2 Fla. L. Weekly Supp. 26a

Criminal law — Statute proscribing false and fraudulent insurance claims applies to first-party insureds, not to third parties — Personal injury attorney who submitted demand letter on behalf of injured client and intentionally excluded medical reports or, alternatively, attached fraudulent medical reports did not violate statute — Construing statute to incorporate third parties would render statute unconstitutionally vague for failure to notify those subject to its penalties — Counts alleging false and fraudulent insurance claims and counts relying on predicate acts which involve third party claims dismissed

STATE OF FLORIDA, Plaintiff, v. MARK MARKS, P.A., et al., Defendants. 17th Judicial Circuit in and for Broward County. Case Nos. 90-6433CF10-J & 93-501CF10. October 14, 1993. Robert Lance Andrews, Judge.

Additional rulings in this case at 2 Fla. L. Weekly 122a
Reversed in part; affirmed to limited extent at 20 Fla. L. Weekly D770a

ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION

THIS CAUSE came before the Court for consideration of Defendants, Mark Marks P.A.’s Motion for Reconsideration filed July 9, 1993, Defendant, Gary Mark’s Motion for Reconsideration of Prior Factual or Legal Rulings by Disqualified Judge filed July 9, 1993, and his Supplemental Motion for Reconsideration filed July 26, 1993. Upon review of this motion, this Court elected to re-examine the issues raised by the Motion Challenging Constitutionality of F.S. § 817.234. This Court having considered this motion, the submitted memoranda of law, the argument of counsel, the applicable law, and being otherwise fully advised, finds as follows:

The instant case has been handled by numerous judges and undergone several transformations. Merely sifting through the voluminous file in an attempt to answer even the most basic questions is a formidable task. The State initially filed its information in this case on December 20, 1989. The State refiled the information in March of 1990 and then amended it on August 21, 1991. This amended information contains 35 counts of which only 27 remain pending.

Generally, the amended information charges various defendants with engaging in illegal activities to enhance the settlement value of insurance claims. The amended information is filed against six Defendants: Marvin Mark Marks, Gary Marks, Mark Marks, P.A., Ronald Centrone, Carl Borgan, Irene Raddatz aka Irene Porter for violations of the RICO statute, conspiracy to engage in racketeering, organized scheme to defraud, and various counts of grand theft and insurance fraud. The State also brought charges against Denise Beloff and Noreen Roberts in Count 2 for conspiracy to engage in racketeering and in Count 3 for organized scheme to defraud.

The gravamen of the counts against the Defendants involve the alleged violation of the False and Fraudulent Insurance Claims statute, F.S. § 817.234. In Counts 19, 21, 31, 32, and 35, which are also Count 1’s predicate acts Q, S, CC, DD, and GG, respectively the State charges the Defendants with violating F.S. § 817.234(1)(a)(1). In Count 33 and predicate act EE, the State charges the Defendants with violating F.S. § 817.234(1)(a)(2) by preparing a medical report reportedly written by Dr. Centrone but dictated by Mark Marks. Florida Statutes § 817.234(1)(a) states:

(1)(a) Any person who, with the intent to injure, defraud, or deceive any insurance company, including, but not limited to, any statutorily created underwriting association or pool of insurers or any motor vehicle, life, disability, credit life, credit, casualty, surety, workers’ compensation, title, premium finance, reinsurance, fraternal benefit, or home or automobile warranty company:

1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or

2. Prepares or makes any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete or misleading information concerning any fact or thing material to such claim,

The State attempts to apply F.S. § 817.234(1)(a) to the use of a demand letter by an injured party’s attorney. The State concedes that a demand letter is not a claim. However, the State incorporates a demand letter within the statute’s definition of “statement” which provides:

“statement” includes, but is not limited to, any notice, statement, proof of loss, bill of lading, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, X-ray, test result, or other evidence of loss, injury or expense.

The State asserts that a demand letter constitutes a written statement in support of a claim. Consequently, the State claims that by submitting a demand letter and intentionally excluding medical reports or, alternatively, attaching fraudulent medical reports, the attorneys in this case violated this statute.

