still militate in favor of the greater coverage suggested in the certificate schedule.

      . Section 627.428(1), Florida Statutes (2012), provides that ”[u]pon the rendition of a judgment or decree by any of the courts of the state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”

      . Whether the policy is ambiguous is a legal question. See Friedman v. Va. Metal Prods. Corp., 56 So.2d 515, 516 (Fla.1952).

      . As the appellant explains in its initial brief without challenge by the appellees, the insureds paid premiums for coverage with $150,000 per occurrence and $250,000 lifetime caps, and
      [t]he 8% escalator was never designed to increase the caps from $150,000 and $250,000 to over $1,000,000 each, and it is entirely inappropriate to interpret the Policy to accomplish that result. If a Policyholder purchased the Policy at age 55, by the time he or she turned 80 the per occurrence cap would, if the escalator applied, skyrocket to $1,027,271, and the lifetime maximum cap would balloon to $1,712,188. Assuming that "24/7” care costs $400/day, the policy would provide 4,280 days — nearly 12 years — of "24/7” care.

      . See majority op. at 949-51.

      . As the appellant noted in its reply brief, it is likely that many of our insurance cases discuss the rule of construing ambiguous contracts against the insurer without explaining the role that extrinsic evidence plays in construction because extrinsic evidence of the parties’ intent is rarely available to resolve the types of ambiguities that arise in insurance contracts. But in this case, Washington National desires to introduce extrinsic evidence explaining how the automatic increase applies, such as marketing evidence and evidence of the insureds’ understanding.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS.
    No. SC11-945.
    Supreme Court of Florida.
    July 3, 2013.
   PER CURIAM.

Previously in this case, the Court adopted revisions to twenty-six Florida Supreme Court Approved Family Law Forms in response to legislation amending chapter 61, Florida Statutes. In re Amendments to the Florida Supreme Court Approved Family Law Forms, 96 So.3d 217 (FIa.2012) (amending forms in response to legislative amendments made by chapter 2011-92, §§ 79-80, Laws of Fla. and chapter 2010-199, Laws of Fla.). The legislation affected alimony, child support, retroactive child support, child support guidelines, and income deduction orders. Other minor revisions were also made. Interested parties were given an opportunity to file comments. Id. at 218.

One comment was filed by the Florida Department of Revenue (DOR). Upon consideration of DOR’s comment, and with input from the Advisory Workgroup on the Florida Supreme Court Family Law Forms, we adopt additional amendments to the forms, as reflected in the appendix to this opinion. The amended forms are fully engrossed and ready for use. The forms may also be accessed and downloaded from the Florida State Courts’ website at www.flcourts.org/gen_public/family/ forms-jrules/index.shtml. By adoption of the amended forms, we express no opinion as to their correctness or applicability. The forms shall become effective immediately upon release of this opinion.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.901(b)(1), PETITION FOR DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR CHILD(REN) (07/13)

When should this form be used?

This form should be used when a husband or wife is filing for a dissolution of marriage and you and your spouse have a dependent or minor children) together or the wife is pregnant. You and/or your spouse must have lived in Florida for at least 6 months before filing for a dissolution in Florida. You must ñle this form if the following is true:

• You and your spouse have a dependent or minor child(ren) together or the wife is pregnant.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original with the clerk of the circuit court in the county where you live and keep a copy for your records. Because you are filing the petition in this proceeding, you may also be referred to as the petitioner and your spouse as the respondent.

What should I do next?

For your case to proceed, you must properly notify your spouse of the petition. If you know where he or she lives, you should use personal service. If you absolutely do not know where he or she lives, you may use constructive service. You may also be able to use constructive service if your spouse resides in another state or country. However, if constructive service is used, other than granting a divorce, the court may only grant limited relief, which cannot include either spousal support (alimony) or child support. For more information on constructive service, see Notice of Action for Family Cases with Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.913(a)(2), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of Procedure Form 12.913(b). If your spouse is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a) and Affidavit of Military Service, Florida Supreme Court Approved Family Law Form 12.912(b). In sum, the law regarding constructive service and service on an individual in the military service is very complex and you may wish to consult an attorney regarding these issues.

