text:
    Bradford B. BANKS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4323
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 17, 2017

      Bradford B. Banks, Jr., Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Bradford Banks, Jr., appeals the order denying his motion to vacate, set aside, or correct sentence. For the following reasons, we affirm.

In 1997, after a jury trial, Banks was convicted of burglary of a dwelling with an assault or battery with a weapon, aggravated battery causing great bodily harm with a weapon, and aggravated assault with a deadly weapon. Banks appealed his convictions and sentences, but his appeal was dismissed in 1998.

In 2014, Banks filed the present “Motion to Vacate, Set Aside, or Correct Sentence, or Alternatively, Petition for ‘Common Law’ writ of habeas corpus pursuant to Florida Rule of Criminal Procedure 3.850, Article I, Section 13 of the Florida Constitution, and section 79.01 of the Florida Statutes (2013).” Banks argued that his convictions were “unlawful,” thereby causing his sentences to be illegal because the convictions violated the double jeopardy prohibitions of the Florida Constitution and the United States Constitution.

In summarily denying the motion, the postconviction court first correctly determined that Banks’s rule 3.850 motion was untimely and successive. Although “[djouble jeopardy claims are properly the subject of Rule 3.850 relief,” Dykes v. State, 200 So.3d 162, 163 (Fla. 5th DCA 2016) (quoting Rios v. State, 889 So.2d 940, 941 (Fla. 5th DCA 2004)), the two-year time requirement to file a rule 3.850 motion applies to double jeopardy issues raised in the motion. Sanders v. State, 621 So.2d 723, 727 (Fla. 5th DCA 1993). The time for filing the motion pursuant to rule 3.850 expired long ago. See McCraney v. State, 830 So.2d 262 (Fla. 5th DCA 2002). Second, the court also appropriately concluded that Banks was not entitled to ha-beas corpus relief because Banks was improperly seeking relief on an issue that could have been raised on direct appeal or in a timely rule 3.850 motion. See Baker v. State, 878 So.2d 1236, 1241 (Fla. 2004) (citations omitted).

Having concluded that relief was not procedurally warranted on the basis asserted, the postconviction court then considered the motion as if filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. The court concluded that Banks was not entitled to relief under this rule, reasoning that because Banks had already completed serving his sentence on the burglary with an assault or battery with a weapon conviction, “any question regarding the legality of the sentence” was rendered moot. See Maybin v. State, 884 So.2d 1174, 1175 (Fla. 2d DCA 2004) (holding that when a defendant has served an invalid or illegal sentence to completion, the trial court cannot vacate it under rule 3.800(a) because the issue has become moot (citation omitted)).

Initially, we agree with the post-conviction court’s observation that Banks had completed his sentence for the burglary conviction. For that matter, Banks has also completed his sentence for the aggravated assault conviction, but he is still serving his prison sentence for the aggravated battery conviction. We conclude, however, that the postconviction court erred in analyzing, and thereafter resolving, the issue of whether Banks’s sentences are or were illegal because, substantively, Banks was only challenging his convictions, while the respective sentences were only challenged by default. While we appreciate the postconviction court’s effort to thoroughly analyze Banks’s claims under all possible avenues for relief, this court has explained that double jeopardy challenges that are in reality attacks on convictions and not on sentences cannot be addressed in the context of a rule 3.800(a) motion. Sanders, 621 So.2d at 727 (citing State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990)). “Any other interpretation would provide an easy escape route around the time-bar for collateral attacks on criminal judgments provided by rule 3.850.” Id. We therefore affirm the court’s order. “[Rjule 3.800(a) is limited to claims that a sentence itself is illegal, without regard to the underlying conviction.” Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006) (en banc) (citations omitted). As previously discussed, Banks was required to challenge his convictions on double jeopardy principles in his direct appeal or by a timely rule 3.850 motion, which he did not do.

Lastly, we substantively and procedurally reject Banks’s plea for relief based on an alleged “manifest injustice” exception. See State v. Manning, 121 So.3d 1083, 1085 (Fla. 4th DCA 2013); Hall v. State, 94 So.3d 655, 657 (Fla. 1st DCA 2012) (“‘Simply construing an alleged error as “manifest injustice” does not relieve [an appellant] of the time bar contained in’ rule 3.850.” (quoting Johnson v. State, 44 So.3d 198, 200-01 (Fla. 4th DCA 2010))).

AFFIRMED.

PALMER, TORPY, and LAMBERT, JJ., concur.

      . Banks was also convicted of three other charges that are not pertinent to this appeal. A seventh charge was dismissed by the court after trial.

      , Banks had previously filed a rule 3.850 motion for postconviction relief that the lower court denied. We affirmed the denial order without opinion. Banks v. State, 111 So.3d 894 (Fla. 5th DCA 2013).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randall T. BURNEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-162
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017.

      Randall Burney, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Randall T. Burney appeals the order summarily denying his motion to vacate his sentence filed under Florida Rule of Criminal Procedure 3.850(b)(2), which provides an exception to the two-year time limit for newly-established constitutional rights that have been held to apply retroactively. In his motion, Mr. Burney argued that his life sentence with the possibility of parole for a burglary committed when he was a juvenile was unconstitutional under the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct 2011, 176 L.Ed.2d 825 (2010), and the Florida cases interpreting Graham. He seeks resentencing in conformance with chapter 2014-220, Laws of Florida. See §§ 921.1401, .1402, Fla. Stat. (2014) (creating a scheme in which a juvenile receives individualized considerations—such as his or her propensity for change, rehabilitation, and demonstrated maturity—at the time of sentencing that can be later reviewed by the trial court). We agree with Mr. Burney and reverse and remand for resentencing.

The postconviction court summarily denied Mr. Burney’s motion because then-existing case law held that juvenile sentences of life imprisonment with the possibility of parole did not implicate the constitutional constraints expressed in Graham and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). See McPherson v. State, 138 So.3d 1201, 1202 (Fla. 2d DCA 2014) (citing Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013); quashed, 41 Fla. L. Weekly S578d, 2016 WL 6357975 (Fla. Oct. 28, 2016).

While this appeal was pending, the Florida Supreme Court quashed the Fourth District’s Atwell decision. See Atwell v. State, 197 So.3d 1040 (Fla. 2016). The supreme court concluded that “Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.” Id. at 1041. In contrast to Atwell, who was convicted of murder, Mr. Burney was convicted of burglary. Nevertheless, the supreme court noted that At-well’s life sentence for armed robbery was unconstitutional under Graham because it eliminated his ability to obtain a “meaningful opportunity for release.” Id. at 1043 n.1; see also Henry y. State, 175 So.3d 675, 679 (Fla. 2015) (“Graham is implicated when a juvenile nonhomicide offender’s sentence does not afford any ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” (quoting Henry v. State, 175 So.3d 675, 679 (Fla. 2015))). Simply put, juveniles sentenced to life with the possibility of parole are entitled to resentencing pursuant to sections 921.1401 and 921.1402. Id. at 1050.

Under the supreme court’s Atwell decision, Mr. Burney is entitled to resentenc-ing in conformance with chapter 2014-220, Laws of Florida, even though he was originally sentenced to life in prison with the possibility of parole. We reverse the order denying Mr. Burney’s postconviction motion and remand for resentencing.

Reversed and remanded.

NORTHCUTT, LaROSE, and BLACK, JJ., Concur.


author: WELLS, Judge.

text:
    Carmen STAGG, as Personal Representative of the Estate of Francisco Stagg, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.
    No. 3D16-160 Consolidated: 3D16-157
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017
    Koch Parafmczuk <& Wolf, Austin Carr and Justin R. Parafinczuk, (Fort Lauder-dale), for appellant.
    Arnold & Porter Kaye Scholer, and Geoffrey J. Michael and David E. Kouba, (Washington, DC); Shook, Hardy & Bacon, and William P. Geraghty; King & Spalding, William L. Durham and Chad A. Peterson, (Atlanta, GA), for appellees.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   WELLS, Judge.

