author: WELLS, J.

text:
    Keler ISRAEL, et al., Appellants, v. FLICK MORTGAGE INVESTORS, INC., Appellee.
    No. 3D07-2715.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2008.
    See also 212 Fed.Appx. 775.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hinda Klein and Alejandro Perez, Hollywood, for appellants.
    No appearance for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   WELLS, J.

Keler Israel and a number of other plaintiffs (collectively “the plaintiffs”) appeal from an order granting summary judgment in favor of Flick Mortgage Investors, Inc., which effectively denied domestication of an Israeli final money-judgment. We reverse.

The plaintiffs are all citizens of Israel who made purchases in Israel of homes located at Lake Marion Golf Resort in Florida. Flick holds the mortgages on these homes. When the value of the homes turned out to be substantially less than what they were purchased for, the plaintiffs brought suit in Israel against Flick and others involved in the sales to unwind these transactions.

In October 2002, the plaintiffs served the foreign complaint on Flick by registered mail in Florida. Flick timely filed a motion in the Israeli court, supported by an affidavit, challenging personal jurisdiction, claiming: (1) that Flick was not a party to any contract made in Israel; (2) that Flick breached no contract in Israel; (3) that Flick had no agents, representatives or employees in Israel that ever acted or failed to act in Israel; and (4) that Flick was not a necessary party to the action regarding the sale of these homes. However, Flick made no claims regarding sufficiency of service of process at that time.

Although Flick’s attorney appeared in the Israeli court to defend this motion, Flick’s supporting affidavit was stricken because the affiant did not appear. Flick appealed the order striking its affidavit but later dismissed that appeal. The motion challenging personal jurisdiction ultimately was denied.

Flick did not participate further in the lawsuit in Israel, but instead brought an action in the Miami-Dade County circuit court against two of its co-defendants in the Israeli action, seeking damages for having to defend the suit in Israel and indemnification for any damages incurred in that action. That action was removed to federal court and ultimately dismissed. See Flick Mortgage Investors, Inc. v. Metropolis Promotion Inv. & Props. (1993) Ltd., 212 Fed.Appx. 775 (11th Cir.2006).

On June 20, 2005, the Israeli court entered a final money-judgment against Flick, awarding the plaintiffs $1,481,550 plus interest and attorneys’ fees. Flick prosecuted no appeal from the judgment. Approximately six months after the Israeli judgment was entered, the plaintiffs sought recognition and enforcement of it in the Miami-Dade County circuit court under Florida’s Uniform Out-of-country Foreign Money-Judgment Recognition Act. §§ 55.601-.607, Fla. Stat. (2008). Objecting to domestication of the foreign money-judgment, Flick moved for summary judgment arguing that the Israeli court lacked personal jurisdiction over it due to insufficiency of service of process. The trial court agreed and entered summary judgment in favor of Flick. We reverse because Flick not only failed to demonstrate any defense to recognition that is authorized by the Act, but also because Flick waived the defense of insufficient service of process by not raising it before the Israeli court at the time it challenged personal jurisdiction therein.

Sections 55.603 and 55.604 of the Act expressly provide that an out-of-country foreign money-judgment that is “final and conclusive and enforceable where rendered” is also “conclusive between the parties” and enforceable in this state “[e]x-cept as provided in s. 55.605” of the Act. § 55.603, Fla. Stat. (2008); § 55.604, Fla. Stat. (2008) (emphasis added); see also § 55.604(2), Fla. Stat. (2008) (authorizing objections “specifying the grounds for nonrecognition or nonenforceability under this act”) (emphasis added). Section 55.605 provides only ten grounds on which recognition of an out-of-country foreign money-judgment may be denied. The first three grounds are mandatory and preclude recognition of a foreign judgment where the court entering the judgment either: (1) operates as part of a system that does not provide impartial tribunals which accord due process; (2) did not have personal jurisdiction over the defendant; or (3) did not have jurisdiction over the subject matter. § 55.605(l)(a)-(c), Fla. Stat. (2008). The remaining seven grounds are discretionary and, as pertinent here, provide that a foreign judgment “need not be recognized if ... [t]he defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him or her to defend.” § 55.605(2)(a), Fla. Stat. (2008); see also Dart v. Balaam, 953 S.W.2d 478, 480 (Tex.App.1997) (confirming that the Uniform Foreign Country Money-Judgments Recognition Act “sets forth three mandatory and seven discretionary grounds for nonrecognition of foreign country judgments,” and that “these ten are the only defenses available to a judgment debtor”).

Flick does not (justifiably) claim that the judgment at issue here was the product of a system that either does not provide impartial tribunals or that does not afford due process. See Kam-Tech Sys. Ltd. v. Yardeni, 340 N.J.Super. 414, 774 A.2d 644, 651 (2001) (finding that no basis exists “for concluding that the procedures of the Israeli civil justice system fail to measure up to the [Uniform Foreign Money-Judgments Recognition] Act’s due process test”). Nor does Flick claim that the Israeli court lacked subject matter jurisdiction. Flick claims instead that the Israeli court lacked personal jurisdiction over it because it was notified of the Israeli action by registered mail. On the particular facts and circumstances of this case, this claim must fail.

As an initial matter, we note that an attack on the manner of service of process is not expressly set forth as one of the ten grounds for nonrecognition or nonenforce-ability that may be asserted under the Act. § 55.605, Fla. Stat. (2008). Rather, section 55.605(2)(a) — -the only provision of the Act potentially authorizing an attack on a foreign money-judgment relating to insufficiency of service of process — focuses not on how the defendant received notice of the foreign lawsuit, but on whether the defendant received “notice of the proceedings in sufficient time to enable him or her to defend.” § 55.605(2)(a), Fla. Stat. (2008). Given that the record indisputably shows that Flick actually received notice of the Israeli action and that Flick was able to timely defend itself therein, its “defense” to recognition in the lower court, centered as it is on the manner of notice, appears to be insufficient under the Act. See also Dart, 953 S.W.2d at 480 (“In limiting the defenses that may be raised by a judgment debtor, the [Uniform Foreign Country Money-Judgments] Recognition Act creates standards for recognizing foreign judgments and prevents parties from relit-igating issues that were conclusively settled by courts of foreign countries, unless such issues create an exception to recognition.”).

Even if the manner of service of process is a defense to recognition and enforcement of a foreign money-judgment under section 55.605, we nonetheless would reverse the order on appeal because Flick waived the defense through its actions in the Israeli proceedings. When the plaintiffs initiated the underlying action against Flick in the Israeli court, Flick challenged only the foreign court’s exercise of personal jurisdiction over it for reasons wholly unrelated to any claim that service of process by registered mail was insufficient. Claims of lack of personal jurisdiction are, of course, not the same as a claim that service of process is insufficient:

A motion to dismiss for lack of jurisdiction based on insufficiency of service of process lies when the service effected does not comport with the requirements of the statute pertaining to the manner in which such service is to be effected. P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978). A motion to dismiss based on lack of jurisdiction over the person lies when the service effected ... although proper in manner, is not authorized by [a statute] which confers jurisdiction.

Am. Motors Corp. v. Abrahantes, 446 So.2d 240, 241 (Fla. 3d DCA 1984) (emphasis added).

In Florida, failure to raise insufficiency of service of process as a ground for dismissal at the earliest opportunity constitutes a waiver of that defense. See Fla. R. Civ. P. 1.140(b); Re-Employment Servs. Ltd. v. Nat'l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007). The same appears to be true in Israel. Thus, Flick’s failure to raise this recognized defense in Israel constitutes a waiver of that defense and precludes collateral attack on the Israeli judgment here. See Dart, 953 S.W.2d at 480 (“The [Uniform Foreign Country Money-Judgments] Recognition Act precludes a judgment debtor from collaterally attacking a foreign judgment where an issue was litigated before a foreign court or the party was given the opportunity to litigate the issue before that court. Grounds for nonrecognition may be waived if a party had the right to assert that ground as an objection or defense in the foreign country but failed to do so”) (citations omitted); see also Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 441 (3d Cir.1971) (finding that where the defendant requested and was given the opportunity to challenge an English court’s exercise of personal jurisdiction in the English proceedings, but failed to do so, the defendant had waived the jurisdictional challenge such that it could not then raise it as a defense in an action to domesticate the judgment in the federal district court); Linda J. Silberman & Martin Lipton, Enforcement & Recognition of Foreign Country Judgments in the United States, 739 PLI/Lit 351, at 380 (March 2006) (“If the defendant challenged the jurisdiction of the rendering court in the first action and the challenge was unsuccessful or not carried to conclusion, ... a renewed challenge to jurisdiction of the rendering court on that ground [in an enforcement and recognition action] is generally precluded. Such jurisdictional findings of the first court are res judicata with regard to sister state judgments.... A similar rule is usually held to apply with regard to foreign country judgments.”).

The order denying recognition of the Israeli judgment is, therefore, reversed with this matter remanded for entry of an order in the plaintiffs’ favor.

Reversed and remanded.

      . The Act adopted in Texas is, with limited exceptions and variations in terminology, the same as that adopted in Florida. See Tex. Civ. Prac. & Rem.Code Ann. §§ 36.001-.008 (2008).

