author: WARNER, J.

text:
    Alan RUFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-778.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 2010.
    Rehearing Denied April 30, 2010.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Alan Ruff, appeals his conviction for first-degree murder of Traci Cooper. He raises multiple issues, but we find one dispositive. He claims that the trial court permitted the state to call his ex-wife solely to impeach her with prior inconsistent statements which incriminated Ruff. We agree that the primary purpose of calling the ex-wife was for impeachment purposes. Because her testimony was highly prejudicial to Ruff, we reverse and remand for a new trial.

The state charged Ruff with first-degree premeditated murder of his ex-girlfriend Traci Cooper. The case proceeded to trial six times. The first and fourth trials resulted in mistrials prior to submission to the jury. The second, third, and fifth trials ended in hung juries, resulting in mistrials. On the sixth trial, a jury convicted Ruff as charged. The state presented its evidence in the last trial over multiple days. The defense did not present any evidence.

The trial record established that the victim and Ruff dated for approximately six years, living together for three and raising children together. Around May or June 2001, Cooper began dating John Thomas. Cooper broke up with Ruff around August 4, 2001. Ruff was “obsessed” with Cooper and was “upset” when the relationship ended. He wanted his sister, Jeanette Ruff, who was Cooper’s best friend and coworker, to speak with Cooper to see if she would change her mind and continue the relationship. Jeanette refused and told him that Cooper had made up her mind.

In September 2001, Cooper obtained a restraining order against Ruff. At some point, Ruff showed up at Cooper’s house insisting that he wanted to meet Thomas. Cooper used her body in an effort to prevent Ruff from entering and instructed him to leave, but Ruff came in anyway. Thomas introduced himself to Ruff and shook his hand. The exchange was friendly, but Thomas was afraid Ruff was going to attack him.

On the morning of Sunday, October 21, 2001, Cooper went to work at Lindstrom Air Conditioning, logging onto her work computer a little after 9:00 a.m. Around 11:00 a.m., William Booth, the facilities manager at Lindstrom Air, unlocked the door to the business. He approached Cooper’s workstation and discovered Cooper lying face down on the floor. As he knelt down next to Cooper, he heard the front door open. He immediately stood up and saw the door latch shut. He ran outside to see who had exited the building. A jogger running by saw a man leaving the building from the front door but did not see his face.

About the same time a fisherman in the area of the Lindstrom office noticed a gold vehicle approaching rapidly, exceeding the speed limit of the parking lot. The vehicle ran a stop sign, and the fisherman made eye contact with the driver. Later he positively identified Ruff as the driver of the vehicle.

Officers arrived at the crime scene by 11:10 a.m. and found Cooper slightly warm with no vital signs. Cooper died of a stab wound to the abdomen. She also had multiple other cuts to her face and chest, as well as defensive wounds on her hands. Blood spatters and overturned furniture evidenced a struggle. Officers also discovered bloody paper towels in the women’s bathroom, indicating that the assailant had cleaned up after the attack. No DNA conclusively matched Ruffs DNA. Although mitochondrial DNA was found on some hairs taken from Cooper’s body which matched Ruffs, it would also have matched any maternal relative of Ruffs. Ruffs sister worked with Cooper, and the defense argued in closing that her hairs could also have been in the workplace and found their way onto Cooper’s body.

Officers interviewed Ruff who provided an alibi that he was home sleeping after having worked a night shift at his job. He awoke the morning of the murder when his daughter, Cordelia, needed to borrow his vehicle. However, the state was able to supply inconsistencies in this explanation, because Cordelia’s co-worker testified that Cordelia had called her workplace around 10:45 the morning of the murder, indicating that her father had not yet come home so that she could use his car to get to work. She then called in a second time stating that her father had arrived home with scratches and blood on his shirt.

Cordelia denied the statements attributed to her by her co-worker. She also gave inconsistent statements to the police. First, she told them that her father had been home when she awoke to go to work. She later told detectives that her father had not been home when she awoke to go to work, and she had to “beep” him several times. At trial, Cordelia insisted that the first statement was true and that she lied in her second statement because she felt threatened by the detective and pressured by her mother to give a second statement.

The state called Clara Garcia, Ruffs ex-wife and Cordelia’s mother. The defense moved in limine to strike Garcia as a witness because the primary reason for calling her was to impeach her. The trial court denied the motion, and Garcia testified. The defense continued to object at the appropriate times and places to her testimony.

Garcia testified that she and Ruff were married for approximately eleven years when they separated in 1992 or 1993. Cordelia was their eldest child. Garcia knew the victim who was already “in the picture” when Garcia and Ruff separated. Ruff retained custody of their children.

On the day of the murder, Garcia received a telephone call from one of her children advising her of the situation. She called the victim’s house and talked to a detective. She was concerned for her children.

The prosecutor asked Garcia if she was aware that Ruff and the victim had broken up some time previously. Garcia responded that she did not get involved in their relationship, nor did she talk about it with Ruff. After a few more questions, the prosecutor then asked her if she had ever made a different statement about their breakup or their relationship. Garcia said “no,” and then, when asked again said, “I don’t recall.” The prosecutor provided her with a prior statement she made to a detective approximately six months after the crime in which she had said that in the time frame of September or October before the murder, Ruff made threats against Cooper and stated how he was “going to kill that bitch.” When confronted, she admitted saying that to the officer.

When the prosecutor started to elicit another statement in impeachment of her statement that she was not aware of the relationship between Ruff and Cooper, the defense again objected that the statement was highly prejudicial and improper impeachment. The court overruled the objection, and the prosecutor asked Garcia whether she had told the officers in her earlier statement that Ruff had tried to poison Cooper. She admitted that she had made that statement to the detective, but claimed it was a lie. She testified that she made the earlier statement because the detective had told her he would help her get custody of her children, which he never did.

Again, over objection, the prosecutor asked whether her ex-husband ever told her how this murder could have been committed without leaving a fingerprint on the front door. Garcia responded that Ruff had never told her anything like that. However, when asked whether she had made a different statement, she admitted that she probably had. The prosecutor then read her statement to the detective: “We were just talking about it and he ended up saying anybody could have murdered Traci because the way the door opens, you don’t have to use your hand, you can use your elbow or foot to, you know, push the door.” The prosecutor asked Garcia how she could have known about the door unless Ruff had not made that statement to her. Garcia maintained that she was just guessing, as Ruff had never said anything about it.

Later, the court instructed the jury that Garcia’s testimony was impeachment evidence and should not be considered substantive evidence of guilt. Nevertheless, during closing argument, the prosecutor told the jury that the statement of how the murder could be committed without leaving fingerprints on the door should be considered substantive evidence of guilt in that the defendant must have told Garcia that, because otherwise Garcia would not have known about the door.

Finally, the prosecutor asked Garcia questions regarding Cordelia’s second statement to officers where Cordelia told them that Ruff was not at home diming the morning of the murder. Garcia admitted that she had contacted Cordelia to ask her to give the detective a second statement, because she feared that he would arrest Cordelia if she did not give a second statement. However, Cordelia herself testified at trial and related Garcia’s involvement in getting her to give a second statement.

After the lengthy trial, argument, and instruction, the jury deliberated for a day and a half. The jury found Ruff guilty of premeditated murder, and the court sentenced him to life in prison. Ruff appeals.

Ruff contends that the trial court erred in permitting the state to present the testimony of his ex-wife, Clara Garcia, when the state called her as a witness for the primary purpose of impeaching her with prior inconsistent statements. The state, however, contends that Garcia’s “refreshed recollection” of Ruffs threats against Cooper was not impeachment. We conclude that the primary purpose for calling Garcia was to impeach her with her prior statements.

Section 90.608(1), Florida Statutes, states that “[a]ny party, including the party calling the witness, may attack the credibility of a witness by ... [introducing statements of the witness which are inconsistent with the witness’s present testimony.” A trial court’s ruling permitting the state to call a witness is reviewed for abuse of discretion. See Bateson v. State, 761 So.2d 1165, 1169 (Fla. 4th DCA 2000).

In Morton v. State, 689 So.2d 259 (Fla.1997), receded from on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000), our supreme court recognized that consistent with federal precedent, a risk of abuse occurs where a prosecutor calls a witness who has previously given a statement implicating the defendant but who has since repudiated that statement. In such cases, the purpose of calling the witness must be examined along with the balancing analysis under federal rule 403 to weigh the prejudice over the probative value of the evidence. Specifically, the court said:

Generally, however, if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony. In a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement. Of course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating. In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.

Id. at 264. In making the determination as to whether the primary purpose is to introduce the prior inconsistent statements, a court may consider several factors, including: “(1) whether the witness’s testimony surprised the calling party, (2) whether the witness’s testimony affirmatively harmed the calling party, and (3) whether the impeachment of the witness was of de minimis substantive value.” Senterfitt v. State, 837 So.2d 599, 600 (Fla. 1st DCA 2003).

