author: SUAREZ, J.

text:
    CITY OF MIAMI, Appellant, v. Jean Marie JEAN-PHILLIPE, Appellee.
    No. 3D16-1172
    District Court of Appeal of Florida, Third District.
    Opinion filed November 13, 2017

      Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellant.
    ' Buschel Gibbons, P.A. and- Robert C. Buschel and Eugene G. Gibbons (Ft. Lauderdale), for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   SUAREZ, J.

. The City of Miami (the “City”) appeals the circuit court’s grant of summary judgment in favor of Appellee Jean Marie Jean-Phillipe (“Jean-Phillipe”) in his challenge to the City Manager’s actions following a Civil Service Board review of a disciplinary action against him. Finding error in the procedures followed below, we reverse and remand so that Jean-Phillipe may pursue his proper remedy of an appeal to the appellate division of the circuit court.

Factual Background

As the details of the complaints lodged against Jean-Phillipe are irrelevant to the issue in this appeal and our analysis of that issue, it is sufficient for purposes of this opinion to state that following an investigation by the City’s police department, Jean-Phillipe, a City of Miami police officer, was issued a reprimand and suspended for 200 hours, Jean-Phillipe appealed that suspension to the Civil Service Board pursuant to the remedies afforded him under the City of Miami Code of Ordinances. The Civil Service Board found Jean-Phillipe not guilty of the actions for which he was disciplined. Those written findings were forwarded to the City Manager, also pursuant to the procedures set forth in the Code of Ordinances. The City Manager rejected the finding of innocence as to one charge and imposed a 200 hour suspension as to that charge.

Jean-Phillipe then brought an action for declaratory, relief in the circuit court. Jean-Phillipe argued that the City Manager did not have the authority to reverse the Civil Service Board’s finding of not guilty. Over the City’s objection, the circuit court granted summary judgment in favor of Jean-Phillipe and issued a Final Judgment which vacated- the City Manager’s suspension and remanded to the City to reinstate the Civil Service Board’s recommended finding of not guilty. The City then filed the present appeal.

Because we find that the procedures followed by both parties in this case were incorrect, we reverse and remand. As explained below, the appropriate remedy for Jean-Phillipe was to seek review of the City Manager’s determination in the appellate division of the circuit court and not in the circuit court itself. As further explained below, the City Manager’s review of the findings of «fact by the Civil Service Board was limited, and, upon remand, the appellate division will have to decide whether his determination that those conclusions were not supported by competent substantial evidence was proper. Finally, we clarify that the City had no right to challenge the City Manager’s final determination on its own, but could properly respond to any appeal brought by Jean-Phillipe.

City of Miami Code Provisions

In pertinent parts, the Code of Ordinances states:

40-122 — Disciplinary Actions Generally.
(a) Authority of city manager, department director; appeals to board; investigatory, evidentiary powers of board. Any officer or employee in the classified service may be removed, fined, laid off, or reduced in grade by the city manager or by the director of the department in which he/she is employed, for any cause which will promote: the efficiency of the service; but he/she must be furnished with a written statement of the reasons therefor.within five days from the date of the removal, suspension, fine, layoff, or reduction in grade, and be allowed a reasonable timé for answering such reasons in writing, which shall be made a part of the records of the board; and he/she may be suspended from the date when such written statement of reason is furnished him/her. No trial or examination of witnesses shall be required in such case except at the discretion, of the city manager or the department director.
Any employee in the classified service whp deems that he/she has been suspended, removed, fined, reduced in grade or demoted without .just cause may, within 15 days of such action by the department director, request in writing a hearing before the civil service board to determine the reasonableness of the action, [e.s.] The board shall, within 30 days after appeal.of the employee disciplined, proceed to hear such appeal. After hearing and considering the evidence for and against the employee, the board shall report in writing to the city manager its findings and recommendations. The city manager shall then sustain, reverse, or modify the action of the department director ,,. [e.s.]
40-124 — Appeals from Disciplinary Actions.
(a) Generally. When any employee in the classified service with permanent civil service status has been suspended, reduced in rank, or dismissed appeals to the board, the appeal must be made in writing within 15 days from the effective date of'the suspension, reduction, or dismissal; and the board within 30 days shall proceed to hear such appeal. The board, recognizing the disciplinary authority-of the administrative head ... shall make its findings in writing to the city manager for his/her consideration, who shall enter an order affirming, reversing, or modifying the disciplinary action of the department director .... [e.s.]

It should be noted that the Code of Ordinances does not expressly address the rights of the parties to any further review of a disciplinary action after the City Manager has issued her or his final determination.

Punishments Imposed

While it must be acknowledged that the foregoing Ordinances are not a model of careful or clear writing, the Ordinances do make it abundantly clear that an employee in classified service may request a review by the Civil Service Board for a determination of the reasonableness of the disciplinary action brought against the employee. The Civil Service Board acts in place of a jury as the trier of facts.. The Board determines the truth or falsity of the facts and makes findings of guilt or innocence and makes a recommendation as to discipline, if any. State ex rel. Eldredge v. Evans, 102 So.2d 403 (Fla. 3d DCA 1958). Following the review, the Civil Service Board is required.to submit a written report to the City Manager of its findings and recommendations. The City Manager then reviews the Civil Service Board’s Report to determine whether the Board’s factual findings are supported by competent substantial evidence and reviews the Board’s recommended discipline. City of Miami v. Huttoe, 38 So.2d 819, 820 (Fla. 1949); City of Miami v. Reynolds, 34 So.3d 119 (Fla. 3d DCA 2010); Town of Surfside v. Higgenbotham, 733 So.2d 1040, 1045 (Fla. 3d DCA 1999). The City Manager is not required to follow the Board’s- disciplinary recommendation as it is the sole prerogative of the City Manager to impose the discipline. Reynolds, 34 So.3d at 120; see City of Miami v. White, 165 So.2d 790, 791-92 (Fla. 3d DCA 1964).

The City Manager has three disciplinary options upon receipt of the Civil Review Board’s written findings of fact and recommendation. He or she may 1) affirm; 2) reverse; or 3) modify the disciplinary action recommended against the employee. It is equally plain that the term “modify” necessarily includes the possibility of an increase in that disciplinary action. Thus, any employee who opts to seek a Civil Service Board review of a disciplinary action against him or her takes the risk that a harsher penalty may be imposed as a result of such an appeal and must give due consideration to that possibility when deciding whether or not to seek Civil Service Board review. See Reynolds, 34 So.3d at 120 (agreeing that “once misconduct has been determined by the Civil Service Board, the penalty to be assessed comes within the exclusive discretion of the City Manager and may be imposed without elucidation.”).

