author: VILLANTI, Judge. ALTENBERND, Judge,

text:
    WORTHINGTON COMMUNITIES, INC., and Ohio Casualty Insurance Company, Appellants/Cross-Appellees, v. Juan Carlos MEJIA and Jeannette Mejia, Appellees/Cross-Appellants, and Sunshine Masonry, Inc.; Zeiger Crane Rental, Inc.; RSKO Claims Services, Inc.; Canam Steel Corporation d/b/a Hambro Structural Systems; ASC Geosciences, Inc.; and Contractor Resources, Inc., an Administratively Dissolved Florida Corporation, Appellees.
    Nos. 2D07-1490, 2D07-3698.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 2009.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant/Cross-Ap-pellee Worthington Communities, Inc.
    John J. Agliano of Williams Schifino Mangione & Steady, P.A., Tampa, for Appellant/Cross-Appellee Ohio Casualty Insurance Company.
    Mark A. Boyle, Geoffrey H. Gentile, and Debbie Sines Crockett of Boyle & Gentile, P.A., Fort Myers, for Appellees/Cross-Ap-pellants Juan Carlos Mejia and Jeannette Mejia.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Worthington Communities, Inc., and Ohio Casualty Insurance Co. appeal the final judgment and amended final judgment entered against them in this personal injury action arising out of a construction accident. On cross-appeal, the Mejias raise a standing argument as to Ohio Casualty and two arguments directed to the judgments. We affirm the final judgment in all respects. While we have carefully considered all of the arguments raised by the parties, we write to address only two issues raised in the direct appeal.

Facts

In 1999, Worthington was developing a condominium project in Fort Myers, Florida. As to that project, Worthington was both the owner of the property and the general contractor in charge of the construction of multiple condominium units.

Worthington contracted with Sunshine Masonry, Inc., for the masonry work on the condominium project. The scope of this work included installing forms and pouring concrete for the structural divisions between the floors of each condominium unit. The project plans called for Sunshine Masonry to use a joist system developed by Hambro Structural Systems to form the floors and ceilings within and between the units. The Hambro joist system required the masonry contractor to place steel joists across the span between the exterior masonry walls. The stability of these joists during construction was ensured by the installation of steel cross members, called rollbars, both around the perimeter of the walls and at designated intervals along the length of the joists. After the rollbars were installed, sheets of plywood were installed as the form on which the concrete would be poured. Wire reinforcement mesh was then placed on the plywood before the concrete was poured. Once the concrete was poured and had cured, the rollbars were removed and the plywood was stripped away, leaving a reinforced poured concrete floor/ceiling.

The bundles of wire mesh used with the Hambro system were large, and each bundle weighed 3700 pounds. Evidence presented at trial established that Hambro’s product literature represented that it was safe to load and store mesh bundles on top of completed masonry walls. The product literature also represented that it was safe to load and store mesh bundles on the steel joists after the rollbars were completely installed. Either of these options was a permissible “staging” technique that allowed the mesh bundles to be accessible for use in an adjoining condominium unit. However, it was not acceptable to load or store mesh bundles on the steel joists before the rollbars were fully installed because the joists were too unstable at that point to support the weight and mass of the mesh bundles. This danger was made clear in both the documentation from Hambro about the joist system and in the general notes on the blueprints for the condominium project.

On Friday, May 14, 1999, Sunshine Masonry used a crane to place steel Hambro joists between the first and second floors of one of the condominium units that was under construction. After the joists were in place but before the rollbars were fully installed, Sunshine Masonry used the crane to place bundles of wire mesh on top of the unbraced joists. The following day, Sunshine Masonry was on site continuing with the installation of the Hambro joist system. Mr. Mejia, who worked for Sunshine Masonry as an unskilled laborer, was working below the unbraced joists that were supporting the mesh bundles. As he did so, the unbraced joist system collapsed and a bundle of wire mesh fell on him. The weight and force of the impact rendered Mr. Mejia a quadriplegic.

The Mejias initially sued numerous entities involved in the construction of the condominium project. However, by the time of trial, the sole claim to be tried was the Mejias’ claim that Worthington was negligent by failing to provide Mr. Mejia with a safe place to work. The Mejias did not allege that Worthington was vicariously liable for the negligence of Sunshine Masonry. Instead, they alleged that Worthington had been actively negligent in causing this accident. The essence of the Mejias’ claim was that Worthington, as the owner/general contractor, had a duty to maintain the site in a safe condition for all workers and that Worthington had breached that duty by failing to correct, or arrange to have corrected, the dangerous condition created by Sunshine Masonry when it loaded mesh bundles onto the unbraced Hambro joists.

After a two-week trial, the jury awarded the Mejias damages in excess of $6.5 million. The jury apportioned five percent of the negligence to Mr. Mejia, ten percent to Worthington, and eighty-five percent to Sunshine Masonry. Under the applicable version of the joint and several liability statute, section 768.81, Florida Statutes (1999), Worthington was liable for ninety-five percent of the economic losses, which totaled more than $5 million. Ohio Casualty, as Worthington’s insurer, was added as a party to the lawsuit pursuant to section 627.4136(4), Florida Statutes (1999), after the jury’s verdict.

In this appeal, Worthington contends that final judgment should have been entered in its favor because the trial court should have granted its motion for directed verdict at the close of the Mejias’ case. In the alternative, Worthington contends that it is entitled to a new trial because the jury instructions given by the trial court were confusing and included incorrect statements of the law. We address each of these arguments in turn.

Motion for Directed Verdict

In its first argument, Worthington contends that the trial court erred by denying its motion for directed verdict because there was no evidence that it breached any duty it owed to Mr. Mejia or that any breach was the proximate cause of his injuries. Because there was disputed evidence on these issues, the trial court properly denied this motion.

The focus of the parties’ dispute on this issue lies in the extent of the duties owed to a subcontractor’s employee by an entity that is both the owner and general contractor on a construction project. While an owner who hires an independent contractor is not generally liable for injuries sustained by that contractor’s employees, an exception to this general rule exists when the owner “has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed” or has engaged in “acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee.” Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973); see also Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 595-96 (Fla. 4th DCA 2008), review denied, 1 So.3d 172 (Fla.2009); Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980). Thus, an owner who is also acting as a general contractor “has the ultimate duty to maintain a construction site in a reasonably safe condition.” Griggs v. Ryder, 625 So.2d 950, 951 (Fla. 1st DCA 1993); see also Lewis v. Sims Crane Serv., Inc., 498 So.2d 573, 574 (Fla. 3d DCA 1986); Atl. Coast Dev. Corp., 385 So.2d at 679 (“Nelacar, who was the owner and general contractor and actively supervised the daily construction operations, had a duty to keep its premises safe for all the workmen on the job and will be ultimately held liable for injuries occurring on its worksite.”).

The origin of this heightened duty of an owner/general contractor is the supreme court’s decision in Conklin. In that case, Conklin was employed as a workman on a commercial building that was under construction. 287 So.2d at 58. While he was working, the scaffolding that he was standing on broke, and he fell seventeen stories to his death. Id. His widow sued multiple parties, including the owner, the architect, the engineering firm, and the worker’s compensation carrier for the contractor and subcontractor. Id. The complaint alleged that each of these entities “negligently breached their duty to provide the deceased with a safe place to work by failing to see that certain safety regulations were followed.” Id. The trial court dismissed the complaint, and the Third District affirmed. Id.

The supreme court accepted jurisdiction to address “the substantial amount of confusion which still exists regarding the Workmen’s Compensation Law and third-party tort suits.” Id. at 58-59. In addressing the potential liability of a property owner, the supreme court explained:

“[A]n employee of an independent contractor may maintain against an owner an action at law for damages suffered as a result of the latter’s negligence.” [State ex rel. Auchter Co. v. Luckie, 145 So.2d 239, 242 (Fla. 1st DCA 1962)].
The phrase “as a result of the latter’s negligence,” above means that the owner may he held liable if he has been actively participating in the construction to the extent that he directly influences the manner in ivhich the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an oumer who is not an employer as de fined by the [worker’s compensation] statute, one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established.

Id. at 59-60 (emphasis added; footnote omitted). Thus, under Conklin, an owner who is also the general contractor, and thus by definition is actively participating in the work, may be held liable for a workman’s injuries if that workman can prove that the owner either negligently created or negligently approved of the dangerous condition that resulted in the injury or death.

Applying the law as set forth in Conldin to the facts in Mr. Mejia’s case, we note that because Worthington was an owner that was “actively participating” in the construction, it could be held hable if the Mejias could establish “one or more specific identifiable acts of negligence” committed by Worthington that resulted in his injury. Here, the Mejias presented evidence that Worthington’s project superintendent, Robert Bontrager, saw the Hambro joists flown onto the building at issue the day before the accident. Bon-trager saw the mesh bundles sitting on top of the joists, and he was aware that roll-bars had been installed around only the perimeter of the joists. He admitted that the notes for the installation of the Ham-bro joist system said that mesh bundles should not be placed on top of the joists until they were fully braced — not just braced at the perimeters; however, he denied being familiar with the notes at the time of the accident. He testified that he had seen mesh bundles placed on top of the masonry walls between the units in the past; however, he admitted that it was obvious the day before the accident that the bundles at issue were not straddling a masonry wall.

Bontrager also testified that it was not his job to look out for the safety of anyone other than Worthington employees on the jobsite. He specifically denied that Wor-thington had any responsibility to ensure that the site was safe for the subcontractors or their employees who were on the site. He also denied that he had any responsibility to ensure that the mesh bundles were safely placed on top of the joists.

