text:
    Khambriel FLUKER, Petitioner, v. Edwin BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 12-1042.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 2012.
    Khambriel Fluker, in proper person.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for respondent.
    Before SHEPHERD, SALTER, and LOGUE, JJ.
   PER CURIAM.

Khambriel Fluker has petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel. Fluker asserts that his appellate counsel was ineffective for failing to argue that an instruction given to the jury was erroneous pursuant to State v. Montgomery, 89 So.3d 252 (Fla.2010). Fluker’s direct appeal was not concluded until well after Montgomery was decided. We agree that appellate counsel for the direct appeal (the Criminal Conflict and Civil Regional Counsel) was ineffective for failing to raise this issue. We therefore grant the petition and remand for a new trial.

The state asserts that an argument similar to the one it raises in its response here is being considered by the Florida Supreme Court in Daniels v. State, SC11-2170 (review granted Feb. 3, 2012) (oral argument Aug. 2, 2012). In view of this similarity, at the state’s request, we also certify the following question:

WHETHER A MANSLAUGHTER INSTRUCTION, ALTHOUGH ERRONEOUS UNDER State v. Montgomery, 39 So.3d 252 (Fla.2010), AND ITS PROGENY, BUT WHICH NEVERTHELESS, BASED ON THE FACTS AND EVIDENCE PRESENTED AT TRIAL, ENABLES THE JURY TO EXERCISE ITS JURY PARDON POWER, CONSTITUTES FUNDAMENTAL ERROR.

Petition granted; question certified; and remanded for new trial.


source: Caselaw Access Project

author: SUAREZ, J. SHEPHERD, J.,

license: Public Domain

text:
    UNIVERSITY OF MIAMI, Appellant, v. GREAT AMERICAN ASSURANCE COMPANY, etc., Appellee.
    No. 3D09-2010.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2013.
    Rehearing Denied May 3, 2013.

      Isicoff Ragatz & Koenigsberg, and Eric Isicoff and Teresa Ragatz, for appellant.
    Anania Bandklayder Baumgarten & Torricella, and Francis A. Anania and Maurice J. Baumgarten, for appellee.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

The University of Miami (“UM”) appeals an order granting final summary judgment in favor of Great American Assurance Company (“Great American”) in a declaratory action for indemnification of attorney’s fees and costs based on breach of a policy of insurance and bad faith. We reverse the final summary judgment in favor of Great American and, based on the facts of the UM claim, find that UM is entitled to be indemnified for attorney’s fees and costs incurred in this action.

UM was an additional named insured on a Great American commercial general liability policy insuring MagiCamp, which ran a summer swim camp for kids using the pool on the campus of UM. On July 18, 2000, Daniel Seguróla, a four-year-old child, was enrolled as a camper at Magi-Camp. He was pulled, unresponsive, from the bottom of the pool and was hospitalized with extensive injuries. His parents sued both MagiCamp and UM claiming the injuries were due to lack of supervision of the campers at the UM pool and that both, MagiCamp and UM, were each directly negligent, and UM also vicariously negligent, for the lack of supervision. Great American retained the services of one law firm to represent both MagiCamp and UM. MagiCamp filed an answer and affirmative defenses alleging that there was an intervening or superseding act, not under the control of MagiCamp, which caused the injuries, and that the resulting damages were caused, in whole or in part, by the fault of persons or entities other than MagiCamp. It is important to note that the only other entity being sued was UM. MagiCamp requested apportionment of damages based on the percentage of fault of the respective defendants and claimed it was entitled to indemnification and contribution from UM for the damages. The commercial general liability policy included a condition that the rights or duties applicable to the first named insured, Magi-Camp, applied as if each named insured were the only named insured and applied separately to each insured against whom a claim was made.

On February 12, 2001, the same day that MagiCamp filed its answer and affirmative defenses, UM advised Great American, by way of letter, that there was a conflict of interest in the single representation of both MagiCamp and UM, and UM demanded independent counsel of UM’s choice. The letter stated that any negligence which occurred was due to the negligence of MagiCamp and not UM. The insurer took the position that there was no conflict of interest in providing single counsel in the representation of both Magi-Camp, as a named insured, and UM, as an additional insured. The insurer refused to provide separate independent counsel for UM. UM retained its own counsel to protect its interest and, after the case was settled, brought this indemnification declaratory action requesting declaration by the trial court that Great American had breached its contractual duty to UM by refusing to provide separate and independent counsel. The declaratory action sought indemnification for the costs of UM’s defense, including attorney’s fees. In its answer and affirmative defenses, Great American asserted that it had no contractual, legal or professional obligation to provide separate and independent counsel to UM. Both sides moved for summary judgment. After significant litigation, and following mediation, cross motions for summary judgment were renewed. Great American took the position that, because MagiCamp was contractually bound to indemnify and hold harmless UM for any liability arising out of the use of its facilities by MagiCamp, there could be no conflict of interest in its single representation by counsel. The trial court granted Great American’s motion for final summary judgment and denied UM’s request for indemnification of attorney’s fees and costs.

An appellate court reviews a summary judgment de novo to determine whether, after viewing every inference in favor of the non-moving party, there is any genuine issue of material fact; if not, the appellate court must determine whether the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Building Educ. Corp. v. Ocean Bank, 982 So.2d 37 (Fla. 3d DCA 2008).

UM argued below and contends on appeal that there was a conflict of interest between MagiCamp and UM, as evidenced by the allegations in the pleadings, whereby the plaintiffs claimed both MagiCamp and UM were directly negligent and, whereby each defendant alleged that it was relieved of its separate responsibility for damages due to the negligence of the other defendant.

The precise question presented by this appeal and these facts has not been answered directly in Florida. Simply stated, the question presented is whether in this factual scenario, where both the insured and the additional insured have been sued, and the allegations claim that each is directly negligent for the injuries sustained, a conflict between the insured and the additional named insured exists that would require the insurer to provide separate and independent counsel for each. We answer the question affirmatively.

The duty of an insurance company to participate in an action and defend is determined by the allegations in the complaint. New Amsterdam Cas. Co. v. Knowles, 95 So.2d 413 (Fla.1957); Fed. Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979). An insurer’s conflict of interest in the duty to defend is determined properly on summary judgment. See All-Star Ins. Corp. v. Steel Bar, Inc., 324 F.Supp. 160 (N.D.Ind.1971).

UM relies on the following authorities, contending that Great American breached its duty under the policy to provide independent and separate counsel where there exists a conflict of interest between the insureds: See, e.g., Williams v. Am. Country Ins. Co., 359 Ill.App.3d 128, 295 Ull.Dec. 765, 833 N.E.2d 971, 980 (2005) (holding that a policy exclusion for intentional acts of an agent under the doctrine of respon-deat superior creates a conflict of interest with co-defendants requiring separate counsel where “it would be in [one co-defendant’s] best interest to present a defense that he was an agent of [the other co-defendant], while it would be in [the other co-defendant’s] best interest to establish the exact opposite”); Wolpaw v. Gen. Accident Ins. Co. v. Parker, McCay & Criscuolo, 272 N.J.Super. 41, 639 A.2d 338, 340 (1994) (holding that liability insurer violates its contractual duty and must retain separate and independent counsel for insured’s co-defendant where interests conflict in “maximizing the percentage of the other insured’s fault and minimizing their own” and the risk of judgment exceeds the policy limit); Bituminous Ins. Cos. v. Pa. Mfrs.’ Ass’n Ins. Co., 427 F.Supp. 539 (E.D.Pa.1976) (holding that an insured is entitled to reimbursement from its insurer based on its duty to defend because of the insured’s conflict with its co-defendant, reasoning that each defendant may attempt to absolve itself from liability by alleging the damage was caused solely by the negligence of the other). We agree with UM’s position. Although no question of coverage or excess policy limits, upon which to base a conflict of interest, exists in this case, since coverage has been agreed to by the parties, the pleadings and record evidence on summary judgment create a conflict, not on coverage, but on legal defenses based upon the record facts.

In the case before us, there exists a conflict in the co-defendants’ legal defenses, based on the allegations of the complaint, that each defendant is directly liable, and the allegations in the answer and affirmative defenses set forth by Magi-Camp and UM. MagiCamp answered and asserted the affirmative defense that, as alleged, through no fault of its own, but through the fault of another entity, UM, the minor camper was injured, for which it was entitled to indemnification and contribution; and conversely, UM presented its position by way of letter, that, through no fault of its own, but through the fault of MagiCamp, the camper was injured. These allegations create diverse legal positions that are inherently adverse. These conflicting legal positions presented in defense to individual active negligence claims against MagiCamp and UM exist separate and apart from issues of coverage or excess policy limits. In this case, single defense counsel was provided by Great American to defend both MagiCamp and UM and to present adverse legal theories. There exists no factual dispute, as evidenced by the record, that, in defense of both co-defendants, Great American’s counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other’s fault. In so doing, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other. On these facts, we believe this legal dilemma clearly created a conflict of interest between the legal defenses of the common insureds sufficient to qualify for indemnification for attorney’s fees and costs for independent counsel. Graci v. Denaro, 98 Misc.2d 155, 413 N.Y.S.2d 607 (N.Y.Sup.Ct.1979); 14 Couch on Ins. § 202.24 (3d ed. 2012).

