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STATE, DEPARTMENT OF ENVIRONMENTAL PROTECTION v. A-C SONS CO., INC.

No. 1D99-2636.

774 So.2d 879 (2000)

STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. A-C SONS CO., INC., Appellee.

District Court of Appeal of Florida, First District.

December 29, 2000.

Attorney(s) appearing for the Case

Shirley J. Whitsitt and Anthony J. Ettore of Department of Environmental Protection, Tallahassee, for Appellant.

Kenneth G. Oertel and C. Anthony Cleveland of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for Appellee.

PER CURIAM.

The Department of Environmental Protection appeals a final summary judgment by which the trial court determined that the uncontroverted facts establish that the third party defense in section 403.727(5)(d), Florida Statutes, protects the appellee from the Department's claims. However, the record does not establish that the appellee exercised the due care necessary under section 403.727(5)(d)1, and instead reveals that this was an issue of fact which remained...

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