In contradiction to Bontrager’s testimony, Glenn Cribbett, who was Wor-thington’s vice president of construction, testified that one of Worthington’s responsibilities was to ensure that the job-site was reasonably safe for all of the workers on the site. Cribbett testified that Worthington made sure that its project superintendents were aware of this responsibility. Cribbett also testified that the project superintendent, Bontrager, should have examined the blueprints and read the installation manual for the Hambro joist system in order to properly perform his supervisory duties. According to Cribbett, Bontrager should have been familiar with the layout of the Hambro system to understand how it was constructed. Cribbett testified that he expected his project superintendent on each job to read and be familiar with the general notes on the blueprints and floor plans and that this would include the note that dealt with the proper placement and storage of mesh on top of the Hambro joist system while it was under construction. Most importantly, Cribbett testified that if Bontrager saw the mesh bundles laying on top of the Hambro joists with rollbar installed only around the perimeter and did nothing about it before leaving for the day, then Bontrager left the jobsite in an unsafe condition. Cribbett testified that it would have been acceptable for Bontrager to leave the jobsite in this condition only if he had given an instruction to a subcontractor to correct the condition before leaving.

Given this conflicting testimony, the trial court properly denied Worthington’s motion for directed verdict. A directed verdict is proper only when there is no view of the evidence or inferences properly made from the evidence that could support a verdict in favor of the nonmoving party. See Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009) (quoting Sims v. Cristinzio, 898 So.2d 1004, 1006 (Fla. 2d DCA 2005)). Thus, “the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.” Sims, 898 So.2d at 1005 (citations omitted). Because the Mejias presented some evidence supporting their position that Worthington either negligently allowed the dangerous condition to be created or negligently approved it, even if only by simply ignoring it, Worthington’s directed verdict motion was properly denied, and the case was properly sent to the jury on this issue.

As an alternative basis for reversal, Worthington contends that the Mejias did not prove that any breach by Worthington was the proximate cause of Mr. Mejia’s injury. Worthington points to evidence it presented that tended to show that the accident happened when Sunshine Masonry’s employees were using a sledgehammer to adjust the placement of one of the joists while the mesh bundles were on top of it, and Worthington contends that this was the sole proximate cause of the accident. However, the Mejias presented evidence that the joists and mesh bundles did not fall while the joist was being adjusted; instead, they fell anywhere between two and five minutes after the last strike to the joist. Because there was some evidence that the improper placement of the mesh bundles was at least a cause of the accident and resulting injury to Mr. Mejia, the trial court properly denied Worthington’s motion for directed verdict on this basis as well.

Jury Instructions

In the alternative, Worthington argues that it is entitled to a new trial because the jury instructions concerning its duty and any breach of that duty were erroneous, misleading, and confusing. Having carefully reviewed the entire trial transcript and the jury instructions given, we do not find that the trial court abused its discretion in giving these instructions.

The two challenged jury instructions given by the court read as follows:

The court has determined and now instructs you, as a matter of law, that the circumstances at the time and place of the incident complained of were such that Worthington Communities, Inc., had a duty to use reasonable care for Juan Carlos Mejia’s safety. As the owner and general contractor for the construction project, Worthington Communities, Inc., had the ultimate duty to maintain the site in a reasonably safe condition.
The first issue for your determination on the negligence claim of Plaintiff, Juan Carlos Mejia, against Defendant, Wor-thington Communities, Inc., is whether at the time and place of the incident complained of, Worthington Communities, Inc., breached its duty by failing to maintain the premises in a reasonably safe condition. And if so, whether such negligence was a legal cause of loss, injury or damage to Juan Carlos Mejia.

The trial court went on to instruct the jury that a “legal cause” of loss or injury arose “if it directly and in natural or continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that but for the negligence the loss, injury or damage would not have occurred.” The court also instructed the jury that negligence could be a legal cause of loss, injury or damage “even though it operates in combination with the acts of another.”

The majority of this duty instruction came directly from the case law cited by and relied upon by the parties. In Lewis, the court specifically held that an instruction that an owner/general contractor had a duty to maintain a construction job site in a reasonably safe condition was proper. 498 So.2d at 574. Moreover, the same court also noted that an owner/general contractor had the ultimate duty to maintain the site in a reasonably safe condition. Id.; see also Griggs, 625 So.2d at 951; Jupiter Inlet Corp. v. Brocard, 546 So.2d 1, 3 (Fla. 4th DCA 1988). In light of this case law, we cannot say that the trial court abused its discretion in instructing the jury in this manner.

In arguing for reversal, Worthington initially contends that the trial court should not have given the first part of the instruction, i.e., the preemptive instruction on the issue of Worthington’s duty, because it was unnecessary since Worthington did not dispute the issue of duty at trial. However, the record shows that Worthington did, in fact, vigorously contest its duty at trial. Worthington elicited testimony from witness after witness that it had no duty to supervise the job site or any of the workers and had no duty to inspect the job site for dangerous conditions. Given this testimony, the trial court needed to give some instruction to the jury on what Worthing-ton’s duty was because the issue was actually raised and disputed at trial.

Worthington next contends that the trial court should not have included the word “ultimate” in the duty instruction. We tend to agree that this language has been extended outside its proper context. In Atlantic Coast Development, the case in which this language originated, the accident at issue occurred when a load of concrete blocks fell as it was being lifted by a construction crane. 385 So.2d at 678. The court noted that a construction crane in operation is inherently dangerous. Id. at 679. The court went on to explain that the owner/general contractor had a nondel-egable duty to keep the premises safe for all workmen on the job for injuries arising out of the use of that dangerous instrumentality. Id. at 680. While the owner/general contractor could delegate the performance of its duty to keep the workplace safe to the subcontractor actually running the crane, the owner/general contractor could not delegate the liability arising from the use of that dangerous instrumentality and so it had the “ultimate” duty to keep the premises safe during the crane’s operation. Id.

The basis for the language concerning “ultimate” duty in Atlantic Coast Development was the inherently dangerous operation of the construction crane. However, without explaining why, courts have subsequently applied that language to cases that did not involve the use of dangerous in-strumentalities, such as a crane. For example, in Lewis, a worker tripped getting off a construction elevator that did not level properly. 498 So.2d at 574. In Griggs and Jupiter Inlet, workers fell off roofs. Griggs, 625 So.2d at 950; Jupiter Inlet, 546 So.2d at 2. These cases did not involve the use of dangerous instrumentalities and so did not involve nondelegable duties. Nevertheless, the courts used the “ultimate” duty language from Atlantic Coast Development when describing the owner/general contractor’s duty.

We tend to agree with Worthington that it is improper to apply the “ultimate” duty language applicable to nondelegable duties outside of the context of inherently dangerous instrumentalities. However, we affirm the final judgment in this case despite this impropriety for two reasons. First, the specific argument that Lewis and its progeny were wrongly decided was not made in the trial court. Instead, Worthington argued that the court should follow Lewis when instructing the jury. As a general proposition, for an argument to be preserved for review, “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.... ” Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); see also N.L.E. v. Dep’t of Children & Family Servs., 970 So.2d 486, 489 (Fla. 2d DCA 2007) (“ ‘Except in cases of fundamental error, appellate courts will not consider an issue that has not been presented to the lower court in a manner that specifically addresses the contentions asserted.’ ” (quoting State v. Hunton, 699 So.2d 320, 321 (Fla. 2d DCA 1997))); Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998) (holding that an appellate court “cannot address on appeal an issue not ruled upon” by the trial court). We will not hold that the trial court abused its discretion by giving a particular jury instruction when the rationale and legal authority for finding that the jury instruction was erroneous was never argued to the trial court. This is especially true here because Wor-thington actively relied on the Lewis decision rather than arguing that it was wrongly decided and asking the trial court to attempt to unravel the convoluted case law on this point.

Second, regardless of whether the case law needed unraveling, the “ultimate duty” language used in this case was not so misleading or confusing as to warrant reversal. The jury instructions, when considered as a whole, properly explain the scope of Worthington’s duty. As Conklin teaches, an owner/general contractor has a duty to keep the entire jobsite reasonably safe for all employees. To the extent that an owner/general contractor oversees the entire project and all workers on the site, it has a responsibility to ensure that no subcontractor creates a condition that poses an unreasonable danger to others on the site. The owner/general contractor cannot delegate its obligation to keep the entire jobsite safe to a single subcontractor, particularly on a construction site involving the erection of multiple multi-story buildings. Thus, while the use of the term “ultimate” may have been based on an improper extension of the language in Atlantic Coast Development, in light of the record and the instructions as a whole, the trial court’s isolated reference to an “ultimate duty” was not so misleading or confusing as to be fundamentally prejudicial to Worthington. Accordingly, Worthing-ton is not entitled to a new trial on this basis.

Conclusion

We have fully and carefully considered the numerous other arguments made by the parties in this appeal, and we find them without merit. Worthington, as the owner and general contractor of the condominium project, had a duty to maintain the site in a reasonably safe condition for all of the workers on the site. The Mejias presented some evidence tending to establish that Worthington breached this duty. The jury instructions given by the trial court, when considered as a whole, were not misleading on the issues of either duty or breach. Accordingly, we affirm the final judgment entered in favor of the Mejias.

Affirmed.

SILBERMAN, J., Concurs.

ALTENBERND, J., Concurs specially with opinion.

ALTENBERND, Judge,

Concurring specially.

I concur in this opinion with the greatest of reluctance. Worthington’s primary mistake was its failure to create two corporations — one to own the development and one to serve as the general contractor. If it had taken this simple legal step, it would not have been liable in this case.