Therefore, summary judgment in favor of Great American on the issue of indemnification of attorney’s fees and costs for independent counsel is reversed.

Reversed and remanded.

WELLS, C.J., concurs.

SHEPHERD, J.,

dissenting.

The court today opens a new frontier in insurance litigation of benefit only to the legal profession.

The insurance contract in this case expressly states the insurer has “the right and the duty to defend the insured” against any suit to which the insurance applies. The insurer appointed the law firm of Hyman and Kaplan to defend both Magicamp and the University of Miami. Without providing Great American the courtesy of a phone call or demand, the Isicoff law firm declared conflict and appointed itself. The majority affords them fees for their trouble. The future of dual insured claims should not be hard to see.

Rule 4-1.7 of the Florida Rules of Professional Conduct states “a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to the other client; or (2) there is a substantial risk that representation of 1 or more clients will be materially limited by the lawyer’s responsibility to another client.” R. Regulating Fla. Bar 4-1.7. However, the rule is not slavishly applied. As the comment to the rule states, “A possible conflict does not itself preclude the representation.” R. Regulating Fla. Bar 4-1.7 cmt. That is the applicable point in this case.

The complaint in the underlying case alleged that Magicamp was negligent in failing to properly monitor, supervise, and care for Daniel Seguróla, a camper in its care, causing him to nearly drown. The University also was sued on the ground that its pool lifeguards failed to properly supervise the pool.

Magicamp had no defense to the lawsuit. A child entrusted to Magicamp nearly drowned in an area of the pool being used by it. The “Revocable Agreement for Use of University Facilities,” pursuant to which Magicamp was licensed to use the pool, stated, in paragraph P, “User shall be solely responsible for the safety and welfare of its agents, employees, guests and the attending public.” Magicamp also assumed “full financial responsibility for” (emphasis added), and agreed to “release, indemnify and hold harmless the University of Miami, its Trustees, officers, employees and agents from and against all losses, claims, demands, damages, actions or causes of action of whatsoever kind and nature, liability and expense, including attorney fees arising out of injury or death to persons or damage to property connected with or arising out of the use of [the] facility or activities of [the] User.” After seven years of litigation — there were unusually lengthy periods of inactivity by plaintiffs counsel — the case settled. The University suffered no loss.

“A conflict of interest between jointly represented clients occurs whenever their common lawyer’s representation is rendered less effective by reason of his representation of the other.” Spindle v. Chubb/Pacific Indem. Grp., 89 Cal.App.3d 706, 713, 152 Cal.Rptr. 776 (1979). Furthermore, “the difference in the potential for liability [between] two insureds, standing alone, does not necessarily result in an actual conflict of interest between them so far as their joint defense is concerned.” Id. at 713-14, 152 Cal.Rptr. 776. In this case, there was neither an actual conflict nor a “substantial risk” of conflict. The parties were united in the defense against the plaintiff from the moment the Isicoff law firm appeared in the litigation through settlement. Neither party filed a claim against the other.

Although there was no actual conflict between the parties during the course of the underlying litigation, the University urges a determination of need for separate counsel should be treated just as the duty to defend. The analogy is flawed. The duty of a liability insurer to defend is contractual in nature and ordinarily is determined, in the first instance, by comparing the language of the insurance contract and allegations of the petition or complaint in the action brought by the person injured or damaged against the insured. Lincoln Ins. Co. v. Home Emergency Servs., Inc., 812 So.2d 433, 435 (Fla. 3d DCA 2001). However, the question in this case is not one of duty to defend. The only question is who will do the defending.

The University’s answer to this question resides in a paper conflict. Counsel for each party preserved the right to seek contribution or indemnity from the other in its answer and affirmative defenses. However, as University counsel admitted at oral argument, neither the University nor Magieamp sought to prove liability of the other at any time during the course of the underlying litigation. As both knew, such a course almost certainly would have been fatal. See Oda v. Highway Ins. Co., 44 Ill.App.2d 235, 194 N.E.2d 489, 496 (1963) (“A traditional truism among lawyers is that nothing can be more ruinous to the defense of cases such as the personal injury cases here involved than for one defendant to seek to prove the liability of the other. On such occasions the plaintiffs lawyer sits by and watches the show as one defendant slaughters the other, while the court, observing the spectacle, meditates on the folly of the defendants in not having agreed on a policy of cooperation, even though it meant that each had to assume some degree of risk thereby.”). Thus, there was no real conflict and no need for self-appointed counsel.

The cases cited by the majority do not require a different result. For example, in Williams v. American Country Insurance Co., 359 Ill.App.3d 128, 295 Ill.Dec. 765, 833 N.E.2d 971 (2005), a police officer sued a taxi driver and his employer, Yellow Cab, for injuries sustained when the driver, exhibiting a pique of anger over a Chicago traffic jam, dragged the officer, who had leaned inside the cab, fifteen feet along a congested city street. Id. at 973. The policy expressly excluded “ 'bodily injury’ ... expected or intended from the standpoint of the ‘insured.’ ” Id. at 974. In an earlier appeal, the Illinois First District Court of Appeal determined the taxi driver’s conduct was intentional as a matter of law. Am. Country Ins. Co. v. Williams, 339 Ill.App.3d 835, 274 Ill.Dec. 857, 791 N.E.2d 1268, 1278 (2003). However, under Illinois law, the driver would be entitled to coverage nevertheless if “his intentional, negligent or criminal acts were performed within the scope of employment.” Am. Country, 295 Ill.Dec. 765, 833 N.E.2d at 976. American Country disputed that coverage existed under this alternative. The issue had to be resolved by a special verdict interrogatory during the course of the underlying liability trial. Unlike the case before us, the conflict in this case was not a paper conflict. It was an actual conflict. Id. at 980. See also Golotrade Shipping & Chartering, Inc. v. Travelers Indem. Co., 706 F.Supp. 214, 219 (S.D.N.Y.1989) (“It is important to recognize that independent counsel is not necessary in all cases where multiple claims are made. It is only necessary where the “question of insurance coverage is ... intertwined with the question of the insured’s liability.”) (quoting Pub. Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 442 N.Y.S.2d 422, 425 N.E.2d 810, 815, n* (N.Y.App.Div.1981)).

Bituminous Insurance Cos. v. Pennsylvania Manufacturers’ Association Insurance Co., 427 F.Supp. 539 (E.D.Pa.1976), cited by the majority, is similar. There, the insurer of a subcontractor, Pennsylvania Manufacturers’, was ordered to provide a defense to a general contractor pursuant to an indemnity provision in a construction contract, including independent defense counsel if such became necessary to avoid a conflict of interest, where some, but not all, of the claims made against the general contractor were indemnified claims covered under the Pennsylvania Manufacturers’ insurance policy. Id. at 542. As in Williams, the conflicts between insurer and insured were real and imminent. See also U.S. Fid. & Guar. Co. v. Louis A. Roser Co., 585 F.2d 932, 941 (8th Cir.1978) (conflict between insurer and insured over covered and non-covered claims required insurer to reimburse insured for services of independent counsel to protect insured’s interest in maximizing coverage in underlying litigation); accord Travelers Indem. Co. of Ill. v. Royal Oak Enters. Inc., 344 F.Supp.2d 1358, 1365-66 (M.D.Fla.2004). The case offers no solace to the majority.

Finally, Wolpaw v. General Accident Insurance Co., 272 N.J.Super. 41, 639 A.2d 338 (1994), likewise offers no assistance to the majority. There, defense counsel undertook the representation of three persons — a homeowner, sister, and eleven-year-old nephew of the homeowner — insured through a homeowner’s policy of insurance issued by General Accident Insurance Company, in an accidental shooting case. Like our case, each defendant had an interest in minimizing the amount of the shooting victim’s judgment and maximizing the percentage of fault attributable to the other defendants. Id. at 340. However, unlike our case, the Wolpaw case went to trial and apportionment of negligence was done by the jury. Id. at 339-40. It was obvious to the appellate court, as it would have been to us, that single defense counsel could not adequately represent all three insureds on the apportionment issue. Moreover, there was a significant exposure in the case for an excess judgment for which all three insureds might be found, and ultimately were found, responsible. Id. at 340. Wolpaw is another case of actual conflict.

In contrast, I find Spindle, 89 Cal. App.3d at 706, 152 Cal.Rptr. 776, cited in the briefs of both parties in this case, but overlooked by the majority, to be more informative. Spindle arises out of a medical malpractice action brought by a patient, Betty Burke, against two physicians, Dr. David K. Spindle and Dr. Chester C. McReynolds, both of whom carried malpractice insurance from the same insurer, Chubb/Pacifie, albeit in different policy limits — one million dollars in the case of Dr. Spindle and $500,000 on Dr. McRey-nolds. Id. at 709, 152 Cal.Rptr. 776. Like Magicamp in the case before us, Dr. McReynolds had a much greater potential for liability than did Dr. Spindle. As in our case, Chubb/Pacific assigned the same defense counsel to defend both doctors. Id. at 714, 152 Cal.Rptr. 776. After a jury trial, Ms. Burke obtained a joint and several judgment in the amount of $404,000 against both Dr. Spindle and Dr. McRey-nolds.

