794 Fla.
911 SOUTHERN REPORTER, 2d SERIES
1 tion, 867 So.2d 1252 (Fla. 4th DCA 2004);
ESSEX INSURANCE COMPANY,
Appellant,
v.
Fred SIMPLER and Loretta
M. Burton, Appellees.
No. 1D04–135.
District Court of Appeal of Florida,
First District.
Dec. 29, 2004.
Rehearing Denied Feb. 8, 2005.
An appeal from Circuit Court for Walton
County. William F. Stone, Judge.
Carol A. Fenello of Law Offices of Clin-
ton D. Flagg, Miami, for Appellant.
Harry E. Barr and Leslie D. Sheekley of
Chesser & Barr, P.A., Shalimar, for Appel-
lee Fred Simpler.
David B. Pleat, Amy A. Perry, and
Christopher H. McElroy of Pleat & Perry,
P.A., Destin, for Appellee Loretta M. Bur-
ton.
PER CURIAM.
The appellant, Essex Insurance Compa-
ny, challenges a final order by which the
trial court ruled that a policy of insurance
issued by Essex to Appellee Fred Simpler
provided liability coverage in relation to a
personal injury claim brought against Sim-
pler by Appellee Loretta Burton. In
reaching this conclusion, the court relied
upon parol evidence to determine the in-
tent of the parties, and also relied upon the
doctrine of estoppel. Concluding that the
trial court erred in both respects, we re-
verse the order under review.
As both parties acknowledge, the stan-
dard of review applicable to the determi-
nation of whether a contract is ambiguous
is the de novo standard of review. See V
& M Erectors, Inc. v. Middlesex Corpora-
Centennial Mortgage, Inc. v. SG/SC, Ltd.,
772 So.2d 564 (Fla. 1st DCA 2000). Ap-
plying this standard, we conclude that the
insurance contract in question is not am-
biguous, but plainly provides that the pol-
icy issued to Simpler does not include
coverage for the premises where Burton
allegedly sustained her personal injuries.
Accordingly, the trial court erred by con-
sidering parol evidence to determine the
parties’ intent on this issue.
As to the trial court’s application of the
doctrine of promissory estoppel, we con-
clude that this case does not involve cir-
cumstances that would place it within the
narrow exceptions to the general rule that
estoppel will not operate to create or ex-
tend coverage where coverage does not
exist. See Doe v. Allstate Insurance Com-
pany, 653 So.2d 371 (Fla.1995); Crown
Life Insurance Company v. McBride, 517
So.2d 660 (Fla.1987). Cf. Florida Munici-
pal Insurance Trust v. Village of Golf, 850
So.2d 544 (Fla. 4th DCA 2003); Florida
Physicians Insurance Company v. Stern,
563 So.2d 156 (Fla. 4th DCA 1990).
ALLEN, DAVIS and BENTON, JJ.,
concur.
,
2
Clifford SIMPSON, Appellant,
v.
AMERICAN CUSTOM INTERIORS,
Appellee.
No. 1D04–0304.
District Court of Appeal of Florida,
First District.
Dec. 30, 2004.
Background: Workers’ compensation
claimant sought benefits for lower back
 SIMPSON v. AMERICAN CUSTOM INTERIORS
Cite as 911 So.2d 794 (Fla.App. 1 Dist. 2004)
injury. Paul T. Terlizzese, Judge of Work-
ers’ Compensation Claims, determined
that claimant was not entitled to benefits
in the future because he made a misrepre-
sentation of fact. Claimant appealed.
Holding: The District Court of Appeal
held that having found that he lacked ju-
risdiction to rule on workers’ compensation
claimant’s request for surgery for low back
pain, workers’ compensation judge lacked
jurisdiction to rule on defense of factual
misrepresentation as to that claim.
Reversed and remanded.
Workers’ Compensation O993
Having found that he lacked jurisdic-
tion to rule on workers’ compensation
claimant’s request for surgery for lower
back injury, workers’ compensation judge
lacked jurisdiction to rule on defense of
factual misrepresentation as to that claim.
John M. Schwartz of Blumenthal,
Schwartz & Saxe, P.A., Titusville, for Ap-
pellant.
Gregory D. White of Hurley, Rogner,
Miller, Cox & Waranch & Westcott, P.A.,
Winter Park, for Appellee.
PER CURIAM.