Affirmed. See Gaff v. R.J. Reynolds Tobacco Co., 129 So.3d 1142, 1145 (Fla. 1st DCA 2013); see also Uffner v. Philip Morris USA Inc., 46 F.Supp.3d 1339, 1345 (M.D. Fla. 2014).


author: ROTHENBERG, J.

text:
    Michelle Bible SCHAFSTALL, Appellant, v. Charles Clifford SCHAFSTALL, Appellee.
    No. 3D16-1756
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017

      Michelle Bible Schafstall, in proper person.
    The Manz Law Firm, and Michelle C. Klinger, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Michelle Bible Schafstall (“the former wife”) appeals from findings contained in the final judgment of dissolution of marriage entered by the trial court. Specifically, she disputes the trial court’s findings and calculation of her monthly income. Because we find that the trial court’s findings are supported by competent, substantial evidence, we affirm.

BACKGROUND

The former wife and Charles Clifford Schafstall (“the former husband”) were married in 1992. They have four minor children. The petition for dissolution of marriage was filed in 2014, and the trial court entered a final judgment granting the petition in July 2016. Pursuant to the marital settlement agreement entered into by the parties and adopted by the trial court, the parties agreed to abide by a 50/50 timesharing schedule with the children. The marital settlement agreement also provides that the former wife shall have exclusive use and occupancy of the marital home until their children reach the age of majority; the former husband will pay for the entire mortgage, home insurance, and taxes on the marital home; and the former husband will receive a credit from the proceeds of the sale of the marital home to compensate for his payments during the former wife’s exclusive use and occupancy of the home. The marital settlement agreement did not resolve the issue of child support, and the subject of this appeal is the computation of the former wife’s income for the purpose of determining the amount of child support to be paid by the former husband.

The former husband works as a fishing guide, earning $84,427 in gross income. The former wife has a bachelor’s degree in business management and has worked as a bookkeeper in various capacities. Before she was terminated in November 2012, she was employed part-time as a bookkeeper, earning $20 per hour and working twenty hours per week. Since then, she has performed some bookkeeping services for her mother’s business. Her mother, in turn, pays the former wife’s cell phone bill. The former wife claims that she suffers from chronic fatigue syndrome and is, therefore, unable to work.

In the final judgment, the trial court made findings as to the parties’ respective incomes for the purpose of determining child support. When computing the former wife’s income, the trial court included the former wife’s receipt of an $834 monthly adoption subsidy and the former husband’s monthly alimony payment to the former wife in the amount of $400. The former wife has not appealed these findings. Additionally, the trial court calculated the former wife’s monthly income to include the following: (1) the cost of the marital home’s monthly mortgage payment as an in kind contribution paid for by the former husband in the amount of $1,300; (2) in kind contributions from the former wife’s mother in the amount of $250; and (3) part-time imputed income for the former wife’s unemployment in the amount of $487.50. Relying on the child support guidelines, the trial court ordered the former husband to pay $798.99 a month for child support. The former wife only appeals the three following aspects of the trial court’s computation of her gross monthly income: (1) the in kind contribution of the former husband’s monthly mortgage payment for the marital home; (2) the in kind contributions from the former wife’s mother; and (3) the former wife’s part-time imputed income.

ANALYSIS

The trial court has discretion in determining the amount of alimony or child support. Castillo v. Castillo, 59 So.3d 221 (Fla. 3d DCA 2011). Accordingly, we will only reverse the trial court’s determinations as to these issues “where no reasonable man would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Additionally, the trial court’s imputation of income to a spouse will be upheld if it is supported by competent, substantial evidence. Martinez v. Martinez, 995 So.2d 1091, 1095 (Fla. 3d DCA 2008); Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005).

I.The in kind contribution of the former husband’s monthly mortgage payments

Contrary to the former wife’s contention, the trial court was required to include in its calculation of the former wife’s gross monthly income the value of the mortgage payments paid by the former husband as in kind contributions. According to the statutory guidelines for child support, the trial court’s calculation of a spouse’s gross income shall include “[r]e-imbursed expenses or in kind payments to the extent that they reduce living expenses.” § 61.30(2)(a)13., Fla. Stat. (2014). This category includes housing expenses. See George v. George, 93 So.3d 464, 468 (Fla. 2d DCA 2012); Bryan v. Bryan, 765 So.2d 829, 833 (Fla. 1st DCA 2000); Thomas v. Thomas, 712 So.2d 822, 824 (Fla. 2d DCA 1998); Chapoteau v. Chapoteau, 659 So.2d 1381, 1384 (Fla. 3d DCA 1995).

In the instant case, it was not only proper, but it was also mandatory, for the trial court to consider, when calculating the former wife’s gross monthly income, the fact that the former wife was awarded exclusive possession of the marital home until the children reach the age of majority and that the former husband will be required to pay for the mortgage, taxes, and insurance for the marital home for the entire duration of the former wife’s exclusive occupancy of the home. Jacob v. Jacob, 26 So.3d 11, 12 (Fla. 2d DCA 2009) (finding that it was an abuse of discretion for the trial court to fail to consider the fact that the husband was paying for the marital home’s mortgage, utilities, and upkeep when completing the child support guidelines worksheet). We therefore find no error with the trial court including the mortgage payments in the former wife’s gross monthly income.

II. The in kind contributions from the former wife’s mother

We also find that the trial court properly included the in kind contributions from the former wife’s mother in calculating the former wife’s gross monthly income. § 61.046(8), Fla. Stat. (2014) (stating that the definition of “income” includes “any form of payment to an individual ... made by any person”); § 61.30(2)(a)13., Fla. Stat. (2014); Cooper v. Kahn, 696 So.2d 1186, 1188 (Fla. 3d DCA 1997) (holding that the trial court correctly imputed income to the wife based on the continued monthly payments the wife’s mother made to cover the wife’s living expenses); Porzio v. Porzio, 760 So.2d 1075, 1077 (Fla. 5th DCA 2000) (affirming the trial court’s imputation of income to the husband because its imputation was supported by the husband’s own financial affidavit and testimony heard at trial).

The trial court’s inclusion of the former wife’s mother’s in kind contributions in the amount of $250 per month was based on the former wife’s testimony that her mother paid for her cell phone bill. Additionally, the former wife’s financial affidavit states that she pays $250 for her phone services. Thus, the record evidence supports the trial court’s inclusion of these $250 in kind contributions in the calculation of the former wife’s income.

III. The former wife’s imputed income for voluntary unemployment

Lastly, we address the former wife’s claim that the trial court erred by imputing income to her for voluntary unemployment. When determining child support, the trial court must impute income to a parent if the trial court finds that the parent is voluntarily unemployed or underemployed, unless the trial court finds that the parent suffers from a “physical or mental incapacity or other circumstance over which the parent has no control.” § 61.30(2)(b), Fla. Stat. (2014); Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009) (finding that the trial court’s imputation of income based on the wife’s voluntary unemployment was supported by competent substantial evidence, even though she presented evidence that she was disabled, because the husband presented evidence that she partook in physically demanding activities and she admitted to working during the marriage); Fitzgerald v. Fitzgerald, 912 So.2d 363, 368 (Fla. 2d DCA 2005); Smith v. Smith, 872 So.2d 397, 399 (Fla. 1st DCA 2004).

The trial court made the following findings to support its imputation of income to the former wife for her voluntary unemployment: (1) the former wife’s refusal to work, although she admitted in a deposition taken in this case that she can work part-time; (2) the former wife’s concession that she used to work twenty hours per week earning $20 per hour when she was working as a bookkeeper in 2012, despite suffering from the same chronic fatigue syndrome at that time; and (3) the testimony of the former wife’s expert witness regarding the former wife’s ability to work was based on the former wife’s self-reported condition, as opposed to an independent scientific and medical evaluation. See Wald v. Grainger, 64 So.3d 1201, 1205 (Fla. 2011) (recognizing that the trier of fact “is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony”); Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla. 1993) (finding that the trier of fact may reject expert testimony, which in that case was on the issue of the permanency of the plaintiffs injuries, where the expert’s medical opinions were premised on the plaintiffs self-reported medical history).