What is less clear, and what has been made less clear through the case law, is the proper procedure to be followed once the City Manager has entered her or his order. We seek here to clarify that issue so that the parties to all pending and future disciplinary actions subject to Sections 40-122 and 40-124 of the City of Miami Code of Ordinances, or their equivalents, may have a clear understanding of their rights and remedies.

First, it must be made plain that the City itself has no remedies following the City Manager’s review of a disciplinary proceeding. This is so because the City Manager is, in effect, acting as the City when she or he reviews a Civil Service Board recommendation. No legal principle permits a party to appeal from its own determination. Once the City Manager has acted, the City must simply abide by whatever determination has been made.

An employee subject to a disciplinary action is not, however, equally without remedy. Once the City Manager has issued her or his order, the employee may file an appeal with the appellate division of the circuit court. In that appeal the employee may challenge the City Manager’s factual determinations, but not, as just explained, the disciplinary penalty imposed by the City Manager.

Prior Cases

A review of prior cases demonstrates that parties to a disciplinary proceeding have followed a number of paths in their efforts to obtain their desired outcome after the City Manager has acted. Despite the various procedures followed in those cases, this Court set forth the proper procedure for a disciplined employee to seek review of the City Manager’s action in Miami-Dade Cnty. v. Moreland, 879 So.2d 23 (Fla. 3d DCA 2004). There, following a disciplinary action, review by the Civil Service Board and affirmance by the City Manager, the employee filed an independent complaint for discrimination and the County petitioned for prohibition to prevent that action from proceeding. In granting the petition, this Court expressly stated:

Where a civil service employee pursues civil service administrative remedies, the employee is precluded from bringing an independent action in Circuit Court to challenge the propriety of the [discipline], .... [0]nce the employee submits himself to the administrative review procedures provided by the Ordinance, the employee has been afforded a quasi-judicial hearing and is not entitled to a de .novo hearing in Circuit Court on the claim. Instead, the employee must institute an appellate proceeding in the Circuit Court Appellate Division to review the adverse determination, [e.s].

Id. at 24-25 (citing Bass v. Metro Dade Cnty. Dep’t of Corr. and Rehab., 798 So.2d 835 (Fla. 3d DCA 2001), and City of Miami Springs v. Barad, 448 So.2d 510, 511 (Fla. 3d DCA 1983)); see also Sch. Bd. of Leon Cty. v. Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977) (cited by Barad, examining history of the APA and holding “in the vast majority of cases, the sole method of challenging agency action, whether formally recognized as an ‘order’ or a ‘rule’, as it affects the substantial interests of a party is by petition for review to the appropriate Court of Appeal.”); 2 Fla. Prac., Appellate Practice § 19:9 (2016 ed.) (“Article V, § 5(b) of the Florida Constitution states that the circuit courts shall ‘have the power of direct review of administrative action prescribed by general law.’ However, there is often no general statute that authorizes an appeal from a decision by a local administrative body such as a county commission. To implement the basic right of appellate review, the courts have held that an unappealable decision by a local administrative tribunal is reviewable by certiorari in the circuit court. This use of certiorari is unlike any other, in that the scope of review is actually more like a plenary appeal.” (e.s.)). In this case, no general statute authorizes an appeal from the actions of the City Manager, so a disciplined employee falls within the scope of the just-cited authorities.

We note that the caption given to any pleading before the appellate division is irrelevant. Rather, what, is important is that the proper — and only — tribunal for review of the City Manager’s determination of a Civil Service Board recommendation is the appellate division of the circuit court for plenary review.

City Manager’s Authority as to Factual Findings

As indicated above, in this case the Civil Service Board found Jean-Phillipe not guilty of the charges against him. Upon review, the City Manager concluded that one such finding was not based on competent substantial evidence and reversed the finding of not guilty as to that charge. Jean-Phillipe argues that the City Manager lacked the authority to reverse, the finding of not guilty. In essence Jean-Phillipe argues that the City Manager had no alternative but to reinstate him once the Civil Service Board found him not guilty. We disagree.

We conclude that the City Manager has the authority to review the Civil Service Board’s findings of fact .to determine whether they were supported by competent ■ substantial evidence. However, because we are remanding for pursuit of the proper appellate procedure in this case, we do not reach a conclusion as to whether the City Manager properly exercised that ability in this case and we imply no opinion on the matter.

The powers.of the City Manager with respect to findings of fact in disciplinary actions was first addressed- by this Court in State ex rel. Eldredge, 102 So.2d 403. In that case this Court stated:

[T]he Civil Service Board acts in the ñafiare of a jury or trier of the facts. The Board determines the truth or falsity of the charge and makes a finding as to the guilt or innocence of the accused. This finding or adjudication of guilt or innocence is then reported to the City Manager, together with their recommendations, and it is then the prerogative and duty, of the City Manager[] to pass judgment as the findings indicate and the circumstances of the case require .., ⅜ Such recommendations may be followed or disregarded by the City Manager in imposing punishment.
We do not infer by anything said here that the City Manager[ ]' could disregard findings of the Civil Service Board of the guilt or innocence of an accused employee when such findings are supported by substantial evidence.

Id. at 405-06; See also Town of Surfside, 733 So.2d at 1047 (analyzing a parallel provision and finding that “[t]he Town Manager may not disregard the findings of fact made by the Hearing Examiner unless there is no competent substantial evidence to support them”); Miami-Dade Cnty., 778 So.2d 409. (examining a parallel provision and concluding findings of fact were supported by substantial evidence). While not expressly so stated In the foregoing cases, long precedent dictates that with respect to the City Manager’s ability to “disregard” a Civil Service Board’s factual finding if not supported by competent substantial evidence, the City Manager is not permitted to re-weigh the évidence nor judge the credibility of the witnesses.

In a proper appeal of the "City Manager’s determination, Jean-Phillipe will be able to challenge the City Manager’s conclusion that a factual determination was not supported by competent substantial evidence. In such an appeal, the circuit court’s appellate division would be bound to follow the abundant case law regarding competent substantial evidence. See Wiggins v. Florida Dep’t of Highway Safety & Motor Vehicles, 209 So.3d 1165, 1171-75 (Fla. 2017), and cases cited therein; Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014) (“A trial court is bound by- a master’s factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous.” (quoting Linn v. Linn, 523 So.2d 642, 643 (Fla. 4th DCA 1988)). The appellate court “will review de novo the trial court’s decision that the findings of fact ... are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.” In re Drummond, 69 So.3d 1054, 1057 (Fla. 2d DCA 2011).

