author: ROTHENBERG, J.

text:
    LORILLARD TOBACCO COMPANY, Appellant, v. Dorothy ALEXANDER, individually and as Personal Representative of the Estate of Coleman Alexander, Appellee.
    No. 3D12-1593.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Rehearing Denied Oct. 29, 2013.

      Greenberg Traurig, P.A., and Elliot H. Scherker, David L. Ross, Julissa Rodriguez and Brigid F. Cech Samóle, Miami, for appellant.
    Law Office of Robert S. Glazier and Robert S. Glazier; The Mills Firm, P.A., and John S. Mills and Courtney Brewer, Tallahassee; The Alvarez Law Firm, and Alex Alvarez; Parker Waichman LLP, and Jordan Chaikin, Bonita Springs; Gordon & Doner, P.A., and Gary Paige, Pembroke Pines, for appellee.
    Before WELLS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Lorillard Tobacco Company (“Loril-lard”) appeals a final judgment entered after a jury verdict in favor of Dorothy Alexander (“Mrs. Alexander” or “the plaintiff’), individually and as Personal Representative of the Estate of Coleman Alexander, in this ¿⅛⅛⅛-progeny case. After a three-week trial, the jury found in favor of Mrs. Alexander on her claims against Lor-illard for strict liability, fraudulent concealment, conspiracy to commit fraud by concealment, and negligence, but found Mrs. Alexander’s husband, Coleman Alexander (“Coleman”), twenty percent comparatively liable, and awarded Mrs. Alexander $20 million in compensatory damages and $25 million in punitive damages.

Lorillard filed multiple post-trial motions, including motions seeking remittitur of the compensatory and punitive damages awards. The trial court denied all of Lor-illard’s post-trial motions except the motion for remittitur of the compensatory damages award and remitted the compensatory damages award to $10 million. After computation of comparative fault, Mrs. Alexander was awarded $8 million in compensatory damages and $25 million in punitive damages, which the trial court declined to remit. This appeal ensued.

On appeal, Lorillard basically reiterates its post-trial claims of error. Additionally, Lorillard now claims that it is entitled to a new trial on compensatory damages rather than the remittitur that it sought and received post-trial. Because we find Loril-lard’s multiple arguments on appeal without merit; the remitted compensatory damages award in the amount of $10 million and the punitive damages award in the amount of $25 million are neither excessive nor unconstitutional; and the compensatory and punitive damages awards are supported by the manifest weight of the evidence, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mrs. Alexander filed suit against Loril-lard based on the death of her husband, Coleman, from smoking-related lung cancer. The complaint included claims against Lorillard for negligence, strict liability, fraudulent concealment, and conspiracy to commit fraud by concealment, and sought compensatory and punitive damages.

During voir dire, the potential jurors were provided a list of names, including that of the plaintiffs daughter, Diane Alexander (“Diane”), and asked if they recognized any of the names. None of the jurors responded. A few days later, however, one of the jurors, Melinda Graham, recognized Diane when she saw her in the courthouse hallway. The plaintiffs counsel immediately advised the trial court of this development. Lorillard sought to have the juror removed and replaced. After interviewing Ms. Graham, the trial court denied Lorillard’s motion to remove her from the jury.

During the trial, Mrs. Alexander testified about Coleman’s smoking history, their lives together, and the final months before Coleman’s death from lung cancer. Mrs. Alexander testified that Coleman began smoking in sixth grade and smoked from one to two packs of cigarettes per day. In addition, Mrs. Alexander, a former nurse, relayed conversations she had with Coleman where she talked to him about the health hazards associated with smoking. Mrs. Alexander explained that although she tried to convince Coleman to stop smoking, up until 1985, Coleman told her that he believed smoking, particularly smoking filtered cigarettes, was safe and that he did not think the tobacco companies would make a product that would kill people. Coleman specifically told Mrs. Alexander that he had switched to Lorillard’s Kent cigarettes in 1958 because he believed they were safer than other brands because of their filter design. Finally, sometime in 1985, when Coleman began to believe that smoking was harmful, he tried to, but was unable to stop smoking, because he was addicted to cigarettes. The plaintiffs addiction expert confirmed that Coleman was addicted to cigarettes.

Mrs. Alexander also spoke of her life with Coleman, both before and after they received his lung cancer diagnosis. The Alexanders, who began dating in high school, had been married almost thirty-eight years and had raised three children when Coleman died at the age of fifty-nine. Mrs. Alexander was Coleman’s nurse and primary caretaker until his painful death in 1995. Mrs. Alexander described how Coleman suffered, and how by the time of his death, he was incontinent and could no longer move or breathe without help. At the time of Coleman’s death, Mrs. Alexander was fifty-seven years old, and although seventy-three at trial, Mrs. Alexander never dated anyone after Coleman’s death.

On the day before the jury was to begin its deliberations, the trial judge informed the parties that he would be attending a funeral during the second afternoon of jury deliberations. The judge explained that he would be available by telephone to answer any questions raised by the jury. Over Lorillard’s objections, the jury proceeded with its deliberations. At 2:03 p.m. on the second day of deliberations, while the judge was away, the jury announced that it had reached a verdict. Seven minutes later, however, at 2:10 p.m., the jury told the bailiff that it needed a few more minutes. Seventeen minutes later, at 2:27 p.m., the jury advised the bailiff that it had reached a verdict. The bailiff notified the trial judge and the judge was in the court to receive the verdict at 8:43 p.m.

The jury found against Lorillard on all claims, but found Coleman twenty percent at fault, and returned a verdict awarding Mrs. Alexander $20 million in compensatory damages and $25 million in punitive damages. Lorillard moved for a new trial on several issues and also moved for remit-titur of the compensatory and punitive damages awards. The trial court denied all motions except for Lorillard’s motion to remit the compensatory damages, which it remitted to $10 million.

DISCUSSION

First, and foremost, this Court is mindful of, and underscores, that abuse of discretion is the appropriate standard of review for all but one of the issues on appeal. Lorillard’s constitutional dial-lenge to the amount of the punitive damages award, however, is subject to de novo review. R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1071 (Fla. 1st DCA 2011) (citing Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla.2006)).

We begin, as we must, with the Florida Supreme Court decision in Engle, where the Court held that although the class-action case filed against tobacco companies and tobacco industry organizations by smokers and their survivors could not proceed as a class-action lawsuit on the issues of individual causation and apportionment of damages, certain findings on common liability would stand and would be provided res judicata effect in subsequently filed individual cases. Engle, 945 So.2d at 1254-55. Consequently, once Coleman was established as a member of the Engle class and Lorillard as one of the tobacco industry Engle defendants, the following findings were given preclusive effect in this case: (1) smoking causes certain cancers and medical conditions; (2) nicotine is addictive; (3) Lorillard placed cigarettes on the market that were defective and unreasonably dangerous; (4) Lorillard concealed or omitted material information concerning the health effects and addictive nature of smoking; (5) Lorillard agreed to conceal or omit this information with the intention that the public would detrimentally rely on the information; (6) Lorillard sold or supplied cigarettes that were defective; (7) Lorillard sold or supplied cigarettes that did not conform to the representations of fact made by Lorillard; and (8) Lorillard was negligent. Id. at 1277.

With these findings and the standard of review in mind, we now discuss the issues on appeal.

1. Whether the trial court abused its discretion by denying Lorillard’s motion to strike juror Melinda Graham.

The trial court’s determination of whether to remove a juror for non-disclosure is subject to a three-prong analysis. Tricam Indus. Inc. v. Coba, 100 So.3d 105, 112 (Fla. 3d DCA 2012) (citing Pereda v. Parajon, 957 So.2d 1194, 1197 (Fla. 3d DCA 2007)). Thus, the party seeking a new trial based on allegations that a juror failed to disclose information must demonstrate that: “(1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Tricam, 100 So.3d at 112 (quoting Pereda, 957 So.2d at 1197).

Applying this test, we find that while the information at issue was relevant and the non-disclosure was not the result of Lorillard’s lack of due diligence, the second element — concealment of information during voir dire — is missing. See, e.g., Singletary v. Lewis, 584 So.2d 634, 636 (Fla. 1st DCA 1991) (holding that a juror’s relationship or knowledge of one of the parties is material and the extent and nature of the relationship or knowledge must be determined by interviewing the juror); see also Tricam, 100 So.3d at 112 (clarifying that the “due diligence” test requires that the questions be sufficiently precise to explain the type of information which the potential juror is asked to disclose); Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000) (underscoring that information is considered to be concealed if it is “squarely asked for” and not provided). Because Lorillard failed to establish concealment, the trial court did not abuse its discretion by denying Lorillard’s motion to remove Ms. Graham.

The trial court is in the superior position to make such a finding, and this Court will not disturb the trial court’s credibility determinations. Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998) (holding that the trial court is in a superior position to weigh the evidence and determine the credibility of the witness because it has the opportunity to observe the witness testify, thus, the appellate court should not substitute its judgment for that of the trial court unless there is a lack of evidence to support the trial court’s findings). In this case, the trial court questioned Ms. Graham, found her to be credible, and made a factual finding that during voir dire, she did not conceal her acquaintance with the plaintiffs daughter. Accordingly, this Court must, and does, defer to the trial court’s credibility finding.

As part of the jury selection process, a list of names, including that of the plaintiffs daughter, Diane, was read to the jurors and they were asked if they recognized any of the names. As Ms. Graham did not recognize Diane Alexander’s name, she did not respond. Although Ms. Graham did not recognize the name “Diane Alexander,” she did recognize Diane when she saw her in the hallway at the courthouse a few days after the trial had started. Ms. Graham recognized Diane as a secretary at the school that Ms. Graham’s children had attended a few years earlier. Mrs. Alexander’s counsel informed the trial court immediately, the trial court conducted an extensive interview of Ms. Graham, including inquiry into the extent of her relationship with Diane and her ability to serve as an impartial juror, and learned that Ms. Graham’s acquaintance with the plaintiffs daughter was both casual and distant. The trial court also considered Ms. Graham’s explanation as to why she did not initially reveal this information to Lorillard’s counsel — she did not recognize the name “Diane Alexander,” and only recognized Diane when she saw her in the hallway of the courthouse after the trial had commenced — and the trial court found Ms. Graham to be credible.