Dr. Spindle then sued Chubb/Pacific, alleging the company had committed fraud and bad faith by advising him soon after suit was filed that “there appeared to be no conflict of interest between the two doctors in the lawsuit and that it would be more economical for them to share the costs of their defense rather than to have each represented by separate counsel.” Id. at 709, 152 Cal.Rptr. 776. According to Spindle, this representation was false because Chubb/Pacific then knew (but Dr. Spindle did not) the interests of the two insureds conflicted in that (1) they had different maximum amounts of insurance protection; (2) defendant had reinsured them differently — for Dr. Spindle, everything above $25,000; for Dr. McReynolds, everything above $200,000; and (3) their respective potentials for liability differed. Id. at 710, 152 Cal.Rptr. 776. According to Dr. Spindle, Plaintiff Burke would have settled the entire underlying case for $350,000 and, prior to trial, Dr. McRey-nolds had directed Chubb/Pacific to do so. Id. Spindle sought at least $2,043,000 specified compensatory damages (primarily emotional distress) because of Chubb/Pa-cific’s improper joint defense of him in the underlying action. Id.

The California Second District Court of Appeal found no actionable impropriety in the joint representation. As to the fraud count, the court concluded, “What plaintiff [Dr. Spindle] has done is to confuse divergence of interest with conflict of interest.” Id. at 713, 152 CaLRptr. 776. The court explained:

Conflict of interest between jointly represented clients occurs whenever their common lawyer’s representation of the one is rendered less effective by reason of his representation of the other. Nothing like this is alleged in the fraud count. The difference in the personal exposure of the two insureds resulting from the difference in their maximum coverage, by itself and without more, creates no actual conflict of interest between them in the matter of their joint representation. The same may be said of the difference in them reinsurance situations since reinsurance is a matter ordinarily of concern only to the insurer. Similarly the difference in the potential for liability of the two insureds, standing alone, does not necessarily result in an actual conflict of interest between them so far as their joint defense is concerned.

Id. at 713-14, 152 CaLRptr. 776 (emphasis added).

As to the bad faith claim, which was based on alleged breaches similar to those alleged in the fraud count, the court concluded:

Plaintiff has not stated a cause of action for bad faith in any of these alleged breaches. We have already dealt with the absence of any actual conflicts of interest between the two doctors affecting the effectiveness of their joint representation in the Burke case. It is a well known fact that under insurance policies generally the insurer controls the defense it provides its insured. We see nothing improper in this customary practice. It is true that the trial memoranda between Kirtland & Packard and defendant, which plaintiff incorporated in this count, show that Dr. McReynolds had a much greater potential for liability than plaintiff, but plaintiff has not alleged how this disparity in potential liability affected in any way the joint defense defendant provided him.

Id. at 714-15, 152 Cal.Rptr. 776 (emphasis added). Similarly in the case before us, the University of Miami has not alleged (or shown) how the disparity in potential liability between it and Magicamp affected in any way the joint defense provided it under the Great American policy.

The flaw in the majority opinion is that it confuses and conflates insurer obligations in three unrelated circumstances: (1) the duty to defend; (2) conflicts between an insured and insurer; and (3) conflicts between insureds. The case before us involves the third circumstance. The majority makes no effort to distinguish among them in its resolution of this case. Instead, it begins its analysis with the global pronouncement, “the rights or duties applicable to the first named insured, Magicamp, [must be] applied as if each named insured were the only named insured and applied separately to each insured against whom a claim was made.” Implicit in the statement is that each insured gets its own lawyer, almost no matter the circumstance. The premise presages the conclusion: “UM is entitled to be indemnified for attorney’s fees and costs in the action.” See supra Majority Op. p. 2.

The syllogism is a false one. The majority fails to appreciate that liability insurance involves the delicate merging of the duty to indemnify and the right to defend. See Kent D. Syverud, What Professional Responsibility Scholars Should Know About Insurance, 4 Conn. Ins. L.J. 17, 21 (1997). The majority opinion divides the two by affording dual insureds separate counsel any time an insured articulates a conflict in a pleading, whether or not real. However, unlike the duty to defend, allegations in a complaint or answer, such as the answer filed sua sponte by the Isicoff law firm, preserving the University’s right to seek contribution or indemnity from Magi-camp, are not controlling when actual facts demonstrate the existence or non-existence of an obligation to provide separate counsel. See Louis A. Roser Co., 585 F.2d at 986. In the case before us, the conflict was not real or actual. The Isicoff firm followed and supported counsel appointed by Great American throughout the underlying litigation.

Liability insurance is a relatively new product, not much older than the automobile. A liability insurer’s contractual right to control the defense and indemnity features of its contract is indispensable to the protection of its financial interest in the litigation and thus the product itself. See Royal Oak, 344 F.Supp.2d at 1374. This meaningful contractual right should not be penalized merely because there exists the potential for insurer-selected counsel to become impermissibly conflicted in its representation. Yet, that is what the majority does in the opinion this court issues today. See id. I am persuaded the rules governing the Florida Bar and the attendant threat of malpractice liability provide sufficient assurance that counsel appointed by an insurer will not continue to represent an insured in the event a conflict of interest interferes with counsel’s ability to make independent professional judgments on behalf of the client. See id.

I would affirm the order under review.

      . MagiCamp's Answer and Affirmative Defenses asserted claims for indemnification and contribution from UM as follows:
      If Plaintiff was injured or damaged as alleged, however, such injuries and damages were caused in whole or in part by the fault, neglect and/or want of care of persons or entities other than Defendants, and therefore Defendants are entitled to indemnity and/or contribution from such persons or entities in direct proportion to their respective fault.

      .
      SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
      * * *
      7. Separation of Insureds
      Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the First Named insured, this insurance applies:
      a. As if each Named Insured were the only Named Insured; and
      b. Separately to each insured against whom claim is made or "suit” is brought.

      . The trial judge ruled that the motions were premature, denying them without prejudice to reinstituting them at the close of litigation.

      . We reject Great American’s position that the hold harmless agreement between MagiCamp and UM negates a conflict of interest between the two defendants which would necessitate appointment of separate co-counsel.

      . The dissent attempts to draw a distinction in cases where a conflict of interest was created by coverage or policy limit issues. Conflicts created by coverage or policy limit issues are not the issue in this appeal. The conflict in this case is created by the adverse legal positions one attorney must take in representing two different defendants.

      . The majority mistakenly suggests that at some point in the underlying litigation, not later than trial, insurer-appointed counsel "would have had to argue” the other was liable. That is not so. If the underlying case had been tried, the only necessary special jury interrogatories would be one, each asking whether each defendant was legally responsible for the accident. The statute of limitations does not begin to run on the apportionment claims in the case — contractual indemnity and contribution — until the conclusion of the underlying case either by settlement or judgment. See Kala Invs., Inc. v. Sklar, 538 So.2d 909, 915-16 (Fla. 3d DCA 1989).

      . In fact, in Royal Oak, the United States District Court for the Middle District of Florida opined that despite the fact Royal Oak is an actual conflict case — arising out of the addition of a non-covered intentional tort count and punitive damage claim to an existing wrongful death complaint — the Florida Supreme Court still would not require the appointment of insurer-paid independent counsel. Royal Oak, 344 F.Supp.2d at 1375.

      . In his bad-faith claim, Dr. Spindle incorporated his fraud count and additionally alleged Chubb/Pacific breached its contractual obligation to him to act in good faith and deal fairly with him in (1) failing to advise him of the alleged conflicts of interest previously alleged in the fraud count; (2) not providing him with separate counsel; (3) controlling joint defense counsel in that case; and (4) refusing to settle the liabilities of both code-fendants in that case for the sum of $350,000 from the McReynolds' policy alone. Id. at 714, 152 Cal-Rptr. 776.

      . Although not necessarily determinative, it at least is noteworthy that the Great American policy limit insuring both Magicamp and the University of Miami for this occurrence was $1,000,000, and the University of Miami had substantial coverage of its own in excess of the Magicamp limits. The underlying case settled within the Great American policy limit. Even where there might be inadequate limits, however, the usual defense strategy is to defer contribution or indemnity claims until the liability case is concluded. See Allan D. Windt, "Insurance Claims & Disputes: Representation of Insurance Companies & Insureds,” 1 Insurance Claims and Disputes 5th, § 4:23 (2012); see also Wolpaw v. Gen. Accident Ins. Co., 272 N.J.Super. 41, 639 A.2d 338 (1994) (discussing methods for resolving such claims after the liability case is concluded).

      . The majority seeks to ground this statement in Section IV of the policy. See supra Majority Op. p. 3 & note 2. A casual perusal of Section IV reveals it merely begs the issue presented by this appeal.


author: WALLACE, Judge.

text:
    CARNIVAL CORPORATION, a foreign corporation, Appellant, v. Cheryl JIMENEZ, Appellee.
    No. 2D11-5482.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2013.

