text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES-REPORT NO. 18-03.
    No. SC18-1875
    Supreme Court of Florida.
    December 20, 2018
    Laura K. Whitmore, Chair, Tampa, Florida, Jeffrey Alan Cohen, Vice Chair and Subcommittee Chair, Miami, Florida, and Honorable Stephanie W. Ray, Member, Supreme Court Committee on Standard Jury Instructions in Civil Cases, Tallahassee, Florida; and Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Bar Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee, following study and drafting by a subcommittee, and upon its own further consideration and refinement, has proposed a new set of civil jury instructions that cover the substantive cause of action for negligent infliction of emotional distress. Specifically, the following new instructions under new Section 420, Negligent Infliction of Emotional Distress, are proposed: 420.1 (Introduction); 420.2 (Summary of Claims); 420.3 (Greater Weight of the Evidence); 420.4 (Negligence); 420.5 (Legal Cause); 420.6 (Issues on Claim); and 420.7 (Burden of Proof on Claim). Prior to filing its report with the Court, the Committee published for comment its proposals in The Florida Bar News . One comment was received by the Committee, which resulted in additional notes on use to the instructions. The Court did not publish the Committee's proposals.

The negligent infliction of emotional distress instructions are in a format and style consistent with that approved by the Court in 2010 when the Court authorized for publication and use the reorganization of the civil jury instructions. See In re Std. Jury Instr. in Civil Cases-Report No. 09-01 (Reorganization of Civil Jury Instructions) , 35 So.3d 666 (Fla. 2010). In fact, the new instructions are either identical to, or largely patterned after, many of the counterpart substantive civil instructions under Section 400. Having considered the Committee's report, the comment submitted to the Committee, and the Committee's response to the comment, we authorize the new civil jury instructions for publication and use as set forth in the appendix to this opinion. New language is indicated by underlining. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes on use associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

SECTION 420 - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

420.1 Introduction

420.2 Summary of Claims

420.3 Greater Weight of the Evidence

420.4 Negligence

420.5 Legal Cause

420.6 Issues on Claim

420.7 Burden of Proof on Claim

Note on Use

The tort of "negligent infliction of emotional distress" is recognized in Florida. Champion v. Gray, 478 So.2d 17 (Fla. 1985); Zell v. Meek, 665 So.2d 1048 (Fla. 1995). The boundaries of this cause of action, the persons who may recover, and the relationships that form the basis of recovery will be established by the courts of this state on a case-by-case basis. Champion, at 21-22 (Alderman, J., concurring specially). These instructions should not be given if the plaintiff suffered an impact of any type. See generally Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla. 2007). The essence of impact is that the "outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiff's body." Id. If there was an impact, the jury instructions given would be governed by the principles for the type of tort involved and the resulting damages.

420.1 INTRODUCTION

Members of the jury, you have now heard and received all of the evidence in this case. I am now going to tell you about the rules of law that you must use in reaching your verdict. [You will recall at the beginning of the case I told you that if, at the end of the case I decided that different law applies, I would tell you so. These instructions are (slightly) different from what I gave you at the beginning and it is these rules of law that you must now follow.] When I finish telling you about the rules of law, the attorneys will present their final arguments and you will then retire to decide your verdict.

420.2 SUMMARY OF CLAIMS

The claims in this case are as follows. (Claimant) claims that (defendant) was negligent in (describe alleged negligence) which inflicted emotional distress on (claimant).

(Defendant) denies that claim and that (describe any affirmative defenses).

The parties must prove all claims (and defenses) by the greater weight of the evidence. I will now define some of the terms you will use in deciding the case.

420.3 GREATER WEIGHT OF THE EVIDENCE

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

NOTES ON USE FOR 420.3

1. Greater or lesser number of witnesses. The committee recommends that no charge be given regarding the relationship (or lack of relationship) between the greater weight of the evidence and the greater or lesser number of witnesses.

2. Circumstantial evidence. The committee recommends that no charge generally be given distinguishing circumstantial from direct evidence. See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960).

420.4 NEGLIGENCE

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

420.5 LEGAL CAUSE

a. Legal cause generally:

Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the conduct, the [loss] [injury] [or] [damage] would not have occurred.

b. Concurring cause:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage] negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].

c. Intervening cause:

Do not use the bracketed first sentence if this instruction is preceded by the instruction on concurring cause:*
* [In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be its only cause.] Negligence may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] occurring after the negligence occurs if [such other cause was itself reasonably foreseeable and the negligence contributes substantially to producing such [loss] [injury] [or] [damage]] [or] [the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the negligence and the negligence contributes substantially to producing it].

NOTES ON USE FOR 420.5

1. Instruction 420.5a (legal cause generally) is to be given in all cases. Instruction 420.5b (concurring cause), to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his or her negligence by reason of some other cause concurring in time and contributing to the same damage. Instruction 420.5c (intervening cause) is to be given only in cases in which the court concludes that there is a jury issue as to the presence and effect of an intervening cause.

2. The jury will properly consider instruction 420.5a not only in determining whether defendant's negligence is actionable but also in determining whether claimant's negligence contributed as a legal cause to claimant's damage, thus reducing recovery.

3. Instruction 420.5b must be given whenever there is a contention that some other cause may have contributed, in whole or part, to the occurrence or resulting injury. If there is an issue of aggravation of a preexisting condition or of subsequent injuries/multiple events, instructions 501.5a or 501.5b should be given as well. See Hart v. Stern, 824 So.2d 927, 932-34 (Fla. 5th DCA 2002); Marinelli v. Grace, 608 So.2d 833, 835 (Fla. 4th DCA 1992).

4. Instruction 420.5c (intervening cause) embraces two situations in which negligence may be a legal cause notwithstanding the influence of an intervening cause: (1) when the damage was a reasonably foreseeable consequence of the negligence although the other cause was not foreseeable, Mozer v. Semenza, 177 So.2d 880 (Fla. 3d DCA 1965), and (2) when the intervention of the other cause was itself foreseeable, Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla. 1980).

