YESENIA GONZALEZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANDREW PEREZ, APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, A FLORIDA CORPORATION, AND ARMANDO VALDES, APPELLEES
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Yesenia Gonzalez, as personal representative of Andrew Perez's estate, appealed a summary judgment dismissing her wrongful death action against Armando Valdes, who shot and killed Perez during an attempted burglary of Valdes's home. The court affirmed, holding that Florida Statute § 776.085 bars recovery for injuries sustained by a participant during the commission or attempted commission of a forcible felony.
The court held that § 776.085 bars recovery in a wrongful death action when the decedent was a participant in the attempted commission of a forcible felony. Because the record established that Perez was actively attempting to commit burglary when he was shot and had not repudiated the crime, summary judgment was properly entered.
[1] A defense to a wrongful death action exists if the decedent sustained injury during the commission or attempted commission of a forcible felony.
[2] The defense authorized by statute for injury sustained during the commission of a forcible felony must be established by a preponderance of the evidence.
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“It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony.”
The statutory language of § 776.085(1) that provides the defense barring the wrongful death recovery in this case.
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Join FLexlaw to unlock all legal intelligenceArmando Valdes was alone in his home when three burglars pried open the security bars and door to his sliding glass door with crowbars. Upon seeing th…
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BASKIN, Judge.
Yesenia Gonzalez, as personal representative of the Estate of Andrew Perez, appeals a final summary judgment in defendants’ favor in a wrongful death action. We affirm.
Armando Valdes was alone in his home when he heard noises outside; he suspected burglars or prowlers. Three perpetrators had pried the lock to the security bars on Valdes’s sliding glass door and had pried the lock to the door itself with crowbars. Upon approaching the door, Valdes saw the three perpetrators and saw what he believed to be a weapon. Valdes discharged his pistol, killing Andrew Perez, one of the three burglars.
Perez’s estate filed a lawsuit against Valdes to recover damages for Perez’s wrongful death. Valdes filed a motion for summary judgment; the trial court granted the motion based on its finding that section 776.085, Florida Statutes (1998), creates a defense to the wrongful death action because plaintiffs decedent died during the attempted commission of a forcible felony. Plaintiff appeals.
We affirm the summary judgment. We hold that the trial court correctly concluded that section 776.085 bars plaintiffs recovery. Section 776.085(1) provides:
It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established ... by a preponderance of the evidence.
Contrary to plaintiffs argument, the record supports the trial court’s finding that Perez was attempting to commit a forcible felony at the time Valdes discharged the weapon; the burglars had not repudiated the crime prior to the shooting.1 Because no issues of fact remained unresolved in this case, the trial court properly entered summary judgment in defendants’ favor. Affirmed.
. Perez's coconspirator testified as follows:
Q. While Andrew and Ray were working on the bars, what was the very next thing that you saw that alerted you to the fact that something was going wrong?
A. I saw the shades move. Someone had put their finger in there and opened the shades just a little bit.
Q. How quickly did this whole thing happen, from when you saw the blinds move to when you heard the shot?
A. “Within three seconds, I would say.”
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Copeland v. Albertson's Inc., 947 So. 2d 664 (Fla. 2d DCA 2007)…clerk inside the store did not support the defense. The conviction for robbery might support the defense, but at the time of the summary judgment the defendants had not submitted evidence that would prove this. Cf. Gonzalez v. Liberty Mut. Ins. Co., 634 So. 2d 178, 179 (Fla. 3d DCA 1994) (noting the record supported the court’s finding that the participant was attempting to commit a forcible felony when the victim shot him). Moreover, Copeland filed the transcript of defendant Robert Hansen’s sworn testimony…
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