      Scott A. Cole and Anne C. Sullivan of Cole, Scott & Kissane, P.A., Miami, for Appellant.
    Brent R. Bigger of Abrahamson & Ui-terwyk, Tampa, for Appellee.
   WALLACE, Judge.

Cheryl Jimenez sued Carnival Corporation for damages that she sustained in a shipboard slip and fall incident. A jury awarded Ms. Jimenez $3750 for past medical expenses and $3750 for past pain and suffering. The trial court set aside the verdict and awarded Ms. Jimenez a new trial based on misconduct and improper argument by Carnival’s attorney. Because any error stemming from defense counsel’s misconduct was both unpreserved and insufficient to meet the standard for fundamental error established in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1027-31 (Fla.2000), we reverse the order for new trial.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2009, Ms. Jimenez was on a Carnival cruise ship to attend the wedding of her nephew. As Ms. Jimenez was walking past a buffet, she slipped and fell in an oily substance. Immediately after her fall, Carnival personnel treated Ms. Jimenez in the ship’s infirmary for complaints of pain in her right knee and right hip. When Ms. Jimenez fell, the ship was still docked at the Port of Tampa; Ms. Jimenez was subsequently transported from the ship to Tampa General Hospital. At Tampa General, Ms. Jimenez was treated for contusions to her right hip and right knee and for a back strain.

During the next few weeks, Ms. Jimenez’s right-sided pain began to subside. However, on June 25, 2009, she consulted Dr. John Smith, an orthopedic surgeon. On her first visit to Dr. Smith, Ms. Jimenez complained about pain in her left knee and in her neck and back. Ultimately, Dr. Smith performed two surgical procedures on Ms. Jimenez’s left knee. The second procedure, performed in October 2010, followed a separate gardening mishap. In the gardening incident, Ms. Jimenez experienced a sharp pain in her left knee while pushing a shepherd’s hook into the ground with her left foot.

Dr. Smith appeared at the trial as a witness for Ms. Jimenez. He testified that Ms. Jimenez’s shipboard slip and fall caused the problems with her left knee and necessitated the two surgical procedures. In response, Carnival contended that Ms. Jimenez’s problems with her right knee and hip had resolved within a few weeks after her fall. Carnival related Ms. Jimenez’s issues with her left knee to normal, degenerative changes in the joint and to the separate gardening incident.

During the relevant time, Ms. Jimenez did not have any medical insurance. Thus many of her medical providers — including Dr. Smith and the surgical center in which he had an interest — treated her under letters of protection. Trial counsel for Carnival (defense counsel) made the existence of the letter of protection in favor of Dr. Smith a significant issue at the trial. Defense counsel mentioned the letter of protection during his opening statement and cross-examined both Ms. Jimenez and Dr. Smith about it. In addition, defense counsel elicited testimony from Dr. Smith that the doctor and Mr. Hendrik Uiter-wyk, a partner in the law firm representing Ms. Jimenez, were neighbors and that they saw each other socially.

Both parties raised the issue of the letter of protection during their closing arguments. In the initial portion of his closing argument, trial counsel for Ms. Jimenez (plaintiffs counsel), addressed the letter of protection at length. Although plaintiffs counsel’s remarks are too lengthy to quote in full, the following excerpt is sufficient to convey their tenor:

Every chance they got, Carnival and its lawyers put me and my client on trial with this letter of protection issue. Let’s look at it just quickly, and then we will move past it. Instead of taking responsibility for their actions, they wanted to continue to blame and attack.
We refused [sic] their contention that Dr. [Smith] had this significant financial interest. And he was the only doctor who was going to come in here that wasn’t a hired expert, wasn’t already on the payroll at that point. He was someone who actually treated Ms. Jimenez. He gave her the care that she needed over almost two years for those injuries, and he did it taking some risk, because he did it on this letter of protection. Does that make him somehow a bad doctor, that he’s going to come in here and not tell what the true case was? Absolutely not. Absolutely not.

Thus plaintiffs counsel attempted to minimize the impact of the letter of protection on Dr. Smith’s credibility by contrasting Dr. Smith’s role as Ms. Jimenez’s treating physician with Carnival’s reliance on “hired expert[s]”.

During defense counsel’s closing argument, he responded by emphasizing that Dr. Smith had a financial interest in the outcome of the case by virtue of the letter of protection. During a lengthy discussion of the letter of protection, defense counsel also offered his opinion that Dr. Smith had testified in accordance with a script. Defense counsel’s remarks about the claimed “scripted” testimony were as follows:

So let’s use our common sense and let’s connect the dots. Ms. Jimenez doesn’t know Dr. [Smith], [Ms. Jimenez’s primary care physician] did not refer Ms. Jimenez to Dr. [Smith]. You heard from Dr. [Smith], he and Hank Uiterwyk, [plaintiffs counsel’s] boss, are close social friends. So do I think there is a coincidence going on here? No. I think everything was absolutely scripted. Hank Uiterwyk and Dr. [Smith] are dear family friends. They live very close together. They are social friends.

(Emphasis added.) Dr. Smith did say on cross-examination that he had met with plaintiffs counsel before trial and reviewed with him the substance of his anticipated testimony. However, defense counsel’s insinuation that Dr. Smith’s testimony had been “scripted” for him by plaintiffs counsel or by Mr. Uiterwyk is unsupported by any evidence in the record.

Although there were numerous references to the letter of protection during the trial, plaintiffs counsel made only two objections because of these references. The trial court sustained both of these objections. After the trial court sustained the objections, plaintiffs counsel did not either request a curative instruction or move for a mistrial. Notably, plaintiffs counsel made no objection at all to defense counsel’s “absolutely scripted” comment. Later, defense counsel made a personal attack on plaintiffs counsel. Acting quite properly on its own motion, the trial court admonished defense counsel that “personal attacks on opposing counsel are inappropriate” and- instructed the jury to disregard the remark. Plaintiffs counsel did not seek a mistrial on this occasion either.

The jury returned a verdict awarding Ms. Jimenez $8750 for past pain and suffering and $3750 for past medical expenses. Ms. Jimenez did not make any claim for lost wages or loss of earning capacity, and the jury did not award her anything for future pain and suffering or for future medical expenses. After the trial, the trial court entered a final judgment in favor of Ms. Jimenez and against Carnival in accordance with the jury’s verdict.

II. THE ORDER FOR NEW TRIAL

Ms. Jimenez timely filed a motion for a new trial. After a hearing, the trial court entered a lengthy and thoughtful order setting aside the final judgment and granting Ms. Jimenez a new trial. The trial court based its order for new trial on defense counsel’s questioning of witnesses and comments during closing argument relative to the letter of protection. In its order granting the new trial, the trial court explained its reasoning, in pertinent part, as follows:

[T]he comments made during closing arguments are perceived to have been prejudicial and highly inflammatory in nature because of their cumulative effect and their accusatory undertones. Defense counsel argued in closing, and argumentatively suggested during the questioning of witnesses, that Plaintiffs counsel, Mr. Uiterwyk, had collaborated or conspired with Dr. [Smith], to conjure a non-injury into this lawsuit. This all came in, in large part, as a result of this court allowing' evidence of Dr. [Smith’s] letter of protection (“LOP”) into evidence. When this trial court permits the introduction into evidence of a treating doctor’s LOP, it is to enable defense counsel to suggest that the doctor may have a financial bias, or stake in the outcome of the case. Not for the impermissible purpose of allowing Defendant’s attorney to suggest a “neighborly” conspiracy between the doctor and Plaintiffs attorney. This jury could not fairly assess the real issues of causation and damages when the specter of conspiracy was so boldly and repeatedly put out there by defense counsel.
If the Defendant’s attorney had stopped after making the[] point that Plaintiffs same-day physical complaints were different than those reported to Dr. [Smith] a few weeks after the claimed accident: that would have been perfectly fair game. But when Defendant’s counsel not only suggested a conspiracy, but then drove it home with his own personal belief, “J think everything was absolutely scripted,” he went over the line....
It was fair comment to remind the jury that Ms. Jimenez didn’t seek treatment for her knee injury from her regular primary care physician, but chose to go to Dr. [Smith], However, pushing the argument beyond the bounds or propriety has, in this court’s opinion, allowed defense counsel to “snatch defeat from the jaws of victory.” The cumulative effect of these comments was prejudicial and highly inflammatory. First, Defendant’s counsel’s comments had a conspiratorial undertone interwoven with themes of scheming and falsification. The effect of this undertone was to deflect the jury’s attention away from the issue of defendant’s liability. Instead, by focusing on this alleged conspiracy between Dr. [Smith] and the Plaintiffs lawyers, in the manner that he did, defense counsel deflected the jurors’ attention away from the real issues. Second, Defendant’s counsel’s expression of his personal belief was likely impactful to the jury.

After the entry of the order for a new trial, Carnival timely filed this appeal.