Because the trial court conducted an adequate inquiry and the record supports the trial court’s factual finding that Ms. Graham did not conceal any information during voir dire, we conclude that the trial court did not abuse its discretion when it denied Lorillard’s motion to remove her from the jury.

2. Whether the trial court abused its discretion by denying Lorillard’s post-trial motion to interview Ms. Graham.

The sanctity of the jury process and the privacy of the jurors are paramount to our judicial process and are closely guarded. Rodgers v. After Sch. Programs, Inc., 78 So.3d 42, 45 (citing Schmitz v. S.A.B.T.C. Townhouse Ass’n, 537 So.2d 130, 131 (Fla. 5th DCA 1988)). Thus, juror interviews are highly disfavored and rarely granted. Id. It is an equally well-established principle of our jurisprudence that a party may not stand idly by and allow the proceedings to continue without objection and later complain of error. Rooney v. Hannon, 732 So.2d 408, 411 (Fla. 4th DCA 1999).

Lorillard’s post-trial motion to interview Ms. Graham was based on post-trial research, which Lorillard could, and should, have conducted prior to entry of the verdict. Having already raised the issue of Ms. Graham’s relationship with Diane Alexander when it first challenged Ms. Graham’s ability to serve on the jury during the trial, due diligence at that juncture would have revealed the information Loril-lard claimed to be “newly discovered post-trial.” The information Lorillard obtained post-trial was publicly and easily available, and thus it should have been obtained prior to the entry of the verdict. See Rooney, 732 So.2d at 410 (“As a general rule, if a party obtains knowledge during the progress of the trial of acts of jurors, or acts affecting them, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered having waived his objection”) (quoting E. Air Lines, Inc. v. J.A. Jones Constr. Co., 223 So.2d 832, 333-34 (Fla. 3d. DCA 1969) (emphasis in original)). Instead, Lorillard waited until it received an unfavorable verdict to do additional research of Ms. Graham. We therefore find the trial court did not abuse its discretion by denying Lorillard’s post-trial motion to interview Ms. Graham.

3. Whether the trial court’s absence during the jury’s deliberation requires a new trial.

Here Lorillard basically objects to the trial court’s absence for seven minutes — between 2:03 p.m., when the jury announced that it had reached a verdict, and 2:10 p.m., when it indicated that it needed more time. According to Loril-lard, had the trial judge been in court at 2:03 p.m., the jury would not have had seven more minutes to deliberate, and, by implication, change its verdict on this three-week trial. This argument is frivolous. The law does not require a judge to be present every minute that the jury deliberates. The only requirement is that the judge be present when there is any communication with the jury and that the judge be available to answer any questions raised by the jury. See generally Harbaugh v. State, 711 So.2d 77, 80-82 (Fla. 4th DCA 1998) (discussing several cases in which the judge’s absence during jury communications was at issue).

4. Whether the trial court abused its discretion by admitting Coleman Alexander’s statements about his smoking.

The trial court’s ruling on evidentiary issues is subject to a review for abuse of discretion. Griffin v. Ellis Aluminum & Screen, Inc., 30 So.3d 714, 717 (Fla. 3d DCA 2010).

The statements complained of by Loril-lard were admitted under the “state of mind” exception to the hearsay rule, section 90.803(3) of the Florida Statutes, (2012):

(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.
(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.

As a threshold matter, a statement admitted under this exception must relate to a material fact or issue in the case. § 90.803(3)(a)(l); Huggins v. State, 889 So.2d 743, 757 (Fla.2004) (“[A witness’] state of mind is inadmissible unless probative of a material issue.”) (emphasis added). Accordingly, statements of the de-clarant’s then-existing state of mind are admissible to prove or explain the declar-ant’s subsequent conduct or to prove the declarant’s state of mind at the time that the statement was made or at any other time, but only when such a state is an issue in the action.

Lorillard complains of testimony by Mrs. Alexander relaying her conversations with Coleman about his smoking and his responses to her efforts to encourage him to stop smoking because of the health hazards associated with smoking. Mrs. Alexander testified, in part, that when she spoke with Coleman about the health hazards related to smoking in the 1950s and 1960s, Coleman told her that he continued to smoke because: (1) Re did not think that smoking was a problem; (2) he believed Kent cigarettes were safe because of their filters; (3) he believed the tobacco companies’ representations because they knew their products best; and (4) he did not believe that the tobacco companies would make a product “that would kill” anyone.

Those statements are clearly material and relevant to a key issue in this case: Coleman’s detrimental reliance on the marketing and public relations materials produced and distributed by Lorillard and the tobacco industry in general. Similarly, the statements explained why Coleman smoked, why he chose to smoke Lorillard’s product, and why he continued to rely on the information relayed by Lorillard and other members of the tobacco industry. Additionally, Mrs. Alexander’s testimony, that Coleman switched to Kent cigarettes in 1958 and continued to smoke them through 1985 because he believed filtered cigarettes were safe, was relevant to establish Coleman’s reliance outside of the limits of the statute of repose. Since the statute of repose begins in 1982, Coleman’s belief and reliance through 1985 was relevant to show that his cause of action was not barred by the statute of repose.

Contrary to Lorillard’s argument, those statements were not after-the-fact statements of why Coleman smoked in the past, rather they were statements as to why Coleman continued to smoke at that time. Coleman’s subjective beliefs were offered to prove his subsequent conduct and to explain his continued conduct of smoking and his continued reliance on the representations made by Lorillard and the other tobacco companies.

Similar statements have been admitted in other JS'nyZe-progeny cases, and appellate courts have rejected arguments similar to those made by Lorillard as to the admissibility of the statements at issue in this case. See, e.g., Lorillard Tobacco Co. v. Mrozek, 106 So.3d 479, 480 (Fla. 1st DCA 2012) (finding that the trial court did not err in admitting “purported hearsay evidence” showing the plaintiffs state of mind and attitude about smoking decades before her death). We agree with the trial court and conclude that the statements complained of by Lorillard fall within the then-existing state of mind exception to the hearsay rule and were therefore properly admitted into evidence.

5. Whether the trial court abused its discretion by denying Lorillard’s motion for a new trial on the compensatory and punitive damages.

The jury awarded Mrs. Alexander $20 million in compensatory damages and $25 million in punitive damages. Upon Loril-lard’s motion to remit the compensatory damages, the trial court reduced those damages to $10 million. The trial court, however, found that the punitive damages award did not warrant remittitur and allowed that award to remain at the $25 million awarded to Mrs. Alexander by the jury.

DISCUSSION ON DAMAGES

A. Compensatory Damages

Lorillard claims it is entitled to a new trial on the compensatory damages because: (1) Lorillard did not expressly and specifically accept the remittitur; and (2) the trial court determined that the compensatory damages award was excessive and “seemed to be the result of prejudice or passion.”

Pursuant to Florida’s remittitur and ad-ditur statute, section 768.74 of the Florida Statutes, (2012), the trial court has the responsibility to review the amount of an award and determine if it is excessive or inadequate “in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1). “If the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.” § 768.74(2). In making its determination, the trial court is guided by the following statutory considerations:

(5) In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.74(5) (emphasis added).

(1) Lorillard’s waiver

Lorillard’s position that it is entitled to a new trial, not the remittitur it requested and received, because the trial court found that the compensatory damages award of $20 million appeared to be a result of prejudice or passion is not well-taken. To the contrary, a remittitur is the prescribed remedy for a trial court’s finding that an award may be excessive because it is indicative of prejudice, passion, or corruption. § 768.74(5)(a); Glabman v. De La Cruz, 954 So.2d 60, 63 (Fla. 3d DCA 2007) (reversing a jury award, remanding to the trial court with instructions to follow section 768.74, and ordering a remittitur because the verdict on damages was so excessive that it only could have been the result of passion or emotion). The statute expressly provides that upon making such a finding, the trial court must first order a remittitur or additur, and then, only after the party adversely affected by the change in damages does not agree, the trial court must order a new trial on the damages amount. §§ 768.74(2), (4), Fla. Stat. (2012); see also Philon v. Reid, 602 So.2d 648, 651-52 (Fla. 2d DCA 1992) (reversing trial court’s order granting a new trial on damages, remanding for the trial court to enter a remittitur, and describing the process whereby a new trial on damages may only be ordered if, and after, the remittitur is rejected), (abrogation on other grounds recognized, Ketchen v. Dunn, 619 So.2d 1010, 1013 (Fla. 2d DCA 1993)).

Because this Court hopes to discourage future attempts by tobacco industry defendants to present the same meritless argument, we specifically address and distinguish the cases cited by Lorillard to support its claim that it is entitled to a new trial on compensatory damages just because the trial court found the amount awarded by the jury may have been the result of “passion or prejudice.” First, we note that Lorillard’s reliance on Philip Morris USA, Inc. v. Naugle, 103 So.3d 944, 948 (Fla. 4th DCA 2012), is misplaced. Although in Naugle the Fourth District Court of Appeal reversed the trial court’s denial of a motion for a new trial on damages because the Fourth District concluded that remittitur could not cure the harms caused by an award that was “infected by passion and prejudice,” the Fourth District Court of Appeal strictly limited its ruling to the “unique facts” of its case and underscored that the ruling was based on the jury’s complete disregard for the trial court’s instructions. Id. (holding that a “remittitur cannot cure a jury’s disregard for [the trial court’s] instructions”).

Lorillard’s reliance on Lassitter v. Int’l Union of Operating Eng’rs, 349 So.2d 622 (Fla.1976), for that same proposition is equally misplaced. There, the “improper influences of passion and prejudice” included: the publication during the trial of many articles discussing the events leading to the trial and the trial progress with headlines like “Union Harassment Claimed in Trial” and “More Testimony Given On Union Violence;” multiple heated exchanges during the trial, including a union attorney calling one of the witnesses a liar, provoking the trial judge to threaten the attorney with jail; and evidence of union harassment of a union member who testified for Lassitter. Id. at 627. The Lassit-ter Court agreed that “the amount of the damage awards, coupled with these outside influences, was such as to shock judicial conscience [and compel a new trial on damages].” Id. at 627-28 (emphasis added). We do not find either Naugle or Lassitter to be factually analogous to the instant case, and therefore, we are not guided by those decisions.

