HIGHLANDS INSURANCE COMPANY, SUEZ MOTEL, INC. AND RICHARD VINCENT, APPELLANTS,
v.
MICHAEL LUCCI, APPELLEE
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Highlands Insurance Company and others appealed a $190,000 judgment against them for an assault and battery claim. The Florida Third District Court of Appeal reversed, finding that the trial court erred in granting summary judgment on liability because genuine issues of material fact remained regarding the doorman's self-defense claim.
The court held that summary judgment was improper because genuine issues of material fact remained regarding whether Vincent believed he was acting in self-defense and whether that belief was reasonable. The court also held that the trial court erred in refusing to excuse a juror who stated she could not be impartial, particularly where appellants had exhausted their peremptory challenges.
[1] A movant for summary judgment must conclusively refute affirmative defenses asserted by the non-movant.
[2] Genuine issues of material fact regarding self-defense preclude summary judgment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A movant for summary judgment must conclusively refute affirmative defense asserted by the non-movant.”
Establishes the legal standard that summary judgment is improper when the defendant raises an affirmative defense
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Join FLexlaw to unlock all legal intelligenceLucci, a motel bar patron, was asked to leave the disco by doorman Vincent after annoying patrons. As Lucci left, he mumbled words about getting even …
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BASKIN, Judge.
Lucci, a motel bar patron, sued the doorman, Vincent, the Suez Motel and its insurer, Highlands Insurance Company, alleging that the doorman committed an assault and battery upon him and that, as a result, he suffered a broken nose and other injuries. Vincent responded that he acted in self-defense. After considering Vincent’s deposition, as well as the deposition of another hotel employee (Tabb), the trial court granted summary judgment as to liability in favor of Lucci. A subsequent jury trial resulted in an award of $190,000 compensatory damages.*
Appellants present several challenges to the final judgment: the grant of summary judgment, evidentiary rulings by the trial court, and the court’s failure to excuse for cause a prospective juror who did not think she could be impartial. Upon review, we find that genuine issues of material fact remain to be decided and, accordingly, the trial court erred in granting summary judgment. Devcon (Panama) International Corp. v. Sheffield Steel Products, 409 So. 2d 214 (Fla. 4th DCA 1982); Squitieri v. Aetna Casualty & Surety Co., 382 So. 2d 730 (Fla. 5th DCA 1980); accord Hull & Company v. McGetrick, 414 So. 2d 243 (Fla. 3d DCA 1982); Perez v. Universal Engineering Corp., 413 So. 2d 75 (Fla. 3d DCA 1982); Ultra Marine Corp. v. Bryant, 375 So. 2d 613 (Fla. 3d DCA 1979), cert. denied, 386 So. 2d 634 (Fla.1980); see Holl v. Talcott, 191 So. 2d 40 (Fla.1966). We therefore reverse the final judgment.
The record discloses that doorman Vincent asked Lucci to stop annoying two girls inside the disco. A short time later, Vincent received another complaint and asked Lucci to leave. As he started to leave, Lucci mumbled words indicating that he would “get even” or would “get” Vincent. In response to a signal from Lucci, Vincent walked toward him. As Vincent walked through the doorway, Lucci pulled on his left shoulder or arm. Vincent responded with a “shot” or punch to Lucci’s nose and allegedly continued to punch Lucci before going back inside the disco. In his deposition, Vincent testified that he didn’t like to have anyone touch him. He stated that he struck Lucci because he believed that Lucci was preparing to “swing” at him. Tabb, the other employee, stated during his deposition that he had heard that Lucci was a “wiseguy.” These statements served as the basis for Vincent’s assertions that he acted in self-defense.
A movant for summary judgment must conclusively refute affirmative defense asserted by the non-movant. First Independent Bank, N.A. v. Stottlemyer & Shoemaker Lumber Co., 384 So. 2d 952 (Fla. 2d DCA 1980); Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976); accord Proprietors Insurance Co. v. Siegel, 410 So. 2d 993 (Fla. 3d DCA 1982); General Development Utilities, Inc. v. Davis, 375 So. 2d 20 (Fla. 2d DCA 1979). Whether Vincent believed he was acting in self-defense and whether his belief was reasonable, Price v. Gray's Guard Service, Inc., 298 So. 2d 461 (Fla. 1st DCA), cert. denied, 305 So. 2d 208 (Fla.1974); accord Byrd v. Isgitt, 338 So. 2d 374 (La.Ct.App.1976), are questions of material fact precluding disposition by summary judgment.