The duty owing to an employee on a construction site by an “owner/general contractor” has been a confusing subject ever since the Third District issued its opinion in Lewis v. Sims Crane Service, Inc., 498 So.2d 573 (Fla. 3d DCA 1986). That opinion unfortunately intermingled a discussion of liability for the operation of a crane as a nondelegable duty with a discussion of the right to indemnity by a passive tortfeasor from an active tortfeasor. Id. at 574-75. The brevity of that opinion has caused later courts to conclude that an owner/general contractor owes a greater duty to employees of the contractors on the worksite than the duties owed by either an owner or a general contractor. If I had the authority in this case, I would recede from this line of cases.

In this case, Worthington, by the requirements of its contracts with the contractors on the job, arranged and indirectly paid for workers’ compensation coverage on all of the employees on the jobsite. Nevertheless, it has no workers’ compensation immunity as an owner and actually ends up paying damages in this negligence action to reimburse the workers’ compensation carrier for the extensive medical expenses and lost wages associated with an accident that in my mind is entirely the fault of Mr. Mejia’s employer, Sunshine Masonry. I cannot understand any valid policy justification for this outcome, but apparently it is the law.

I. Ohio Casualty’s Role in this Appeal

Before discussing the merits, a procedural issue in this case warrants comment. This court permitted Ohio Casualty to appear in this appeal as a separate appellant with separate counsel. We did not require Worthington and Ohio Casualty to limit their combined initial briefs to fifty pages, and Ohio Casualty was permitted to brief issues that arose during the trial and before its involvement in the case. At the time this court permitted this procedure, we did not understand that the interests of Worthington and Ohio Casualty were identical.

At least in theory, if an insurance company such as Ohio Casualty had a separate issue that it wished to brief concerning its inclusion on the judgment under section 627.4136(4), it might be entitled to separate counsel and a separate brief. In this case, however, its interests align with its insured. Procedurally, this case is indistinguishable from cases under the procedures used in the 1970s when insurance carriers were routinely parties to the litigation during the trial. See, e.g., Ortega v. Perrini & Sons, Inc., 371 So.2d 203 (Fla. 2d DCA 1979). Just as the insured and the insurance company were entitled to be represented by only one law firm and entitled to file only one set of briefs in compliance with the rules of procedure during that period, it seems to me that they should be limited in the same fashion today when the insurance carrier is joined at the end of the trial.

II. In this Context, the Duty of an Owner/General Contractor Should not Be Greater than the Combined Duties of an Owner and a General Contractor

It is a well established general rule that a property owner who hires an independent contractor to perform construction or repair work on the property is not liable for injuries to the independent contractor’s employee arising from negligence in the performance of that work, but is only responsible to address potential dangers on the premises of which the property owner has actual or constructive notice. See Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); Indian River Foods Inc. v. Braswell, 660 So.2d 1093 (Fla. 4th DCA 1995); Horton v. Gulf Power Co., 401 So.2d 1384 (Fla. 1st DCA 1981). In this case, there was great confusion as to whether to describe Sunshine Masonry as an independent contractor. However, unless Mr. Mejia wishes to classify Sunshine Masonry as a subcontractor, it seems clear to me that vis-a-vis Wor-thington as the owner, Sunshine Masonry is an independent contractor. If this case were controlled by our opinion in Lake Parker Mall, then Worthington would be entitled to a directed verdict in its capacity as owner.

Judge Villanti’s opinion for the court correctly relies on Conklin for the proposition that an owner who becomes too involved on the jobsite can become liable for negligent acts that injure workers on the jobsite. Conklin, however, was not a case in which the owner had a licensed general contractor on staff and was, thus, an “owner/general contractor” as that phrase is used in Sims Crane. In this case, I conclude that all of the evidence describing the involvement of Worthington deals with the actions of its employees whose job descriptions fall into the category of general contractor. Thus, if Worthington had merely created a second corporation for the general contractor’s activities, its role as owner would not have involved the type of active participation that led to the owner’s liability in Conklin. Likewise, the alleged failure of Mr. Bontrager to prevent Sunshine Masonry from performing its contractual duties in a negligent manner, if he had been employed by a separate general contracting corporation, would not have been the type of action that would have overcome workers’ compensation immunity. See, e.g., Fred G. Wright, Inc. v. Edwards, 642 So.2d 808, 809 (Fla. 2d DCA 1994) (holding general contractor was a statutory employer of sub-subcontractor’s employee and therefore entitled to same immunity under workers’ compensation law as sub-subcontractor which purchased workers’ compensation).

Thus, I follow the case law and the legal presentation in the majority’s opinion because it is apparently the law. In most cases, this law does not heighten safety on the jobsite; it merely generates business for the lawyers who create additional corporations to avoid the illogic of Sims Crane.

In Sims Crane, 498 So.2d at 674, the plaintiff was a hoist or elevator operator at a construction site. From the opinion, it is unclear who employed the plaintiff. The owner/general contractor in that case was Greenwich, Ltd. It was paying rent on the hoist, which it apparently leased from Sims Crane Service. The opinion recites that Greenwich had obtained a permit not only to build the building but also to use the hoist. Id. at 575. The defect in the hoist that caused the injury was a door that did not fully open. Id. at 574. Greenwich had actual knowledge that the door was broken and had instructed that the hazard be removed or repaired prior to the accident. Id. The opinion observes that a construction hoist is an inherently dangerous instrumentality. Id. at 575. The controversial and confusing portion of this opinion reads as follows:

An owner/general contractor can be held liable for an injury on a construction job site and this liability does not depend upon active participation, contrasted with a mere owner which does require active participation.

Id. at 574 (citations omitted).

It may have been helpful if the Third District had expanded on this reasoning. The opinion is drawing a distinction between the “active” participation required to make a mere owner liable and the type of participation required to make an owner/general contractor liable for injuries caused by a dangerous instrumentality that the owner/general contractor had obtained for the workplace. Unfortunately, the opinion does not elaborate on the type of participation that is to be contrasted with “active” participation.

The opinion, however, gives a hint as to the type of participation it envisions when it states: “An owner/general contractor has the ultimate duty to maintain a construction site in a reasonably safe condition.” Id. (emphasis added). The opinion was written at a time when active/passive indemnity was a common claim. Under this theory, indemnity could be obtained from an active tortfeasor by a defendant who was merely passively liable. See Castle Constr. Co. v. Huttig Sash & Door Co., 425 So.2d 573, 574-75 (Fla. 2d DCA 1982) (citing Houdaille Indus., Inc. v. Edwards, 374 So.2d 490 (Fla.1979)). Considered in this context, I believe Sims Crane is explaining that the owner/general contractor had a nondelegable duty to assure the safety of the hoist as a dangerous instrumentality but that it may be entitled to indemnity from the active tortfeasor if the facts warrant that indemnity.

The cases cited in Sims Crane tend to support this reading. It relies first and foremost on Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 3d DCA 1980). Atlantic Coast Development is a case in which an owner/general contractor successfully maintained an action to obtain indemnity from a subcontractor. Id. at 678. The subcontractor, Napoleon Steel, was a crane operator who had negligently injured the employee of another subcontractor. Id. at 678-79. The owner/general contractor settled with the injured employee, but because it had a nondelegable duty, “i.e. ultimate liability” for the acts of the actively negligent crane operator, it was allowed to obtain indemnity from the crane operator. Id. at 680.

In addition to Atlantic Coast Development, the decision in Sims Crane relies for support on Cadillac Fairview of Florida, Inc. v. Cespedes, 468 So.2d 417 (Fla. 3d DCA 1985), and Pearson v. Harris, 449 So.2d 339 (Fla. 1st DCA 1984). Cadillac Fairview involved an owner/general contractor who violated safety standards by not having guard rails around an open, unfinished stairwell. 468 So.2d at 419. The worker inadvertently stepped backward into the unguarded opening. Id. The owner in Cadillac Fairview would appear to have liability under the general rule applying to property owners because it was actively supervising the jobsite and knew that the stairwell was unguarded. Id. at 421. Pearson held that the injured worker could not make a claim against a property owner under the unique facts in that case and discusses Atlantic Coast Development only in dicta. 449 So.2d at 348-44.

Mr. Mejia is not a worker who was injured by a dangerous instrumentality for which the owner/general contractor had a nondelegable duty for the negligence of another contractor. This is not a case where the owner knowingly permitted an open stairwell or other dangerous condition to exist on its property. Here, an employee of a subcontractor was injured when that subcontractor failed to follow the manufacturer’s instructions for the work that it had contracted to do. Wor-thington’s job supervisor had enough knowledge of the construction methods that he arguably knew or should have known on the day before this accident that the conditions were dangerous. But for cases cited in the majority opinion, I would conclude that Worthington, as an owner/general contractor, could not be liable for the injuries to a subcontractor’s worker arising from a dangerous condition created by that contractor’s negligence in performing the task it was contracted to do. So long as the contractor is functioning independently and the owner has assured that workers’ compensation coverage is in place, I see no legal or economic justification for placing liability on the owner merely because the licensed general contractor is employed by the owner.

III. The Jury Instruction on “Ultimate Duty” Accords with the Law, but it Seems to Create an Unjustified Form of Heightened Liability

As well explained in Judge Villanti’s opinion for the court, the trial court instructed the jury on negligence by providing an initial preemptive charge that in-eluded the statement: “As the owner and general contractor for the construction project, Worthington Communities, Inc., had the ultimate duty to maintain the site in a reasonably safe condition.”

Outside the context of indemnity between active and passive tortfeasors, I have no idea what an “ultimate duty” is supposed to describe. Except for the cases cited in the court’s opinion, I am not aware of any recognition of such an “ultimate duty” as a concept of tort law. Mr. Mejia’s attorney used this unusual phrase to characterize Worthington as the “captain of the ship” and to intermingle arguments of vicarious liability with those of direct liability. The idea of “ultimate liability” as argued to this jury appears to me to create a unique form of heightened liability. Nevertheless, the trial court created the instruction based on a line of cases that currently is the law in Florida, even if I find the line of cases very questionable. I am hard pressed to reverse the trial court for basing its instructions on the precise language of these cases.