Based on its evaluation of the evidence, the trial court imputed income to the former wife at a rate of fifteen hours every other week, at $15 per hour—an amount which is less than the amount of hours the former wife had worked and the amount she had earned during the course of her most recent employment. These factual findings and determinations are supported by competent substantial evidence, and “[t]his court will not second-guess the trial court’s finding that the wife’s evidence of her inability to work was not credible.” Zarycki-Weig, 25 So.3d at 575.

CONCLUSION

In conclusion, we find that the record evidence supports the trial court’s inclusion of the former husband’s mortgage payments on the marital home, the former wife’s mother’s in kind contributions, and the former wife’s imputed income for her voluntary unemployment. Because the record contains competent substantial evidence in support of these findings, we affirm the final judgment of dissolution of marriage entered by the trial court. Additionally, we find that the former wife’s remaining arguments are without merit, and therefore decline to specifically address them here.

Affirmed.


text:
    QUICK CASH, LLC, etc., Appellant, v. TRADENET ENTERPRISE INC., etc., Appellee.
    No. 3D16-1640
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Wasson & Associates, Chartered, and Annabel C. Majewski; Jay B. Weiss, P.A., and Jay B. Weiss, for appellant.
    The Barthet Firm, and John C. Hanson, II, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Quick Cash, LLC (“Quick Cash”) appeals a final order granting Tradenet Enterprise Inc.’s (“Tradenet”) motion to dismiss Quick Cash’s complaint for lack of jurisdiction and improper venue. The trial court’s decision was based on its interpretation of a forum selection clause in the parties contract, which we review de novo. Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009). The clause at issue is as follows:

This purchase order shall be deemed entered into and performed in the State of California and Buyer consents to the jurisdiction of the State of California for purposes of enforcement of the terms hereof. Buyer agrees to the above General Terms including but not limited to terms relating to interest on late payments, conditional terms, attorneys fees and jurisdiction for enforcement.

(Emphasis added). The issue in this case is whether the bolded portion of the above forum selection clause reflects that the parties agreed to mandatory jurisdiction and venue in California.

Parties to a contract may agree in writing to resolve all future disputes arising out of the contract in a specific forum. Weisser v. PNC Bank, N.A., 967 So.2d 327, 330 (Fla. 3d DCA 2007). Such forum selection clauses are either permissive or mandatory. DVDPlay, Inc. v. DVD 123 LLC, 930 So.2d 816, 818 (Fla. 3d DCA 2006) (stating that the contract’s mandatory clause “requires that a particular forum be the exclusive jurisdiction for litigation concerning the contract”); Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005) (stating that permissive clauses “do not exclude jurisdiction or venue in any other forum”).

The determination as to whether a term or clause is mandatory or permissive does not depend on the inclusion or exclusion of specific “magic words.” Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) (holding that although the forum selection clause did not contain the words “must” or “shall,” the clause was nevertheless mandatory because it limited the appropriate forum to only one option, to the exclusion of all others). Instead, the test is whether, when read as a whole, the forum selection clause indicates that the parties intended to try a case in the specified forum and to the exclusion of all others. Celistics, 22 So.3d at 826 (holding that a forum selection clause which reads that “the parties agree to select the venue and jurisdiction of the Courts and Tribunals of the city of Madrid” was mandatory based on the definitions of the words “agree” and “select”); Weisser, 967 So.2d at 331-32 (holding that a forum selection clause was mandatory because it contained “words of exclusivity”).

The forum selection clause in the instant case contains “words of exclusivity.” The inclusion of the phrase “shall be deemed entered into and performed in the State of California ... for purposes of enforcement of the terms hereof’ indicates that the parties intended for California to be the sole venue for the enforcement of the terms of the purchase order. The phrase “consents to the jurisdiction of the State of California,” must be read together with the adjoining words of exclusivity. Were this case to proceed in Florida, the words of exclusivity in the clause would be rendered meaningless. World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (stating that to interpret the forum selection clause in that case as permissive would render certain portions of the clause “utterly meaningless,” in violation of Florida’s principles of contract interpretation).

We therefore, conclude that the parties clearly intended for any judicial action, which may be necessary to enforce the terms of the purchase order, be had exclusively in California. Because we find that the forum selection clause is mandatory in nature, we affirm the trial court’s order dismissing the case for lack of jurisdiction and improper venue.

Affirmed.

      . We find that Quick Cash's remaining arguments are without merit, and we therefore decline to discuss them further.


text:
    Kathleen KURTZ, P.O.A., and as daughter and best friend of Charlotte James, Appellant, v. AF & L INSURANCE COMPANY, Appellee.
    No. 3D16-935
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017
    Neil Rose, (Hollywood); Steven M. Dunn; Jonathan Aronson, for appellant.
    Marshall, Dennehey, Warner, Coleman & Goggin, and Stephen J. Poljak, Michael A, Packer and Danielle N. Robinson, (Fort Lauderdale), for appellee.
    Before WELLS, ROTHENBERG and LAGOA, JJ.
   WELLS, Judge.

Kathleen Kurtz, P.O.A., and as daughter and best friend of Charlotte James, the plaintiff below, appeals from a final summary judgment in favor of AF & L Insurance Company, claiming that the trial court erred in determining that the insurance policy at issue is unambiguous and that the insurer is in full compliance with that policy. Because we agree that no ambiguity exists and that the insurer is in compliance with the policy, we affirm.

FACTS

In 2000, AF & L issued a long-term care insurance policy to Ms. James. As pertinent here, the policy provides long term care benefits to Ms. James for a maximum of three years generally up to a maximum of $170 per day for each day Ms. James either receives medically necessary services in her home (the home health care benefit) or is confined to a nursing home (the nursing home benefit). The policy also provides for a waiver of premiums after Ms. James has received policy benefits “for at least 90 continuous days while [she] continues to receive Long Term Care on a continuous basis (for Home Health Care, at least 5 days per week).”

For some time before June 2013, Ms. James lived in an independent living facility located at the Five Star Residences of Plantation. As was required by its policy, AF & L paid for home health care benefits for Ms. James at the rate of $170 a day:

HOiyiE HEALTH CARE: We will pay a benefit for each day You receive Home Health Care at Home. The benefit will be the lesser of: 1) the Daily Maximum Benefit for Home Health Care set forth in the Policy Schedule [$170]; or 2) the Reasonable Charge for the services provided.[]

AF <& L also waived her premium payments because she had met the policy’s conditions for a premium waiver.

Because of an increasing inability to care for herself, on June 6, 2013, Ms. James transferred to the assisted living facility at Five Star. As a consequence, AF & L began to make payments on her behalf under the assisted living facility provision of its policy. Under that provision, AF & L was obligated to pay “the lesser of ... the Reasonable Charges incurred for daily room and board; or ... the daily benefit amount for Nursing Home Confinement [$170 a day].” Because the $116 daily cost for room and board at Five Star was less than the $170 cost for nursing home confinement, AF & L began to pay $116 per day for Ms. James’ care. And, because an assisted living facility by definition under the policy is not a “home,” AF & L terminated the premium waiver benefit applicable to long term home health care recipients.

In February 2014, Kurtz on behalf of Ms. James filed the instant breach of contract action. Count I of the complaint alleged that Ms. James still qualified for long term home health care benefits even though she had moved to an assisted living facility and, therefore, policy premiums still should have been waived. Count II alleged that Ms. James was entitled to receive $170 per day in benefits, not just $116 per day, because “marketing materials” and the policy application for her policy “providef ] that [AF & L] would pay up to the nursing home maximum benefit while plaintiff resided in an assisted living facility,” To this end, the complaint alleged that the “marketing materials and the policy application” conflicted with the policy provisions defining the assisted living facilities benefit, making the policy ambiguous on this point.

Both parties moved for summary judgment. In her motion, Ms. James argued that she was still entitled to receive home health care benefits despite the fact that the policy definition of “home” did not include an assisted living facility because this policy definition purportedly conflicted with Florida law. Ms. James also argued, consistent with her complaint, that she was entitled to receive $170 in daily benefits because “marketing materials” and the policy application purportedly were “a part of the entire policy” thereby mandating that level of payment.