5. "Probable" results. The committee recommends that the jury not be instructed that the damage must be such as would have appeared "probable" to the actor or to a reasonably careful person at the time of the negligence. In cases involving an intervening cause, the term "reasonably foreseeable" is used in place of "probable." The terms are synonymous and interchangeable. See Sharon v.

Luten, 165 So.2d 806, 810 (Fla. 1st DCA 1964); Prosser, Torts 291 (3d ed.); 2 Harper & James, The Law of Torts, 1137.

6. The term "substantially" is used throughout the instruction to describe the extent of contribution or influence negligence must have in order to be regarded as a legal cause. "Substantially" was chosen because the word has an acceptable common meaning and because it has been approved in Florida as a test of causation not only in relation to defendant's negligence, Loftin v. Wilson, 67 So.2d 185, 191 (Fla. 1953), but also in relation to plaintiff's comparative negligence, Shayne v. Saunders, 176 So. 495, 498 (Fla. 1937).

420.6 ISSUES ON CLAIM

The issues you must decide on (claimant's) claim against (defendant) are whether:

a. (Defendant) was negligent in causing injury to (name of injured/deceased) by (describe alleged negligence);
b. (claimant) was involved in some way in the event causing the injury (describe the event) to (name of injured/deceased);
c. (claimant) had a close personal relationship to (name of injured/deceased);
d. (claimant) suffered a physical injury; and
e. the physical injury was caused by the emotional distress.

Notes on Use for 420.6

1. The elements of negligent infliction of emotional distress are found in Champion v. Gray, 478 So.2d 17 (Fla. 1985) and Zell v. Meek, 665 So.2d 1048 (Fla. 1995).

2. "The requirement that the physically injured person be directly involved in the event causing the original injury must also be scrutinized on a case-by-case basis. Proximity to the accident in time and space does not necessarily mean only direct and immediate sight or hearing at the scene of the accident.

Rather, there may be recovery in instances where there is a direct perception of some of the events making up the entire accident, including the immediate aftermath of the accident. This would include but not be limited to the factual situation found in McLoughlin [ v. O'Brian, [1982] 2 All E.R. 298 (Eng.H.L.1982)]." Zell v. Meek, 665 So.2d 1048, 1052-53 (Fla. 1995) quoting Champion v. Gray, 478 So.2d 17, 22 (Alderman, J. concurring) (Fla. 1985).

3. The element of a physical injury is also unnecessary for claims from ingesting contaminated food or drink, where a psychotherapist breaches the statutory duty of confidentiality and privacy, an entity discloses the results of a person's HIV test in violation of Florida Statutes, intentional torts resulting predominantly in emotional damages, freestanding torts such as wrongful birth or negligent stillbirth, and any case where the tortfeasor's negligence may be characterized as willful and wanton. See Florida Dept. of Corrections v. Abril, 969 So.2d 201 (Fla. 2007); Rowell v. Holt, 850 So.2d 474 (Fla. 2003); Gracey v. Eaker, 837 So.2d 348 (Fla. 2002); Hagen v. Coca Cola Bottling Co., 804 So.2d 1234 (Fla. 2001); Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), Kush v. Lloyd, 616 So.2d 415 (Fla. 1992); and Brady v. SCI Funeral Services of Florida, Inc., 948 So.2d 976 (Fla. 1st DCA 2007).

4. There is no requirement that a party have a legal relationship with the injured or deceased person in order to bring a claim for negligent infliction of emotional distress. Watters v. Walgreen Co., 967 So.2d 930 (Fla. 1st DCA 2007). Whether a particular relationship qualifies as a "close personal relationship" will depend on the facts of the particular case, and "is typically a question of fact." Id. at 932 (citing Zell v. Meek, 665 So.2d 1048 (Fla. 1995)).

5. Examples of physical injuries resulting from emotional distress can be found in Zell v. Meek, 665 So.2d 1084 (Fla. 1995) (stomach pains, esophageal blockage, fibromyalgia, irritable bowel, and muscle tightness) and Champion v. Gray, 478 So.2d 17 (Fla. 1985) (death).

420.7 BURDEN OF PROOF ON CLAIM

If the greater weight of the evidence does not support (claimant's) claim, your verdict should be for (defendant).

However, if the greater weight of the evidence supports (claimant's) claim, [then your verdict should be for (claimant) and against (defendant) ] [then you shall consider the defense raised by (defendant) ].

[If the greater weight of the evidence supports the defense, your verdict should be for (defendant). However, if the greater weight of the evidence does not support the defense, your verdict should be for (claimant) and against (defendant). ]

      Minor editorial or technical changes to the proposed instructions or notes on use are not elaborated upon.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2018-11.
    No. SC18-1717
    Supreme Court of Florida.
    December 20, 2018
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to five existing standard criminal jury instructions: 3.13 (Submitting Case to Jury); 8.22 (Written Threat to [Kill] [Do Bodily Injury] ); 11.14(h) (Sexual Offender Definitions); 11.15(l ) (Sexual Predator Definitions); and 21.11 (Harassing a [Witness] [Victim] [Informant] ). The proposals were published by the Committee in The Florida Bar News ; one comment was received from the Florida Public Defender Association (FPDA) concerning the proposed amendments to instruction 8.22. The proposals were not published by the Court after having been filed by the Committee.

Having considered the Committee's report, the FPDA comment, and the Committee's response thereto, we authorize the standard jury instructions as proposed by the Committee for publication and use. We discuss the more significant amendments below.

First, with regard to instruction 3.13, the sentence "If a juror goes to the restroom, the deliberations should stop until the juror returns" is added. Next, to bring the criminal instructions into harmony with the Standard Civil Jury Instructions, the phrase "signed by a foreperson" is removed from the paragraph pertaining to written communication between jurors and the trial judge. See, e.g. , Fla. Std. Jury Instr. (Civ.) 700.

