author: WOLF, J.

text:
    AURORA LOAN SERVICES LLC, Appellant, v. Yuri SENCHUK; Olga Senchuk; Any and all parties claiming by, through, under and against the herein named individual Defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouses, Heirs, Devisees, Grantees or other Claimants; Highland Glen Owner’s Association, Inc.; John G. Barry, III, and Carmen M. Barry; John Doe and Jane Doe as Tenants in Possession, Appellees.
    No. 1D09-3512.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Rehearing Denied May 28, 2010.

      Gigi Rollini of Holland & Knight LLP, Tallahassee; Daniel K. Bean and Renee J. Maxey of Holland & Knight, LLP, Jacksonville, for Appellant.
    William Nussbaum of Scott, Barker & Nussbaum, Jacksonville, for Appellees John G. Barry, III, and Carmen M. Barry.
   WOLF, J.

Aurora seeks review of the trial court’s order granting the Barrys’ motion for summary judgment in the underlying foreclosure action which concluded, as a matter of law, that the Barrys’ mortgage was first in seniority to Aurora’s mortgage. We reverse.

The Facts:

On or about May 31, 2005, Olga and Yuri Senchuk (the Senchuks) executed a mortgage in favor of Wells Fargo Bank, in the principal amount of $419,330.00, and this mortgage was recorded on June 13, 2005. On August 3, 2005, the Senchuks executed and delivered a second mortgage (Barrys’ mortgage) with a principal loan amount of $70,000, and this mortgage was recorded on August 11, 2005.

On November 16, 2006, the Senchuks executed the underlying Aurora mortgage for the amount of $507,900.00, which was used to pay off the first mortgage with the remainder being paid to the Senchuks personally. This mortgage was recorded shortly thereafter, but the record reveals the Senchuks did not use the additional proceeds to pay off the Barrys’ mortgage and that mortgage remained unsatisfied.

At some point, the Senchuks defaulted on both the Aurora mortgage and the Barrys’ mortgage and Aurora initiated a foreclosure action joining the Barrys as interested parties. The Barrys filed an answer/counterclaim to the foreclosure complaint seeking a ruling that their mortgage was superior to Aurora’s based on the Florida recording statutes. The Barrys moved for summary judgment on the counterclaim, and Aurora asserted summary judgment was inappropriate because the doctrine of equitable subrogation should be employed to place Aurora’s mortgage in the senior lien position. The trial court rejected Aurora’s argument and entered a final order of foreclosure which granted the motion for summary judgment in favor of the Barrys and placed the Barrys’ mortgage first in priority.

The Doctrine of Equitable Subrogation:

Among other issues, Aurora asserts the trial court erred in determining the doctrine of equitable subrogation did not apply to allow the Aurora mortgage, which refinanced the first mortgage, to step into the proverbial shoes of the original mortgage holder. Equitable subrogation is a remedy in equity and its application has been debated in several Florida opinions. Generally, subrogation is “[t]he substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor.” Black’s Law Dictionary 1440 (7th ed. 1999).

Equitable subrogation has been employed by courts to allow creditors refinancing a first mortgage to retain the position of senior lien holder in foreclosure actions in which an otherwise junior hen holder alleges seniority by virtue of the recording dates of the mortgages. The first Florida case considering equitable subrogation in this context was Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916).

In Boley, Daniel made a loan for the purpose of satisfying a property’s existing first mortgage without actual knowledge of an existing second mortgage on the property with Boley. Id. at 645. After stating the facts, the Boley court reasoned:

The fact that a subsequent mortgagee’s lien will occupy the same relation to the property, if one who has advanced money, secured by a mortgage on the real estate, to pay off the prior mortgage, is subrogated to the rights of the holder of such first mortgage, affords no reason why equity should permit the party so advancing the money to be subrogated to the right of the holder of the first mortgage.
When a first mortgage lien existing against real estate is paid off, the lien of a second mortgage thereon becomes at once, by operation of law, a first lien on the property; and this first lien, and the right to enforce it as such, are vested rights.
Courts of equity will not apply the doctrine of subrogation where to do so would be to deprive a party of a legal right.
Being under no duty, legal or otherwise, to pay the first mortgage debts, Daniel is not entitled to a legal subrogation to the prior right that had existed in favor of the first mortgage holder. And not having shown an agreement that the lien of the first mortgage should be kept alive for his benefit, but it appearing merely that the agreement was for ‘a first lien on the property covered by’ the last mortgage, which included other property besides that covered by the first mortgage, and that Daniel, ⅛ the belief that there were no other liens on the property, caused to be satisfied on record the first mortgage,’ there is no clear showing of a right to a conventional subrogation.

Id. at 645^6 (citations omitted). Boley appears to have rejected the doctrine of equitable subrogation in the mortgage context. However, while this case was never expressly overruled, in Forman v. First National Bank of Quincy, 76 Fla. 48, 79 So. 742 (1918), the supreme court narrowed the holding of Boley to its facts and for the first time, applied the doctrine of equitable subrogation to allow a refinancer of a first mortgage to retain the seniority of the first mortgage against a second. In Forman, the court noted:

The complainant banks cannot complain at this conclusion. It leaves them in precisely the same position, with respect to their security, that they occupied at the time they became the holders of the notes which are the basis of their claims.

Id. at 744.

Several years later, in Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 145 So. 883, 885-86 (1933), the court again applied the doctrine, stating:

In representing that there were no other incumbrances on the lands mortgaged, Godwin perpetrated a fraud on appellant. As a result of this fraud and failure to locate any adverse claimant to said lands, appellant advanced money to retire Godwin’s first mortgage on the express agreement that it (appellant) was to have a first lien on said lands to secure repayment of the sum loaned. It would be grossly inequitable under such circumstances to hold that the appellant was not entitled, as against the holder of the second mortgage, to be treated as the assignee of the first mortgage, and thus by chance or fortune raise the second mortgage to the dignity of the first, contrary to the intention of the parties.
The application of this rule works common justice to all; it prevents injury to appellant, who furnished the money to pay off the first mortgage in ignorance of the second; it gives appellant the benefit of its payment, carries out the intention of the parties; and leaves Alderman, the holder of the junior mortgage, in his original position. One of the first tests determining the application of this rule is whether or not subrogation to the place of the prior or retired lien puts the holder of the second lien in any worse position than if the prior lien had not been discharged.

Godwin suggests if the first mortgage holder made all reasonable efforts to discover any mortgages or encumbrances against the property, the doctrine of equitable subrogation should be employed to protect its security interest. However, in doing so, Godwin again reiterated the importance of determining if the second mortgage holder would be left in the same position for which the second mortgage holder had originally contracted. Id.

Since this early line of cases, equitable subrogation was again discussed in 1987 when the Third District in Eastern National Bank v. Glendale Federal Savings and Loan Association, 508 So.2d 1323, 1324-25 (Fla. 3d DCA 1987), considered a case very similar to the underlying case and stated in pertinent part:

Some courts have refused to apply the doctrine where the party seeking to invoke it is negligent, stating that to do so would be to reward negligence. Fort Dodge Bldg. & Loan Ass’n v. Scott, 86 Iowa 431, 53 N.W. 283 (1892). However, two grounds are recognized for permitting subrogation against intervening interests even where there is a negligent failure to discover a prior recorded junior lien. First, negligence which has not resulted in harm to anyone will not be invoked to permit unjust enrichment of the later lienors through their fortuitous advancement in priority by reason of mistake. See Federal Land Bank v. Joynes, 179 Va. 394, 18 S.E.2d 917 (1942); Banta v. Vreeland, 15 N.J.Eq. 103, 107 (1862). Second, the function of constructive notice is to preserve an existing advantage and not to gain a new one. Martin v. Hickenlooper, 90 Utah 150, 59 P.2d 1139 (1936); Note, Equitable Substitution of Mortgages, 26 Harv. L. Rev. 261 (1913).

However, after discussing constructive notice and its bearing on the application of the equitable subrogation doctrine, the court declined to rule on the matter, finding conventional subrogation, or subrogation contracted for between the original parties, provided the refinancing bank relief because a contractual provision existed between the debtors and the refinancing bank which stated the bank would be entitled to the rights and remedies of the first mortgage holder. Id. at 1325. '

Several years later, in Suntrust Bank v. Riverside National Bank of Florida, 792 So.2d 1222 (Fla. 4th DCA 2001), an en banc decision, the Fourth District issued an opinion on the matter of equitable sub-rogation in the mortgage context. In Sun-trust, the Fourth District applied the doctrine to preserve Suntrust’s rights after Suntrust paid for and received a title search which did not evidence the existence of a second mortgage on the property. In Suntrust, the court reasoned in pertinent part:

The only distinction between Godwin and the present case is that in Godwin, in addition to the bank negligently failing to find the second mortgage when it searched the title, the owner fraudulently misrepresented that there were no other liens. Although there was no fraud in the present case, it is clear from the opinion in Godwin that equitable subrogation will be applied to relieve negligence, where the position of the original junior lienors will be no worse than before the first mortgage was satisfied.
We emphasize, however, that equitable subrogation “is not allowed if it works any injustice to the rights of others.” Godwin, 145 So. at 885. Accordingly Suntrust will only be entitled to equitable subrogation to the extent that Riverside will be no worse off than it would have been if the original Suntrust mortgage had not been satisfied.

