Tucker v. American Employers' Ins. Co.

• Decision Date: 20 January 1969
• Docket Number: No. 954,954
• Citation: 218 So.2d 221
• Parties: Betty J. TUCKER, joined by her husband, Waters B. Tucker, Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 221

218 So.2d 221

Betty J. TUCKER, joined by her husband, Waters B. Tucker, Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, et al., Appellees.

No. 954.

District Court of Appeal of Florida, Fourth District.

Jan. 20, 1969.

Rehearing Denied Feb. 21, 1969.

Joseph D. Farish, Jr., and John D. Kaylor, of Farish & Farish, West Palm Beach, for appellants.

James E. Tribble, of Blackwell, Walker & Gray, Miami, for appellee American Employers Ins. Co.

REED, Judge.

The complaint, as amended, alleged that the plaintiffs, Betty J. Tucker and her husband, Waters B. Tucker, filed a suit in the Circuit Court of Palm Beach County seeking damages because of the alleged negligent injury of the plaintiff Betty J. Tucker by one Benjamin Stendig. As a result of that suit, the defendant American Employers Insurance Company and the defendant Jack W. Harwood doing business as Harwood Bureau of Investigation conducted a surveillance of the plaintiff Betty J. Tucker for the purpose of annoying, harassing and intimidating her into a settlement of her claim against Benjamin Stendig for less than she otherwise would accept.

Both of the defendants by answer admitted that the plaintiff Betty J. Tucker was secretly surveilled by the defendant Jack W. Harwood who was employed for that purpose. The defendants' answers denied the other material averments in the complaint.

The defendants filed motions for summary judgment one of which was accompanied by an affidavit of Carl W. Geisler and John Bolduc, both of whom were employees of the defendant Jack W. Harwood during the time of the alleged surveillance of the plaintiff Betty J. Tucker. The motions were based on these affidavits, answers to interrogatories by defendant Jack W. Harwood which in essence denied that he made any surveillance of the plaintiff Betty J. Tucker except that which was described in the aforementioned affidavits of his employees, and depositions, particularly those of the plaintiffs.

The trial court granted the motions and entered a summary judgment for the defendants on 20 June 1966. It is from this final judgment that the plaintiffs appeal.

The question presented here is whether or not the defendants were entitled to a summary judgment on the basis of the pleadings, depositions, affidavits and answers to interrogatories. As stated by the defendant American Employers Insurance Company the only point to be determined on appeal is:

'Whether the trial court erred in entering summary judgment in favor of the defendants on the ground that (1) the defendants did not harass or intimidate the plaintiffs in any manner and (2) that there was a lack of evidence as to the identity of any person whose acts might constitute harassment.'

Since all parties here agree on the point presented, we are not called upon by the state of the record to explicate the elements of and limitations on the cause of action which the plaintiffs have attempted to assert for a violation of the right of privacy. ¹

The affidavit of Carl W. Geisler, an employee of the defendant Jack W. Harwood described as his only efforts at surveilling the plaintiff six occasions between November 11, 1962 and January 16, 1963 on which he attempted to view the plaintiff from his motor vehicle which was lawfully parked or traveling on public streets. None of the attempts described in Mr. Geisler's affidavit were made at night or involved a trespass on the plaintiff's property. The other affidavit, that of John Bolduc, also an employee of the defendant Jack W. Harwood, stated that Mr. Bolduc's only attempt at surveillance of Betty J. Tucker occurred on November 20, 1962 when he interviewed the plaintiff at her home under the pretense of a desire to enroll his children in a nursery school which she had operated.

The plaintiffs and defendants both relied on the deposition of the plaintiff Betty J. Tucker. Mrs. Tucker described numerous occasions at night when she had heard a person standing outside of her house close to a window or a screened porch following which footprints were usually discovered in plaintiffs' garden area adjacent to the house. On one occasion, late at night, the plaintiff, after having just gotten out of the shower, noticed a man peering through her living room window. The plaintiff's husband by his deposition corroborates this event and places it in November or December of 1962.