Next, instruction 8.22 is amended to add "conduct a mass shooting" and "conduct an act of terrorism" to the title of the instruction and name of the crime in response to amendments made by the Legislature to section 836.10, Florida Statutes (2018). See Ch. 2018-3, § 17, at 26, Laws of Fla. Additionally, italicized notes are added that explain there are two ways to violate section 836.10. The first three elements in the existing standard instruction track the language of the statute before the 2018 amendment. In response to the 2018 amendment, new elements are added reading:

1. (Defendant) [made] [posted] [transmitted] a writing or other record.
2. The writing or other record contained a threat to conduct [a mass shooting] [or] [an act of terrorism].
3. (Defendant) [made] [posted] [transmitted] the writing or other record in a manner that allowed another person to view the threat.

Finally, a note apprising trial judges and attorneys of a possible First Amendment concern and a citation to Elonis v. United States , --- U.S. ----, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), are added to the comments section of the instruction.

Instructions 11.14(h) and 11.15(l ) are modified to reduce the length of time for a person to qualify as living in a "permanent residence," "temporary residence," or "transient residence" from five days to three days. These changes are based on legislative amendments to section 775.21(2), Florida Statutes (2018). See Ch. 2018-105, § 1, at 1, Laws of Fla. Additionally, the definition of "motor vehicle" in these instructions is amended to include the terms "personal delivery services" and "mobile carriers." See Ch. 2018-130, § 5, at 4-5, Laws of Fla.; see also § 320.01(1)(a), Fla. Stat. (2018).

Having considered the Committee's report, the comment, and the Committee's response thereto, we authorize for publication and use amended instructions 3.13, 8.22, 11.14(h), 11.15(l ) and 21.11, as proposed, and as set forth in the appendix to this opinion. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

3.13 SUBMITTING CASE TO JURY

In just a few moments you will be taken to the jury room by the [court deputy] [bailiff]. The first thing you should do is choose a foreperson who will preside over your deliberations. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard. It is also the foreperson's job to sign and date the verdict form [s] when all of you have agreed on a verdict and to bring the verdict form [s] back to the courtroom when you return.

During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. If a juror goes to the restroom, the deliberations should stop until the juror returns. You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you during deliberations. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the [court deputy] [bailiff].

Give if judge has allowed jurors to keep their electronic devices during the trial.

Many of you may have cell phones, tablets, laptops, or other electronic devices here in the courtroom. The rules do not allow you to bring your phones or any of those types of electronic devices into the jury room. Kindly leave those devices on your seats where they will be guarded by the [court deputy] [bailiff] while you deliberate.

If you need to communicate with me, send a note through the [court deputy] [bailiff] , signed by the foreperson . If you have voted, do not disclose the actual vote in the note.

If you have a questions, I will talk with the attorneys before I answer, so it may take some time. You may continue your deliberations while you wait for my answer. I will answer any questions, if I can, in writing or orally here in open court.

Give if applicahle.

During the trial, [an item] [items] [was] [were] received into evidence as [an] exhibit[s]. You may examine whatever exhibit[s] you think will help you in your deliberations.

Give a or b as appropriate.

a. The[se] exhibit[s] will be sent into the jury room with you when you begin to deliberate.
b. If you wish to see an[y] exhibit[s], please request that in writing.

In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For more than two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

Comment

This instruction was adopted in 1981 and was amended in 2000 [777 So.2d 366], 2003 [850 So.2d 1272], 2010 [52 So.3d 595], 2012 [141 So.3d 132], 2014 [152 So.3d 529],and 2016 [202 So.3d 830], and 2018.

8.22 WRITTEN THREAT TO [KILL] [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM]

§ 836.10, Fla. Stat.

To prove the crime of Written Threat to [Kill] [Do Bodily Injury] [Conduct a Mass Shooting] [Conduct an Act of Terrorism] , the State must prove the following three elements beyond a reasonable doubt:

* There are two ways to violate § 836.10, Fla. Stat. Give as applicable.
1. (Defendant) [wrote] [composed] a[n] [letter] [electronic communication] [inscribed communication].
2. The [letter] [electronic communication] [inscribed communication] contained a threat to [kill] [do bodily injury to] [(victim)] [any member of (victim's) family].
3. (Defendant) [sent] [procured the sending of] that [letter] [electronic communication] [inscribed communication] to (victim).

Give if applicable.

It is not necessary for the State to prove that the [letter] [electronic communication] [inscribed communication] had been signed.

Definitions. Give if applicable.

An "inscribed communication" is a communication that is written or printed.

To "procure" means to persuade, induce, prevail upon, or cause a person to do something.

*The second way to violate § 836.10, Fla. Stat. is set forth below.

1. (Defendant) [made] [posted] [transmitted] a writing or other record.
2. The writing or other record contained a threat to conduct [a mass shooting] [or] [an act of terrorism].
3. (Defendant) [made] [posted] [transmitted] the writing or other record in a manner that allowed another person to view the threat.

A "record" includes an electronic record.

Lesser Included Offenses

WRITTEN THREAT TO [KILL] OR [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM] - 836.10 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Assault 784.011 8.1

Comments

The statute may raise First Amendment concerns. Trial judges and attorneys should consider Elonis v. United States, 135 S.Ct. 2001 (2015) and Saidi v. State, 845 So.2d 1022 (Fla. 5th DCA 2003).

It is not necessary for the State to prove the defendant had the actual intent to do harm or the ability to carry out the threat.Saidi v. State, 845 So.2d 1022 (Fla. 5thDCA 2003).

The name of (victim) in the first set of elements 2 and 3 must be the same person.

There is no statutory definition for the term "electronic communication." In the absence of case law, trial judges will have to fashion their own definition, perhaps by looking atFla. Stat. § 934.02(12), Fla. Stat. andFla. Stat. § 668.602(7), Fla. Stat. The definition for inscribed communication comes from the dictionary definition of the word inscribed. The definition of procure comes from the manslaughter standard instruction.