Id. at 1224-25, 1227.

Constructive Notice and Equitable Subrogation:

The trial court, in granting summary judgment in favor of the Barrys, provided two alternative grounds for the grant. First, relying on a Florida federal district opinion, Picker Financial Group L.L.C. v. Horizon Bank, 293 B.R. 253 (M.D.Fla.2003), the trial court determined that constructive notice barred the application of equitable subrogation. This holding was error.

In Picker, the federal court surveyed national and Florida law on the issue of whether constructive notice bars the application of equitable subrogation in similar cases and stated in pertinent part:

Under the traditional view, constructive notice of a second position lienor prevented subrogation to the first lienor by a subsequent lender who paid off the first lienor. Other courts, ... adopted the so called modern view. Under the modern view, which this Court calls the pure liberal view, constructive notice is irrelevant and subrogation is allowed unless the intervening lender suffers some prejudice.
In Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916), the Florida Supreme Court clearly stated that when a lender on constructive, but not actual, notice of a second position lien loans money to pay off a first position lien, even with an understanding that it is to have a first lien on the property, equitable subrogation is not available to it. This is a strict traditional view.

Id. at 256, 258. Picker’s assertion that Boley “clearly” stated constructive notice bars the application of equitable subrogation is erroneous; nothing in Boley considered constructive notice and the opinion does not rely on such notice to determine Daniel was not entitled to subrogation. Boley, 72 So. at 645. The court in Boley rejected the application of the doctrine because Daniel (1) was a volunteer and (2) had not contracted for the right of first position in light of his lack of actual notice of the second mortgage. Boley, 72 So. at 645. As such, the trial court should not have relied on Picker’s interpretation of Boley as a case which established the application in Florida of the traditional view of equitable subrogation as applied to mortgages.

In addition, even if Picker’s interpretation of Boley had been correct, the reasoning does nothing to reconcile the later Florida Supreme Court cases which applied the doctrine without regard to constructive notice. See Forman, 79 So. 742; Godwin, 145 So. 883; Eastern Nat’l Bank, 508 So.2d 1323. As these cases indicate, Florida precedent, leading up to the Sun-trust decision, has applied the modern view generally allowing subrogation unless the rights of the second lien holder are violated. As such, the trial court erred in applying the traditional view to the underlying case.

Further, regardless of the Picker decision, the trial court was required to follow Suntrust, as it was a controlling decision of a district court in Florida. Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (finding that in the absence of inter-district conflict or contrary precedent for the supreme court, the decision of a district court of appeal is binding throughout Florida); see also Roland v. Fla. East Coast Ry., LLC, 873 So.2d 1271, 1275 n. 5 (Fla. 3d DCA 2004) (holding the Florida appellate courts are not bound by federal precedent which is persuasive, not binding, authority) (citations omitted). As such, for these reasons, the trial court erred in granting summary judgment based on its interpretation of Boley as barring the application of equitable subrogation where a refinancing lender had constructive notice of a second lien holder.

Injustice and Equitable Subrogation:

As an alternative ground for granting summary judgment, the trial court stated:

From the HUD-1, Exhibit C to the Response, one can see (assuming the truth of the matters) that the Senchuks received over $70,000.00 in proceeds from the closing which resulted in the mortgage Plaintiff claims to hold, and that sum would have been sufficient to pay at least the entire principal of the Barry’s mortgage.

Based on the foregoing, the trial court reasoned the application of the equitable subrogation doctrine would work an injustice in this case, placing the second mortgage holder in a worse position than it would have been without the refinancing.

While almost all Florida cases dealing with equitable subrogation in the mortgage context suggest the doctrine may not be applied in derogation of the rights of the second lien holder, none of these cases clarify in what situations a second lien holder would be prejudiced. See Forman, 79 So. 742; Godwin, 145 So. 883; Suntrust, 792 So.2d 1222. The best guidance is offered in Godwin where the court held an “injury” to the second lien holder would exist if the lien holder were left in a worse position than if the “prior lien had not been discharged.” Godwin, 145 So. at 886.

As no prior cases offer guidance as to what constitutes prejudice pursuant to Godwin and Suntrust, this court must address the issue for the first time. It is axiomatic that the position of a lien holder has no meaning unless and until a foreclosure action is initiated. Thus, it follows the determination of what constitutes prejudice to a second lien holder must be confined to what would constitute prejudice in the event of a foreclosure.

A second lien holder, at the point of negotiating a second mortgage, takes a risk and accepts its position in the event of a foreclosure with respect to the amount lent on the first mortgage. However, when a first mortgage loan is refinanced for more than the amount due and owing on the first mortgage, the risks assumed by the second lien holder increase without the second lien holder’s consent. Namely, the refinancing lender is now able to recover more in a foreclosure action than the amount assumed recoverable by the second lien holder at the time it negotiated its second mortgage on the property.

Equitable subrogation is defined as the placement of one party into the shoes of another so that the substituting party retains the rights, remedies, or securities that would otherwise belong to the original party. Black’s Law Dictionary 1440 (7th ed. 1999). When a refinancing lender increases the principal loan amount and accepts the property used as collateral for the first mortgage, it does more than slip into the proverbial shoes of the first lender. The new mortgage holder does not retain the same rights, remedies, and securities that would be available to the first party. Instead, the new lender is entitled to no more than the original lender at the second mortgage holder’s expense and without its consent. Accordingly, this is the exact situation contemplated by God-win and Suntrust in which a second mortgage holder is prejudiced through a refinancing.

However, in Aurora’s response to the Barrys’ motion for summary judgment, Aurora argues they were entitled to equitable subrogation “to the extent the proceeds from the Plaintiffs mortgage were used to satisfy the prior mortgage.” Further, below, Aurora asserted it is entitled to “step into the shoes” of the first lien holder “for a minimum amount of $419,459.77” or the amount due and owing on the first mortgage.

Based on Florida law, the doctrine of equitable subrogation is available to place a refinancer in the shoes of the first mortgage as long as doing so does not put the second lien holder in a worse position than for which it bargained. Because Aurora’s request for equitable subrogation up to the amount owed on the first mortgage would not put the Barrys in a worse position than they bargained for, the trial court erred in determining Aurora was not entitled to equitable subrogation up to the amount paid off on the first mortgage as a matter of law.

Summary Judgment and Equitable Subrogation:

Last, to the extent the Barrys assert Aurora did not provide sufficient facts establishing its entitlement to equitable sub-rogation below, “ ‘[t]he party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.’ ” Leal v. Deutsche Bank Nat’l Trust Co., 21 So.3d 907, 909 (Fla. 3d DCA 2009) (quoting Kendall Coffey, Foreclosures in Florida 493 (2008)) (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003); Manassas Inv., Inc. v. O’Hanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002)).

Accordingly, once Aurora raised the affirmative defense of equitable subro-gation, the Barrys were required to refute Aurora’s entitlement to the defense. The Barrys provided no evidence foreclosing Aurora’s entitlement to the affirmative defense. Specifically, as evidenced in the foregoing issue, while equitable subrogation is not a matter of right in Florida, it is generally employed in similar circumstances. See, e.g., Forman, 79 So. 742; Godwin, 145 So. 883; Suntrust, 792 So.2d 1222. For the foregoing reasons, we reverse the final judgment of foreclosure and remand for further proceedings.

WEBSTER and THOMAS, JJ., concur.


source: Caselaw Access Project

author: THOMAS, J.

license: Public Domain

text:
    Christopher J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2972.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Rehearing Denied May 28, 2010.
    Christopher J. Thompson, pro se, Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

We review an order denying Appellant’s motion for postconviction relief based on two claims asserted under Florida Rule of Criminal Procedure 3.800(a). Appellant’s probation was revoked more than a decade ago after he entered a negotiated guilty plea to sexual battery. Although we affirm one of the claims raised, we must reverse and remand on the second ground, despite Appellant’s decade-long delay in raising the argument. We join the Fourth District in recommending that Florida Rule of Criminal Procedure 3.800(a) be amended to require that such claims be filed in a single motion raised within two years of the date of sentence. Bauer v. State, 31 So.3d 220 (Fla. 4th DCA 2010).

Appellant was sentenced in 1998 to nine months in jail, followed by one year of probation. He later violated his probation and was sentenced to 12.7 years in prison. Appellant now claims that the scoresheet used during this negotiated sentence incorrectly included points assessed for victim injury based on sexual penetration. In addition, Appellant asserts that when the trial court revoked his probation, it improperly assessed points for an additional offense of armed robbery, which he claims was not pending and thus not subject to scoring under the sentencing guidelines in effect at the time of his crime. Appellant fails to note whether he entered a plea to his violation of probation.

We reject Appellant’s argument that he can raise an alleged sentencing scoresheet error following his negotiated sentence to the underlying offense after his probationary sentence is revoked. Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009) (holding that argument was unpreserved where defendant claimed erroneous scoring of victim injury points in negotiated sentence that resulted in probation which was later revoked); rev. granted, 29 So.3d 292 (Fla.2009); Hill v. State, 730 So.2d 322, 323 (Fla. 1st DCA 1999) (“Any error on a scoresheet is harmless where a defendant’s sentences are the result of his negotiated plea agreement.”).