Additionally, the State charges the attorney Defendants with violating F.S. § 817.234(3) in Counts 15, 22, and 23, which are predicate acts M, T and U, respectively. Florida Statutes § 817.234(3) states:

Any attorney who knowingly and willfully assists, conspires with, or urges any claimant to fraudulently violate any of the provisions of this section or part XI of chapter 627, or any person who, due to such assistance, conspiracy, or urging on such attorney’s part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, is guilty of a felony of the third degree …

Defendants contend that F.S. § 817.234 suffers from the constitutional infirmities of vagueness and overbreadth. They insist that both the term “incomplete” and the term “statement” can proscribe practically any conduct, and therefore, the statute fails to give attorneys fair warning and risks arbitrary and discriminatory enforcement. Additionally, the Defendants assert that F.S. § 817.234(1)(a) applies only to first party claimants. The Defendants also maintain that an attorney’s demand letter is not a “statement.” Finally, the Defendants contend that the statute establishes classifications which are arbitrary and, therefore, violate equal protection.

The State rebuts this contention by maintaining that the scienter requirement cures whatever vagueness may admittedly be present in the statute. Furthermore, the State claims that the Court must effectuate the clear intent of the legislature to expand the scope of the statute to any person, including attorneys.

The vagueness doctrine emerged out of an effort to assure compliance with due process.¹ Wyche v. State, 619 So.2d 231 (Fla. 1993); S.E. Fisheries v. Dept. of Nat. Resources, 453 So.2d 1351 (Fla. 1984). The vagueness doctrine addresses two due process concerns: adequate notice and arbitrary and discriminatory enforcement. Id. If a penal statute does not give a person of common intelligence a reasonable opportunity to know what conduct it prohibits, the statute violates due process rights. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); State v. Wershow, 343 So.2d 605 (Fla. 1977); Bertens v. Stewart, 453 So.2d 92 (Fla. 2d DCA 1984). In evaluating a statute under the void for vagueness doctrine, a court must undertake a contextual analysis ascertaining “whether or not the party to whom the law applies has fair notice of what is prohibited.” S.E. Fisheries at 1354.

In the case at bar, the State’s application of this statute casts personal injury attorneys as the parties to whom this statute is directed. This Court has grave doubts that F.S. § 817.234(1)(a) as applied by the State in this case would apprise any personal injury attorney that submitting a demand letter on behalf of an injured party would subject the attorney to the punishment of this statute. While this Court agrees that the all-inclusive definition of the term “statement” may render the statute vague, the more significant source of vagueness lies in the term “person.” A personal injury attorney, familiar with the insurance code would not interpret the term “person” to include attorneys of injured third parties. Consequently, the attorney would not perceive that any conduct on his/her part could violate F.S. 817.234(1).

An analysis of the statute’s structure coupled with a review of statutes relating to the same subject matter, namely, the insurance code, evince a legislative intent that this statute apply solely to first-party insureds. In statutory construction, legislative intent is the pole star by which a court must be guided. Lee v. Gaddy, 183 So. 4 (Fla. 1938) citing State v. Sullivan, 95 Fla. 191, 116 So. 255, 261. A court should not give a literal interpretation that leads either to unreasonable conclusions or a purpose not contemplated by the legislature. State v. Miller, 468 So.2d 1051 (Fla. 4th DCA 1985).

The composition of F.S. § 817.234(1) itself suggests that it was not meant to apply to third-party liability cases. As the Defendants correctly indicate subsection (1) contains two parts which must be read with reference to each other to glean the proper meaning of the provision as a whole. By framing these parts within the same subsection instead of making them separate provisions, the legislature manifested an intent for these parts to be read in harmony with one another, not in isolation. While part (a) of subsection (1) begins with the term “any person,” part (b) states “All claims forms shall contain a statement in a form approved by the Department of insurance.” This subsection must exclude third parties because claim forms exist only for first party insurance claims.