      . The relevant Israeli civil procedure rule provides:
      502. Petition to cancel order for service outside jurisdiction
      (a) The Court or Registrar who permitted a Court document to be served outside Israel shall set the time for the submission of pleadings according to the circumstances, and they shall deliver of copy of the permit to the addressee.
      (b) If a Court document was served on a party outside Israel, then he may petition for cancellation of the order that permits the service, or he may argue in his pleadings that the Court is not competent to hear the action, but all that no later than when he first pleads on the subject of the action.
      Civil Law Procedure Regulations: 5744-1984, 137-38 (7th ed. Haifa, Israel: Aryeh Greenfield — A.G. Publications) (2005).

      . As one treatise on Israeli civil procedure has explained:
      As to international jurisdiction based on permission to serve process outside of the jurisdiction, ... the issue is raised usually by a motion to rescind the permission which has been granted ex parte. However, the Rules of Civil Procedure also expressly permit raising the matter in the defendant’s answer to the complaint.
      In both cases, the court will address the issue of service outside the jurisdiction as if the ex parte order had not been granted, thus laying the full burden of persuasion on the plaintiff.
      However, Rule 502(b) of the RCP provides expressly that whether the issue is raised by motion to rescind the permission or in the defendant’s answer, it must be raised no later than the day the defendant first pleads to the merits of the complaint.

      Thus, not only may a defendant agree in advance to international jurisdiction, but he may lose his defence as to international jurisdiction if he does not raise it in a timely manner. This is in direct contrast to the treatment of subject matter jurisdiction, but is in accord with the law governing venue....
      Stephen Goldstein, International Encyclopae-dia of Laws: Civil Procedure, Volume 2 Israel — 71-72 (Kluwer Law International 2001).


source: Caselaw Access Project

author: WELLS, Judge. SUAREZ, J.,

license: Public Domain

text:
    PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY d/b/a Jackson Memorial Hospital, Appellant, v. Odette ACANDA, as Personal Representative of the estate of Ryan Rodriguez, deceased, Appellee.
    No. 3D07-3314.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 2009.
    Rehearing Denied Jan. 14, 2010.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant.
    Diez-Arguelles & Tejedor and Carlos Diez-Arguelles and Maria Tejedor, Orlando; Barbara Green, for appellee.

      Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   WELLS, Judge.

The Public Health Trust of Miami-Dade County, Jackson Memorial Hospital’s governing body, appeals from a final judgment finding that the hospital was liable for the death of premature infant, Ryan Rodriguez, and from an order denying the hospital’s motions for a mistrial, directed verdict, judgment notwithstanding verdict, and new trial. On the following brief analysis, we affirm.

Odette Acanda, Ryan’s mother, was seven months pregnant when her doctor sent her to Jackson, concerned that her amniotic fluid levels were low. Acanda delivered Ryan nearly two months early. Five days after his birth, Ryan died of an infection. Acanda, as personal representative of Ryan’s estate, sought damages from the hospital claiming medical negligence and the case proceeded to a jury trial. After the testimony of Ryan’s father, Plaintiffs counsel stated: “Your Honor, we are going to rest now and start with some procedural matters that we want to take up with the Court.” The court told the jury that “the plaintiff is getting dose to resting or has rested.” The attorneys then went sidebar:

Mr. Gressman [hospital counsel]: Have they officially rested?
Ms. Tejedor [Plaintiffs counsel]: No, No.
The Court: That was the oddest resting I’ve ever seen.
Ms. Tejedor [Plaintiffs counsel]: We need to introduce a few records and stuff.
Mr. Diez-Arguelles [Plaintiffs counsel]: We need to make sure we have the proper stipulations that we think we have before we rest.

After a brief discussion about other matters, the court excused the jury. The parties made certain stipulations and the court announced it would reserve ruling until the morning on an issue concerning mortality tables. It was then that the Trust moved for a directed verdict. The Trust argued, among other grounds, that the Plaintiff “failed to serve process in conformity with Section 768.28(7), Fla. Stat. (1990)”, by neglecting to serve process on the Department of Financial Services.

By the next morning, before court started, Plaintiffs counsel had obtained service and filed the proof of service in the clerk’s office. Plaintiffs counsel proffered it to the court, the court reserved ruling, and the Trust proceeded with its case. Ultimately, the jury returned a verdict for the Plaintiff, finding the Trust 100% at fault. The court denied the Trust’s motion for new trial and motion for judgment in accordance with the motion for directed verdict and entered judgment for the Plaintiff.

The cases are legion which find that a violation of Florida Rule of Civil Procedure 1.480, “occurs where a party moves for and obtains a directed verdict before the time that the party moved against has completed its case in chief.” Williams v. Salem Free Will Baptist Church, 784 So.2d 1232, 1232-33 (Fla. 1st DCA 2001). In this case, it is not definitively clear that the Plaintiff had completed her case-in-chief when the hospital was allowed to begin arguing its motion for directed verdict. In response to the direct question of whether the Plaintiff had “officially rested,” Plaintiffs counsel responded “No, No.” And, the trial court “reserved” at least one evidentiary issue in Plaintiffs case for determination the following morning. Even if we were to conclude that the Plaintiff had rested her case when the hospital was permitted to argue its motion for directed verdict, the notice requirement at issue had been satisfied by the following morning before a ruling on either the “reserved” evidentiary matter or the hospital’s motion for directed verdict. This satisfied both the requirements of section 768.28(7), and this Court’s prior precedents. See Metro. Dade County v. Lopez, 889 So.2d 146, 148 (Fla. 3d DCA 2004) (observing that “[a]t the time the jury rendered its verdict ... [Plaintiff] still had not complied with section 768.28(7)” and that “[ajfter the jury had returned a verdict, it was too late to turn back the clock”); Metro. Dade County v. Braude, 593 So.2d 563, 564 (Fla. 3d DCA 1992) (concluding that service was not timely when “[t]wenty-three days after the trial had concluded and thirteen days after the entry of judgment, the plaintiff effected service upon the Department of Insurance”); Miami-Dade County v. Meyers, 734 So.2d 507, 508 (Fla. 3d DCA 1999) (confirming that where no process is served on the Department of Insurance, the County is immune from suit); Williams v. Miami-Dade County, 957 So.2d 52, 52-53 (Fla. 3d DCA 2007) (also observing that failure to comply “with the process service requirements of section 768.28(7) ... is fatal to [an] action”).

Motion for a Directed Verdict Effect.
(a) A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

Accordingly, we find no abuse of discretion in the trial court’s ruling and affirm the final judgment entered in the plaintiffs favor.

CORTIÑAS, J., concurs.

SUAREZ, J.,

dissenting.

I respectfully dissent. It is undisputed that the Appellant, the Public Health Trust of Miami-Dade County, is a governmental entity. Therefore, in order to bring an action against the Public Health Trust, the plaintiff was mandated to comply with the provision of section 768.28(7), Florida Statutes (2005), which states that service of process shall be effected, not only upon the governmental agency or entity being sued, but also upon the Department of Financial Services. The language of the statute is mandatory. The burden of proof to establish proper service of process is upon the party seeking to invoke the court’s jurisdiction. Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007). If service is not effected as mandated by the legislature in section 768.28(7), the governmental entity is immune from suit. See Levine v. Dade County Sch. Bd., 442 So.2d 210, 212 (Fla.1983). By failing to strictly comply with the statutory service requirement of serving the Department of Financial Services, the plaintiff has failed to meet her burden of proof. Thus, the trial court had no option, but to grant a directed verdict due to plaintiffs failure to serve and consequent failure to prove her case. The trial court erred by denying the Public Health Trust’s Motion for Directed Verdict.

The Public Health Trust, in its answer to the complaint, denied that all conditions precedent had been met, and, as an affirmative defense, put the plaintiff on notice that she had failed to serve the Department of Financial Services as mandated by section 768.28(7). The case proceeded with discovery. At trial, plaintiff presented her evidence and proof in her case-in-chief, but failed to present proof that the Department of Financial Services had been served. The record shows that plaintiff had not even perfected the required service prior to the Public Health Trust’s Motion for Directed Verdict. In open court, plaintiff stated that she was “going to rest now and start with some procedural matters.” When the court inquired if she had officially rested, the plaintiff stated, “No, no.... We need to introduce a few records and stuff.” The transcript in pertinent part states:

MR. DIEZ-ARGUELLES: Your Hon- or, we are going to rest now and start with some procedural matters that we want to take up with the Court.
MR. GRESSMAN: Have they officially rested?
MS. TEJEDOR: No, no.
THE COURT: That was the oddest resting I’ve ever seen.
MS. TEJEDOR: We need to introduce a few records and stuff.

The trial court then released the jury until the next day and told the jury that the attorneys and the court were going to stay and work on some legal issues. The court and the trial attorneys then had a lengthy discussion regarding stipulations and jury instructions. At the conclusion of the discussion, the following took place wherein the plaintiff rested and the Public Health Trust moved for a directed verdict.

THE COURT: We will reserve on the one issue in the morning, mortality table.
Now, assuming you have rested, any motions anybody wants to make outside of the jury at this time or not?
MR. GRESSMAN: We have a motion for directed verdict, Your Honor.
MR. STIEGLITZ: Judge, they have not complied with Florida statute Section 768.
THE COURT: What?
MR. STIEGLITZ: Subsection 7.
THE COURT: I lost you on first seven. You may want to slow down a little bit. MR. GRESSMAN: Florida Statute section 768.28(7) requires service of process upon the Department of Financial Services.
MR. DIEZ-ARGUELLES: I thought I resolved that issue.
MR. STIEGLITZ: No, we haven’t, Judge. There’s separate required service of process upon the Department of Financial Services. They haven’t done it.