Explaining the “primary purpose” analysis further, the Third District noted in State v. Richards, 843 So.2d 962 (Fla. 3d DCA 2003), that the witness’s other testimony must be useful to prove a significant fact in the litigation:

Application of the “mere subterfuge” or “primary purpose” doctrine focuses on the content of the witness’s testimony as a whole. If the witness’s testimony is useful to establish any fact of consequence significant in the contest of the litigation, the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to. In the words of one commentator, the pivotal question is whether the “party [is] calling a witness with the reasonable expectation that the witness will testify [to] something helpful to the party’s case aside from the prior inconsistent statement.”

Id. at 965 (emphasis omitted) (quoting 1 McCormick on Evidence § 38, at 142-43 (John W. Strong ed., 5th ed. 1999)).

As applied to this case, Garcia’s testimony as a whole shows that it was useful only for the prior inconsistent statements the prosecution elicited. The prosecution knew that Garcia had recanted her prior statements incriminating Ruff. Therefore, the surprise factor was not present. Secondly, Garcia’s testimony did not affirmatively harm the prosecution. Third, the impeaching testimony was the centerpiece of Garcia’s testimony. The only other evidence she offered regarded her persuasion of Cordelia to change her testimony, but Cordelia herself testified to the very same thing, and it was not substantive evidence of any facts in dispute. Paraphrasing McCormick, the prosecutor did not call Garcia with any reasonable expectation that she would testify to something helpful to his case, aside from the prior inconsistent statement.

In its brief, the state contends that Garcia’s admission that she had told the detective that Ruff had threatened to kill Cooper was not impeachment. Rather the prosecutor used it to refresh her recollection. We disagree. The prosecutor asked her whether she knew about the relationship between Ruff and Cooper. She responded that she did not and that they did not talk about it. The statements about threats to Cooper were offered to impeach her trial testimony that she knew nothing of the relationship. Garcia’s prior statement demonstrating that she knew Ruff had threatened Cooper was directly contrary to her testimony that she knew nothing about them relationship nor did she talk with Ruff about it. Therefore, her statement to the detective constituted a prior inconsistent statement. See Morton, 689 So.2d at 262-64.

We cannot say that the introduction of the prior inconsistent statements was harmless beyond a reasonable doubt. The statements elicited from Garcia were extremely prejudicial and damaging. Although inadmissible as substantive evidence, the prosecutor still used the statement as to how the murderer could have exited the building without leaving a fingerprint as substantive evidence in his closing argument. Moreover, Garcia’s statement that Ruff said he would kill Cooper and had tried to do so in the past provided reinforcement of the prosecution’s claim of premeditation, where the evidence was extremely thin on this issue.

For the foregoing reasons, we reverse for a new trial.

FARMER and LEVINE, JJ., concur.

      . The prosecutor also tried to elicit from Garcia that she learned of Cooper's murder from telephone calls to Ruff's children so as to prove that Ruff must have known about Cooper's murder prior to giving a statement to police, tire relevance of which was disputed. However, Garcia testified that she learned of it from calling Cooper's home and speaking with a detective there. It appears from the transcript that the prosecutor did not follow through on this line of questioning.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    Gordon B. WILLIAMS, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, etc., Appellee.
    No. 5D09-369.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2010.
    Rehearing Denied April 5, 2010.

      Gordon B. Williams, Clermont, pro se.
    Geoffrey M. Christian, Tallahassee, for Appellee.
   GRIFFIN, J.

Appellant, Gordon Williams [“Williams”], pro se, challenges a final order of the Department of Management Services, Division of Retirement [“DMS”]. The final order concluded, as did the administrative law judge [“ALJ”], that DMS is not required to change Williams’ retirement status from early service retirement to in-line-of-duty disability retirement. Because the appealed order is supported by competent substantial evidence, we affirm.

Williams Had been a vocational instructor for the Florida Department of Corrections and was a member of the Florida Retirement System [“FRS”] since January 3, 1983. During his employment, Williams suffered numerous accidents. On April 1, 1997, while working, Williams fell and suffered multiple injuries, which left him disabled. Although Williams returned to work briefly, he resigned on September 23, 1998, because he was unable to continue performing his duties in light of his physical disabilities.

On February 4, 1998, Williams filled out form FR-13 seeking in-line-of-duty retirement. When Sherry Rogers, Personnel Technician I, at the Lake Correctional Institution filled out form FR-13a, which accompanies an employee’s form FR-13, she selected “regular” retirement instead of “in-line-of-duty” retirement. Williams testified that Lake Correctional Institution refused to make any change to the type of retirement specified on their form FR-13a. Apparently, Williams did not submit the form FR-13 or a form FR-13a to DMS at that time. After Williams’ 1998 resignation, he contacted the Department of Corrections for assistance with his disability retirement application and was told that since he was no longer employed, he should contact DMS directly.

Williams made two telephone calls to DMS to discuss his retirement. The first telephone call was on October 22, 1998. He spoke with “MD,” a representative in the Disability Determination Section. He testified at the administrative hearing that he informed MD that he wanted to apply for in-line-of-duty disability retirement and claimed he discussed the requirement of form FR-13b for documentation from two physicians. Apparently, one of his physicians had agreed to fill out the form, but all others refused, “citing an ongoing workers’ compensation claim.” He then testified that he was advised by MD that this would not be sufficient for approval of his disability retirement application, but that he could apply for regular early service retirement while further documentation was secured.

Records admitted in evidence at the hearing show that, subsequent to a telephone conversation with Williams, DMS mailed Williams a form FR-11, which is the form for application for service retirement. Williams submitted his completed form FR-11 to DMS. Twice the form was rejected because it was incomplete, but eventually, on March 11, 1999, Williams’ application for early service retirement was approved and payments were made by direct deposit.

Seven years later, on December 19, 2005, Williams’ application for Social Security Disability benefits was approved. On January 22, 2008, Williams filed a form FR-13 with DMS, seeking to change the status of his retirement to in-line-of-duty disability retirement. Accompanying his form FR-13 was a form FR-13a, signed by the Department of Corrections, indicating he was eligible for in-line-of-duty disability retirement. On January 30, 2008, DMS received Williams’ completed form FR-13 and corresponding documentation. DMS, however, denied Williams’ request to change the status of his retirement from service retirement to in-line-of-duty disability retirement. DMS explained that, under Florida law, a retired member could not change his type of retirement after a benefit payment was cashed or deposited.

Williams timely sought review of DMS’ denial by filing a petition for review with the ALJ. A hearing was conducted. The ALJ agreed with DMS’ determination and issued a proposed order, making specific findings of fact and conclusions of law. Williams filed timely objections to the ALJ’s recommended order, but DMS issued a final order adopting the findings of fact and recommendation of the ALJ on January 13, 2009.

Williams asserts five issues on appeal, but they boil down to his contention that his FRS retirement status can be changed from service retirement to in-line-of-duty retirement even though benefits have been paid out either because the events of February 1998 constituted an application for and denial of in-line-of-duty benefits by DMS through its “agent,” Lake Sumter Correctional, or because DMS is estopped to deny him the right to change his status in light of the statements of MD, on which he relied. As to the estoppel claim, the hearing officer, as finder-of-fact, decided that he had failed to prove his allegations by a preponderance of the evidence. There is no record basis for that finding to be disturbed on appeal. Nor is there any record basis to conclude that the manner in which the personnel technician at Lake Correctional completed form FR-13a constituted a denial by DMS of a claim for inline-of-duty benefits by Williams.

AFFIRMED.

MONACO, C.J. and TORPY, J., concur.

      . The form in the record is not signed or notarized.


author: PER CURIAM.

text:
    Tysjohaun COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4108.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2010.
    Rehearing Denied April 5, 2010.
    Tysjohaun Cooper, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Adaway v. State, 902 So.2d 746 (Fla.), cert. denied, 546 U.S. 942, 126 S.Ct. 436, 163 L.Ed.2d 331 (2005).

MONACO, C.J, PALMER and COHEN, JJ., concur.


text:
    Ronald Allen HITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5983.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied April 6, 2010.
    Ronald Allen Hitt, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Lacayo, 8 So.3d 385 (Fla. 3d DCA 2009) (holding that section 948.30(3), Florida Statutes, requiring a probationer who is designated a sexual predator to be subjected to electronic monitoring was not limited to probation imposed for sexual offenses).

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


text:
    Kathryn KEABLES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Klotz Family Enterprises, Inc., Appellees.
    No. 1D09-3104.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied April 1, 2010.
    Kathryn Keables, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, John D. Maher, Deputy General Counsel, and Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

We affirm the order of the Unemployment Appeals Commission affirming the decision of the appeals referee that Kathryn Keables was not entitled to the unemployment compensation benefits that she had received. Global Home Care, Inc. v. State, Dep’t of Labor and Employment Sec., Div. of Unemployment Comp., 521 So.2d 220 (Fla. 2d DCA 1988). Further, section 443.151(6)(b), Florida Statutes (2008), requires Keables to repay the benefits, and it contains no provision excusing repayment based on equitable grounds. Morton v. State, Unemployment Appeals Comm’n, 769 So.2d 1119 (Fla. 2d DCA 2000); Moreno v. State Unemployment Appeals Comm’n, 676 So.2d 469 (Fla. 4th DCA 1996).