As articulated by the Florida Supreme Court in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957):

In certiorari the reviewing court will not undertake to re-weigh or evaluate the evidence presented before the tribunal or agency whose order is under examination. The appellate court merely examines the record below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which, also must accord with the essential requirements of the law.'It is clear that certiorari is in the nature of an appellate process. It is a method of obtaining review, as contrasted to a collateral assault.
We have used the term ‘competent substantial evidence’ advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion ..... We are of the view that the evidence relied upon to sustain. the ultimate finding should be sufficiently releyant and material that a reasonable mind would accept it as adequate to support the conclusion reached.

To dot the final “i” and cross the final “t” in this case, we explicitly state that following a proceeding in the appellate division of the circuit court, either party to a disciplinary action may pursue further remedy by way of second-tier petition for certiorari to this Court. As always, that second-tier certiorari review will be narrowly limited tó (1) whether the lower tribunal afforded procedural due process and (2) whether the lower tribunal applied the correct law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010).

Conclusion

To recapitulate, a civil service employee , subject to a City of Miami Code 40-122 disciplinary action may request review of the disciplinary action by the Civil Service Board. The Civil Service Board will make its findings in writing and will make a recommendation regarding the discipline imposed. Those findings and recommendation will be forwarded to the City Manager who will review the Report to determine if the factual basis of the Board’s findings are based on substantial competent evidence and will review the Board’s disciplinary recommendation. In reviewing the Board’s disciplinary recommendation, the City Manager may 1) affirm; 2) reverse; or 3) modify the discipline recommended by the Civil Service Board. The term “modify” carries with it the possibility of an increase of whatever punishment has been recommended. In reviewing the findings of fact from the Civil Service Board, the City Manager'may review the record to determine if such findings are supported by competent substantial evidence, but may not reweigh' the evidence presented or judge the credibility of witnesses. Rather, shé or he is limited to determining whether some competent,, substantial evidence was presented that would- support the Civil Service Board’s findings..

Once the City Manager has acted, if an employee is dissatisfied with the outcome of the City Manager’s review of the Civil Service Board’s recommendation, that employee may petition for review before the appellate division of the circuit court. Such review will be in the nature of a plenary appeal.

If, after a proceeding before the appellate division of the circuit court either party to the proceeding is dissatisfied with the outcome, that party may seek second-tier certiorari relief from this Court, under the extremely limited review afforded by such proceedings.

Because the foregoing procedures were not followed in this case, we reverse the summary judgment in favor of Jean-Phil-lipe and remand for a plenary appeal before the appellate division of the circuit court.

Reversed and remanded.

      . It is understandable that if a harsher penalty is indeed imposed an employee could conclude that she or he was unfairly punished merely for exercising her or his appellate rights, but that is an unfortunate result of the present wording of the Code of Ordinances which we are without authority to remedy.

      . We acknowledge that dictum in City of Miami v. Martinez-Esteve, 125 So.3d 295 (Fla. 3d DCA 2013), indicated that the City may be able to seek review of the Civil Service Board’s actions by way of an appeal to the circuit court’s appellate division. We reaffirm here that any implication in Martinez-Esteve that the City has a right to review of a Civil Service Board recommendation was dictum. The implication therein that an independent lawsuit by an employee following a City Manger’s review of a Civil Service Board recommendation may be appropriate was likewise dictum. Moreover, that case did not involve factual findings and conclusions of law by the Civil Service Board as occurred here, but instead involved only interpretation of City policy, so its holding is inapplicable in this context in any event.

      .City of Miami v. Martinez-Esteve, 125 So.3d 295 (Fla. 3d DCA 2013) (complaint for declaratory relief, injunction and monetary damages by employee); Lee Cnty. v. Harsh, 44 So.3d 239 (Fla. 2d DCA 2010) (petition for certiorari by employee); City of Miami v. Reynolds, 34 So.3d 119 (Fla. 3d DCA 2010) (appeal to circuit court by employee); Miami-Dade Cnty. v. Jones, 778 So.2d 409 (Fla. 3d DCA 2001) (appeal to circuit court by employee); Kee v. Miami-Dade Cnty., 760 So.2d 1094 (Fla. 3d DCA 2000) (appeal to circuit court by employee); Town of Surfside v. Higgenbotham, 733 So.2d 1040, 1047 (Fla. 3d DCA 1999) (appeal to circuit court by employee); City of Hollywood v. Fielding, 362 So.2d 362 (Fla. 4th DCA 1978) (petition for mandamus by employee); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DCA 1976) (petition for certiorari by employee); City of Miami v. White, 165 So.2d 790 (Fla. 3d DCA 1964) (petition for certiorari by employee); State ex rel. Eldredge v. Evans, 102 So.2d 403 (Fla. 3d DCA 1958) (petition for mandamus by employee); City of Miami v. State ex rel. Houston, 102 So.2d 176 (Fla. 3d DCA 1958) (petition for mandamus by employee).

      . See also Art. V, 20(c)(3) Fla. Const. ("Circuit courts shall have jurisdiction of appeals from county courts and municipal courts, except those appeals which may be taken directly to the. supreme court; and they shall have exclusive original jurisdiction in all actions at law not cognizable by the county, courts”); Fla. R. App. P. 9.030(c)(1)(C) (articulating the circuit courts’ jurisdiction over administrative action).

      . The City Manager also imposed as discipline a 200 hour suspension, thereby affirming the 200 hour suspension imposed by the Department,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles GLADDEN, Appellant, v. FISHER THOMAS, INC., The Green-Simmons Company, Inc., and Shawn Michael Averett, Appellees. The Green-Simmons Company, Inc., Cross-Appellant, v. Wilson Floor Covering of Pensacola, Inc., Cross-Appellee.
    CASE NO. 1D16-1752
    District Court of Appeal of Florida, First District.
    Opinion filed November 15, 2017.
    Rehearing Denied January 16, 2018

      Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Bobby J. Bradford of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola, for Appellant.
    W. David Jester, M. Austin Moretz, and Jessica L. Scholl of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellee/Cross-Appellant The Green-Simmons Company, Inc.
    Gregory M. Shoemaker of Wade, Palmer & Shoemaker, P.A., Pensacola, for Appel-lees Fisher Thomas, Inc., and Shawn Michael Averett.
    Peter S. Roumbos of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Cross-Appellee.
   PER CURIAM.