(emphasis supplied).

The Public Health Trust moved for directed verdict on grounds of plaintiffs failure to serve the Department of Financial Services as mandated by section 768.28(7). The trial judge then asked whether the plaintiff could show the court that service had been effected on the Department. In response, the plaintiff requested the judge allow her time until the following morning for her to check her file to see if service previously had been made or to bring in cases on the issue. After checking her file overnight and realizing service had not been made, in the morning, plaintiff represented to the court that it was not until that morning that she served the Department of Financial Services. The court reserved ruling on the motion for directed verdict until after jury verdict, although it recognized that “the complaint failed to state a cause of action because plaintiff has failed to process in conformity with 768.28(7), Florida Statutes.”

The majority admits that it was not clear if the plaintiff had completed her case-in-chief when the Public Health Trust moved for directed verdict. However, the record does make it clear that there was no objection, or even an attempt to argue, that the plaintiff had anything further to present, when the trial judge stated, “Now, assuming you [plaintiff] have rested, any motions anybody wants to make ... at this time or not?” Although plaintiff attempts to argue on appeal that she had not rested prior to the time the Public Health Trust raised on directed verdict the issue of service, the record shows otherwise. Nowhere in the record, including plaintiffs Response in Opposition to Motion for Directed Verdict, does the plaintiff argue that she had not rested prior to the motion for directed verdict. This argument was first raised by plaintiff on appeal and, therefore, the argument should be considered waived for appellate purposes.

It is my opinion that, based on the record, the required, strict construction of the mandatory terms of section 768.28(7), and legal precedent from this Court and others, the trial court was required to grant the directed verdict. The Public Health Trust is a political subdivision and may only be sued by waiver of sovereign immunity pursuant to section 768.28(7). Statutes governing service of process and, in particular, section 768.28(7) must be strictly construed. See Anthony v. Gary J. Rotella & Assocs., 906 So.2d 1205 (Fla. 4th DCA 2005) (holding that statutes that govern service of process are to be strictly construed to insure receipt of notice of the proceedings; the burden to prove the validity of service is on the plaintiff); Levine v. Dade County Sch. Bd., 442 So.2d at 210 (holding that waiver of sovereign immunity statutes must be strictly construed since sovereign immunity is wholly within the legislative domain; where the time for notice has expired, the trial court has no alternative but to dismiss the case). As plaintiff failed to comply with the mandatory terms of the statute, the Public Health Trust was immune from suit and a directed verdict was required. This Court has held, in cases almost identical, that, because the plaintiff failed to serve process pursuant to the statute, the governmental entity was immune from suit and a directed verdict was required. See Williams v. Miami-Dade County, 957 So.2d 52, 52 (Fla. Bd DCA 2007) (affirming the trial court’s order granting directed verdict in favor of Miami-Dade County as plaintiff failed to prove compliance with the process service requirements of section 768.28(7); such failure was “fatal to his action”); Metro. Dade County v. Lopez, 889 So.2d 146 (Fla. 3d DCA 2004) (holding that section 768.28(7), requiring service on the Department of Insurance to be strictly construed as part of sovereign immunity, leaves the trial court no choice but to grant directed verdict in favor of Miami-Dade County where failure to serve process on the Department was asserted as a defense and properly raised in a motion for directed verdict at close of plaintiffs case); Miami-Dade County v. Meyers, 734 So.2d 507 (Fla. 3d DCA 1999) (reversing and remanding with directions to enter judgment for the County where the plaintiff had failed to comply with mandatory service of process requirement of section 768.28(7), which was raised as an affirmative defense and properly asserted on a motion for directed verdict before the case went to the jury).

I realize that the consequence of mandatory compliance may appear overly harsh. The statute does not have a provision for substantial compliance. It is definite and, as our Court has held, must be strictly complied with. Additionally, I do not see this as a “gotcha.” The Public Health Trust put plaintiff on notice by raising non-service as an affirmative defense. The plaintiff had the opportunity to timely comply, but did not.

For the above, I would reverse with instructions for the trial court to enter judgment for the Public Health Trust. Metro. Dade County v. Lopez, 889 So.2d at 148; Miami-Dade County v. Meyers, 734 So.2d at 508.

      . Section 768.28, addressing ”[w]aiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs,” provides in relevant part:
      (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority, upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto.

      . Plaintiff's complaint alleged compliance with all statutory conditions precedent and statutory requirements. The Trust's answer included a general denial. Also, in its affirmative defenses, the Trust alleged that "[t]he Trust has not waived sovereign immunity and the Complaint fails to state a cause of action because Plaintiff has failed to serve process in conformity with Section 768.28(7), Fla. Stat. (1990).” The answer asked the Court to dismiss the complaint but the Trust did not set a hearing or raise the issue until its motion for directed verdict at trial.

      .The court granted the Plaintiff's motion to supplement the record with a certified copy of the notice of filing with the returns of service attached.

      . Florida Rule of Civil Procedure 1.480 provides:

      . See Dodge v. Weiss, 191 So.2d 71, 73 (Fla. 1st DCA 1966) (stating that “[a] motion for a directed verdict cannot, of course, be properly made by the defendant until the plaintiff has completed the presentation of his evidence”); Sapp v. Redding, 178 So.2d 204, 207 (Fla. 1st DCA 1965) (finding that “a defendant ... cannot properly make a motion for a directed verdict before the plaintiff has completed the presentation of his evidence," because the directed verdict rule contemplates that the movant will move for directed verdict at the close of the evidence offered by the adverse party); see also Zerillo v. Snapper Power Equip., 562 So.2d 819, 820 (Fla. 4th DCA 1990) ("[A] party may not obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief, since to do so would constitute a denial of due process of law.”); Carmichael v. Shelley Tractor & Equip. Co., 300 So.2d 298, 299 (Fla. 4th DCA 1974) ("At trial upon the issues made by the pleadings, a party may not move for and obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief. Otherwise, such party would be denied due process of law.”).

      . (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality or the Florida Space Authority, upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto,
      (emphasis supplied).

      . The majority implies that the plaintiffs duty to serve the Department of Financial Services was not, in any way, subject to any time restriction or that proof of service did not have to be presented prior to the motion for directed verdict at the close of the plaintiff's case-in-chief. The very cases relied upon by the majority hold otherwise.

      .The majority’s reliance on Metropolitan Dade County v. Lopez, 889 So.2d at 148, is misplaced since the reference in the majority opinion is to the dicta in that case. Op. at

      . The cases raised by plaintiff do not apply as each case concerns the issue of whether the Department must be served within 120 days.

      . See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979).


author: ALTENBERND, Judge.

text:
    Eric SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-885.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2009.
    Rehearing Denied Jan. 12, 2010.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Eric Santiago appeals his judgments of conviction for racketeering and conspiracy to commit racketeering in violation of the Florida RICO Act. See § 895.03(3), (4), Fla. Stat. (2006). We conclude Mr. Santiago was deprived of a fair trial by the presentation, as substantive evidence of guilt, of two convictions later reversed on direct appeal. On this issue, we reverse Mr. Santiago’s convictions for racketeering and conspiracy to commit racketeering and remand for further proceedings.

In January 2007, the State' charged Mr. Santiago and seven other men with racketeering offenses for their involvement in a “criminal street gang,” as defined under section 874.03(1), Florida Statutes (2006). The fourth amended information identified Mr. Santiago in predicate incidents twenty-three through twenty-seven. The charges against Mr. Santiago were severed, and he proceeded alone to a jury trial, which was held from January 14 through January 17, 2008.

During the trial, the State presented evidence of several predicate offenses as part of its required showing that Mr. Santiago had participated in an enterprise (the criminal street gang) through a pattern of racketeering activity. See generally Gross v. State, 765 So.2d 39, 42 (Fla.2000) (discussing elements of a crime under Florida’s RICO statute). These predicate incidents included several misdemeanors, three juvenile dispositions, two felony convictions for possessing and concealing firearms, and, most importantly, two convictions for trafficking and possessing narcotics.

The State’s theory at trial, as expressed during closing argument, was that Mr. Santiago’s participation within the street gang made possible his rise from petty criminal to drug trafficker. To prove this theory, the State introduced Mr. Santiago’s written judgments of conviction for trafficking in heroin and possession of a controlled substance (hydrocodone). These offenses are, respectively, first- and third-degree felonies. See §§ 893.13(6)(a), .135(l)(c)(l), Fla. Stat. (2006).

At the time of the racketeering trial, Mr. Santiago’s two convictions for narcotics offenses were pending on direct appeal in appellate case number 2D07-3631. On October 8, 2008, we reversed these convictions and remanded for entry of judgment and resentencing on a lesser-included possession offense. Santiago v. State, 991 So.2d 439, 444 (Fla. 2d DCA 2008). In that appeal, we concluded the evidence at trial had failed to establish Mr. Santiago’s constructive possession of the narcotics not found in plain view. Id.

Mr. Santiago’s narcotics convictions, subsequently vacated by this court, were presented to the jury as substantive evidence of his guilt of racketeering and conspiracy to commit racketeering. These convictions, portraying Mr. Santiago as a drug trafficker within the alleged enterprise, became a feature of the trial. Under the circumstances of this case, we conclude the presentation of these now-vacated convictions deprived Mr. Santiago of a fair trial. We therefore reverse Mr. Santiago’s convictions for racketeering and conspiracy to commit racketeering and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA, C.J., and VILLANTI, J., Concur.