AFFIRMED.

VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.


author: ROBERTS, J.

text:
    BAKER COUNTY MEDICAL SERVICES, INC. d/b/a Ed Fraser Memorial Hospital, Appellant, v. AETNA HEALTH MANAGEMENT, LLC, a Delaware Limited Liability Company, and Humana Medical Plan, Inc., a Florida for-Profit Corporation, Appellees.
    No. 1D08-0067.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied April 7, 2010.

      John D. Buchanan, Jr. and Laura Beth Faragasso of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellant.
    Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauder-dale, for Amicus Curiae, Florida Hospital Association.
    Andres Gonzalez, Steven M. Ziegler, and H. Michael Muñiz of Law Offices of Steven M. Ziegler, P.A., Hollywood, for Appellee Aetna Health Management, LLC.
    Katherine E. Giddings, Steven A. Gri-gas, and Bruce D. Platt of Akerman Sen-terfitt, Tallahassee, for Appellee Humana Medical Plan, Inc.
    George N. Meros, Jr. and Andy V. Bar-dos of GrayRobinson, P.A., Tallahassee, for Amicus Curiae, Florida Association of Health Plans.
   ROBERTS, J.

Baker County Medical Services, Inc. (BCMS), appeals a final judgment interpreting section 641.513(5)(b), Florida Statutes (2006). BCMS raises two issues on appeal. First, BCMS argues that the trial court erred in ruling that the term “provider” in section 641.513(5)(b) is not limited to any specific type of provider. We disagree and affirm on the first issue. Second, BCMS argues that the trial court erred in ruling that the phrase “usual and customary provider charges” in section 641.513(5)(b) includes consideration of the amounts billed by providers, as well as the amounts accepted by providers as payment. We agree in part and reverse with directions on the second issue.

BCMS operates a rural, not-for-profit hospital in Baker County, Florida, and provides emergency medical services to patients who come or are brought in to its emergency room. Under state and federal law, BCMS is required to provide emergency medical services to every person in need of such care. BCMS receives payment for those services from a variety of sources, including, but not limited to: the patients themselves, Medicaid and Medicare, health insurance, and health maintenance organizations (HMOs).

There are a variety of ways that prices are set for emergency medical services including, but not limited to, the following. First, hospitals are required to maintain, post, and file a list of their maximum prices with the Agency for Health Care Administration (AHCA). See § 408.061, Fla. Stat. (2006). The list is referred to as a hospital’s “charge master.” Patients paying for them own emergency medical services are typically billed the charge master price although hospitals often accept a lower payment in full satisfaction of the debt. Indigent patients are also typically billed the charge master price, but those costs are written off by the hospital, so the price to the patient is effectively zero. Second, hospitals often contract with health insurance companies and HMOs for a negotiated rate for services. Third, for patients covered by Medicare or Medicaid, the reimbursement rate is set by the government agency administering those programs.

Reimbursement to hospitals providing emergency medical services to patients who subscribe to an HMO that does not have a contract with the hospital is determined according to section 641.513(5), Florida Statutes (2006), which provides:

Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of:
(a) The provider’s charges;
(b) The usual and customary provider charges for similar services in the community where the services were provided; or
(c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the sub-mittal of the claim.

Aetna Health Management, LLC (Aet-na), and Humana Medical Plan, Inc. (Hu-mana), are HMOs with subscribers who seek emergency medical services at BCMS. BCMS does not have a contract with Aetna or Humana. As a result, when their subscribers receive emergency medical services from BCMS, Aetna and Huma-na are billed the charge master rates. They then discount the charges and remit checks for those services to BCMS marked as “payment in full.”

In the trial court, BCMS filed an amended complaint for declaratory relief seeking an interpretation of subsection (5)(b). BCMS argued that, under the statute, Aet-na and Humana were required to pay the amount billed or the charge master rates. After a bench trial, the trial court entered its final judgment and made the following relevant findings:

2. As a matter of law, the Court finds that there is no ambiguity in the language used by the legislature in Section 641.513(5), Florida Statutes. This Court further finds that the amount of reimbursement under Section 641.513(5) is a question of fact.
4. The Court finds that in Section 641.513(5), Florida Statutes, the Florida legislature intended subsection 641.513(5)(a) to mean that in determining the proper reimbursement under the statute the trier of fact should consider the provider’s charge, which means the amount billed by the provider.
5.... The Court finds that a trier of fact could determine from the evidence presented that the provider’s “usual and customary charge” may differ from the provider’s “charge.... ”
6. The Court finds that in determining the proper reimbursement under subsection 641.513(5)(b), the trier of fact may consider the amount billed by the provider. However, because the bill by the provider may not be reflective of the charge that is usual and customary for the service at issue, to determine the “usual and customary provider charges for similar services,” the trier of fact should consider all relevant factors, specifically including, but not limited to, the amount of payment that the provider is receiving from different sources for rendering those similar services. This would include, but not be limited to, the reimbursement to the provider for similar services pursuant to Medicaid, Medicare, contracts with insurers, contracts with other health maintenance organizations, worker’s compensation payments, private pay, charity care, indigent care, and payments received from any other payer source.
8. The Court finds that under subsection 641.513(5)(b), the determination of “usual and customary provider charges for similar services in the community” is not limited to any specific type of provider. ...

Based on those findings, the trial court ruled that:

A) The determination of what constitutes “the usual and customary provider charges for similar services in the community where the services were provided” is a question of fact to be determined from the consideration of different factors, including but not limited to amounts billed and amounts received by the provider for payment of the similar services.
B) The determination of what constitutes “the community where the services were provided” is a question of fact that is not limited by the type of provider....

On appeal, BCMS argues that the trial court erred in ruling that the term “provider” in section 641.513(5) is not limited to any specific type of provider. BCMS asserts that the term is limited only to hospitals. However, the term “provider” is specifically defined in chapter 641 to include all providers of similar services, not just hospitals. Section 641.513(5) is contained in part III of chapter 641, entitled “Health Care Services.” Section 641.47 contains the definitions for terms used in Part III. Section 641.47(14) defines “provider” as “any physician, hospital, or other institution, organization, or person that furnishes health care services and is licensed or otherwise authorized to practice in this state.”

BCMS also argues that the trial court erred in ruling that the phrase “usual and customary charges” includes consideration of the amounts billed by providers as well as the amounts accepted as payment. BCMS asserts that the “usual and customary charges” include only the amounts billed or the charge master rates. The term “charges” is not defined in section 641.513(5). When a statute does not define a term, we rely on the dictionary to determine the definition. See Green v. State, 604 So.2d 471, 473 (Fla.1992). “Charge” is defined as a “[pjrice, cost, or expense.” Black’s Law Dictionary 248 (8th ed. 2004). In paragraph (5)(a), the term “charge” is modified by the terms “usual” and “customary.” “Usual” is defined as “[ojrdinary; customary” and “[ejxpected based on previous experience.” Id. at 1579. “Customary” is defined as “[a] record of all of the established legal and quasi-legal practices in a community.” Id,, at 413. In the context of the statute, it is clear what is called for is the fair market value of the services provided. Fair market value is the price that a willing buyer will pay and a willing seller will accept in an arm’s-length transaction. See United Stales v. Cartwright, 411 U.S. 546, 551, 93 S.Ct. 1713, 36 L.Ed.2d 528 (1973).

In determining the fair market value of the services, it is appropriate to consider the amounts billed and the amounts accepted by providers with one exception. The reimbursement rates for Medicare and Medicaid are set by government agencies and cannot be said to be “arm’s-length.” Moreover, in the emergency medical services context, hospitals do not have the option that private providers have to refuse to provide services to Medicare or Medicaid patients. Thus, it is not appropriate to consider the amounts accepted by providers for patients covered by Medicare and Medicaid.

Accordingly, the final judgment is AFFIRMED in part; REVERSED in part; and REMANDED with directions for the trial court to enter a final judgment consistent with this opinion.

WOLF and LEWIS, JJ., concur.


text:
    Melvin SYKES, Appellant, v. STATE of Florida, Melody L. Flores, Warden, Baker Correctional Institution, et al., Appellees.
    No. 1D09-0076.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2010.
    Rehearing Denied April 7, 2010.
    Melvin Sykes, pro se, Appellant.
    Bill McCollum, Attorney General, and Carolyn Mosley, Assistant General Counsel, Office of the Attorney General, Tallahassee; Kathleen Von Hoene, General Counsel, and Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

This is an appeal from a final order dismissing a petition for writ of habeas corpus. The appellant contends that he has been detained unlawfully because his commitment papers do not meet the requirements of section 944.17(5), Florida Statutes. This statute directs the circuit courts to use a uniform commitment form and it specifies the documents that must be transmitted to the Department of Corrections along with the form, but it does not create a cause of action that can be asserted by an inmate. Because the appellant has failed to allege that he is being detained unlawfully, the circuit court acted properly in dismissing his petition for writ of habeas corpus.