III. DISCUSSION

A. Introduction

Generally, improper comments by counsel during closing argument may provide a ground on which a trial court may properly grant a motion for a new trial. Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1250 (Fla. 2d DCA 2007) (citing Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So.2d 404, 407 (Fla. 2d DCA 2006)). Instances of attorney misconduct during trial may also warrant the grant of a new trial. Sullivan v. Kanarek, 79 So.3d 900, 906 (Fla. 2d DCA 2012); see, e.g., Irizarry v. Moore, 84 So.3d 1069, 1072 (Fla. 5th DCA 2012). “If the issue of an opponent’s improper argument [or conduct] has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the [objecting] party its right to a fair trial.’ ” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla.2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)).

On the other hand, if the issue of an opponent’s improper argument or conduct has not been preserved by contemporaneous objection and motion for mistrial, a new trial will only be warranted when the improper behavior is “of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.” Id.; see also Murphy, 766 So.2d at 1029-30. In other words, if the error has not been properly preserved, a new trial is only warranted when the improper behavior amounts to fundamental error. Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010). Because of the inconsistency in this area of the law, the Florida Supreme Court in Murphy announced a four-part test to be applied in determining whether unobjected-to improper closing argument amounts to fundamental error requiring a new trial. To prevail on a motion for new trial under Murphy requires that the complaining party “establish that the [challenged] argument [or attorney misconduct] was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Moreta, 957 So.2d at 1250 (citing Murphy, 766 So.2d at 1031); Companioni, 51 So.3d at 456. If the complaining party successfully establishes these four criteria, the trial court must grant the party’s motion for a new trial. Platz v. Auto Recycling & Repair, Inc., 795 So.2d 1025, 1027 (Fla. 2d DCA 2001).

In reviewing a trial court’s order granting or denying a new trial based on unobjected-to closing argument, an appellate court must determine whether such order was an abuse of the trial court’s discretion. Murphy, 766 So.2d at 1030-31; Platz, 795 So.2d at 1026. “In so doing, [an appellate court must be] mindful that the new trial remedy is not a tool for punishing attorney misconduct. Rather, its focus is on the fairness of the proceedings.” Platz, 795 So.2d at 1026.

B. The Application of Murphy’s Four-Part Test

As we have already noted, plaintiffs counsel only made two objections relative to defense counsel’s references to the letter of protection. The trial court sustained both of these objections, and plaintiffs counsel did not request a curative instruction or move for a mistrial. Plaintiffs counsel did not make any other contemporaneous objections to defense counsel’s questions to witnesses or remarks in closing argument concerning the letter of protection. In particular, plaintiffs counsel did not object to defense counsel’s remark about “scripted” testimony that the trial court found “went over the line.” There was no motion for mistrial. However, Ms. Jimenez did serve a motion for new trial based on defense counsel’s handling of the letter of protection at trial. Therefore, we must determine if the trial court abused its discretion in granting Ms. Jimenez’s motion for new trial based on Murphy’s demanding four-part test.

1. The challenged conduct and argument must be improper

In applying Murphy’s four-part test, our first task is to determine whether defense counsel’s conduct and remarks were improper. The trial court got this part of the analysis right. Carnival could properly attack the credibility of Dr. Smith by showing that he was biased in favor of Ms. Jimenez. See § 90.608(2), Fla. Stat. (2011); Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla. 4th DCA 2012). Undeniably, the existence of the letter of protection gave Dr. Smith a financial interest in the outcome of Ms. Jimenez’s personal injury action. Carnival could properly present evidence of that interest at trial and argue to the jury that Dr. Smith was more likely to testify favorably on behalf of Ms. Jimenez because of his financial interest in the case. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997-98 (Fla.1999). Moreover, plaintiffs counsel first raised the issue of the letter of protection in the parties’ closing arguments. Defense counsel was certainly entitled to respond to the argument made by plaintiffs counsel that Dr. Smith’s status as Ms. Jimenez’s treating physician made him more credible than Carnival’s “hired expert[s].”

Nevertheless, as the trial court concluded, defense counsel’s insinuation that Ms. Jimenez’s law firm had taken advantage of Mr. Uiterwyk’s friendship with Dr. Smith to “script” the doctor’s trial testimony “went over the line.” These comments were highly improper and impermissible. See Venning v. Roe, 616 So.2d 604, 605 (Fla. 2d DCA 1993) (stating that defense counsel’s remarks accusing the plaintiffs medical expert of perjury and accusing opposing counsel of unethically committing a fraud on the court would not be condoned); Lewis v. State, 780 So.2d 125, 130 (Fla. 3d DCA 2001) (describing as the “most egregious” of several highly improper and impermissible comments made by a prosecutor as the one suggesting that defense counsel had “scripted” the defendant’s testimony); Hammond v. Mulligan, 667 So.2d 854, 855 (Fla. 5th DCA 1996) (Antoon, J., specially concurring) (stating that opposing counsel’s accusations in closing argument of a conspiracy between the plaintiff and her physician to trick the jury and by plaintiffs counsel to “fool” the jury by hiding relevant evidence from them amounted to fundamental, reversible error); Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409, 411 (Fla. 3d DCA 1995) (holding that defense counsel’s comments that one of the plaintiffs’ trial attorneys had “prodded” one of the plaintiffs into giving answers and that the plaintiffs responses “had to have been told by his attorneys” were improper). Defense counsel could properly argue that Dr. Smith’s credibility was subject to question because of his financial interest in the case, but defense counsel was not free to opine — in the absence of any evidence — that someone in Ms. Jimenez’s law firm had “scripted” the doctor’s testimony. See Lewis, 780 So.2d at 130.

2. The challenged conduct and argument must be harmful

Under Murphy’s second prong, the complaining party must establish not only that the challenged conduct and argument were improper but also that such conduct or remarks were harmful. Murphy, 766 So.2d at 1029-30. In this context, harmfulness “carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. at 1029. The standard for establishing harmfulness is an exacting one. “[T]he improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at 1030; see, e.g., Platz, 795 So.2d at 1027. In other words, “[hjarmfulness turns on how the argument affected the validity of the trial proceedings.” USAA Cas. Ins. Co. v. Howell, 901 So.2d 876, 879 (Fla. 4th DCA 2005).

In the order for new trial, the trial court found that defense counsel’s comments were “prejudicial and highly inflammatory.” As noted above, we agree that to the extent that defense counsel’s comments crossed the line from reminding the jury of Dr. Smith’s bias to insinuations of unethical behavior and fraud, the comments were highly improper and inappropriate.

Nevertheless, the trial court’s explanation of how the comments affected the verdict is not persuasive. The jury found Carnival liable for Ms. Jimenez’s slip and fall; it did not attribute any comparative negligence to her. The problems for Ms. Jimenez at trial were not liability but causation and the extent of her damages. She sought an award substantially higher than the jury’s $7500 verdict. Undeniably, Ms. Jimenez had been injured in her slip and fall on the ship. She was treated in the ship’s infirmary immediately after the incident and was transported directly from the ship to Tampa General for further treatment. However, the evidence at trial suggested that the right-sided pain experienced by Ms. Jimenez immediately after her slip and fall resolved itself within a few weeks after the incident. In addition, there was ample evidence from which the jury could have concluded that the other conditions for which Dr. Smith treated Ms. Jimenez were attributable to normal degenerative changes, the separate gardening incident, or both. If the jury took this view of the evidence, then the jury’s verdict seems modest but not outside the range of possible verdicts one might expect under these circumstances. Because there was ample evidence in the record from which the jury might have reached the verdict complained of, Ms. Jimenez has failed to establish that defense counsel’s conduct and comments were harmful under the Murphy standard. See Thompson v. Hodson, 825 So.2d 941, 947 (Fla. 1st DCA 2002).

3. The challenged conduct and argument must be incurable

Murphy’s third prong requires that the complaining party “establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Murphy, 766 So.2d at 1030. This standard is just as demanding as the standard for establishing harmfulness; thus rarely will a party be able to satisfy the burden of this prong. Id.; see, e.g., Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So.3d 893, 900 (Fla. 4th DCA 2011).

We agree that an unsubstantiated accusation that a lawyer conspired with a witness to present “scripted” testimony and to thereby perpetrate a fraud on the court is highly improper and should not be condoned. See Venning, 616 So.2d at 605; Lewis, 780 So.2d at 130. However, most of defense counsel’s questioning of witnesses and remarks about the letter of protection focused on the financial interest the document gave Dr. Smith in the outcome of the case. In the context of the trial as a whole, the suggestion of a conspiracy and the reference to “scripted” testimony was a relatively isolated event. Ms. Jimenez fails to explain why a prompt objection and request for a curative instruction would have been insufficient to cure the effect of defense counsel’s unsubstantiated accusation. We also note that the trial court not only sustained other objections made by plaintiffs counsel concerning references to the letter of protection but also acted on its own motion to admonish defense counsel for an improper attack on plaintiffs counsel and instructed the jury to disregard the remark. Undoubtedly, the trial court strongly disapproved of defense counsel’s “absolutely scripted” comment. If plaintiffs counsel had timely objected to the remarks, it seems very likely that the trial court would have sustained the objection, admonished defense counsel in the strongest terms, and instructed the jury to disregard defense counsel’s improper comments. Under the circumstances, Ms. Jimenez has not met her high burden of establishing that the remarks in question were incurable. See Thompson, 825 So.2d at 947.