We must remand, however, on Appellant’s second claim asserted below. We write to express our view that criminal defendants who think they have a legitimate claim of an illegal sentence should not wait for years to pass before asserting such claims, when more timely remedies are available. See Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (noting that defendant has three opportunities to raise sentencing errors before seeking relief under Fla. R.Crim. P. 3.800(a), including direct appeal, Fla. R.Crim. P. 3.800(b) motion, and Fla. R.Crim. P. 3.850 motion). In this case, because Appellant’s second claim must be addressed by the trial court, we must remand many years after the case was resolved in the trial court.

This type of delay imposes costs and burdens on the courts, on the public which funds the courts, and on other defendants who assert their claims in a more timely manner. Thus, we agree with the Fourth District that Florida Rule of Criminal Procedure 3.800(a) should be amended to require that any illegal sentence claim be raised in one motion and filed within two years of the date the sentence is imposed. Bauer, 31 So.3d 220 (affirming denial of ninth motion for relief and recommending that Fla. R.Crim. P. 3.800(a) be amended to prohibit successive and untimely claims of illegal sentence).

Florida courts are inundated with post-conviction claims at both the trial and appellate levels, and finality in criminal cases remains elusive. See Hepburn v. State, 934 So.2d 515 (Fla. 3d DCA 2005) (noting right of access to courts, but recognizing damage caused by repeated litigation challenging a plea, and citing statute declaring legislature’s intent that “ ‘all terms and conditions of direct appeal and collateral review [shall] be strictly enforced.’ § 924.051(8), Fla. Stat. (2005) (emphasis added).”). Although this case does not involve successive litigation, it involves a claim that could have and should have been raised many years ago. The same policy reasons that support the limitation of collateral litigation also support the enforcement of timely litigation of postcon-viction claims.

Current law requires both this court and the trial court to consider Appellant’s claim of an allegedly incorrect scoresheet used during his probation revocation, unless on remand it is determined that the revocation sentence was imposed as part of a negotiated plea. Clark v. State, 572 So.2d 1387, 1390-91 (Fla.1991) (noting that general rule is that “an offense should not be considered as ‘pending’ before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained.”); Baez v. State, 9 So.3d 705 (Fla. 2d DCA 2009) (remanding for consideration of 3.800 claim based on assertion that additional offenses were not pending at time of sentencing). Thus, we must remand under Florida Rule of Criminal Procedure 3.800(a) for the trial court to have the opportunity to attach record documents regarding Appellant’s probation revocation that refute Appellant’s claims, despite Appellant’s extreme delay in his assertion of these claims.

HAWKES, C.J., concurs; BENTON, J., concurs in the judgment.


author: ROTHENBERG, J.

text:
    William Javier BELTRAN, as Personal Representative of Flor Bejarano Cruz, Appellant, v. Ronald RODRIGUEZ, individually, and R.S.P. Transport, Inc., Appellees.
    No. 3D09-903.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Rehearing and Rehearing En Banc Denied June 30, 2010.

      Bared & Associates and Pablo R. Bared and Susan Granoff, for appellant.
    Camillo & Snowden and J. Clark Dixon, Fort Lauderdale, for appellee R.S.P. Transport.
    Adorno & Yoss and Carol A. Gart, Fort Lauderdale, for appellee Ronald Rodriguez.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

In this wrongful death action, William Javier Beltran, as Personal Representative of the deceased, Flor Bejarano Cruz, appeals the final judgment entered in favor of R.S.P. Transport on its motion for directed verdict and in favor of Ronald Rodriguez following the jury’s finding of no liability. For the reasons that follow, we affirm.

1. Background

On January 12, 2004, Flor Bejarano Cruz made a U-turn to head north onto State Road 27, where her car collided with another automobile. The parties stipulated that she did not stop before making the U-turn. The sideswipe collision caused Cruz’s car to slide forty-six feet before coming to a stop in the left northbound lane of traffic. No more than seven seconds later, a commercial truck driven by Ronald Rodriguez (“Truck Driver”) hit Cruz’s car at approximately fifty-five miles per hour. Cruz died as a result of the two crashes. William Javier Beltran, as Cruz’s Personal Representative (“Plaintiff’), sued the Truck Driver and his employer, R.S.P. Transport (“Trucking Company”), for Cruz’s wrongful death.

At the close of the Plaintiffs case, the Trucking Company moved for a directed verdict, which the trial court granted. The case proceeded against the Truck Driver with the stipulation that if the Truck Driver was found to be liable, the Trucking Company would be held vicariously liable for the Truck Driver’s negligence. The jury found no liability on the part of the Truck Driver, and the trial court entered judgment in favor of the defendants. This appeal followed.

II. The Negligence Claim Against the Trucking Company

Count I of the Plaintiffs complaint alleged that the Trucking Company was negligent in its inspection and maintenance of the vehicle. At the close of the Plaintiffs case-in-chief, the Trucking Company moved for, and the trial court granted, a directed verdict as to this Count. The Plaintiff claims that the trial court erred in directing a verdict as to the Plaintiffs negligence claim against the Trucking Company.

We review the trial court’s ruling on a motion for a directed verdict de novo. Diaz v. Impex of Doral, 7 So.3d 591, 593 (Fla. 3d DCA 2009). When considering a motion for a directed verdict, the trial court must give the benefit of all reasonable inferences to the nonmoving party. Id. To establish a claim for negligence, a plaintiff must show: (1) the defendant had a legal duty to conform to a certain standard of conduct; (2) the defendant breached that duty; and (3) the plaintiff sustained damage that was proximately caused by the defendant’s breach. Stahl v. Metro. Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983). The proximate cause element requires, “at the very least a causation-in-fact test, that is, the defendant’s negligence must be a cause-in-fact of the plaintiffs claimed injuries.” Id.

In the instant action, the Plaintiff called four witnesses during its case in chief. Richard Santana, the owner of the Trucking Company, testified that he examined the truck involved in the accident every weekend, he examined the truek on the day of the collision, and he did not observe any defects that would have contributed to the accident. John Buchanan, a records custodian, identified photographs and a videotape of the accident scene and the truck. Daniel Melcher, the accident reconstruction expert hired by the Plaintiff, testified that although he observed several defects, none of the truck’s defects contributed to the accident because, inter alia, there was no evidence that the Truck Driver took any measures to avoid the collision, including reducing his speed, braking, or swerving. Finally, Dr. Joshua Perper, a Medical Examiner, testified that both accidents could have contributed to Cruz’s death.

Thus, by the close of the Plaintiffs casein-chief, although there was evidence of the truck’s defective condition, there was no evidence presented that the condition of the truck caused or contributed to the accident. Thus, the evidence presented during the Plaintiffs case did not create a jury question as to whether the Trucking Company’s negligence caused or contributed to Cruz’s injuries. Stahl, 438 So.2d at 17. Consequently, we find no error in the trial court’s decision to grant the Trucking Company’s motion for a directed verdict as to its negligence.

III. The Claims Against the Truck Driver

The Plaintiff contends that the trial court made various jury instruction errors. We disagree. A trial court’s instructions to the jury are subject to an abuse of discretion standard of review. H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007). The first claimed error is the trial court’s refusal to provide the jury with a vicarious liability instruction. Because the parties stipulated that in the event the Truck Driver was found liable, the Trucking Company agreed it would be responsible for the Truck Driver’s negligence on the basis of vicarious liability, the trial court did not err in failing to instruct the jury on this issue. The second claimed error is the instruction provided to the jury relating to the law regarding intersections marked by a stop sign. The trial court instructed the jury that pursuant to Section 316.123(2)(a), Florida Statutes, “every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a clearly marked stop line.” The trial court did not err in providing this instruction to the jury as the parties stipulated that Cruz did not stop before making the U-turn that immediately preceded the first collision, and Dr. Perper testified that the injuries Cruz sustained may have been caused by this collision. Section 316.123(2)(a) was therefore applicable and the jury instruction given was appropriate.

Additionally, the Plaintiff contends that the trial court erred by denying its request for an additional jury instruction on the issue of concurrent causation because the standard jury instruction on concurrent cause did not adequately explain the issue. We disagree. The trial court gave the standard instruction as to concurrent causation to the jury:

In order to be regarded as a legal cause of damage, negligence need not be the only cause. Negligence may be a legal cause of damage even though it operates in combination with the act of another, if such other cause occurs at the same time as the negligence, and if the negligence contributes substantially to producing damages.

Florida Standard Jury Instruction 5.1(b). When seeking an additional jury instruction a party must show “that the instruction was necessary for the jury to properly resolve the issues in the case.” Giordano v. Ramirez, 503 So.2d 947, 949 (Fla. 3d DCA 1987) (citing Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA 1987); Schreidell v. Shoter, 500 So.2d 228, 231 (Fla. 3d DCA 1986)). Moreover, reversal will not be granted “where the subject of the proposed instruction is covered in other charges given by the court or where failure to give the instruction is not shown to be prejudicial.” Id. Because we conclude that the standard jury instruction given was sufficient to resolve the issues in this case and that the jury was not misled or prejudiced by the failure to provide additional instruction regarding concurrent causation, we find no error in the trial court’s failure to give the requested additional instruction.