      . Because Worthington has an employee who is the licensed general contractor on its own staff, the contract with Sunshine Masonry is technically direct with the owner. We are accustomed to thinking of a contractor like Sunshine Masonry as a subcontractor, but in this case that terminology is not legally correct.

      . Worthington had no employee on the jobsite on the Saturday when the accident actually happened.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Douglas WALKER, Appellant, v. David ELLIS, et al., Appellee.
    No. 1D08-5925.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 12, 2010.

      Douglas Walker, pro se, Appellant.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Office of the Attorney General, and Kathleen Von Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Douglas Walker, challenges the circuit court’s determination that his petition for writ of mandamus was frivolous, dismissal of the action, and direction to the Clerk of Courts to forward a copy of the order to the correctional facility for appropriate disciplinary action, pursuant to section 944.279, Florida Statutes. Because this is Appellant’s twenty-sixth action in this court, we ordered him to show cause why this court should not summarily affirm the order on review, under rule 9.315, Florida Rules of Appellate Procedure; sanction Appellant pursuant to rule 9.410, Florida Rules of Appellate Procedure for filing a frivolous appeal; and why such sanctions should not include a direction to the Clerk of this Court to reject any future pro se filings Appellant submits to this Court. Appellant responded with a “Motion to Stay Pending Review” which urged the court to consider the merits of his appeal.

Appellant has failed to show cause why the trial court’s order should not be summarily affirmed. The court correctly applied section 57.085, Florida Statutes, to find the action frivolous or malicious and to dismiss the action. §§ 57.085(8) & (9), Fla. Stat. Section 944.279, Florida Statutes, clearly provides authority for the court’s direction to the Clerk of Courts to send a copy of the order to the correctional institution for appropriate administrative proceedings. Appellant has failed to demonstrate any basis for reversal of the trial court’s order, and the order is summarily AFFIRMED. Fla. R.App. P. 9.315(a).

Appellant’s response to the order to show cause fails to justify his filings in this court and others which are numerous to the point of abuse of the judicial process. The exercise of this court’s inherent authority to regulate and sanction disruptive litigants is warranted here. See Jackson v. Florida Dep’t of Corrections, 790 So.2d 398 (Fla.2001); Maddrie v. Colton, 998 So.2d 668 (Fla. 4th DCA 2009). Accordingly, Douglas Walker, DC# 637039, is now prohibited from initiating any new action in this court. The Clerk of this Court is instructed to reject any future filings submitted by Walker unless signed by a member in good standing of The Florida Bar. If Mr. Walker violates this order, he may be subject to additional sanctions. See § 944.279(1), Fla. Stat.

It is so ordered.

ROBERTS, CLARK, and ROWE, JJ., concur.

      . Appellant previously initiated the following in this court: Walker v. Moore, 1D99-1202; Walker v. Crosby, 874 So.2d 590 (Fla. 1st DCA 2004); Walker v. Crosby, 1D03-2563; Walker v. Crosby, 886 So.2d 232 (Fla. 1st DCA 2004); Walker v. Crosby, 881 So.2d 1119 (Fla. 1st DCA 2004); Walker v. Crosby, 888 So.2d 20 (Fla.2004); Walker v. Crosby, 906 So.2d 1065 (Fla. 1st DCA) rev. dismissed, Walker v. Crosby, 913 So.2d 599 (Fla.2005); Walker v. Crosby, 1D04-3399; Walker v. Crosby, 891 So.2d 1135 (Fla. 1st DCA 2005); Walker v. McDonough, 924 So.2d 819 (Fla. 1st DCA 2006); Walker v. McDonough, 937 So.2d 128 (Fla. 1st DCA 2006); Walker v. Crosby, 1D05-4958; Walker v. McDonough, 959 So.2d 1194 (Fla. 1st DCA 2007); Walker v. State, 1D06-3943; Walker v. McDonough, 958 So.2d 927 (Fla. 1st DCA 2007); Walker v. McDonough, 1D06-5383; Walker v. McDonough, 1D06-5426; Walker v. McDonough, 1D06-5458; Walker v. McDonough, 967 So.2d 204 (Fla. 1st DCA 2007); Walker v. McDonough, 973 So.2d 1132 (Fla. 1st DCA 2008); Walker v. McNeil, 982 So.2d 692 (Fla. 1st DCA 2008); Walker v. McNeil, 989 So.2d 643 (Fla. 1st DCA 2008); Walker v. McNeil, 2 So.3d 1068 (Fla. 1st DCA 2009); Walker v. Ellis, 989 So.2d 1250 (Fla. 1st DCA 2008); and Walker v. McNeil, 1 D08-4971.
      The court notes that Appellant initiated the following in other courts: Walker v. Brantly, 747 So.2d 941 (Fla. 2d DCA 1999); Walker v. McDonough, 936 So.2d 576 (Fla. 2d DCA 2006); Walker v. State, 941 So.2d 380 (Fla. 2d DCA 2006); Walker v. McDonough, 968 So.2d 571 (Fla. 2d DCA 2007); Walker v. McDonough, 967 So.2d 1143 (Fla. 2d DCA 2007); Walker v. Cullumber, 978 So.2d 173 (Fla. 2d DCA 2007); Walker v. McDonough, 970 So.2d 833 (Fla. 2d DCA 2007); and Walker v. McDonough, 929 So.2d 1127 (Fla. 4th DCA 2006).


text:
    Glen L. YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6195.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Rehearing Denied Feb. 12, 2010.
    Glen L. Young, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Jimmie J. WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5997.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Rehearing Denied Feb. 12, 2010.

      Jimmie J. Wilson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

HAWKES, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


author: THOMAS, J.

text:
    UNITED STATES of America, Appellant/Petitioner, v. Charles MORRISON, et al., Appellees/Respondents.
    Nos. 1D08-4252, 1D09-5153.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 17, 2010.

      Michael F. Hertz, Assistant Attorney General, Robert E. O’Neill and A. Brian Albritton, United States Attorneys, David P. Rhodes and Todd B. Grandy, Assistant United States Attorneys, Tampa; Michael S. Raab, and Melissa N. Patterson, Washington D.C., for Appellant/Petitioner.
    Stephen C. Bullock of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Ap-pellees/Respondents.
   THOMAS, J.

The United States appeals three final judgments entered by the trial court: 1) declaring a mortgage and promissory notes held by the United States to be null and void for lack of consideration; 2) denying foreclosure on the mortgaged property under the court’s equitable powers; and 3) awarding Appellees Charles Morrison and Shirley Morrison $100,000 in damages on a counterclaim alleging the United States violated section 559.72, Florida Statutes (2001), by reporting derogatory credit information and filing suit on the debt. The trial court retained jurisdiction to consider Appellees’ additional counterclaim for slander of title on the mortgaged property.

We hold that Mrs. Morrison received consideration for her agreement to mortgage the property, and that no equity justified the lower court’s ruling declaring the mortgage null and void. We further hold that Appellees failed to establish that the mortgage was extinguished by an accord and satisfaction, because no federal employee had the authority to discharge the mortgage debt. Finally, we hold that the United States did not waive sovereign immunity regarding the counterclaims. We reverse and remand with directions to the trial court to declare the mortgage valid, grant the foreclosure, vacate the jury verdict on the counterclaim, enter judgment for the United States, and dismiss with prejudice the remaining counterclaim for slander of title.

Facts and Procedural History

In 1995, the United States Department of Agriculture, Farm Services Agency (Appellant), loaned Charles and Shirley Morrison (Appellees) more than $180,000. The loan, secured by promissory notes and the execution of a mortgage on real property owned by Appellees, was to be used by Appellees to start a cattle ranching business. The notes and mortgage were signed by both Charles and Shirley Morrison.

In 2003, Appellant filed suit against Ap-pellees to foreclose upon the mortgaged property and alleged they had failed to make any payments on the loan since 1997. Appellees answered the foreclosure action and filed numerous affirmative defenses. Appellees acknowledged the mortgage, but asserted: 1) the loan violated the Equal Credit Opportunity Act, 15 United States Code section 1601, by requiring Mrs. Morrison to execute loan documents because of her marital status; 2) the loan documents were made without adequate consideration; and 8) Appellant’s cause of action was barred by the statute of limitations.

In addition, Appellees filed an amended counterclaim asserting: 1) the mortgage should be rescinded and damages awarded due to violation of the Equal Credit Opportunity Act; 2) Appellant slandered the mortgaged property’s title by recording and continuing to report a second mortgage; and 3) Appellees’ personal debt had been discharged through bankruptcy, yet Appellant continued to wrongfully report an outstanding personal debt obligation, in violation of the Florida Consumer Collection Practices Act.

In its answer to the counterclaim, Appellant argued: 1) Appellees were not entitled to equitable relief under the unclean hands doctrine and the doctrine of laches; 2) the counterclaim was barred by estoppel because Appellees sought and obtained funds which they represented they would repay; 3) any alleged discriminatory action occurred in 1995 and was barred by the statute of limitations; and 4) the counterclaims were barred by the statute of limitations.

Appellant twice moved for summary judgment, asserting: 1) Appellees’ counterclaims were barred by the applicable statute of limitations; 2) Appellees’ counterclaims failed on the merits as a matter of law, because damages for slander of title are barred by sovereign immunity; and 3) the Federal Tort Claims Act is the exclusive remedy against the United States for tortious actions. In support of its motions, Appellant attached the affidavit of Michael Graham, the Farm Sendee Agency’s Farm Loan Chief for Florida. Mr. Graham affirmed that Appellees were told in advance that Mrs. Morrison’s signature was required on the loan documents, because her income was needed to show a positive cash flow. The affidavit further stated that the loan would not have been approved if Appellees could not demonstrate a positive cash flow.