      . We find no merit in the remaining issues raised by Mr. Santiago.


author: SCHWARTZ, Senior Judge.

text:
    Shawn ERSKINE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-189.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Rehearing Denied Jan. 8, 2010.

      Carlos J. Martinez, Public Defender, and Leslie Scalley, Tampa, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This case arose from an incident in which Erskine, driving a car not his own, was pursued by police through the streets of Miami-Dade County, and was apprehended at the end of a foot chase which began after he crashed the vehicle. In this appeal, he challenges convictions and sentences after a jury trial for misdemean- or trespass in a conveyance, as a lesser included offense of count I, grand theft of a vehicle, and as charged in the information, count II, fleeing or attempting to elude a law enforcement officer, and count III, resisting an officer without violence.

Considering first the only point which concerns all three convictions, we find no error in the trial judge’s determination that the defense’s challenge of a prospective juror was pretextual in nature. See Braggs v. State, 13 So.3d 505 (Fla. 3d DCA 2009); Lidiano v. State, 967 So.2d 972 (Fla. 3d DCA 2007), review denied, 983 So.2d 1154 (Fla.2008); Pringle v. State, 792 So.2d 533 (Fla. 3d DCA 2001), review denied, 817 So.2d 849 (Fla.2002).

The conviction for fleeing or attempting to elude in violation of section 316.1935(3), Florida Statutes (2006), however, is reduced to a third degree felony under section 316.1935(1) because, (1) as in Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001), there was no evidence that the police car involved in the chase in question had agency insignia and other jurisdictional markings prominently displayed, as required by section 316.1935(3), see also Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002), and (2) the jury was instructed that the defendant could be convicted of the more serious offense if he attempted to flee after having been stopped as Erskine in fact did, which is not an element of subsection (3), see Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), but is encompassed in subsection (1). The cause is remanded for resentencing accordingly. See § 924.34, Fla. Stat. (2006).

No separate error is asserted in the misdemeanor convictions as to counts I and III.

Affirmed as modified, remanded.

      . Sections 316.1935(1) and (3), state:
      (1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
      (a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person's vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years imprisonment. Nothing in this paragraph shall prevent a court from imposing a greater sentence of incarceration as authorized by law.

      . After Gorsuch was decided, but before the offenses in question occurred on September 1, 2006, the legislature amended subsection (1) to provide that its violation constituted a third degree felony rather than a first degree misdemeanor. Ch. 2004-388, § 1, at 3010, Laws of Fla., effective July 1, 2004.


author: SALTER, J.

text:
    Edward J. LoCASCIO, Appellant, v. Leon SHARPE, as Personal Representative, etc., Appellee.
    Nos. 3D09-118, 3D08-1711.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Rehearing Denied Jan. 12, 2010.

      Austin Carr, Coral Gables, for appellant.
    Ellis, Hodes & Goldberg, and David Howard Goldberg; Carlton Field, and Marsha G. Madorsky, Miami; Sylvia H. Walbolt and Stephanie C. Zimmerman, St. Petersburg, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   SALTER, J.

In these tragic cases, we address the remedies available to a sole surviving son following the murder of his mother by his father and uncle. The appellant in each case is Edward J. LoCascio (Son). The murder victim was Silvia LoCascio, and the co-conspirators convicted of first-degree murder are her then-husband Edward S. LoCascio and brother-in-law Michael LoCascio.

Silvia LoCascio died intestate, and the probate court appointed attorney Leon Sharpe as curator (and later as personal representative). Ultimately the Son and his mother’s estate obtained three judgments against Edward S. LoCascio:

(1) Under the “slayer statute,” section 732.802 Florida Statutes (2001), Edward S. LoCascio was precluded from inheriting any property from Silvia LoCascio, and her estate passed as if Edward S. LoCas-cio had predeceased her. In addition, any rights of survivorship that Edward S. Lo-Cascio held as a joint tenant with Silvia LoCascio at the date of her death were extinguished, and her interest was severed from that of Edward S. LoCascio.

(2) In a separate circuit court lawsuit brought in the civil division, the estate obtained a final judgment of constructive trust against Edward S. LoCascio in November 2008. The constructive trust was declared over all assets of the decedent “that were at the time of her death titled or assigned in the name of Edward S. LoCascio.”

(3) Additional final judgments in the civil lawsuit, entered on the same day as the constructive trust judgment, awarded Silvia LoCascio’s estate $25,073,485.15 in compensatory damages and $50,000,000 in punitive damages, in each instance against Edward S. and Michael LoCascio, jointly and severally.

The Son commenced two appeals to this Court. In case no. 3D08-1711, the Son argues that the marital residence (the decedent’s and murderer’s homestead) passed in full to him as the mother’s sole heir. The Son bases this argument on the phrase in subsection 732.802(1), that “the estate of the decedent passes as if the killer had predeceased the decedent.” Had Edward S. LoCascio predeceased the decedent, the Son argues, then the decedent would have been vested with sole title to the residence at the time of her death, and that exclusive title would then have passed to the Son under Florida’s law of intestate succession.

We have previously rejected this argument. In Capoccia v. Capoccia, 505 So.2d 624 (Fla. 3d DCA 1987), this Court reconciled subsections (1) and (2) of the statute, explaining that “the express language of subsection (2) does not call for the complete termination of the killer’s interest in the property but merely the termination of the right of survivorship.” Id. at 624-25. Subsection (2) states that the killing “effects a severance of the interest of the decedent,” codifying a prior equitable doctrine that the property in such a case is “treated as if it had been formerly held as a tenancy in common.” Id. at 624.

In the second appeal, Case No. 3D09-118, the Son maintains that the then-personal representative, plaintiff in the civil lawsuit, was erroneously denied relief against Edward S. LoCascio’s property. Specifically, the personal representative sought a constructive trust over all marital property, including Edward S. LoCascio’s rights or interests in that property. Instead, the final judgment of constructive trust was limited to all assets of the decedent, including any such assets “titled or assigned in the name of the defendant Edward S. LoCascio.” The Son maintains that the significance of this alleged error— otherwise appearing moot because of the estate’s judgment liens in amounts tens of millions of dollars greater than the murderer’s known assets — is that the constructive trust over his father’s assets would relate back to the date of his mother’s death.

The slayer statute is not, as presently -written, a forfeiture statute awarding all of a killer’s property to the estate of the victim. Nor does the pre-statutory equitable principle that “no one shall be permitted to profit by his own wrongdoing” include any such forfeiture of the killer’s separate property. Capoccia, 505 So.2d at 624. Accordingly, we find no error in the limitation imposed by the trial judge in the final judgment of constructive trust against Edward S. LoCascio.

In both appeals, we conclude that the trial court correctly interpreted and applied applicable law. The judgments below are affirmed.

      . At the time of the murder (October 2001), Edward S. and Silvia LoCascio were in the midst of a contentious dissolution of marriage proceeding.

      . After the commencement of these appeals, the probate court determined that the Son (age 19 at the time of the murder) could take over the responsibilities of personal representative from Sharpe. Sharpe was therefore discharged, and the Son was appointed as successor personal representative. That substitution does not affect our analysis.

      . This relief was obtained by the Son in a final judgment in February 2008 in an adversary case brought in his mother's probate proceeding.

      . The final judgment identified a number of specific assets, but the constructive trust extended to all assets titled or assigned in Edward S. LoCascio's name at the time of Silvia LoCascio's death, whether or not identified in the list.

      . Edward S. LoCascio has acknowledged that any interest he may have in the former marital residence is not homestead property. Following his conviction for the murder, he has been incarcerated for consecutive life sentences.

      . During the years between the date of the murder and the entry of the judgment liens against Edward S. LoCascio for over $75,000,000, he apparently incurred substantial indebtedness to one or more law firms for his defense in the murder trial and representation in the probate and wrongful death cases.

      .The lower court did not address, nor do we, any lien priority dispute that may exist between the decedent’s estate and any other creditor of Edward S. LoCascio. At this juncture it does not appear that the estate and Edward J. LoCascio were parties to the proceeding in which Edward S. LoCascio consented to a civil judgment in favor of his attorneys.


author: PER CURIAM.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. Edelmida RODRIGUEZ; Paulino Rodriguez; William Pruitt, as Administrator Ad Litem and/or Personal Representative of the Estate of Oswaldo St. Blanchard a/k/a Oswaldo Blanchard; and Barnett & Barnard, P.A., Respondents.
    No. 3D09-2444.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Shutts & Bowen and Frank Zacherl, Miami, Temple Fett Kearns, and Edward J. O’Sheehan, Ft. Lauderdale, for petitioner.
    Edward R. Blumberg, Miami; Kuvin & Stettin, and Eric L. Stettin, Weston; Joseph Jacks, and Lewis N. Jack and Nicole I. Sieb, Miami, for respondents.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Geico General Insurance Company petitions for a writ of certiorari quashing a non-final order of the circuit court. The order, though providing for abatement of a bad faith claim against Geico in connection with an automobile collision and injury claim, specified that “proper and non-privileged discovery may proceed” regarding the bad faith claim.

Because such discovery is premature in the current procedural posture of the circuit court case — coverage issues have not yet been determined — the order must be quashed. Discovery relating to the statutory bad faith claim may not be commenced until such time, if ever, as the insured’s coverage and extent of loss have been determined. XL Specialty Ins. Co. v. Skystream, Inc., 988 So.2d 96, 98 (Fla. 3d DCA 2008); Gov’t Employees Ins. Co. v. Rodriguez, 960- So.2d 794 (Fla. 3d DCA 2007). Discovery relating to a generalized “common law” bad faith claim must also be quashed because of the pendency of the statutory claim and the similarity of the discovery applicable to that claim.