We have reviewed the Plaintiffs remaining contentions and also find them to be without merit. We therefore affirm the final judgment under review.

Affirmed.


author: PER CURIAM.

text:
    Devin C. HAYES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1248.
    District Court of Appeal of Florida, First District.
    April 16, 2010.
    Rehearing Denied June 2, 2010.
    Devin C. Hayes, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, DAVIS, and THOMAS, JJ., concur.


text:
    Lascelles FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1689.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied May 28, 2010.
    Lascelles Ford, 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.

WOLF, PADOVANO, and CLARK, JJ., concur.


text:
    Reginald BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1757.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied May 28, 2010.
    Reginald Baker, 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.

WOLF, PADOVANO, and CLARK, JJ., concur.


author: WETHERELL, J. PADOVANO, J.,

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Philip S. MARKHAM, Appellee.
    No. 1D09-2054.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied June 4, 2010.
    Elizabeth K. Russo, of Russo Appellate Firm, P.A., Miami, and Butler, Pappas, Weihmuller, Katz, Craig, LLP, Tallahassee, for Appellant.
    Louis K. Rosenbloum, of Louis K. Ro-senbloum, P.A., Pensacola and T. Bradley McRae, of McRae, McRae & Douglas, Lake City, for Appellee.
   WETHERELL, J.

Appellant, Mercury Insurance Company of Florida (Mercury), argues that the trial court erred in refusing to recognize its rescission of an insurance policy based upon a material misrepresentation by the insured on the application for insurance. We agree and, therefore, reverse the final judgment entered in favor of Appellee.

In July 2002, Appellee suffered injuries when his foot and ankle were run over by a Ford F-250 truck owned by Michael Roberts and insured under a policy issued by Mercury. After Appellee’s claim was filed, Mercury rescinded the policy, returned Roberts’ premium, and refused to defend the claim based upon an alleged material misrepresentation made by Roberts in the insurance application. Appellee subsequently settled with Roberts for $350,000, and as part of the settlement, Roberts assigned his claims against Mercury to Appellee and Appellee agreed to •withhold execution against Roberts.

Appellee moved for partial summary judgment against Mercury, arguing that the denial of coverage to Roberts was improperly based upon the ambiguous term “modified” contained in a question on the application for insurance. The trial court granted the motion, finding that the “policy wording is ambiguous” and that insurance coverage existed as a matter of law because the ambiguity in the insurance application must be construed in favor of eoverage. The trial court reserved jurisdiction on damages, and after the jury returned a verdict finding that Mercury wrongfully refused to defend the claim and that the settlement between Roberts and Appellee was reasonable in amount and entered into in good faith, the trial court entered a final judgment against Mercury in the amount of $460,408.76. This timely appeal followed.

We review de novo the trial court’s determination that the question at issue was ambiguous. GRG Transp., Inc. v. Certain Underwriters at Lloyd’s, London, 896 So.2d 922, 925 (Fla. 3d DCA 2005).

The insurance application signed by Roberts asked: “Is any vehicle rebuilt, salvaged, modified, altered, or specifically built/customized?” (emphasis added). The application form expressly directed the broker not to bind coverage if the applicant answered “yes” to this question.

Roberts answered “no” to this question even though he had installed larger, wider tires and a lift-kit on the truck, as can be seen in these pictures in the record:

Roberts testified that he did not read the application and that he relied on the broker (who, according to Roberts, was aware of the nature and extent of the modifications to the truck) to fill out the form., Roberts testified that his truck had been “altered in many ways” from the original manufacturer’s specifications, including the tinting of the windows, installation of a stereo, and installation of the larger, wider tires and lift-kit. However, he also testified that he did not know what the terms “modified” or “altered” meant in the context used on the insurance application and that, to him, “modified” referred to engines and related parts because he previously raced cars and there were modified classes in racing.

Mercury contends that Roberts’ negative response to the question was a material misrepresentation, and it presented an affidavit from its adjuster stating that Mercury would not have issued the policy had Roberts answered the question in the affirmative as he should have. Mercury argues that the application question was unambiguous and that the only reasonable interpretation of the word “modified” is that it means any change to the vehicle.

Appellee does not dispute the materiality of the alleged misrepresentation made by Roberts in the application. Rather, Appellee contends that the question was ambiguous when “modified” is read in context of the other types of vehicles listed in the question and the policy’s coverage of loss or damage to “custom parts or equipment” and “special equipment or modifications.” Appellee also argued below that the broker was Mercury’s agent such that her alleged knowledge of the nature and extent of the modifications to Roberts’ truck was imputed to Mercury and thus estopped Mercury from denying coverage on the basis of the modifications.

The application form included the statement that the applicant “agrees that [the] policy shall be null and void, and/or result in a claim denial if such information is false, or misleading, or would materially affect acceptance of the risk by [Mercury].” Similarly, section 627.409(1), Florida Statutes (2002), authorized an insurer to deny coverage and rescind an insurance policy based upon a misrepresentation or incorrect statement in an insurance application if:

(a) The misrepresentation ... or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
[or]
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

An insurer may not deny coverage under this statute, however, if the alleged misrepresentation was in response to an ambiguous question. See Boca Raton Comty. Hosp., Inc. v. Brucker, 695 So.2d 911, 913 (Fla. 4th DCA 1997); Comprehensive Benefit Adm’rs, Inc. v. Nu-Cape Constr., Inc., 549 So.2d 700 (Fla. 2d DCA 1989). A question is ambiguous when it is susceptible to two reasonable interpretations, one in which a negative response would be correct and one in which an affirmative response would be correct. Comprehensive Benefit, 549 So.2d at 700; see also Great Oaks Cas. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 530 So.2d 1053, 1055 (Fla. 4th DCA 1988). Any such ambiguity must be construed against the insurer and in favor of coverage. See Comprehensive Benefit, 549 So.2d at 700; Gaskins v. Gen. Ins. Co. of Fla., 397 So.2d 729, 731 (Fla. 1st DCA 1981) (“Any ambiguity in the application is to be resolved against the insurer.”).

The trial court found the question at issue ambiguous because the term “modified” was susceptible to two reasonable interpretations: 1) that it has something to do with racing and non-street legal type vehicles, as argued by Appellee, and 2) that it encompasses any change to a vehicle, as argued by Mercury. We disagree that the question is ambiguous, at least in the context of this case.

The issue is not whether there are two interpretations of “modified” that could render the question ambiguous in the abstract; rather, the issue is whether an objectively reasonable person in Roberts’ situation (i.e., having installed larger, wider tires and a lift-kit on his truck) could truthfully answer the question in either the affirmative or the negative. See State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So.2d 397 (Fla. 4th DCA 1996) (stating that insurance policy language generally is read as it would be understood by a reasonable person). Thus, the fact that, under the interpretation proffered by Mercury, “modified” might be ambiguous in the context of an applicant who had only added mud flaps, fuzzy dice, or window tinting to his vehicle is irrelevant to the issue of whether the term is ambiguous to an objectively reasonable person in Roberts’ situation.

We conclude that there is no objectively reasonable interpretation of “modify” that would justify Roberts’ negative answer to this question. Where, as here, neither the application form, nor the policy incorporated by reference therein, defines “modify,” we interpret the word in accordance with its plain and ordinary meaning as reflected in the dictionary. See Garcia v. Federal Ins. Co., 969 So.2d 288, 291-92 (Fla.2007). The dictionary defines “modify” to mean “to make minor changes in” and “to make a basic or important change in; alter.” See Webster’s Seventh New Collegiate Dictionary, at 544 (1967). One only needs to look at the pictures of Roberts’ truck to conclude that his negative answer to the question was inaccurate under either of these definitions. Moreover, although an objective standard applies, it is significant that Roberts acknowledged in his testimony that his truck had been “altered in many ways” (emphasis added), which in and of itself would have required an affirmative answer to the question. See id. at 24 (defining “alter” to mean “to make different without changing into something else”); cf. Carter v. United of Omaha Life Ins., 685 So.2d 2, 6 (Fla. 1st DCA 1996) (explaining that an applicant’s belief of the truth of his answer must be accepted “only so far as that belief is not clearly contradicted by the factual knowledge on which it is based”) (quoting Skinner v. Aetna Life & Casualty, 804 F.2d 148, 151 (D.C.Cir.1986)), approved in pertinent part by, Green v. Life & Health of Am., 704 So.2d 1386 (Fla.1998).

The interpretation proffered by Appellee is not reasonable, even when “modify” is viewed in context of the other types of vehicles listed in the question and certain provisions in the policy. Vehicles that are “rebuilt” or “salvaged” are not, as the trial court found, non-street legal; they simply receive different titles and are subject to additional disclosure requirements upon transfer. See §§ 319.14, 319.30, Fla. Stat. Likewise, the other terms in the question — “altered” and “specifically built/customized” — do not refer to non-street legal vehicles or racing vehicles. Cf. § 320.0863, Fla. Stat. (2009) (providing special registration for “custom vehicles” that meet applicable safety requirements). Moreover, the fact that the policy covers certain “custom parts or equipment” and “special equipment or modifications” does not render “modified” ambiguous because the coverage provided in the policy for loss or damage to such parts is limited to $1,000 unless the equipment is disclosed in the application and an additional premium is paid, which did not occur in this case.