More importantly, however, we note that Lorillard itself requested a re-mittitur of the damages awards, not a new trial on the grounds the awards were excessive, or that they were the product of inflamed passions. The trial court granted Lorillard’s request for a remittitur and reduced the compensatory award in half, from $20 million to $10 million. And although Lorillard was seeking a greater reduction, it did not object to the amount of the remittitur when it was granted. Because Lorillard requested and received a remittitur and failed to object to the remitted amount or to request a new trial on that ground, we conclude Lorillard is estopped from now arguing that it is entitled to a new trial on damages on this ground. See Grosso v. Fid. Nat’l Title Ins. Co., 983 So.2d 1165, 1172-73 (Fla. 3d DCA 2008) (holding that a party may not make one claim or take one position in a judicial proceeding and then take a contrary or inconsistent position in a subsequent proceeding).

(2) The remitted amount

Compensatory damages are intended to redress or compensate for a concrete loss. R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 311 (Fla. 1st DCA 2012). Where the loss is of a non-economic nature, however, such as for mental pain and anguish and for loss of consortium, the valuation is even more difficult. Id. Because no formula can determine the value of such a loss, great deference is given the jury’s estimation of the monetary value of the plaintiffs mental and emotional pain and suffering. Id.

While non-economic damages are inherently difficult to measure, the jury and the trial court, who had the unique opportunity to observe Mrs. Alexander and to hear and consider all the evidence presented during the three-week trial, certainly were in a position to evaluate and determine the intensity and weight of Mrs. Alexander’s loss and to place a monetary value on that loss. In this case, the jury compensated Mrs. Alexander for her mental pain and suffering as she nursed, cared for, and watched the love of her life as he became incontinent and unable to move or breathe. The jury had the opportunity to watch and listen to Mrs. Alexander talk about Coleman, to hear about their lives together and their dreams for the future, and to see her pain and loss as it was reflected in her countenance. Based on its observation, and on the evidence presented at trial, the jury determined that Mrs. Alexander’s mental pain and loss of consortium with her husband of almost thirty-eight years had a value of $20 million. The trial judge, who also was able to observe Mrs. Alexander and review all the evidence presented by both parties, applied the mandates of section 768.74 to remit the compensatory damages award to $10 million.

Similar, or greater, amounts of compensatory damages have been entered against tobacco companies in cases with similar facts. See, e.g., Townsend, 90 So.3d at 307 (upholding an award of $10.8 million for compensatory damages to the widow of a smoker); Philip Morris USA Inc. v. Cohen, 102 So.3d 11, 19 (Fla. 4th DCA 2012) (upholding a $10 million compensatory damages award to smoker’s widow); Philip Morris USA, Inc. v. Kayton, 104 So.3d 1145, 1147 (Fla. 4th DCA 2013) (upholding an $8 million compensatory damages award).

Most notably, the facts in Townsend, affirming a compensatory damages award of $10.8 million to the widow of a smoker, are almost identical to those in the instant case. Mrs. Townsend, like Mrs. Alexander, had married young and was married for thirty-nine years when her husband died from smoking-related lung cancer at fifty-nine years old. Also like Mrs. Alexander, Mrs. Townsend never remarried after her husband’s death. After reviewing Mrs. Townsend’s testimony, in which she described her husband’s pain and suffering as she cared for him during the last six months of his life, Florida’s First District Court of Appeal found that the compensatory damages award of $10.8 million was supported by the facts of that case. The court underscored that while the $10.8 million awarded to Mrs. Townsend for compensatory damages might be at the “outer reasonableness” for such a case, it was not beyond reason and, therefore, the appellate court found no abuse of discretion in the trial court’s refusal to second-guess the jury’s award. Townsend, 90 So.3d at 312; see also Cohen, 102 So.3d at 19 (affirming a $10 million compensatory damages award on evidence “nearly identical to the evidence relied upon ... in Townsend ”).

The trial court is in the best position to determine whether the compensatory damages award is excessive. See § 768.74(6) (underscoring the trial court’s discretionary authority to review the damage amounts awarded by the jury in light of the “fundamental precept of American jurisprudence ... that such actions should be disturbed or modified with caution and discretion”). Accordingly, because the evidence presented at trial, which has already been addressed in this opinion, “bears a reasonable relation to the amount of damages proved and the injury suffered,” we conclude the remitted $10 million compensatory damages award was not excessive. Townsend, 90 So.3d at 311 (quoting § 768.74(5)); Cohen, 102 So.3d at 18 (“[A jury] verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”) (quoting Aills v. Boemi, 41 So.3d 1022, 1027-28 (Fla. 2d DCA 2010)).

B. Punitive Damages

Lorillard claims the jury’s $25 million punitive damages award was: (1) tainted by the evidence admitted as to the actions of other tobacco companies; (2) unconstitutionally excessive; and (3) fueled by prejudice or passion based on the excessive compensatory jury award. We disagree with Lorillard, and conclude that the punitive damages award was: (1) based on Lorillard’s own conduct, including its participation as a co-conspirator; (2) neither unconstitutionally nor otherwise excessive; and (3) well-within an acceptable ratio to the compensatory damages award.

(I) The punitive damages award was not improperly based on the actions of other tobacco companies.

Lorillard contends that the punitive damages award was tainted by the plaintiffs reliance on the actions of other tobacco companies. This argument is without merit. The record reveals that the trial court instructed the jury that in determining whether punitive damages were justified, the jury could only consider damages caused by Lorillard’s conduct and could only punish Lorillard for harms it caused. Based on those instructions, the jury found that Lorillard was responsible for Mrs. Alexander’s damages and punished Lorillard for its own conduct.

Lorillard’s argument is also without merit because Mrs. Alexander’s complaint included claims for fraudulent concealment and conspiracy to commit fraud by concealment. Pursuant to Engle, the elements of fraudulent concealment and conspiracy to commit fraudulent concealment were established and are to be given res judicata effect. Engle, 945 So.2d at 1276-77. Accordingly, once Lorillard was identified as an Engle defendant, Lorillard’s participation in the conspiracy with the other Engle defendants was established as a matter of law. Id.

Notably, Engle established that tobacco companies like Lorillard “concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.” Id. at 1277. Furthermore, the Engle Court found that the members of the tobacco industry, which includes Lorillard, “agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.” Id. Accordingly, to prevail on the fraudulent concealment and conspiracy claims, Mrs. Alexander was only required to show that Coleman relied on the deceptive statements made by Lor-illard and the other members of the conspiracy (“other tobacco companies”). See Kayton, 104 So.3d at 1150.

We also note that the law regarding conspiracy is well-settled, and provides that an act done in pursuit of a conspiracy by one conspirator is an act for which each other conspirator is jointly and severally liable. See Nicholson v. Kellin, 481 So.2d 931, 935 (Fla. 5th DCA 1985). “Conspiracy is not a separate or independent tort but is a vehicle for imputing the tortious acts of one coconspirator to another to establish joint and several liability.” Ford v. Rowland, 562 So.2d 731, 735 n. 2 (Fla. 5th DCA 1990) (citing Nicholson, 481 So.2d at 935).

The evidence submitted at trial, which included the deceptive statements made by Lorillard and its co-conspirators upon which Coleman relied to continue smoking Lorillard’s product until 1985, when he first believed that cigarette smoking (even with filters) was harmful, clearly established direct and active participation by Lorillard. For example, as early as 1953, when the tobacco industry became aware of the health concerns associated with use of its products, Lorillard met with other industry leaders in New York and they decided to fight the evidence by embarking on an aggressive public relations campaign rather than admitting that the scientific evidence revealed that smoking cigarettes caused lung cancer. Within weeks of this meeting, the industry published a statement to the public, known as the Frank Statement, denying that smoking was the main cause of lung cancer. Lorillard was a signatory to the Frank Statement, which also falsely claimed that many of the health claims against tobacco had been abandoned due to lack of evidence.

The tobacco industry compounded the damage caused by its misrepresentations when it told the public that the industry would conduct its own scientific research and would warn the public if it was determined that there were cancer-causing agents in cigarettes. To that end, the Tobacco Industry Research Committee and, subsequently, the Tobacco Institute were launched for the specific purpose of creating a controversy about whether smoking was harmful, to interject doubt about the hazards of smoking, and to confuse the public. The evidence at trial showed that Lorillard was involved in the creation of the Tobacco Institute in 1968 and that leading corporate officers of Lor-illard served in leadership roles for these tobacco industry organizations. In that capacity, Lorillard conspired with the other tobacco companies to create doubt and mislead the public.

Lorillard and the Tobacco Institute continued to dispute the claims that cigarettes were addictive and hazardous. In the 1970s, for example, the chairman of the Tobacco Institute said on television that “we do not believe that cigarettes are hazardous.” In 1988, when ABC asked Loril-lard to appear on 20/20, Lorillard referred ABC to the Tobacco Institute, whose representative said “we don’t know” whether cigarette smoking causes cancer. In the 1990s, the head of Lorillard stated that he did not believe that cigarettes caused cancer. In 1994, the head of Lorillard testified under oath before Congress that he did not believe nicotine was addictive. It was not until 2000 that Lorillard first admitted that cigarettes cause lung cancer and are addictive.

The evidence presented at trial further highlighted Lorillard’s duplicity and Coleman’s reliance on Lorillard’s statements. In 1952, for example, when Lorillard introduced its new filtered Kent cigarette, Lor-illard represented to the public that filtered cigarettes reduced the risk to smokers and reassured the public that Kent cigarettes were safe. Mrs. Alexander testified that Coleman took those misrepresentations to heart, and actually chose to smoke Kent cigarettes because he considered them to be safe due to their filters. Mrs. Alexander testified that Coleman relied on these representations at least until 1985, when he first began to believe that cigarettes were harmful and tried to stop smoking, but could not because he was addicted.

