CopyCited 304 times | Published | Court of Appeals for the Eleventh Circuit | 46 Fed. R. Serv. 3d 73, 2000 U.S. App. LEXIS 2789, 2000 WL 217490
ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC Before BIRCH and CARNES, Circuit Judges, and MILLS * , Senior District Judge. CARNES, Circuit Judge: In our prior opinion in this case, we held that Florida Statute § 768.72 conflicts with and must yield to the “short and plain statement” rule contained in Federal Rule of Civil Procedure 8(a)(3), and as a result a Florida plaintiff in federal court because of diversity jurisdiction need not obtain leave of court before pleading a request for punitive damages....
CopyCited 281 times | Published | Court of Appeals for the Eleventh Circuit
...ed the district court's order of dismissal for lack of subject matter jurisdiction. In that case, after the district court had stricken the Florida plaintiffs' punitive damage claim because it had not been properly pled in accordance with Fla. Stat. 768.72, the court concluded that the plaintiff's class action suit did not satisfy the amount in controversy requirement. See id. at 1294 . On appeal, the Court held in Cohen I that Fla. Stat. 768.72 did not apply to cases filed in federal court, see id....
CopyCited 131 times | Published | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 317, 1995 Fla. LEXIS 1127, 1995 WL 392709
...We approve the decision of the district court in this case. The district courts are in conflict as to whether it is appropriate for an appellate court to grant certiorari to review an order of a trial court permitting a plaintiff to amend a complaint to include punitive damages under section 768.72, Florida Statutes (1993). We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72....
...nt which would provide a reasonable basis for recovery of such damages. In the case at bar, Matthew King moved that the trial court allow him to amend his complaint to include punitive damages. The trial court held an evidentiary hearing pursuant to section 768.72, finding that King proffered sufficient evidence to establish a reasonable basis for a punitive damages claim and issuing an order granting his motion to amend. The defendant, Globe Newspaper, petitioned the district court for certiorari review of the order. Globe argued that section 768.72 provided a substantive right to be free from punitive damages litigation based upon insufficient evidence and that right could only be preserved by the district court reviewing the sufficiency of King's evidence through an interlocutory appeal....
...criteria for this extraordinary review, even considering the financial disclosure which followed determinations that punitive damages had been sufficiently plead. Id. at 1098-99. Subsequent to the facts giving rise to the decision in Martin-Johnson, section 768.72, Florida Statutes (1987), became effective. That section is applicable to the instant action. Section 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...imant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. We read section 768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages....
...4th DCA 1991) (financial worth discovery), and Sports Products, Inc. v. Estate of Inalien, 20 Fla. L. Weekly D13 *520 (Fla. 4th DCA Dec. 21, 1994), review dismissed, No. 84,988 (Fla. June 7, 1995), the district court ruled that the procedure mandated by section 768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section 768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed....
...r is a recognition of the express requirements mandated by the statute. Globe invites this Court to take a further step, however, and hold that certiorari may also be granted to review the sufficiency of the evidence considered by a trial judge in a section 768.72 determination....
...Rockhead,
639 So.2d 660 (Fla. 3d DCA 1994). We specifically agree with the reasoning of the Fourth District in its decision in Sports Products, Inc. that certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section
768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry....
...ods to the extent that those decisions conform with our decision in this case. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN and HARDING, JJ., concur. ANSTEAD, J., dissents with an opinion. ANSTEAD, Justice, dissenting. The majority reads section 768.72 "to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Majority op. at 519. Based upon that construction, with which I agree, the majority also holds that "appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed." Id. at 520. However, the Court goes on to grant the petitioner a hollow victory when it limits any review to the procedure followed in the trial court and refuses to enforce the substantive rights granted by section 768.72. *521 The heart of section 768.72 is its requirement of "a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Without that showing, no "discovery of financial worth shall proceed." The opinion in Commercial Carrier Corp....
...w is appropriate in such cases. NOTES [1] Globe asserts in its brief that the irreparable harm suffered results from having to defend a claim for punitive damages and produce financial worth discovery in violation of the substantive right created by section 768.72....
CopyCited 130 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 202, 2011 Fla. LEXIS 1027, 2011 WL 1675242
...ntended to redress mere legal error." Broward Cnty. v. G.B.V. Int'l, Ltd.,
787 So.2d 838, 842 (Fla. 2001). This Court has cautioned that "certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section
768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co....
...Orders denying a motion to dismiss, such as in the instant case, are not enumerated in rule 9.130. It is generally inappropriate to review a trial court's denial of a motion to dismiss. See Martin-Johnson,
509 So.2d at 1099, superseded by statute on other grounds, §
768.72, Fla....
...Mary's motion to dismiss. Id. St. Mary's petitioned the Fourth District for a writ of certiorari. The Fourth District dismissed the petition, explaining that "certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000)." St....
...did not rise to the level of material harm that would permit certiorari review. Id. at 519-20. There, we concluded that appellate courts have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72....
CopyCited 101 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Fed. S 589, 2012 WL 4449131, 2012 Fla. LEXIS 1859
...relief and was in express and direct conflict with the decisions of this Court in Allstate Insurance Company v. Boecher,
733 So.2d 993 (Fla.1999) and Martin-Johnson, Inc. v. Savage,
509 So.2d 1097 (Fla.1987), superceded by statute on other grounds, §
768.72, Fla....
...rm such that the appellate court should have granted certio-rari relief. See
509 So.2d at 1098 . Although courts have since retreated from the specific holding of Martin-Johnson, Inc. with regard to punitive damage claims in light of the adoption of section
768.72, Florida Statutes (1989), the foundation of the case — that common law certiorari may be invoked only when a party will suffer irreparable harm that cannot be remedied on direct appeal — remains sound law....
CopyCited 92 times | Published | Court of Appeals for the Eleventh Circuit
...of discretion in the grant of such an award in this case.”).
Florida law allows punitive damages only “if the trier of fact, based on clear
and convincing evidence, finds that the defendant was personally guilty of
intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2)....