4. Consideration of the public’s interest in our system of justice

Last, Murphy’s fourth prong requires “that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy, 766 So.2d at 1030. Nevertheless, if the complaining party fails to establish that the argument being challenged is improper, harmful, and incurable, then the analysis does not proceed to the last prong of this four-part test. Moreta, 957 So.2d at 1254 (citing Murphy, 766 So.2d at 1030); City of Orlando v. Pineiro, 66 So.3d 1064, 1072 (Fla. 5th DCA 2011). Because Ms. Jimenez has not established that the challenged conduct and argument of defense counsel were both harmful and incurable, we need not consider the fourth prong of the Murphy test.

IV. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s order for new trial and remand this case for reinstatement of the final judgment.

Reversed and remanded.

LaROSE and BLACK, JJ., Concur.

      .We note that the transcript of the trial proceedings included in the record is limited to excerpts of the trial. The excerpts included in the record consist of the parties’ opening statements, the testimony of Ms. Jimenez, the testimony of her treating physician, and the parties’ closing arguments. In an appeal of an order for new trial based on alleged misconduct and improper argument of counsel, we would generally expect to have a complete trial transcript included in the record. However, in this case, Carnival designated only excerpts of the trial proceedings, and Ms. Jimenez did not designate any additional portions as authorized under Florida Rule of Appellate Procedure 9.200(b)(1). Moreover, Ms. Jimenez did not take any other steps to have the complete trial transcript included in the record. In her brief and at oral argument, Ms. Jimenez did not contend that the limited record is insufficient for appellate review. Because it appears that the limited record is sufficient for our consideration of the issues presented, we have reviewed the case on the merits. See Ed Ricke & Sons, Inc. v. Green, 468 So.2d 908, 911 (Fla.1985).

      . "John Smith” is not the doctor's real name. We use a pseudonym in this opinion to protect his privacy.

      . "A letter of protection is a document sent by an attorney on a client's behalf to a healthcare provider when the client needs medical treatment, but does not have insurance. Generally, the letter states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider’s bill from the proceeds of [a] settlement or award; and typically, if the client does not obtain a favorable recovery, the client is still liable to pay the provider’s bills.” Caroline C. Pace, Tort Recovery for Medicare Beneficiaries: Procedures, Pitfalls and Potential Values, 49 Hous. Law. 24, 27 (2012).

      . Scott A. Cole and Anne C. Sullivan, the attorneys who filed the brief on behalf of Carnival in this court, did not make appearances at the trial of the case.


author: PER CURIAM.

text:
    Oscar FOSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0544.
    District Court of Appeal of Florida, First District.
    March 5, 2013.
    Rehearing Denied May 20, 2013.
    Oscar Foster, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, C.J., WOLF and SWANSON, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    STATE of Florida, Appellant, v. Denice MERCER, Appellee.
    No. 2D11-2096.
    District Court of Appeal of Florida, Second District.
    March 6, 2013.
    Rehearing Denied April 15, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Chief Judge.

The State appeals an order discharging Denice Mercer based on a violation of the speedy trial rule. Mercer filed a motion for discharge after the State nolle prossed a misdemeanor petit theft charge in county court and filed a felony petit theft charge based on the same conduct in circuit court. The circuit court determined that the State violated the speedy trial rule by failing to provide Mercer notice of the felony charge prior to the expiration of the misdemeanor speedy trial period. We reverse.

On October 15, 2010, Mercer was arrested for shoplifting at Walmart and given a notice to appear in county court. The State filed a misdemeanor information charging Mercer with petit theft on December 3, 2010. Mercer was appointed counsel, and she filed a written plea of not guilty. At the arraignment hearing on January 6, 2011, the prosecutor informed the county court of its intention to dismiss the case and file it in circuit court as a felony. The county court then directed the clerk to take the case off the calendar.

On January 11, 2011, two days before the ninety-day misdemeanor speedy trial period expired, the State filed a nolle prosequi of the misdemeanor charge in which it expressed its intent to file the charge as a felony. The next day, the State filed a felony information in circuit court charging Mercer with felony petit theft based on the same conduct. No capi-as was issued on the felony information, and Mercer was therefore never arrested for the felony.

Mercer was appointed counsel for the felony case, and she filed a written plea of not guilty on January 31, 2011. She appeared with counsel at the arraignment hearing on March 10, 2011, and the case was set for pretrial on March 18, 2011, and for trial on March 21, 2011.

On March 10, 2011, Mercer also filed a notice of expiration of speedy trial time and motion for discharge. The circuit court held a hearing on the motion on March 14, 2011. The State initially argued that the motion should be struck as untimely because speedy trial did not run on the felony until April 8, 2011, which was 175 days after Mercer was given a notice to appear on the misdemeanor charge. Defense counsel argued that the ninety-day misdemeanor period applied and that the State was not entitled to the fifteen-day recapture period because Mercer was not provided notice of the felony charge before the expiration of the ninety-day misdemeanor period. The State countered that, even if the ninety-day period applied, the State had filed the felony charge within that time. The State asserted that once the charge was timely filed, the State had the felony speedy trial period in which to provide Mercer notice of the felony charge and bring her to trial.

The circuit court ruled that the State was required to both file the felony charge and provide Mercer notice of the felony charge before the misdemeanor speedy trial period had run. The court recognized that the State had filed the felony charge within the misdemeanor speedy trial period, but it granted the motion for discharge because the State failed to arrest Mercer or notify her of the felony charge during the misdemeanor speedy trial period. The circuit court relied upon State v. Agee, 622 So.2d 473 (Fla.1993), Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997), and State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995), in reaching its decision. We review the propriety of the court’s interpretation of the speedy trial rule de novo. See State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010).

Florida Rule of Criminal Procedure 3.191(a) provides that a defendant must be brought to trial within ninety days of being taken into custody if the charge is a misdemeanor and within 175 days of being taken into custody if the charge is a felony. A defendant is taken into custody if she is either arrested or served with a notice to appear in lieu of arrest. See Fla. R. Crim. P. 3.191(d). If the State enters a nolle prosequi after a defendant is taken into custody, the speedy trial period does not start over but continues to run. Fla. R. Crim. P. 3.191(o); Agee, 622 So.2d at 475. The State may still file charges based on the same conduct, but it must do so before the applicable speedy trial period has expired. Agee, 622 So.2d at 475.

The expiration of the applicable speedy trial period does not automatically entitle a defendant to discharge. State v. Pfeiffer, 872 So.2d 313, 314 (Fla. 4th DCA 2004). Instead, she must file a notice of expiration of speedy trial. Fla. R. Crim. P. 3.191(p)(2); Pfeiffer, 872 So.2d at 314. Upon such a filing, the court must conduct a hearing on the notice within five days. Fla. R. Crim. P. 3.191(p)(3); Pfeiffer, 872 So.2d at 315. If the court does not find that one of certain enumerated exceptions applies, then the State must bring the defendant to trial within ten days. Pfeiffer, 872 So.2d at 315. If the defendant is not brought to trial within this ten-day recapture period, she is entitled to discharge. Id.

There are some limited situations in which a defendant’s remedy for a violation of speedy trial is immediate discharge. The exception that the circuit court relied upon in this case occurs when the State terminates its prosecutorial efforts and then files charges without rearresting the defendant or providing the defendant notice of the new charges prior to expiration of the applicable speedy-trial period. See Cordero, 686 So.2d at 738; Morris, 662 So.2d at 379. But see State v. Jimenez, 44 So.3d 1230, 1236-37 (Fla. 5th DCA 2010) (holding that a defendant is not entitled to automatic discharge upon the expiration of speedy trial even though he was not provided actual notice that the charges were filed).

There are two aspects of the circuit court’s decision that require discussion. First, the circuit court held that, under Agee, the State was required to file the felony petit theft charge within the ninety-day misdemeanor speedy trial period. In Agee, the defendant was charged with attempted second-degree murder. 622 So.2d at 474. The State nolle prossed the charge prior to the expiration of the felony speedy trial period, and it filed a charge of attempted first-degree murder after the speedy trial period expired. The circuit court dismissed the charge on speedy trial grounds, and the district court affirmed. The district court held that when a defendant could have moved for discharge on speedy trial grounds the State may not enter a nolle prosequi and then refile charges after the speedy trial time period has expired. Id.

On appeal to the supreme court, the State argued that the speedy trial rule was inapplicable after the State nolle prossed the charges because the defendant was no longer an accused at that point. Id. The State alternatively argued that it was at least entitled to bring the defendant to trial within the recapture period. The supreme court rejected both arguments. Id. at 475. The court explained that allowing the filing of a nolle prosequi to toll the speedy trial period would eviscerate the speedy trial rule. Thus, the court concluded that the charges were properly dismissed. Id. at 476.

In this case, the circuit court relied on Agee to determine that the applicable speedy trial period for refiling was the original misdemeanor period even though the petit theft charge was refiled as a felony. However, this same argument has been rejected by the Fifth District. See Nesworthy v. State, 648 So.2d 259, 260 (Fla. 5th DCA 1994). In Nesworthy, the defendant was served with a notice to appear for a misdemeanor charge of driving under the influence. Id. at 259. After the expiration of the misdemeanor speedy trial period, the defendant filed a motion for discharge. The State subsequently nolle prossed the misdemeanor charge and filed an information charging the defendant with felony DUI with serious bodily injury and misdemeanor DUI with personal or property damage based on the same conduct. The defendant then sought speedy trial discharge as to the new charges. The circuit court granted the motion as to the misdemeanor but denied it as to the felony.

