Demoya v. Lorenzo

• Citation: 10 Fla. L. Weekly 983,468 So.2d 358
• Decision Date: 16 April 1985
• Docket Number: No. 83-3035,83-3035
• Parties: 10 Fla. L. Weekly 983 George DEMOYA, Caribex International Co., Inc., a Florida corporation, and Lumbermens Mutual Casualty Company, a foreign corporation, Appellants, v. Sandra LORENZO, as Personal Representative of Kenneth Lorenzo, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 358

468 So.2d 358

10 Fla. L. Weekly 983

George DEMOYA, Caribex International Co., Inc., a Florida corporation, and Lumbermens Mutual Casualty Company, a foreign corporation, Appellants, v. Sandra LORENZO, as Personal Representative of Kenneth Lorenzo, Deceased, Appellee.

No. 83-3035.

District Court of Appeal of Florida Third District.

April 16, 1985.

Rehearing Denied May 17, 1985.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, for appellants.

Horton, Perse & Ginsberg and Edward Perse, Miami, Stephen H. Nelson, Coral Gables, for appellee.

Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.

BASKIN, Judge.

DeMoya appeals an adverse final judgment entered in a wrongful death action brought by Lorenzo's estate. The action arose out of an automobile accident in which Lorenzo was killed when his car was struck by an automobile driven by DeMoya. Lorenzo's passenger, Lena Nunziato, was also killed. DeMoya admitted that a few hours before the accident he had ingested quaaludes and had been drinking. An autopsy performed on Lorenzo revealed a blood-alcohol level of 0.20 to 0.25, twice the amount necessary to demonstrate legal intoxication. The court granted Lorenzo's estate a summary judgment as to liability and conducted a trial solely as to damages. Holding that the trial court erred in entering a summary judgment, we reverse and remand for a trial to determine liability and damages.

In a previous action brought by Nunziato's estate against the owner of the car driven by Lorenzo, this court affirmed a summary judgment in favor of the owner, P & L Auto Parts, Inc. Nunziato v. P & L Auto Parts, Inc., 403 So.2d 1031 (Fla. 3d DCA 1981). The court stated:

Even if we assume that Lorenzo was negligent in that he was driving with a high blood-alcohol level and speeding--although there is no conclusive evidence as to speed--he may not be held liable for this negligence if the damage was caused by an active and efficient intervening cause. See, e.g., Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980) and cases collected therein.

[1, 2] There is no evidence that Lorenzo set in motion a chain of events resulting in death to Lena, see, e.g., Gibson, supra, or that the cause of the accident and the sole proximate cause of Lena's death was other than the intervening conduct of DeMoya.

Nunziato at 1032.

Applying our prior ruling to the record before it, the trial court in this case granted a summary judgment against DeMoya and in favor of Lorenzo's estate. The court found that there was no comparative negligence on the part of Lorenzo and that DeMoya was the sole and proximate cause of the accident.

We find no basis for depriving DeMoya of a trial on the relevant issues and of the opportunity to demonstrate that Lorenzo was comparatively negligent. Although the issue of proximate causation was previously litigated in Nunziato, collateral estoppel does not apply to prohibit the relitigation of the issue in this action. Collateral estoppel may be asserted only when the identical issue has been litigated between...