*The act of posting a message on social media that threatened to "shoot up" a school did not constitute a violation of law under the clause of § 836.10, Fla. Stat., that prohibits the sending of threats to a specific victim because it was not sent directly to the victims. J.A.W. v. State, 210 So.3d 142 (Fla. 2d DCA 2016). In response to J.A.W., the Legislature created an alternative way to commit the crime by removing the requirement that the threat be sent to the person threatened.

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2018.

11.14(h) SEXUAL OFFENDER DEFINITIONS

§ 943.0435(1), Fla. Stat.

Definitions.

"Sexual offender" means a person who (Insert the appropriate criteria specified by § 943.0435(1)), Fla. Stat.

"Convicted" means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For juvenile, military, federal and out of state convictions see § 943.0435(1), Fla. Stat.)

"Change in status at an institution of higher education" means the commencement or termination of enrollment, including, but not limited to, traditional classroom setting or online courses, or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education.

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Internet identifier" means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. "Internet identifier" does not include a date of birth, social security number, personal identification number (PIN), or password.

"Social Internet communication" means any communication through a commercial social networking website or application software. The term does not include any of the following:

1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;

2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or

3. Communication with a governmental entity.

"Commercial social networking website" means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

"Application software" means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

"Physical residential address" does not include a post office box, but may be a location that has no specific street address.

"Permanent residence" means a place where the person abides, lodges, or resides for 5 3 or more consecutive days.

"Professional license" means the document of authorization or certification issued by an agency of this state for a regulatory purpose, or by any similar agency in another jurisdiction for a regulatory purpose, to a person to engage in an occupation or to carry out a trade or business.

"Temporary residence" means a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 3 or more days in the aggregate during any calendar year and which is not the person's permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

"Transient residence" means a place or county where a person lives, remains, or is located for a period of 5 3 or more days in the aggregate during a calendar year and which is not the person's permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

"Vehicles owned" means any motor vehicle which is registered, coregistered, leased, titled, or rented by a sexual predator or sexual offender; a rented vehicle that a sexual predator or sexual offender is authorized to drive; or a vehicle for which a sexual predator or sexual offender is insured as a driver. The term also includes any motor vehicle which is registered, coregistered, leased, titled, or rented by a person or persons residing at a sexual predator's or sexual offender's permanent residence for 5 3 or more consecutive days.

Personal delivery devices, mobile carriers, and special mobile equipment are defined in § 316.003, Fla. Stat. and should be defined if applicable.

"Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power [but the term does not include traction engines, road rollers, personal delivery devices, mobile carriers, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds].

["Motor vehicle" includes a recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.] There are additional definitions for recreational vehicle-type units in § 320.01(1)(b), Fla. Stat. that may need to be given.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2016 [195 So.3d 1088], and 2018 [249 So.3d 554], and 2018.

11.15(l ) SEXUAL PREDATOR DEFINITIONS

§ 775.21(2) and (4), Fla. Stat.

Definitions.

"Sexual predator" means a person who:

has been designated a sexual predator, in a written order of a Florida court, on or after October 1, 1993; and has not received a pardon for the offense(s) necessary for the designation as a sexual predator; and the written order designating the defendant a sexual predator has not been set aside in any judicial proceeding.

"Change in status at an institution of higher education" means the commencement or termination of enrollment, including, but not limited to, traditional classroom setting or online courses, or employment, whether for compensation or as a volunteer, at an institution of higher education or a change in location of enrollment or employment, whether for compensation or as a volunteer, at an institution of higher education.

"Community" means any county where the sexual predator lives or otherwise establishes or maintains a permanent, temporary, or transient residence.

"Convicted" means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (Note to Judge: For military, federal and out of state convictions, see § 775.21(2)(e), Fla. Stat.)

"Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.

"Institution of higher education" means a career center, community college, college, state university, or independent postsecondary institution.

"Internet identifier" means any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. "Internet identifier" does not include a date of birth, social security number, personal identification number (PIN), or password.

"Social Internet communication" means any communication through a commercial social networking website or application software. The term does not include any of the following:

1. Communication for which the primary purpose is the facilitation of commercial transactions involving goods or services;

2. Communication on an Internet website for which the primary purpose of the website is the dissemination of news; or

3. Communication with a governmental entity.

"Commercial social networking website" means a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger.

"Application software" means any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger.

"Physical residential address" does not include a post office box, but may be a location that has no specific street address.

"Permanent residence" means a place where the person abides, lodges, or resides for 5 3 or more consecutive days.

"Professional license" means the document of authorization or certification issued by an agency of this state for a regulatory purpose, or by any similar agency in another jurisdiction for a regulatory purpose, to a person to engage in an occupation or to carry out a trade or business.

"Temporary residence" means a place where the person abides, lodges, or resides including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 3 or more days in the aggregate during any calendar year and which is not the person's permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state.

"Transient residence" means a place or county where a person lives, remains, or is located for a period of 5 3 or more days in the aggregate during a calendar year and which is not the person's permanent or temporary address. The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address.

"Vehicles owned" means any motor vehicle which is registered, coregistered, leased, titled, or rented by a sexual predator or sexual offender;

a rented vehicle that a sexual predator or sexual offender is authorized to drive; or a vehicle for which a sexual predator or sexual offender is insured as a driver. The term also includes any motor vehicle which is registered, coregistered, leased, titled, or rented by a person or persons residing at a sexual predator's or sexual offender's permanent residence for 5 3 or more consecutive days.

Personal delivery devices, mobile carriers, and special mobile equipment are defined in § 316.003, Fla. Stat. and should be defined if applicable.

"Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power [but the term does not include traction engines, road rollers, personal delivery devices, mobile carriers, special mobile equipment, vehicles that run only upon a track, bicycles, swamp buggies, or mopeds].