On appeal, the defendant argued that the court erred by failing to dismiss the felony charge because, under Agee, once the State nolle prossed the misdemeanor charge it had to file any felony charges within the misdemeanor speedy trial period. Id. The Fifth District disagreed, concluding that there was nothing in Agee that supported the defendant’s argument. Id. The court concluded, “It appears to us most logical, and most consistent with the scheme set forth in Rule 3.191, that notwithstanding the speedy trial status of any previously filed misdemeanor, a felony may be charged and the defendant brought to trial within the speedy trial time frames applicable to felonies.” Id. at 260; see also Bonilla v. State, 62 So.3d 1233 (Fla. 5th DCA 2011). And Nesworthy has been cited for this proposition with approval by the supreme court. See State v. Woodruff, 676 So.2d 975, 978 (Fla.1996).

Thus, contrary to the circuit court’s ruling, the State in this case had until the expiration of the 175-day felony speedy trial period to charge Mercer with felony petit theft and bring her to trial. Because Mercer was originally served with a notice to appear on October 15, 2010, the felony speedy trial period expired on April 8, 2011. The State filed the felony charges in January 2011, and the circuit court had set trial for the end of March 2011. Thus, the State had not violated Mercer’s speedy trial rights at the time of the hearing on her notice of expiration of speedy trial time and motion for discharge.

The second aspect of the circuit court’s decision that requires discussion is its reliance on Moms and Cordero to determine that Mercer was entitled to discharge because the State failed to provide her notice of the felony petit theft charge during the misdemeanor speedy-trial period. In Morris, the defendant was charged with felony drug trafficking and demanded a speedy trial. 662 So.2d at 378. During trial, the State discovered that its key witness was unavailable and nolle prossed the charge. The defendant was released from custody. On the next day, which was within the felony speedy trial period, the State filed the same charge. Id. However, the State failed to arrest the defendant on the charge. The defendant was not provided notice of the new charge until he was notified of the arraignment by mail after the expiration of the speedy trial period. The circuit court subsequently granted the defendant’s motion for discharge on speedy trial grounds, and the State appealed.

On appeal, the State argued that it had complied with the supreme court’s ruling in Agee by refiling the charge within the original speedy trial period. Id. at 379. The State asserted that when the defendant filed his motion for discharge it was entitled to bring him to trial within the recapture period. The Fourth District rejected these arguments. The court concluded that the State’s failure to provide the defendant notice of the refiled charge deprived him of his right to a speedy trial and the ability to move for discharge based on the violation of that right. The court ruled that affording the State the recapture period violated the purpose of the speedy trial rule and Agee. Id.

In Cordero, the Third District relied on Morris to reverse a defendant’s conviction based on the erroneous denial of the defendant’s motion for discharge on speedy trial grounds. 686 So.2d at 737-38. In Cordero, the State “no actioned” a pending case and released the defendant from custody. Id. at 737. Although the State refiled charges based on the same conduct within the applicable speedy trial period, it failed to provide the defendant notice of the charges until the speedy trial period had expired. The circuit court denied the defendant’s motion for discharge based on its finding that the State was entitled to bring the defendant to trial within the recapture period. Id. at 738. The Third District reversed, explaining that, as with the defendant in Morris, the State’s failure to provide the defendant notice of the refiled charges deprived him of his right to move for discharge based on the violation of his speedy trial rights. Id.

Morris and Cordero stand for the proposition that, under Agee, the State is required to not only refile nolle prossed charges within the applicable speedy trial time but to provide the defendant notice of those charges within that time period as well. These cases provide no relief to Mercer. Mercer had been notified of the felony charge and appeared at the arraignment hearing on that charge well within the applicable felony speedy trial time period. In fact, the felony speedy trial time period had not yet expired when the circuit court held the hearing on Mercer’s notice of expiration of speedy trial time period and motion for discharge. Accordingly, the circuit court erred in determining that the State violated the speedy trial rule by failing to provide Mercer notice of the felony charge prior to the expiration of the misdemeanor speedy trial period.

Mercer raises as an alternative theory for affirmance that the State cannot prosecute her for felony petit theft because it filed a nolle prosequi as to the misdemean- or petit theft charge and did not refile the misdemeanor with the felony charge. Relying on State v. Woodruff, 676 So.2d 976 (Fla.1996), Mercer argues that she is entitled to dismissal of the charge of felony petit theft because the State is unable to prove felony petit theft without proof of the misdemeanor. We find this argument unpersuasive.

In Woodruff, the defendant was originally arrested and issued misdemeanor notices to appear in county court for four DUI charges and for driving with a suspended license. Id. at 976. He entered a not guilty plea, and the county court set the case for trial. While these misdemeanor charges were pending in county court, the State filed an information in circuit court alleging almost identical misdemeanor charges based on the same conduct and adding a felony DUI charge based on the defendant’s having three previous DUI convictions. Id. at 976-77. After the ninety-day period for speedy trial on the misdemeanors ran, the defendant filed a notice of expiration of speedy trial and a motion for discharge in county court. Id. at 977. The defendant also filed a motion to dismiss on double jeopardy grounds in circuit court. The State responded by filing a nolle prosequi of the misdemeanor DUI charges in county court. The circuit court nonetheless granted Woodruffs motion to dismiss the information on double jeopardy grounds.

The Florida Supreme Court determined that double jeopardy did not bar the prosecution in circuit court but that estoppel precluded prosecution of the misdemeanor offenses in circuit court because these offenses were the same as those that the defendant sought to discharge in county court after the expiration of the speedy trial period. Id. With respect to the felony DUI, the court determined that estop-pel did not apply because felony DUI is “a completely separate offense from misdemeanor DUI” that requires proof of the additional element of the three prior DUI convictions. Id. The court determined, however, that it would be impossible for the State to obtain a felony DUI conviction because it required proof of a misdemean- or DUI conviction on the current charge and additional proof of three or more prior misdemeanor DUI convictions. Because the State was estopped from proving the misdemeanor DUI conviction on the current charge, it could not establish the elements of the felony DUI. Id. at 978.

Mercer argues that, under Wood-ruff, the State is estopped from using the nolle prossed misdemeanor petit theft charge to prove the felony petit theft. We recognize that the felony petit theft charge requires proof of the current petit theft. See § 812.014(3)(c), Fla. Stat. (2010) (“A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree ...”). But, unlike the felony DUI charge in Woodruff, the felony petit theft charge does not require a conviction on the current misdemeanor petit theft. In fact, the supreme court expressly noted this distinction in Woodruff when it stated, “It is the need to prove a current conviction which controls the outcome of this case. This rationale would not be applicable in a case in which the crime discharged by reason of the speedy trial rule was merely an element of the greater crime.” Woodruff, 676 So.2d at 978 n. 4.

In conclusion, the circuit court erred in determining that the speedy trial rule required the State to both file the felony petit theft charge and provide Mercer notice of the felony charge prior to the expiration of the misdemeanor speedy trial period. The applicable speedy trial period for refiling the felony petit theft charge in circuit court was the 175-day felony period. Because Mercer had been charged and provided notice of the felony petit theft charge within the applicable felony speedy trial time, the State did not deprive Mercer of her right to a speedy trial and the ability to move for discharge. Finally, Mercer’s alternative argument for affir-mance based on an estoppel theory is without merit because felony petit theft does not require a conviction on the third misdemeanor petit theft.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ., Concur.

      .In the words of the prosecutor, the case would "be going upstairs” because it was “being FOPS'ed into a felony.”

      . See Fla. R. Crim. P. 3.191(a).

      . See Fla. R. Crim. P. 3.191(a).

      . The supreme court in Woodruff refers to the misdemeanor charges as having been discharged on speedy trial grounds. However, it appears that the State filed a nolle prosequi before the county court could grant the defendant's motion to discharge. Regardless, the applicable speedy trial period had expired as well as the recapture period, and the defendant would have been entitled to immediate discharge. See Woodruff, 676 So.2d at 977.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Yunior AREVALO, Appellee.
    No. 4D11-3728.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in granting appellee’s motion to suppress on the grounds that a deputy could not call appellee back to appellee’s vehicle after observing appellee illegally park his car and then walk away. We find that the officer had the authority to call appellee back to his vehicle and that the trial court erred by granting the motion to suppress. We, therefore, reverse and remand.

In response to complaints about violations of “parking laws” in a neighborhood, a deputy sheriff performed a routine area check to determine if any cars were parked in violation of the parking laws. The deputy saw appellee park his car on the grass where a sign said “do not [p]ark.” By the time the deputy turned his car around to get to appellee’s car, appellee had already stepped out of the car and was crossing the street. The deputy “kind of motioned him to return to his car.” The deputy told appellee that he had parked his car illegally and asked to see appellee’s driver’s license. Appellee stated that he did not have a driver’s license, and instead handed the deputy his Florida identification card. The deputy moved appellee to the rear of his vehicle, and ran appellee’s information on the “teletype,” which advised the deputy that ap-pellee’s driver’s license had been suspended six times. At this point, the deputy asked appellee whether he knew his license was suspended, to which appellee responded “yes.” The deputy then placed appellee under arrest.