...“‘Intentional
misconduct’ means that the defendant had actual knowledge of the wrongfulness of
the conduct and the high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” Id. § 768.72(2)(a). “‘Gross negligence’ means that
the defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed
to such conduct.” Id. § 768.72(2)(b).
The district court denied punitive damages because “[t]he grocery exclusives
sought to be enforced against the Defendants are rife with ambiguities and the
scope of their restrictions are uncertain at best,” and, “[m]o...
CopyCited 63 times | Published | District Court, S.D. Florida | 1991 U.S. Dist. LEXIS 10920, 1991 WL 152814
...ate law claim. D. Punitive Damages Defendants Bodden and Logal move to strike Plaintiffs' demand for punitive damages in Count IV of the Feld Consolidated Amended Class Action Complaint, arguing that Plaintiffs have not complied with Florida Statute § 768.72, which requires there to be evidence in the record or proffered by Plaintiffs establishing a reasonable basis for such damages before a claim for punitive damages may be asserted. Defendants are mistaken that § 768.72 applies to this case, however....
...amages in an action filed in federal court is governed by the provisions of Federal Rule of Civil Procedure 8(a), which requires only "a short and plain statement of the claim showing that [the plaintiff] is entitled to relief," and not by Fla.Stat. § 768.72, which irreconcilably conflicts with the notice pleading requirement of Rule 8(a). Accordingly, the motions to strike the punitive damage claims under § 768.72 are denied....
CopyCited 59 times | Published | District Court, S.D. Florida | 1991 U.S. Dist. LEXIS 1752, 1991 WL 16681
...oyalty in addition to any breach of contract claim they may assert, since the Amended Complaint alleges separate tortious conduct. [20] D. Punitive Damages Several Defendants argue that AmeriFirst has not adequately pled punitive damages pursuant to §
768.72 of the Florida Statutes as AmeriFirst has not made an evidentiary showing that such damages are appropriate and has not sought Court permission. [21] This Court recently held in Citron v. Armstrong World Indus., Inc.,
721 F.Supp. 1259 (S.D.Fla.1989), that §
768.72 does not apply to state claims being litigated in federal court. As explained in that case, Fed.R.Civ.P. 9(g) must be applied in lieu of §
768.72, since the state statute is procedural in nature and directly conflicts with the federal rule....
...at 1262 (quoting NAL II, Ltd. v. Tonkin,
705 F.Supp. 522, 529 (D.Kan.1989). See also Berry v. Eagle-Picher,
1989 WL 77764,
1989 U.S. Dist. LEXIS 7671 (N.D.Ill. June 26, 1989). Consequently, Defendants' argument that the punitive damages claims should be dismissed pursuant to §
768.72 fails....
...he claim must be dismissed. This argument misses the point. Plaintiff is not seeking damages under HOLA; rather, Plaintiff cites the alleged HOLA violations as evidence that Defendants breached their state common law breach of fiduciary duties. [21] Section 768.72 provides in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......
CopyCited 51 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 232, 108 Fair Empl. Prac. Cas. (BNA) 111, 2010 WL 20987
...knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.
Fla. Stat. § 768.72(2)....
CopyCited 44 times | Published | District Court, S.D. Florida | 1989 WL 81343
...Accordingly, it is the opinion of this Court that Count IX of Defendant's Counterclaim should be dismissed. Punitive Damages Plaintiff has filed a Motion to Strike Defendant's request for punitive damages for failure to comply with the pleading requirements set forth in Section 768.72, Florida Statutes....
...Under the Federal Rules, a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Courts, however, have abrogated these liberal pleading requirements when greater specificity is required. Section 768.72, Florida Statutes (1987), represents such a departure from the liberal requirements of notice pleading. Florida Statute Section 768.72 requires that a Plaintiff plead with greater specificity when asserting a claim for punitive damages....
...Florida courts have held that this statute is substantive in nature and, thus, should be applied by a federal court in Florida, sitting in diversity. Smith v. Department of Ins.,
507 So.2d 1080 (Fla. 1987). Accordingly, Plaintiff in the instant case is bound by the more stringent pleading requirements of Section
768.72. Upon review of Defendant's Counterclaim, it is evident that Defendant has failed to comply with the special pleading requirements of Section
768.72....
...in a claim for punitive damages. Accordingly, this Court hereby strikes Defendant's request for punitive damages. The Court, however, hereby grants Defendant 20 days within which to amend its Counterclaim to comport with the pleading requirements of Section 768.72, Florida Statutes (1987)....
...Spurney,
797 F.2d 214, 216 (5th Cir.1986) (contract language did not require segregation of the funds owed by one party to another, and thus, did not establish Plaintiff's ownership interest in the funds, so as to sustain a conversion action. [4] Florida Statute Section
768.72 provides in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
CopyCited 44 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 19008, 2010 WL 5074839
...ins an `open question.'"). C. Punitive Damages Finally, RJR challenges the $25 million punitive damage award arguing it is improperly based on the Engle findings and excessive in light of the $3.3 million in compensatory damages awarded Mrs. Martin. Section 768.72(2), Florida Statutes, requires a plaintiff seeking punitive damages to prove by clear and convincing evidence the defendant is guilty of intentional misconduct or gross negligence....
CopyCited 43 times | Published | Court of Appeals for the Eleventh Circuit | 1999 WL 622013
...Lenard, Judge.
ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
CARNES, Circuit Judge:
In our prior opinion in this case, we held that Florida Statute § 768.72 conflicts with and must yield
to the "short and plain statement" rule contained in Federal Rule of Civil Procedure 8(a)(3), and as a result
a Florida plaintiff in federal court because of diversity jurisdiction need not obtain leave of court before
pleading a request for punitive damages....