Affirmed.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    Jimmy Leon KIMMONS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0548.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2010.
    Rehearing Denied April 6, 2010.

      Jimmy Leon Kimmons, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


author: SCHWARTZ, Senior Judge. SHEPHERD, J.,

text:
    Amy STEPHENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1107.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Rehearing and Rehearing En Banc Denied April 21, 2010.
    Michael B. Cohen, Fort Lauderdale and Eileen I. Landy, Melbourne, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Amy Stephenson appeals from her conviction and twenty-five year sentence for aggravated manslaughter of a child, a first degree felony, following a jury verdict finding that the death of her thirteen-month old daughter was caused “by the neglect of Defendant, a caregiver.” § 782.07 Fla. Stat. (2007).

The State alleged and the jury apparently agreed that the child, who had suffered serious health problems since her premature birth and throughout her short life, died as a result of the mother’s conduct in depriving the child of food and other care. Although there was sufficient evidence to support the verdict, the case was hotly contested on numerous issues, including whether any alleged misconduct was the cause of the child’s death and the degree of the crime, if any, involved in the mother’s care of the child, particularly, whether she may have been guilty of a lesser offense such as neglect of a child by culpable negligence with great bodily harm, a second degree felony. See § 827.03(3)(b) (2007).

It is in this context that, without considering any of the other issues presented, we reverse on the ground that, although there was no appropriate objection, fundamental error occurred when the prosecutor commented on cross-examination and again during final argument on the fact that in the course of her pregnancy, the mother had contemplated aborting the decedent child. The transcript reveals the following:

Q: [Prosecutor] Let’s go back to when you were in the hospital. When you were in the hospital after delivering Jasmine, you had occasion to speak to Colleen Cullen [a social worker employed by Baptist Hospital]; isn’t that correct?
[Defense counsel]: Your honor—
A: [defendant] Not that accurate, not.
Q: What did you—
A: I had thought about it.
Q: You had thought about terminating your pregnancy; is that correct?
A: When I first learned that I was pregnant.
Q: And that’s part of the reason you had late prenatal care; isn’t that correct?
A: No.

Emphasizing this point in closing, the prosecutor stated:

Then, of course, the defendant testified. She admitted at first she was ambivalent about whether or not she wanted this baby at all.

The cases tell us — as if we needed to be told — that “abortion is one of the most inflammatory issues of our time,” Cook v. State, 232 Ga.App. 796, 503 S.E.2d 40, 42 (1998), and, more important, that one who takes or even approves of this course is very adversely regarded by many in our society. Accordingly, numerous decisions reverse convictions after trials which improperly implicate that issue, including several, as in this case, which are necessarily based on a finding of fundamental error in the absence of proper preservation. See Billett v. State, 317 Ark. 346, 877 S.W.2d 913, 915 (1994) (approving decision not to allow evidence of witness’s prior abortions and defendant’s condemnation of her to show bias, where bias had otherwise been shown and “any probative value was clearly outweighed by the danger of unfair prejudice”); Brock v. Wedincamp, 253 Ga.App. 275, 558 S.E.2d 836, 842 (2002) (observing “even if evidence of the decedent’s abortions and adoptions and sex life were somehow relevant, courts must consider whether ‘its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury).’ ” (quoting Metro. Property & Ins. Co. v. Shepherd, 166 Ga. App. 300, 304 S.E.2d 74 (1983) (citation and punctuation omitted.)); Collman v. State, 116 Nev. 687, 7 P.3d 426, 436 (2000) (agreeing that information about abortion “was a collateral matter and the minimal value of it was ‘overwhelmingly outweighed’ by the danger of unfair prejudice, confusing the issues, and misleading the jury.”); Schneider v. Tapfer, 92 Or. 520, 180 P. 107, 108 (1919) (testimony that defendant had approved of abortion held irrelevant to issues involved and “was simply evidence which tended to debase and degrade the defendant.... [Cjertainly none could have been offered which was more likely to inflame and prejudice the minds of the jury against the defendant”); see also Hudson v. State, 745 So.2d 1014, 1016 (Fla. 5th DCA 1999) (concluding “that the inflammatory evidence of two prior abortions certainly contributed to Hudson’s conviction” and thus should not have been admitted); Wilkins v. State, 607 So.2d 500, 501 (Fla. 3d DCA 1992) (calling evidence that the defendant and his wife considered having an abortion of the baby-victim “excludable ... as ... an impermissible assault on the defendant’s character and was otherwise irrelevant and inflammatory”). Cf. People v. Harris, 633 P.2d 1095, 1100 (Colo.App.1981) (concluding that admission of evidence that defendant suggested that wife’s pregnancy be aborted (in trial for son’s murder) not sufficiently prejudicial to warrant retrial, but acknowledging “it would have been better to exclude some of such evidence”).

In addition, there are many cases in which the injection of other matters which are similarly objectionable' — and sometimes significantly less so — has resulted in reversal, again often in the absence of appropriate objection below. Shootes v. State, 20 So.3d 434 (Fla. 1st DCA 2009) (concluding that defendant’s right to an impartial trial was prejudiced by large number of law enforcement personnel in courtroom on last day of trial); Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997) (observing that it is “highly improper to interject even a reference to, let alone an accusation of racism which is neither justified by the evidence nor relevant to the issues”); Gonzalez v. State, 588 So.2d 314, 315 (Fla. 3d DCA 1991) (finding fundamental error, in part, based on reference to defendant as a “sexual pervert”); see also Gluck v. State, 62 So.2d 71, 73 (Fla.1952) (observing “[n]either [defendant’s] religion, character, alleged prior offense, nor occupation were proper issues in the case ... [and that prosecutor’s comments] were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury”); Cordoba v. Rodriguez, 939 So.2d 319, 321-22 (Fla. 4th DCA 2006) (deeming fundamental error the admission of a physician’s statement that an article (an outside source) that stated that “99 percent of automobile accidents result in lawsuits” was the basis for his conclusion that plaintiffs had not sustained permanent injuries, and observing “ ‘[fundamental error,’ for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury.”); Thornton v. State, 852 So.2d 911, 912 (Fla. 3d DCA 2003) (prosecutor’s attempted impeachment asking whether defendant said he had to “[b]urn a n-r” improperly referred to unrelated offenses and implied existence of inadmissible damaging facts); MCI Exp., Inc. v. Ford Motor Co., 832 So.2d 795, 800-02 (Fla. 3d DCA 2002) (characterizing as unfairly prejudicial, plaintiff CEO’s reference to “Goddamn Cubans,” which defendant exploited by taking phrase out of context, disparaging CEO’s character, and exacerbating the phrase’s prejudicial impact); McCallister v. State, 779 So.2d 615, 615-16 (Fla. 5th DCA 2001) (concluding that it was error to admit defendant’s statement “[t]hat n-r is dead; when I get out, he better hope I never get out,” made during transport after arrest); DeFreitas v, State, 701 So.2d 593, 601 (Fla. 4th DCA 1997) (concluding that comparison of case to O.J. Simpson case “coupled with reference to [defendant] as a stalker, possessive ex-boyfriend who disapproved of his ex-girlfriend’s friends” violated rule against inflammatory argument); Kaas v. Atlas Chemical Co., 623 So.2d 525 (Fla. 3d DCA 1993) (granting defendant’s motion for new trial where plaintiffs counsel during closing called witness a “liar”); Reynolds v. State, 580 So.2d 254, 256 (Fla. 1st DCA 1991) (concluding that despite lack of objection, “prosecutor’s racial comments, which focused on the crucial issue of consent and improperly injected the issue of race ... were so egregious and so pervasive that Reynolds was deprived of his right to a fair trial.”).

Speaking more generally,

for evidence to be admissible, it must be relevant. See § 90.402, Fla. Stat. (2002); Gore v. State, 719 So.2d 1197, 1199 (Fla.1998). However, when the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, it is inadmissible. § 90.403, Fla. Stat. (2002). “ ‘Where a trial court has weighed probative value against prejudicial impact ... an appellate court will not overturn that decision absent a clear abuse of discretion.’ ” Sims v. Brown, 574 So.2d 131, 133 (Fla.1991) (quoting Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA 1985)).

Jomolla v. State, 990 So.2d 1234, 1238 (Fla. 3d DCA 2008).

Here, the evidence at issue failed in both regards. It was not only not relevant, but any conceivable relevance was substantially outweighed by the danger of unfair prejudice to the defendant. At the trial, Stephenson’s attorneys portrayed her as an inexperienced young woman who was let down by the system in caring for her premature and unhealthy baby. Counsel maintained that despite the mother’s good efforts, the baby had serious and continuing health problems from the time of her birth. The state’s position was that the baby died of malnutrition, the result of the mother’s neglect. There was evidence both of the child’s fragile condition, and the mother’s having missed doctor’s appointments and the like.