The appellant, Clifford Simpson, chal-
lenges a determination that he is not enti-
tled to recover workers’ compensation ben-
efits in the future because he made a
misrepresentation of fact, in violation of
sections 440.09(4) and 440.105(4)(b)(1),
Florida Statutes. We conclude that the
judge of compensation claims lacked juris-
diction to rule on the underlying indemnity
1. Section 440.09(4) denies workers’ compen-
sation benefits to any worker who knowingly
or intentionally engages in any of the acts set
Fla. 795
claim. Therefore, the petition for benefits
should have been dismissed without a rul-
ing on the merits of the misrepresentation
defense.
In April of 2003, Simpson filed a petition
for benefits seeking indemnity benefits
and authorization for surgery for a lower-
back injury. The employer and carrier
had previously accepted the injury as com-
pensable but refused to authorize surgery.
Shortly before the hearing on his petition
began, Simpson withdrew the claim for
indemnity benefits, leaving only the re-
quest for surgery to be decided.
The judge found that he lacked jurisdic-
tion to consider the medical issue of the
authorization for surgery, because
Simpson had not exhausted the managed
care grievance procedures. However, he
went on to rule on the employer and carri-
er’s affirmative defense of factual misrep-
resentation. The judge found that
Simpson had committed a misrepresenta-
tion for the purpose of securing benefits,
because he had not been truthful about the
fact that he had been earning money dur-
ing the time that he was receiving indem-
nity benefits. Given this finding, the
judge further ruled that Simpson was not
entitled to any future workers’ compensa-
tion benefits.1 The judge denied the re-
quest for surgery, based on both the lack
of jurisdiction to consider medical issues
and on the finding of misrepresentation.
We conclude that the judge exceeded his
jurisdiction by ruling on the misrepresen-
tation defense. Having found that he
lacked jurisdiction to rule on the request
for surgery, he should have simply dis-
missed the petition without ruling on
whether Simpson actually committed a
misrepresentation. Although the judge
forth in 440.105, for the purpose of securing
workers’ compensation benefits.
796 Fla. 911 SOUTHERN REPORTER, 2d SERIES
would have had jurisdiction over the in-
demnity issue, Simpson had withdrawn
that claim, so it was no longer before the
judge. The employer and carrier may
raise the misrepresentation defense again
if Simpson files another petition for bene-
fits in the future, after exhausting the
managed care grievance procedures. But
for now, with no jurisdiction over the only
claim before him, the judge lacked juris-
diction to rule on the defense to that claim.
Therefore, we reverse that part of the
order ruling substantively on the misrep-
resentation defense and concluding that
the appellant is not entitled to any future
benefits. On remand, the judge shall dis-
miss the petition for lack of jurisdiction.
Reversed and remanded.
BOOTH, VAN NORTWICK and
PADOVANO, JJ., Concur.
, 2. Criminal Law O412.1(4)
Gregory Dean EVANS, Appellant,
v.
STATE of Florida, Appellee.
No. 1D03–5088.
District Court of Appeal of Florida,
First District.
Feb. 22, 2005.
Rehearing Denied March 31, 2005.
Background: Defendant was convicted in
the Circuit Court, Duval County, Karen K.
Cole, J., of possession of child pornogra-
phy. Defendant appealed.
Holdings: The District Court of Appeal,
Padovano, J., held that:
(1) defendant was not in custody at time of
interview, and thus, police officers had
no duty to answer questions about
need for counsel, and
(2) confession to transmitting child por-
nography over internet on computer in
his residence was not prompted by im-
proper action by police.
Affirmed.
Ervin, J., dissented with opinion.
1. Criminal Law O1139, 1158(4)
An order denying a motion to sup-
press a confession is reviewed on appeal
by a two-part standard; the findings of fact
in the order are presumed to be correct
and may not be rejected if they are sup-
ported by competent substantial evidence,
but the legal conclusions the trial court has
drawn from the facts are reviewed by the
de novo standard.
As with the Miranda warning itself,
the duty to answer a specific question
arises only if the suspect is in custody or
his freedom has otherwise been signifi-
cantly restrained.
3. Criminal Law O412.2(4)
Defendant was not in custody at time
of interview, and thus, police officers had
no duty to answer questions about need
for counsel; defendant was interviewed in
his own apartment, officers were in plain
clothes and they were not displaying their
weapons, officers approached defendant
and asked if he would speak with them, to
which he agreed, when defendant indicated
that he would speak with officers, they
asked if they could enter his apartment,
and he agreed, and during interview, offi-
cers said nothing to lead defendant to be-
lieve he was being detained or that his
freedom of movement was restricted.