CopyCited 42 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 10210, 2002 WL 1257767
...580, 582 (M.D.Fla.1995) (citing Hanna v. Plumer,
380 U.S. 460,
85 S.Ct. 1136, 1144,
14 L.Ed.2d 8 (1965)); See also: Cohen v. Office Depot, Inc.,
184 F.3d 1292 (11th Cir.1999), vacated on other grounds by
204 F.3d 1069 (11th Cir.2000) (holding that Fla. Stat. §
768.72, requiring an evidentiary showing before pleading entitlement to punitive damages, was inconsistent with Fed.R.Civ.P....
CopyCited 40 times | Published | District Court, S.D. Florida | 2004 U.S. Dist. LEXIS 5376, 2004 WL 615642
...In a diversity action, state law applies to punitive damages awards. Dunn v. Koehring Co.,
546 F.2d 1193, 1201 (5th Cir.1977); see, e.g. Toole v. Baxter Healthcare Corp.,
235 F.3d 1307, 1317 (11th Cir.2000). Florida law provides, pursuant to Fla. Statute §
768.72(1), that In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. Fla. Stat. §
768.72(1)....
CopyCited 38 times | Published | District Court, S.D. Florida | 1992 U.S. Dist. LEXIS 16273, 1992 WL 309059
...[29] The Court is unclear as to why Austins have included the second portion of this allegation beginning with "than." [30] In its Reply, BKC acknowledged this Court's ruling in State of Wis. Inv. Bd. v. Plantation Square Assoc., Ltd.,
761 F.Supp. 1569, 1576 (S.D.Fla.1991), holding that Fla.Stat. §
768.72 is inapplicable to federal diversity actions....
CopyCited 37 times | Published | Florida 5th District Court of Appeal | 2005 WL 672090
...ges against Avante Group, Inc. and Avante at Leesburg, Inc. The issue we must resolve is whether Despain made a sufficient showing by evidence in the record or proffer to establish a reasonable basis to plead a claim for punitive damages pursuant to section 768.72(1), Florida Statutes (1999)....
...After once again considering the proffered facts and the record evidence, the trial court denied the subsequent motion and the case proceeded to trial, resulting in a verdict and judgment awarding compensatory damages to Despain. In order to properly decide whether the requisite showing was made under section 768.72(1) to allow Despain's claim for punitive damages, we must first determine the correct standard that establishes whether misconduct is so egregious as to warrant an award of punitive damages....
...level of at least ordinary negligence. Schropp; Mercury Motors Express, Inc. v. Smith,
393 So.2d 545 (Fla.1981); Beverly Enters.-Fla., Inc. [3] C. The Pleading Requirements In order to plead a claim for punitive damages, a plaintiff must comply with section
768.72(1), Florida Statutes....
...The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. § 768.72(1), Fla....
...(1999) (emphasis added); [4] see also Fla. R. Civ. P. 1.190. Because the amount of an award may be a pittance to a rich man and ruination to a poor one, the goal of punishment must of necessity take into account the financial worth of the wrongdoer. Accordingly, although section
768.72(1) is procedural in nature, it also provides a substantive right to parties not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisite showing under the statute has been made to the trial court. Simeon, Inc. v. Cox,
671 So.2d 158, 160 (Fla.1996); Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). [5] *642 There is no definition of the term "reasonable basis" in section
768.72(1). Therefore, in deciding whether a "reasonable basis" was established by the record evidence and proffer presented by Despain to allow the requested claim for punitive damages under section
768.72(1), we must determine the appropriate standard of reviewde novo or abuse of discretionto apply. II. Standard Of Review To Determine Whether A Reasonable Basis Has Been Shown To Allow A Claim For Punitive Damages Because section
768.72(1) provides a substantive right to a defendant not to be subjected to discovery of his or her financial worth until the trial court has found a reasonable basis for a plaintiffs claim for punitive damages, the court in Holmes v....
...Although we are not much persuaded by that particular reasoning, we do agree with the part of the decision in Holmes that indicates the de novo standard of review is appropriate. We will now endeavor to explain why we arrive at this conclusion. In discussing the requirements of section 768.72(1), the court in State of Wisconsin Investment Board v....
...Surrey Place of Ocala v. Goodwin,
861 So.2d 1291 (Fla. 5th DCA 2004) (holding that a hearing on a motion to amend to allege punitive damages is not necessary); Solis v. Calvo,
689 So.2d 366, 369 n. 2 (Fla. 3d DCA 1997) ("Pursuant to Florida Statute section
768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....
...A formal evidentiary hearing is not mandated by the statute.") (citation omitted); Strasser v. Yalamanchi,
677 So.2d 22, 23 (Fla. 4th DCA 1996) ("[A]n evidentiary hearing is not mandated by the statute before a trial court has authority to permit an amendment. Pursuant to section
768.72(1), a proffer of evidence can support a trial court's determination."); Will v. Systems Eng'g Consultants, Inc.,
554 So.2d 591 (Fla. 3d DCA 1989); see also Porter v. Ogden, Newell & Welch,
241 F.3d 1334 (11th Cir.2001). Because record evidence or proffer is specified in section
768.72(1), we reject the argument that the abuse of discretion standard applies to determine whether the trial court properly found that a reasonable basis was or was not established....
...record evidence or a proffer is sufficient to establish a reasonable basis to plead a claim for punitive damages; rather, the finding of a reasonable basis under the statute requires a legal determination by the trial court that the requirements of section 768.72(1) have been met....
...4th DCA 1991) ("That finding necessarily includes a legal determination that the kind of claim in suit is one which allows for punitive damages under our law. Thus, to that extent, the legal sufficiency of the punitive damage pleading is also in issue in the section 768.72 setting.")....
...[2] Section
400.023, Florida Statutes, was substantially amended in 2001 and subsection (5) was deleted. That amendment became effective after the cause of action in the instant case accrued. We will, therefore, apply the provisions of subsection (5) of the 1999 version of section
400.023. [3] Section
768.72 was amended in 1999 as part of the 1999 Tort Reform Act to include subsection (3), which adopts a different standard....