That the existence, if any, the nature and the extent of the mother’s culpability presented close questions and the determinative nature of the jury’s perception of this mother in resolving those questions made the abortion issue all the more deleterious to the mother’s chance at a fair trial. See Bryant v. State, 787 So.2d 904, 906 (Fla. 2d DCA 2001) (reversing where State was improperly allowed to offer collateral offense evidence of pornographic images and observing “[t]his was a close case with credibility being a primary issue”); DeFreitas, 701 So.2d at 599 (concluding that prosecutorial misconduct, “deprived the defendant of a fair trial in this otherwise close case” and observing that “said conduct may very well have tipped the scales in favor of the State.”); see also Fike v. State, 4 So.3d 734, 739 (Fla. 5th DCA 2009) (finding fundamental error, observing “as this case turned solely on M.S.F.’s credibility. There was no physical evidence to corroborate her version of events, nor was there any confession or admission. This was a swearing match between Fike and M.S.F.”); Davis v. State, 718 So.2d 874, 877 (Fla. 5th DCA 1998) (reversing conviction for exploitation of an elderly person, holding that marginal value of victim interview to show incompetency was outweighed by danger of unfair prejudice and concluding “[sjhowing [the evidence at issue] lobbed the proverbial skunk into the jury box, and deprived the defendant of a fair trial.”).

The state cites Walker v. State, 707 So.2d 300 (Fla.1997). In that case, however, Walker had told the mother-to-be victim that he was willing to pay for an abortion and that “if she insisted to mess up his life or ruin his life, she knew he could make her life miserable.” Id. at 309. The court concluded that Walker’s statements were a “significant piece of evidence ... that Walker had a motive to murder the victims [the mother and child].” Id. at 310. Thus, the court reasoned, the balancing test required by section 90.403, Florida Statutes, was deemed properly to result in admission of Walker’s statements.

In this case, in sharp contrast, not only is there no permissible relevance to the mother’s consideration of abortion to the legal issues at hand, but its only arguable relevance makes its admission all the more inappropriate: it is apparently the thought that a person who considers abortion is more likely to have killed the child not aborted. This makes the familiar issue of the admission of prior convictions, which is precluded because the jury may (probably correctly) conclude that one who has been convicted before is guilty now, pale into insignificance. Simply put, the evidence that Stephenson, considered aborting her pregnancy did not tend to “prove or disprove a material fact,” § 90.401, Fla. Stat. (2007); it tended to prove only a very harmful immaterial one.

In accordance with these authorities, we cannot but conclude that the references to this issue require a new trial. See Pait v. State, 112 So.2d 380, 384 (Fla.1959) (“[T]here are situations where the comments of the prosecutor so deeply implant seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction.”); Rahmings v. State, 425 So.2d 1217, 1217 (Fla. 2nd DCA 1983) (“highly prejudicial and inflammatory remarks require reversal unless the appellate court can determine from the record that the improper statements did not prejudice the defendant”); Chavez v. State, 215 So.2d 750, 750 (Fla. 2nd DCA 1968) (“unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the judgment must be reversed” (quoting Pait, 112 So.2d at 385)).

The judgment and sentence are reversed and the cause remanded for a new trial.

Reversed.

SHEPHERD, J.,

(concurring).

I concur in the decision of the majority in this case. I write to underscore the apparent fact, evident from the quoted testimony, that the defendant in this case considered having an abortion long before she knew the fetus was malformed and the baby likely would be born with serious medical problems. New trials should not be lightly granted. See Warner v. Coding, 91 Fla. 260, 107 So. 406 (1926). However, in this ease,' where the prosecutor exacerbated the prejudicial testimony in final argument, probably unnecessarily given the quantity of incriminating evidence in the record, I believe the error was compounded to such a degree it was not remediable through a curative instruction, and thus reversibly impaired the dispassionate consideration of evidence by the jury. See Hernandez v. Feliciano, 890 So.2d 401 (Fla. 5th DCA 2004); DeFreitas v. State, 701 So.2d 593 (Fla. 4th DCA 1997); Anderson v. Watson, 559 So.2d 654 (Fla. 2d DCA 1990).

The defense and the majority cite to a wide-ranging list of cases in which evidence of abortion or thoughts of abortion was found to outweigh any probative value with its prejudicial effects. In light of the State’s theory of the case here, as well as their ultimate concession during oral argument as to the irrelevance of the evidence to the issues at hand, I would agree that this case falls among that grouping. This is not to say that any and all mention of abortion or its contemplation would serve to vitiate my confidence in any jury verdict of conviction following the use of this evidence. Should the State manage to meet its burden to show the probative worthiness of its evidence in this regard, nothing in this opinion should serve to declare such a showing improper as a matter of law. See State v. Williams, 992 So.2d 330 (Fla. 3d DCA 2008).

With this caveat, I concur in the decision of the majority.

      . The defendant was twenty five years of age and had no previous record.

      . At birth, on August 18, 2005, the premature infant weighed one pound, three ounces, and according to the testifying physicians suffered from a multitude of medical problems, including retinopathy of prematurity, bronchopul-monary dysplasia of the lungs, intraventricu-lar bleed, or bleeding in the brain, and a heart problem called patent ductus arteriosus, for which she underwent successful surgery. The baby remained in the hospital for the first six months of her life, and required continued special care from the time she was able to go home until her death. A February 7, 2006, doctor’s visit recorded the baby's weight at eight pounds twelve ounces; however her weight at the time of her death, September 8, 2006, was six pounds, nine ounces.

      . Two competing experts testified. For the State, the medical examiner in Monroe County testified that the baby was devoid of fat cells, and that while she had increased in length, she had decreased in weight, signifying malnutrition which had not happened suddenly and in turn, led to his conclusion that the baby's death was the result of chronic malnutrition from neglect. The mother’s expert, a former director of the pediatrics critical intensive care unit at Jackson Memorial Hospital, testified that he believed that, as the consequence of the baby’s numerous medical problems, some combination of vomiting, obstruction of her airway, a seizure, hypoxia, low oxygen, and then respiratory arrest had occurred, ultimately leading to cardiac arrest. Therefore, he did not believe the baby starved to death, but rather was malnourished in a medical sense and then liad a terminal event.

      .The most substantial of these is the claim that a change of venue should have been granted based on a Key West Citizen article that appeared on the day of the trial, which was called "Mother Stands Trial in Starving Baby's Death,” and which contained a lengthy, mostly inaccurate attack upon the appellant. Although the issue was and is a close one, in view of the trial judge's careful handling of the issue, we doubt that an abuse of discretion has been demonstrated. In any event, it is unnecessary to directly decide the point because the circumstances will certainly not reoccur before the new trial we now order.


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    LIBERTY SURPLUS INSURANCE CORPORATION, INC., a foreign corporation, Appellant, v. FIRST INDEMNITY INSURANCE SERVICES, INC., a foreign corporation, Appellee.
    No. 4D08-2671.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Rehearing Denied April 29, 2010.

      Maureen G. Pearcy, Ronald L. Kammer, and Tracy L. Kramer of Hinshaw & Culbertson LLP, for appellant.
    Robert C. Weill of McIntosh, Sawran, Peltz <& Cartaya, P.A., Fort Lauderdale, and David Henry of Swartz Campbell, LLC, Orlando, for appellee.
   WARNER, J.

The issue presented in this case is whether an insurance broker can be liable to an insurance company for negligent or intentional misrepresentations of fact having a material bearing on the risks assumed by the insurance company. The trial court dismissed the insurance company’s cause of action against a broker based upon the general rule that the broker is the agent of the insured not the insurer. We reverse, concluding that an insurance broker can be liable to an insurance company which suffers loss as a result of the broker’s own fraud or negligence in providing information in the application material to the issuance of the policy.

This case arises out of the settlement of a legal malpractice action. The complaint alleges that in 2003 the law firm of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, submitted an application for professional liability insurance to agent Kurt Stephany who forwarded the application to Appellee, First Indemnity Insurance Services, Inc., an insurance broker. Brinkley and/or Stephany pi-ovided to First Indemnity fourteen claim supplements outlining all professional liability claims, disciplinary proceedings, or suits involving the firm and its members within the last five years. In an attempt to secure insurance for Brinkley after the application had been rejected by several insurance companies, First Indemnity submitted the application to appellant Liberty, but it included only three of the claim supplements. The failure to supply Liberty with all of the claim supplements occurred without either Brinkley’s or Ste-phany’s knowledge. Based on the incomplete information provided, Liberty entered into an insurance contract with Brinkley effective March 2003 to March 2004.

In February 2004, First Indemnity submitted a renewal application disclosing only those claims previously disclosed in the original application. Based on the incomplete information, Liberty renewed the contract effective March 2004 to March 2005.

In January 2005, claimant Scheck filed an amended class action lawsuit against Brinkley and one of its lawyers seeking damages in excess of $500 million. Shortly thereafter, the policy came up for renewal, and First Indemnity for the first time disclosed to Liberty seven claims or suits initiated within the five-year period prior to the original insurance contract. Subsequently, Liberty learned of additional prior claims that were never disclosed by First Indemnity.