An examination of the remaining subsections of the statute reinforces this construction. As the Defendants correctly note, subsections (2) and (4), applicable to doctors and hospitals, respectively, are limited to assisting, conspiring, or urging an insured party to fraudulently violate the statute. While subsection (3) employs the word “claimant,” it must also refer to insured parties, as it seeks to penalize the same type of conduct punishable in subsection (2) and (4). Interpreting “claimant” to mean anything other than “insured party” would result in a framework in which only the attorney is susceptible to punishment when urging fraud on the part of a third party while the doctor and hospital could only be prosecuted when urging a first party insured. Moreover, the statute’s reference to a violation of the No-Fault Act further supports this construction because that Act also applies only to first-party claims.

Furthermore, the legislature did not intend for 817.234 to be read in a vacuum but rather that it be viewed in the context of the insurance code. This statute first appeared as part of an act relating to liability and insurance in Chapter 76-266 of the Laws of Florida. The following year the legislature amended the statute when it passed “The Florida Insurance and Tort Reform Act of 1977.” The legislature renumbered the statute in 1979 again declaring it an act relating to insurance. This continued legislative pronouncement of the statute as part of an act relating to insurance evidences the legislature’s intent that it derive its meaning from the insurance code.

While many provisions of the code assist in construing this statute, it is the nonjoinder of insurers statute, currently F.S. 627.4136, which has the dispositive impact on its meaning. Only upon a review of the evolution of the nonjoinder statute can we comprehend how 817.234 applies only to insureds.

The initial statute and its various revisions grew out of tort reform. Originally, the common law in Florida as in other states prevented the joinder of insurance companies in lawsuits by an injured party against an alleged tortfeasor. Generally, insurance contracts included no direct action clauses which the courts upheld as valid. See Appleman, Ins. Law and Practice § 4853. However, in Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), the Florida Supreme Court allowed third parties to sue the insurance companies of the alleged tortfeasor directly. The Supreme Court concluded that the insurers were the real parties in interest in these cases and that the injured party was a third party beneficiary of the contract between the insured and the insurer. With this finding, the Florida Supreme Court departed from the common law approach which gave validity to no-action clauses universally contained in insurance contracts. While some states had abandoned the common law view through legislative enactments, Florida’s approach was unique in that the law was judicially altered.

Public Law 76-266 comprised the initial legislative response to Shingleton. However, the Florida Supreme Court held that by its terms the new non-joinder statute violated the separation of powers clause of the Florida Constitution by intruding on the rulemaking power of the Supreme Court over procedural matters, i.e., the joinder of parties. Markert v. Johnson, 367 So.2d 1003 (Fla. 1979).

Consequently, in 1982, the legislature redrafted the nonjoinder statute and this amended statute, tested in VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla. 1983), withstood constitutional attack. In VanBibber, the Court acknowledged that the legislature modified the third-party beneficiary concept set forth in Shingleton by proclaiming that injured parties held no rights in an insured’s liability policy until a judgment was obtained in an action against the insured. Unlike the prior enactment, the amended statute affected a party’s substantive rights and was not merely a procedural statute. Accordingly, the language of this statute did not invade the province of the judiciary.

The nonjoinder statute plays a vital role in understanding why the insurance fraud statute cannot apply to third parties. In its current form, the nonjoinder statute declares:

No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of the policy for a cause of action which is covered by such policy.

§ 627.4136, Fla. Stat. (1992).

This portion of the statute governs the meaning of “any person” in F.S. § 817.234(1) and claimant in F.S. § 817.234(3). The nonjoinder statute divests any party other than the insured of any interest in a liability insurance policy. No third-party has any interest in an insurance policy until which time such third party has obtained a settlement or verdict against the insured. Since the third-party possesses no interest in the policy, there can be no claim for payment under the policy by the third-party. Accordingly, the term “any person” in subsection 1 and “claimant” in subsection 3 can and should be construed as “any insured” as only the insured possesses an interest so only the insured can make a claim.² Moreover, the statute itself circumscribes the meaning of “claim” in defining it as “a claim for payment or other benefit pursuant to an insurance policy.” § 817.234(1), Fla. Stat. So, a third party demand letter could never satisfy this definition of claim because when it is submitted no interest exists.