...This amendment became effective on October 1, 1999. Ch. 99-225, § 22, Laws of Fla. Because the cause of action in the instant case accrued prior to that date, the new standard does not apply. [4] As part of the 1986 Tort Reform Act, the Legislature enacted section
768.72, which imposed requirements that had to be complied with before a litigant was entitled to plead a claim for punitive damages. The Legislature substantially amended section 786.72 when it enacted the 1999 Tort Reform Act to add three new subsections. However, the provisions of the previous version of section
768.72 were included unchanged in subsection (1) of the amended version. Because the cause of action in the instant case accrued prior to enactment of the 1999 Tort Reform Act, we will apply the previous version of section
768.72. However, we cite to subsection (1) of section
768.72 because that is the version that appears in the bound volume of the 1999 Florida Statutes. We also note that section
768.735, Florida Statutes (1999), enacted as part of the 1999 Tort Reform Act, provides that the provisions of section
768.72(2)-(4),
768.725, and
768.73 do not apply in civil actions arising under chapter 400, Florida Statutes. §
768.735(1), Fla. Stat. (1999). Although section
768.735 is not applicable to the instant action either, we note with interest that even under its provisions, the requirements of subsection (1) of the amended version of section
768.72 do apply to claims for punitive damages under chapter 400 because they are not excluded by section
768.735....
CopyCited 35 times | Published | Court of Appeals for the Eleventh Circuit | 76 Fed. R. Serv. 3d 1732, 95 U.S.P.Q. 2d (BNA) 1737, 2010 U.S. App. LEXIS 12175, 2010 WL 2367119
...Under Florida law, “[a] defendant may be held
liable for punitive damages only if the trier of fact, based on clear and convincing
evidence, finds that the defendant was personally guilty of intentional misconduct
or gross negligence.” Fla. Stat. § 768.72(2) (2005)....
...t had actual
knowledge of the wrongfulness of the conduct and the high probability that injury
or damage to the claimant would result and, despite that knowledge, intentionally
pursued that course of conduct, resulting in injury or damage.” Id. §768.72(2)(a).
In order to demonstrate gross negligence, the plaintiff must show “the defendant’s
38
conduct was so reckless or wanting in care that it constituted a conscious disregard
or indifference to the life, safety, or rights of person exposed to such conduct.” Id.
§768.72(2)(b)....
...4th DCA 1998) (“While an absence of
probable cause can result in a finding of legal malice, legal malice, based solely on
the absence of probable cause, is insufficient to support an award of punitive
damages.”).
In this case, the clear and convincing standard of proof required under
§768.72 is determinative....
CopyCited 30 times | Published | District Court, M.D. Florida | 1990 U.S. Dist. LEXIS 15044, 1990 WL 176026
...Plaintiff Knight's Federal and Florida RICO claim satisfies sufficient RICO elements to withstand a motion to dismiss. Punitive Damages Defendant argues that Plaintiff's demand for punitive damages in the amount of $25,000,000 must be stricken. The Court does not agree. Florida Statutes, § 768.72 states that "no claim for punitive damages shall be permitted unless there is reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." In this case, Plai...
CopyCited 30 times | Published | Florida 4th District Court of Appeal | 2005 WL 235843
...Plaintiffs sued Ford, as well as Firestone; however, Ford was dropped as a party prior to trial. Plaintiffs' recovery against Firestone was based on failure to warn of a known defect and strict liability. The jury determined plaintiffs' damages were $55,400, but that Firestone was only twenty-percent responsible. Section 768.72, Florida Statutes (2000), provides that claims for punitive damages will not be permitted unless there is a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery...
...f discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile. Punitive damage amendments are different than traditional amendments in that section 768.72 has created a substantive legal right not to be subject to a punitive damage claim until the trial court rules that there is a reasonable evidentiary basis for punitive damages....
...vor of allowing amendments, Yun Enters. v. Graziani,
840 So.2d 420, 423 (Fla. 5th DCA 2003), is not appropriate for reviewing proposed punitive damage amendments. When a trial court is determining if a plaintiff has made a "reasonable showing" under section
768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo....
CopyCited 30 times | Published | District Court, S.D. Florida | 20 Fed. R. Serv. 3d 674, 1991 U.S. Dist. LEXIS 5012, 1991 WL 57906
...dly fraudulent sales. The court's jurisdiction is derived exclusively from the diverse citizenship of the parties. I. Punitive Damages The defendants have moved to dismiss SWIB's claim for punitive damages for failure to comply with Florida Statutes § 768.72....
...Plaintiff has submitted a "proffer" of documents which it claims meets the statutory basis for asserting punitive damages but at the same time argues that the court need not examine the proffer in that, under Erie R.R. Co. v. Tompkins,
304 U.S. 64,
58 S.Ct. 817,
82 L.Ed. 1188 (1938) and its progeny, §
768.72 is a state procedural rule undeserving of application by a federal court sitting in diversity....
...Lundgren,
814 F.2d at 606. Absent scrutiny under these two lines of analysis, deciding when to apply a state rule in federal court becomes a battle of divining rods and crystal balls. With these analyses in mind, then, the court turns its attention to §
768.72. A. The Statute as Both a Pleading Rule and a Discovery Rule Preliminarily, it must be conceded that §
768.72 is both a pleading rule and a discovery rule....
...However the last sentence, permitting discovery of a defendant's financial worth only after a punitive damage claim has been permitted, is of an entirely different nature than the rest of the statute and, for Erie purposes, must be *1573 analyzed separately as a rule of discovery. [4] B. The Pleading Aspects of §
768.72 Since the statute's adoption in 1986, other district courts in Florida have addressed the issue of whether §
768.72 is procedural or substantive under the Erie doctrine. With the notable exception of Citron v. Armstrong World Industries, Inc.,
721 F.Supp. 1259 (S.D.Fla.1989), all reported cases have applied §
768.72 as substantive State law in federal diversity actions....
...appealable, and because the district court's ruling would in all likelihood not affect the outcome of the litigation, [5] appeal of such a ruling, though possible in some narrow contexts, [6] has proven elusive as of yet. (1) The Pleading Aspects of § 768.72 Under the Hanna Analysis In addressing the first question under Hanna whether § 768.72 directly collides with a Federal Rule it is first necessary to discern the relevant rule....