Writ granted; order quashed.

      . Count I of the complaint purports to plead breaches of both statutory and “common law” duties of good faith in a single claim. The case law is clear that discovery on the statutory claim is premature. In the case of a claim pled exclusively as a “breach of the covenant of good faith,” we have declined to apply that rule pending our Supreme Court's decision on the point in the case of QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n, Case No. SC09-441 (Fla. filed Mar. 11, 2009). See Citizens Prop. Ins.

        Co. v. Bertot, 14 So.3d 1073 (Fla. 3d DCA 2009).


text:
    Walter J. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 4D09-595.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.
    Rehearing Denied Jan. 26, 2010.

      Walter J. Clark, Century, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In Clark v. State, 876 So.2d 1259 (Fla. 4th DCA 2004), this court affirmed Walter Clark’s conviction for aggravated battery on a law enforcement officer (LEO) but reversed a battery on a LEO conviction that violated double jeopardy. Following resentencing and a subsequent appeal, Clark has now filed a petition alleging that his appellate counsel was ineffective in failing to argue in the direct appeal that fundamental error occurred when the jury was instructed regarding the forcible-felony-exception to a claim of self defense. See § 776.041(1), Fla. Stat. (1999) (prohibiting the use of force by one who is “attempting to commit, committing, or escaping after the commission of, a forcible felony”). We deny the petition.

The forcible-felony-exception instruction is given only where a defendant is charged with a separate, independent forcible felony, i.e., a forcible felony other than the one for which the defendant claims self defense. Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002) (recognizing that giving this instruction where no independent forcible felony is alleged is misleading and circular and effectively negated the only defense to the charge); see In re Std. Jury Instr. in Crim. Cases, 976 So.2d 1081, 1084 (Fla.2008) (citing Giles and amending the standard instruction on self defense to explain that the instruction is given only if the defendant is charged with an independent forcible felony).

This court once held that erroneously giving the forcible-felony-exception instruction was fundamental error where it was “reasonably possible” that the instruction contributed to the conviction. See, e.g., Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). The Florida Supreme Court later rejected the notion that the instruction always constitutes fundamental error and explained that the standard for fundamental error in an instruction relating to an affirmative defense is more stringent. Martinez v. State, 981 So.2d 449, 455-56 (Fla.2008) (clarifying that error in giving instruction is not per se fundamental error and that issue depends on whether the instruction was so flawed that it deprived the defendant of a fair trial).

In cases before Martinez, this court granted petitions that raised a claim of ineffective assistance of appellate counsel based on failure to raise this issue and ordered a belated appeal so the entire record could be reviewed to determine if fundamental error occurred. Permenter v. State (Permenter I), 953 So.2d 647, 648 (Fla. 4th DCA 2007); Fair v. Crosby, 858 So.2d 1103, 1105 (Fla. 4th DCA 2003) (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”).

In reviewing the issue after Martinez, this court has found that the error is not fundamental where the State did not rely on the erroneous instruction in closing argument, and the defendant was not deprived of a fair trial by the erroneous instruction. Permenter v. State (Permenter II), 978 So.2d 277 (Fla. 4th DCA 2008); Farmer v. State, 975 So.2d 1275 (Fla. 4th DCA 2008).

In its response to this court’s order to show cause why this petition should not be granted, the State provided record attachments which demonstrate that fundamental error did not occur in this case and that the allegedly erroneous instruction did not deprive Clark of a fair trial. Clark’s claim of self defense against excessive police force was dubious, and the State did not expressly rely on the forcible-felony exception in arguing against Clark’s claim of self defense. The State’s argument against self defense at trial focused on the factual implausibility of Clark’s account of the events that led to Clark biting the police officer in the face.

The fundamental error doctrine “should be applied only in rare cases ... where the interests of justice present a compelling demand for its application.” Martinez, 981 So.2d at 455 (citations omitted). This is not one of those rare cases.

We clarify that this court will not grant a petition alleging ineffective assistance of appellate counsel, or require a belated appeal, unless the petitioner makes a prima facie showing that the circumstances of the case are such that the giving of the forcible-felony-exception instruction may have constituted fundamental error. Further, as in this case, this court will deny such petitions when the State’s response demonstrates that fundamental error did not occur.

GROSS, C.J., DAMOORGIAN and CIKLIN, JJ., concur.


author: SHEPHERD, J.

text:
    L.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2826.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2009.
    Rehearing Denied Jan. 20, 2010.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

Both the Fourth Amendment to the United States Constitution and its Florida counterpart, Article I, section 12, of the Florida Constitution, guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. The issue in this appeal is whether it is “unreasonable,” within the meaning of these two constitutional provisions, for a police officer to perform a weapons search without having performed a pat-down on a fifteen-year-old truant before putting her in the back of his police car to execute his statutory obligation to transport her to school, when the officer has no basis to suspect her of possessing any weapons. Although one could be forgiven for concluding that a search on these facts is textually defensible, the interpretive law, as it has developed in modern times, requires a contrary conclusion. A brief summary of the facts of the case is integral to explain why this is so.

On October 17, 2007, at approximately 1:30 p.m., two Miami-Dade police officers came into contact with L.C. at a government housing project behind Southridge High School in Miami-Dade County. The officers believed she was truant, so they stopped her. She appeared to be sixteen or seventeen-years old and wore a polo shirt bearing the Southridge school emblem. After confirming she should be in school, they told her they were going to transport her back there. Before placing her in the police car, one of the officers, Officer Quintas, “searched all of her pockets.” Her rear pocket contained a small bag of marijuana.

Significantly, Officer Quintas, who conducted the tactile search, testified he saw no bulges to indicate the presence of a weapon. The authority for the search came from standard police procedure. Officer Quintas testified as follows:

Defense Counsel: And did you have any reason to believe that she ... had any weapons on her?
Officer Quintas: We search everybody because we’re putting them in our police vehicle.
Defense Counsel: And what exactly ... was your search? You went — directly into her pockets, correct[?]
Officer Quintas: I searched all of her pockets....
Defense Counsel: But knowing that, [did] you have ... any reasons to believe ... that she had a weapon?
Officer Quintas: She’s a truant, at which time she was going to be transported back to the school. And we searched her in order for her safety and our safety.
Defense Counsel: But did you believe that she had a weapon — or did you have any reason to believe that she had a weapon?
Officer Quintas: I believe anybody has a weapon.
Defense Counsel: [D]id you observe anything specific that ... you could point to[?]
Officer Quintas: No. There w[ere] no bulges.
Defense Counsel: So you went straight into her pockets, correct?
Officer Quintas: I searched all her pockets.
Defense Counsel: You searched all her pockets. So you didn’t pat her down beforehand?
Officer Quintas: No.

L.C. moved to suppress the marijuana based upon the unlawfulness of the search, arguing the police had no probable cause or other particularized suspicion to suspect the presence of a weapon. The trial court denied the motion, after which L.C. pled nolo contendere, reserving her right to appeal.

ANALYSIS

Initially, we note a trial court’s decision on a motion to suppress evidence comes to us with the presumption of correctness. On appellate review, “we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Murray v. State, 692 So.2d 157, 159 (Fla.1997).

Pursuant to section 984.1S(l)(b), Florida Statutes (2007), an officer may take a child into custody “when the officer has reasonable grounds to believe that the child is absent from school without authorization ... for the purpose of delivering the child, without unreasonable delay to the appropriate school system site.” Truancy is not a crime. See C.G. v. State, 689 So.2d 1246, 1247 (Fla. 4th DCA 1997); see also Kazanjian v. Sch. Bd. of Palm Beach County, 967 So.2d 259, 263 (Fla. 4th DCA 2007) (stating the primary purpose of Florida’s truancy laws is to promote academic success); J.M.J. v. State, 389 So.2d 1208, 1210 (Fla. 1st DCA 1980) (“It is apparent that the legislature, in deliberate wisdom, chose to classify ... habitual truants only as dependent children, providing the court with a flexible range of placement options to meet the child’s need for supervision.”); In re Julio R., 129 Misc.2d 171, 492 N.Y.S.2d 912, 914 (N.Y.Fam.Ct.1985) (discussing New York City Education Law section 3205(3), which states, in part, an attendance officer “may arrest without warrant any minor who is unlawfully absent from attendance upon instruction,” and explaining the “arrest ... is, in fact, a noncriminal detention, rather than arrest in the classic, criminal law sense,” and the law is “a child protective statute, intended to insure to every child the schooling he needs to function in the adult world”); 78A C.J.S. Schools and Districts § 1028 (2009) (“An ‘arrest’ by an officer under a truancy statute is a severely limited type of arrest, the sole purpose of which is to quickly place the minor in a school setting, and the arresting officer may not use the truancy arrest as a pretext for investigating criminal matters.”); Jason Scronic, Comment, Take Your Seats: A Student’s Ability to Protest Immigration Reform at Odds until State Truancy and Compulsory Education Laws, 2 Fla. A & M U.L.Rev. 185, 188 (2007). Because L.C. was not arrested in this case, the search incident to arrest exception to the warrant requirement cannot apply. Cf. State v. Mejia, 579 So.2d 766, 766 (Fla. 3d DCA 1991) (finding a search of a person incident to arrest is a recognized exception to the search warrant requirement). Ordinarily, a warrantless search incident to arrest is permissible because of the need to disarm a suspect to take him into custody and to preserve evidence for trial. See, e.g., United States v. Robinson, 414 U.S. 218, 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Parker, 399 So.2d 24, 29 (Fla. 3d DCA 1981). However, when there has not been a custodial arrest, the danger to the officer is considered to be significantly lessened due, in part, to the brief encounter between the officer and suspect. Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (declining to extend Robinson, 414 U.S. at 218, 94 S.Ct. 467, to situations where concern for officer safety does not rise to same level as in Robinson and where need to preserve evidence is not at all present) (quoting Cupp v. Murphy, 412 U.W. 219, 296 (1973) (“Where there is no formal arrest ... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence.”)).