Unlike compensatory damages, which are intended to redress a concrete loss, punitive damages, like criminal penalties, are intended to punish past conduct and to deter future behavior. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Based on the foregoing facts and evidence presented at trial, we conclude that the jury’s decision to award punitive damages against Lorillard was supported by ample evidence of Lorillard’s own conduct and, in compliance with the trial court’s instructions to the jury, was based on the harms caused to Coleman by Lorillard — individually and as a co-conspirator with the other tobacco companies.

(2) The $25 million punitive damages award is not unconstitutionally excessive in light of a $10 million remitted compensatory damages award.

Lorillard’s second challenge to the punitive damages amount is that the award is “unconstitutionally excessive.” We disagree with Lorillard, and find that the punitive damages award at issue passes constitutional muster under both the guidelines established by the United States Supreme Court and those established by Florida law.

In contrast to all the other issues raised in this appeal, our review of Lorillard’s constitutional challenge to the amount of the punitive damages award is de novo. Engle, 945 So.2d at 1263; Martin, 53 So.3d at 1071. Importantly, because the punitive damages award falls well within the parameters set forth in section 768.73(l)(a) and (b), which permits an award of punitive damages in amounts of up to three and four times that of compensatory damages, the award is presumed to be constitutionally permissible under Florida law. § 768.73(l)(a), (b)(2); see also Cohen, 102 So.3d at 16 (explaining that while no bright-line rule exists, single-digit ratios are more likely to comport with constitutional due process rights) (citing Engle, 945 So.2d at 1264-65); Martin, 53 So.3d at 1070 (holding that section 768.73 creates a rebuttable presumption that a punitive damages award that exceeds a three to one ratio is excessive); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424-25, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (holding that punitive damages should rarely exceed a single-digit multiple of compensatory damages).

In this case, the jury awarded Mrs. Alexander $20 million in compensatory damages, which the trial court later remitted to $10 million, and $25 million in punitive damages, which the trial court found to be reasonable and supported by the evidence. Therefore, regardless of whether we compute the ratio of the amount of the punitive damages award to the compensatory damages award before the remittitur, resulting in a ratio of 1.25 to 1, or after the trial court’s remittitur of the compensatory damages award to $10 million, a 2.5 to 1 ratio, the award does not exceed the parameters of section 768.73 or of the United States Constitution. Townsend, 90 So.3d at 314 (computing the ratio of punitive to compensatory using the pre-apportionment amount of compensatory damages); Martin, 53 So.3d at 1071 (same); see, e.g., R.J. Reynolds Tobacco Co. v. Townsend, 118 So.3d 844, 2013 WL 2631879, 38 Fla. L. Weekly D1320 (Fla. 1st DCA June 13, 2013) (affirming a punitive to compensatory damage ratio of 1.85 to 1); Kayton, 104 So.3d at 1152 (approving a punitive to compensatory damages award ratio of 2 to 1); Martin, 53 So.3d at 1172 (approving a punitive to compensatory damages award ratio of 7.58 to 1); Campbell, 538 U.S. at 424-25, 123 S.Ct. 1513.

Under Florida law, a punitive damages award must satisfy three criteria in order to pass constitutional muster:

(1) “the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct;” (2) the award “bears some relationship to the defendant’s ability to pay and does not result in economic castigation or bankruptcy to the defendant;” and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded.

Martin, 53 So.3d at 1072 (quoting Engle, 945 So.2d at 1263-64). We easily dispose of the second requirement, since Lorillard has not claimed, nor can it claim, that this award will cause the multi-billion dollar company financial ruin.

Of the three factors weighing in our analysis, “the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” BMW of N. Am., Inc., 517 U.S. at 575, 116 S.Ct. 1589. As to that factor, we conclude the $25 million punitive damages award is supported by the manifest weight of the evidence and is not “out of all reasonable proportion to the malice, outrage, or wantonness of [Lorillard’s] tortious conduct.” Id. In measuring the reprehensibility of a defendant’s conduct the Court may consider whether:

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Campbell, 538 U.S. 408 at 419, 123 S.Ct. 1513, 155 L.Ed.2d 585.

As detailed in our earlier discussion on whether the punitive damages award was based on conduct by other tobacco companies, we conclude that this record is replete with evidence of Lorillard’s conduct, which the jury and the trial court could find sufficiently reprehensible to warrant the imposition of sanctions in the form of the $25 million punitive damages award. The plaintiff provided more than sufficient evidence to show Lorillard’s conduct, both individually and as a member of the tobacco industry, of continuous, repeated, and aggressive attempts to discredit the scientific research revealing the harmful and addictive nature of cigarettes and to cast doubt on the validity of the scientific research by mounting advertising and public relations campaigns. The plaintiff similarly provided evidence of more than a half-century of Lorillard’s reckless disregard of the scientific findings and of its indifference to the potential physical harm to consumers caused by its product for its own purely economic gain. Surely, the manifest weight of the evidence against Loril-lard and its co-conspirators “evinced an indifference to or a reckless disregard of the health or safety of others.” Id.

This Court’s view that the punitive damages award of $25 million is not constitutionally excessive is reflected and confirmed by the multiple punitive damage awards imposed by our sister courts in Engle-progeny cases with similar facts. See, e.g., R.J. Reynolds Tobacco Co. v. Townsend, 118 So.3d 844, 2013 WL 2631879, 38 Fla. L. Weekly D1320 (finding punitive damages award in the amount of $20 million did not violate constitutional due process); Kayton, 104 So.3d at 1152 (approving a $16 million punitive damages award); Martin, 53 So.3d at 1072 (finding that a $25 million punitive damages award even with a ratio of 7.58 to 1 to compensatory damages in the amount of $3.3 million did not violate due process by underscoring that neither the Florida Supreme Court nor the United States Supreme Court have adopted a bright-line ratio limit that a punitive damages award must meet in order to be considered constitutional).

Based on the foregoing facts and authorities, we hold that the $25 million punitive damages award in this case was not unconstitutionally excessive.

Affirmed.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1254-57 (Fla.2006).

      . See, e.g., Bauta v. State, 698 So.2d 860, 861— 62 (Fla. 3d DCA 1997) ("The decision whether to dismiss any or all jurors lies in the sound discretion of the trial judge.”) (quoting
        United States v. Jones, 696 F.2d 479, 492 (7th Cir.1982)); Hudson v. State, 992 So.2d 96, 107 (Fla.2008) ("We review a trial court’s decision to admit evidence under an abuse of discretion standard.”); Glabman v. De La Cruz, 954 So.2d 60, 62 (Fla. 3d DCA 2007) ("[A] trial judge’s decision to grant or deny remittitur ‘comes to us properly boxed in the wide discretion of the trial court ... carefully wrapped in presumption of correctness and securely tied with the strong cord of a jury verdict.' ”) (quoting Smith v. Goodpasture, 179 So.2d 240, 240-41 (Fla. 2d DCA 1965)).

      . Citing to Olivas v. Peterson, 969 So.2d 1138 (Fla. 4th DCA 2007), Lorillard alleges that section 768.74 does not require an express objection to a remittitur in order to preserve entitlement to a new trial under the statute. This misrepresents Olivas, which explicitly states that entitlement to a new trial requires that the record clearly evidence that the party seeking a new trial did not consent to a remit-titur or additur. The court in Olivas found clear record evidence that the parties did not agree to a remittitur when the parties immediately disagreed with the remitted amount and argued that a new trial was the only truly appropriate remedy. Id. at 1140. The record here does not clearly or even impliedly evidence that Lorillard rejected the remittitur. The record only reveals that Lorillard's counsel objected to the $20 million award as excessive and asked the trial court to consider other awards upheld by appellate courts. Lorillard’s counsel expressed that the award should be remitted to below $10.8 million (the amount awarded in R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 311 (Fla. 1st DCA 2012)) and, in his opinion, "substantially less than $10.8 million,” and concluded the hearing on remittitur by saying that he would leave it in the court’s hands. Most tellingly, however, when the remitted amount was announced, Lorillard made no objection to the court’s ruling. Contrary to the record in Oli-vas, this record does not evidence any objection to the remitted award.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    John CISKO, as personal representative of the Estate of Frederick Anthony Cisko, and John Doe, Appellants, v. DIOCESE OF STEUBENVILLE, Appellee.
    No. 3D12-1496.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Rehearing Denied Oct. 23, 2013.

      Herman, Mermelstein & Horowitz and Jeff Herman, Miami, for appellants.
    Gaebe, Mullen, Antonelli & DiMatteo and Elaine D. Walter, Michael A. Mullen and Joseph M. Winsby, Coral Gables, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

John Cisko, as personal representative of the Estate of Frederick Anthony Cisko, and John Doe appeal the entry of final summary judgment based on the determination that the statute of limitations bars their negligence claim against the Diocese of Steubenville. We affirm.

In May 2009, the appellants sued the Diocese for negligence related to physical and sexual abuse they allegedly suffered between 1966 and 1967 by two priests under the Diocese’s supervision. The complaint alleges the events produced traumatic amnesia that blocked their memory of the abuse until May 2005. The Diocese moved for summary judgment, claiming the four-year statute of limitations barred the action. See § 95.11(3)(a), Fla. Stat. (2006). The appellants argued the action was permissible under the delayed discovery doctrine as applied in Hearndon v. Graham, 767 So.2d 1179 (Fla.2000). The trial court concluded Heam-don did not apply to a negligence action and entered summary judgment. It reasoned the Supreme Court intended to limit Heamdon to intentional tort actions against the perpetrator of childhood sexual abuse. We agree and affirm.

A plain reading of Heamdon makes clear the holding is limited to its specific historical and procedural facts. The plaintiff in Heamdon brought an intentional tort action against her stepfather for sexual abuse she suffered by him as a child. Id. at 1181. She alleged the trauma caused her to suppress her memory of the events for many years, only recalling them later as an adult. Id. The trial court and the district court of appeal determined the statute of limitations barred her action. Id. at 1181-82. The Florida Supreme Court, however, allowed the action to stand under the delayed discovery doctrine based on the plaintiffs allegations of traumatic amnesia. Id. at 1186. The opinion strongly suggests the holding hinges not only on these specific allegations but also on the specific cause of action: a suit for intentional tort against the perpetrator. See id. at 1186 (“We therefore hold that the delayed discovery doctrine applies to the accrual of the instant came of action based on a claim of childhood sexual abuse accompanied by traumatic amnesia .... ” (emphasis added)).