In her supplemental motion for summary judgment, Ms. James alternatively argued for the first time not that the subject policy is ambiguous, but that the policy “clearly allows for benefits to be coordinated and maximized in various scenarios” so that she “is entitled to receive her room and board at the assisted living facility in combination with ‘home health care’ to the maximum daily benefit of $170 per day.” As support, Ms. James relied upon that portion of the policy relating to assisted living facility benefits which states, “[w]e will pay this benefit in any combination with the policy’s Long Term Care Benefit [for home health care] until the Maximum Benefit Period [3 years] as shown in the Policy Schedule has been reached.” (Emphasis added).

Finding no ambiguity in the policy and no basis for recovery on Ms. James’ claims, the court below entered a summary final judgment in favor of AF & L.

DISCUSSION

For the most part, Ms. James has abandoned on appeal most of the arguments made below in favor of arguing here that the policy is ambiguous because while “the policy tells an insured who is living in an assisted living facility that the insurer will pay the assisted living facility benefit in any combination with the home health care benefit ... [it also] purports to preclude the home health care benefit when the insured is in an assisted living facility and thus does not reside at ‘home.’ ” (Emphasis added). We reject this argument because reading the policy as a whole it is in not ambiguous. See Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) (“In construing insurance contracts, ‘courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.’ U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla. 2007) (quoting [Auto-Owners Ins. Co. v.] Anderson, 756 So.2d [29] at 34 [ (Fla. 2000) ].); see also Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla. 2003) (same).”). Courts should “avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Swire Pac. Holdings, 845 So.2d at 165; see also Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla. 2007) (“Ambiguities in insurance contracts are interpreted against the insurer and in favor of the insured. To allow for such a construction, however, the provision must actually be ambiguous. A provision is not ambiguous simply because it is complex or requires analysis.”) (citations omitted).

We conclude the policy is not ambiguous because the “in any combination” language on which Ms. James relies to claim an ambiguity does not relate to the number of services that must be provided at the same time, but relates instead to the total number of days of service covered during the life of the policy. Specifically, the policy provides coverage for a number of different kinds of services which are defined in the policy: nursing home care, home health care, adult day care/hospice services, and assisted living facility care services. By definition, home health care and assisted living facility services and benefits are mutually exclusive. This is so because the policy expressly states that home health care services will be provided to those insureds who maintain independent residences, but not to those living in assisted living facilities. The policy further states that for each day an insured receives “any” home health care benefit, that benefit will be “count[ed] as one full day toward the Long Term Care Maximum Benefit Period.” Thus, while Ms. James is covered for a combination of home health care and assisted living facility benefits, both benefits are not covered on a single day. Moreover, a plain reading of those portions of the policy governing home health care and assisted living facility benefits confirms that the language at issue relates to the maximum amount of time for which this policy will pay any combination of days of benefits. Simply put, the policy provides that it will pay for home health care while the insured is living at “home,” but not in an assisted living facility, and will also pay assisted living facility benefits but only for a combined total of three years:

We will pay this benefit [assisted living facility care benefit] in any combination with the policy’s Long Term Care Benefit [the home health care benefit] until the Maximum Benefit Period [here three years] as shown in the Policy Schedule has been reached.[]

There is no dispute that while Ms. James was living independently she was receiving the maximum benefit for home health care services ($170 per day) since that amount was less than the reasonable charge for the services provided. There also is no dispute that after she transferred to the assisted living facility she was receiving the lesser of the reasonable charges incurred for daily room and board ($116 per day) and the daily benefit amount for nursing home confinement ($170 per day) as provided by the policy. Because the policy does not permit stacking long term home health care benefits with assisted living facility benefits, the court below correctly concluded that no ambiguity exits.

The same applies to the premium waiver provision. That provision states that premiums will be waived after benefits have been payable for at least ninety continuous days and while the insured “continuéis] to receive Long Term Care on a continuous basis (for Home Health Care, at least 5 days per week).” This provision also states that premiums “will be payable again on the premium due date next following the date [on which the insured] no longer receive[s] Long Term Care on a continuous basis.” Here, Ms. James was accorded a premium waiver while she was receiving long term home health care while living independently. However, when she transferred to the assisted living facility, she was no longer covered by the long term care provisions of this policy and was no longer entitled to the premium waiver. No ambiguity with regard to either this provision or its application exists.

Because we agree with the trial court that the subject policy is unambiguous on the issue of coverage for both the home health care benefit and assisted living facility benefit, we agree with the court below that AF & L has been paying appropriate benefits and is not in breach of this policy. Accordingly, the judgment entered below is affirmed.

Affirmed.

      . We review this matter de novo. See Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) (confirming that "a question of insurance policy interpretation, which is a question of law, [is] subject to de novo review”); Barcelona Hotel, LLC v. Nova Cas. Co., 57 So.3d 228, 230 (Fla. 3d DCA 2011) (same).

      . The term “home” as defined in this policy is "the place where You maintain independent residency. Home does not mean a nursing facility, hospital or other institutional setting.”

      . The policy defines the assisted living facility benefit as an "additional benefit,” not a long term care benefit. The only long term care benefits under the policy are those for home health care and nursing home care.

      . Defined as "medically necessary services provided to ill, disabled or infirmed persons in their home,” with “home” being defined as "the place where You maintain independent residency ... [but] does not mean a nursing facility, hospital or other institutional setting.”

      . Defined as "a facility that: 1) is engaged primarily in providing ongoing care and related services to at least ten inpatients in one location; 2) provides 24 hour per day care and service sufficient to support needs resulting from the inability to perform Activities of Daily Living or Cognitive Impairment; 3) has an awake, trained and ready to respond employee on duty at all time to provide such care; 4) provides three meals a day and accommodates special dietary needs; 5) is licensed by the appropriate licensing agency in the state to provide such care; 6) has formal arrangements for the services of a Physician or Professional Nurse to furnish medical care in case of emergency; and 7) has appropriate methods and procedures for handling and administering drugs. An Assisted Living Facility does not mean an individual residence or independent living unit or apartment....”

      . While the words "of time periods” do not follow "in any combination” in the assisted living facility benefit provision, we find that their inclusion is nevertheless implied when read in harmony with the provision for Long Term Care Maximum Benefit Period. To wit, the assisted living facility benefits provision refers to the "the Maximum Benefit Period as shown in the Policy Schedule.” The parties agree that Long Term Care Maximum Benefit of 3 years set forth in the Policy Schedule is applicable here. The Long Term Care Maximum Benefit Period provision clearly provides “Nursing Home Care and Home Health Care may be used in any combination of time periods to reach the [3-year] maximum.” (Emphasis added).


text:
    ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation licensed to do business in the State of Florida, Appellant, v. John CERNOGORSKY, Appellee.
    No. 3D16-689
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017

      Conroy Simberg and Hinda Klein, (Hollywood); McIntosh Sawran & Cartaya, and Douglas M. McIntosh and Kimberly Kanoff Berman (Fort Lauderdale), for appellant.
    Law Offices of Hugh H. Bernstein, and Hugh H. Bernstein; Law Offices of William R. Jones, III, and William R. Jones, III; Jay M. Levy, for appellee.
    Before WELLS, SALTER and LOGUE, JJ.
   WELLS, Judge.

Zurich American Insurance Company appeals from a final judgment entered in favor of John Cernogorsky, the plaintiff below, after a jury trial on his claim for underinsured motorist (“UM”) coverage under a business automobile liability policy issued to his employer, The Green Companies. Zurich claims that it was entitled either to a summary judgment or a directed verdict because coverage was a legal not a factual question, and because it was entitled to a judgment as a matter of law. We agree and reverse.