The uniqueness of this case lies in the fact Officer Quintas did not pat-down L.C. prior to directly searching her pockets. Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle. See Knowles, 525 U.S. at 117, 119 S.Ct. 484 (acknowledging the concern for officer safety and justification for additional “minimal” intrusion of ordering driver and passengers out of the car where officer stopped motorist for speeding and issued him a citation rather than arrested him, but stating greater intrusion of full field-type search is not justified), but see A.J.M. v. State, 746 So.2d 1222, 1225 (Fla. 3d DCA 1999) (stating, in case where weapon was seized pursuant to a “valid pat-down,” in dicta, “[njaturally, an officer always has the authority to search anyone before she or he puts them in the back of the police cruiser for transportation”) (emphasis added). To the contrary, case law consistently indicates the officer must have a reasonable belief his safety is in danger and must first perform a pat-down. See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (“[A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.”); United States v. McCargo, 464 F.3d 192, 202 (2d Cir.2006) (“[I]n cases where the police may lawfully transport a suspect to the scene of the crime in the rear of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety, by patting down that person.”); United States v. Burton, 228 F.3d 524, 528 (4th Cir.2000); E.P. v. State, 997 So.2d 1240, 1240 (Fla. 3d DCA 2008) (stating necessity of close proximity in police vehicle itself provides needed basis for pat-down of person); A.J.M. v. State, 746 So.2d at 1224 (affirming trial court order denying motion to suppress where officer performed pat-down of juvenile and “clearly articulated the specific matter that caused him to become concerned for his, and his partner’s safety”); C.G. v. State, 689 So.2d at 1248 (stating officer patted down juveniles prior to placing them in his vehicle and explaining that in Terry search, officer cannot go beyond pat-down of suspect’s outer clothing “unless that pat down or other circumstances leads the officer to conclude that the suspect had a weapon on his person”); Harvey v. State, 703 So.2d 1113 (Fla. 1st DCA 1997) (holding that search exceeded bounds of Florida and federal law where arresting officer pulled back waistband of Harvey’s trousers to see if Harvey put anything down the seat of his pants instead of doing a weapons pat-down); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 167 (1993) (recognizing that officers were justified in patting down a driver based on legitimate concern for self-protection). But see Robinson, 414 U.S. at 235-36, 94 S.Ct. 467 (stating it is “scarcely open to doubt” the danger to an officer is greater in the case of extended exposure resulting from taking a suspect into custody and transporting him to the police station than in the case of fleeting contact resulting from a Terry stop, which provides an adequate basis for treating all custodial arrests alike for purposes of search justification).

In Terry, 392 U.S. at 21, 88 S.Ct. 1868, the Supreme Court stated, “in justifying the particular intrusion the police officer must be able to point to specific and artic-ulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The Court went on to say that in making the assessment of the reasonableness of a particular search in light of the particular circumstances,

the facts must be judged against an objective standard: would the facts available to the officer at the moment of the ... search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches....

Id. at 21-22, 88 S.Ct. 1868 (emphasis added) (internal citations omitted). On direct examination, Officer Quintas stated he searches anyone he transports in his vehicle “for weapons, to make sure they don’t have anything that can harm us or harm themselves.” When asked by defense counsel if Officer Quintas believed L.C. had a weapon, he answered, “I believe anybody has a weapon.” He testified he did not observe anything specific he could point to, that there were no bulges on L.C., and that he performed “a direct search of all her pockets.” He at no time patted L.C. down. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992) (explaining an officer must have additional articulable suspicion person stopped might be armed with dangerous weapon to conduct a pat-down and providing examples of conduct which might constitute articulable facts to support reasonable suspicion suspect is armed and dangerous, including the suspect’s failure to cooperate or furtive movements, or a bulge in the suspect’s clothing); cf. Daniels v. State, 543 So.2d 363, 366 (Fla. 1st DCA 1989) (a “bare” or “gut” feeling that a suspect is engaged in criminal activity is an insufficient basis for a stop and frisk).

In the absence of reasonable suspicion, Officer Quintas was not justified in proceeding to a direct search of L.C. merely because he felt uneasy about his safety, nor could he do so based upon blanket department policy. At minimum, he was required to perform a pat-down. We, therefore, reverse the order denying the motion to suppress.

Reversed and remanded.

      . This article explains the history of truancy and compulsory education laws, and notes that generally, "the purpose of compulsory education laws is to ensure that children attend school,” and that truancy offense generally is not treated as criminal because emphasis is on correcting the behavior rather than punishing the child. Id. Scronic further explains the reasons states have adopted truancy and compulsory education laws, specifically 1) because of social concerns about child labor and employment opportunities; 2) the importance of training children in "good citizenship, patriotism, and loyalty to the state and the nation”; and 3) a desire to reduce vagrancy, juvenile crime and daytime crime. Id. at 189.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . We save for another day the not inconsequential question whether Officer Quintas would have had the authority to perform a pat-down of L.C. Compare E.P., 997 So.2d at 1240 (citing Jackson v. State, 791 P.2d 1023, 1028 (Alaska Ct.App.1990 ("[I]n the case of transportation in a police vehicle ... the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person.")) and People v. Tobin, 219 Cal.App.3d 634, 641, 269 Cal.Rptr. 81 (Cal.Ct.App.1990) (recognizing the "need to transport a person in a police vehicle in itself is an exigency which justifies a pat-search for weapons”) with Enich v. State, 838 So.2d 1216, 1218 (Fla. 3d DCA 2003) (explaining that a pat-down for weapons is justified, specifically when an officer, "in light of his experience, has a reasonable suspicion that the detainee is armed and dangerous”) and Winters v. State, 578 So.2d 5, 6 (Fla. 2d DCA 1991) (finding Florida Stop and Frisk Law authorizes limited search to disclose dangerous weapon where officer has reasonable suspicion detainee is armed; "nevertheless, the search may not ordinarily go beyond a pat-down of the outer clothing”).


author: KHOUZAM, Judge. WHATLEY, Judge,

text:
    Maria D. GUTIERREZ, Appellant, v. Gerald M. YOCHIM, Patricia Yochim, and Dairyland Insurance Company, Appellees.
    Nos. 2D08-4513, 2D08-5499.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    Rehearing Denied Jan. 12, 2010.
    Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., Tampa, and Richard W. Slawson and Michael T. Dolce of Slawson, Cunningham, Whalen & Gaspari, P.L., Palm Beach Gardens, for Appellant.
    Wallace A. Christensen of Troutman Sanders, LLP, Washington, D.C., John J. Blue, Sylvia H. Walbolt, and Laura K. Whitmore of Carlton Fields, P.A., Tampa, and Julie K. Linhart of Phelps Dunbar, LLP, Tampa, for Appellee Dairyland.
    No appearance for Appellees Gerald M. Yochim and Patricia Yochim.
   KHOUZAM, Judge.

Maria D. Gutierrez appeals the final summary judgment entered in favor of Dairyland Insurance Company. The ultimate issue in this case concerns whether Dairyland acted in bad faith in failing to settle a claim against its insured, Ms. Gutierrez. Because there are genuine issues of material fact for determination by the fact-finder concerning whether Dairyland’s actions were reasonably diligent and exercised with reasonable care, we reverse.

FACTS AND PROCEDURAL HISTORY

On August 12, 2003, Maria D. Gutierrez, who was insured by Dairyland, was driving her van when she made a left turn directly into the path of a motorcycle operated by Mr. Yochim. The impact caused Mr. Yo-chim to be ejected from his motorcycle. He landed about nineteen feet away. The police and paramedics arrived, and Mr. Yochim was taken to the hospital. Mr. Yochim sustained serious injuries and stayed in the hospital for thirteen days. After his stay in the hospital, Mr. Yochim was transferred to a nursing home.

Ms. Gutierrez immediately reported the accident to Dairyland. The day after Ms. Gutierrez reported the accident, Dairyland assigned James McDonald to handle the claim. Mr. McDonald spoke generally about the accident with Ms. Gutierrez. He ascertained that neither the insured nor her daughter, who was in the van with Ms. Gutierrez at the time of the accident, was injured. He advised her that she had $10,000 coverage limits — $10,000 in property damage coverage and $10,000 in bodily injury coverage. He concluded that the insured was probably at fault in causing the accident.

Mr. McDonald attempted to call Mr. Yochim, who was still in the hospital, but he was unable to reach him. Mr. McDonald then ordered an appraisal of Mr. Yochim’s motorcycle and assigned that portion of the damage claim to Dairyland’s claim service center in Virginia.

On August 18, 2003, Mr. McDonald received a call from Mr. Frank Verdi, an attorney, who indicated that he was representing Mr. Yochim. Ten days later, however, Mr. Verdi notified Mr. McDonald that he was no longer representing Mr. Yochim and provided him with a notice of his attorney’s lien.