At a pre-trial hearing, the trial court stated that it had “some concerns” with the slander of title claim and was going to “take the motion for summary judgment as to the slander issue under advisement and remove it and sever it from the matters that are to be heard today.” A trial was held, and an advisory jury found that Appellant did not violate the Equal Credit Opportunity Act in approving Appellees’ loan; however, the jury found that Mrs. Morrison did not receive adequate consideration to support the mortgage. Regarding Appellees’ contention that an accord and satisfaction was reached, the jury found that Appellant agreed that Mr. Morrison could liquidate his cattle and equipment to satisfy the debt. Concerning Ap-pellees’ counterclaim, the jury found that Appellant violated the Florida Consumer Collection Practices Act by reporting derogatory credit information, filing suit to collect its debt after the statute of limitations period ran, and continuing to collect the debt after it was discharged in bankruptcy. The jury determined Appellees suffered $100,000 in compensatory damages.

The trial court adopted the jury’s findings and found the mortgage null and void for lack of consideration, and declared the promissory notes paid in full and satisfied due to the accord and satisfaction. The trial court determined consideration for the mortgage was insufficient as it related to Mrs. Morrison, because Mr. Morrison was the sole loan applicant, and the mortgage on the homestead property did not arise until sometime before the loan closing. The trial court further found that the mortgage on the homestead property was signed solely by Mr. Morrison, because Mrs. Morrison’s signature was without adequate consideration. The trial court found that without Mrs. Morrison’s signature, the mortgage violated Florida’s homestead protection laws. Citing Appellant’s six-year delay in seeking foreclosure, the accord and satisfaction, and the fact that none of the loan proceeds were used to purchase or improve the home, the trial court “exercisfed] its equitable powers” to deny foreclosure. Lastly, the trial court entered final judgment pursuant to the jury verdict’s award of $100,000 to Appel-lees.

Appellant filed a motion for new trial, which the trial court denied. After Appellant appealed the final judgment, the circuit court granted Appellees’ motion to amend their counterclaim. To stay further action in the trial court, Appellant now petitions for a writ of prohibition, arguing that the circuit court lacks jurisdiction and that the counterclaim is barred by the doctrine of sovereign immunity.

Analysis

I. The Mortgage and Foreclosure Action Validity of the Mortgage

The Florida Supreme Court has clearly stated that “[s]afeguarding the validity of [mortgage] contracts, and assuring the light of enforcement thereof, is an obligation of the courts which has constitutional dimensions.” David v. Sun Fed. Sav. & Loan Ass’n, 461 So.2d 93, 95 (Fla.1984). A lender may be estopped from foreclosing on an accelerated basis, however, where the borrower establishes that equity demands such relief. See City First Mortgage Corp. v. Barton, 988 So.2d 82, 85-86 (Fla. 4th DCA 2008); Pelle v. Glantz, 349 So.2d 732 (Fla. 3d DCA 1977). In David, the supreme court recognized that “[although providing equitable relief in a proper case is discretionary with the trial judge, were that discretion not guided by fixed principles, the degree of uncertainty injected into contractual relations would be intolerable.” 461 So.2d at 95. Importantly, the court noted that equitable relief from foreclosure exists only in limited situations:

Foreclosure on an accelerated basis may be denied when the right to accelerate has been waived or the mortgagee es-topped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefore; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness); or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.

Id. at 96 (quoting Campbell v. Werner, 232 So.2d 252, 257 (Fla. 3d DCA 1970)). None of the “equitable factors” relied upon by the trial court fall within the limited exceptions quoted above. Thus, we hold that the trial court’s order denying foreclosure and invalidating the mortgage based upon the court’s equitable jurisdiction must be reversed. The trial court had no basis in equity to deny the foreclosure here.

As a matter of law, Mrs. Morrison received adequate consideration for the mortgage, based on her agreement to the mortgage and her access to the mortgage funds. A mortgage is not valid and binding unless founded upon a bona fide and sufficient consideration. See Kremser v. Tonokaboni, 356 So.2d 1331, 1332 (Fla. 3d DCA 1978). Here, Appellees received loans of approximately $180,000 in exchange for executing the mortgage on their property. Appellant disbursed the loan proceeds to Appellees, and Charles and Shirley Morrison acknowledged the loans by signing promissory notes. The mortgage itself indicates that Appellees, as borrowers, are “justly indebted to government as evidenced by one or more promissory notes.”

Appellees’ argument, that Mrs. Morrison did not receive consideration for her signature because she did not actually receive or use any of the loan proceeds, is not persuasive. The Fourth District’s decision in F.D.I.C. v. Diamond C Nurseries, Inc., 629 So.2d 157 (Fla. 4th DCA 1993), is analogous and instructive on this issue. There, Thomas Waldron, Diamond C’s agent, agreed to mortgage as collateral a 53-acre nursery owned by Diamond C to secure bank loans made to business associates or friends. Id. at 158. The trial comí found that Diamond C had not received adequate consideration, but the Fourth District reversed, explaining, “[e]ven if Diamond C had received nothing, the consideration flowing to [Waldron’s friends], the obligors whom Diamond C was putting up its collateral to help, was consideration sufficient to support the mortgage.” Id. Likewise, even though Mrs. Morrison may not have received any disbursements from the monies loaned to her husband, the consideration flowing to her was sufficient to support the mortgage. The trial court erred in denying foreclosure on the ground that Mrs. Morrison did not receive consideration, as there was a debt or obligation in relation to the mortgage.

Appellees’ reliance on Kremser v. Tonokaboni, 356 So.2d 1331 (Fla. 3d DCA 1978), is misplaced, because that case is readily distinguishable. In Kremser, To-nokaboni executed a note and mortgage on her home in favor of Stewart. Id. at 1332. Stewart then assigned the mortgage to Kremser. Id. Stewart failed to make payments, and Kremser sought foreclosure. Id. The trial court dismissed the foreclosure action, and the Third District affirmed, because the mortgage lacked consideration. Id. There, however, the issue was only whether consideration existed between Stewart and Tonokaboni. Id. The record clearly established no such consideration existed, because Tonokaboni was unaware of the kind of instrument she had signed and did not know its legal effect. Id. The Third District noted that “the mortgagee (Stewart) never suffered a detriment of any kind in that no funds were ever advanced to [Tonokaboni], as mortgagor.” Id. at 1332-33 (emphasis added). The court went on to note that had Tonokaboni directly mortgaged the property to Kremser in Stewart’s favor, which is more akin to the situation sub judice, adequate consideration would have existed. Id.

The Defense of Accord and Satisfaction

There can be no accord and satisfaction if Appellant’s agent had no actual authority to accept settlement of the debt. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947); see also U.S. v. Walcott, 972 F.2d 323, 327 (11th Cir.1992) (explaining that federal government not bound by agreement entered by its agent unless agent is acting within limits of actual authority). The existence of an agency relationship is usually a question of fact resolved by the fact-finder. Fernandez v. Fla. Nat’l College, Inc., 925 So.2d 1096, 1100 (Fla. 3d DCA 2006). However, when a party bearing the burden of proof fails to produce any supportive evidence, or when the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law to be determined by the court. Id. (quoting Gillet v. Watchtower Bible & Tract Soc’y of Pennsylvania, Inc., 913 So.2d 618 (Fla. 3d DCA 2005)).

The Eleventh Circuit’s opinion in Wal-cott discussing federal agency law is particularly persuasive. There, Walcott signed as guarantor on her husband’s $500,000 Small Business Administration loan. Id. at 324. When her husband defaulted on the loan and fled the country, the government sued Walcott as guarantor. Id. Walcott’s attorney negotiated a settlement with the Small Business Administration’s loan specialist, who recommended acceptance of the offer to the Agency’s claims review committee, which was informed that the Department of Justice concurred in the recommendation. Id. In actuality, the Department of Justice did not concur and was unaware of the negotiations. Id.

Walcott, having been advised that her offer had been accepted, sent a money order in the agreed upon amount. Id. The SBA loan specialist received the money order and, as its representative, executed a covenant not to sue. Id. Several days later, Walcott was informed that the Department of Justice declined the settlement, it was void, and her money would be refunded. Id. at 325. The trial court held the government was equitably estopped from denying the validity of the settlement. Id.

On appeal, the Eleventh Circuit noted that “anyone who enters into an agreement with the government ‘takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.’ ” Id. at 325-26 (quoting Merrill, 332 U.S. at 384, 68 S.Ct. 1). Only the Attorney General was vested with authority to settle the action under the law applicable to that case. Id. at 327 (noting, in general, conduct of litigation to which United States is a party is reserved to officers of the Department of Justice under 28 U.S.C. § 516). The court alternatively held that equitable estoppel cannot apply against the United States in a suit to recover public funds. Id. at 327. Although sympathetic to Walcott’s predicament, the court reversed and remanded the trial court’s decision because the settlement was not approved by the proper authority, and equitable estoppel was not a valid defense. Id. at 326-28.

We think the case law interpreting federal agency relationships is highly relevant in state cases where the defense of accord and satisfaction is raised against a federal agency. Here, the accord and satisfaction defense required proof of two elements: First, that the parties mutually intended to settle an existing dispute by entering into a superseding agreement; and, second, that there was actual performance with satisfaction of the new agreement discharging Appellees’ prior obligation. Rudick v. Rudick, 403 So.2d 1091 (Fla. 3d DCA 1981).