If personal service is used, your spouse has 20 days to answer after being served with your petition. Your case will then generally proceed in one of the following three ways:

DEFAULT. If after 20 days, your spouse has not filed an answer, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED. If your spouse files an answer that agrees with everything in your petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.928, or other appropriate notice of hearing form.

CONTESTED ... If your spouse files an answer or an answer and counterpetition, which disagrees with or denies anything in your petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of mediation before a final hearing may be set. You should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If your spouse files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

Special notes ...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

If you want to keep your address confidential because you are the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence, do not enter the address, telephone, and fax information at the bottom of this form. Instead, file a Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h).

With this foi'm, you must also file the following:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if you are asking that child support be ordered in the final judgment. (If you do not know your spouse’s income, you may file this worksheet after his or her financial affidavit has been served on you.)

• Affidavit of Corroborating Witness, Florida Supreme Court Approved Family Law Form 12.902Q) OR photocopy of current Florida driver’s license, Florida identification card, or voter’s registration card (issue date of copied document must be at least six months before date case is actually filed with the clerk of the circuit court).

• Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.902(f)(1), if you and your spouse have reached an agreement on any or all of the issues.

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j).

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c). (This must be filed with the petition if the petitioner seeks to establish child support. Otherwise, it must be filed within 45 days of service of the petition on the respondent.)

• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the petition on the respondent, if not filed at the time of the petition, unless you and your spouse have agreed not to exchange these documents.)

• Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(a), (b), or (c). If the parents have reached an agreement, a signed and notarized Parenting Plan should be attached. If the parents have not reached an agreement, a proposed Parenting Plan may be filed.

Parenting Plan and Time-Sharing ... If you and your spouse are unable to agree on parenting arrangements and a time-sharing schedule, a judge will decide for you as part of establishing a Parenting Plan. The judge will decide the parenting arrangements and time-sharing based on the child(ren)’s best interests. Regardless of whether there is an agreement, the court reserves jurisdiction to modify issues relating to the minor child(ren).

The judge may request a parenting plan recommendation or appoint a guardian ad litem in your case. This means that a neutral person will review your situation and report to the judge concerning parenting issues. The purpose of such intervention is to be sure that the best interests of the ehild(ren) is (are) being served. For more information, you may consult section 61.13, Florida Statutes.

A parenting course must be completed prior to entry of the final judgment. You should contact the clerk, family law intake staff, or judicial assistant about requirements for parenting courses where you live.

Listed below are some terms with which you should become familiar before completing your petition. If you do not fully understand any of the terms below or their implications, you should speak with an attorney before going any further.

Shared Parental Responsibility

Sole Parental Responsibility

• Supervised Time-Sharing

• No contact

Parenting Plan

Parenting Plan Recommendation

Time-Sharing Schedule

Child Support ... The court may order one parent to pay child support to assist the other parent in meeting the child(ren)’s material needs. Both parents are required to provide financial support, but one parent may be ordered to pay a portion of his or her support for the child(ren) to the other parent. Florida has adopted guidelines for determining the amount of child support to be paid. These guidelines are based on the combined income of both parents and take into account the financial contributions of both parents. You must file a Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and your spouse will be required to do the same. From your financial affidavits, you should be able to calculate the amount of child support that should be paid using the Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). Because the child support guidelines take several factors into consideration, change over time, and vary from state to state, your child support obligation may be more or less than that of other people in seemingly similar situations.

Alimony ... Alimony may be awarded to a spouse if the judge finds that he or she has an actual need for it and also finds that the other spouse has the ability to pay. If you want alimony, you must request it in writing in the original petition or counterpetition. If you do not request alimony in writing before the final hearing, it is waived (you may not request it later). You may request permanent alimony, bridge-the-gap alimony, durational alimony, lump sum alimony, or rehabilitative alimony.