On August 20, Mr. McDonald obtained the accident report. The report stated that Ms. Gutierrez turned directly in front of Mr. Yochim and that he was ejected nineteen feet and suffered an “incapacitating” injury.

On August 26, the appraisal of the motorcycle revealed that it was a total loss. Mr. McDonald authorized payment of the full $10,000 property damage policy limits. On August 29, Mr. McDonald sent Ms. Gutierrez a certified letter advising her that because the property damage would exceed her insurance coverage, she was personally exposed to an excess judgment for both property damage and bodily injuries. In the letter, Mr. McDonald acknowledged “[i]t has also been reported to us that the claimant sustained serious bodily injuries in this matter,” and he cautioned that Dairyland “will make every effort to resolve these claims within your insurance coverage. Due to the serious nature of the accident, this may not be possible.... Under no circumstances will Sentry Claims Service or Dairyland Insurance Company assume responsibility for any claims or judgments in excess of your insurance coverage.”

On September 9, Mr. Yochim’s new attorney, Mr. 0. John Alpizar, sent a letter to Mr. McDonald asking for policy information within thirty days. Dairyland did not provide that information until sixty days later. On October 9, Mr. McDonald spoke with Mr. Alpizar’s paralegal and was informed that Mr. Yochim sustained a significant spinal cord injury and might be paralyzed. After this conversation, Mr. McDonald set the reserves for the bodily injury claim to the full $10,000 policy limit and sent a letter to Mr. Alpizar’s law firm asking for Mr. Yochim’s medical records and bills as “[w]e would like to settle your client’s bodily injury claim as soon as possible.” He also informed them of Mr. Verdi’s attorney’s lien and indicated that Mr. Verdi’s name needed to be on the settlement check. On December 19, Mr. Alpizar sent medical authorization forms signed by Mr. Yochim to Mr. McDonald. Mr. McDonald did not order the records until January 13, 2004, almost five months after the accident, and notably, he requested only the hospital records. Mr. McDonald received the hospital records on January 30 and, on February 4, he sent a letter to Mr. Alpizar acknowledging the serious injuries Mr. Yochim suffered and offering to settle the claim contingent upon placing Mr. Verdi’s name on the settlement check or obtaining an agreement regarding the lien. His letter indicated that he would be contacting Mr. Verdi to ascertain whether Mr. Verdi intended to pursue his lien. The record does not reflect that Mr. McDonald ever contacted Mr. Verdi.

On February 5, Mr. McDonald sent a status report to Ms. Gutierrez informing her that Mr. Yochim had an extended hospital and nursing home stay due to his serious injuries, which included a spinal cord injury, vertebrae fractures, rib fractures, a punctured lung, and a scalp laceration. Mr. McDonald advised her that he had offered to pay the bodily injury liability limit of $10,000 but cautioned that because of the serious injuries it might be impossible to settle within the policy limits. On February 11, Mr. McDonald sent another letter to Mr. Alpizar identical to the letter of February 4. Mr. Alpizar responded on February 17 and advised “if and when the policy limits are tendered, I will discuss it with my client and advise you of his decision.” Mr. Alpizar indicated that he would be responsible for any alleged lien on the part of the prior attorney.

On March 2, in response to Mr. Alpizar’s February 17 letter, Mr. McDonald expressed uncertainty as to the word “tender.” He thought he had already “tendered” the policy limits, even though no check had been enclosed. Again, he wanted assurance that Mr. Alpizar would be responsible for the payment of any potential attorney’s lien. On March 8, Mr. Alpi-zar explained that there had not been a tender of policy limits and that if Mr. McDonald was unsure of that term, he needed to check with his legal department. Mr. Alpizar added that due to the “catastrophic nature of my client’s injuries” there should have been a tendering of policy limits. Once again Mr. Alpizar advised Mr. McDonald that Mr. Yochim would be responsible for any potential attorney’s lien.

On March 24, 2004, Mr. McDonald faxed a copy of Mr. Verdi’s August 28, 2003, attorney’s lien to Mr. Alpizar. On the cover sheet, he again expressed confusion over the term “tender of policy limits.” He also sent a letter on March 25 indicating: “We feel that our offer to settle your client’s claim ... is tender of the limits.” He informed Mr. Alpizar that if he wanted the settlement check, he would need to put in writing that he would settle the attorney’s hen from the proceeds of the check. Mr. Alpizar responded by insisting that his demand for a tender of policy limits was clear and if Mr. McDonald needed clarification, he needed to check with his legal department. He also questioned the potential insignificance of the attorney’s lien saying “I cannot imagine how much of a lien Mr. Verdi may have when this accident occurred on August 12, 2003 and his letter to you advising you of a lien is dated August 28, 2003.”

On April 1, 2004 — almost eight months after the accident — Dairyland formally tendered the policy limits of $10,000. Mr. Alpizar expressed surprise at how long it had taken Dairyland to tender the limits especially due to the catastrophic nature of the injuries. He advised Mr. McDonald that Dairyland’s delay caused his client to direct him to file suit against the insured, Ms. Gutierrez. In deposition he testified that his client would have settled the claim at any point through February.

Mr. Yochim and his wife, Patricia Yo-chim, did, in fact, file suit against Ms. Gutierrez, and she filed a bad faith claim against Dairyland. A stipulated judgment in excess of the policy limits was entered by agreement among Mr. Yochim, Mrs. Yochim, Ms. Gutierrez, and Dairyland. The stipulated judgment expressly left open the issue of whether Dairyland had acted in bad faith in failing to settle Mr. Yochim’s claim.

In the bad faith action, Dairyland filed a motion for summary judgment arguing that as a matter of law it did not act in bad faith. It asserted that it had orally offered to settle for its policy limits within a day of receiving the medical records and that final judgment should be entered in its favor. In opposition to the motion, Ms. Gutierrez filed two affidavits, one by a claims handling expert and the other from an attorney. The substance of the affidavits was that based on the low limits of the insured’s policy and the potentially catastrophic injuries to Mr. Yochim, Dairyland should have tendered its policy limits no later than October 2003. The affidavits indicated that Dairyland’s method of claims handling was not appropriate under the circumstances; that Dairyland failed to conduct a thorough and prompt investigation using all sources available to all parties; that Dairyland demonstrated a lack of urgency and lack of concern to its insured; that Dairyland violated its fiduciary duty to its insured by failing to understand the duty to make a tender of policy limits as soon as the adjuster determined it was likely the value of the claim would exceed policy limits; that Dairyland breached its duty by refusing to protect the insured until it received medical records documenting the nature and extent of the injuries and requiring written confirmation of those injuries when it already knew of the severity of the injuries; and that the purported attorney’s lien should not have been a factor in the settlement considerations. The trial court granted summary judgment in favor of Dairyland.

THE STANDARD OF REVIEW

A trial court’s ruling on a motion for summary judgment is a question of law and is subject to the de novo standard of review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 180 (Fla.2000). Summary judgment should be granted only when there is a complete absence of genuine issues of material fact. Id. “[W]here material issues of fact which would support a jury finding of bad faith remain in dispute, summary judgment is improper.” Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla.2004).

DISCUSSION

It is well settled that an insurance company has an obligation to properly defend its insured from claims that are covered within the policy of insurance and that it must exercise good faith in satisfying that obligation. See generally Berges, 896 So.2d 665. When defending its insured against a claim, the insurer has a duty to “ ‘use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.’ ” Id. at 668 (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)). “The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable, and settle the claim, if possible, ‘where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.’ ” Menchise v. Liberty Mut. Ins. Co., 932 So.2d 1130, 1132-33 (Fla. 2d DCA 2006) (quoting Gutierrez, 386 So.2d at 785)).

In Florida, the question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the “totality of the circumstances” standard. Each case is determined on its own facts and ordinarily “[t]he question of failure to act in good faith with due regard for the interests of the insured is for the jury.”

Berges, 896 So.2d at 680 (internal citations omitted).

Here, Dairyland knew within days of the accident that its insured was entirely at fault in causing the accident. In addition, because the accident involved a motorcycle, Dairyland was aware that the insured would be responsible for all of the personal injury damages that exceeded her $10,000 policy, without regard to the issue of whether Mr. Yochim suffered a permanent injury. See § 627.732(3), Fla. Stat. (2006). Dairyland also knew that Mr. Yochim suffered catastrophic injuries. He was hospitalized for thirteen days and later transferred to a nursing home. He sustained a spinal cord injury, vertebrae fractures, rib fractures, a punctured lung, and a scalp laceration. We cannot say, as a matter of law, that Dairyland satisfied its duty of good faith under the circumstances presented in the record before us.

Dairyland argues that any delay in tendering the policy limits was caused by Mr. Alpizar, who failed to provide medical records and who, instead, sent out medical authorization forms. Dairyland asserts that it was trying to verify the full extent of the claimant’s injuries and had every right to wait for that medical information. Dairyland’s argument is unavailing because its fiduciary duty to timely and properly investigate the claim against the insured was not relieved simply because it was waiting to receive information from the claimant’s attorney. See Berges, 896 So.2d at 677 (“the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured”). Based on the record before us, it appears that Dairyland knew that Mr. Yochim’s injuries would exceed the policy limits of $10,000, and its failure to tender the policy limits created a genuine issue of material fact regarding whether it breached its duty of good faith.

