Perez v. Otero, s. 76-735

• Decision Date: 14 June 1977
• Docket Number: 76-814 and 76-815,Nos. 76-735,76-795,s. 76-735
• Citation: 348 So.2d 564
• Court: Florida District Court of Appeals
• Parties: Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Petitioner, v. Maria OTERO and United States Fidelity & Guaranty Company, Respondents. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Appellee.

Page 564

348 So.2d 564

Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Petitioner, v. Maria OTERO and United States Fidelity & Guaranty Company, Respondents.

UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Appellee.

Nos. 76-735, 76-795, 76-814 and 76-815.

District Court of Appeal of Florida, Third District.

June 14, 1977.

Rehearing Denied Aug. 24, 1977.

Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for Juan Perez.

Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for Maria Otero.

Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for United States Fidelity.

Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

HENDRY, Chief Judge.

United States Fidelity & Guaranty Company (U. S. F. & G.), defendant below, takes this consolidated appeal from orders granting a partial summary judgment on the issue of liability rendered in favor of Juan Perez, as administrator of the estate of Johnny Perez, deceased, plaintiff below.

Consolidated with the above are appeals taken by Perez, in his aforementioned capacity as administrator, from an order striking with prejudice count III of his complaint, which sought punitive damages from Maria Otero, defendant below and U. S. F. & G.'s insured.

The well publicized facts surrounding this case concern the shooting death of young Johnny Perez by Maria Otero, on April 9, 1975. The incident, from which Otero was found guilty of second degree murder, occurred while Johnny was frolicking in and about Otero's swimming pool, without her permission.

Juan Perez, as administrator of the estate of his deceased son, and on behalf of himself and his wife Eva, as parents, filed suit against Otero and her insurer, U. S. F. & G. The case proceeded, hampered by Otero's subsequent disappearance while out on bond. ¹ Both Perez and U. S. F. & G. moved for summary judgment on the coverage issue, the latter relying upon a provision in its homeowners policy, issued to Otero, which excludes intentional acts from the ambit of coverage. Perez, alleging negligence in his complaint, relied upon testimony taken from Otero's criminal trial wherein she stated that the shooting of Johnny was not an intentional act, but was rather an accident, caused by an inadvertent discharge of her gun, which she had allegedly brandished to frighten the youth.

On March 25, 1976, at the hearing on the Perez and U. S. F. & G. motions for summary judgment, the trial judge announced his intention to deny U. S. F. & G.'s motion and grant Perez's motion, rendering summary judgment on the coverage issue in favor of Perez. At that point, Otero's personal counsel made an ore tenus motion to strike from the complaint the count III allegations relating to punitive damages. Counsel argued that having prevailed on the "intentional tort" aspect of the coverage question against U. S. F. & G., Perez could not continue to pursue a punitive damage claim against Otero, individually. The court thereupon announced that Otero's motion to strike was granted. On April 14, 1976, in accordance with its earlier ruling, the trial court entered an "amended order striking punitive damage claim with prejudice."

The partial summary judgment is appealed by U. S. F. & G., while Perez has appealed the order striking punitive damages. In...