For these reasons, the trial court erred in granting partial summary judgment for Appellee. The final judgment is therefore reversed. As the record reveals disputed issues of fact as to whether or not the broker was an agent of Mercury, we remand for consideration of this issue. See Almerico v. RLI Ins. Co., 716 So.2d 774, 776-77 (Fla.1998); Amstar Ins. Co. v. Cadet, 862 So.2d 736, 739-42 (Fla. 5th DCA 2003); Gen. Ins. Co. v. Ramanovski, 443 So.2d 302, 304 (Fla. 3d DCA 1983); Gaskins, 397 So.2d at 731-32.

REVERSED and REMANDED for further proceedings.

THOMAS, J., concurs; PADOVANO, J., dissents with opinion.

PADOVANO, J.,

dissenting.

I respectfully dissent for three reasons: (1) the provision in the application that would allow the insurance company to deny coverage on the ground that the insured had failed to disclose a modification of the vehicle cannot be reconciled with other provisions in the policy expressly affording insurance coverage for undisclosed modifications; (2) the term “modify” in the application is ambiguous and could reasonably refer to something more than the addition of custom parts to the vehicle, as was the case here; and (3) assuming the judgment is to be reversed, and it should not be in my view, it should be reversed for a trial on all of the factual issues in the case and not merely for a resolution of the agency issue identified in the majority opinion.

The majority assumes that the term “modify” was used only in the application for insurance, but that term was also used in the text of the insurance policy itself. The significance of this error is that the meaning of the term “modify” as used in the policy forecloses the possibility that coverage could be denied solely for a failure to disclose any change in the vehicle, much less a change that merely consists of the installation of custom parts. By its terms, the policy covers all modifications of the vehicle, even those that are not disclosed.

The property damage section of the policy contains the following exclusion: “There is no coverage for ... (8) special equipment or modifications in excess of $1,000.00 value in the aggregate unless such equipment or modification is specifically listed on the declarations page.” The phrase “special equipment or modification” is defined in the policy as “1. equipment not installed by the original manufacturer ... [or] 2. any modification, customization, or enhancement.” By the plain language of these provisions, coverage exists to some extent, even for special equipment that was not disclosed on the application. If the insured has modified the vehicle by installing aftermarket tires or an aftermarket suspension system and has not disclosed the modifications to the company, coverage still exists to the extent of $1,000.00.

In this case we are dealing with a dispute about liability coverage, but if we are to ascribe a fair meaning to the term “modify” as used in the application we must also consider the way in which the insurance company used that term in the text of the policy. As the supreme court explained in Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 869 So.2d 938, 941 (Fla.1979), the courts should interpret the meaning of terms used in an insurance policy by considering the policy as a whole. See also Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26 (Fla. 2d DCA 2004) (observing that the policy and application should be construed together). It would make little sense, in my view, to conclude that the insurance company meant to provide coverage for property damage, albeit to a limited extent, for a special part or modification not disclosed in the application, and at the same time deny liability coverage on the ground that the insured did not disclose the existence of the special part or modification.

To the contrary, I believe that the language of the clause limiting coverage for special equipment or modifications negates a claim that the insured misrepresented a material fact by failing to disclose the modification. Because the policy expressly provides coverage to some extent for special parts and modifications not previously disclosed or listed on the declarations page, it is reasonable to conclude that the failure to disclose the existence of special tires or a special suspension system was not the kind of misrepresentation that could invalidate the entire policy. The majority has arrived at a contrary conclusion by interpreting the terms of the application in isolation as if they were unrelated to the terms used in the policy itself.

Even if it were not for this inconsistency between the application and the property damage provisions of the policy, I believe that the term “modified” as used in the application, is ambiguous. I agree with the trial judge that when the term “modified” is read in the context of the entire question, “Is the vehicle rebuilt, salvaged, modified, altered or specifically built/customized?” it could refer to a change that is much more fundamental than the addition of larger tires and a heavy-duty suspension system. The terms “built,” “rebuilt,” and “salvaged,” all suggest that the term “modified” refers to a much more significant transformation of the vehicle.

This conclusion is supported by the fact that the insurance policy expressly provides coverage for “custom parts or equipment.” In this regard, the policy states “If you pay a premium for Comprehensive Coverage or Collision Coverage we will pay for the theft of, or damage to, custom parts or equipment resulting from any loss for which Comprehensive Coverage or Collision Coverage is provided under the terms of this policy.” The fact that the policy affords coverage for damage to custom parts and equipment can only mean that it is permissible for an insured to install custom parts and equipment. That this coverage is afforded under the policy also suggests that the need to disclose a modification to the vehicle means something much more than adding a custom part.

The majority dismisses the fact that the policy affords coverage for custom parts and equipment by noting that coverage for those parts would be limited if they are not disclosed. In my view, that is beside the point. The fact that the policy provides any coverage at all for damage to custom parts and equipment, the existence of which was not disclosed, suggests that some kinds of undisclosed modifications to the vehicle will not invalidate the coverage.

The main point of the majority opinion is that a reasonable person in the insured’s position would understand that the installation of oversized tires and a special suspension system qualifies as a modification. I think that this conclusion is undercut, at least to some extent, by the very debate we have had in this case. At this point in the progress of the case, four judges have carefully examined the application and insurance policy in an effort to determine the meaning of the term “modify” as used in the application. Two of them believe the term is ambiguous but the other two believe that it is not. It is difficult for me to understand how we can expect a layperson focused on the task of purchasing insurance to have a better or clearer understanding of the policy.

The majority concedes that the term “modified” might be ambiguous if the insured had merely added “mud flaps, fuzzy dice, or window tinting” to his vehicle. But it seems to me that this kind of reasoning puts the court in the position of making ad hoc decisions about the situations in which the term “modify” is ambiguous.

It is fair to assume, as the majority evidently has in this case, that the insurance company might be less concerned about changes in appearance than it would be about changes that affect safety or performance. However, we must decide the issue based on the language of the policy, not on the basis of our own assumptions. According to the policy, the phrase “custom parts or equipment” means “equipment, devi[c]es, accessories, enhancements and changes, other than those which are originally manufacturer installed which: a. are permanently installed or attached; and b. alter the appearance or performance of the car.” This definition plainly includes the tires and suspension system added to the truck in this case. Consequently, the truck is covered.

It does not matter that these custom parts altered the appearance of the truck, a fact that is plain for anyone to see. Nor does it matter that the installation of these parts will alter the performance of the truck, a fact that could be inferred by anyone with a rudimentary knowledge of physics. We must go by the policy, and the policy provides coverage not only for custom parts that alter the appearance of the vehicle, as in the examples given by the majority, but also for custom parts that alter the performance of the vehicle.

Because I believe that the meaning of the term “modified” is ambiguous for the reasons given here, I would affirm the summary judgment for the insured. If the judgment is to be reversed, however, the reversal should not be limited to an adjudication of the agency issue. A resolution of that issue will not settle the controversy in this case as it is merely one part of a larger issue regarding the materiality of the alleged misrepresentation.

The narrow scope of the remand effectively adjudicates other factual issues in the insurance company’s favor. I believe this was a mistake. The reversal of a summary judgment for one party does not adjudicate an issue on the merits of the case in favor of the other, it merely opens the case for trial. This rule applies even if both parties moved for summary judgment in the trial court and even if they each contended that there were no disputed issues of material fact. See Shaffran v. Holness, 93 So.2d 94 (Fla.1957). A party who sought a summary judgment in the trial court will be estopped only from taking a position on appeal that is contrary to that particular issue, and is not estopped from claiming that the facts were in dispute in other material issues in the case. Spencer v. Halifax Hosp. Dist., 242 So.2d 143 (Fla. 1st DCA 1970); Harper ex rel. Daley v. Toler, 884 So.2d 1124 (Fla. 2d DCA 2004).

The effect of the decision by the majority is merely to determine that the policy is not ambiguous; yet the majority appears to skip forward to conclude as a matter of law that the insured did, in fact, make a material misrepresentation. That is the very point the insurance company must now prove in order to justify its denial of coverage. The insurance company has not yet won the case as one might think from reading the majority opinion; it has merely won the right to a trial.

An insured’s misrepresentation in an application need not be intentional but it must be material to the insurer’s acceptance of the risk. Life Ins. Co. of Va. v. Shifflet, 201 So.2d 715 (Fla.1967); Kieser v. Old Line Life Ins. Co. of Am., 712 So.2d 1261 (Fla. 1st DCA 1998). The insurer must prove “the misrepresentation, its materiality, and the insurer’s detrimental reliance.” Griffin v. Am. Gen. Life & Acc. Ins. Co., 752 So.2d 621, 623 (Fla. 2d DCA 1999). These are factual questions for the jury. Celtic Life Ins. Co. v. Fox, 544 So.2d 245 (Fla. 2d DCA 1989); Blue Cross/Blue Shield of Fla., Inc. v. Mignolet, 475 So.2d 965 (Fla. 3d DCA 1985); Cabella v. Travelers Indem. Co., 248 So.2d 539 (Fla. 3d DCA 1971).