To this date, no appellate cases within Florida have dealt with the constitutionality of the False and Fraudulent Insurance Claims Statute.³ However, several cases illustrate the impact of the Nonjoinder of Insurers statute and how the State’s application of F.S. § 817.234(1) to the attorneys of injured third parties makes the statute impermissibly vague.

The Fourth District Court of Appeal addressed the effect of the Nonjoinder of Insurers statute on F.S. § 627.7264 and § 624.155 in Lucente v. State Farm, 591 So.2d 1126 (Fla. 4th DCA 1992). In Lucente an injured third party filed suit against an insurance company as a result of the company’s repeated failure to respond to his requests for verification of the insured’s liability coverage. The Court read both statutes in pari materia with F.S. § 627.7262 and concluded that the statute deprived the plaintiff of standing to sue the insurance company until he obtained a judgment against the insured.

In the opinion of Cardenas v. Miami-Dade Yellow Cab Co., 538 So.2d 491 (Fla. 3d DCA 1989), Court confronted the issue of whether F.S. § 624.155 created a direct cause of action by an injured third party against an alleged tortfeasor’s insurer who fails to settle in good faith. Florida Statutes § 624.155 provides in relevant part:

(1) Any person may bring a civil action against an insurer when such person is damaged:

(a) By a violation of any of the following provisions by the insurer:

1. Section 626.954(1)(i) …;

(b) By the commission of any of the following acts by the insurer:

1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for his interests; …

§ 624.155(1), Fla. Stat. (1987). Despite the use of the term “any person,” the Cardenas Court held that the statute did not create a direct third-party cause of action. In arriving at this decision, the Court observed that the legislature is presumed to know the law at the time of the statute’s enactment. Cardenas at 496; Opperman v. Nationwide Mut. Fire Ins., 515 So.2d 263 (Fla. 5th DCA 1987); Ford v. Wainwright, 451 So.2d 471 (Fla. 1984). The Court further stated that upon “careful reading” of statute and those other statutes referred within it the Court found repeated references to the rights of first party insureds. Cardenas at 496. The Court concluded that the term “any person” had to be defined as any insured party; any other construction would be lead to an unreasonable result. Id.

The effect of nonjoinder was also evident in Aspen v. Bayless, 552 So.2d 298 (Fla. 2d 1989). The Second District Court of Appeals in Aspen felt constrained in holding that an insurance company is effectively barred from recovering costs it expends on the part of the insured. The Court reasoned that even though the plaintiff recovered less than defendant’s offer of judgment the defendant was not entitled to costs because the offer of judgment statutes assume the costs have been incurred by parties. As the nonjoinder of insurers statute provided that insurance companies are not considered parties until judgment is obtained by the injured party, no award of costs to the insurance carrier could be made. Id at 300.⁴

The case of State v. Book, 523 So.2d 636 (Fla. 3d DCA 1988) is also germane to our discussion. In Book, the State charged the Defendant with violating the False and Fraudulent Insurance Claims statute through oral statements made on a telephonic call to the insurance company. In determining that the proof of loss, while not a claim, was filed in support of a claim, the Court stated “Clearly, the intent of the Legislature in enacting F.S. § 817.234 was to make the filing of a false or fraudulent insurance claim a crime.” Id at 638 (emphasis added). The State’s argument discussing the relevance of the Book case misses the mark. The significance of Book is not that it dispenses with the formality of the claims process but instead that it emphasizes that a claim must be a prerequisite to violation of F.S. § 817.234.

These cases support the notion that third party plaintiffs have no rights under the policy of liability insurance or against the insurer until judgment is entered and, further, that to invoke the sanctions of F.S. § 817.234 the perpetrator must first file a claim or other statement in support of a claim. The cases suggest that the legislature did not intend to deviate from this course in the language of the False and Fraudulent Insurance Claims statute.