Appellees introduced no evidence to establish that Appellant’s county supervisor Rogers had actual authority to compromise or discharge their obligations. Appellees argue that Mr. Morrison relied on Rogers’ authority to “write down” the debt because Rogers had made many binding decisions throughout the loan process, received loan payments with authority, and deposited them into Appellant’s account. Nonetheless, authority to accept payments does not include, by implication, authority to compromise or discharge the underlying obligation, as there is no implied agency authority when dealing with the United States. See Merrill, 332 U.S. at 383 n. 1, 68 S.Ct. 1 (“the rules of law whereby private insurance companies are rendered liable for the acts of their agents are not bodily applicable to a Government agency ... unless Congress has so provided.”). Where the federal employee cannot bind the United States, there can be no accord and satisfaction between the United States and another party.

Even if we were to conclude accord and satisfaction was a valid defense here, no competent, substantial evidence in the record supports the trial court’s finding that such an agreement was reached. Appel-lees knew the county supervisor did not have authority to make loans, because loans had to be approved by a higher office in Gainesville. Appellees were aware of that fact because the Gainesville office imposed additional conditions during the initial loan approval process. Furthermore, Appellees twice went before the county committee asking that it recommend that the loan be written off. Thus, Appellees had no reason to believe the county supervisor had sole authority to write down or write off the loans.

In sum, we reverse with directions to enter judgment in favor of Appellant, declare the mortgage valid and enforceable, and grant foreclosure. We find no equitable basis to find the mortgage null and void for lack of consideration on behalf of Mrs. Morrison, and there was no accord and satisfaction established by Appellees.

II. Counterclaim and Damages Award

Appellees’ amended counterclaim alleged the personal debt against them was discharged in bankruptcy, yet Appellant continued to report an outstanding personal debt obligation, in violation of the Florida Consumer Collection Practices Act. The trial court found that Appellant waived the defense of sovereign immunity from a damages claim. This decision was based in part on Appellees’ argument that Appellant waived sovereign immunity through its decision to allow this case to proceed in state court rather than seek removal to federal court. We disagree.

Contrary to the trial court’s finding, Appellant properly raised the sovereign immunity defense in its motion for summary judgment. We further note that under federal law, the sovereign immunity of the federal government may not be waived by the failure to plead. “If the contrary were true, it would subject the government to suit in any court in the discretion of its responsible officers. This is not permissible.” U.S. v. U.S. Fidelity & Guar. Co., 309 U.S. 506, 513, 60 S.Ct. 653, 84 L.Ed. 894 (1940). There must be a waiver of such immunity for the claim to be cognizable, and we find no such waiver here. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (explaining “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit”).

Where a suit is filed by the United States, the opposing party may, in response to the suit, file a cross action to reduce the amount owed. Such counter-suits are only permissible “to the extent of defeating the government’s claim but not to the extent of a judgment against the government ... exceeding the amount of the government’s claims.” U.S. v. Timmons, 672 F.2d 1373, 1379-80 (11th Cir.1982) (quoting Frederick v. U.S., 386 F.2d 481, 488 (5th Cir.1967)). Thus, even if Appellees met the requirements of a re-coupment suit, the trial court had no authority to award damages. Id.

Recoupment suits are permissible only when the counterclaim “arisfes] out of the same transaction or occurrence which is the subject matter of the government’s suit.” Timmons at 1379 (quoting Frederick, 386 F.2d at 488). Because Appellees obtained a bankruptcy discharge, Appellant pursued only an in rem foreclosure action against the real property, which could not provide the foundation for a counterclaim based on an action for money damages. Additionally, Appellees asserted in their counterclaim that the agency wrongfully reported derogatory credit information, in violation of section 559.72(5), Florida Statutes, which is recognized as a tort. See Reeves v. Ace Cash Express, Inc., 937 So.2d 1136, 1138 (Fla. 2d DCA 2006). Thus, this tort action was not cognizable against Appellant even if we were to find that sovereign immunity was waived, because this alleged tort does not arise from the same transaction as the mortgage or the foreclosure suit. Accordingly, we reverse the order below entering judgment for Appellees on the counterclaim and vacate the award for damages.

Conclusion

By our holding today, we necessarily find that the remaining counterclaim cannot state a cause of action. Thus, we reverse all aspects of the final order on appeal and remand with directions to enter judgment for Appellant. We further grant the petition for writ of prohibition and direct the trial court to dismiss the remaining counterclaim with prejudice, as Appellees cannot state a claim against the United States.

REVERSED and REMANDED; PETITION GRANTED.

KAHN, J., and MORRIS, STAN R., Associate Judge, concur.

      . "An obligation whose performance is secured by a mortgage may be that of the mortgagor or of some other person.” Restatement (Third) of Property: Mortgages § 1.3 (1997). Further, "[a] mortgage securing the obligation of a person other than the mortgagor is valid, whether or not the mortgagor receives an identifiable benefit in return." Id. at § 1.3 cmt.a. The following illustration is directly on point:
      H and W are married. H wishes to borrow money to start a business, and arranges a loan from Bank. H alone executes a promissory note to Bank, but both H and W execute a mortgage on their jointly owned house to secure the note. The mortgage on the house is enforceable against the interests of both H and W, notwithstanding that W receives no benefit from the loan.

        Id. at illus. 1.


author: CLARK, J.

text:
    Tavares Antonio McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2104.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 18, 2010.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Appellant, Tavares Antonio McDuffie, challenges his conviction entered after jury trial on an amended information. He argues on appeal that the filing of the amended information during the speedy trial rule’s recapture period precluded his trial on that amended information. See Fla. R.Crim. P. 3.191(p).

Because the propriety and timeliness of the amended information was not raised in the trial proceedings, it has not been preserved for appeal. State v. Olivo, 759 So.2d 647 (Fla.2000).

Appellant’s challenges to evidence admitted over defense counsel’s objections are unsupported by any showing in the record that the trial court abused its discretion.

The judgment on appeal is AFFIRMED.

BARFIELD and ROWE, JJ., concur.


text:
    ESTATE OF Ellen Lucille SMITH, etc., Appellant, v. SOUTHLAND SUITES OF ORMOND BEACH, LLC., et al., Appellee.
    No. 5D08-3383.
    District Court of Appeal of Florida, Fifth District.
    Jan. 8, 2010.
    Rehearing Denied Feb. 24, 2010.
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., and Isaac R. Ruiz-Carus of Wilkes <& McHugh, P.A., Tampa, for Appellant.
    Thomas A. Valdez of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Appellee.
   PER CURIAM.

The Estate of Ellen Smith (“the estate”) appeals a non-final order compelling arbitration of its claims against Southland Group and the other appellees for nursing home abuse associated with Smith’s death. This Court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The estate argues that the durable power of attorney (“DPOA”) Smith’s daughter acted under in executing Smith’s nursing home admission contract did not authorize her to consent to arbitrate claims arising from Smith’s nursing home care. We disagree, and affirm.

The DPOA in this case did not specifically reference arbitration agreements, but gave Smith’s daughter broad authority to effectuate Smith’s legal rights. The language of the DPOA is clearly broad enough to encompass arbitration and to authorize Smith’s daughter to enter a binding arbitration agreement on her mother’s behalf. The document granted Smith’s daughter the power

“generally to do and perform all matters and things, transact all business, make, execute, and acknowledge all contracts, whether involving real property or not, orders, deeds, writings, assurances, and instruments which may he requisite or proper to effectuate any matter or thing appertaining to or belonging to me, and generally to act for me in all matters affecting my business or property....”

(Emphasis added). Under applicable statutes and cases, this provision included the power to consent to arbitration. See § 709.08(6), Fla. Stat. (2008) (providing that “[ujnless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including ... all other contractual or statutory rights or elections”); Jaylene, Inc. v. Steuer ex rel. Paradise, 22 So.3d 711 (Fla. 2d DCA 2009) (concluding that a DPOA was “sufficiently broad” to confer authority on attorney-in-fact to bind principal to arbitration provision in nursing home admissions contract); Sovereign Healthcare of Tampa, LLC v. Estate of Huerta ex rel. Huerta, 14 So.3d 1033 (Fla. 2d DCA 2009) (same); Five Points Health Care, Ltd. v. Mallory, 998 So.2d 1180 (Fla. 1st DCA 2008) (same); Jaylene, Inc. v. Moots, 995 So.2d 566, 570 (Fla. 2d DCA 2008), rev. denied, 995 So.2d 566 (Fla. 2d DCA 2008) (holding that a “broad, general grant of authority” in a power of attorney authorized the attorney-in-fact to consent to arbitration on behalf of the principal); Schriver v. Schriver, 441 So.2d 1105, 1106-07 (Fla. 5th DCA 1983) (interpreting a DPOA authorizing the donor’s daughter to “execut(e) ... any instrument which may be requisite ... to effectuate any ... thing pertaining ... to me” as “obviously meant to be all-inclusive to allow the donee to do any legal act the donor could do on her own,” including “signing documents which secure and protect any legal interest of the donor”); see also Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 269 (Fla. 4th DCA 2006) (citing approvingly to Schriver in holding that a similarly broad grant of authority included the power to consent to arbitration); but cf. McKibbin v. Alterra Health Care Corp. (In re Estate of McKibbin), 977 So.2d 612 (Fla. 2d DCA 2008).

AFFIRMED.

MONACO, C.J., and LAWSON and JACOBUS, JJ., concur.