...Rule 9(g) requires that "[w]hen items of special damages are claimed, they shall be specifically stated." Yet read in light of the Supreme Court's pronouncements in Walker v. Armco Steel Corp.,
446 U.S. 740,
100 S.Ct. 1978,
64 L.Ed.2d 659 (1980), the court finds no unavoidable conflict between Rule 9(g) and §
768.72....
...In our view, in diversity actions, Rule 3 governs the date from which various timing requirements of the federal rules begin to run, but does not affect state statutes of limitations. Id. (footnotes omitted). Similarly, Rule 9(g) can co-exist with § 768.72....
...Conceivably, a state statute could allow a right of action to punitive damages to accrue only six months after the filing of a lawsuit or only after a plaintiff prevailed on its underlying compensatory claim. Neither these delays in the pleading of punitive damages nor that engendered by § 768.72's requirement of some minimum reasonable basis determination directly conflicts with Rule 9(g)....
...The Florida statute, however, does directly and irreconcilably conflict with Federal Rule 8. Rule 8(a)(2) provides that a plaintiff's complaint establishes a claim by setting forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Section 768.72 obviously requires much more than a mere "short and plain statement" for establishing a punitive damage claim in that it necessitates 1) the presentation of evidence in the record or proffered by Plaintiff to demonstrate that there exi...
...41, 47,
78 S.Ct. 99,
2 L.Ed.2d 80 (1957): " [A]ll the Rules require is a `short and plain statement of the claim' that will give the defendant notice of what the plaintiff's claim is and the grounds upon which it rests." (Emphasis added.) To apply §
768.72 in federal courts would, in essence, convert the pleading of punitive damages from the requirement of mere notice to a quasi-adjudication of plaintiff's claim, requiring evidentiary inquiry and discovery, argumentation of counsel, and a judicial ruling....
...ith the pleading philosophy embodied in Rule 8. 5 C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE: § 1202 at 68 (2d ed. 1990). See also, Sparkman v. McFarlin,
601 F.2d 261, 276 n. 16 (7th Cir.1979). Having concluded that the pleading aspects of §
768.72 conflict with the Federal Rules, the court must next determine whether, under the Hanna analysis, Rule 8(a) is beyond the scope of the Rules Enabling Act, 28 U.S.C....
...district courts." 28 U.S.C. § 2072. Nor does Rule 8, as herein applied, "abridge ... or modify any substantive right" within the meaning of the Enabling Act. Defendants argue citing for support all the Florida district courts, save Citron, which have addressed §
768.72 that not applying the statute in Federal court would abridge their substantive rights as defined by the Florida Supreme Court in Smith v. Dept. of Insurance,
507 So.2d 1080 (Fla. 1987). Smith was a broad constitutional attack on the 1986 Tort Reform and Insurance Act. In part, the Florida Supreme Court held in Smith that §
768.72 did not violate the State Constitution's separation of powers clause in that the provision was not merely procedural and solely a matter of concern for the judiciary, but sufficiently affected substantive rights of civil litigants as to properly fall within the sphere of the legislature's powers. Id. at 1092 n. 10. Specifically, the Court held: Section [
768.72] is clearly substantive because it sets the standard for establishing a claim for punitive damages. The legislature, which has the authority to abolish punitive damages can surely set the standard for establishing such claims. The Court is of the view that [§
768.72] create[s] substantive rights and further that any procedural provisions of [this] section[] [is] intimately related to the definition of those substantive rights. Id. (Quoting and adopting the trial court's opinion). Yet, as Citron ably notes, the Florida Supreme Court had neither the cause nor the capacity to determine whether §
768.72 is substantive or procedural for purposes of federal diversity actions. Citron,
721 F.Supp. at 1261. In holding that the statute sets the standard for "establishing" punitive claims, the Court must have meant only "the pleading of" such claims. It could not mean that §
768.72 adds any substantive element to punitive damage claims, because it clearly does not. To attain an award of punitive damages, a plaintiff in Florida still needs to establish the same level of fraudulent, malicious, or wanton conduct [8] by a defendant whether or not the statute is applied. Section
768.72 merely changes the time at which a plaintiff can plead punitive claims and at which defendants are formally exposed to such claims....
...procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights. Id. at 445-46,
66 S.Ct. at 246. This court is of the decided view that statutes such as §
768.72 neither alter the substantive elements governing punitive damages nor grant litigants any substantive rights within the meaning of the Rules Enabling Act....
...' mandate embodied in the Enabling Act. Nor is there any suggestion that application of Rule 8 here would in any way transgress Congress's Constitutional bounds. Accordingly, Rule 8(a) controls and the court declines to apply the pleading aspects of § 768.72. Though the court's somewhat extensive analysis has been necessary to address the current confusion concerning § 768.72, a plethora of authority exists to support the court's conclusion....
...1989) (plaintiffs need not plead "ultimate facts" in accord with Florida pleading requirements but are bound only by Rule 8(a)(2) of the Federal Rules). See generally, 5 C. Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE: § 1204 at 81-85. (2d ed. 1990). (2) The Pleading Aspects of § 768.72 Under the Erie Analysis Because the statute clashes with Rule 8 and Hanna applies, the court has had no need to conduct an Erie analysis. Yet even if no conflict between § 768.72 and the Federal Rules existed, the court would not apply the statute's pleading aspects as failure to do so would lead to neither an inequitable administration of the laws nor to forum-shopping....
...at 468,
85 S.Ct. at 1142; Walker,
446 U.S. at 752-53,
100 S.Ct. at 1986. Because of the statute's own liberal procedures for amendment, all diligent litigants with valid punitive damage claims in State court are eventually able to assert their claims under §
768.72, thus ensuring the same outcome under either rule of procedure....