This is an appeal from a final summary. judgment entered against Appellant, Charles Gladden, and in favor of Appel-lees, Fisher Thomas, Inc. (“Fisher Thomas”), The Green-Simmons Company, .Inc. (“Green-Simmons”), and Shawn Michael Averett (“Averett”). The issue before us is whether Gladden can maintain an action against Appellees in tort for injuries he sustained in the course and scope of employment, after electing exemption from workers’ compensation coverage as a corporate officer. For the reasons that follow, we conclude that he cannot and affirm the lower court’s decision, although for reasons different than those articulated by the court.'

I.

The action underlying this appeal involves a claim by Gladden arising from a workplace injury occurring on June 2, 2009, while Gladden performed flooring installation work at the Opal Beach Ranger Station. Gladden alleged that he was severely injured when Averett, an employee of Fisher-Thomas, lifted materials to him with a forklift. The load was improperly secured, causing Gladden to fall from the second floor of the job site, which had no railing or other fall prevention in place.

At the time of the incident, Greeri-Sim-mons was the general contractor retained by the National Park Service for the project. Green-Simmons entered into separate subcontracts with Fisher Thomas and Wilson Floor Covering, Inc. (Wilson Floor) to perform work on the contract. Unbeknownst to Green-Simmons, - Wilson Floor entered into a sub-subcontract with Gladden’s company, Chuck Gladden’s Carpet & Vinyl Installation, L.L.C.- (“Gladden Carpet”), to' perform the work Wilson Floor was to perform under its subcontract with Green-Simmons.

The contract with the National Park Service required Green-Simmons and its subcontractors to maintain workérs’ compensation insurance, which Green-Simmons, Fisher Thomas, and Wilson Floor did at all relevant times. As an officer of Gladden Carpet, Gladden elected to be exempt from workers’ compensation coverage pursuant to section 440.02(15)(b)l., Florida Statutes (2008). While Gladden provided a copy of his certificate of exemption to Wilson Floor, neither Gladden nor Wilson Floor notified Green-Simmons of the exemption.

Gladden sued Green-Simmons, Averett, and Fisher Thomas under a theory of negligence. Green-Simmons, in turn, filed a third-party complaint against Wilson Floor, Appellees argued in their motions for summary judgment that they were immune from suit because Gladden was a “statutory employee” of Green-Simmons under the Workers’ Compensation Law and potentially in line for workers’ compensation benefits. In response, Gladden argued that a corporate officer who properly elects to be exempt'from the Workers’ Compensation Law is- excluded from the definition of an “employee,” thereby precluding a finding of immunity.

The trial court entered summary judgment in favor of Appellees, concluding that Gladden was an “employee” under the Workers’ Compensation Law at the time of the accident notwithstanding -his exemption. The court ruled that Appellees were therefore entitled to workers’ compensation immunity as a -matter of law. The court additionally ruled that Wilson Floor was immune from any claims arising from the allegations levied by Gladden against Green-Simmons on the basis of workers’ compensation exclusivity. This appeal and cross-appeal followed...

IL

The purpose of the workers’ compensation system is to provide an expeditious remedy for employees, regardless of fault, and liability for employers that is limited and determinate. McLean v. Mundy, 81 So.2d 501, 503 (Fla. 1955) (citations omitted). Under the Workers’ Compensation Law, an employer that maintains workers’ compensation insurance coverage for the benefit of its employees is immune from, tort liability for a workplace injury. § 440.11(1), Fla. Stat. (2008) (except as otherwise provided, “[t]he liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability ... to the employee”); VMS, Inc. v. Alfonso, 147 So.3d 1071, 1074 (Fla. 3d DCA 2014). A general contractor who has “the liability to secure coverage” for employees of its subcontractor and either secures coverage for the subcontractor’s employees or ensures that the subcontractor secures coverage for its employees enjoys the same immunity. VMS, Inc., 147 So.3d at 1074-75; § 440.10(l)(e), Fla. Stat. (2008).

The issué, as framed by Gladden, is whether Gladden was an “employee” under the Workers’ Compensation Law at the time of the accident. If, as the trial court found, Gladden was an “employee” under section 440.G2(15)(c)2., Florida Statutes (2008), Gladden concedes that the exclusive remedy for his injuries falls under the protections provided by the workers’ compensation system, as horizontal and vertical immunity would insulate Appellees from tort liability. If he was not an “employee,” however, he contends that workers’ compensation immunity does not apply-

The Workers’ Compensation Law contains definitions of commonly used terms that apply “unless the context clearly requires otherwise.” § 440.02, Fla. Stat. (2008). For workers in the construction industry, an “employee” includes “[a]ll persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected am exemption as permitted by this chapter.” § 440.02(15)(c)2., Fla. Stat. (emphasis added). The definition section further provides that an “employee” does not include

[a]n officer of a corporation that is engaged in the construction industry who elects to be exempt from the provisions of this chapter, as otherwise permitted by his chapter. Such officer is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 is effective.

§ 440.02(15)(d)8., Fla. Stat.

Here, it is undisputed that Gladden had filed the required election for exemption and that the exemption was current on the date of the accident. Thus, under the plain language of the foregoing definitions, Gladden did not satisfy the definition of “employee” at the time of the accident. If that were the end of the analysis, we could readily conclude that Appellees were not entitled to immunity.

But the analysis cannot end there because the Florida .Supreme Court instructed in Weber v. Dobbins, 616 So.2d 956 (Fla. 1993), that context matters. The question before this Court is not whether Gladden, as an “employee,” is eligible to make a claim for workers’ compensation benefits as a result of his on-the-job accident. The question is whether Appellees qualify for tort immunity under section 440.11.

In Weber, the Florida Supreme Court expressly declined to apply the section 440.02 definition of “employee,” which refers to “those persons who are entitled to file claims under the Workers’ Compensation Law,” to “the context of granting statutory immunities provided by the Workers’ Compensation Laws.” 616 So.2d at 959. In that ease, a worker was injured while he was working under the direction of Howard Weber, a corporate officer of Preferred Enterprise Signs. Id. at 957. The injured worker made a claim for and received worker’s compensation benefits from Preferred Enterprise Signs, but also filed a negligence action against Weber as a result of his injuries. Id. Weber defended against the action based on the immunity provisions in section 440.11, Florida Statutes (1983). Id. at 958. The issue boiled down to whether Weber, who had elected to be exempt from workers’ compensation coverage as a corporate officer, could benefit from workers’ compensation immunity. Id. The answer was yes. In contrasting the context in which the term “employee” is used in the definition section of the Workers’ Compensation Law and the context it is used in the section granting employers and employees immunity from- liability claims, the court concluded that “[a] particular person’s immunity from suit is not related to that person’s entitlement to make a workers’ compensation claim.” Id. at 959. It explained that applying the relevant statutory sections literally, without considering context, “would lead to an unreasonable or ridiculous conclusion.” Id.