This reading finds further support in the Court’s statements in Davis v. Monahan, 832 So.2d 708 (Fla.2002). There, the Court explained the narrow application of Heamdon and stated it was limited to its specific facts. It described Heamdon as “where we applied the delayed discovery doctrine to intentional torts arising from childhood sexual abuse of the plaintiff.” Id. at 709. The Court further explained its considerations in reaching that holding:

While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Heamdon, we did so only after considering the unique and sinister nature of childhood sexual abuse.... We also considered the Legislature’s endorsement in amending section 95.11(7), Florida Statutes (1999), to include intentional torts based on abuse....

Davis, 832 So.2d at 712.

Here, as in Davis, there is no statutory endorsement. In fact, in more than ten years since enacting section 95.11(7), the legislature has not extended the limitations period to causes of action other than intentional torts. Our holding today also accords with the Fourth District Court of Appeal’s interpretation of section 95.11(7) and Heamdon. See Doe v. Sinrod, 90 So.3d 852, 854 (Fla. 4th DCA 2012) (declining to apply tolling provisions under section 95.11(7), Fla. Stat. (2011), to negligence action against school board based on alleged sexual abuse by school board employee). Although the appellants make compelling arguments, we conclude the requested relief is a matter for legislative consideration.

Affirmed.

      . We note that the Court refers to the plural "causes of action” although Heamdon involved a single allegation of intentional tort. See Hearndon, 767 So.2d at 1181 (discussing the trial court’s determination that "the alleged cause of action” was time-barred). In light of the Court’s reiterations that Heamdon is limited to its specific facts, we decline to interpret this statement as suggesting otherwise.


author: PER CURIAM.

text:
    Alina NUNEZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D13-36.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Rehearing Denied Nov. 5, 2013.
    Duboff Law Firm, and Kenneth R. Du-boff, North Miami, for appellant.
    Methe & Rockenbach, P.A., and Kara Berard Rockenbach and Kristi Bergemann Rothell, West Palm Beach, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ergas v. Universal Prop. & Cas. Ins. Co., 114 So.3d 286 (Fla. 4th DCA 2013).


author: WOLF, J.

text:
    SHANDS JACKSONVILLE MEDICAL CENTER, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, and Orange Park Medical Center, Inc., Appellees. Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, and Bayfront Medical Center, Inc., Appellant, v. State of Florida, Department of Health and HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point and HCA Health Services Of Florida, Inc., d/b/a Blake Medical Center, Appellees. St. Joseph’s Hospital, Inc., d/b/a St. Joseph’s Hospital, Appellant, v. State of Florida, Department of Health, et al, Appellees.
    Nos. 1D12-2998, 1D12-3451, 1D12-3453.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2013.
    Rehearing Denied Oct. 21, 2013.

      Seann M. Frazier of Parker Hudson Ra-nier Dobbs, LLP, Tallahassee, for Appellant Shands Jacksonville Medical Center, Inc.; Jeffrey A. Frehn and Angela Miles of Rady Thomas Yon & Clark, P.A., Tallahassee, for Appellant Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, and Bayfront Medical Center, Inc.; and Karen A. Putnal and Robert A. Weiss of Moyle Law Firm, P.A., Tallahassee, for Appellant St. Joseph’s Hospital, Inc. d/b/a St. Joseph’s Hospital.
    Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee, for Appellee, Department of Health; Stephen A. Ecenia, R. David Prescott, and Richard M. Ellis of Rutledge Ecenia, P.A., Tallahassee, for Appellees Orange Park Medical Center, Inc., HCA Health Services of Florida, Inc. d/b/a Regional Medical Center Bayonet Point and Blake Medical Center.
   WOLF, J.

The above-styled cases are consolidated for purposes of this opinion. Appellants are all hospitals with existing trauma centers that petitioned for formal administrative hearings to contest the Department of Health’s (DOH) granting of provisional licenses to nearby hospitals, appellees, to operate new trauma centers. In case 1D12-2998, Shands Jacksonville Medical v. Orange Park Medical Center and State of Florida, Department of Health, appellant Shands Jacksonville Medical (Shands) challenged a provisional license granted to Orange Park Medical Center (Orange Park). In 1D12-3451, Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, and Bayfront Medical Center, Inc. v. State of Florida, Department of Health and HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point and HCA Health Services of Florida, Inc., d/b/a Blake Medical Center, appellants Bayfront Medical Center (Bayfront) and Tampa General Hospital (Tampa General) challenged provisional licenses granted to appellees Regional Medical Center Bayonet Point (Bayonet Point) and Blake Medical Center (Blake). In 1D12-3453,St Joseph’s Hospital, Inc., d/b/a St. Joseph’s Hospital v. State of Florida, Department of Health, et al., appellant St. Joseph’s Hospital (St.Joseph’s) also challenged the provisional license for Bayonet Point. These petitions were all consolidated below and dismissed by DOH for lack of standing.

We determine that DOH erred in dismissing the challenges for lack of standing because the substantial interests of the existing trauma care centers are within the zone of interest protected by the trauma care statutes, which require DOH to consider the impact that new trauma centers will have on existing trauma centers. We also find the intent to issue a provisional license is a proposed final agency action that existing trauma centers have a right to challenge. See Save Our Creeks v. State of Fla. Fish & Wildlife Conservation Comm’n, 112 So.3d 128 (Fla. 1st DCA 2013).

As noted above, each of the appellants, hospitals with existing trauma centers, alleged in their petitions that their substantial interests were being affected by DOH’s decision to grant provisional trauma center licenses to the applicants. In particular, they realleged the factual findings of an administrative law judge in a rule challenge they previously filed against DOH. In that prior proceeding, appellants challenged rule 64J-2.010 of the Florida Administrative Code, which regulated the apportionment of trauma centers across the state.

After a formal hearing on the rule challenge, the ALJ in that case determined that appellants’ rights would be substantially affected if appellees’ trauma center applications — which were pending at that time — were granted pursuant to the rule. See Bayfront Med. Ctr., Inc., et al. v. Dep’t of Health, Case No. 11-2602RX (Fla.2011) (final order), available at http://doah.state. fl.us/ROS/2011/11002602.pdf [hereinafter Rule Challenge Final Order], The ALJ found “because of the intensity of resources that must be devoted to a trauma center, hospitals generally lose money in their operation.” Id. at 41. Specifically, the ALJ found in 2010, appellant Tampa General’s trauma center had a net loss of $15.7 million; Bayfront’s trauma center lost $8 million; Shands’ trauma center lost $2.7 million; and St. Joseph’s trauma center lost $8.8 million. Id. The ALJ found if appellees’ applications for new trauma centers were granted, these losses would increase. Id. at 45. DOH protocol requires that trauma patients be taken to the closest trauma center. Thus, the ALJ found the new trauma centers would divert patients and revenue away from the existing centers. The ALJ found appellant Bayfront would lose approximately 400 trauma patients a year, which would reduce its profit margins by at least $2.3 million annually. Id. Tampa General would lose 120 patients and over $1 million annually, and St. Joseph’s would lose between 149 to 307 patients annually. Id. Additionally, though appellee Orange Park was not a party to the rule challenge, the ALJ found that if Orange Park’s pending application were approved, Shands would lose 25 percent of its patients and it would lose an additional $6-7 million, for a total of $10 million annually. Id. at 46.

In addition to financial loss, the ALJ found the new trauma centers would cause non-economic injury. The ALJ explained that trauma centers were required to have numerous different kinds of physicians and specialists on call at all times. The ALJ found that “the approval of new trauma centers in relatively close proximity to existing centers will result in increased competition for scarce surgical subspecialists.” Id. at 46. Specifically, the ALJ found the new trauma centers were “likely to increase the difficulty and escalate the cost of ensuring adequate on-call specialty physician coverage for the [appellants’] hospitals and to adversely affect their ability to retain highly skilled nurses, technicians, and other trauma program staff.” Id. at 46-47. Thus, the ALJ concluded appellants demonstrated injury in fact under the Agrico test because the approval of the new trauma centers would “result in an immediate reduction in trauma patient volume as well as increased staffing challenges.” Id. at 50.

In this case, appellees do not contest that appellants will suffer these injuries. However, they argue these injuries are economic in nature and, therefore, insufficient unless the injuries are within the zone of interest protected by statute. Thus, whether or not these injuries are protected by the zone of interest of the relevant trauma center statutes is the crucial issue here.

i. Legislative History and Rule 6IJ — 2.010

The legislative history of the trauma care statutes is outlined in a report prepared by DOH which was directed by the 1998 appropriations bill. Fla. Dep’t of Health, Trauma System Report “Timely Access to Trauma Care” (1999). This report was submitted in this case by appellants below. The report explained that in the early 1980’s, the Legislature passed trauma care legislation that permitted the establishment of trauma care centers by application; however, “there was not a system approach to trauma care.” Id. at 3. In the mid-1980’s there were thirty-three trauma centers in Florida; however, by 1988, there were only twelve. The report stated the cause of this drop was “the cost of providing trauma care and competition for scarce resources.” Id. From 1987 to 1990, multiple studies were conducted, and a proposal was generated for the state to subsidize trauma centers.

The report noted that in 1990, the Legislature passed comprehensive legislation to regulate and partially subsidize trauma centers. Id. at 4; see also Ch. 90-284, Laws of Fla. In what was later codified as section 395.402, the Legislature created nineteen trauma service areas in the state; each service area would have at least one trauma center, with not more than forty-four centers statewide. See Ch. 90-284, § 5, Laws of Fla.; § 395.033, Fla. Stat. (1991) (renumbered as § 395.402 by ch. 92-289, Laws of Fla.). A related statute, later codified as section 395.4025, directed DOH’s predecessor to establish an “approximate number of state-sponsored trauma centers needed to ensure reasonable access to high quality services” within each trauma service area. See Ch. 90-284, § 6(1), Laws of Fla.; § 395.0335(1), Fla. Stat. (1991) (renumbered as § 395.4025 by ch. 92-989, Laws of Fla.) (emphasis added). This section also set forth a list of some of the criteria to be considered in reviewing trauma center applications, including whether the hospital had sufficient facilities and personnel. See Ch. 90-284, § 6(2)(d), Laws of Fla.; § 395.0335(2)(d), Fla. Stat. (1991) (renumbered as § 395.4025 by ch. 92-989, Laws of Fla.) (emphasis added). Further, this section required that new facilities “shall be located in a trauma service area which has a need for such a center.” Ch. 90-284, § 6(5), Laws of Fla.; § 395.0335(5), Fla. Stat. (1991) (renumbered as § 395.4025 by ch. 92-989, Laws of Fla.) (emphasis added).