...Not only, then, is the statute not "substantive" within the meaning of the Rules Enabling Act under the Hanna analysis, neither is it "substantive" for Erie purposes. See Hanna,
380 U.S. at 471,
85 S.Ct. at 1143-44 (the two definitions of "substantive" are not identical). C. The Discovery Aspects of §
768.72 The last sentence of §
768.72, providing that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted" is unique among the state punitive damage pleading statutes of which the court is aware, and indeed, appears to be unique among state discovery rules....
...thereby inapplicable in diversity actions. See Ille, 87 F.R.D. at 542; Mid Continent Cabinetry, 130 F.R.D. at 151 n. 1. Hesitant to decide the issue on divine intuition alone, the court looks to Hanna and Erie for help. (1) The Discovery Aspects of § 768.72 Under the Hanna Analysis As Hanna instructs, the first task for the court is to determine whether the federal rule is broad enough to cover the point in dispute....
...Courts deem discovery of financial worth relevant so that, once punitive liability has been determined, the factfinder can better fashion an appropriate measure of damages by taking into account the defendant's means. See Section I.C., supra. [10] In apparent contravention of § 768.72, Rule 26 presumes access to discovery contemporaneous with a determination of relevancy....
...Under either the State rule or the Federal Rule, plaintiff will have in hand evidence of the defendant's financial condition at the time it becomes necessary for the factfinder to determine punitive liability. [13] Equally telling as to the lack of conflict between § 768.72 and the Federal Rules is the fact that at least some federal courts interpreting the Federal Rules have deemed it proper to postpone discovery of net worth along the lines contemplated by § 768.72....
...Squared off against this potential flexibility of Rule 26 and the federal policies underlying it stand substantial State policies, of which the delay in discovery of financial worth proves an "integral" part. [14] See Walker,
446 U.S. at 751-52,
100 S.Ct. at 1985-86. By adding the last sentence to §
768.72, the Florida legislature has granted its citizens a limited right of privacy to information concerning their net worth when faced with punitive damage claims....
...[15] In light of the "several policies served" by the State discovery provision and the lack of a strong federal interest in demanding immediate access to financial worth discovery, the court has little trouble reconciling the seeming confrontation between § 768.72 and Rule 26....
...at 1985. Accordingly, Hanna does not apply. Instead, the State rule deserves further scrutiny under the "twin aims of Erie." Hanna,
380 U.S. at 468,
85 S.Ct. at 1142; Walker,
446 U.S. at 752-53,
100 S.Ct. at 1986. [17] (2) The Discovery Aspects of §
768.72 Under the Erie Analysis Failure to adopt the State discovery practice would not lead to an inequitable administration of the laws. It is difficult if not impossible to imagine how pre-trial production of evidence of financial worth sooner, rather than later, would change the result of any given litigation. Yet the court finds that disregard of §
768.72's discovery provision could lead to forum-shopping....
...would be likely to cause a plaintiff to choose the federal court"). (Emphasis added). Plaintiffs with insubstantial punitive damage claims especially those of the harassing and unscrupulous sort would likely prefer the federal over the State forum were § 768.72 not applied *1580 there, hoping to gain access to otherwise protected financial records for their own sake or with the hope of using the threat of such sensitive discovery as an otherwise unearned bargaining chip....
...Ross, 107 F.R.D. at 328 (application of New York rule prevented plaintiff from discovering famous entertainer's net worth and annual income until punitive liability established). Though the potential class of plaintiffs which would be tempted to forum shop were § 768.72 disregarded by federal courts is likely small, it is well-defined. And it is precisely that class of plaintiffs which the statute seeks to keep at bay. Accordingly, this court finds the discovery provision of § 768.72 substantive for Erie purposes and will give it effect in this action. [18] (3) Applying the Discovery Aspects of § 768.72 Under normal circumstances, application of § 768.72's discovery provision will likely come before the court in the guise of a motion for protective order by the defendant or on a motion to compel or for leave to seek discovery of financial worth by the plaintiff....
...by arguing their own evidence. [20] The court seriously doubts that the statute intended such a fact-intensive investigation into the merits of Plaintiff's punitive claim. Without attempting to determine precisely what type of showing is required by § 768.72, the court believes it must ultimately be a lesser standard than that required for summary judgment. Though the burden is on SWIB to survive a § 768.72 challenge of insufficiency, see Will v....
...Systems Engineering Consultants,
554 So.2d 591, 592 (Fla.App. 3 DCA 1989), the standard of proof required merely to assert Plaintiff's punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a §
768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff....
...Accordingly, defendants' motion to dismiss SWIB's claim for attorney fees shall be granted. ORDER For the foregoing reasons, it is hereby ORDERED and ADJUDGED that the defendants' motion to dismiss Plaintiff's claim for punitive damages is DENIED as the pleading provisions of Florida Statutes § 768.72 shall not be given effect by this court. It is further ORDERED and ADJUDGED that the discovery provision of Florida Statutes § 768.72 shall be given effect by this court and that Plaintiff has met that provision's standard for obtaining discovery of the defendants' financial worth....
...It is further ORDERED and ADJUDGED that the defendants' motion to dismiss Plaintiff's claim for attorney fees is GRANTED. NOTES [1] These motions include the Wenal Defendants' Motion to Strike Claim for Punitive Damages and Attorneys' Fees, Plaintiff's Proffer of Evidence Pursuant to Florida Statutes § 768.72, the Wenal Defendants' Response to Plaintiff's Proffer, the Zaremba Defendants' Memorandum in Opposition to Plaintiff's Proffer, Plaintiff's Motion to Strike Memoranda in Opposition to Plaintiff's Proffer of Evidence, the Wenal Defendants'...
...general rules of practice and procedure and rules of evidence for cases in the United States district courts ... Such rules shall not abridge, enlarge or modify any substantive right. [4] Neither the parties nor the other courts which have addressed § 768.72 have applied the Hanna or Erie analysis to the statute's discovery provision....