["Motor vehicle" includes a recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.] There are additional definitions for recreational vehicle-type units in § 320.01(1)(b), Fla. Stat. that may need to be given.

Comment

This instruction was adopted in 2008 [983 So.2d 531] and amended in 2012 [85 So.3d 1090], 2013 [113 So.3d 754], 2016 [195 So.3d 1088],and2018 [249 So.3d 554], and 2018.

21.11 HARASSING A [WITNESS] [VICTIM] [INFORMANT]

§ 914.22(3), Fla. Stat.

To prove the crime of Harassing a [Witness] [Victim] [Informant], [Person], the State must prove the following three elements beyond a reasonable doubt:

Give as applicable.

1. (Defendant) intentionally [harassed] [attempted to harass] (name of person).
2. (Defendant) thereby [hindered] [attempted to hinder] [delayed] [attempted to delay] [prevented] [attempted to prevent] [dissuaded] [attempted to dissuade] [a person] [(name of person)] from
a. attending or testifying in an official proceeding or cooperating in an official investigation.
b. reporting to a law enforcement officer or judge the commission or possible commission of [an offense] [a violation of a condition of [probation] [parole] [release pending a judicial proceeding]].
c. arresting or seeking the arrest of another person in connection with an offense.
d. causing a [criminal prosecution] [[parole] [probation] revocation proceeding] to be sought or instituted or from assisting in such [prosecution] [proceeding].
3. The [official investigation] [official proceeding] [offense] [violation of a condition of [probation] [parole] [release]] [affected] [attempted to be affected], involved the investigation or proceedingprosecution of a[n] [non-criminal offense] [misdemeanor] [third degree felony] [second degree felony] [first degree felony [punishable by a term of years not exceeding life]] [life felony] [capital felony] [offense of indeterminable degree].

Give if requested and if applicable.

§ 914.22(5)(a), Fla. Stat.

The State does not have to prove that an official proceeding was pending or about to be instituted at the time of this alleged offense.

§ 914.22(5)(b), Fla. Stat.

The State does not have to prove that the testimony or the record, document, or other thing was admissible in evidence [or free from a claim of privilege].

§ 914.22(6)(a), Fla. Stat.

The State does not have to prove that the defendant knew or should have known that the official proceeding before a judge, court, grand jury, or government agency, was before a judge or court of the state, a state or local grand jury, or a state agency.

§ 914.22(6)(b), Fla. Stat.

The State does not have to prove that the defendant knew or should have known that the judge is a judge of the state or that the law enforcement officer is an officer or employee of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant.

Definitions. § 914.21, Fla. Stat., Give as applicable.

"Official investigation" means any investigation instituted by a law enforcement agency or prosecuting officer of the state or a political subdivision of the state or the Commission on Ethics.

"Official proceeding" means:

a. A proceeding before a judge or court or a grand jury;
b. A proceeding before the Legislature;
c. A proceeding before a federal agency that is authorized by law; or
d. A proceeding before the Commission on Ethics.

Lesser Included Offense

The degree of this crime depends on the severity of the underlying offense that is the subject of the harassment.See § 914.22(4), Fla. Stat.

Comment

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2018.

      The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


author: LAWSON, J.

text:
    LEE MEMORIAL HEALTH SYSTEM, Appellant, v. PROGRESSIVE SELECT INSURANCE COMPANY, Appellee.
    No. SC17-1993
    Supreme Court of Florida.
    December 20, 2018
    Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, Florida, for Appellant
    Valerie A. Dondero of Kubicki Draper, P.A., Miami, Florida, for Appellee
    David A. Wallace of Bentley & Bruning, P.A., Sarasota, Florida, for Amicus Curiae Safety Net Hospital Alliance of Florida
    Angela C. Flowers and Bretton C. Albrecht of Kubicki Draper, P.A., Ocala, Florida, for Amicus Curiae Geico General Insurance Company
    John P. Joy and Sara M. Sandler of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, Florida, for Amicus Curiae Allstate Insurance Company
   LAWSON, J.

This case is before the Court on appeal from a decision of the Second District Court of Appeal, Lee Memorial Health System v. Progressive Select Insurance Co. , 230 So.3d 558 (Fla. 2d DCA 2017), which held chapter 2000-439, section 18, Laws of Florida, ("the LMHS Lien Law") invalid under the Florida Constitution. This Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution.

The Second District held that the LMHS Lien Law violates article I, section 10 and article III, section 11(a)(9) of the Florida Constitution. For the reasons explained below, we agree with the Second District as to the violation of article III, section 11(a)(9) and therefore approve of and affirm that part of the opinion. However, we disagree with the Second District's decision to reach the question of whether the LMHS Lien Law violates article I, section 10, as well as an additional issue pertaining to the damages available under the statute. Accordingly, we reverse those portions of the Second District's opinion.

FACTS AND PROCEDURAL HISTORY

Lee Memorial Health System is a "public health care system in Lee County" created by chapter 2000-439, Laws of Florida, and is the beneficiary of certain rights against private citizens and companies under the LMHS Lien Law.

Lee Mem'l Health Sys. v. Progressive Select Ins. Co. , 230 So.3d 558, 559 (Fla. 2d DCA 2017). Specifically, the LMHS Lien Law entitles Lee Memorial to liens for its charges for healthcare services, defines what actions constitute impairment of those liens, and creates a cause of action to recover damages for impairment of those liens by others-including persons, firms, or corporations who are neither the providers nor the beneficiaries of the healthcare services at issue. To these ends, the LMHS Lien Law provides as follows:

Lee Memorial Health System shall be entitled to a lien for all reasonable charges for hospital, physician, or other health care services provided by the Lee Memorial Health System to ill or injured persons, upon the proceeds of all causes of action, suits, claims, counterclaims, and demands accruing to said persons or to their legal representatives, and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgments, settlements, or settlement agreements, which injuries shall have necessitated such hospital, physician, and other services provided to such ill or injured persons....
....
... No release or satisfaction of any cause of action, suit, claim, counterclaim, demand, judgment, settlement, or settlement agreement shall be valid or effectual as against the lien of Lee Memorial Health System unless the lienholder shall join therein or execute a release of its lien prior to the payment of any proceeds thereof. Any acceptance of a release or satisfaction of any cause of action, suit, claim, counterclaim, demand, judgment, settlement, or settlement agreement in the absence of a release or satisfaction of the lien of Lee Memorial Health System shall prima facie constitute an impairment of such lien and the lienholder shall be entitled to a cause of action for damages against any and all persons, firms, or corporations giving or accepting such release or satisfaction, or paying or accepting the proceeds from the same. In such action, Lee Memorial Health System may recover the full amount of its charges for such hospital, physician, or other health care services; regardless of the amount of proceeds paid or received in impairment of its lien.