In response to the legislative directive, DOH’s predecessor promulgated rule 64J-2.010, Florida Administrative Code. Rule 64J-2.010 established the maximum number of trauma centers for each of these nineteen trauma service areas. In the 2011 rule challenge, the ALJ found that DOH implemented this rule by finding that need existed if one of the nineteen trauma service areas had less than the maximum number of allotted trauma centers without referencing any additional data or analysis. Rule Challenge Final Order at 16.

ii. 2004- Statutory Revisions and Rule Challenge

In 2004, the Legislature substantially amended the trauma care statutes. See Ch.2004-259, Laws of Fla. Section 395.402 was amended to state the “Legislature recognizes the need for a statewide, cohesive, uniform, and integrated trauma system.” § 395.402(1),' Fla. Stat. (2004). Further, this section required DOH to conduct a review of the trauma system by February 2005, and every year thereafter, taking into consideration the following:

(2) ... The assessment shall:
(a) Consider aligning trauma service areas within the trauma region boundaries as established in July 2004.
(b) Review the number and level of trauma centers needed for each trauma service area to provide a statewide integrated trauma system.
(c) Establish criteria for determining the number and level of trauma centers needed to serve the population in a defined trauma service area or region.
(d) Consider including criteria within trauma center approval standards based upon the number of trauma victims served within a service area.
(e) Review the Regional Domestic Security Task Force structure and determine whether integrating the trauma system planning with interagency regional emergency and disaster planning efforts is feasible and identify any duplication of efforts between the two entities.
(f) Make recommendations regarding a continued revenue source which shall include a local participation requirement.
(g) Make recommendations regarding a formula for the distribution of funds identified for trauma centers which shall address incentives for new centers where needed and the need to maintain effective trauma care in areas served by existing centers, with consideration for the volume of trauma patients served, and the amount of charity care provided.
(3) In conducting such assessment and subsequent annual reviews, the department shall consider:
(a) The recommendations made as part of the regional trauma system plans submitted by regional trauma agencies.
(b) Stakeholder recommendations.
(c) The geographical composition of an area to ensure rapid access to trauma care by patients.
(d) Historical patterns of patient referral and transfer in an area.
(e) Inventories of available trauma care resources, including professional medical staff.
(f) Population growth characteristics.
(g) Transportation capabilities, including ground and air transport.
(h) Medically appropriate ground and air travel times.
(i) Recommendations of the Regional Domestic Security Task Force.
(j) The actual number of trauma victims currently being served by each trauma center.
(k)Other appropriate criteria.

§ 395.402(2)-(3), Fla. Stat (2004) (emphasis added). This section also required that DOH “shall allocate, by rule, the number of trauma centers needed for each trauma service area.” § 395.402(4)(b), Fla. Stat. (2004) (emphasis added).

Further, section 395.4015 required that rather than using the existing nineteen trauma service areas, DOH “shall establish trauma regions that cover all geographical areas of the state and have boundaries that are coterminous with the boundaries of the regional domestic security task forces established under s. 943.0312.” § 395.4015, Fla. Stat. (2004). Section 395.402(4) clarified that the existing nineteen service areas would remain in place until DOH completed the February 2005 assessment. Moreover, section 395.4025 was also amended in 2004 to state that “until [DOH] has conducted the review provided under s. 395.402, only hospitals located in trauma service areas where there is no existing trauma center may apply.” § 395.4025(14), Fla. Stat. (2004). Section 395.4025 also required that DOH “shall annually notify” existing trauma care centers “that [DOH] is accepting letters of intent from hospitals that are interested in becoming trauma centers.” § 395.4025(2)(a), Fla. Stat. (2004).

Further, section 395.4025 continued to require, as it did in 1991, that applicant hospitals have sufficient facilities and personnel and “be located in a trauma service area that has a need for such a trauma center.” § 395.4025(2)(c), (5), Fla. Stat. (2004). Additionally, subsection (7) stated that:

(7) Any hospital that wishes to protest a decision made by the department based on the department’s preliminary or in-depth review of applications or on the recommendations of the site visit review team pursuant to this section shall proceed as provided in chapter 120. Hearings held under this subsection shall be conducted in the same manner as provided in ss. 120.569 and 120.57. Cases filed under chapter 120 may combine all disputes between parties.

§ 395.4025(7), Fla. Stat. (2004) (emphasis added). These statutes remain largely unchanged today.

This court recently affirmed the ALJ’s determination that rule 64J-2.010 was invalid. Dep’t of Health v. Bayfront Med. Ctr., Inc., — So.3d -, 37 Fla. L. Weekly D2754, 2012 WL 5971201 (Fla. 1st DCA 2012). This court reasoned that although the rule purported to implement sections 395.401, 395.4015, and 395.402, the rule had not been changed since these statutes were “substantially amended.” Id. at D2755. This court noted the rule “continues to set forth nineteen trauma service areas that are not coterminous with the boundaries of the seven regional domestic security task forces.” Id. Further, this court found that DOH completed the 2005 assessment and recommended that the nineteen regions be reduced to seven regions that are coterminous with the task force regions; however, the rule was not amended to reflect this recommendation. Id. Moreover, we noted the rule was not amended to reflect that DOH is now required to conduct an annual review of the trauma regions. Id. Thus, this court concluded the rule contravened DOH’s grant of rulemaking authority and, as such, was an invalid exercise of delegated legislative authority. Id.

in. Zone of Protected Interests

Appellants argue this court should find, as the ALJ did in the rule challenge, that their substantial interests are within the zone protected by the trauma statutes. The ALJ found the approval of appellees’ new trauma centers would “result in an immediate reduction in trauma patient volumes as well as increased staffing challenges” for appellants’ centers which is the type of injury that sections 395.402 and 395.4025 were designed to protect. The ALJ reasoned section 395.402(2) required DOH to review the trauma system to determine the need for additional trauma centers by “taking into consideration specifically identified criteria and factors that directly involve and affect the substantial interests of the [appellants], including but not limited to ‘historical patterns of patient referral and transfer in an area,’ ‘inventories of available trauma care resources, including professional medical staff,’ and ‘stakeholder recommendations.’ “ Rule Challenge Final Order at 53. The ALJ found the statute’s “straightforward purpose is to assess and evaluate the state trauma system as a whole, which includes consideration of the capabilities of existing trauma centers, the availability of the resources needed to provide comprehensive trauma care, and the effect ... within a given region arising from the establishment of a new trauma center.” Id.

Additionally, the ALJ found the Legislature expressly recognized that the substantial interests of hospitals may be affected by the granting of new trauma centers in section 395.4025(7), which states that “[a]ny hospital that wishes to protest a decision made by the department based on the department’s preliminary or in-depth review of applications” may do so through a chapter 120 hearing. Whether or not section 395.4025 provides an independent basis for standing by “provision of statute” as contemplated by section 120.52(13) we need not decide here. The ALJ was correct that appellants’ injuries of economic loss and shortage of available specialists and other service providers are within the zone of interest protected by sections 895.402 and 395.4025.

Shands notes that in the past, DOH has considered the viability of existing providers in implementing the trauma statutes. Below, appellants filed a study conducted by DOH in 2010 entitled “Impact Analysis of Additional Trauma Center Within Trauma Service Area 1,” which stated its purpose was to “examine the impact on existing Escambia County trauma centers, EMS providers, and trauma patients [from surrounding counties] ... if a new trauma center were to open in Okaloosa County.” Also, they submitted a 2011 notice in which DOH approved a “Florida Trauma System Special Study” that it stated was precipitated by a “sudden increase” in trauma center applications that “has caused concern within existing trauma centers that fear the loss of patient volume to sustain professional capability and the loss of marker [sic] share and revenue generated by trauma services.” Thus, DOH approved a study “to assist the department in developing a process and evidence-based guidelines to be utilized by the department in determining the need for trauma center locations throughout the state.”

Moreover, Shands notes that in 1995, DOH granted Tampa General’s request for a formal administrative hearing to contest the approval of a proposed trauma center. That decision was also entered into the record below. Hillsborough County Hosp. Auth., d/b/a The Tampa Gen. Hosp. v. Dep’t of Health & Rehab. Servs., Case No. 94-3669 (Fla. Div. of Admin. Hearings Mar. 3, 1995) (Recommended Order and Final Order), available at http://www. doah.state.fl.us/ROS/1994/94003669.pdf. Appellants argue that this conduct is inconsistent with DOH’s current position regarding standing. Appellees argue this case has no precedential value because there was no indication in the order in that ease that the applicant hospital challenged Tampa General’s standing. However, DOH was also a party to that proceeding, and there was no indication that DOH challenged Tampa General’s standing either. In contrast here, DOH, acting as a party, moved to dismiss based on appellants’ standing, and DOH later adopted the presiding officer’s recommended order dismissing for lack of standing. Thus, appellants’ point that DOH seems to have recently changed its position on this issue is well taken.

Appellees also argue the trauma statutes do not sufficiently identify economic interests as a protected interest. Instead, they argue the trauma statutes put first priority on the needs of the patients, not the needs of the existing trauma centers. They cite section 395.40(2), which states: § 395.40(2), Fla. Stat. (emphasis added). Appellees argue that because the Legislature intends an “inclusive” trauma system that involves all hospitals “with resources to care for the injured trauma victim,” the trauma statutes do not protect the interests of the existing trauma care centers. However, based on the injuries alleged by appellants, the existing trauma centers may not continue to have the financial resources or personnel to care for injured victims if additional trauma facilities are added where there is no need. Moreover, this language in section 395.40 does not nullify the extensive language in section 395.402 which requires DOH to consider factors which would affect existing facilities, including inventories of available trauma care resources and professional medical staff, and stakeholder recommendations. In fact, section 395.402 specifically requires DOH to take into consideration “the need to maintain effective trauma care in areas served by existing centers, with consideration for the volume of trauma patients served, and the amount of charity care provided.” § 395.402(2)(g), Fla. Stat. (emphasis added).