Gladden contends that by electing the corporate officer exemption, he is in effect removing himself from the entire workers’ compensation scheme and opening the door to actions in tort against individuals and entities who would otherwise be entitled to workers’ compensation immunity. But that is asking too much of the benefit derived from the corporate exemption in light of Weber and is inconsistent with other provisions of the Workers’ Compensation Law. Section 440.05(14), Florida States (2008), which governs the procedures for election of the corporate officer exemption, makes clear that the quid pro quo for reduced workers’ compensation premiums associated with the exemption is that the officer electing exemption “may not recover benefits or compensation under [the Workers’ Compensation Law].” See also § 440.077, Fla. Stat. (2008). The only provision in the Workers’ Compensation Law that specifically addresses the impact of the corporate exemption on workers’ compensation immunity is section 440.075, which permits an exempt corporate officer to proceed against “the corporate employer” at common law in an action to recover damages for injury or death. § 440.075, Fla. Stat. (2008) (emphasis added). Since the corporate employer reaps the benefit of reduced workers’ compensation premiums for the exempt officer, it makes sense that there is a risk associated with the benefit.

III.

Gladden’s exemption from workers’ compensation coverage does not equate to his ability to circumvent the immunity protections of section 440.11, except as provided by section 440.075. We therefore AFFIRM the trial court’s final summary judgments.

RAY, OSTERHAUS, and BILBREY, JJ., CONCUR.

      . The "tipsy coachman” doctrine allows an appellate court to affirm a trial court that "reaches the right result, but for the wrong reasons” if there is "any basis which would support the judgment in the record." Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (citation omitted).

      . Section 440.02(9), Florida Statutes (2008), provides that “[a]s to persons engaged in the construction industry, the term ‘officer of a corporation’ includes a member owning at least 10 percent of a limited liability company created and approved under chapter 608.”

      . Chapter 440, Florida Statutes (2008), is known as the "Workers' Compensation Law.”

      . Because Green-Simmons’ Cross-Appeal is a contingent appeal, both Green-Simmons and Wilson Floor agree that the outcome of Gladden’s appeal will apply equally to both Green-Simmons and Wilson Floor.


author: FERNANDEZ, J.

text:
    A.S., the Mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 3D17-2019
    District Court of Appeal of Florida, Third District.
    Opinion filed November 15, 2017
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert,. Assistant Regional Counsel, for petitioner.
    Karla Perkins, for the Department of Children and Families, for respondent.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

A.S., the mother of the minor children, petitions this Court to enter a writ of certiorari quashing the trial court’s order requiring that A.S. stay away from her mother, V.S., the grandmother of the minor children, who is the permanent guardian of A.S.’s minor children. A.S. has failed to demonstrate a departure from the essential requirements of law that cannot be remedied on direct appeal, thus we deny the petition for writ of certiorari.

On August 2, 2017, the trial court heard evidence concerning the petition for injunction against domestic violence filed by V.S., seeking an order directing A.S. to stay away from V.S. At the conclusion of the hearing, the trial court entered the Stay Away Order, not in the pending domestic violence case that was the subject of the hearing, but in the closed permanent guardianship that pertains to A.S., her children, and V.S., as permanent guardian.

A.S. complains that ,the permanent guardianship was reopened without notice, and cites to the provisions of Florida Statute section 39.621(10) and Department of Children & Families v. B.D., 102 So.3d 707 (Fla. 1st DCA 2012), for the proposition that the trial court may not reopen the permanent guardianship without giving proper notice to the mother and ensuring that she is properly represented by counsel or, at minimum, ensuring that she is informed of her right to counsel in the dependency proceeding. However, section 39.621(10) and B.D. are intended to prescribe the procedure that the trial court must follow when a parent files a motion to reopen a permanent guardianship for the purpose of securing additional time with the minor children or a change in custody. No language in the statutory provision or the cited case precludes a trial court from acting sua sponte in the best interest of the minor children, when appropriate.

Consequently, because A.S. has failed to demonstrate a departure from the essential requirements of law that cannot be remedied on direct appeal, we deny the petition for writ of certiorari.

Petition denied.

      . Section 39.621(10) reads as follows:
      The permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child. If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order. At the hearing, the parent must demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification,


author: LOGUE, J.

text:
    Willie PINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-735
    District Court of Appeal of Florida, Third District.
    Opinion filed November 15, 2017.

      Law Offices of Daniel J. Tibbitt, and Daniel Tibbitt, for appellant.
    ‘ Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ.
   LOGUE, J.

This is an appeal from the denial1 of a Rule 3.850 motion for postconviction relief. The defendant argues that his trial counsel was ineffective for failing to object to jury instructions that allegedly contravened State v. Montgomery, 39 So.3d 252 (Fla. 2010). We affirm,

The defendant was convicted of the second-degree murder of Walter King and the attempted second-degree murder of Cedric Bivens. According to multiple witnesses, including one victim who survived,‘ the' defendant shot King and Bivens when they were ten to fifteen feet away from him.’ The defendant, who. also testified at trial, claimed he shot out of fear, without any intent .to hit the victims.

After the defendant was found guilty, he appealed and this Court affirmed per cu-riam in Pinson v. State, 75 So.3d 739 (Fla. 3d DCA 2011). In December 2013, the defendant filed a Rule' 3.850 motion for postconviction relief. Following an eviden-tiary hearing, the postconviction court denied the motion and this appeal followed. Of the multiple, points on appeal, we address one point and affirm all others, without further discussion.

The defendant argues that his trial counsel was ineffective because he failed to object to the manslaughter by act and the attempted manslaughter by act jury instructions. By asserting that the jury instructions lacked a fundamental element of the charged offense, namely that the defendant’s intentional act must have caused death, the defendant in reality is challenging the substance of the instructions. He is procedurally barred from doing so at this time.

The time to raise , the adequacy of the instructions was on direct appeal. Having failed to raise the issue then, the defendant cannot raise the issue now under the guise of a claim of ineffective assistance of counsel. As our Supreme Court has held, “[t]he substantive challenges to these jury instructions are procedurally barred because [the defendant] could have raised these claims on direct appeal.” Thompson v. State, 759 So.2d 650, 665 (Fla. 2000); see Israel v. State, 985 So.2d 510, 520 (Fla. 2008) (“Claims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal. ... Moreover, this Court will not consider such procedurally barred claims under the guise of ineffective assistance of counsel;”); Rodriguez v. State, 919 So.2d 1252, 1280 (Fla. 2005) (“Claims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal.”).