Construing F.S. § 817.234 to pertain only to first parties, is also consistent with other sections of the insurance code. Florida Statutes § 626.989, which defines “fraudulent insurance acts,” when read in pari materia with F.S. § 817.234 further bolsters the contention that legislature did not intend to include third parties within the term “any person.” Florida Statutes § 626.989 reads in pertinent part:

(1) For the purposes of this section, a person commits a “fraudulent insurance act” if he knowingly and with intent to defraud presents, causes to be presented, to or by an insurer, purported insurer, broker, or any agent thereof, any written statement as part of, or in support of, an application for the issuance of, or the rating of, an insurance policy for commercial insurance or a claim for payment or other benefit pursuant to an insurance policy for commercial or personal insurance, which he knows to contain materially false information concerning any fact material thereto.

§ 626.989, Fla.Stat. (1989) (emphasis added). Again, the statutory language presumes a claim pursuant to an insurance policy, a claim which does not accrue in the third party context until a settlement or verdict is obtained. To lend further credence to the interrelationship of these sections, other sections of F.S. § 626.989 refer specifically to F.S. § 817.234.

In its memorandum, the State refers the Court to F.S. § 627.7264 in discussing the common practice of insurance companies and personal injury attorneys. This statute is particularly instructive to our discussion. In addressing the insurance companies responsibilities to the injured party, the statute states in relevant part:

(1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant …

§ 627.7264, Fla. Stat. (1991). This section recognizes that when the law firm in a negligence action notifies the insurance company of its representation of the injured party against the insured no claim yet exists. At this point, there is no claim because of the effect of the non-joinder statute. Moreover, this statute exemplifies the clarity necessary to put third parties on notice.

In summary, the composition and structure of the F.S. §817.234, the case law interpreting the impact of the nonjoinder statute, and other sections of the insurance code read in pari materia with False and Fraudulent Insurance Claims statute coalesce to compel a construction which excludes third parties. At the very least, interpreting F.S. § 817.234 to incorporate third parties would create vagueness because the statute would fail to notify those parties subject to it of the illegality of their conduct.

Assuming arguendo that the statute does embrace injured third party plaintiffs, the statute would so eviscerate the settled and established practice of personal injury law that it would be unconstitutional due to is failure to provide notice. A change of this magnitude would require more notice to attorneys that their actions which heretofore were both legal and to some extent encouraged may be subject to sanction through this statute.⁵

The State’s response to the constitutional attack on the statute relies heavily on the theory that even if vague, the scienter language saves the statute. The State focuses on both the language in F.S. § 817.234(1) which requires “the intent to injure, defraud, or deceive any insurance company” and in F.S. § 817.234(a)(1) and requires the statement be made “knowing that such statement contains … false, incomplete, or misleading information…” The State contends that element of specific criminal intent is virtually dispositive of any claim that a statute is void for vagueness.

The State cites numerous cases in supporting its contention that scienter eludes any attack on a statute due to vagueness. Village of Hoffman Estates v. Flipside, Hoffman Est., 455 U.S. 489 (1982); Papachristou v. Jacksonville, 405 U.S. 156 (1972); Boyce Motor Lines v. United States, 342 U.S. 337 (1971); State v. Joyce, 361 So.2d 406 (Fla. 1978). But, even some of the State’s own cases do not take such an absolutist position. In Village of Hoffman Estates, for example, the Court states that it “has recognized that a scienter requirement may mitigate a law’s vagueness.” Id at 499 (emphasis added). Also, in State v. Joyce, the Court remarked that “the United States Supreme Court has often upheld a statute claimed to be unconstitutionally vague because scienter was an element of the offense.” Id at 407 (emphasis added). In fact, there have been instances where the Florida Supreme Court has declared statutes unconstitutionally vague despite the presence of a specific intent element. State v. DeLeo, 356 So.2d 306 (Fla. 1978); State v. Barquet, 262 So.2d 431 (Fla. 1972).⁶

In the case sub judice, the scienter language does not rectify the statute’s vagueness because it is not directed at the source of that vagueness. An analysis of precisely those cases which the State refers to in its memorandum reveals that scienter ordinarily saves a statute from a vagueness challenge because it undercuts the notion that the accused was unaware the act violated the law. Scienter does not cure the vagueness problem in the instant case because it is not the conduct which is ambiguous. Instead, the ambiguity lies in whether the legislature meant to include third parties or alternatively, whether it is reasonable in light of the statute’s language that third party attorneys would know that they are to be included within its scope. None of the State’s cases deal with this problem and the scienter language on which the State relies does not resolve this issue.