The Legislature finds that it is necessary to plan for and to establish an inclusive trauma system to meet the needs of trauma victims. An “inclusive trauma system” means a system designed to meet the needs of all injured trauma victims who require care in an acute-care setting and into which every health care provider or facility with resources to care for the injured trauma victim is incorporated. The Legislature deems the benefits of trauma care provided within an inclusive trauma system to be of vital significance to the outcome of a trauma victim.

Further, at oral argument, appellee DOH argued that section 395.4025, which pertains to the submission and review of trauma center applications, did not permit DOH to consider need for additional trauma centers when it reviewed applications. Instead, DOH argued this section required it to grant any application that met the statutory criteria. However, section 395.4025(1) specifically requires DOH to “establish the approximate number of trauma centers needed to ensure reasonable access to high-quality trauma services.” § 395.4025(1), Fla. Stat. (emphasis added).

In addition, appellee Orange Park argues the trauma care statutes here are distinguishable from those found to protect competitors’ economic interest in Boca Raton Mausoleum, Inc. v. State, Department of Banking & Finance, Division of Finance, 511 So.2d 1060 (Fla. 1st DCA 1987). In Boca Raton, this court found an existing cemetery had standing to contest the issuance of a license for a new cemetery. Id. at 1062. The existing cemetery alleged it would suffer reduced sales of burial spaces which would result in fewer contributions to its perpetual fund. Id. at 1063. The relevant statute stated the “ ‘Legislature recognizes that purchasers of preneed burial rights or cemetery merchandise may suffer serious economic harm if purchase money is not set aside ... [to] maintain cemetery grounds.’ “ Id. at 1064 (quoting § 497.002, Fla. Stat.). Another statute directed the department to review applications for new cemeteries by considering criteria such as “‘the adequacy of existing facilities,’ “ and need based on the population growth and death rate. Id. (quoting § 497.006(3), Fla. Stat.). It also stated the department could waive the statutory minimum number of cemeteries required “ ‘[i]n order to promote competition.’ “ Id. This court found these statutes created “a zone of interest which encompasses the impact a new licensee will have on existing facilities,” and thus required the department to engage in “an evaluative function that is more than merely ministerial.” Id. at 1064-65. Thus, Boca Raton found, “such [economic] injury must be considered by the department.” Id.

Orange Park argues the statutes at issue in Boca Raton are distinguishable from the trauma statutes because they specifically contemplated economic interest and economic injury. However, as discussed above, the trauma statutes also require DOH to take into consideration the impact that new trauma centers will have on existing facilities and do not require merely a ministerial evaluation of the applications. Thus, Boca Raton supports a finding of standing here.

Additionally, Orange Park argues that this court recently distinguished Boca Ra-ton and limited it to its facts in Gadsden Jai Alai, Inc. v. State, Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 26 So.3d 68, 69 (Fla. 1st DCA 2010). In Gadsden, this court found petitioners who sought to contest the issuance of a license to a competitor lacked standing because “the permitting statutes governing the issuance of permits for quarter horse racing facilities do not contemplate consideration of the economic interests of other types of parimutuel facilities.” Id. Gadsden distinguished Boca Raton, “where the statutory permitting scheme reviewed specifically contemplated competition and impact on existing facilities would be considered.” Id. Thus, clearly Gadsden did not limit Boca Raton to its facts, but instead reiterated Boca Raton’s holding that economic interests are sufficient to demonstrate standing if the permitting scheme contemplates that the impact on existing facilities will be considered. Here, as discussed above, the trauma statutes clearly require DOH to consider the impact that new trauma centers will have on existing trauma centers.

Appellees also appear to argue that the granting of a “provisional” license is not final agency action subject to challenge by appellants. Based on the statutory provisions that allow a trauma center to operate for a significant period of time on a provisional license, and the allegations of appellants in their complaints concerning the impact upon the operation of existing trauma centers, we reject this contention. See Save Our Creeks v. Fla. Fish & Wildlife Conservation Comm’n, 112 So.3d 128, 130 (Fla. 1st DCA 2013) (citing Manasota-88, Inc. v. Gardinier, Inc., 481 So.2d 948, 950 (Fla. 1st DCA 1986) (determining that “[wjhen an agency binds itself to a course of action in such a way to prevent affected parties from protecting their interests at a later date, final agency action has occurred.”)).

We, therefore, reverse the dismissal of the petitions filed by appellants and direct DOH to send the cases to the Division of Administrative Hearings for formal administrative proceedings.

REVERSED.

LEWIS, C.J., and PADOVANO, J., concur.

      . Agrico Chem. Co. v. Dep’t of Envtl. Reg., 406 So.2d 478 (Fla. 2d DCA 1981).

      . While we note that there can be a difference between being "substantially affected” for purposes of a rule challenge and having your “substantial interests” affected in the context of a licensing proceeding, we find the ALJ's determinations in the rule challenge to be persuasive in the context of this licensing proceeding. See Fla. Soc'y of Ophthalmology v. State Bd. of Optometry, 532 So.2d 1279, 1287-88 (Fla. 1st DCA 1988).


text:
    APEX CAPITAL LP, assignee of Dash Logistics, Inc., Appellant, v. CARNIVAL CORPORATION, a Panama Corp., t/a Carnival Cruise Lines, Appellee.
    No. 3D12-1869.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Rehearing Denied Oct. 29, 2013.

      Lawrence J. Roberts & Associates and David W. Smith, Coral Gables, for appellant.
    Foreman Friedman and Jeffrey E. Foreman, and Beverly D. Eisenstadt, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   SUAREZ, J.

The appellant, Apex Capital, LP (“Apex”), appeals the entry of final summary judgment in favor of the appellee, Carnival Corporation (“Carnival”), in Apex’s action to collect freight charges allegedly owed to its assignor, Dash Logistics, Inc. (“Dash”), for transportation of several shipments on Carnival’s behalf. We affirm.

I. FACTS

In 2009, Carnival and United Freight Express (“UFE”) executed a contract (the “Agreement”) to transport multiple shipments of cargo and freight commodities. Pursuant to this Agreement, Carnival would pay UFE for freight charges incurred in the transport. The Agreement permitted UFE to subcontract its contractual duties but bound any subcontractor to the Agreement as a UFE employee. Additionally, any shipment tendered pursuant to the Agreement was deemed tendered to UFE as motor carrier and subject to the Agreement. UFE also assumed responsibility for all claims liability and payments and agreed to indemnify and hold harmless Carnival. It remained liable even if it chose to subcontract.

In January 2010, Carnival tendered several shipments for transport pursuant to the Agreement. Dash ultimately carried seven of these shipments pursuant to an agreement with United Freight Brokerage Corporation (“United Freight Brokerage”). The bills of lading were issued on UFE letterhead but did not specify the carrier. Dash received the shipments at their point of origin and its representative signed the bills as driver. Dash then delivered the freight to Carnival, which signed the bills of lading acknowledging receipt in good condition. The only record evidence of Dash’s agreement with United Freight Brokerage is the Rate Confirmation Sheet it issued to Dash. Dash ultimately assigned its interest to Apex, which invoiced United Freight Brokerage for the shipments. Pursuant to the Agreement, UFE also invoiced Carnival for each shipment. Carnival, in turn, issued timely payment to UFE. However, neither UFE nor United Freight Brokerage issued payment to Apex. As a result, Apex forwarded its invoices to Carnival as shipper/consignee. When Carnival did not issue payment, Apex filed the underlying action against Carnival and United Freight Brokerage.

Carnival ultimately moved for summary judgment, alleging the Agreement with UFE relieved it of any obligation to pay freight charges to the actual carrier. The trial court denied the motion and Carnival moved for reconsideration. Apex filed a response and a cross-motion for summary judgment. The trial court ultimately denied Apex’s motion and, without making any findings of fact, granted summary judgment in favor of Carnival. Apex filed this appeal following the dismissal with prejudice of its claims against Carnival.

II. ANALYSIS

The bill of lading is the basic contract between the shipper and the carrier, and its terms and conditions bind the shipper and all connecting carriers. S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982). It can serve as both a receipt and contract for the transport of goods. King Ocean C. Amer. v. Precision Cutting Servs., 717 So.2d 507, 510 (Fla.1998). Under the uniform bill of lading, the shipper remains primarily liable for freight charges unless the parties provide otherwise on the bill of lading or by separate agreement. See S. Pac. Transp. Co., 456 U.S. at 343, 102 S.Ct. 1815. Carnival alleges it contracted UFE as a carrier and conditioned its use of subcontracting carriers on their consent to the Agreement. It thus contends Dash was merely a sub-carrier subject to the terms of the Agreement and that the bill of lading served merely as a receipt. Apex, however, alleges Dash was never bound to the Agreement. Accordingly, it urges this Court to treat the bills of lading as contracts for carriage rendering Carnival liable for the freight charges. Apex claims UFE acted merely as a broker or freight forwarder insofar as it did not receive, transport, or deliver the shipments. As such, Apex contends Carnival must bear the loss for UFE’s failure to transfer to Apex the freight charges Carnival paid to UFE. See Nat’l Shipping Co. of Saudi Arabia v. Omni Lines, Inc., 106 F.3d 1544, 1546-47 (11th Cir.1997) (holding shipper liable for double payment where shipper paid freight charges to freight forwarder but forwarder did not pay carrier).

We conclude Dash, now succeeded by Apex, was not bound by the Agreement between Carnival and UFE. Apex has provided an affidavit from Dash stating it neither knew of the Agreement nor consented to its terms. Carnival has not refuted this allegation. The question, then, becomes whether the bills of lading constituted contracts for carriage that subject Carnival to liability for double payment.