Ch. 2000-439, § 18, Laws of Fla.

The constitutional challenge to this law arose out of a lawsuit filed by Lee Memorial against Progressive Select Insurance Company for the impairment of two liens Lee Memorial had filed based on the provision of medical treatment to an injured person. Lee Memorial Health Sys. , 230 So.3d at 559-60. Lee Memorial alleged that Progressive impaired these liens by settling a claim with the injured person on behalf of Progressive's insured without the knowledge or consent of Lee Memorial and without the satisfaction or release of Lee Memorial's liens. Id. at 560.

In the trial court, Progressive moved for summary judgment, raising three arguments relevant to our review. First, Progressive argued that the LMHS Lien Law is "unconstitutional as a special law pertaining to the creation, enforcement, extension and/or impairment of liens based on private contracts in violation of Article III, § 11(a)(9), of the Florida Constitution." Id. Second, Progressive argued that chapter 2000-439 "is an unconstitutional impairment of the insurance contract between Progressive and its insured ... under Article I, § 10 of the Florida Constitution." Id. Third, Progressive argued in the alternative that, if Lee Memorial is entitled to any recovery for the impairment of its lien, that recovery must be limited to the amount of the settlement proceeds and/or the limits of the insurance policy, rather than for the amount of the entire hospital lien. The trial court entered final summary judgment for Progressive, declaring the LMHS Lien Law unconstitutional under article III, section (11)(a)(9). The trial court's order was silent as to the remaining issues.

Lee Memorial appealed the trial court's decision to the Second District, arguing error as to the issue decided. Progressive responded to this argument and further requested that the Second District address the damages issue in the event it found the LMHS Lien Law constitutional. The Second District affirmed the trial court, not only because it determined that the LMHS Lien Law violates article III, section 11(a)(9), but also because it determined that the LMHS Lien Law violates the constitutional prohibition against the impairment of contracts under article I, section 10. Lee Mem'l Health Sys. , 230 So.3d at 560-64. The Second District also addressed the damages issue, viewing Progressive's arguments concerning that provision of the LMHS Lien Law as part of the contract-impairment issue. See id. at 564. Accordingly, the Second District declared the LMHS Lien Law unconstitutional under article I, section 10, and article III, section (11)(a)(9). Id. Lee Memorial appealed the Second District's decision to this Court pursuant to our mandatory jurisdiction to review decisions of district courts that declare state statutes invalid.

ANALYSIS

Lee Memorial argues that the Second District erred in addressing the contract-impairment issue because that issue was not raised to the Second District and the Attorney General was not served with proper notice as to that issue under Florida Rule of Civil Procedure 1.071. Lee Memorial further argues that the Second District erred on the merits as to both constitutional rulings. We agree with Lee Memorial that the Second District should not have addressed the contract-impairment issue. Progressive did not serve proper notice on the Attorney General, and the trial court's decision not to rule on that issue was therefore proper. Accordingly, we reverse the portion of the Second District's decision declaring the LMHS Lien Law a violation of article I, section 10 and do not address the merits of this claim. However, we disagree with Lee Memorial as to the violation of article III, section 11(a)(9). We agree with the trial court and the Second District that the LMHS Lien Law violates article III, section 11(a)(9) as a special law pertaining to the "creation, enforcement, extension or impairment of liens based on private contracts." This holding renders Progressive's arguments concerning the statutory damages moot. We explain our determinations as to the Second District's error in addressing the contract-impairment issue and the Second District's correct holding as to the article III, section 11(a)(9) below.

A. Notice Requirement of Rule 1.071

Rule 1.071 provides the following requirements for challenging the constitutionality of a law:

A party that files a pleading, written motion, or other document drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must promptly
(a) file a notice of constitutional question stating the question and identifying the document that raises it; and (b) serve the notice and the pleading, written motion, or other document drawing into question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise on the Attorney General or the state attorney of the judicial circuit in which the action is pending, by either certified or registered mail.

Fla. R. Civ. P. 1.071.

In this case, Progressive filed a "notice of constitutional question" and served it on the proper parties before the summary judgment hearing. However, this notice indicated only that the statute was being challenged under article III, section 11(a)(9), not that it was also being challenged under article I, section 10. After receiving full arguments from the parties on the merits of both constitutional issues at the summary judgment hearing, the trial court orally ruled that the article I, section 10 issue was not ripe for decision because Progressive had not served notice on the Attorney General or the State Attorney as to that issue. The trial court also announced its decision as to article III, section 11(a)(9) and directed Progressive's counsel to prepare an order consistent with its rulings. After the hearing, Progressive filed and served a new notice on the Attorney General and the State Attorney. Nevertheless, the trial court's order granting Progressive's motion for summary judgment is silent as to the contract-impairment issue.