Because of this disclosure, Liberty demanded that First Indemnity participate in settlement discussions of the class action suit, but First Indemnity refused. In May 2005, pursuant to a demand from Brinkley and to mitigate its damages, Liberty settled the class action for $3 million. Brinkley also provided information to Liberty showing that it had submitted all the proper claims information to First Indemnity even though First Indemnity did not submit them to Liberty.

Liberty initiated a lawsuit against Brinkley and also against First Indemnity. It settled with Brinkley and pursued this suit against First Indemnity. In its suit against First Indemnity, after reciting the foregoing facts, it alleged that First Indemnity negligently or intentionally withheld the claim supplements and that Liberty would not have issued the original policy or renewed the policy had the additional claim supplements been provided. The third amended complaint sought to recover the money paid in settlement of the lawsuit under theories of negligent misrepresentation, common law indemnity, intentional misrepresentation, nondisclosure, fraudulent concealment, fraud, and negligence.

First Indemnity moved to dismiss the third amended complaint, raising a myriad of arguments. First Indemnity maintained that in order to avoid the loss, Liberty had the right and duty to seek rescission of the policy. It asserted that Florida does not recognize a cause of action in tort by an insurance carrier against an agent of the insured seeking to recover settlement monies paid by the carrier under a liability policy when the carrier had knowledge of the alleged misrepresentations on the application and where the carrier abandoned its right to seek rescission of the policy issued to the insured. According to First Indemnity, any misrepresentations or altering of the application by First Indemnity were imputed to the insured and no legal relationship existed between Liberty and First Indemnity. Moreover, all of the claims were barred by the voluntary payment doctrine, as Liberty paid benefits under the policy with knowledge of grounds supporting rescission.

Upon consideration of First Indemnity’s motion, the trial court dismissed the third amended complaint with prejudice. The court stated, “The insurer bears the risk of a broker’s error because of the general rule that an insurance broker is the agent of the insured rather than of the insurer. Empire Fire & Marine Ins. Co. v. Koven, 402 So.2d 1352 (Fla. 4th DCA 1981).” The court agreed with the argument that Florida precedent would not allow Liberty to pursue a claim against the insurance broker. This appeal follows.

Review of an order granting a motion to dismiss with prejudice is de novo. Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So.2d 654, 658 (Fla. 4th DCA 2008). As we have previously explained:

In assessing the adequacy of the pleading of a claim, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader. In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and exhibits attached thereto.

Id. (internal quotations and citations omitted).

Although Liberty’s complaint contains seven allegedly different counts, only three basic theories are advanced. First, that First Indemnity intentionally failed to disclose all the claims supplements; second, that it negligently failed to disclose all of the claims supplements; and third, that Liberty is entitled to common law indemnity from First Indemnity.

The trial court granted the motion to dismiss, finding no duty from the insurance agent to the insurer, because the insurance agent is generally the agent of the insured, relying on Koven. Koven, however, is inapplicable. There, the insurance company filed a declaratory judgment action to determine whether the insured had uninsured motorist coverage under the policy. Koven’s insurance broker signed the application rejecting insurance coverage. Koven testified that the broker was not authorized to do so. Our court held that Koven was bound by the broker’s rejection based upon the general rule that the insurance broker is considered the agent of the insured not the insurer. Ko-ven did not involve tortious conduct by the broker or the insured. Thus, it does not address whether, as here, an insurer can maintain an action in tort against a broker who failed to transmit the insured’s complete claim history.

An agent is individually liable to a third person for the agent’s tortious conduct. See Sussman v. First Fin. Title Co. of Florida, 793 So.2d 1066 (Fla. 4th DCA 2001). There, we explained:

[I]t is almost universally held that the existence of a principal and agent relationship is immaterial, the tort liability of the agent not being based upon the existence of any contractual relationship between the agent and a principal but upon the common law obligation that every person must so reasonably act or use that which he or she controls as not to harm another. See 3 Am.Jur.2d, Agency § 309 (1986); Restatement Second of Agency § 343.

Id. at 1069. An agent can also be independently liable for its own fraudulent misrepresentations. See Lyle v. Nat’l Sav. Life Ins. Co., 558 So.2d 1047, 1048 (Fla. 1st DCA 1990). Therefore, the fact that First Indemnity, as a broker, was the agent of the insured, does not preclude its liability for negligent or fraudulent conduct. The court erred in dismissing the complaint on this ground.

In its complaint for negligence, Liberty sought to state a cause of action based upon section 552 of the Restatement (Second) of Torts. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), our supreme court adopted section 552 which establishes a principle for Information Negligently Supplied for the Guidance of Others. That section provides:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Id. at 337.

First Indemnity maintains that section 552 has never been applied to insurance brokers in Florida. Instead, it applies to professionals such as accountants, title agents, or other types of professionals who supply information to business transactions. However, in Gilchrist the court applied section 552 to the seller of real estate who negligently supplied the purchaser with erroneous zoning information on the property. In doing so, it reiterated what it said in Johnson v. Davis, 480 So.2d 625, 628 (Fla.1985), “[t]he law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.”

Section 552 has been applied to insurance brokers by other courts. In Burlington Insurance Co. v. Okie Dokie, Inc., 329 F.Supp.2d 45, 46 (D.D.C.2004), an insurer sued an insurance broker for negligent misrepresentation in an insurance application. In denying the broker’s motion to dismiss for failure to state a cause of action, the court applied section 552 and District of Columbia law, holding that the broker, as the supplier of information, owed a duty of care to the insurer as the intended recipient of the information. The broker would be liable where the insurer reasonably relied on the broker’s misrepresentations. Similarly, in St. Paul Surplus Lines Insurance Co. v. Feingold & Feingold Insurance Agency, Inc., 427 Mass. 372, 693 N.E.2d 669 (1998), the court held that an insurance broker could be liable to the insurer for negligent misrepresentations on an insurance application prepared by the broker for the insured, relying on section 552. See also Midland Ins. Co. v. Market Serv., 548 F.2d 603 (5th Cir.1977) (applying Texas law and holding that substantial evidence supported the jury’s finding that the insurance broker misrepresented facts to the insurer concerning the limits of the insured’s primary liability coverage, that such misrepresentations were material, and that the insurer’s reliance on the misrepresentations directly resulted in the loss to the insurer).

While not citing section 552, the court in Century Surety Co. v. Crosby Insurance, Inc., 124 Cal.App.4th 116, 21 Cal.Rptr.3d 115 (2004), used the same principle to hold an insurance broker liable to an insurer for misrepresentations on an application for insurance prepared by the broker. The California appeals court rejected the broker’s assertion that it owed no duty of care to the insurer and, therefore, as a matter of law could not be liable to an insurer for negligent misrepresentation. Considering factors articulated by the California Supreme Court, the court found that public policy supported imposing a duty of reasonable care in preparing an application for insurance. Specifically, the court found that: (1) the transaction was intended to benefit the insurer as well as the insured, (2) harm from misrepresentations in an insurance application are foreseeable, (3) the insurer incurred costs in defending an insurance claim on a policy that would not have issued but for misrepresentations, (4) the misrepresentations were material to the decision to issue the policy, and (5) the factor of moral blame supported a finding of duty.

In line with the foregoing, section 552 applies to the facts of this case. Liberty alleged that First Indemnity, an insurance broker, engaging in a transaction in which it had a pecuniary interest, i.e. the payment of a commission, submitted an application for insurance on behalf of Brinkley. Although it knew of fourteen claims against Brinkley, it submitted the application with only three claims supplements, and it failed to disclose the others, without the knowledge of Brinkley, and intending that Liberty rely on the application to issue the policy. Thus, First Indemnity, not Brinkley, was the supplier of the false information upon which Liberty justifiably relied and then suffered pecuniary loss through payment of a claim covered by the policy.

We reject Fust Indemnity’s contention that because Liberty alleges only a nondisclosure of information, it cannot be liable. Although Liberty alleges that First Indemnity failed to disclose the additional claim supplements, that failure is tantamount to supplying false information, because the submission of only three claims when there were actually fourteen is a misrepresentation of Brinkley’s claim history. See, e.g., Restatement (Second) of Torts § 551(1) (“One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.”). This conclusion is consistent with our supreme court’s pronouncement in Johnson v. Davis, 480 So.2d 625, 628 (Fla.1985), in which the court explained:

In theory, the difference between misfeasance and nonfeasance, action and inaction is quite simple and obvious; however, in practice it is not always easy to draw the line and determine whether conduct is active or passive. That is, where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative representations is tenuous. Both proceed from the same motives and are attended with the same consequences; both are violative of the principles of fair dealing and good faith; both are calculated to produce the same result; and, in fact, both essentially have the same effect.