      . In McKibbin, the Second District held that an estate was not bound by an arbitration agreement signed by the decedent’s attorney-in-fact because ”[n]othing in that power of attorney ... gave ... [the attomey-in-fact] legal authority to enter into an arbitration agreement on behalf of [the principal]." Appellants read McKibbin as holding that an attomey-in-fact is not authorized to execute an arbitration agreement on behalf of the principal unless the agreement expressly lists arbitration as a type of agreement within the attorney-in-fact’s authority to enter for the principal. However, less than a year after McKibbin was decided, the Second District held in Moots that McKibbin was "not controlling” because it did not recite language of the DPOA in that case for comparison to other cases. Consistent with our holding in this case, Moots held that a broad, general grant of authority in a DPOA was sufficient to encompass arbitration. Moots, 995 So.2d at 570. Additionally, the McKibbin DPOA was included in the record below and in this appeal. A review of it makes clear the basis for the court's reasoning and its distinction from the instant DPOA. The document at issue in McKibbin began by granting the attomey-in-fact specific powers related to the donor's real estate, tangible personal property, intangible personal property, income taxes, and tmst. Then it granted the power to "do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises.” Black’s Law Dictionary defines the term "premises” as "[t]hat which is put before, that which precedes, the forgoing statements.” Black’s Law Dictionary, 1180 (6th ed. 1990). Thus, the seemingly broad grant of authority in the McKibbin DPOA was limited to the areas that preceded it. The McKibbin DPOA also contained an "Appointment of Health Care Surrogate” clause, which granted authority to "authorize my admission to ... a health care facility” and "provide ... consent on my behalf." These powers took effect only in the event that the donor was "determined to be incapacitated.” In contrast, the instant DPOA contains no similar limiting phrases and applies regardless of capacity. This would explain why the court in McKibbin focused on the lack of evidence of incapacity, which is not relevant in this case.


author: WETHERELL, J. KAHN, J.,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Melinda PRESSLEY, Appellee.
    No. 1D09-1481.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    Rehearing Denied Feb. 18, 2010.

      Kenneth P. Hazouri of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP., Orlando and James C. Rinaman, III, of James Rinaman, III & Associates, P.A., Jacksonville, for Appellant.
    Bruce A. Gartner, of Bruce A. Gartner, P.A., Jacksonville Beach, for Appellee.
   WETHERELL, J.

State Farm Mutual Automobile Insurance Company (State Farm) seeks review of the trial court’s denial of its motion for summary judgment and grant of Melinda Pressley’s motion for summary judgment on her complaint for Personal Injury Protection (PIP) and Medical Payments Coverage (MPC) benefits. For the reasons discussed below, we reverse.

Ms. Pressley allegedly sustained personal injuries in a motor vehicle accident on May 6, 2004. However, she did not present herself for medical treatment until more than seven months later, on December 28, 2004. Her health insurance carrier, Aetna, paid for her medical care and treatment. Ms. Pressley sued the other driver for damages, and the case was settled for an amount not reflected in the record on appeal. Aetna thereafter asserted a lien of $21,410 on the settlement proceeds to recover payments it made for Ms. Pressley’s medical expenses.

Three years after the accident, on May 18, 2007, Ms. Pressley filed a complaint against State Farm under section 627.736, Florida Statutes (2003), for allegedly overdue and unpaid PIP and MPC benefits. In essence, she sought reimbursement from State Farm for the health insurance lien asserted by Aetna. State Farm denied the claim for benefits, contending that the medical expenses incurred by Ms. Pressley were not related to the motor vehicle accident.

State Farm moved for summary judgment, arguing that none of the medical bills claimed to be at issue were submitted to it by the medical providers in accordance with section 627.736(5)(c)l or on the proper forms as required by section 627.736(5)(d). Ms. Pressley countered that it was impractical to subject insureds to the requirements of these statutes, and she relied on South Carolina Insurance Co. v. Arnold, 467 So.2d 324 (Fla. 2d DCA 1985), and Allstate Insurance Co. v. Mazorra, 599 So.2d 739 (Fla. 3d DCA 1992), to support her argument that reimbursement of the health insurance lien was permissible under the PIP statute.

The trial court agreed with Ms. Pressley that sections 627.736(5)(c)1 and 627.736(5)(d) applied to medical providers only, and the court declined to extend the requirements of those sections to insureds such as Ms. Pressley. Therefore, the trial court denied State Farm’s motion for summary judgment. The trial court subsequently granted Ms. Pressley’s motion for summary judgment, finding that there was no record evidence to refute her affidavit and deposition testimony that the medical treatment giving rise to the Aetna lien was reasonable, necessary and related to her May 2004 motor vehicle accident.

We review the trial court’s ruling on the motions for summary judgment de novo. Volusia County v. Aberdeen of Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

We conclude that the trial court erred in denying State Farm’s motion for summary judgment. State Farm was entitled to summary judgment as a matter of law because it owed no PIP benefits to Ms. Pressley due to her and her medical providers’ failure to comply with sections 627.736(5)(c)1 and 627.736(5)(d).

By statute, PIP benefits are the primary compensation of reasonable and necessary medical expenses for a motor vehicle accident. § 627.736(4), Fla. Stat. The PIP statute outlines the procedure for securing payment of medical expenses from a motor vehicle accident. Section 627.736(5)(c)1 provides, in pertinent part, that:

With respect to any treatment or service, other than medical services billed by a hospital or other provider for emergency services as defined in s. 395.002 or inpatient services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date of the statement.

(emphasis added). Additionally, section 627.736(5)(d) requires that “all statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed [form].”

Generally, the provisions of the Florida No-Fault Act are construed liberally in favor of the insured. Farmer v. Protective Casualty Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988). “Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law.” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001). The Legislature’s intent must be determined primarily from the statutory language. Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000). If the statutory language is clear and unambiguous, the statute must be given its plain and obvious meaning. Id.

The language of section 627.736(5)(c)1 is clear and unambiguous and, therefore, should be accorded its plain meaning. In this section, the Legislature set forth the exclusive procedures for payment of PIP benefits from the no-fault insurer under a PIP policy. See Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1096 (Fla.2005) (stating that because the PIP statute provides for a statutorily mandated form of insurance, the Legislature can enact specific procedures to carry out its legislative scheme). Pursuant to section 627.736(5)(c)1, the statement of charges for medical treatments and services “must be furnished to the insurer by the provider,” and the PIP insurer is only obligated to pay those bills submitted by the provider within the statutory time period. Id. The statute does not make any provision for the submission of medical bills by an insured or other third party. See Federated National Ins. Co. v. Physicians Charter Servs., 788 So.2d 403, 404 (Fla. 3d DCA 2001), rev. denied, 807 So.2d 654 (Fla.2002).

The clear intent of this statutory provision was to impose time limits on the submission of medical bills. See Warren, 899 So.2d at 1094-95 (interpreting section 627.736(5)(b), Florida Statutes (1999), which is now codified in substantially the same form in section 627.736(5)(c)). The statute contemplates recovery of payment by medical providers directly from the PIP insurer which in turn guarantees injured parties quick payment of medical bills. See Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974); see also § 627.736(4)(b), Fla. Stat. (requiring payment of all PIP claims to be paid within 30 days of the claim or the insurer will be liable in a suit to recover benefits).

Ms. Pressley cannot circumvent the payment procedures outlined in section 627.736(5)(c)1 after her health insurer places a lien on her settlement proceeds by seeking reimbursement from her PIP insurer three years after the motor vehicle accident. Allowing her to do so would render the statutory time limitations in the statute useless. See State v. Goode, 830 So.2d 817, 824 (Fla.2002) (stating that “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless”). Ms. Pressley’s inability to recover the PIP benefits under her policy could have been avoided by her promptly notifying State Farm of the accident as required by the policy, see § 627.736(4)(a), Fla. Stat., and by her notifying her medical providers that her injuries were the result of a motor vehicle accident so that the medical providers would have been able to file a timely claim for payment with State Farm. See Warren, 899 So.2d at 1096-97.

Our interpretation of section 627.736(5)(c)1 is not inconsistent with cases from our sister courts involving this statute. Both the Second and Third District Courts of Appeal have held that an entity other than a medical provider may recover PIP benefits for services provided by a provider, but only pursuant to a valid assignment of benefits. See Gables Ins. Recovery, Inc. v. Seminole Cas. Ins. Co., 10 So.3d 1106 (Fla. 3d DCA 2009) (distinguishing Federated National Ins. Co., supra); Prof'l Consulting Servs., Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003). Unlike those cases, in which the party seeking payment of PIP benefits was acting on behalf of the medical provider under an authorized assignment of benefits, there is no evidence in this case of any assignment of PIP benefits.

Because Ms. Pressley’s medical providers did not submit statements and bills to State Farm in compliance with section 627.736(5)(c)1, no PIP (or MPC) benefits are overdue. As such, Ms. Pressley does not have a cause of action under the PIP statute against State Farm for reimbursement of her health insurance lien.

There is nothing in the record to suggest that Ms. Pressley was left out of pocket for her medical expenses. She submitted the medical bills to her health insurance company which apparently paid the bills. Only when she settled with the tortfeasor did the health insurance company seek reimbursement for the medical expenses and Ms. Pressley, in turn, sought PIP benefits to cover that reimbursement. Permitting Ms. Pressley to recover PIP benefits to cover the lien could result in a windfall to Ms. Pressley depending upon how the PIP proceeds were factored into the negotiated settlement with the other driver. Cf. § 627.736(3), Fla. Stat. (stating that an injured party has no right to recover damages for which PIP benefits are paid or payable and precluding an insurer from asserting a lien on any recovery for PIP benefits).

Ms. Pressley improperly relies on two cases from other districts for support of her argument that she was entitled to reimbursement of her health insurance lien. In South Carolina Insurance Co. v. Arnold, 467 So.2d 324 (Fla. 2d DCA 1985), the Second District Court of Appeal held that the insured was entitled to PIP benefits where a workers’ compensation lien had been repaid with the insured’s third-party settlement with the tortfeasor. The court stated that there was no duplication of recovery because the insured would unquestionably be entitled to PIP benefits had he not been covered by workers’ compensation. Id. at 326.