Failure to comply with rule 1.071 bars consideration of a claim that would result in the striking of a state statute as unconstitutional. Shelton v. Bank of New York Mellon , 203 So.3d 1003, 1005 (Fla. 2d DCA 2016) (citing Diaz v. Lopez , 167 So.3d 455, 460 n.10 (Fla. 3d DCA 2015) ). It is undisputed that Progressive failed initially to comply with rule 1.070. Progressive argues that it cured this non-compliance by serving notice on the Attorney General and the State Attorney concerning the contract-impairment issue after the summary judgment hearing, making the issue an appropriate consideration for the Second District. We disagree. By the time Progressive attempted to cure the defect in its notice, the trial court had already announced its decision not to address the issue and given directions for the preparation of an order disposing of the motion for summary judgment and, ultimately, the case. Progressive's notice was therefore not prompt as required by rule 1.071 and did not provide the State a sufficient opportunity to participate in the trial court proceedings. The trial court was not required to conduct further proceedings and possibly delay the case pending a decision by the State as to whether to participate. For these reasons, the Second District should not have disregarded the trial court's appropriate determination that the contract-impairment issue was not properly before the court and decided an issue that was not addressed in the parties' briefs. Accordingly, we reverse that portion of the Second District's opinion and decline to address the merits of the contract-impairment issue.

B. Article III, section 11 (a)(9)

The constitutional provision that controls the outcome of this proceeding is article III, section 11(a)(9), which provides in pertinent part as follows:

There shall be no special law or general law of local application pertaining to ... creation, enforcement, extension or impairment of liens based on private contracts ....

It is undisputed that the LMHS Lien Law is a "special law ... pertaining to ... creation, enforcement, extension or impairment of liens." Art. III, § 11(a)(9), Fla. Const. The question presented for our decision is whether those liens are "based on private contracts." We conclude that they are, as illustrated by the facts of this case, involving a lien based on a contract for the receipt of and payment for medical treatment between Lee Memorial and a patient. We therefore conclude that the LMHS Lien Law is unconstitutional.

Both the constitutionality of a statute and its meaning are issues of law that this Court reviews de novo. Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. , 97 So.3d 204, 209 (Fla. 2012).

The determination of the meaning of a constitutional provision begins with its plain language. Lawnwood Med. Ctr., Inc. v. Seeger , 990 So.2d 503, 510-11 (Fla. 2008). "If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written." Id. at 511 (quoting Fla. Soc'y of Ophthalmology v. Fla. Optometric Ass'n , 489 So.2d 1118, 1119 (Fla. 1986) ). If the language is ambiguous, this Court "must endeavor to construe the constitutional provision in a manner consistent with the intent of the framers and the voters." Ford v. Browning , 992 So.2d 132, 136 (Fla. 2008).

Widely circulated dictionaries are helpful for identifying the plain meaning of constitutional language. Lawnwood , 990 So.2d at 511 ; Myers v. Hawkins , 362 So.2d 926, 930 (Fla. 1978) (noting that the Court "initially consult[ed] widely circulated dictionaries, to see if there exists some plain, obvious, and ordinary meaning for the words or phrases approved for placement in the [c]onstitution"). Legal dictionaries can also be helpful. Lawnwood , 990 So.2d at 511. However, because the constitution is "an instrument from the people," widely circulated dictionaries can be even more indicative of the constitution's meaning than legal dictionaries are. See id. at 512 ("[U]nless the text of a constitution suggests that a technical meaning is intended, words used in the constitution should be given their usual and ordinary meaning because such is the meaning most likely intended by the people who adopted the constitution."). For the same reason, this Court takes into account the "common sense understanding" of words used in the constitution. See Lawnwood , 990 So.2d at 512.

Webster's Dictionary contains a multitude of definitions for "private" and "public." The most pertinent definitions, based on the usage examples provided, indicate that "private" has the following meanings: (1) "intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public," as in a private party; (2) "affecting the interests of a particular person, class or group of persons, or locality: not general in effect," as in a private act; and (3) "not known in public or carried on in public: not open," as in private negotiations or a private understanding. Private, Webster's Third New International Dictionary 1804-05 (unabr. 1981). Similarly, Black's Law Dictionary defines "private" as "[a]ffecting or belonging to private individuals, as distinct from the public generally." Private, Black's Law Dictionary 1358 (4th ed. 1968).

The most pertinent definitions of "public" include the following: (1) "of, relating to, or affecting the people as an organized community," as in a public holiday; (2) "authorized or administered by or acting for the people as a political entity," as in public expenditures; (3) "provided for, used by, or containing the records of a government agency," as in public documents; (4) "accessible to or shared by all members of the community," as in a public hearing; (5) "supported by or for the benefit of the people as a whole," as in public education or public welfare agencies; and (6) "providing services to the people on a business basis under some degree of civic or state control," as in the work of public agents on a railroad. Public, Webster's Third New International Dictionary 1836 (unabr. 1981). Black's Law Dictionary defines "public" as follows:

Pertaining to a state, nation, or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community. Open to all; notorious. Common to all or many; general; open to common use. Belonging to the people at large; relating to or affecting the whole people of a state, nation, or community; not limited or restricted to any particular class of the community.

Public, Black's Law Dictionary 1393 (4th ed. 1968) (citations omitted).

Lee Memorial contends that the contract must be public because Lee Memorial is a public entity. However, the term "private" in this constitutional provision modifies the contract, not the parties who have entered the contract. The subject matter of the contract is the provision of and payment for medical services, not the administrative operation of Lee Memorial.

The available definitions of "private" and "public" that are most reasonably applied to a contract, along with common sense, show that the contract at issue is private. The provision of medical services to the patient in this case and his agreement to pay for those services upon entry to the hospital are matters that are generally "intended for or restricted to the use of a particular person" and "not freely available to the public." Private, Webster's Third New International Dictionary 1804-05 (unabr. 1981). Like private negotiations, the performance of this contract was "not known in public or carried on in public." Id. Moreover, as in Mercury Insurance Co. of Florida v. Shands Teaching Hospital & Clinics, Inc. , 21 So.3d 38, 39 (Fla. 1st DCA 2009), quashed on other grounds , 97 So.3d 204 (Fla. 2012), where a similar law was found unconstitutional, the assets to which the liens attached were not "the public's assets, but rather ... the assets of the patient." In other words, the contract itself was to be funded by private assets. Thus, the contract at issue is a private contract.