Our reversal necessitates a new trial, not only as to liability, but to damages as well. The trial court’s refusal to excuse for cause a prospective juror who stated she could not be impartial deprived appellants of a fair trial; appellants had exhausted their peremptory challenges. Peek v. State, 413 So. 2d 1225 (Fla. 3d DCA 1982); see Peri v. State, 412 So. 2d 367 (Fla. 3d DCA 1981); §§ 913.03, 913.12, Fla.Stat. (1979); Fla.R. Civ.P.1.431. Furthermore, issues pertaining to liability and to damages became inextricably interrelated during the trial when the trial court permitted appellee to read portions of Tabb’s deposition to the jury but denied appellants’ request to introduce complementary portions. American Motors Corp. v. Ellis, 403 So. 2d 459 (Fla. 5th DCA 1981); King v. Califano, 183 So. 2d 719 (Fla. 1st DCA 1966); Fla.R.Civ.P.1.330(a)(4), thereby preventing Vincent from supporting his contention that the assault had been provoked, a matter to be considered in the assessment of damages.
Reversed and remanded for a new trial as to liability and damages.
*
A punitive damage claim had been abandoned.
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Club W., Inc. v. Tropigas OF Fla., Inc., 514 So. 2d 426 (Fla. 3d DCA 1987)…rt abused its discretion by refusing to excuse juror where juror was ambivalent as to whether she could be impartial when the defendant's attorney was her son’s “best friend.”), review denied, 497 So. 2d 1218 (Fla.1986); Highlands Ins. Co. v. Lucci, 423 So. 2d 947 (Fla. 3d DCA 1982) (trial court’s failure to excuse juror who felt that she could not be impartial deprived defendant of a fair trial). Accordingly, we reverse and remand this cause for a new trial.…
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Fischer v. Rodriguez-Capriles, 472 So. 2d 1315 (Fla. 3d DCA 1985)…ve defense of no consideration, where the holder does not prove conclusively the existence of consideration, or that the instrument was given in payment of an antecedent obligation. See § 673.408, Fla.Stat. (1983);1 Highlands Insurance Co. v. Lucci, 423 So. 2d 947 (Fla. 3d DCA 1982) (a movant for summary judgment must conclusively refute affirmative defenses asserted by the non-movant). No such proof was presented in support of the motion for summary judgment. Fischer’s signature on the corporate check witho…
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Kaminsky v. Travelers Indem. Co., 474 So. 2d 287 (Fla. 3d DCA 1985)…ther portions of that same deposition in an effort to demonstrate the “whole truth.” American Motors Corp. v. Ellis, 403 So. 2d 459, 463 (Fla. 5th DCA 1981), review denied, 415 So. 2d 1359 (Fla.1982); King. See also Highlands Insurance Co. v. Lucci, 423 So. 2d 947 (Fla. 3d DCA 1982). In the present case, the plaintiff’s attorney was precluded from using relevant portions of the plaintiff’s deposition in an effort to demonstrate that the plaintiff’s trial testimony should not be discredited. Since defense coun…
Authorities Cited (18 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Am. Motors Corp. v. Ellis, 403 So. 2d 459 (Fla. 5th DCA 1981)
- Foust v. State, 410 So. 2d 993 (Fla. 3d DCA 1982)
- Peri v. State, 412 So. 2d 367 (Fla. 3d DCA 1981)
- Hull & Co., Inc. v. McGETRICK, 414 So. 2d 243 (Fla. 3d DCA 1982)
- Perez v. Universal Eng'g Corp., 413 So. 2d 75 (Fla. 3d DCA 1982)
- Price v. Gray's Guard Serv., Inc., 298 So. 2d 461 (Fla. 1st DCA 1974)
- Squitieri v. AETNA Cas. & Sur. Co., 382 So. 2d 730 (Fla. 5th DCA 1980)
- Mabrey Hall King v. Diamond F. Califano, 183 So. 2d 719 (Fla. 1st DCA 1966)
- Spear v. Martin, 330 So. 2d 543 (Fla. 4th DCA 1976)