Interpreting a bill of lading presents a question of law governed by the standards applicable to contractual disputes. EF Operating Corp. v. Amer. Bldgs., 993 F.2d 1046, 1050 (3d Cir.1993). Where a carrier signs a bill of lading upon receipt, the court must review its terms to determine whether the parties intended for the bill to serve as a contract for carriage. In re Modern Bldg. Materials, Inc. Ch. 128 Receivership, 281 Wis.2d 275, 697 N.W.2d 90, 286 n. 7 (2005). The bills of lading at issue here do not explicitly identify the carrier. However, they are issued on UFE letterhead. More importantly, although Dash’s drivers signed the bills, Dash is not identified anywhere on the documents. The driver’s signature alone is insufficient to create an enforceable contract between Carnival and Dash regarding payment of freight charges. See Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1281 (11th Cir.2009) (noting that a bill of lading, like any contractual relationship, requires a meeting of the minds on all essential terms and obligations).

We thus conclude the bills of lading served merely as receipts and do not constitute actionable contracts for carriage between Dash and Carnival. Regrettably, this dispute falls into the category of cases where “one of two innocent parties will be the loser.” Jackson Rapid, Delivery Serv., Inc. v. Thomson Consumer Elecs., Inc., 210 F.Supp.2d 949, 953 (N.D.Ill.2001). Because the bills of lading did not create privity of contract between Dash and Carnival, Apex must bear the loss.

III. CONCLUSION

For the foregoing reasons, we affirm the entry of final summary judgment in favor of Carnival and the denial of Apex’s summary judgment motion.

      . Although Apex ultimately obtained a default judgment against United Freight Brokerage, both United Freight Brokerage and UFE have since dissolved.

      . A motor carrier is defined as "a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14) (2008). By contrast, a freight forwarder "plays a role in the assembly, consolidation, break bulk and distribution of shipments, assumes responsibility for the shipment from the place of receipt to the place of destination, uses carriers subject to ICC jurisdiction and may act as a carrier.” Transp. Revenue Mgmt., Inc. v. First NH Inv. Servs. Corp., 886 F.Supp. 884 (D.D.C.1995) (citing 49 U.S.C. § 10102(9) (1994)).

      . Apex focuses much of its brief on UFE's status as a carrier or broker. We note this is a fact-intensive question, as a party can qualify as a carrier where it accepts responsibility for transportation of goods regardless of who actually transports them. See Gonzalez v. J.W. Cheatham, LLC, 125 So.3d 942 2013 WL 2320804 (Fla. 4th DCA May 29, 2013). However, we decline to categorize UFE’s role in this transaction as its title is irrelevant to our decision.

      .We also reject Apex's contention that Carnival was on notice of its liability to Dash by virtue of the labeling on Dash’s vehicles. The Agreement permits UFE to employ subcontractors. Therefore, the fact that a carrier other than UFE was transporting the goods did not necessarily put Carnival on notice that the carrier was not operating under the terms of the Agreement.


author: LAGOA, J.

text:
    CASINO INVESTMENT, INC., Appellant, v. PALM SPRINGS MILE ASSOCIATES, LTD., Appellee.
    No. 3D12-2257.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Rehearing Denied Oct. 29, 2013.
    Philip D. Parrish, Miami; Richard W. Gross, Miami Lakes, for appellant.
    Coffey Burlington P.L. and Kendall B. Coffey and Kevin C. Kaplan, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   LAGOA, J.

Casino Investment, Inc. (“Casino”) appeals from a partial final summary judgment entered in favor of Palm Springs Mile Associates, Ltd. (“Palm Springs”), which permanently enjoined Casino from constructing a building on its own property. Because we hold that the trial court erred in determining that Casino’s proposed construction was barred under the Declaration of Easement as a matter of law, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Palm Springs is the owner of the Palm Springs Mile Shopping Center (“Shopping Center”). On or about April 16, 1993, Palm Springs created and recorded a Declaration of Easement (hereinafter “Easement”), which covers the entire Shopping Center property. The Easement is a reciprocal easement for parking and ingress and egress.

In 1999, Casino acquired title to a parcel contained within the Shopping Center, and in 2007 it sought to construct a freestanding 2,800 square foot building on the north end of its property. Casino’s proposed construction would occupy a portion of the parking area on its property and would eliminate approximately fifteen to twenty parking spaces. Palm Springs opposed construction of the building and filed a complaint for declaratory relief, alleging that the proposed construction violated the easement. Casino answered and filed a counterclaim. In April 2009, Palm Springs sought and obtained a temporary injunction to enjoin Casino from proceeding with construction.

In May 2012, Palm Springs filed a motion for partial summary judgment on its claim for declaratory relief. Palm Springs argued that Casino’s proposed construction violated the easement because the building would cover a significant portion of the parking area, which must remain available for parking and other access to the tenants and customers of the Shopping Center. A summary judgment hearing was held and the trial court granted Palm Springs’ motion. The trial court found that Casino’s proposed construction violated “the clear and unambiguous terms of the Declaration of Easement.” The trial court entered a declaratory judgment in favor of Palms Springs and permanently enjoined Casino from its proposed construction. This appeal timely followed.

II. STANDARD OF REVIEW

The standard of review for a summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The parties agree that the Easement provisions are unambiguous and that their effect may be determined as a matter of law. See Bryan v. Dethlefs, 959 So.2d 314 (Fla. 3d DCA 2007). “The fact that both sides ascribe different meanings to the language does not mean the language is ambiguous.” Id. at 317, n. 2 (quoting Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003) (construction of contract language can differ as to interpretation but it can still be unambiguous)).

III. ANALYSIS

At issue are two provisions of the Easement, the Impediment Provision and the Parking Provision. Both Palm Springs and Casino contend these provisions are clear and unambiguous, but Palm Springs contends they prohibit Casino’s proposed construction, while Casino argues that they do not. We agree that the provisions are clear and unambiguous, and address each provision separately.

A. Impediment Provision

The Impediment Provision provides as follows:

2. (a) In the event that a conveyed portion of the Property (the “Conveyed Portion(s)”) is contiguous to a part of the Property owned and operated by Owner, its successors and/or assigns, both parties agree that no fence or other obstruction will be erected between the Conveyed Portion(s) and the adjacent Property so as to obstruct or impede vehicular and pedestrian traffic between the two parcels of land.

Palm Springs argues that Casino’s proposed construction violates the Impediment Provision of the Easement because it constitutes an “obstruction” which would “obstruct or impede vehicular and pedestrian traffic between the two parcels of land.” Casino contends that this is an access easement and the focus of the Impediment Provision is access between Casino’s property and Palm Springs’ property; Casino therefore contends that the provision does not apply to construction that occurs solely on Casino’s property, particularly when that construction leaves access open from one end of the Shopping Center to the other, as Casino’s proposed construction would.

We find that Casino’s argument has merit. Casino’s proposed construction would have no effect upon ingress and egress, as no point of ingress and egress would be removed from the Shopping Center. The building would occupy a space at the north end of the shopping center presently occupied by a large existing planter and adjacent parking spaces. The only east/west access that extends throughout the entire shopping center is the central east/west access denominated in the record as the “existing drive.” The proposed building would not affect that access at all. Instead, the proposed construction would eliminate only a parking lane located entirely on Casino’s property; and the access points for ingress and egress and travel between the two properties remain the same. Because the proposed construction would not “obstruct or impede vehicular and pedestrian traffic between the two parcels of land,” we find that the trial court erred in concluding that, as a matter of law, the Impediment Provision of the Easement barred the proposed construction.

We turn to the second provision at issue.

B. Parking Provision

Palm Springs contends that the proposed construction also violates the Parking Provision because it would eliminate parking spaces on Casino’s property, which the Parking Provision requires “be available for use by the parties.” Casino contends that the Parking Provision does not serve as a bar to its proposed construction because it does not require Casino to maintain a particular number of parking spaces on its property, but rather, merely grants equal access to all shopping center customers and tenants of whatever parking spaces it does maintain.

The Parking Provision, which immediately follows the Impediment Provision, provides as follows:

In addition, any parties affected by this Agreement agree that the parking areas, sidewalks and “common areas” of the shopping center and of the Conveyed Portion(s) will be available for use by the parties hereto, their tenants, customers, invitees and employees, in common with each other so that, in effect, the purchaser of the Conveyed Portion(s), its tenants, customers, invitees and employees, may use the so-called “common areas” of the adjacent shopping center in common with Owner, its tenants, customers, invitees and employees; and, by the same token, Owner, its tenants, customers, invitees and employees, may use the parking areas and sidewalk areas of the Conveyed Portion(s) in common with the new owner, its tenants, customers, invitees and employees.

The clear, unambiguous language in the Parking Provision gives Palm Springs the right to use the parking areas and sidewalks of the Conveyed Portion (Casino’s property) in common with Casino, the new owner. Moreover, the Easement’s repeated use of the phrase “in common with,” makes clear that its intended “effect” was to allow the parties equal access to the parking areas located on each party’s respective property. As Casino correctly points out, the Easement makes no mention of any requirement that either party maintain a certain number of parking spaces or a certain parking configuration. See, e.g., Green Cos., Inc. of Fla. v. Kendall Racquetball Invs., Ltd., 560 So.2d 1208 (Fla. 3d DCA 1990) (stating that easement required each lot owner to provide parking spaces for the use of customers, tenants and employees, but also provided, in substance, that customers, licensees, and invitees would be able to park in any available parking space anywhere on the property). As such, we find that the trial court erred in finding that, as a matter of law, the proposed construction was barred by the Parking Provision of the Easement.

IV. CONCLUSION

Based on the foregoing, we hold that the trial court erred in ruling that, as a matter of law, Casino’s proposed construction was barred under the Easement. We find that the clear and unambiguous provisions of the Easement do not expressly bar Casino’s proposed construction. Accordingly, we reverse the trial court’s entry of partial final summary judgment in favor of Palm Springs, reverse the trial court’s permanent injunction, and remand for further proceedings.

REVERSED AND REMANDED.

      . Casino subsequently filed a Second Amended Counterclaim for Declaratory and Injunc-tive Relief, which remains pending below.

      . The trial court retained jurisdiction over Casino’s counterclaims.