The State assails the interpretation of the F.S. § 817.234 which excludes third parties by arguing that the legislature intended to include all persons within its scope. The State quotes the prior enactment of the statute which read:

(1) Any insured party or insurer or insurance adjuster who, with intent, knowingly and willfully conspires to fraudulently violate any of the provisions of this part or who, due to fraud on such person’s part, does knowingly and willfully violate any of the provisions of this part is guilty of a felony of the third degree …

§ 627.7375, Fla. Stat. (1976 Supp) (emphasis added). The State insists that the revision to any person reveals an intent on the part of the legislature to broaden the scope and include third parties. The State further supports its argument by pointing to the legislative staff analysis of Committee Substitute for the Senate Bill which provides that the rewritten section is “expanded to all persons involved in the auto claims process.”

While it is clear that the legislature sought to broaden the scope of the insurance fraud statute, it does not necessarily follow that it intended to reach third parties. The legislature revised the insurance fraud statute in the same bill in which it enacted the nonjoinder statute. Chapter 77-468, Laws of Florida. Statutes in different acts on the same subject matter passed at the same session are presumed to be imbued by the same spirit and actuated by the same policy and, therefore, a court must construe them each in light of the other. State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68 (Fla. 1975); Florida Police Benevolent Ass’n, Inc. v. Florida Department of Agriculture and Consumer Services, 557 So.2d 146 (Fla. 1st DCA 1990). The statutes at bar were passed within the same act creating an even stronger presumption that these statutes must be read in harmony. Moreover, the legislature could have meant to expand the statute to include executors or administrators of estates which were not incorporated within the prior text.

Finally, the State insists that the argument that no claim exists amounts to a technical distinction as the real parties in interest are the insurance companies. If this Court accepted the State’s argument, it would be following precisely the reasoning of Shingleton v. Bussey which was overruled by the passage of the nonjoinder statute. This Court finds the New York case of People v. Learman, 121 N.Y.S. 388 (N.Y. 1953) particularly instructive on this point. In that case, the New York Court was confronted with a penal statute dealing with false or fraudulent claims which contained similar language to that found in F.S. § 817.234: “in support of a claim upon policy of insurance.” Our sister court explained:

The claim which Melchoirre [the injured third party plaintiff] was endeavoring to establish was not a claim for a loss upon any contract of insurance. It was a claim in tort for damages against Pellicci [the insured defendant] arising out of his supposed liability on account of the non-existent accident. The fact that Pellicci was insured and that the insurance company stood in his shoes and was to be the intended victim does not render Melchoirre’s claim a “loss upon a contract of insurance.” These words as used in section 1202 relate as we view it to a situation when an insured or someone having a right to be paid for a loss under the terms of a policy makes a claim against the insurance company based upon the contract of insurance.

Consequently, this Court concludes based on the aforementioned reasons that the False and Fraudulent Insurance Claims statute must be read in pari materia with the insurance code as a whole and the nonjoinder statute in particular. Therefore, the legislature did not intend to include injured parties suing insureds under a liability insurance policy within the meaning of “person” in the statute. Any other reading would render the statute vague for failure to notify those subject to its penalties. Accordingly, the Counts and predicate acts which involve third party claims are hereby dismissed.

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss based on the Constitutionality of F.S. § 817.234 is granted and Counts 15, 18, 19, 22, 23, 29, 30, 31, 32, 33, 34, and 35 and predicate acts M, P, Q, T, U, AA, BB, CC, DD, EE, FF, and GG are DISMISSED.

— — — —

¹This court declines to address the issue of overbreadth raised by the Defendants. As the Florida Supreme Court has reiterated: “the overbreadth doctrine applies only if the legislation is susceptible to conduct protected by the First Amendment.” Wyche v. State, 619 So.2d 231 (Fla. 1993) citing Southeastern Fisheries Ass’n, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984).