...[15] The Court in Tennant did qualify its holding by allowing defendants to obtain protective orders preventing disclosure where they could establish that no "actual factual basis" yet existed for punitive damages. Id. However, even this qualification conflicts substantially with § 768.72 to the extent it places the onus on defendant to move for protection from disclosure, rather than presuming protection, and places the burden on defendant to show the insubstantiality of plaintiff's case, rather than on plaintiff to establish the reasonableness of its punitive claim. [16] Undoubtedly, the pleading provisions of § 768.72 also serve an integral part of the State's policy of curing past abusive pleading practices which have contributed to an "insurance availability and affordability crisis." Preamble, Tort Reform and Insurance Act of 1986, Ch. 86-160, 1986 Fla.Laws 695, 699. Yet in view of the immense challenge § 768.72 presents to the strong federal interest in maintaining a system of notice pleading, the statute's conflict with Rule 8 and the resulting virtual presumption of its non-applicability in federal court cannot be avoided. [17] The court is also mindful of the fact that the legislature's passage of § 768.72 could be deemed the creation of a new evidentiary privilege....
...as compelled by state statutes in diversity cases"). See e.g., Scott v. McDonald, 70 F.R.D. 568 (N.D.Ga.1976) (in diversity case, state statute excluding medical review proceedings from discovery was controlling). [18] Of course, the application of § 768.72 in this instance and in future instances only pertains to discovery relating to punitive damage claims arising under the court's diversity jurisdiction....
CopyCited 29 times | Published | District Court, S.D. Florida | 1992 U.S. Dist. LEXIS 7366, 1992 WL 152239
...[11] Stop Me if You Think That You've Heard This One Before The Defendants next advance the familiar argument that the Plaintiffs' prayer for punitive damages should be stricken insofar as it fails to meet the pleading requirements of the Tort Reform Act, Fla.Stat. § 768.72 (1991). [12] The issue becomes whether § 768.72 is procedural or substantive in nature, since a federal court sitting *1579 in diversity action must apply federal law to matters of procedure and follow the substantive law of the forum state with respect to matters of substance....
...Rule 8 merely requires that the complaining party provide "a short, plain statement of the claim showing that the pleader is entitled to relief," while Rule 9(g) provides that items of special damages, such as punitive damages, are to be specifically pleaded. On the other hand, Florida Statute § 768.72, which sets forth the pleading guidelines for alleging punitive damages pursuant to Florida law, represents a departure from the liberal requirement of notice pleading....
...It prohibits a claim for punitive damages unless there is evidence in the record or proffered by the Plaintiff which provides a reasonable basis for recovery. In other cases, Defendants have advanced the familiar argument that the Florida Supreme Court in Smith v. Dept. of Ins.,
507 So.2d 1080 (Fla.1987) interpreted §
768.72 as being substantive law for the purposes of Erie....
...ling would in all likelihood not affect the outcome of the litigation, appeal of such a ruling, though possible in some narrow contexts, has proven elusive as of yet." Plantation Square,
761 F.Supp. at 1573. The Florida Supreme Court in Smith deemed §
768.72 "substantive" in the sense that the state legislature, by adopting this portion of the Tort Reform Act, did not encroach on the court's rule-making authority....
...The Smith court did not, however, consider the substantive-procedural distinction in Erie terms. Smith, therefore, has no relevance to this court's specific inquiry. After surveying the caselaw, the undersigned is in agreement with the majority of the judges in the Southern District of Florida that § 768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court....
...[11] Perhaps the Plaintiffs could institute a qui tam action. See generally United States ex rel. Williams v. NEC Corp.,
931 F.2d 1493 (11th Cir.1991); United States of America v. Christino Enriquez et al., No. 90-6105-CIV-PAINE,
1991 WL 236502,
1991 U.S. Dist LEXIS 14698 (S.D.Fla.Jul. 12, 1991). [12] Section
768.72 provides in part that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
CopyCited 29 times | Published | District Court, N.D. Florida | 1995 U.S. Dist. LEXIS 7231, 1995 WL 319071
...Punitive Damages. Finally, the defendant has moved to strike the plaintiffs' demand for punitive damages contained in all counts of the complaint on the grounds that the plaintiffs have not complied with Florida's requirements for punitive damages. Specifically, Section 768.72, Florida Statutes (1993), provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......
...nd maliciously and was guilty of wanton disregard of the rights of the Plaintiff." See Bankest Imports, Inc. v. ISCA Corp.,
717 F.Supp. 1537 (S.D.Fla.1989). Accordingly, the motion to strike the demand for punitive damages for failure to comply with Section
768.72 is GRANTED, and it is STRUCK from all counts of the complaint....
CopyCited 27 times | Published | Florida 4th District Court of Appeal | 2017 WL 1174768, 2017 Fla. App. LEXIS 4176
...ree counts at issue. After a hearing, the trial court granted the motion to amend. Petitioners now seek review. Certiorari Analysis “Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section
768.72, [Florida Statutes (2016),] but not to review the sufficiency of the evidence.” Tilton v. Wrobel,
198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King,
658 So.2d 518, 520 (Fla. 1995)). Section
768.72(1), Florida Statutes (2016), provides in relevant part: “In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
...Subsection (2) sets forth the burden of proof at trial and provides: “A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” § 768.72(2), Fla....
...e defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. § 768.72(2)(a), Fla....
...to amend the complaint to add a claim for punitive damages. There, we addressed what standard of review should be applied to a trial court’s pretrial decision to deny the amendment. Holmes ,
891 So.2d at 1191 . We specifically noted that, because section
768.72 creates a substantive right, the abuse of discretion standard, which requires all doubts to be resolved in favor of allowing amendments, is not appropriate. Id. Instead, we concluded that the appropriate standard of review is de novo. Id. In reaching that conclusion, we made a comparison in which we determined that the “reasonable showing” under section
768.72 is “similar to determining whether a complaint states a cause of action or the record supports a summary judgment, both of which are reviewed de novo.” Id....