FACTS

On February 18, 2011, Mr. Cernogorsky was injured when struck by an automobile while he was walking in front of The Green Companies’ offices on the way into the building. The car that struck him was driven by an underinsured motorist. After Mr. Cernogorsky demanded and received payment up to the insurance policy limits ($100,000) of the motorist that struck him, he rejected the UM policy limits ($10,000) of his own insurance and sought UM coverage under The Green Companies’ policy with Zurich. On August 24, 2011, alleging that he was injured as a pedestrian while in the course and scope of his employment with The Green Companies, Mr. Cernogor-sky sued Zurich for $1,000,000 in UM benefits. The basis of Mr. Cernogorsky’s claim for UM benefits was that: (1) he was a covered individual under The Green Companies’ policy because the policy covered autos not owned by The Green Companies, which according to Mr. Cernogorsky included vehicles owned by employees; and, (2) the policy provided primary coverage which included UM coverage that extended to him because The Green Companies had failed to execute a UM coverage waiver as required by section 627.727(1) of the Florida Statutes.

In response, Zurich argued that Mr. Cernogorsky was not entitled to UM benefits because: (1) he was not a named insured under the policy issued to The Green Companies; (2) the subject policy was not a primary liability auto insurance policy, but an excess liability policy, and thus not governed by section 627.727(1), but by section 627.727(2) of the Florida Statutes which does not require a written rejection of UM benefits; and (3) because Mr. Cernogorsky was a pedestrian at the time of the accident he could not recover UM benefits under this policy even had such coverage been provided.

Both Mr. Cernogorsky and Zurich moved for summary judgment, but both motions were denied and this matter was set for trial solely on the coverage issue. A jury thereafter rendered a verdict in Mr. Cernogorsky’s favor determining that coverage existed. Zurich’s renewed motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial were denied. Zurich appeals, we reverse.

STANDARD OF REVIEW

We review the instant appeal from a final judgment interpreting the provisions of an insurance policy to determine coverage de novo. See Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) (confirming that “a question of insurance policy interpretation, which is a question of law, [is] subject to de novo review”); Barcelona Hotel, LLC v. Nova Cas. Co., 57 So.3d 228, 230 (Fla. 3d DCA 2011) (same). Where the facts are not in dispute and the language of an insurance policy is unambiguous and not subject to conflicting inferences, “its construction is for the court, not the jury.” Ellenwood v. S. United Life Ins. Co., 373 So.2d 392, 394-95 (Fla. 1st DCA 1979). Moreover, even where an ambiguity exists, if the facts are not disputed “it is within the province of the trial judge not the jury to resolve the ambiguity as a matter of law.” See id.; see also Penzer, 29 So.3d at 1005 (“ ‘[A] provision is not ambiguous simply because it is complex or requires analysis.’[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms.’ ”) (quoting Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla. 2007))).

Here, because neither a factual dispute nor an ambiguity was demonstrated to exist, the coverage issue raised below should have been decided by the court below and on the record below, and for the following reasons, should have been resolved in Zurich’s favor.

ANALYSIS

First, Mr. Cernogorsky is not a named insured under the Zurich/Green Companies policy as he claimed below. This policy issued to The Green Companies is a package policy providing $1,000,000 in commercial general liability coverage to The Green Companies for “covered autos.” This term, as identified in this policy, encompasses either “hired autos” or “nonowned autos.” By definition, a “hired auto” covered by this policy is a vehicle leased, hired, rented or borrowed by The Green Companies. No such autos are involved in this matter. A “nonowned auto” as defined by this policy includes autos owned by employees, but only while they are being used for company business or “personal affairs” of The Green Companies:

9. Nonowned “Autos” Only
Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees,” partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

Like “hired autos,” no “nonowned” autos were involved in the incident that caused Mr. Cernogorsky’s injury. In fact, Mr. Cernogorsky’s vehicle was not involved in the incident at all. In short, no “covered autos” were involved in this matter, thereby utterly refuting Mr. Cernogorsky’s claim that he was an insured under this policy by virtue of these provisions.

As the policy confirms, the only insured under this policy is The Green Companies. The Business Auto Coverage portions of the policy state that “the words ‘you’ and ‘your’ as used in the policy refer to the Named Insured shown in the Declarations.” The insured named in the Business Auto Declarations is “THE GREEN COMPANIES INC (SEE NAMED INSURED ENDORSEMENT).” Not only is The Green Companies the only named insured in the policy, other portions of the policy also expressly exclude employees while using their own autos from the definition of the term “insured.”

Specifically, the Designated Insured Endorsement, which expressly applies to the Business Auto Coverage Form, provides that “[ejach person or organization shown in the Schedule [of Coverages and Covered Autos] is an ‘insured’ for Liability Coverage, but only to the extent that person or organization qualifies as an ‘insured’ under the Who Is An Insured Provision contained in Section II of the Coverage Form.” (Emphasis added). Section II of the Business Auto Coverage Form in turn expressly excludes from the definition of the term “insured” any employee while driving his or her own vehicle:

SECTION II—LIABILITY COVERAGE
1. Who is an Insured
The following are “insureds”:
a. You [The Green Companies] for any covered “auto.”
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.

(Emphasis added).

In sum, these provisions confirm that only The Green Companies is insured under this policy for any liability that may arise from the use of a covered vehicle even if that vehicle is owned by an employee and is being used in company business. Mr. Cernogorsky is not an insured under Zurich’s policy.

Secondly, the policy at issue here is not a primary liability policy subject to the waiver of UM coverage mandate imposed by section 627.727(1) of the Florida Statutes as Mr. Cernogorsky claims. The liability section of the Business Auto Coverage Form provides that Zurich will pay “all sums an ‘insured’ [The Green Companies] must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto’ [“hired autos” or “nonowned autos”].” However, that same provision also expressly excludes from such coverage bodily injury to an employee incurred during the course of his or her employment:

SECTION II—LIABILITY COVERAGE
B. Exclusions
This insurance does not apply to any of the following:
4. Employee Indemnification and Employer’s Liability
“Bodily injury” to:
a. An “employee” of the “insured” arising out of and in the course of:
(1) Employment by the “insured”; or
(2) Performing the duties related to the conduct of the “insured’s” business; or
b. The spouse, child, parent, brother or sister of that “employee” as a consequence of Paragraph a. above.

This exclusion applies:

(1) Whether the “insured” may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

The Business Auto Coverage Form also expressly states that the coverage provided to autos “owned” by The Green Companies (there are none) is primary while coverage provided as to “nonowned autos” (which includes an employee’s vehicle) is excess:

SECTION IV—BUSINESS AUTO CONDITIONS
The following conditions apply in addition to the Common Policy Conditions:
B. General Conditions
5. Other Insurance
a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance....

Since The Green Companies owns no vehicles, coverage, if it exists at all here, would relate to “nonowned” vehicles for which this policy provides only excess coverage.

Because the instant policy is an excess policy, there was no need for The Green Companies to execute a written waiver or rejection of UM coverage as required by section 627.727(1) of the Florida Statutes. Rather, and as section 627.727(2) of the Florida Statutes confirms, “[t]he provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle.” § 627.727(2), Fla. Stat. (2016); see also Hampton v. Fla. Mun. Ins. Tr., 152 So.3d 855, 856 (Fla. 4th DCA 2014) (finding the insurer “was not required to include uninsured motorist protection as part of its provisions” where the subject policy provided “excess insurance and not primary insurance for automobile accidents” and the insurer complied with section 627.727(2)); Nieves v. N. River Ins. Co., 49 So.3d 810, 813 (Fla. 4th DCA 2010) (“A key amendment to section 627.727 occurred in 1984, when the legislature substantially rewrote subsections (1) and (2), and ‘for the first time explicitly exempted policies which did not provide primary liability insurance for specifically insured motor vehicles from the requirements set forth in subsection (1).’ ” (quoting O’Brien v. State Farm Fire & Cas. Co., 999 So.2d 1081, 1087 (Fla. 1st DCA 2009))).

We therefore reject Mr. Cemogorsky’s argument that even though the Zurich policy included no UM coverage provisions, that coverage nonetheless was available to him because The Green Companies had not executed a written waiver of UM coverage. The coverage provided by the Zurich policy was excess coverage not governed by section 627.727(1) which mandates a written UM waiver. Again, no coverage was available to him .under this policy.