After a hearing on appellee’s motion to suppress, the trial court granted the motion. The trial court stated the following:

I have experienced parking tickets where they leave the ticket on the car. They don’t usually track down or go to the owner. This wasn’t an issue where the officer was giving him a courtesy, this was a citizen-encounter. The officer, it is clear — even [the state] conceded it at the time of the hearing, that this was a stop. This was not a consensual encounter. The defendant was ordered back. The defendant was ordered to produce his license.
So the issue is, does an officer, for the sole purpose of writing a traffic ticket, have a right to detain a person? And the officer was called back to testify at the hearing that he thought that there was some, perhaps, moving violation done by the defendant driving onto the grass. I would note that in Broward County, probably about half the people park on swales in the grass. So the fact that a person may drive onto a piece of grass to park in and of itself is not a dangerous or unusual activity, assuming that the officer was correct in the defendant not having the right to park where he parked.
Again, it is clear from the testimony that the defendant had left the car, was walking away, the officer ordered the defendant back, detained him, ordered the defendant to produce his driver’s license.
The Court does find that this was an illegal stop. The officer did not have any grounds to believe that the defendant was engaged in any criminal activity whatsoever. This was not even a stop for a moving violation for which the officer would have had the right to write a citation. This was a parking ticket that was directed at the vehicle, and I do not find that the officer had authority to detain the defendant for that purpose.

The state appeals the trial court’s granting of the motion to suppress.

A trial court’s ruling on a motion to suppress comes to the appellate court “clothed with the presumption of correctness,” and as such we “interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining] the trial court’s ruling.” Braddy v. State, 111 So.3d 810 (Fla. 2012) (citation omitted). We accept the trial court’s factual findings “so long as they are supported by competent, substantial evidence.” Gilbert v. State, 104 So.3d 1123, 1125 (Fla. 4th DCA 2012) (citation omitted). We review de novo the trial court’s application of the law to the historical facts. Id.

Generally, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Nonetheless, “the stop must last no longer than the time it takes to write the traffic citation.” Cresswell v. State, 564 So.2d 480, 481 (Fla.1990). Further, the term “traffic violation” encompasses non-criminal, non-moving violations. K.S. v. State, 85 So.3d 566, 570 (Fla. 4th DCA 2012) (stating officer was permitted to issue traffic violation for inoperable tag light).

In the present case, the deputy had probable cause to conduct a traffic stop under section 316.1945(l)(c)2., Florida Statutes (2011), which states that no person shall “[p]ark a vehicle, whether occupied or not, except temporarily for the purpose of, and while actually engaged in, loading or unloading merchandise or passengers” “[a]t any place where official signs prohibit parking.” An officer who finds a vehicle parked in violation of this section may either “[i]ssue a ticket form as may be used by a political subdivision or municipality to the driver” or “[i]f the vehicle is unattended, attach such ticket to the vehicle in a conspicuous place.” § 316.1945(3), Fla. Stat. (2011). “A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation”; thus, the alleged violator “must be cited for such an infraction and cited to appear before an official.” §§ 316.1945(4), 318.14(1), Fla. Stat. (2011).

Here, we conclude that the deputy’s act of calling appellee back to his vehicle to issue a citation, warning, or even request appellee to move his vehicle, did not transform the encounter into an impermissible seizure under the Fourth Amendment. The deputy observed appellee park in a grassy area marked with “do not park” signs, which provided the deputy with probable cause to conduct a traffic stop. Simply because appellee had exited his car by the time the deputy arrived, and the deputy could have left the citation on the vehicle, does not mean the deputy lacked the authority to order appellee to return to the vehicle. See State v. Gross, 39 Kan.App.2d 788, 184 P.3d 978, 982, 988 (2008) (stating that “officers had reasonable suspicion that a traffic violation had occurred,” after observing driver illegally park near a driveway and begin walking towards a house, and thus “the officers could have briefly detained [the driver] to issue him a ticket for the parking violation”).

In this case, the deputy was permitted to issue a ticket “to the driver” under section 316.1945(3), Florida Statutes (2011). Further, at the time of the stop, appellee did not need to be engaged in “criminal activity,” as stated by the trial court. See, e.g., Reid v. State, 898 So.2d 248, 249 (Fla. 4th DCA 2005) (“the officer did not need a reasonable suspicion of criminal activity for an investigatory stop, because the initial traffic stop was valid and appellant was not detained beyond the time necessary to issue a citation”). Nor did the observed offense have to be a “moving violation” in order for the deputy to issue a citation. See K.S., 85 So.3d at 570. Given the observed traffic violation, it was reasonable for the deputy to call appellee back to issue a traffic citation or warning, and to then conduct “the customary driver’s license ... and active warrant checks that routinely accompany a traffic stop.” D.A. v. State, 10 So.3d 674, 676 (Fla. 3d DCA 2009).

In summation, as we find that the deputy had probable cause to effect a traffic stop of appellee which included calling ap-pellee back to his vehicle, we reverse the order granting appellee’s motion to suppress and remand for further proceedings.

Reversed and remanded.

WARNER and CIKLIN, JJ., concur.

      . The deputy testified at the hearing that he wanted appellee "[n]ot to park there, [to] park properly.”

      . Further, section 316.1945(l)(a)10., Florida Statutes (2011), provides:
      (1) Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic control device, no person shall:
      (a) Stop, stand, or park a vehicle:

      10. At any place where official traffic control devices prohibit stopping.

      . Appellee argues that the trial court did not err in granting the motion to suppress because the state failed to establish that his act of parking on the grass was a violation of law, since there was no evidence of an "official traffic control device” prohibiting parking. After review of the transcript, we disagree that this was the basis for the trial court's ruling. Additionally, appellee did not contest below the state’s evidence on the issue of whether he illegally parked.

      . The trial court did not rule on whether any statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was the original basis for appellee’s motion to suppress. Accordingly, our decision is without prejudice to appellee again raising this argument in a re-filed motion to suppress.


author: EMAS, J.

text:
    Emanuel WARE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2430.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Emmanuel Ware was charged with attempted first-degree murder of Dion Ak-eem Maycock. Following a jury trial, he was convicted of attempted second degree murder. Ware appeals his conviction, contending that the trial court committed fundamental error in instructing the jury on the crime of attempted voluntary manslaughter. We affirm.

On appeal, Ware does not contend that the trial court’s wording of the jury instruction was erroneous. Rather, Ware contends that attempted voluntary manslaughter is a non-existent crime, and that the trial court committed error in giving any instruction at all. Ware argues that, because the jury ultimately convicted him of attempted second-degree murder — an offense one step removed from attempted voluntary manslaughter — this unpreserved error is fundamental, thus warranting a new trial.

Ware acknowledges the Florida Supreme Court, in Taylor v. State, 444 So.2d 931 (Fla.1983), held that attempted voluntary manslaughter is a viable offense in Florida. In doing so, the Taylor court distinguished the crimes of attempted voluntary manslaughter (manslaughter by act or procurement) and attempted involuntary manslaughter (manslaughter by culpable negligence):

We therefore hold that there may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. This holding necessitates that a distinction be made between crimes of “manslaughter by act or procurement” and “manslaughter by culpable negligence.” For the latter there can be no corresponding attempt crime. This conclusion is mandated by the fact that there can be no intent to commit an unlawful act when the underlying conduct constitutes culpable negligence. On the other hand, when the underlying conduct constitutes an act or procurement, such as an aggravated assault, there is an intent to commit the act and, thus, there exists the requisite intent to support attempted manslaughter.

Id. at 934.

Ware argues, however, that State v. Montgomery, 39 So.3d 252 (Fla.2010), effectively overruled Taylor and eliminated the crime of attempted voluntary manslaughter. This question was recently answered by the Florida Supreme Court, in Williams v. State, — So.3d - (Fla.2013), reaffirming that attempted voluntary manslaughter by act remains a viable offense after Montgomery.

Affirmed.

      . On the lesser included offense of attempted voluntary manslaughter, the trial court instructed the jury, in relevant part, that the State was required to prove "Emmanuel Ware intentionally committed an act which would have resulted in the death of Dion Akeem Maycock except that someone prevented Emmanuel Ware from killing Dion Akeem Maycock or he failed to do so." This instruction is consistent with the current state of the law of attempted voluntary manslaughter. See State v. Montgomery, 39 So.3d 252 (Fla.2010) (holding that the crime of voluntary manslaughter does not require proof of intent to kill, but proof of the requisite intent to commit an act which caused death); Taylor v. State, 444 So.2d 931 (Fla.1983) (holding that the crime of attempted voluntary manslaughter does not require proof of intent to kill, but proof of the requisite intent to commit an unlawful act which could have, but did not, cause death).

      . Ware did not raise this issue at the trial court; he raises it for the first time on appeal.