Our conclusion that the contract at issue is private due to the subject matter, rather than the nature of one of the parties, as Lee Memorial would have us decide, is also consistent with the way in which the term "private contract" has been used in case law. See Ass'n. for Retarded Citizens, Dade County v. State, Dep't of Health & Rehabilitative Servs. , 619 So.2d 452, 454 (Fla. 3d DCA 1993) (referring to a settlement agreement between a private citizen and a state agency concerning a lawsuit by the citizen against the agency as "private"); Palm Beach County Classroom Teacher's Ass'n v. Sch. Bd. of Palm Beach County , 411 So.2d 1375, 1376 (Fla. 4th DCA 1982) (stating that "the provisions of a private agreement entered into by public bodies," referring to a teachers' union and a school board, "cannot be used to circumvent the requirements" of the Government in the Sunshine Act); Mills v. Doyle , 407 So.2d 348, 350-51 (Fla. 4th DCA 1981) (holding that the same "private" contract at issue in Palm Beach County Classroom Teacher's Association could not create exemptions from the public records law); J.C. Vereen & Sons, Inc. v. City of Miami , 397 So.2d 979, 983 (Fla. 3d DCA 1981) (recognizing a contract between a municipality and a landowner as a "private contract"). Although these references are made in passing, as Lee Memorial argues, rather than in an effort to define "private contract," they do reveal an implicit (and common) understanding by appellate courts in this state that public entities can enter into private contracts, which bears on the meaning of this term as used in this state's foundational governing document.

Our conclusion that the nature of a contract as public or private is not defined by the identity of a single party, but by the nature of the subject matter, is further supported by examples of case law identifying contracts as "public contracts" in cases involving competitive bidding for public works projects. See, e.g. , Miami-Dade County Sch. Bd. v. J. Ruiz Sch. Bus Serv., Inc. , 874 So.2d 59, 61 (Fla. 3d DCA 2004) ("Florida's competitive bid statutes were enacted for the benefit and protection of the public in that they are intended to ensure that the public receives the lowest and best price for goods and services and that public contracts are not awarded in an arbitrary and capricious manner."); State v. Dinsmore , 308 So.2d 32, 37 (Fla. 1975) (acknowledging, in a case concerning a criminal charge against a public official for unlawful interest in a public contract, that a "public contract" involves a "public work"). We agree with the Second District's observations in this case concerning the concept of a "public contract," as opposed to a private one:

[T]he concept of a "public contract" seems to exist solely within the framework of government procurement and almost always has to do with procurement of materials, supplies, and services. See, e.g. , Public Contracts, 41 U.S.C. §§ 3101 - 4712 (2011) (establishing federal procurement policy and contracting procedure); Miami-Dade Cty. Sch. Bd. ... , 874 So. 2d [at] 61...; Intercontinental Props., Inc. v. Dep't of Health & Rehab. Servs. , 606 So.2d 380, 385-86 (Fla. 3d DCA 1992) (discussing public policy considerations pertaining to public contracts); Satellite Television Eng'g, Inc. v. Dep't of Gen. Servs. , 522 So.2d 440 (Fla. 1st DCA 1988) (discussing the competitive bidding process for public contracts). In short, to the extent that the term "public contract" has been defined, that definition appears to be a contract between a government entity and a private party to perform a task (such as construction) or for the provision of equipment, goods, or services that is financed by public funds.

Lee Mem'l Health Sys. , 230 So.3d at 562-63. Indeed, one writer has observed that "[t]he vast body of literature on 'public contracts' tends to support" the view that "what distinguishes a public contract from a private one is whether the contract involves a public service or project," noting that "[s]uch contracts are extensively regulated and publicly scrutinized." Meta Calder, Florida's Hospital Lien Laws , 21 Fla. ST. U. L. Rev. 341, 361 (1993). She concludes that, "If this ... definition is correct, then contracts that form the basis for hospital liens are private." Id. at 361-62. We find this definition correct, based on our review of the plain language of the constitution, which is supported by examples of the manner in which that language has been used in case law. Thus, the LMHS Lien Law violates article III, section 11(a)(9) of the Florida Constitution.

CONCLUSION

For the reasons explained above, we affirm the Second District's ruling that the LMHS Lien Law is unconstitutional under article III, section 11(a)(9) of the Florida Constitution. We disapprove of the Second District's decision to reach the issues concerning contract impairment under article I, section 10 and find a discussion of the statutory damages unnecessary in light of our determination that the LMHS Lien Law cannot be enforced due to its violation of article III, section 11(a)(9). Accordingly, we affirm the result of Second District's decision but reverse the portion of the Second District's decision reaching the issues concerning contract impairment and the damages provision of the LMHS Lien Law.

It is so ordered.

CANADY, C.J., and PARIENTE, QUINCE, POLSTON, and LABARGA, JJ., concur.

LEWIS, J., concurs in result only.

      Amici curiae for Progressive raise additional issues. However, we decline to address those issues because "it is well-settled that amici are not permitted to raise new issues." League of Women Voters of Florida v. Detzner , 172 So.3d 363, 373 n.5 (Fla. 2015).

      The 1968 version of Black's Law Dictionary is cited because that version is contemporaneous with the adoption of article III, section 11(a)(9), and, accordingly, is the most reflective of the meaning of the words used therein. See Lawnwood , 990 So.2d at 511 n.10.

      Lee Memorial contends that the contract is public because it is evidenced by a form admissions agreement that every patient of the hospital is required to sign and that is available, at least in a redacted form, as a public record. We need not decide the extent to which the signed form would be available as a public record and conclude that, even if it is fully available to the public, that availability does not dictate the nature of the contract. It is the subject matter, the provision of and payment for healthcare services, that does.