Marital/Nonmarital Assets and Liabilities ... Florida law requires an equitable distribution of marital assets and marital liabilities. “Equitable” does not necessarily mean “equal.” Many factors, including child support, time-sharing, and alimony awards, may lead the court to make an unequal (but still equitable) distribution of assets and liabilities. Nonmar-ital assets and nonmarital liabilities are those assets and liabilities which the parties agree or the court determines belong to, or are the responsibility of, only one of the parties. If the parties agree or the court finds an asset or liability to be non-marital, the judge will not consider it when distributing marital assets and liabilities.

Temporary Relief ... If you need temporary relief regarding temporary use of assets, temporary responsibility for liabilities, parental responsibility and time-sharing with child(ren), temporary child support, or temporary alimony, you may file a Motion for Temporary Support and Time-Sharing with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(a). For more information, see the instructions for that form.

Marital Settlement Agreement ... If you and your spouse are able to reach an agreement on any or all of the issues, you should file a Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.902(f)(1). Both of you must sign this agreement before a notary public or deputy clerk. Any issues on which you are unable to agree will be considered contested and settled by the judge at the final hearing.

Parenting Plan ... In all cases involving minor or dependent child(ren), a Parenting Plan shall be approved or established by the court. If you and your spouse have reached an agreement, you should file one of the following: Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(a), Safety-Focused Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(b), or Relocation/Long-Distance Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(c), which addresses the time-sharing schedule for the child(ren). If you have not reached an agreement, a proposed Parenting Plan may be filed. If the parties are unable to agree, a Parenting Plan will be established by the court.

Final Judgment Form ... These family law forms contain a Final Judgment of Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.990(c)(1), which the judge may use if your case is contested. If you and your spouse reach an agreement on all of the issues, the judge may use a Final Judgment of Dissolution of Marriage with Dependent or Minor Child(ren) (Uncontested), Florida Supreme Court Approved Family Law Form 12.990(b)(1). You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring a final judgment with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial.

Nonlawyer ... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.902(f)(1), MARITAL SETTLEMENT AGREEMENT FOR DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR CHILD(REN) (07/13)

When should this form be used?

This form should be used when a Petition for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.901(b)(1), has been filed and the parties have reached an agreement on some or all of the issues at hand.

This form should be typed or printed in black ink. Both parties must sign the agreement and have their signatures witnessed by a notary public or deputy clerk. After completing this form, you should file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records. You should then refer to the instructions for your petition, answer, or answer and counterpetition concerning the procedures for setting a hearing or trial (final heariny ).

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see chapter 61, Florida Statutes, and the instructions for the petition and/or answer that were filed in this case.

Special notes ...

With this form you must also file a Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if not already filed.

This form does not act to transfer title to the property. Such transfer must be done by deed or supplemental final judgment.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.904(a), PETITION FOR SUPPORT UNCONNECTED WITH DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR CHILD(REN) (07/13)

When should this form be used?

This form may be used to ask the court to enter a support order if your spouse has the ability to contribute to you and your minor child(ren), but has failed to do so. You can only use this form if a dissolution of mairiage has not been filed and based upon the time-sharing schedule, you are entitled to support. If a petition for dissolution of marriage has been filed, you should file a Motion for Temporary Support and Time-Sharing with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(a), instead of using this petition. Also, if you are requesting that an order be entered for you to pay support to your spouse, you should not file this form.

This petition cannot address the issues of property, debts, or parental responsibility and time-sharing with child(ren). It only deals with alimony and child support. This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original with the clerk of the circuit court in the county where you live and keep a copy for your records. Because you are filing this petition, you are also referred to as the petitioner and your spouse as the respondent.

What should I do next?

For your case to proceed, you must properly notify your spouse of the petition. Because this petition concerns child support and alimony, you should use personal service. If your spouse is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a) and Affidavit of Military Service, Florida Supreme Court Approved Family Law Form 12.912(b). Service on a spouse who is in the military can be complicated; therefore, you may wish to consult an attorney regarding this issue.