By our application of section 552 to the facts of this case, we hold that an insurance broker is liable for its own negligence in supplying false information on which an insurer justifiably relies in issuing a policy and suffers pecuniary loss. The complaint stated a cause of action for negligent misrepresentation.

With respect to those counts alleging fraud, Lyle holds that an agent is liable for its own intentional fraudulent acts. Accord Feingold, 693 N.E.2d at 672. Liberty stated a cause of action for fraudulent misrepresentation. See E. Caribbean Dev. & Inv. Corp. v. K-K Auto Sen., Inc., 435 So.2d 364 (Fla. 4th DCA 1983). We agree, however, that the complaint did not state causes of action for common law indemnity because Liberty was obligated to pay based upon a contractual liability not a vicarious liability for the acts of First Indemnity. See Seitlin & Co. v. Phoenix Ins. Co., 650 So.2d 624, 627 (Fla. 3d DCA 1994).

First Indemnity raises a multitude of other arguments as to why we should affirm the trial court, including the contention that Liberty should not have relied on the application and that Liberty’s settlement of the underlying action constitutes a voluntary payment precluding it from making this claim. These are matters that are not properly addressed on a motion to dismiss and depend upon the facts and circumstances of the case. See, e.g., Pac. Mut. Life Ins. Co. of Cal. v. McCaskill, 126 Fla. 82, 170 So. 579, 583 (1936).

As the complaint stated a cause of action for negligence and for fraudulent misrepresentations, we reverse and remand for further proceedings.

FARMER and LEVINE, JJ., concur.


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    Lasedrick ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1408.
    District Court of Appeal of Florida, First District.
    March 3, 2010.
    Rehearing Denied April 6, 2010.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant claims that the trial court committed fundamental error by instructing the jury that it could convict appellant of lewd or lascivious battery by finding sexual penetration or union when the information alleged only sexual penetration. In Eaton v. State, 908 So.2d 1164 (Fla. 1st DCA 2005), we held that the trial court committed fundamental error by instructing the jury on the uncharged alternative theory of sexual union because it was impossible to determine from the jury’s general verdict whether the defendant was convicted based on the charged theory of sexual penetration or the uncharged theory of sexual union. However, after carefully reviewing the evidence and arguments presented at trial, we conclude that fundamental error did not occur in this case because the jury did not convict appellant based on the uncharged theory of sexual union. See State v. Weaver, 957 So.2d 586, 589 (Fla.2007) (holding that the trial court does not commit fundamental error by instructing the jury on an uncharged element on which the state neither relied nor offered any evidence). Accord Jomolla v. State, 990 So.2d 1234, 1238 (Fla. 3d DCA 2008); Beasley v. State, 971 So.2d 228, 230 (Fla. 4th DCA 2008); Abbott v. State, 958 So.2d 1140, 1142 (Fla. 4th DCA 2007). We also affirm, without discussion, the trial court’s denial of appellant’s motion to suppress.

AFFIRMED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


author: THOMAS, J.

text:
    FLORIDA POWER & LIGHT COMPANY and FPL Employee Intervenor, Petitioners, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent. Progress Energy Florida, Inc., Petitioner, and Martin Drago, Mark Rigsby, Gary Roebuck, and James Terry, Jr., Petitioners-Employees-Intervenors, v. Florida Public Service Commission, Respondent, and Office of The Public Counsel, Office of the Attorney General, Florida Industrial Power Users Group, White Springs Agricultural Chemicals, Inc., Florida Retail Federation, Federal Executive Agencies, and Association for Fairness in Rate Making, Respondents-Intervenors.
    Nos. 1D09-4779, 1D09-5145.
    District Court of Appeal of Florida, First District.
    March 3, 2010.
    Rehearing Denied April 6, 2010.

      Arthur J. England, Jr., of Greenberg Traurig, P.A., Miami; Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Petitioners Florida Power & Light Company and FPL Employee Intervenor.
    R. Alexander Glenn and John T. Burnett of Progress Energy Service Company, LLC, St. Petersburg; Christine Davis Graves of Carlton Fields, P.A., Tallahassee; Robert E. Biasotti, James Michael Walls and Dianne M. Triplett of Carlton Fields, P.A., St. Petersburg, for Petitioners Progress Energy Florida, Inc., and Petitioners-Employees-Intervenors Martin Drago, Mark Rigsby, Gary Roebuck, and James Terry, Jr.
    Rosanne Gervasi, Office of General Counsel, Florida Public Service Commission, Tallahassee, for Respondent Florida Public Service Commission.
   THOMAS, J.

Progress Energy Florida, Inc. (Progress Energy) and several of its employees petition for writ of certiorari to quash an order entered by the Florida Public Service Commission (the Commission). The Commission’s order denied Petitioners’ request to treat certain employee compensation information as confidential and exempt from public disclosure under Florida’s Public Records Law. Florida Power & Light Company (Florida Power) also petitions for a writ of certiorari to quash a similar order entered by the Commission regarding its employees’ compensation information. Florida Power’s employees petition for a writ of mandamus to prevent the disclosure of their compensation information, arguing such disclosure would violate their right to privacy guaranteed by Article I, section 23 of the Florida Constitution.

We consolidated these petitions for disposition because the facts, issues, and arguments are substantially the same. For the reasons discussed below, we reverse the Commission’s orders and order the Commission to keep the compensation information at issue confidential, in accordance with the procedures in section 366.093, Florida Statutes (2008).

Background

In March 2009, Progress Energy and Florida Power applied to the Commission for increases in the base rates they charge consumers. The Commission has jurisdiction over the regulation of electric utilities with respect to rates and service, and is charged with considering and investigating the legitimate costs associated with a requested utility rate increase. §§ 366.04(1)-(2), 366.041(1), & 366.06, Fla. Stat. (2008). Progress Energy and Florida Power included employee compensation as costs associated with the increased rate change. Information relating to the rates or costs of services is relevant in a ratemaking proceeding for discovery purposes. § 366.093(2), Fla. Stat. Discovery in a ratemaking proceeding is governed by Florida Rule of Civil Procedure 1.280. See id.

In response to Progress Energy’s and Florida Power’s requests for increased rates, the Commission’s staff issued a series of interrogatories requesting the following information for all Progress Energy and Florida Power employees who earned $165,000 or more per year: name and title; base salary; overtime; bonuses; stock options; option awards; non-equity incentive plan compensation; all other compensation; total compensation; amount of total compensation allocated to the utility; and amount of total compensation included in adjusted jurisdictional other operation and management expenses.

Progress Energy and Florida Power answered the interrogatories and provided some of the information, but filed contemporaneous motions seeking to protect the confidentiality of the compensation information under section 366.093(3), Florida Statutes. The utility companies argued the information should be kept confidential because it was sensitive competitive business information, and disclosure of the information to the public would invade their employees’ right to privacy. Section 366.093, Florida Statutes, allows documents produced in a ratemaking proceeding to be exempt from public disclosure if the Commission determines the information is proprietary confidential business information. The Commission’s staff responded with motions to compel all employee compensation information included in the interrogatories.

Several of Progress Energy’s and Florida Power’s employees moved to intervene in the proceeding on the basis that their constitutional privacy rights were at risk. The Commission granted the motion.

The Commission held a full hearing to consider the staffs motions to compel and the utility companies’ requests for confidentiality. At the hearing, Progress Energy and Florida Power argued together that the compensation information previously provided was adequate to determinate the reasonableness of their rate requests. The gist of the companies’ argument was that the salary information needed to remain confidential to prevent the loss of high-level employees and internal strife between employees.

After the hearing, the Commission entered two interlocutory orders in each ratemaking case. The first order compelled production of all compensation information. The Commission determined the information was necessary to complete its ratemaking function. In addition, the Commission ruled it lacked jurisdiction to consider the intervenors’ constitutional argument. The second order denied the confidentiality requests. The Commission determined the utility companies’ compensation information could not be confidential because section 366.093(3)(f), Florida Statutes, expressly excluded such information from being considered proprietary confidential business information.

Following entry of the orders, Progress Energy and Florida Power filed requests with the Commission that the information be kept confidential until judicial review is complete. See Fla. Admin. Code R. 25-22.006(10).

Analysis

We first address our jurisdiction to consider the merits of Petitioners’ issues. Next, we turn to the correct statutory interpretation and application of section 366.093, Florida Statutes. Finally, we briefly discuss the constitutional argument raised by Petitioners.

A. Jurisdiction and Scope of Review

We have jurisdiction even though these cases arise out of electric utility rate-making proceedings at the Commission. The specific “action” at issue is the Commission’s determination that certain information provided by the utilities during discovery is not confidential under section 366.093(3), not the Commission’s ultimate determination of the utilities’ rates or services. See § 350.128(1), Fla. Stat. (2008); Fla. Soc’y of Newspaper Editors, Inc. v. Fla. Pub. Serv. Comm’n, 543 So.2d 1262, 1264 n. 2 (Fla. 1st DCA 1989); see also England, et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L.Rev. 147, 175 (1980) (explaining one purpose of the 1980 amendments to Article V, section 3(b)(2) of the Florida Constitution was to limit scope of the supreme court’s jurisdiction to review commission action).