The Third District Court of Appeal followed Arnold in Allstate Insurance Co. v. Mazorra, 599 So.2d 739 (Fla. 3d DCA 1992). In Mazorra, the insured had been denied PIP benefits because the covered expenses had been paid by the workers’ compensation carrier. The carrier was, in turn, reimbursed by the insured through a settlement with the tortfeasor. Agreeing with the reasoning in Arnold, the court held that the insured was entitled to PIP benefits.

In both of these cases, the courts held that the insured was entitled to reimbursement from the PIP insurance company for medical expenses that had been already covered by another form of insurance, ie., workers’ compensation. However, these cases were decided prior to the procedures for submission of medical charges contained in section 627.736(5)(c)1 being added to the statute in 1998. See Ch. 98-270, § 2, at 2309, Laws of Fla. The cases also involved the application of a workers’ compensation lien, and under section 627.736(4), benefits received under workers’ compensation are specifically credited against PIP benefits. Workers’ compensation benefits are also a primary compensation for work-related motor vehicle accidents. See § 440.10(1)(a), Fla. Stat. Accordingly, Arnold and Mazorra are distinguishable.

Finally, the trial court also erred in denying State Farm’s motion for summary judgment because Ms. Pressley did not refute State Farm’s assertion that the bills for medical services were not submitted on the proper forms. Section 627.736(5)(d) specifically provides that “all statements and bills for medical services” be provided on the required forms. As there was no genuine issue of fact and section 627.736(5)(d) unequivocally requires submission of bills on proper forms, State Farm was also entitled to judgment on this issue as a matter of law.

Accordingly, we reverse and remand for the circuit court to enter summary judgment for State Farm.

REVERSED and REMANDED with directions.

LEWIS, J., concurs; KAHN, J., dissents with opinion.

KAHN, J.,

dissenting.

The majority purports to, but does not, apply the plain-meaning canon in its construction of section 627.736(5)(c)1., Florida Statutes. That statute, which we are here charged to construe, covers by its terms, only statements of charges submitted by a healthcare provider to a personal injury protection insurer. By effectively denying appellee recovery of benefits for which she has paid an insurance premium, the majority disregards the primary requirement of Florida’s no-fault law — that every automobile insurance policy issued in this State must provide personal injury protection for loss sustained by any covered person “as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle,” including specified medical benefits. § 627.736(1), Fla. Stat. (2007). Section 627.736(1) provides those the benefits required under Florida law. “Benefits due from an insurer under [these provisions] shall be primary....” § 627.736(4), Fla. Stat. (2007). Florida law does not, as the majority today holds, provide a thirty-five day statute of limitation, applicable to insureds, for recovery of personal injury protection benefits.

The narrow exception included in section 627.736(5)(a) restricts only healthcare providers seeking reimbursement. Indeed, our supreme court has said as much in Warren v. State Farm Mutual Automobile Insurance Co., 899 So.2d 1090, 1094 (Fla.2005), by characterizing the statute as “a provision for a procedure through which medical providers may file claims and receive payment for services provided.” The provisions of the statute are those with “which treating medical providers must comply in order to receive payment from the no-fault insurer for services rendered.” Id. The statute here at issue may contain a hole the Legislature needs to plug and may even facilitate double recovery (at least as to attorney’s fees) in some instances. Nevertheless, I cannot agree that the statute applies to claims by an insured, and as to which the providers, having already been paid, have no interest. I would affirm the judgment.

      . We find no error in the trial court's ruling that the unsworn medical record review report attached to a records custodian affidavit presented by State Farm in opposition to Ms. Pressley’s motion for summary judgment was hearsay. Thus, even though the report concluded that Ms. Pressley "did not sustain an injury of any kind in the 5/6/04 motor vehicle accident,” that she may have sustained minor injuries in a subsequent accident on December 24, 2004, and that none of the treatment for which PIP benefits were sought was medically necessary for either accident, the trial court correctly disregarded the report in ruling on Ms. Pressley's motion for summary judgment. See Fla. R. Civ. P. 1.510(e).

      . We note that the Second District Court of Appeal stated in dicta that section 627.736(5)(b)1, added in 2001, shows that section 627.736(5)(c) does not prevent a PIP insurer from paying claims to persons or entities other than medical providers. See Prof'l Consulting Servs., 849 So.2d at 448. Section 627.736(5)(b)1 provides that an insurer is not required to pay a claim made by a broker or made on behalf of a broker. This statute, which was added based upon the recommendations of the Fifteenth Statewide Grand Jury, merely clarified that an insurer need not pay claims made by brokers and removed incentives for brokering, which were specific areas of PIP insurance fraud identified by the Grand Jury. See Fla. S. Comm. on Crim. Just, and Banking & Ins., CS for SB 1092 (2001) Staff Analysis 1-2 (April 23, 2001) (on file with comm.). Thus, in our view, this statutory amendment is not inconsistent with an interpretation that only medical providers, not brokers or other third parties, can submit claims for medical bills to be paid by the PIP insurer.

      . We agree with State Farm that if PIP benefits are not payable, then MPC benefits are not payable because, under the terms of the policy at issue in this case, MPC benefits are essentially excess coverage that is not implicated until PIP benefits are paid and exhausted.


text:
    DND MAIL CORPORATION, Petitioner, v. ANDGEN PROPERTIES, LLC, Respondent.
    No. 4D09-3155.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 2010.
    Rehearing Denied March 15, 2010.

      Barbara J. Compiani, Jane Kreusler-Walsh and Rebecca Mercier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Laurence S. Litow of Roetzel & Andress, Fort Lauderdale, for petitioner.
    Kerry L. Ezrol and Michael D. Cirullo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

DND Mail Corporation (DND) petitions for writ of certiorari, seeking to quash the circuit court’s appellate decision that concluded that the county court lost jurisdiction to sua sponte vacate a default one day after entering a default final judgment while DND’s motion for reconsideration was pending. For the reasons discussed below, we grant the petition and quash the circuit court’s opinion and order on rehearing.

DND operates a Mail Boxes Etc. business and began leasing a commercial unit from respondent, Andgen Properties, LLC (Andgen), in 2002. In January 2006, And-gen filed an action for eviction in Broward County Court, alleging that DND breached the lease by failing to pay $481.49 of the $3629.46 rent payment made in November 2005. DND sought to quash service of process, arguing that service by mail was improper. Andgen moved for a default based on the failure of DND to timely file an answer under section 51.011(1), Florida Statutes. DND argued that the motion to quash service of process tolled the time for filing an answer. See Fla. R. Civ. P. 1.140(a)(3). See also Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, 1258 (Fla.2008) (holding that rules of civil procedure apply to summary eviction proceedings under chapter 51: “The plain text of section 51.011 does not provide for instantaneous defaults in the event a party has filed a defensive motion and thereafter an untimely responsive pleading”).

At a hearing, the trial court orally denied the motion to quash service of process and granted Andgen’s motion for default. DND moved for rehearing. On February 6, 2006, the court denied the motion for rehearing and entered a final default judgment for possession in Andgen’s favor. On the same day, however, DND filed a motion for reconsideration of the denial of its motion to quash service of process. On February 8, 2006, the day after the final default judgment was rendered, the trial court entered an order denying the motion for reconsideration, in part, concluding that service of process was proper but finding that relief was warranted from the default judgment. The court vacated the default judgment and required DND to post the $481.49 and rent payments into the court registry to file its answer.

DND prevailed at a final hearing, and the trial court denied Andgen’s action for eviction. Andgen appealed. The Broward circuit court, in its appellate capacity, issued an opinion determining that the trial court erred in vacating the default final judgment. The circuit court held that the trial court lacked jurisdiction to enter the order vacating the default final judgment and that the court could not sua sponte reconsider its judgment and vacate the default.

Legal Standard

The standard of review in this second-tier certiorari petition is whether the circuit court afforded petitioner procedural due process and applied the correct law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.200S)(citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995)). “A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id.

Analysis

Here, the circuit court applied the wrong law, resulting in a miscarriage of justice. A trial court is permitted to sua sponte order rehearing or a new trial within ten days after entry of a judgment.

On Initiative of Court. Not later than 10 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

Fla. R. Civ. P. 1.530(d).

The circuit court’s conclusion that the trial court lacked jurisdiction departs from the essential requirements of law. The trial court sua sponte reconsidered the default final judgment the day after the judgment was rendered and well within the ten days permitted by the above rule. Cf. Corzo Trucking Corp. v. West, 974 So.2d 627, 628 (Fla. 4th DCA 2008) (holding that the court could not sua sponte vacate default after expiration of the ten-day time period).

Further, the circuit court applied the wrong standard in reviewing the trial court’s order that vacated the default judgment. Florida courts have a policy of “liberally setting aside defaults so that controversies can be decided on their merits.” Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 17 (Fla. 5th DCA 2009) (citing Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1104 (Fla. 4th DCA 1985), which provides “It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits”).

An order granting a motion to vacate a default final judgment is reviewed under a “gross abuse of discretion” standard. Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So.2d 138, 139 (Fla. 4th DCA 2001), see also Sterling Drug, Inc. v. Wright, 342 So.2d 503, 504-505 (Fla.1977) (applying gross abuse of discretion standard and quashing district court opinion that had applied a mere abuse of discretion standard). “[I]f there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.” N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 853 (Fla.1962) (citation omitted).

The trial court had jurisdiction, and its decision to sua sponte grant rehearing and vacate the default final judgment was not a gross abuse of discretion. Accordingly, the petition is granted and the circuit court’s decision is quashed.

FARMER, TAYLOR and GERBER, JJ., concur.