Your spouse has 20 days to answer after being served with your petition. Your case will then generally proceed in one of the following three ways:

DEFAULT. If after 20 days, no answer has been filed, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the heai'ing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED. If your spouse files an answer that agrees with everything in your petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

CONTESTED. If your spouse files an answer or an answer and counterpetition, which disagrees with or denies anything in your petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of mediation before a final hearing may be set. Then you should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If your spouse files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see section 61.09, Florida Statutes.

Special notes ...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

With this form you must also file the following:

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j).

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d), if the case involves minor or dependent child(ren).

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c).

• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the petition on the respondent, if not filed at the time of the petition, unless you and the other party have agreed not to exchange these documents.)

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if you are asking that child support be ordered in the final judgment. (If you do not know the other party’s income, you may file this worksheet after his or her financial affidavit has been served on you.)

Alimony. Alimony may be awarded to a spouse if the judge finds that he or she has an actual need for it and that the other spouse has the ability to pay. If you want alimony, you must request it in writing in the original petition. If you do not request alimony in writing before the final hearing, it is waived (you may not request it later). You may request permanent alimony, bridge-the-gap alimony, durational alimony, lump sum alimony, or rehabilitative alimony.

Child Support. The court may order one parent to pay child support to assist the other parent in meeting the child(ren)’s material needs. Both parents are required to provide financial support, but one parent may be ordered to pay a portion of his or her support for the child(ren) to the other parent. Florida has adopted guidelines for determining the amount of child support to be paid. These guidelines are based on the combined income of both parents and take into account the financial contributions of both parents and the number of overnights the child(ren) spend with each parent. You must file a Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and your spouse will be required to do the same. From your financial affidavits, you should be able to calculate the amount of child support that should be paid using the Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). Because the child support guidelines take several factors into consideration, change over time, and vary from state to state, your child support obligation may be more or less than that of other people in seemingly similar situations.

Temporary Relief. If you need temporary relief regarding child support or temporary alimony, you may file a Motion for Temporary Support and Time-Sharing with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(a). For more information, see the instructions for that form. Final Judgment Forms. These family law forms contain a Final Judgment of Support Unconnected with Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.994(a), which the judge may use if your case is contested. You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring a final judgment with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial.

Nonlawyer. Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.904(b), PETITION FOR SUPPORT UNCONNECTED WITH DISSOLUTION OF MARRIAGE WITH NO DEPENDENT OR MINOR CHILD(REN)(07/13)

When should this form be used?

This form may be used if a dissolution of marriage has not been filed, and you are requesting alimony. If a petition for dissolution has been filed, you should file a Motion for Temporary Support with No Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(c), instead of using this petition. Also, if you are requesting that an order be entered for you to pay support to your spouse, you should not file this form.

This petition does not address the issues of property or debts. It only deals with alimony.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original with the clerk of the circuit court in the county where you live and keep a copy for your records. Because you are filing the petition in this proceeding, you are also referred to as the petitioner and your spouse as the respondent.

What should I do next?

For your case to proceed, you must properly notify your spouse of the petition. Because this petition concerns alimony, you should use personal service. If your spouse is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a) and Affidavit of Military Service, Florida Supreme Court Approved Family Law Form 12.912(b). Service on a spouse who is in the military can be complicated; therefore, you may wish to consult an attorney regarding this issue.

Your spouse has 20 days to answer after being served with your petition. Your case will then generally proceed in one of the following three ways:

DEFAULT ... If after 20 days, no answer has been filed, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED ... If your spouse files an answer that agrees with everything in your petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

CONTESTED ... If your spouse files an answer or an answer and counterpetition, which disagrees with or denies anything in your petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of me diation before a final hearing may be set. Then you should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If your spouse files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. The words that are in bold underline in these instructions are defined there. For further information, see section 61.09, Florida Statutes.