Even if the defendant overcomes this procedural hurdle, his claim still fails. The defendant argues that “[b]oth instructions omitted a fundamental element of the offense of voluntary manslaughter, to wit, that the defendant’s intentional áct must have caused the death.” (emphasis in original). But the flaw, if any, in the instructions that he challenges actually benefited the defendant. By making it easier to convict for the lesser charges, the instructions made it more likely.that the defendant would be found guilty of the lesser offenses of manslaughter and attempted manslaughter and therefore less likely that the defendant would be found guilty of the higher offenses of second-degree murder and attempted second-degree murder.

In contrast, the defect at issue in Montgomery made it harder to convict of the lesser offense because “a reasonable juiy would believe that in order to convict [the defendant] ;of manslaughter by act, it had to find that he intended to kill the victim.” Montgomery, 39 So.3d át 257. This increased the chance the jury would reject manslaughter and instead convict for murder. It is the opposite of what occurred here.

Defense counsel’s performance cannot be found to be of “such magnitude as to constitute a serious error'or substantial deficiency falling measurably outside the range of professionally acceptable performance,” Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995) (quotation omitted), on the basis that he failed to object to jury instructions that actually benefited the defendant. •

Affirmed.


text:
    Micah LAMB, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4447
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017
    Rehearing Denied January 12, 2018

      Micah Lamb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

WOLF, LEWIS, and M.K THOMAS, JJ., CONCUR.


author: SCALES, J.

text:
    Dennis GILMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-13
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Dennis Gilman, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   ON CONFESSION OF ERROR

SCALES, J.

Dennis Gilman appeals an order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. For the following reasons, based on the State’s proper confession of error, we reverse and remand for a determination as to whether Gilman was still on probation in case number F87-38796 when he committed the offenses in the instant matter for which he was designated a habitual felony offender.

On March 28, 2012, in case number Fll-5978, Gilman pled guilty to one count of attempted sexual battery on a child less than twelve by an adult and one count of armed kidnapping of a child under thirteen years of age with a sexual battery. Gilman committed the offenses on April 1, 1989. Pursuant to the parties’ Probation Plea Agreement, in exchange for his plea, Gil-man agreed to be sentenced to thirty years in prison with all credit for time served, followed by ten years of reporting probation. Gilman also agreed to be sentenced as a habitual felony offender pursuant to section 775.084 of the Florida Statutes.

The trial court accepted Gilman’s plea and sentenced him pursuant to the Probation Plea Agreement. The trial court designated Gilman a habitual felony offender under section 775.084 by relying upon Gil-man’s prior felony convictions for burglary of a structure (cuse number F78-17842) and grand theft (ease number F79-9766), and upon case number F87-38796, wherein Gilman entered a plea of nolo contendere to cocaine possession.

On August 24, 2016, Gilman filed the instant rule 8.800(a) motion, claiming that he was improperly designated a habitual felony offender. Specifically, Gilman, argued that case number F87-38796 could not be used as a predicate for habitualization under section 775.084 because: (i) he had been placed on probation with adjudication of guilt withheld in case number F87-38796; and.(ii) he was no longer on probation in case number F87-38796 when, on April ls 1989, he committed the offenses charged in case number FI1-5978. The State responded to Gilman’s motion, claiming that Gilman had been convicted of cocaine possession in case number F87-38976. Believing there was a discrepancy in the record as to whether Gilman had been convicted,-or adjudication of guilt had been withheld, in case .number F87-38796, and because a transcript of the sentencing hearing in case number F87-38796 had not been provided below, the trial court denied Gilman’s motion without prejudice because Gilman had failed to demonstrate entitlement • to relief on. the face of - the record.

On this appeal, the State now concedes that, in case number F87-38796, adjudication of guilt for cocaine possession was withheld and Gilman was placed on probation for one year. Therefore, the parties both agree that Gilman can be designated a habitual felony offender only if he was still on probation in case number F87-38796 when, on April 1, 1989, he committed the subsequent offenses in the instant case, case number Fll-5978. See § 775.084(l)(a)2., (2), Fla. Stat. (1988). - It would appear, therefore, that on the record before us, Gilman has demonstrated an entitlement to relief. To this, however, the State argues that given the reality that a defendant’s probationary term sometimes commences on a date later than that noted in the sentencing order, particularly when special conditions are ¡part of the probation, Gilman might still have been on probation in case number F87-38796 when he committed the subsequent offenses in case number Fll-5978. Therefore, the State asks that this Court reverse and. remand for further proceedings so the State may have the opportunity to establish this from the files and records of the trial court. Because of the close proximity of the dates at issue here, we agree.

• Accordingly, we reverse the order denying Gilman’s rule 3.800(a) motion and remand for the trial court to adjudicate Gil-man’s motion after determining the dates of Gilman’s probation in case number F87-38796.

Reversed and remanded for further proceedings consistent with this opinion.

      .Gilman was properly designated a habitual felony offender if, in case number F87-38796, either: (i) Gilman was convicted of cocaine possession; or (ii) Gilman was placed on probation without an adjudication of guilt for cocaine possession, and Gilman _was still on probation in that case when, on April 1, 1989, he committed the offenses charged in case number FI 1-5978. This is because the applicable version of the habitual felony offender statute provides, in pertinent part:
      (1) As used in this act:
      (a) "Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has previously been convicted of two or more felonies in this state;
      2, The felony for which the defendant is to be sentenced was committed within 5 years of the convicfion of the last prior felony or other qualified offense of which he was convicted
      3. The defendant has not received any pardon for any felony or other qualified offense that is necessary for the operation of this section; and
      4. A conviction of a felony or other qualified offense necessary tp the operation of this section has not been set aside in any post-convictión proceeding.

      (2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall.be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.
      § 775.084(l)(a), (2),- Fla. Stat. (1988).