Finally, even if UM coverage were deemed available for failure to comply with the requirements of either section 627,727(1) or 627.727(2), Mr. Cernogorsky still would be unable to recover under the Zurich policy. UM benefits extend to both the insured named in the policy and resident family members, defined as class I insureds, and to others while passengers or drivers in an insured vehicle, defined as class II insureds. See Fla. Farm Bureau Cas. Co. v. Hurtado, 587 So.2d 1314, 1317 (Fla. 1991) (confirming that UM benefits are available to two classes of individuals: “class one consisting of the named insured and resident family members; and class two consisting of those who are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured”) (emphasis added). Because Mr. Cernogorsky was neither a named insured under the Zurich policy nor a resident family member of an insured, he cannot be a class I insured. At best, he had to demonstrate that he was entitled to recover UM benefits as a class II insured. See Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 728 (Fla. 2d DCA 2003) (“When the named insured is a corporation, it obviously can never have a bodily injury or a UM claim as well as claims for coverage for family members. The entire risk in such a situation arises from class II insureds.”).

As the Florida Supreme Court confirmed in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229, 233 (Fla. 1971), the seminal decision examining UM coverage, individuals may recover UM benefits as class II insureds only if they are lawfully occupying or driving a covered automobile:

[Class II insureds] are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent. This latter group is necessarily restricted to occupants of the insured automobile for the purpose of coverage identification and to show their insurable relationship to the named insured paralleling coverage for others than named insured in automobile liability policies.

See also Travelers Ins. Co. v. Warren, 678 So.2d 324, 326 n.2 (Fla. 1996) (“[Class II insureds are lawful occupants of the insured vehicle who are not named insureds or resident relatives of named insureds.”); Hurtado, 587 So.2d at 1318-19 (“Class-one insureds are covered regardless of their location when they are injured by an uninsured motorist.... On the other hand, coverage for class-two insureds is limited to occupancy in the insured vehicle.”); Alamo Rent-A-Car, Inc. v. Hayward, 858 So.2d 1238, 1240 n.1 (Fla. 5th DCA 2003) (“Class II insureds include all other passengers in the vehicle who are covered only by virtue of the fact that they occupy the covered vehicle.”); Bulone v. United Servs. Auto. Ass’n, 660 So.2d 399, 400 n.1 (Fla. 2d DCA 1995), approved, 679 So.2d 1185 (Fla. 1996) (“Class II includes persons occupying an insured vehicle. These passengers do not pay for this uninsured motorist coverage, but receive its protection, essentially as third-party beneficiaries to the family policy, because a family member permitted them to occupy the family car.”).

It is undisputed that at the time of the incident at issue here, Mr. Cernogorsky was neither driving nor occupying any vehicle. He could not, therefore, secure UM benefits as a class II insured under this policy. See State Farm. Mut. Auto. Ins. Co. v. Bailey, 203 So.3d 995, 998 (finding an employee was not entitled to UM coverage under a business automobile insurance policy because he was not “occupying” the employer’s vehicle at the time of the accident as set forth in the policy’s UM endorsement); Davis v. Fireman’s Fund Ins. Co., 463 So.2d 1191, 1192 (Fla. 2d DCA 1985) (finding a tow truck operator who was struck while changing a tire on a disabled vehicle was not entitled to UM benefits under a business automobile policy insuring the tow truck because he was not “occupying” the tow truck at the time of the accident, as required by the UM policy language); State Farm Mut. Auto. Ins. Co. v. Yanes, 447 So.2d 945, 946 (Fla. 3d DCA 1984) (finding an employee was not entitled to UM coverage under a business automobile policy because he was not “occupying” the employer’s vehicle at the time of the accident as required by the policy’s UM provisions).

Because Mr. Cernogorsky was neither an insured under the Zurich/Green Companies policy nor otherwise eligible to recover benefits thereunder, the judgment below must be reversed with this matter remanded for entry of judgment in Zurich’s favor.

Reversed and remanded with instructions.

      . Zurich also argues the trial court erred in denying its motion for a new trial because the jury was given a dictionary definition of statutory terms and because the court precluded it from introducing evidence of legislative history, We do not, however, address these points as it is not necessary to do so to resolve this matter.

      . The record also reflects that Mr. Cernogor-sky also applied for, and received, workers’ compensation insurance benefits from his employer.

      . That statute provides, in relevant part:
      No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein .... However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.
      § 627.727(1), Fla. Stat. (2016); Tobin v. Mich. Mut. Ins. Co., 948 So.2d 692, 694 (Fla. 2006) (stating that ‘‘[i]f an insurer fails to comply with the [provisions of section 627.727(1) ], UM/UIM coverage is provided by contract as though the required coverage had been offered and accepted by the named insured as a matter of law”).

      . The statute provides:
      The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the rating plan of the company as may be selected by the named insured. The limits set forth in this subsection, and the provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle. However, an insurer issuing such a policy shall make available as a part of the application for such policy, and at the written request of an insured, limits up to the bodily injury liability limits contained in such policy or $1 million, whichever is less.
      § 627.727(2), Fla. Stat. (2016).

      . This is wholly consistent with the definition contained in the Business Auto Coverage Form itself, which similarly defines an "insured” as one who is listed under the Who Is An Insured provision of the policy:
      SECTION V—DEFINITIONS

      G. "Insured” means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or "suit” is brought.

      . As an excess policy, this policy provides coverage to The Green Companies for third-party claims for bodily injury or property damage caused by auto accidents in which a Green Company employee is driving his or her own vehicle while within the course and scope of his or her employment, See Tobin v. Mich. Mut. Ins. Co., 948 So.2d 692, 697 (Fla. 2006) ("An 'other insurance' clause describes what occurs if other insurance coverage is available for the particular loss. It describes the application and relationship that arises if multiple insurance contracts apply to the same loss. See 8A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4909, at 70 (2005 Supp.). The 'other insurance’ clause at issue in the present action provides excess coverage once the policy limits of other insurance covering the same risk are exhausted and is only intended to provide excess liability coverage to the "named insured," ....”).


text:
    Felipe HERNANDEZ and Ana Hernandez, Petitioners, v. FLORIDA PENINSULA INSURANCE COMPANY, Respondent.
    No. 3D16-415
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.
    Billbrough & Marks, P.A., and Geoffrey B. Marks, for petitioners.
    Conroy Simberg, and Diane H. Tutt (Hollywood) and Robert S. Horwitz (West Palm Beach), for respondent.

      Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Felipe Hernandez and Ana Hernandez (collectively, “the Petitioners”) petition for a writ of certiorari seeking to quash the trial court’s order abating their declaratory judgment and breach of contract claims filed against their insurer, Florida Peninsula Insurance Company (“FPIC”). Because the Petitioners have failed to meet the threshold requirement of showing that the trial court’s order creates an irreparable harm, we dismiss the petition for writ of certiorari.

FACTS AND PROCEDURAL HISTORY

After sustaining water damage to their home, the Petitioners filed a claim with their insurer, FPIC. FPIC inspected the property and notified the Petitioners that in lieu of issuing a payment for the covered loss, it was exercising its option to repair under the following policy provision:

9. Our Option.
At our option, in lieu of issuing any loss payment, if we choose to exercise our option:
a. For losses settled on an actual cash value basis, we may repair or replace any part of the damaged property with material or property of like kind and quality;
b. For losses covered under Coverage A—Dwelling, insured for Replacement Cost Loss Settlement as outlined in SECTION I—CONDITIONS, Loss Settlement, we may repair the damaged property with material of like kind and quality without deduction for depreciation.
e.You must provide access to the property and execute any necessary municipal, county or other governmental documentation or permits for repairs to be undertaken.
f. You must execute all work authorization to allow contractors and related parties entry to the property.
g. You must otherwise cooperate with repairs to the property.
i. Our right to repair or replace, and our decision to do so, is a material part of this contract and under no circumstances relieves you or us of mutual duties and obligations under this contract.

FPIC notified the Petitioners that the covered damages would be repaired under FPIC’s Managed Repair Program and provided the Petitioners with the name of the licensed and insured general contractor selected by FPIC. In addition to the selected contractor, FPIC provided the Petitioners with the names of two other contractors that the Petitioners could select from to repair the covered damages. The selected contractor sent the Petitioners a work authorization form, but the Petitioners refused to sign the form.