Whether the incorrect statement on the application form was material is an issue that might not stand or fall entirely on the agency issue that is the subject of the remand to the trial court. We do not even know whether there is a dispute of material fact on that issue. The trial judge did not reach the question, having ruled for the insured on a more fundamental point.

The insurance company’s argument on the agency issue is that the broker had no apparent authority to act on the company’s behalf because the application shows that she had only a limited authority to bind coverage. I do not read the application to convey this point at all. It seems to me that the application did give the broker authority to bind coverage if she believed that the correct answer to the question regarding modifications was “no.”

In any event, the question of agency is one that is yet to be determined. The rule in Florida is that a broker may be found to be a statutory agent of a particular insurance company if the company provides sufficient indicia of agency, such as “blank forms, applications, stationery, or other supplies used in soliciting or negotiating insurance contracts.” § 626.342(1), Fla. Stat.; Almerico v. RLI Ins. Co., 716 So.2d 774 (Fla.1998); Amstar Ins. Co. v. Cadet, 862 So.2d 736 (Fla. 5th DCA 2003); Straw v. Assoc. Doctors Health & Life, 728 So.2d 354 (Fla. 5th DCA 1999). In such case, the knowledge of the broker would be imputed to the insurance company. Guarente-Desantolo v. John Alden Life Ins. Co., 744 So.2d 1123 (Fla. 4th DCA 1999). In the present case, the broker was asking the insured questions from the company’s application form. If the broker knew the condition of the truck, as the insured says she did, her knowledge would be imputed to the insurance company thus defeating its claim that it would not have accepted the risk had it known.

The point evidently overlooked by the majority is that the insured’s incorrect answer might be immaterial for other reasons. For example, the evidence might show that the insurance company routinely insured trucks like this and is complaining in this case only to avoid the payment of a rather large claim. Even if that is not the case, the jury might simply reject the claim by the company’s underwriters that it would not have insured a truck with oversized tires and a lift kit. We simply do not know the answers to these questions.

For these reasons, I believe that the trial judge was correct in granting summary judgment for the insured and that the judgment should be affirmed. If the majority believes that the trial court’s decision must be reversed, it should be reversed for a trial in which the insurance company would have to prove that the insured made a material misrepresentation.

       Mercury sought appellate review of the trial court’s order granting partial summary judgment, but we dismissed the appeal for lack of jurisdiction. Mercury Ins. Co. of Fla. v. Markham, 938 So.2d 607 (Fla. 1st DCA 2006).


author: PADOVANO, J.

text:
    Kenneth C. JENNE, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D09-2959.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied June 14, 2010.

      Mark Herron, Robert J. Telfer, III, and Thomas Findley of Messer, Capparello & Self, P.A., Tallahassee, for Appellant.
    Clifford A. Taylor, Barbara M. Crosier, and Geoffrey Christian, Department of Management Services, Tallahassee, for Appellee.
   PADOVANO, J.

Ken Jenne, the former Sheriff of Bro-ward County, appeals a final order by the Department of Management Services adjudicating a forfeiture of his rights and benefits under the state retirement law. We hold that Jenne’s federal conviction for conspiracy to commit mail fraud qualifies as a “specified offense” under section 112.3173(2)(e)6., Florida Statutes (2001), and that the commission of the offense justifies the forfeiture of his retirement benefits. We therefore affirm.

Jenne was charged by information on September 4, 2007, in the United States District Court for the Southern District of Florida, with one count of conspiracy to commit mail fraud and three counts of filing a false tax return. The facts alleged by the government in support of these charges are not in dispute. Jenne admitted the allegations in a written plea agreement, and the federal judge accepted his admission as the factual basis for his guilty plea. The crimes referred to in the information were committed over the course of several years in a series of unlawful transactions. These transactions are summarized as follows.

A real estate developer arranged for the demolition of Jenne’s private residence in 2001 by soliciting bids, contracting with a bidder, and paying the contractor $8,130. One of Jenne’s secretaries and the attorney for the Broward County Sheriffs Office exchanged communications with the developer’s secretary during the course of the work. The developer and the attorney also appeared before the Lake Worth Code Enforcement Board on Jenne’s behalf. At the same time, the developer was negotiating with Jenne in his public capacity to lease additional office space to the Sheriffs Office. Jenne signed an amendment to the existing lease with the developer, committing the Sheriffs Office to additional square footage for five years at a cost of $348,000. In addition, he agreed to lease another office from the developer on behalf of the Sheriffs Office for ten years at $416,000 per year. The developer never sought reimbursement for the $8,130 he had paid to the contractor who did the work on Jenne’s private residence, nor did he seek to be compensated for any of the time he spent on that project.

Jenne was involved in 2002 with the same real estate developer in a plan to invest money in a company that made an oil well cleaner. In the course of the discussions about this plan, Jenne flew to Louisiana at the developer’s expense. Jenne was to receive a 25 percent stake in the well cleaner company, but he ultimately backed out of the deal. The developer then paid Jenne $10,000 for his work on the uncompleted transaction. The payment was made by a check that was passed through the bank account of one of the developer’s companies, and then through another account, before it was tendered to Jenne.

Jenne owed the Internal Revenue Service $18,000 for tax due on his 2003 federal income tax return. His secretary knew that he did not have the money, so she suggested that he get it from the real estate developer. Jenne said he could not do that, because the developer did business with the Broward County Sheriff’s Office. The secretary then suggested that the developer could lend the money to her, and she would then lend it to Jenne. Jen-ne agreed. He asked the developer to lend $20,000 to his secretary but did not tell him what the loan was for. The developer never sought repayment of the loan.

In 2004, the president of an electronic surveillance company that was providing services to the Sheriffs Office asked Jenne to recommend someone to lead a training session the company was conducting in Barbados. It was within Jenne’s discretion to allow off-duty employment, and he recommended an officer on his staff for the training position. The president asked Jenne whether he owed anyone for finding the instructor, and Jenne suggested that he compensate a secretary in his office for the work that she had done on the project. Meanwhile, Jenne told the secretary that she would be receiving a check from the surveillance company and he instructed her to give the check to his personal secretary. The president sent the first secretary a check for $3,000. She passed the check along to Jenne’s personal secretary, as instructed, and the funds from the check were ultimately deposited into Jen-ne’s personal bank account.

A similar transaction took place in 2004, when the president of the same surveillance company asked Jenne to recommend an officer to conduct a security survey for a client. Jenne made the recommendation, and the president of the surveillance company paid him $2,500. Again the check was sent to one secretary in the Sheriffs Office and passed along to another, and the funds were then deposited into Jenne’s account.

Jenne was a partner in a law firm from 1992 to 1998. In late 1997, the firm bought Jenne a Mercedes convertible for $61,297, financing it with a five-year loan. Jenne left the firm in early 1998 when he was appointed Sheriff and he took the Mercedes with him. The firm continued to pay on the loan until it was paid off in 2003 and it paid for the auto insurance until Jenne’s conviction. When the firm offered to transfer title to Jenne in 2005, he declined, saying that it would look bad in the press. The firm paid about $78,000 on the loan and $30,000 for insurance after Jenne left the firm. After Jenne became Sheriff, the firm worked on nineteen cases for the Sheriffs Office.

Jenne was required to disclose his net worth, assets, and liabilities to the Florida Commission on Ethics and his income to the Internal Revenue Service annually. He did not disclose the assets he had acquired from any of these transactions to the Ethics Commission. Nor did he disclose the income he had received from any of these transactions to the Internal Revenue Service.

A hearing was held on Jenne’s guilty plea on September 5, 2007. After reviewing the formal charge and the statement of facts in the plea agreement, the federal judge accepted the plea. The judge then sentenced Jenne to prison for a year and a day, placed him on a term of probation, ordered him to pay a $3,000 fine and directed him to pay the taxes owed.

When the sentence was imposed, Jenne resigned and applied to the Florida Department of Management Services for his pension. The Department responded on January 24, 2008, by sending Jenne notice that he had forfeited his retirement benefits as a result of his federal convictions. In support of this decision, the Department cited article II, section 8(d), of the Florida Constitution and section 112.3173, Florida Statutes.

Jenne challenged the forfeiture, and the parties submitted a joint stipulation of facts in lieu of a formal hearing. After reciting the factual basis for the convictions, the administrative law judge concluded that Jenne had “abused his position and violated the public trust,” thus forfeiting his retirement benefits. The Department adopted the administrative law judge’s findings of fact and conclusions of law and entered a final order to the same effect. Jenne filed a timely appeal to this court to seek review of the order.

The primary source of the state’s authority to declare a forfeiture of rights and benefits under the state retirement system is the Florida Constitution. Article II, section 8(d) states in material part:

SECTION 8. Ethics in government. — A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
(d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.

This provision is implemented by legislation contained in Chapter 112, Part III, Florida Statutes, entitled “Code of Ethics for Public Officers and Employees.” Section 112.3173(3) states that “[ajny public officer or employee who is convicted of a specified offense committed prior to retirement” shall forfeit all rights and benefits under the retirement system.