      . We affirm. without further .discussion the second claim raised by Gilman.


text:
    Coty WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1919
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Rehearing Denied January 8, 2018
    Coty Williams, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

. Appellant, Coty Williams, appeals the summaiy denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which alleged multiple grounds for relief. We find that Williams is entitled to an opportunity to amend 'His third and fifth grounds for relief. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007) (holding that a defendant who files a legally insufficient rule 3.850 motion for failing to meet pleading requirements should be allowed at least one opportunity to amend); see also Ferris v. State, 996 So.2d 228, 229 (Fla. 1st DCA 2008) (requiring an opportunity to amend because “the trial court did not deny, the claim on the basis of facial insufficiency, and, as such, the appellant could not have been aware of the application of Spera to this issue”). We affirm Williams’s remaining grounds on appeal.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER, WALLIS and EISNAUGLE, JJ., concur.


author: PAULK, G. T., Associate Judge.

text:
    SECURITY FIRST INSURANCE COMPANY, Appellant, v. FLORIDA OFFICE OF INSURANCE REGULATION, Appellee.
    Case No. 5D16-3425
    District Court of Appeal of Florida, - Fifth District.
    Opinion filed December 1, 2017
    Rehearing En Banc Denied January 17, 2018
    Steven G. Schwartz and David J. Pas-cuzzi, of Schwartz Law Group, Boca Raton, for Appellant.
    Richard A. Sherman, Sr. and James W. Sherman, of Richard A. Sherman, P.A., Fort Lauderdale, Amicus Curiae for Universal North America Insurance Company.
    Thomas P,- Crapps and Timothy J. Meenan, of Meenan P.A., Tallahassee, Amicus Curiae for Florida Bankers Association, Florida Insurance Council and Personal Insurance Federation of Florida.
    Gray Proctor and Susan Fox, of Fox & Loquasto, PA., Orlando, Amicus Curiae for Florida Justice Association.
    Tamara R. St. Hilaire, Shaw P. Stiller and Lacy End-Of-Horn, of Florida Office of Insurance Regulation,. Tallahassee, for Appellee.
   PAULK, G. T., Associate Judge.

Security First Insurance Company appeals the order entered by the Commissioner of the Department of Insurance, Office of Insurance Regulation (“OIR”), adopting the Report and Recommendations issued by a Hearing Officer. The Report and Recommendations concluded that OIR had properly disapproved Security First’s request to amend its policy language to restrict the ability of policyholders to assign post-loss benefits. We affirm.

Security First is a property and casualty insurance company licensed to transact business in Florida. Before issuing policy forms in Florida, Security First is statutorily requited to file all forms it intends to use with OIR for approval. Here, Security First submitted proposed policy endorsements to OIR for approval. Specifically, Security First requested OIR’s approval to add endorsements to. the conditions section of its Homeowners, Tenant Homeowhers, Condominium Unit Owners, and Dwelling Fire insurance policies. The endorsements proposed the inclusion of new language, titled “Assignment of Benefits” (AOB); the language restricted the ability of policyholders to assign post-loss benefits absent the consent of all insureds, all additional insureds, and all mortgagees named in their policies.

OIR issued a letter disapproving the proposed endorsements. The disapproval letter stated that “the forms violate the intent and meaning of [s]ections 627.411(a), (b), and (e), Florida Statutes” and that they contained “language restricting the assignment of post-loss claim benefits under the policy which is contrary to Florida law.” Security First requested administrative review of OIR’s decision, the central issue being Security First’s contention that Florida’s case law prohibitions against the enforcement of policy provisions which require consent for a post-loss assignment of benefits only apply to provisions requiring the insurer’s consent.

The Hearing Officer upheld OIR’s decision, concluding that it was not clearly erroneous because a “restriction on the right of a policyholder to freely assign his or her post-loss benefits is prohibited under Florida law” and “the incorporation of such a restriction on an assignment of post-loss rights in an insurance policy would be misleading for policyholders.” The OIR Commissioner thereafter entered a final order adopting the Hearing Officer’s Report and Recommendations. Security First appeals this ruling.

“The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action.” Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002)(citations omitted).

Security First concedes that Florida case law holds that an endorsement requiring an insurer’s consent for a post-loss assignment of benefits is not enforceable, but argues that such case law only applies to provisions requiring the insurer’s consent. We disagree.

A hundred years ago the Florida Supreme Court recognized, in West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209, 210-11 (1917), that “it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” Our Supreme Court has repeatedly adhered to this basic principle. For example, in Continental Casualty Co. v. Ryan Inc. Eastern, 974 So.2d 368, 377 (Fla. 2008), our Supreme Court stated, in footnote 7:

The insurers argue that the “anti-assignment” clause in the GIA precludes an assignment, even subsequent to the loss. However, “it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11 (Fla. 1917); accord Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So.2d 141, 142 (Fla. 3d DCA 1995).

See also One Call Prop. Servs. Inc. v. Sec. First Ins., 165 So.3d 749, 753 (Fla. 4th DCA 2015) (“Even when an insurance policy contains a provision barring assignment of the policy, an insured may assign a post-loss claim.”) (citing W. Fla. Grocery Co., 77 So. at 210-11).

Many Florida cases involve insurer consent, but not all. In Better Construction, 651 So.2d at 142, cited by the Florida Supreme Court in Continental Casualty Co., Better filed an action against National, and National sought dismissal contending that the no-assignment provision in its insurance policy barred the lawsuit. The trial court agreed and dismissed the lawsuit. The Third District reversed, reasoning:

We hold that the trial court erred in dismissing Better’s complaint without leave to amend, where, as here, Better may be able to state a claim for breach of contract against National. Contrary to the trial court’s ruling, neither the no-assignment clause nor the no-action clause precludes Better from stating a cause of action against National. The first reason is that a provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.-

Id. at 142. In Accident Cleaners, Inc. v. Universal Insurance Co., 186 So.3d 1 (Fla. 5th DCA 2015), Accident Cleaners was an assignee under a homeowner’s insurance policy that provided emergency cleanup and construction services. The insurance company disputed the claim, asserting that Accident Cleaners did not have an insurable interest on the date of loss-which it did not. The trial court dismissed the- case, requiring our court to reverse and remand with directions for reinstatement of the amended complaint. We explained that -the right to recover under an insurance policy is freely assignable after loss:

Dating back to 1917, the Florida Supreme Court recognized that provisions in insurance contracts requiring consent to assignment of the policy do not apply to assignment after loss. W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11 (1917); see Cont’l Cas. Co. v. Ryan Inc. E., 974 So.2d 368, 377 n. 7 (Fla. 2008) (reaffirming the principle from W. Fla. Grocery Co. that the law is well-settled that anti-assignment provisions do not apply after loss); Lexington Ins. Co. v. Simkins Indus., Inc., 704 So.2d 1384, 1386 n. 3 (Fla. 1998) (“[A]n insured may assign insurance proceeds to a third party after a loss, even without the consent of the insurer.” (citing Better Constr., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 651 So.2d 141, 142 (Fla. 3d DCA 1995))).

Id. at 1-3. These cases (and many more) were properly cited by the Hearing Officer and, thus, OIR did not interpret the law on this issue in error. Accordingly, we affirm the final order.