Approximately two months later, the Petitioners filed the underlying action against FPIC. In Count 1 of the amended complaint, the Petitioners alleged that FPIC breached the policy by failing to pay for the covered loss to their property. In Count 2, the Petitioners asserted a claim for declaratory relief, seeking a declaration as to their rights and FPIC’s obligations under the policy, including matters such as the scope of repairs.

In response to the amended complaint, FPIC filed a motion to abate or stay the action, asserting that it had timely exercised its option to repair the damaged property to its pre-loss condition, but the Petitioners have refused to sign the work authorization. FPIC argued that any cause of action for the covered loss is premature because the repairs have not yet commenced due to the Petitioners’ refusal to execute the work authorization form. In response, the Petitioners asserted that they were in doubt as to their rights under the policy, and that the abatement of then-action would be tantamount to a dismissal of their declaratory relief action.

At the hearing on the motion to abate, FPIC requested that the trial court abate the action and require the Petitioners to allow FPIC onto the property to make the repairs. Importantly, FPIC acknowledged that if the Petitioners believe that “the property isn’t put back to its pre-loss condition,” the Petitioners would then have a “proper cause of action” against FPIC. The trial court ruled that it was granting the motion to abate, and that the Petitioners “need to go through the process.” Thereafter, the trial court entered its written order granting FPIC’s motion to abate or stay. The Petitioners’ timely petition for writ of certiorari followed.

ANALYSIS

“To obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002). The second and third elements are “sometimes referred to as irreparable harm,” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla. 2012), and “[t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Stockinger v. Zeilberger, 152 So.3d 71, 73 (Fla. 3d DCA 2014). Therefore, if the petitioner fails to make a prima facie showing of irreparable harm, this Court must dismiss the petition as it lacks jurisdiction. See Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (“If petitioner has failed to make a prima facie showing of irreparable harm, [appellate court] lacks jurisdiction and will enter an order dismissing the petition [for writ of certiorari].”).

As previously stated, the Petitioners contend that they have established irreparable harm because the abatement of their action effectively amounts to a dismissal of their amended complaint. We disagree.

In Fernandez-Andrew v. Florida Peninsula Insurance Co., Case No. 3D16-331 (Fla. 3d DCA Jan. 25, 2017), this Court addressed the exact provision at issue in the instant case. Fernandez-Andrew argued that she had established irreparable harm because “the work authorization is a full release of liability in favor of FPIC, and it ‘inoculates’ FPIC from any attempt by Petitioner to lift the abatement and reopen proceedings against it.” This Court rejected Fernandez-Andrew’s argument because FPIC’s counsel represented during oral argument “that after the repairs are made, [Fernandez-Andrew] may properly seek to lift the abatement in order to dispute the scope of repairs or allege the failure of FPIC to return the property to its pre-loss condition.”

In the instant case, the Petitioners contend that abatement of their action effectively amounts to a dismissal of their amended complaint. This argument is, however, refuted by the arguments made by FPIC before the trial court and in its response to the petition for writ of certio-rari. In both the argument made to the trial court and in the petition, FPIC asserted that the action is “premature” because FPIC has not had an opportunity to repair the damage due to the Petitioners’ failure to execute the work authorization. More importantly, FPIC’s counsel represented to the trial court that after the damage is repaired, if the Petitioners believe that “the property isn’t put back to its pre-loss condition, the Petitioners would then have a “proper cause of action” against FPIC. FPIC has therefore acknowledged that once the licensed and insured contractor has completed the repairs, the Petitioners may properly seek to lift the abatement in order to allege that the property was not returned to its pre-loss condition, which would include any dispute as to the scope of repairs. Thus, the trial court’s order abating the Petitioners’ action does not constitute an irreparable harm. Because the Petitioners have failed to meet the threshold requirement of showing that the trial court’s order creates an irreparable harm, we dismiss the petition for writ of certiorari.

Dismissed.


text:
    Graciela PINEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2542
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The defendant, Graciela Pineda, appeals her convictions for lewd or lascivious molestation of a child under twelve years of age and lewd or lascivious conduct on a child under sixteen years of age. The defendant claims that she is entitled to a new trial because the unobjected-to testimony of the lead investigator and the unobject-ed-to comments by the prosecutor during closing arguments improperly bolstered the victim’s credibility and constitute fundamental error because they deprived the defendant of a fair trial. Based on our conclusion that the complained-of testimony and statements do not constitute improper bolstering of the victim’s credibility and/or they were invited by defense counsel, we affirm.

I. FACTS

The State charged the defendant with the above referenced crimes. At the time of the charged offenses, the ten year old victim, her mother, and the victim’s two younger siblings were living at a facility for female victims of domestic violence and their children. The charges were based on the victim’s allegations that she woke up and found the defendant, who was a resident at the domestic violence facility and a guest at the victim’s home, sitting on the bed and leaning over her, touching her (the victim’s) breast under her top, and thereafter, the defendant attempted to kiss the victim and pull down her panty.

Based on the lack of physical evidence or an eyewitness, the State’s case rested on the credibility of the victim. During opening statements, the defense set forth its defenses for the jury—the victim, who had a motive to fabricate the allegations against the defendant, was lying, and law enforcement’s investigation of the case was “substandard at best.”

At trial, the lead investigator, Sergeant Utset, testified on direct examination as follows. He was a member of the Special Victims Bureau assigned to investigate the allegations made by the victim against the defendant. When he arrived at the domestic violence facility, he spoke with the victim without anyone else being present. He asked the victim what had occurred, and the victim, who was crying and appeared to be upset and scared, gave him a “summary of what happened,” implicating the defendant. Sergeant Utset did not ask the victim for details because he was going to refer her for a forensic interview at Kristi House.

Sergeant Utset also testified that he interviewed the defendant, who was then nine months pregnant, later that evening at the police station after she waived her Miranda rights. During this interview, the defendant claimed that the victim was not telling the truth. When Sergeant Utset asked the defendant why the victim would make up these allegations, the defendant responded that the victim was upset because she (the defendant) told the victim’s mother that she (the defendant) had seen the victim holding hands with a boy who lives at the facility. After Sergeant Utset told the defendant that this explanation did not make sense, the defendant told Sergeant Utset that the victim’s mother got the victim to make up the accusations so that the victim’s mother could keep the defendant’s car if the defendant went to jail. When Sergeant Utset told the defendant that this statement also did not make any sense, the defendant became upset and told Sergeant Utset that she would not have done what the victim was accusing her of because she (the defendant) was pregnant with a girl. Sergeant Utset terminated the interview because the defendant was becoming very upset.

During cross-examination, defense counsel asked Sergeant Utset about his investigation, and the following exchange occurred:

Q: You are a detective?
A: Yes.
Q: And that is your job to detect and ask questions?
A: Yes, it is.
Q: You just don’t take somebody’s word?
A: Why would they lie. What reason would they have to lie?
Q: Your job—is that your job just to take what anybody says, to be gospel?
A: To be gospel?
Q: You said why would anybody lie?
A: Why would the victim lie.
Q: Well, the victim is a person, right?
A: She is a child.
Q: You don’t think that children lie?
A: Not about serious situations, no.
Q: You indicated earlier on direct examination—so, every child that you’ve interviewed, you’ve arrested the person who they made the accusation against and you sustained an accusation, correct?
A: No, sir.
Q: Why would a child lie? Well, let’s see. Let’s ask the more pertinent question. Why wouldn’t a detective do a complete examination?
A: I did do a complete examination.

Thereafter, defense counsel continued to question Sergeant Utset about the manner in which he conducted the investigation, such as waiting six months to photograph the residence, failing to check for any DNA, and failing to interview certain individuals.

On re-direct by the State, Sergeant Ut-set testified as follows:

Q: Are you trained to look for motive when you speak to children?
A: Yes, ma’am.
Q: Did you see any in this case?
A: I did not.