We treat the petitions for writ of certiorari and mandamus as appeals from non-final agency action. See § 120.68(1), Fla. Stat. (2008); Fla. R.App. P. 9.100, 9.190; see also Fla. Soc’y of Newspaper Editors, 543 So.2d at 1267. However, our scope of review on appeal over a non-final order is analogous to and no broader than review by common law certiorari. See State, Dep’t of Fin. Servs. v. Fugett, 946 So.2d 80, 81 (Fla. 1st DCA 2006); Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995). Thus, Petitioners must demonstrate that the orders on review depart from the essential requirements of the law and cause material injury that cannot be remedied on appeal. See Charlotte County, 653 So.2d at 1084.

Petitioners argue that the material harm caused by the orders is irreparable and cannot be remedied on appeal of the final orders in the ratemaking proceedings because by that point the confidential information will have already been made public. See Cordis Corp. v. O’Shea, 988 So.2d 1163, 1165 (Fla. 4th DCA 2008) (quashing discovery order requiring production of confidential information and recognizing the irreparable “cat out of the bag” harm that results from release of such information). The Commission argues Progress Energy and Florida Power cannot show irreparable harm because the utility companies will be able to appeal the interlocutory orders after a final order is issued. Florida Administrative Code Rule 25-22.006(10) provides, however, that

[w]hen the Commission denies a request for confidential classification, the material will be kept confidential until the time for filing an appeal has expired. The utility ... may request continued confidential treatment until judicial review is complete.... The material will thereafter receive confidential treatment through completion of judicial review.

The rule clearly contemplates an appeal directly from the non-final order and does not mention review after final agency action. Section 120.68(1), Florida Statutes, requires an appeal from non-final agency action to be filed within 30 days. The Commission could have released the utilities’ compensation information after 30 days, had the utilities not filed these petitions and requested continued confidentiality of the information pending our review. Thus, we reject the Commission’s argument that irreparable harm could not result if review of the orders were denied.

B. Statutory Construction

Although the Legislature has given the Commission broad authority to inspect a utility company’s records in ratemaking proceedings, any information which is shown to be proprietary confidential business information “shall be kept confidential and shall be exempt” from section 119.07(1), Florida Statutes. § 366.093(1), Fla. Stat. What constitutes proprietary confidential business information is detailed in section 366.093(3), Florida Statutes:

(3) Proprietary confidential business information means information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is treated by the person or company as private in that the disclosure of the information would cause harm to the ratepayers or the person’s or company’s business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or private agreement that provides that the information will not be released to the public. Proprietary confidential business information includes, but is not limited to:
(a) Trade secrets.
(b) Internal auditing controls and reports of internal auditors.
(c) Security measures, systems, or procedures.
(d) Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the public utility or its affiliates to contract for goods or services on favorable terms.
(e) Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of the information.
(f) Employee personnel information unrelated to compensation, duties, qualifications, or responsibilities.

(Emphasis added.)

The Commission denied Progress Energy’s and Florida Power’s confidentiality requests after construing sub-subsection (f) to expressly exclude compensation information from the definition of proprietary confidential business information. The Commission found the statute was unambiguous, but went on to find that even if the statute were ambiguous, the specific provisions of sub-subsection (f) prevailed over the general definition in subsection (3). As explained below, the Commission’s interpretation of section 366.093(3)(f) is clearly erroneous; therefore, we must depart from the Commission’s construction. See PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988) (explaining the Commission’s construction of statute it is charged with enforcing is entitled to great deference and the court will not depart from such construction unless clearly erroneous).

Legislative intent is the polestar that guides a court’s statutory construction analysis. See Knowles v. Beverly Enters.Fla., Inc., 898 So.2d 1, 5 (Fla.2004). To determine intent, we first look to the statute’s plain meaning. Id. (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996)). If the statute is clear and unambiguous, there is no need to resort to the rules of statutory construction, and the statute should be given its plain meaning. Id. (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)); cf. Murray v. Manner Health, 994 So.2d 1051, 1061 (Fla.2008) (explaining if statute is unclear or ambiguous, the court must resort to traditional rules of statutory construction to determine legislative intent).

We agree thei'e is some indication that employee compensation information may not be confidential proprietary business information, as evidenced by the Legislature’s use of the phrase “unrelated to compensation” in sub-subsection (f). Our inquiry does not end by reading this subsection in isolation. Subsection (3) clearly and unambiguously indicates that confidential proprietary business information “includes, but is not limited to” the types of information listed in sub-subsections (a) through (f). The phrase “includes, but is not limited to” means information not described in sub-subsections (a) through (f) could be confidential business information. See State v. Hobbs, 974 So.2d 1119, 1121 (Fla. 5th DCA 2008), aff'd sub nom., 999 So.2d 1025 (Fla.2008). In Hobbs, the court interpreted the phrase “include, but are not limited to.” The court’s interpretation is on point and instructive.

The Fifth District in Hobbs construed section 92.565, Florida Statutes, which eliminates the corpus delicti precondition for the introduction of a confession in sexual abuse cases when the State is otherwise unable to prove the crime. See Hobbs, 974 So.2d at 1120. Section 92.565 provides that factors relevant in determining whether the State is unable to show the existence of each element of a crime “include, but are not limited to” the fact that, when the crime was committed, the victim was “(a) Physically helpless, mentally incapacitated, or mentally defective ...; (b) Physically incapacitated due to age, infirmity, or any other cause; or (c) Less than 12 years of age.” § 92.565(2), Fla. Stat. The Hobbs court determined the phrase “include, but are not limited to” was plain, unambiguous, and thus not subject to the maxims of statutory construction. See Hobbs, 974 So.2d at 1121-22 (citing Kelly v. State, 946 So.2d 591, 593-98 (Fla. 1st DCA 2006) (Thomas J., dissenting)). The court held that the list enumerated in section 92.565(2) was a list of factors a trial court could consider, but that the list was not exhaustive. See id. Likewise, we hold that the categories listed in section 366.093(3)(a)-(f), Florida Statutes, are not exhaustive, as evidenced by the Legislature’s use of the phrase “includes, but is not limited to.” The Commission may consider whether information not expressly listed in sub-subseetions (a)~ (f) should be classified as confidential.

In addition, any ambiguity created by the implication of “unrelated to” is remedied by reading sub-subsection (f) in pari materia with the rest of subsection (3). See generally Borden v. E.-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) (rejecting interpretation of statutory subsection as a freestanding provision because all parts of a statute must be read together to achieve consistent whole). Sub-subsection (f) cannot be read in a vacuum; it must be considered in conjunction with the rest of subsection (3). See Dep’t of Highway Safety & Motor Vehicles v. Rife, 950 So.2d 1288, 1289-90 (Fla. 5th DCA 2007) (holding trial court erred by applying specific definition where more general definition within the same subsection applied).

In sum, the Commission clearly erred by refusing to consider whether the compensation information fell within any of the other listed examples of proprietary confidential business information in subsections (3)(a) through (3)(e), and by failing to consider whether the information otherwise fell within the definition of proprietary confidential business information in subsection (3).

C. Application

Progress Energy and Florida Power put forth uncontradicted evidence at the hearing that they complied with the general requirements in section 366.093(3) and that their compensation information warranted confidential classification under subsection (3)(e) because disclosing the information would impair their competitive interests. According to the companies’ affidavits and testimony, such information is kept strictly confidential to prevent other utility companies from stealing their employees. The utility companies were also concerned about morale and infighting among employees who have the same position but varying wages. The utility companies argued that higher wages would ultimately result in higher rates for consumers. Thus, the Commission should have granted the motions for confidentiality under section 366.093(3)(e), Florida Statutes.

D. Right to Privacy

We decline to address arguments made by Petitioners under Article I, section 23 of the Florida Constitution. Petitioners’ only argument under this claim is that disclosure of their compensation information to the public under Florida’s Public Records Law would violate their constitutional right to privacy. By reversing the Commission’s orders, and by ordering the Commission to keep Petitioners’ compensation information confidential, the Petitioners’ constitutional arguments have been rendered moot. See State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (adhering to the settled principle that courts should endeavor to implement legislative intent of statutes and avoid constitutional issues).

Conclusion

We reverse the Commission’s orders denying Petitioners’ motions to protect their employee compensation information, and order the Commission to keep the records confidential until such time as they are no longer needed, in accordance with section 366.093, Florida Statutes.

LEWIS and WETHERELL, JJ., concur.

      . At oral argument, the parties informed the court that the Commission has ruled on the merits of Progress Energy’s and Florida Power’s requests for rale increases, but lias not issued a final order.


text:
    Keenan D. COPELAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4778.
    District Court of Appeal of Florida, First District.
    March 14, 2010.
    Keenan D. Copeland, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the December 22, 2008, judgment and sentence in Leon County Circuit Court case number 2007-CF-4412-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, WEBSTER, and THOMAS, JJ., concur.