Special notes ...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

With this form you must also file the following:

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j).

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c). (This must be filed within 45 days of service of the petition on the respondent, if not filed at the time of the petition.)

• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the petition on the respondent, if not filed at the time of the petition, unless you and the other party have agreed not to exchange these documents.)

Alimony ... Alimony may be awarded to a spouse if the judge finds that he or she has an actual need for it and that the other spouse has the ability to pay. If you want alimony, you must request it in writing in the original petition. If you do not request alimony in writing before the final hearing, it is waived (you may not request it later). You may request permanent alimony, bridge-the-gap alimony, durational alimony, lump sum alimony, or rehabilitative alimony.

Temporary Relief ... If you need temporary relief regarding alimony, you may file a Motion for Temporary Support with No Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(c). For more information, see the instructions for that form.

Final Judgment Forms ... These family law forms contain a Final Judgment of Support Unconnected with Dissolution of Marriage with No Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.994(b), which the judge may use if your case is contested. You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring a final judgment with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial.

Nonlawyer ... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.943, MOTION TO DEVIATE FROM CHILD SUPPORT GUIDELINES (07/13)

When should this form be used?

Child support in Florida is determined by the child support guidelines found in section 61.30, Florida Statutes. The court, at its discretion, may raise or lower the child support guidelines amount by up to 5%. In addition, the court may raise or lower the guidelines support amount by more than 5%, if written reasons are given for the adjustment. The court may make these additional adjustments based on certain considerations, which are reflected in this form. You should review this form to determine if any of the reasons for adjusting the child support guidelines amount apply to your situation and you should complete this form only if you want the court to order more child support or less child support than the amount required by the child support guidelines.

This form should be typed or printed in black ink. After completing this form, you should file the original with the clerk of the circuit court in the county where your case is filed and keep a copy for your records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party in your ease.

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. For further information, see section 61.30, Florida Statutes.

Special notes ...

More information on the child support guidelines as well as a chart for converting income and expenses to monthly amounts if paid or incurred on other than a monthly basis is contained in the instructions to Florida Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and the Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e).

With this form you must also file the following, if not already filed:

• Florida Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c).

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). (If you do not know the other party’s income, you should file this worksheet as soon as you receive a copy of his or her financial affidavit.)

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.


text:
    Tomas ARIAS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D08-483, 3D08-598.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Carlos J. Martinez, Public Defender, and Billie J. Goldstein, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. State u Jardines, 9 So.3d 1 (Fla. 3d DCA 2008) (pending review as SC08-2101).


author: SALTER, J.

text:
    Michael F. CAVAGNARO, Sr., and Michael F. Cavagnaro, Jr., Appellants, v. The STATE of Florida, Appellee. Nos. 3D10-2220, 3D10-2141.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.

      Harvey Ziegler, Key Largo; Hirschhorn & Bieber and Joel Jirschhorn and Keith A. Pierro, Coral Gables, for appellants.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   SALTER, J.

The defendants, Michael F. Cavagnaro, Sr., and Michael F. Cavagnaro, Jr., appeal their convictions and sentences for molesting and possessing a lobster trap belonging to another and for having an improperly marked vessel. We reverse the convictions because the failure to give the jury any reasonable doubt instruction at all, though unpreserved, is fundamental error.

At the defendants’ trial, the jury charge did not include Florida Standard Jury Instruction (Criminal) 3.7, or any similar instruction. Standard Instruction 3.7 addresses such basic elements as the presumption of innocence, the state’s burden, and the right of the defendant not “to present evidence or prove anything:”

3.7 PLEA OF NOT GUILTY; REASONABLE DOUBT; AND BURDEN OF PROOF

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

The defendant is not required to present evidence or prove anything.

Whenever the words “reasonable doubt” are used you must consider the following:

It is recommended that you use this instruction to define reasonable doubt during voir dire. State v. Wilson, 686 So.2d 569 (Fla.1996).