During closing arguments, the State argued that the victim’s mother and the defendant were good friends. The victim liked the defendant. The victim and the defendant had done each other’s nails and hair and the defendant had given the victim her jewelry. There was no reason for the victim to make up the allegations, and the explanations given by the defendant at the police station regarding why she thought the victim would make up these allegations did not make sense.

During closing arguments, defense counsel argued that the victim, who wants to be an actress, fabricated the allegations and gave an “Oscar performance” in an effort to back up her lies. In response to defense counsel’s argument, the State argued again in its rebuttal that there was no reason for the victim to lie.

The jury found the defendant guilty as charged, and she was later sentenced. The defendant’s appeal followed.

II. ANALYSIS

The defendant contends that she is entitled to a new trial because the unobjected-to testimony of the lead investigator, Sergeant Utset, and the unobjected-to comments by the prosecutor during closing arguments constitute fundamental error as the testimony and comments improperly bolstered the victim’s credibility, thereby depriving the defendant of a fair trial. In the alternative, the defendant contends that if this Court finds no fundamental error, she is nonetheless entitled to a new trial because trial counsel provided ineffective assistance of counsel by failing to object to these allegedly improper comments, and the ineffectiveness is apparent on the face of the record.

A. Alleged Fundamental Error

“Fundamental error is error which ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Martinez v. State, 933 So.2d 1155, 1158 (Fla. 3d DCA 2006) (citing State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960)).

1. Sergeant Utset’s testimony on cross and re-direct examination

The defendant contends that Sergeant Utset first bolstered the victim’s credibility in his response to the following question posed by defense counsel regarding Sergeant Utset’s investigation: ‘You just don’t take somebody’s word?” The question by defense counsel did not specifically reference the victim or ask Sergeant Utset if he was just taking the victim at her word. Thus, when Sergeant Utset responded, “Why would they lie. What reason would they have to lie,” he was answering defense counsel’s question, and he was not specifically referring to the victim, rather he was referring to witnesses in general. Therefore, at that point, Sergeant Utset had not bolstered the victim’s credibility. More importantly, if defense counsel had believed this response was unresponsive or objectionable, defense counsel had the opportunity to object or to move away irom that line of questioning. Instead, defense counsel used Sergeant Utset’s response to bolster the defenses raised—that the victim was lying and Sergeant Utset did not perform a thorough investigation— and followed up by asking, “Your job—is that your job just to take what anybody says, to be gospel?” and ‘You said why would anybody lie?” In response, Sergeant Utset either stated or asked: “Why would the victim lie.” Defense counsel responded by stating, “Well, the victim is a person, right?” When Sergeant Utset noted that the victim was a child, defense counsel asked Sergeant Utset whether he believed children, in general, lie. Again, in response to defense counsel’s question, Sergeant Ut-set answered that he did not think that children lie “about serious situations.”

As detailed above, the record reflects that Sergeant Utset’s answers during cross-examination were in direct response to defense counsel’s questions, and were also relevant to defense counsel’s personal attack of Sergeant Utset as an investigator and defense counsel’s characterization of Sergeant Utset’s investigation as “substandard at best.” See State v. Joseph, 419 So.2d 391, 392 (Fla. 3d DCA 1982) (“Any evidence tending to prove or disprove a material fact is relevant, and any fact relevant to the issue is admissible into evidence unless precluded by a specific rule of exclusion.”) (internal citations omitted).

To counter the specific questions posed by defense counsel and in an effort to rehabilitate Sergeant Utset, the State merely asked Sergeant Utset during the State’s re-direct examination if Sergeant Utset was trained to look for a motive to lie and whether he saw a motive in the instant case. See Torres-Matmoros v. State, 34 So.3d 83, 85 (Fla. 3d DCA 2010) (finding that “the arresting officer’s redirect testimony did not constitute bolstering, but only clarification of testimony adduced by Torres-Matmoros on cross-examination”). In response, Sergeant Utset testified that he was trained to look for a witness’s motive to lie and, in this particular case, he did not find a motive. At no time, did Sergeant Utset express his opinion as to the victim’s credibility; rather, he testified as to his investigation and the results of his investigation, which were at issue and relevant in this case.

We therefore conclude that Sergeant Utset’s testimony on cross and re-direct examination do not constitute improper bolstering of the victim. However, even if Sergeant Utset’s responses did constitute improper bolstering of the victim, we need not reach the issue of whether the unob-jected-to testimony constitutes fundamental error because defense counsel clearly invited Sergeant Utset’s responses. Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 65 (Fla. 2012) (“Fundamental error is waived under the invited error doctrine because ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’”) (quoting Sheffield v. Superior Ins. Co., 800 So.2d 197, 202 (Fla. 2001)); Louidor v. State, 162 So.3d 305, 311 (Fla. 3d DCA 2015) (“We need not reach the issue of whether the admission of the objectionable evidence constituted fundamental error in this case, however, because we conclude that the error was invited by the defense.”).

2. The prosecutor’s closing arguments

Likewise, we conclude that the unobjected-to comments made by the prosecutor during closing arguments do not constitute improper bolstering, but rather they were fair comments on the evidence presented at trial, including whether, during his investigation, Sergeant Utset had discovered a motive for the victim to lie. The prosecutor argued that the evidence presented at trial showed that, prior to the charged crimes, both the victim and her mother got along with the defendant. Further, during the investigation, law enforcement attempted to discover a motive for the victim to fabricate the allegations, but could not find one. At no time did the prosecutor inject herself into the trial by expressing her personal opinion as to whether the victim fabricated the accusations. Accordingly, we conclude that the prosecutor did not bolster the victim’s credibility during closing arguments, and if there was error, the error was invited.

In fact, the only improper bolstering was by defense counsel who expressed his own opinion about the credibility of the witnesses and the innocence of the defendant.

Defense Counsel: You heard from Jesemy [a defense witness]. You can make a determination of whether she is credible. I don’t think that Jesemy Placeres would come in here and say anything but the truth in a case of this magnitude about children. She will not—you make a credibility call. I don’t think she is capable of doing that.
Defense Counsel: My client is completely innocent. My client is the victim in this case and you know what really bothers me, throughout the litigation, which makes the hairs of the back of my head stand up, when they say to you or anybody else, why would she make this up with a serious face?

(emphasis added).

B. Ineffective Assistance of Counsel

The defendant also argues that if we conclude that no fundamental error occurred, we should take the extraordinary step on direct appeal and find that the defendant’s trial counsel’s failure to object to Sergeant Utset’s testimony and the prosecutor’s closing arguments constitutes ineffective assistance of counsel on the face of the record. “As a general rule, claims of ineffective assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is apparent on the face of the record, which is rarely the case.” See Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006). An alleged error is not apparent on the face of the record if the record reflects that trial counsel’s failure to object may have been strategic. See Johnson v. State, 181 So.3d 1243 (Fla. 3d DCA 2015) (rejecting claim of ineffective assistance of trial counsel on direct appeal where trial counsel’s decision may have been strategic); Barnett v. State, 181 So.3d 534, 536 (Fla. 1st DCA 2015) (holding that to prevail on a claim of ineffective assistance of counsel on direct appeal, “appellant must demonstrate ‘ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct’ ”) (quoting Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015)); Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006) (rejecting claim of ineffective assistance of trial counsel on direct appeal where trial counsel’s decision may have been strategic).

In the instant case, we And that defense counsel specifically invited the responses he solicited from Sergeant Utset and that Sergeant Utset’s answers to these questions played right into defense counsel’s defenses in this case. Because defense counsel’s failure to object to these statements appears to have been strategic, and, in fact, welcomed, we do not find ineffective assistance of counsel on the face of this record.

III. CONCLUSION

Based on our conclusions that Sergeant Utset’s testimony and the prosecutor’s closing arguments do not constitute improper bolstering of the victim’s credibility; any error was invited; and there may have been a strategic reason for pm-suing the line of questioning that spawned the unobjected-to answers and arguments that followed, we affirm the defendant’s convictions and sentences.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Although this appears to be a question, the transcript ends Sergeant Utset’s testimony with a period, rather than with a question mark.