Finally, Dairyland argues that summary judgment was appropriate because there was never a formal offer to settle the case. Under the facts presented, a lack of a formal offer to settle is a factor to be considered in determining whether the insurance company acted in bad faith. See Powell v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991).

Under these circumstances, whether it was reasonable for Dairyland to insist on additional medical information beyond what it already knew, whether it was reasonable for Dairyland to insist on further verification of the attorney’s lien issue, and whether Dairyland reasonably handled the purported “tender” are factual disputes that are for determination by the finder of fact.

CONCLUSION

Because the record contains genuine issues of material fact to be resolved by the fact-finder as to whether Dairyland acted fairly and with due regard for the insured’s interests, we reverse the final summary judgment.

Reversed.

LaROSE, J., Concurs.

WHATLEY, J., Dissents with opinion.

WHATLEY, Judge,

Dissenting.

The trial court was correct in granting summary judgment for Dairyland. Courts should be cautious not to manufacture coverage that otherwise does not exist under the guise of bad faith. As noted in Shin Crest PTE, Ltd. v. AIU Insurance Co., 605 F.Supp.2d 1234, 1243 (M.D.Fla.2009), Justice Wells, in a well-reasoned dissenting opinion, discussed the dilemma that occurs in bad faith litigation:

I do not believe that it is acceptable for the Court to merely say that bad faith is a jury question. It is the Court’s responsibility to have logical, objective standards for bad faith and not to avoid setting definitive standards by declaring bad faith to be a jury question. The Court should recognize that it has the responsibility to reserve bad faith damages, which is limitless, court-created insurance, to egregious circumstances of delay and bad faith acts. The Court likewise has a responsibility to not allow contrived bad faith claims that are the product of sophisticated legal strategies and not the product of actual bad faith.

(quoting Berges v. Infinity Ins. Co., 896 So.2d 665, 686 (Fla.2004) (Wells, J., dissenting)).

The actions of Dairyland were not remotely egregious in this case. Further, Dairyland acted with reasonable diligence and care in the claims process. An outline of the following events is enlightening.

The day after the accident, Dairyland tried without success to contact the injured party, Yochim. On that same day, Dairy-land contacted its insured, Gutierrez, and advised her of her $10,000 coverage limits. At this point, Dairyland concluded Gutierrez was at fault in causing the accident. On August 20, Dairyland obtained the police report. The report confirmed Yochim was ejected from his motorcycle and suffered an “incapacitating” injury. Being knocked unconscious could be such an injury. This is precisely why it is essential for an insurer to receive and review medical records.

On August 26, 2003, Dairyland determined Yochim’s motorcycle was a total loss and authorized payment of $10,000 in property damage policy limits. On August 29, Dairyland contacted attorney Verdi, who was initially retained to represent Yo-chim. Dairyland was advised that Yochim had new counsel. Of note, the previous day Verdi had sent Dairyland a letter advising that he no longer represented Yo-chim and giving notice of his attorney’s lien. He requested his name be on any settlement draft. On this same day Dairy-land called Alpizar’s office, only to be advised they had no record of Yochim as a client. On October 9, Dairyland again called attorney Alpizar’s office, who was now representing Yochim. Dairyland’s adjuster spoke with Alpizar’s paralegal. The paralegal told the adjuster he was not really allowed to tell him anything. He did state that Yochim “might” have a serious spinal injury or even paralysis, but he was not really sure. He asked the adjustor not to tell attorney Alpizar of any information he had relayed. The adjuster left his name and telephone number and asked that Alpizar call him. Alpizar did not return the call. Alpizar’s office had Yochim’s medical records at this time.

On October 10, Dairyland followed up with a letter to Alpizar. It stated Dairy-land’s desire to settle the bodily injury claim as soon as possible and requested the medical records. Alpizar was also alerted as to Verdi’s attorney lien. Alpizar failed to send the medical records to Dairyland. Rather, on December 22, Alpi-zar mailed medical authorization forms to Dairyland, which were received December 26. At no time did Alpizar ever make a demand for payment of the Yochim claim.

Alpizar mailed a letter to Dairyland dated September 9. The record indicates the letter was mailed October 27. Dairyland’s date stamp on the letter is October 29. What is referenced in the letter is a statutory demand for coverage/policy information to be provided within thirty days. What is absent from the letter is any reference to Yochim’s injuries.

Dairyland received the medical records on January 30, 2004. Within one day, Dairyland made an oral offer of its policy limits. On February 4, Dairyland wrote Alpizar a letter confirming the receipt of the medical records and reiterating the offer of settlement for the $10,000 bodily injury policy limits. Dairyland stated, “please indicate if your client will settle his claim for our insured’s policy limit.” An answer in the affirmative was not forthcoming.

Courts must ensure that valid claims of an insured are timely paid. Egregious conduct of an insurer in denying or delaying payment of a valid claim should result in bad faith. However, tactics designed to manufacture coverage, when none exists, should never be accepted.

I would affirm the trial court.

      . Interestingly, Mr. McDonald’s diary entry of January 29 reflected, "BI authorization request finalized on Yochim, Gerald. Settlement range $226,800 to $352,000; request $10,000.”

      . On March 26, Mr. McDonald sought advice from an attorney and was told to immediately send the settlement check. He processed the check, but on April 1 he realized he had the wrong name on the check. On April 1, he drove to Mr. Alpizar's office and tendered a handwritten check with the correct name.

      . We also reverse tire cost judgment that was entered in conjunction with the final summary judgment.


author: SILBERMAN, Judge.

text:
    James Alonzo BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3794.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2009.
    Rehearing Denied Jan. 12, 2010.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

James Alonzo Brooks appeals his convictions and sentences for burglary of an unoccupied structure, possession of burglary tools, and grand theft. We affirm without discussion the convictions and sentences for burglary of an unoccupied structure and grand theft. We write to reverse the conviction and sentence for possession of burglary tools.

The victim of the burglary saw Brooks walking a bicycle along the fence line of the victim’s property early in the morning. The victim called 911 to report a suspicious person around his home. About ten minutes later, the victim went into his backyard and saw Brooks flee from the victim’s open shed. Brooks jumped the fence and happened to run toward an officer who was responding to the 911 call. Brooks was wearing gloves, and he had a flashlight on his person. Power tools that had been in the shed had been moved outside the shed. The bicycle was found outside the victim’s fence. Other property from the shed was next to the bicycle, along with a crowbar. Brooks contends that the evidence was insufficient to prove a prima facie ease of possession of burglary tools.

To support a conviction for possession of burglary tools, the State must prove that the defendant had “in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass.” § 810.06, Fla. Stat. (2007). Brooks is correct that gloves are not burglary tools under section 810.06. See Green v. State, 604 So.2d 471, 473 (Fla.1992) (concluding “that items of personal apparel, such as common gloves, are not included under the terms ‘tool, machine, or implement’ as used in section 810.06”). Thus, the evidence that Brooks was wearing gloves cannot support his conviction for possession of burglary tools.

With respect to the flashlight found on Brooks’ person, the State failed to prove his intent to use it to commit burglary. “ ‘Where a person is accused of possessing “burglary” tools, the state must prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime.’ ” Keys v. State, 949 So.2d 1080, 1083 (Fla. 2d DCA 2007) (quoting Thomas v. State, 531 So.2d 708, 709 (Fla.1988)). In Keys, this court determined that the evidence was sufficient to show the defendant’s intent to use deck spikes found in his possession to burglarize a mobile home when the door to the mobile home had fresh pry marks on it. Id,

In Latimore v. State, 753 So.2d 690, 691 (Fla. 4th DCA 2000), the defendant was seen, in the nighttime, trying to remove a radio from the dashboard of a vehicle. Similar to the present case, when he was later arrested and searched, the police discovered a flashlight on the defendant’s person. The Fourth District determined that the evidence was insufficient to support a conviction for possession of burglary tools because the evidence of intent to use the flashlight to commit the burglary was lacking. Id. at 692. The court explained that the defendant “was never even seen with the flashlight in his hand at all. It was merely found on his person when he was arrested.” Id. Here, the evidence to show Brooks’ intent to use the flashlight to commit the burglary was similarly lacking. Thus, his possession of the flashlight cannot support his conviction for possession of burglary tools.

The State contends that a crowbar found next to the bicycle supports Brooks’ conviction for possession of burglary tools, citing C.W. v. State, 778 So.2d 358 (Fla. 2d DCA 2001). The State argues that “the jury could reasonably infer Brooks’ use of the crowbar with the intent to commit a burglary.” In C.W., however, the juvenile broke into a school using a crowbar. He admitted to using the crowbar to break into the school, the doors had pry marks on them, and police found a crowbar inside the school. Id. at 359.

In contrast, the only evidence here is that a crowbar was found outside the fence and next to the bicycle. No evidence shows Brooks’ intent to use the crowbar, especially when the crowbar was unnecessary to enter the open shed and the evidence reflected that Brooks climbed the fence to enter the property. As with the flashlight, mere possession of the crowbar does not constitute a crime. See Thomas, 531 So.2d at 709. Therefore, because the State failed to prove Brooks’ intent, we reverse his conviction and sentence for possession of burglary tools.

Affirmed in part and reversed in part.

FULMER and NORTHCUTT, JJ., Concur.


text:
    Jermaine THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2821.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Rehearing and Rehearing En Banc Denied Jan. 19, 2010.
    Jermaine Thompson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. Rodriguez, 990 So.2d 600, 604 (Fla. 3d DCA 2008).