Security First also asserts a claim for reversal based on several, public policy concerns. For example, Security First argues that, by rejecting the proposed policy language, OIR actually harms other parties’ vfested rights, “all of whom [are] entitled to an equal voice in such assignments to prevent impairing their interests.” Security First also contends that an assignment “of less than all rights would wrongly permit both the assignor and assignee to sue the obligor in split causes of action, requiring duplicative defenses,” The Florida Insurance Council and the Personal Insurance Federation of Florida filed an amicus brief arguing that their “concern in this appeal is two-fold: first, they are concerned about the significant increase in post-loss assignment of benefits from, homeowners to third-parties; and second, they are concerned that if an assignment of benefits occurs without the consent of all insureds, the assignment results [in] an insurer violating its statutory duty to act in good faith for all insureds, impairs the mortgagee/lender’s contractual rights and creates uncertainty in the law.”

Review of the case law relating to the subject of -the assignability of post-loss benefits reveals that Florida courts have been previously invited to consider these public policy arguments; however, the district courts have refused these invitations, concluding that such considerations are for the Legislature to address. For instance, in Security First Insurance Co. v. State, Office of Insurance Regulation, 177 So.3d 627 (Fla. 1st DCA 2015), the First District affirmed OIR’s disapproval of Security First’s requests to amend a section of its homeowner’s policies to restrict the ability of policyholders to assign post-loss benefits without the company’s consent and also rejected the invitation to consider Security First’s public policy claims, stating:

[W]e are not unmindful of the concerns that Security First.expressed in support of its policy change, providing evidence that inflated or fraudulent post-loss, claims filed by remediation companies exceeded by thirty percent comparable services; that policyholders may sign away their rights without understanding the implications; and that a.“cottage industry” of “vendors, contractors, and •attorneys” exists that use the “assign■ments of benefits and the threat of . litigation” to . “extract higher payments from insurers.” These concerns, however,-are matters of policy that we are ill-suited to address. As the Fourth District recently wrote:
Turning to the practical implications of this case, we note that this . issue boils down to two-competing public policy considerations. On the one side, the insurance industry argues that assignments of benefits allow contractors to unilaterally set the value of a claim and demand payment for fraudulent or inflated invoices. On the other side, contractors argue that assignments of benefits allow homeowners to hire contractors for emergency repairs immediately after a loss, particularly in situations where the homeowners cannot afford to pay the contractors up front.
Our court is not in a position, however, to evaluate these public policy arguments.. There is simply insufficient evidence in the record in this casé — or in any of the related cases — to decide whether assignments of benefits are significantly increasing the risk to insurers. If studies show that these assignments. are. inviting ‘ fraud and abuse, then the legislature is in the best position to investigate and undertake comprehensive reform’.
One Call Prop. Services, 165 So.3d at 755. We agree with these sentiments, and reiterate that the policy arguments and evidentiary basis for them put forth by Security First are more properly addressed to the Legislature.

177 So.3d 627, 628-29 (Fla. 1st DCA 2015). We agree that the. asserted public policy concerns are best addressed by the Legislature.

AFFIRMED.

COHEN, C.J., and BERGER, J„ concur.

      . The endorsement reads:
      28. Assignment of Benefits:
      a. For any assignment of benefits after a loss:
      (1) You must disclose the assignment to us prior to the payment of any claim: and (2) You must comply with all of section I— Conditions, 4. Your Duties After Loss. We have no duty to provide coverage under this policy if you fail to comply with these duties. b. No assignment of claim benefits, regardless of whether made before loss or after loss, shall be valid without the written consent of all "insureds'', all additional "insureds”, and all mortgagee(s) named in this policy.
      c. If we deny your claim, that denial will be applied to a valid claim of any assignee(s) and/or any other third parties contracted by you to services rendered to you to repair or replace damaged property.
      d. We will not be responsible for payment to any assignee or third parties for payments for services rendered that are not covered property losses under this policy.


text:
    Rufus RAVENELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2591
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 5, 2017
    Rehearing Denied January 12, 2018
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Vennisee v. State, 42 Fla. L. Weekly D2170, 235 So.3d 947, 953, 2017 WL 4529658, at *5 (Fla. 3d DCA Oct. 11,2017).

COHEN, C.J.,'BERGER and EDWARDS, JJ., concur.


text:
    Michael James Drake STEWART, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4334
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Rehearing Denied January 17, 2018
    Michael James Draké Stewart, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

WETHERELL, RAY, and WINSOR, JJ., CONCUR;


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee FOR ARGENT SECURITIES, INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-W4, Appellant, v. Myles P. CORRIGAN, Deborah A. Smith and Rock Springs Ridge Homeowners Association, Appellees.
    Case No. 5D16-2983
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017
    Rehearing Denied January 10, 2018
    W. Bard Brockman, of Bryan Cave LLP, Atlanta, Georgia, and Zina Gabsi, of Bryan Cave LLP, Miami, for Appellant.
    Tanner Andrews, of Tanner Andrews, P.A., Deland, for Appellees, Myles P. Cqr-rigan and Deborah A. Smith.
    No Appearance for other Appellee.
   PER CURIAM.

Deutsche Bank National Trust Company (“Bank”) appeals the final judgment dismissing its foreclosure complaint against Myles P. Corrigan and Deborah A. Smith as barred by the statute of limitations under Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015). Because Hicks is limited to cases where the bank relies on a single default outside the limitations period, see Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 168-69 (Fla. 5th DCA 2017), it is inapplicable here. In this case, Bank’s foreclosure action alleges not just the initial default, which is outside the five-year limitations period, but subsequent defaults as well. Thus, the statute of limitations does not bar Bank’s foreclosure action, and it was error to conclude otherwise. Id. Accordingly, we reverse the final judgment under review and remand for further proceedings.

REVERSED and REMANDED.

SAWAYA, BERGER and LAMBERT, concur.


text:
    Marisol Contreras BENITEZ, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its Individual Capacity but Solely as Trustee for the Primestar AR-H Fund I Trust, Appellee.
    Case No. 5D16-3969
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017
    Rehearing Denied December 8, 2017
    Rehearing Denied January 16, 2018
    Eric O. Husby, Tampa, for Appellant.
    Ezra Scrivanich, of Scrivanich Hayes, Plantation, for Appellee.
   ON REHEARING

PER CURIAM.

We grant rehearing in this case and withdraw the previously-issued opinion. We substitute the following in its stead. The appeal is dismissed pursuant to Archer v. U.S. Bank National Ass’n, 220 So.3d 477, 478-79 (Fla. 5th DCA 2017).

DISMISSED.

SAWAYA, WALLIS, and EISNAUGLE, JJ., concur.