The felony conviction that served as a basis for the administrative order declaring a forfeiture of retirement benefits in this ease was Jenne’s conviction for conspiracy to commit mail fraud. This crime is not identified by name in section 112.3173(2)(e), but it could serve as the basis for a forfeiture of retirement benefits if it meets the general definition of a specified offense in subsection 112.3173(2)(e)6. This subsection states:

(e) ‘Specified offense’ means:
6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position.

Jenne contends that his conviction for conspiracy to commit mail fraud does not meet the definition of a specified offense because the elements required to prove the offense do not match the elements of any of the crimes described in the statute. The Department argues that the crime qualifies as a specified offense by the manner in which it was committed. Jenne did not conspire to commit mail fraud in a purely personal venture; he did so from a position of public trust, by using the power of his office to gain a benefit for himself. The question emerging from these competing arguments is whether the term “specified offense” is defined by the conduct of the former public official, or whether it is defined more narrowly by the elements of the crime for which the official was convicted.

We need not look beyond the text of the statute to find the answer to the question. Section 112.317S(2)(e)6., Florida Statutes defines a specified offense as the commission of “any felony by a public officer or employee who, willfully and with intent to defraud the public ... of the right to receive the faithful performance of his or her duty ... realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself ... through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office.” (Emphasis added.) By this language, any felony could qualify as a specified offense, so long as the remaining conditions in the statute have been met. All of the remaining conditions refer to the conduct of the official, not the definition of the crime.

This conclusion is supported not only by the plain meaning of the words used in the statute, but also by the sentence structure of the statute. The word “who” is a relative pronoun. It could only refer to a person, in this case the public official whose retirement benefits are at issue. Hence, the phrase “by a public officer or employee who” intends to defraud the public to obtain a personal gain by the use of his office, refers to the actions taken by the public officer. It does not, and could not by the rules of English grammar, refer to the elements of the crime for which the officer was convicted. Jenne’s argument would be well taken if the statute had been drafted to say that the public official must be convicted of a crime that requires proof of an intent to defraud for the purpose of personal gain. But the statute plainly does not say that.

Whether the crime of conspiracy to commit mail fraud meets the definition of a specified offense in section 112.3173(2)(e)6. depends on the way in which the crime was committed. It might not meet the definition if the public officer were to use the mail unlawfully in a private venture without disclosing the office held and without obtaining a benefit by virtue of the office. But it would be an entirely different matter if, for example, a public officer had used the mail to solicit a bribe in return for a favor performed at the expense of the public.

Our conclusion that section 112.3173(2)(e)6. defines the term “specified offense” by the conduct of the public officer and not by the elements of the crime is supported, at least indirectly, by several other decisions. For example, in Newmans v. Division of Retirement, 701 So.2d 573 (Fla. 1st DCA 1997), this court held that a sheriff who was convicted of providing inside information to drug traffickers forfeited his retirement benefits. The crimes at issue in that case, conspiracy to manufacture marijuana, manufacturing marijuana, and conspiracy to obstruct justice, were not crimes that would necessarily involve a breach of the public trust. However, the sheriff used the power of his office to assist the traffickers and he thereby obtained a personal benefit in breach of the public trust.

Likewise, in Simcox v. City of Hollywood Police Officers’ Retirement System, 988 So.2d 731 (Fla. 4th DCA 2008), the court held that a police officer who knowingly operated an escort vehicle to protect a truck that was delivering heroin forfeited his retirement benefits. The crime in question, conspiracy to possess heroin with intent to distribute, would not necessarily qualify as a specified offense. However, as in Newmans, the crime was committed not as a private venture, but by the misuse of a public office.

Jenne relies on Shields v. Smith, 404 So.2d 1106 (Fla. 1st DCA 1981), for the proposition that a federal offense can qualify as a specified offense only if the elements of the federal crime match those of a comparable state crime that would justify a forfeiture of retirement benefits. Although it was not necessary to the holding in that case, the court did observe that the federal crime of conspiracy to interfere with interstate commerce was not a specified offense, because the elements of the crime did not match those of any state crime that could be used to support a forfeiture.

However, the Shields decision is not controlling here for two reasons. First, the opinion was published before the enactment of the catch-all provision in section 112.8173(2)(e)6. With the advent of this subdivision, it is now clear that a specified offense can be “any felony,” so long as it is committed in the manner described in the statute. Second, and equally as important, the public officer in Shields was convicted by a jury. This necessarily limited the inquiry to the elements of the crime. The court could not know which facts the jury accepted and which it rejected. All the court could know for certain was that the defendant committed a crime that required proof of certain elements. In contrast, Jenne entered a plea of guilty and signed a plea agreement admitting all of the material facts. That the crime of conspiracy to commit mail fraud was committed in a way that makes it a specified offense under the law is a matter of record.

Jenne also argues that this court should interpret section 112.3173(2)(e)6. in light of the Ethics in Government provision in article II, section 8(d) of the Florida Constitution. We agree with the general premise of this argument but find nothing in the constitution that runs contrary to our interpretation of the statute. Article II, section 8(d) provides that “any public officer who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system ... in such manner as may be provided by law.” This language does not suggest that the felony must be one that involves a breach of the public trust by its very definition. In any event, section 8(d) expressly confers authority on the Florida Legislature to define by general law the precise circumstances in which the commission of a felony can result in the forfeiture of retirement benefits.

For these reasons we find no error in the final administrative order declaring a forfeiture of Jenne’s benefits under the Florida Retirement System. Jenne was convicted of a felony under federal law, and the facts he admitted in his plea agreement establish that his offense falls within the class of offenses that can justify a forfeiture of retirement benefits.

Affirmed.

WEBSTER and ROBERTS, JJ, concur.


text:
    Judy RUSSELL, Appellant, v. ORANGE COUNTY PUBLIC SCHOOLS TRANSPORTATION and United Self-Insured, Appellees.
    No. 1D09-3974.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied June 2, 2010.

      Bill McCabe, Longwood, and Thomas A. Vaughan and Carrie L. Hixson, Orlando, for Appellant.
    Nancy A. Blastic of Moore, Peterson & Zeitler, P.A., Orlando, for Appellees.
   WOLF, J.

Claimant seeks review of an order denying her requested workers’ compensation benefits. While claimant raises several issues, only two merit discussion. Specifically, we reverse because we find the Judge of Compensation Claims (JCC) erred in excluding the medical opinion of an orthopedic physician, Dr. Richard Smith, who was at one time claimant’s authorized provider. Further, as a result of this erroneous exclusion, we likewise find the JCC erred in declining to order an expert medical advisor’s opinion (EMA) based on the disagreement of two admissible medical opinions as required by section 440.13(9)(c), Florida Statutes (Supp.1998).

Prior to the benefits hearing, claimant requested an EMA, citing a disagreement in the opinions of two orthopedic providers, Dr. Smith and Dr. Jeffrey Rosen. Specifically, Dr. Rosen, claimants’ later authorized orthopedic provider, opined in his deposition that claimant’s accident was not a major contributing cause of her current knee condition. To the contrary, Dr. Smith, during his deposition, testified he believed the industrial accident was a “greater cause” for claimant’s “need for ongoing treatment” than any other cause. The JCC denied the request for an EMA, finding “the foundational support for the conflict did not exist because the opinion that reportedly established the conflict came from a physician whose opinions could not be accepted pursuant to section 440.13(5)(e).”

Section 440.13(5)(e), Florida Statutes (Supp.1998), governs medical opinion testimony in workers’ compensation proceedings and provides in pertinent part:

No medical opinion other than the opinion of a medical advisor appointed by the [JCC] or division, an independent medical examiner, or an authorized, treating 'provider is admissible in proceedings before the [JCC].

(Emphasis added.)

“The law is clear that a JCC errs in admitting the opinion testimony of a physician who does not fall into one of these categories.” Seminole County Sch. Bd. v. Tweedie, 922 So.2d 1011, 1012 (Fla. 1st DCA 2006). Further, although not defined in chapter 440, an “authorized treating provider,” as the term is used in section 440.13(5)(e), Florida Statutes, means “a treating provider authorized by the E/SA.” Rucker v. City of Ocala, 684 So.2d 836, 840 (Fla. 1st DCA 1996); see also Tweedie, 922 So.2d at 1012 (holding “authorized treating provider” means “provider who has been authorized by an E/SA”). However, the question of whether a currently de-authorized provider who was, at one time, an authorized provider may qualify to provide testimony pursuant to section 440.13(5)(e) is a question of first impression before this court.

A plain reading of the statute does not offer guidance. Specifically, the statute’s language provides only authorized physicians, independent medical examiners (IMEs), and EMAs may testify in workers’ compensation proceedings; however, the statute does not use the term “currently authorized treating provider” or otherwise suggest the authorization of the provider must be in existence at the time of the benefits hearing. Thus, because the statute is ambiguous on its face, this court must look to legislative intent. Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008) (holding when a statute is unclear or ambiguous on its face, the court must next determine legislative intent)(citing Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla.1995)).