²The Florida nonjoinder statute evolved from the unique set of circumstances previously discussed. In California, for example, a type of nonjoinder statute exists as § 11580 entitled “Required policy provisions.” This statute states in pertinent part:

A policy insuring against losses set forth in subdivision (a) shall not be issued or delivered to any person in this state unless it contains the provisions set forth in subdivision (b). Such policy, whether or not actually containing such provisions, shall be construed as if such provisions were embodied therein.

(b) Such policy shall not be thus issued or delivered to any person in this state unless it contains all the following provisions:

(2) A provision that whenever judgment is secured against the insured or the executor or administrator of a deceased insured in an action based upon bodily injury, death, or property damage, then an action may be brought against the insurer on the policy and subject to its terms and limitations, by such judgment creditor to recover on the judgment.

Unlike Florida, California recognizes third party rights which are contingent upon obtaining a judgment against the insured. Therefore, the case law in California interpreting either their nonjoinder statute and/or their version of the insurance fraud statute cannot be utilized to construe the Florida statute.

³In fact, a survey of similar insurance fraud statutes throughout the country reveals several states which have statutes with almost identical language. However, none of these states have been confronted with constitutional challenges.

⁴Since the decision in Aspen, the Florida legislature has revised the nonjoinder of insurers statute to allow for recovery of costs in this type of situation.

⁵The Defendants cite extensively to taped courses conducted by the Florida Bar and to legal treatises. These excerpts reveal that custom and practice regarding pre-suit investigation and settlement of personal injury claims requires the attorney to emphasize the strengths of his case and not disclose the weaknesses. The Defendants quote the Florida Bar’s Continuing Legal Education Audio-cassette, Basic Personal Injury 1989 (course number 6471, Taped 2/7 – 2/8/89, Tape III of V) as follows:

“Um, that scared me a little bit as to how I was going to handle that because for some reason impairment ratings are still real critical to insurance carriers in evaluations.

So I decided to work around that shortcoming through the preparation of a pretty extensive settlement brochure which I did. It ended up being about a 25-page letter with about 2 inches worth of exhibits and about 20 different exhibits and photographs and everything else in the world that you could thing of except reference to the impairment rating. And that case settled, I had serendipity, I mean it just, it went great and nobody ever asked the question. Um, you know there’s no crime against that.

Among the legal scholars and treatises mentioned by the Defendants, they cite to Florida Practice Guide: Personal Injury, Callaghan & Company, Deerfied Michigan, p. 4-15, 4-16. This guide, which was co-authored by United States District Court Judge William Hoeveler, advises lawyers to make selective disclosures of medical information during presuit negotiations. Certainly, if the statute is read to include personal injury attorneys representing third parties, then it appears that the Florida Bar has been cast in the role of Fagin teaching the artful dodgers in Oliver Twist.

⁶There is some dispute between the parties as to whether State v. Rou, 366 So.2d 385 (Fla. 1978) involved a specific intent statute. However, the Defendants are not alone in their interpretation of Rou. See 33 U.M. Law Review 955 (1979).

— — — —

ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION

THIS CAUSE came before the Court for consideration of Defendants, Mark Marks P.A.’s Motion for Reconsideration filed July 9, 1993, Defendant, Gary Mark’s Motion for Reconsideration of Prior Factual or Legal Rulings by Disqualified Judge filed July 9, 1993, and his Supplemental Motion for Reconsideration filed July 26, 1993. This Court having considered this motion, the submitted memoranda of law, the argument of counsel, the applicable law, and being otherwise fully advised, finds as follows:

Upon review of these motions, this Court re-examined the issues raised by the Motion Challenging Constitutionality of F.S. § 817.234 and dismissed the counts involving third parties in its order dated October 14, 1993 as to Case No. 93-501CF10. This Court adopts the findings and conclusions of that order and therefore dismisses the third party counts in the instant case.

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss based on the Constitutionality of F.S. § 817.234 is granted and Counts 1, 2, 3, 5, 7, 8, 9, 10 and 11 are DISMISSED.

* * *