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.
It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.
If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.

Because this error reaches “down into the validity of the trial itself,” we conclude that it was fundamental error requiring reversal. Martinez v. State, 981 So.2d 449, 455 (Fla.2008). See Jackson v. Virginia, 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (failure to instruct a jury as to the reasonable doubt standard cannot be harmless); Arizona v. Fulminante, 499 U.S. 279, 291, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1990) (“it is impossible to assess the effect on the jury of the omission of the more fundamental instruction on reasonable doubt. In addition, the omission of the reasonable doubt instruction, though a ‘trial error,’ distorts the very structure of the trial because it creates the risk that the jury will convict the defendant even if the State has not met its required burden of proof.”).

In this ease, the reasonable doubt and burden of proof instruction would have addressed a basic federal and state constitutional protection afforded the defendants. This is not a case in which a truncated instruction was given (omitting, for example, only a complete and separate definition of “reasonable doubt”), as in Archer v. State, 673 So.2d 17 (Fla.1996). Nor is it a case in which an ambiguous (but recognizable) reasonable doubt instruction was given, as in State v. Wilson, 686 So.2d 569 (Fla.1996). Through inadvertence, no reasonable doubt instruction was provided orally or in written form to the jury.

The state argues first that the error was not a fundamental error because a verdict of guilty could have been obtained without the assistance of the alleged error, citing Martinez and State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). We disagree. The evidence in this record was circumstantial, and the limited eyewitness testimony was not conclusive. One of those witnesses admitted that he had a preexisting dislike for one of the defendants and a preexisting friendship with the state wildlife official to whom he reported the alleged crimes. The global positioning system (GPS) tracking evidence pertaining to the defendants’ boat demonstrated, according to the defendants’ expert, only that the boat’s track came no closer than 196 feet from the lobster traps at issue in the case. The state’s GPS witness did not rebut that analysis. Under the “totality of the record,” we conclude that fundamental error in the jury instructions has been shown. Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008).

Second, the state argues that a sufficient reasonable doubt instruction was given to the prospective jurors before jury selection:

It is your responsibility to determine if the state has proved its accusations beyond a reasonable doubt against the defendants .... At no time is it the duty of a defendant to prove his or her innocence.

This argument is also unavailing. Prospective jurors are not the sworn jurors who have actually heard the evidence and are then given all of the instructions, including the elements of the offenses. The court’s written and oral charge to the jury began by asking the jurors to “please listen to the instructions I am about to give you,” not the instructions given before jury selection. The charge also included an instruction that you must follow “these rules” in order to return a lawful verdict. The court provided a separate written copy of the written instructions to each of the six jurors for reference in the jury room during deliberations.

Third, the state argues that counsel for the state and the defense instructed the jury regarding proof beyond a reasonable doubt. This argument fails because, in the usual and proper fashion, the trial judge instructed the jury not to follow the attorneys’ instructions on matters of law:

Ladies and gentlemen, the attorneys will now present their final arguments. Please remember what the attorneys say is not evidence, nor is it an instruction on the law.

Where an erroneous malice instruction reduced the state’s burden of proof on an essential element of a charged offense, fundamental error occurred. Reed v. State, 837 So.2d 366, 369 (Fla.2002). Similarly, through what was no doubt simple inadvertence in this case, no instruction on the state’s burden of proof was provided to the jury for guidance. On the record before us, this was fundamental error.

The convictions are reversed and the cases are remanded for a new trial. This disposition makes it unnecessary to reach the remaining issues on appeal.

Reversed and remanded.

      . This is not a case in which a trial judge inadvertently skips an instruction while reading the assembled instructions; trial counsel for the state and the defendants simply did not include such an instruction in the compilation for the jury charge. Then, as the instructions were read to the jury and written copies were provided to each juror for consultation during the deliberations, neither side alerted the trial judge to the omission of the instruction.

      . Florida Standard Jury Instruction (Criminal) 3.1 (emphasis supplied).