Section 440.13 was amended in 1993 to include subsection (5)(e), limiting medical opinion testimony to only EMAs, providers, and IMEs. See Ch. 93-415, § 17, Laws of Fla. The Governor’s reform proposal of 1993 outlined the general goals of these amendments and included one of those goals as limiting a perceived “doctor-shopping” problem. The Governor’s Worker’s Compensation Reform Proposal on Fla. S. Bill 12C, § 17 (1993), A Summary (Oct. 21, 1993). Further, section 440.015, Florida Statutes, which provides the legislative intent for the passing of Chapter 440, was likewise amended in 1993 to include the following pertinent language:

.... It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The Division of Workers’ Compensation shall administer the Workers’ Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.

See Ch. 93-415, Laws of Fla.

We find that interpreting section 440.13(5)(e) to preclude the admission of a de-authorized physician’s medical opinion would contravene the purposes of both section 440.13(5)(e) and chapter 440. Specifically, this interpretation would enable an employer/servicing agency (E/SA) simply to de-authorize a physician at any time it does not want the opinion of that particular physician in evidence. Likewise, a claimant could preclude the admission of a physician’s disadvantageous opinion by simply requesting his or her one-time change, thereby requiring the E/SA to de-authorize the current treating physician. This type of “doctor shopping” stimulated the need to add section 440.13(5)(e) in 1993. See The Governor’s Worker’s Compensation Reform Proposal on Fla. S. Bill 12C, § 17 (1993), A Summary (Oct. 21, 1993), initiating the passage of Fla. SB 12-C (1993).

In addition, gamesmanship of this sort defeats the underlying purpose of the workers’ compensation system to provide timely hearings and to allow for the prompt delivery of benefits to injured employees. See § 440.015, Fla. Stat. (2009). Specifically, last minute de-authorizations and authorizations of medical providers can cause meaningful delays in petition for benefits hearings and hinder a prompt determination of whether an injured employee is due payments and/or services.

Further, interpreting section 440.13(5)(e) to preclude medical testimony of previously authorized treating physicians could lead to absurd and unintended results. There are countless examples evidencing the need for a common sense interpretation of section 440.13(5)(e). For instance, if an authorized physician determines an employee has a zero percent impairment rating and needs no further treatment, the physician is no longer treating, as the employee has no condition to treat. Surely this previously authorized, but no longer “treating” physician is permitted to testify as to the employee’s condition. This scenario demonstrates the difficulties that may arise with the interpretation of section 440.13(5)(e) suggested by appellee. Thus, we find the JCC erred in excluding Dr. Smith’s testimony because the statutory provision is ambiguous on its face, and interpreting section 440.13(5)(e) as a per se ban against all de-authorized treating physicians contravenes the statute’s stated purpose, as well as may lead to many unintended quagmires. Further, because the JCC erred in excluding the testimony, the JCC likewise erred in failing to order an EMA as required when a disagreement arises between two admissible medical opinions pursuant to section 440.13(5)(e), Florida Statutes (Supp.1998). For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.

WEBSTER and THOMAS, JJ., concur.

       We recognize while there may exist credibility concerns with providers who have not examined a claimant for a number of years, the provider's medical opinion would still be admissible pursuant to the statute; however, the weight and credibility to be given that testimony would remain at the discretion of the JCC. Raban v. Federal Exp., 13 So.3d 140, 144 (Fla. 1st DCA 2009) (citing Frederick v. United Airlines, 688 So.2d 412, 413 (Fla. 1st DCA 1997)).


author: KAHN, J.

text:
    Donny ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6014.
    District Court of Appeal of Florida, First District.
    April 20, 2010.
    Rehearing Denied June 4, 2010.
    Donny Ross, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant Donny Ross appeals the trial court’s denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.800(a). The appellant alleges that he is entitled to additional credit for 82 days served in county jail prior to sentencing. Appellant does not, however, affirmatively allege “that the court records demonstrate on their face an entitlement to ... relief....” Fla. R.App. P. 3.800(a). Although jail-time credit is available under a Rule 3.800(a) proceeding, the prisoner “must demonstrate that the record shows an entitlement to additional jail credit....” Williams v. State, 4 So.3d 728 (Fla. 5th DCA 2009).

Here, appellant, in his quite straightforward motion, suggests that the records of the Escambia County Jail will show a period of his incarceration at that facility until he was transferred to the Florida Department of Corrections to begin serving the present sentence. We decline to read this as an allegation that the court records will demonstrate on their face entitlement to relief, due to our concern that appellant appears to be pointing toward extraneous evidence, not part of the court record. Accordingly, we conclude that the motion is facially insufficient.

AFFIRMED.

DAVIS and THOMAS, JJ., concur.


author: RAMIREZ, C.J.

text:
    Elba CARBAJAL, Appellant, v. FORFEITURE OF: U.S. CURRENCY $75,781.00: MIAMI-DADE POLICE DEPARTMENT, Appellee.
    No. 3D09-3360.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.
    Rehearing and Rehearing En Banc Denied June 25, 2010.

      Sinclair, Louis, Heath, Nussbaum & Za-vertnik, P.A., and Marshall Dore Louis, Miami, for appellant.
    Luis M. Fuste and Robert Knabe, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   RAMIREZ, C.J.

Elba Carbajal appeals the order finding probable cause in a forfeiture action for the amount of $75,781. We reverse because the money seized did not constitute an instrumentality of the charged offense.

On October 22, 2009, the government seized $75,781 in United States currency from Carbajal upon entry into the United States. Carbajal failed to report that she carried in excess of $10,000 in United States currency, as required by section 896.104(3), Florida Statutes (2009). The government sought to forfeit the funds seized from her.

Carbajal asserted a timely request for an adversarial probable cause hearing pursuant to section 932.703(2)(a), Florida Statutes (2009). On November 24, 2009, the trial court held an adversarial preliminary hearing.

The complaint contains the following factual allegations. Carbajal first stated that she had $5,000 in United States currency. During a secondary inspection, Carbajal stated that she had $8,000. Thereafter, she wrote on the back of the currency form that she was traveling with $40,000. She then produced four envelopes that contained a total of $40,000. Upon a further search, customs discovered another two envelopes that contained $34,781, for a total of $75,781. Carbajal stated that she acquired the money from her savings and property she sold in Venezuela. She admitted that she did not declare all of the money out of stupidity and fear that she would get in trouble.

It is well settled that under section 932.703(l)(a), Florida Statutes (2009), contraband may be forfeited if there exists probable cause to believe that the property was used in violation of the Florida Contraband Forfeiture Act. See State v. Glass, 657 So.2d 934 (Fla. 1st DCA 1995); Lamboy v. Metro-Dade Police Dep’t, 575 So.2d 1317, 1319 (Fla. 3d DCA 1991). Section 932.701(2)(a)(5), Florida Statutes (2009) defines a “contraband article” as “any personal property, including ... money ... or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.”

The department argued that Carbajal’s failure to report the seized money became an instrumentality in the commission of the felony of failure to report pursuant to section 896.104(3), Florida Statutes (2009). The trial court evidently agreed with this proposition, and it ultimately concluded that the seized money constituted contraband.

We disagree with the trial court’s finding of probable cause to maintain the forfeiture action. First, the record is devoid of any evidence that the subject funds were used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of any felony.

Further, the money seized was not an instrumentality in violation of section 896.104(3). In United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), the United States Supreme Court addressed the meaning of the term “instrumentality.” In that ease, the claimant was arrested as she exited the United States in possession of $357,144 in United States currency. Id. at 321, 118 S.Ct. 2028. The claimant pled guilty and pursued a bench trial on the forfeiture count. Id. At issue was whether the forfeiture was punitive in nature and thereby excessive. Id. at 321-22, 118 S.Ct. 2028. Although the issue of proportionality is not before us in this case, the United States Supreme Court’s commentary in Bajakaji-an about the term “instrumentality” is instructive. The Court stated in footnote 8:

Although the term “instrumentality” is of recent vintage, it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. “Instrumentality” forfeitures have historically been limited to the property actually used to commit an offense and no more. A forfeiture that reaches beyond this strict historical limitation is ipso facto punitive and therefore subject to review under the Excessive Fines Clause.

Id. at 333, 118 S.Ct. 2028 (citations omitted). Furthermore, in footnote 9, the Court explained:

The currency in question is not an instrumentality in any event. The Court of Appeals reasoned that the existence of the currency as a “precondition” to the reporting requirement did not make it an “instrumentality” of the offense. We agree; the currency is merely the subject of the crime of failure to report. Cash in a suitcase does not facilitate the commission of that crime as, for exain-ple, an automobile facilitates the transportation of goods concealed to avoid taxes. In the latter instance, the property is the actual means by which the criminal act is committed.

Id. at 334, 118 S.Ct. 2028 (citations omitted).

Florida law is consistent with the reasoning of Bajalcajian as there is no case that supports the proposition that undeclared money becomes an instrumentality in violation of the Florida Contraband Forfeiture Act. As in Bajakajian, the money seized here was thus not an instrumentality of the offense charged, i.e. failure to report. Carbajal’s failure to report, without more, did not become an instrumentality in the commission of the felony of failure to report.

The trial court then erred when it concluded that the money seized constituted contraband under section 932.703(l)(a). We therefore reverse the trial court’s finding of probable cause in this forfeiture action.

Reversed.

      . This Court notes that the correct spelling of appellant’s name is Elba Carvajal. We maintain the use of "Carbajal” for consistency purposes.