The plaintiff Betty J. Tucker also testified to occasions when she was followed by someone in a motor vehicle. On one of these occasions, the plaintiff left her home at 10:30 or 11:00 p.m. to take an item to the firehouse where her husband worked, a distance of about four miles. She stated that she was followed by a man in a white panel truck to within a block of the firehouse. She stayed at the firehouse until about 1:30 a.m. After she left the firehouse, a white panel truck followed her to within several blocks of her home. This incident occurred relatively close in point of time to another similar incident when the plaintiff was followed during day time hours to and from a doctor's office in Fort Lauderdale. The latter surveillance was the act of the defendant Jack W. Harwood and his employee, Carl W. Geisler, as shown by the latter's affidavit which dates the occurrence at January 16, 1963.

Other nocturnal efforts at surveillance were testified to by Mrs. Tucker and a witness, Barbara Ann Houck, at whose home some of these incidents occurred.

On no occasion were the plaintiffs or anyone else able to identify the persons allegedly surveilling Mrs. Tucker at night and on her premises.

The depositions of the plaintiffs and Barbara Ann Houck, when read together, indicate that the surveillance which involved the trespasses and other night time activities occurred generally from September of 1962 to January of 1963. This period roughly coincides with the period from November 11, 1962 to January 16, 1963 during which the defendants admitted conducting a surveillance of the plaintiff Betty J. Tucker.

The thrust of the defendants' argument is that the surveillance which they have admitted by affidavits of Mr. Geisler and Mr. Bolduc and the answers to interrogatories by Mr. Harwood was reasonable and lawful in view of the fact that the plaintiffs had previously filed a suit against an insured of the defendant American Employers Insurance Company. For this proposition they cite Forster v. Manchester, 1963, 410 Pa. 192, 189 A.2d 147. We agree with this contention and the authority cited by defendants. We do not, however, agree with the next step in the defendants' argument, and that is that no issue of fact existed with respect to defendants' responsibility for the surveillance which the plaintiffs described as involving trespasses on their home property at night and late night following of the plaintiff as she drove to and from her husband's place of employment.

Even though the plaintiffs were unable to identify the trespassers or the driver of the white panel truck that followed the plaintiff Betty J. Tucker and the conduct of these activities was flatly denied by the defendants by sworn statements, it is our opinion that the coincidence in time between the obnoxious surveillance and the innocuous surveillance admitted to by the defendants together with the admission of the defendants that the defendant Jack W. Harwood was employed to conduct a secret surveillance of the plaintiff Betty J. Tucker, indicate the existence of a genuine issue of material fact as to the defendants' responsibility for the obnoxious surveillance.

We are of the view that the granting of a summary judgment for the defendants in this case required the weighing of conflicting inferences and an assessment of the credibility of interested witnesses in order to conclude that no genuine issue of material fact existed, and this process is not available in passing on a motion for summary judgment, Strode v. Southern Steel Construction Co., Fla.App.1966, 188 So.2d 690; Berlanti Construction Co. v. Miami Beach Federal Savings and Loan Association, Fla.App.1966, 183 So.2d 746; and Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780, 783.

For the foregoing reasons, the summary judgment for the defendants is reversed and the cause remanded.

WARREN, LAMAR, Associate Judge, concurs.

WALDEN, C.J., dissents, with opinion.

WALDEN, Chief Judge (dissenting).

I respectfully dissent because the record does not disclose the existence of a 'genuine issue' of material fact as to defendants' liability. F.R.C.P. 1.510(c), 31 F.S.A. More specifically, there is no evidence or allowable inference which would reflect that defendants conducted an illegal surveillance as alleged by plaintiffs. Thus, the trial court acted in accordance with law when this unworthy claim was terminated by entry of summary judgment thereby exonerating the defendants. It is my view that the judgment should be affirmed.

The gravamen of plaintiffs' complaint is that defendants subjected plaintiff, Betty J. Tucker, to an illegal surveillance for the purpose of forcing settlement of her then pending negligence suit for personal injuries to plaintiffs' disadvantage.

Dates are important. It is to be remembered that the accident which was the subject of plaintiffs' negligence suit occurred in April 1962. The admitted legal surveillance took place on several occasions between November 11, 1962, and January 16, 1963, a period of about ten weeks. Finally, plaintiffs claim that the acts supposedly constituting the illegal surveillance took place loosely from mid-September, 1962, to late January, 1963, a period of about 16 weeks.

Defendants flatly denied under oath that they committed or were in any way responsible for any of the alleged illegal acts. On the other hand neither the plaintiffs nor anyone on their behalf could identify any person conducting or involved in the claimed illegal surveillance. And it is...