...Unfortunately, the trial court focused on the language “whether the complaint states a cause of action,” disregarding the other part of the analogy, whether “the record supports a summary judgment.” The analogy this Court drew in Holmes was made in determining the proper standard of review. Section
768.72(1) “create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper,
658 So.2d at 519 (emphasis added). The procedural protection of this statute requires more than mere allegations. We agree with Petitioners that an evaluation of the evi-dentiary showing required by section
768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true....
...The statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery. The trial court used an inadequate standard and failed to comply with the procedural requirements of section 768.72(1)....
CopyCited 26 times | Published | Court of Appeals for the Eleventh Circuit
...§ 1332.
Office Depot moved to strike the punitive damages request from the
complaint and dismiss the lawsuit. The court granted the motion to strike the
3
punitive damages request on the ground that Cohen had failed to comply with
Florida Statutes § 768.72, which requires a plaintiff to obtain leave from the court
before including a prayer for punitive damages in a pleading....
...But that can occur only if Cohen is permitted to assert her request for
punitive damages. The district court struck Cohen’s prayer for punitive damages,
because she failed to comply with the conditions for seeking punitive damages set
forth in Florida Statutes § 768.72. Section 768.72 provides as follows:
In any civil action, no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for
recovery of such damages....
...6
issue of punitive damages. No discovery of financial worth shall
proceed until after the pleading concerning punitive damages is
permitted.
Cohen argues that she satisfied the requirements of § 768.72 because she
proffered evidence of malice and wanton and reckless conduct sufficient to
establish a reasonable basis for her punitive damages claim. However, the Florida
Supreme Court has interpreted § 768.72 as requiring the dismissal of any request
for punitive damages asserted without leave of the court....
...king for and receiving leave
of the court must be dismissed or stricken.”). See also WFTV, Inc. v. Hinn,
705 So.
2d 1010, 1011 (Fla. 5th Dist. Ct. App. 1998); Mayer v. Frank,
659 So. 2d 1254,
1255 (Fla. 4th Dist. Ct. App. 1995).
Thus, if §
768.72 applies in this case, the district court correctly struck the
request for punitive damages from Cohen’s complaint, which means that request
could not provide a basis for federal diversity jurisdiction. If, on the other hand, §
768.72 does not apply, then the request for punitive damages should not have been
struck, and would provide a sufficient basis to satisfy the amount-in-controversy
7
requirement for diversity jurisdiction. Accordingly, we must determine whether
the pleading requirements of §
768.72 apply here, which entails resolving whether
they conflict with any Federal Rule of Civil Procedure.2
Federal courts sitting in diversity are required to apply state substantive law
and federal procedural law....
...outcome-determinative, the Court retreated from the York test 13 years later in
Byrd v. Blue Ridge Rural Electric Coop.,
356 U.S. 525,
78 S. Ct. 893 (1958). That
decision held that in order to decide which rule should apply, courts must balance
2
We recognize that §
768.72 contains a discovery component as well as a pleading
component, however, its discovery provision is not at issue in this case.
8
the federal interest in uniform process against the state interest in uniformity of
results....
...ress erred in their
prima facie judgment that the Rule in question transgresses neither the terms of the
[Rules] Enabling Act nor constitutional restrictions.” Hanna,
380 U.S. at 471,
85
S. Ct. at 1144.
In addressing the applicability of §
768.72, at least one district court asked if
it is substantive or procedural, and in answering that question looked to state law
decisions characterizing the provision as substantive for some other purpose (such
as the division of authority between the state legislature and judiciary)....
...ral rule that is
either unconstitutional or should not have been adopted under the Rules Enabling
Act process because it is a matter of substantive law. That exception will be
exceedingly rare, and it does not apply here because, as we shall see, § 768.72
conflicts with Federal Rule of Civil Procedure 8(a)(3), which is a procedural rule
and is not unconstitutional....
...But those
10
determinations are not reached where the first prong of Hanna applies, i.e., where
the state provision conflicts with a federal rule of procedure.
Applying the Hanna test, federal district courts in Florida have reached
different conclusions about whether § 768.72 applies in diversity cases. Most of
the courts to address the matter agree that § 768.72 implicates Federal Rules of
Civil Procedure 8(a) and 9(g), but they have split almost evenly on whether the
statute actually conflicts with either or both of those rules....
...Plantation Square Assocs., Ltd.,
761 F. Supp. 1569,
1573-80 (S.D. Fla. 1991) (conflicts with Rule 8(a)); Citron v. Armstrong World
Indus., Inc.,
721 F. Supp. 1259, 1261-62 (S.D. Fla. 1989) (conflicts with Rule
9(g)).
Cohen argues that §
768.72 conflicts with Federal Rule of Civil Procedure
8(a)(2) and (a)(3)....
...nal pleading
formalities, requiring only that the pleading “give the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson,
355 U.S. 41, 47,
78 S. Ct. 99, 103 (1957). Cohen argues that §
768.72 essentially
requires heightened pleading for punitive damages claims, contrary to the short and
plain statement rule of 8(a)(2). It is clear, however, that a request for punitive
damages is not a “claim” within the meaning of 8(a)(2); it is only part of the relief
prayed for in a claim. Thus, there is no conflict between §
768.72 and Rule 8(a)(2).
As one district court has pointed out, “the more relevant portion of Rule 8
appears to be subsection (a)(3).” Teel, 953 F....
...Miller, Federal Practice and Procedure
§ 1255, at 366 (2d ed. 1990)). Punitive damages are a remedy, so under the rule a
request for them should be included in the complaint. As we noted above,
12
however, § 768.72 prohibits the inclusion of a request for punitive damages in any
pleading without leave of court. Thus, it appears that § 768.72 does conflict with
Rule 8(a)(3).
Office Depot contends that there is no real conflict between § 768.72 and
Rule 8(a)(3) because Federal Rule of Civil Procedure 54(c) essentially renders
Rule 8(a)(3) a nullity....
...ly reinforces Rule 8(a)(3)’s direction
that the relief sought be included in the complaint.
Even if Rule 8(a)(3) does not require a plaintiff to include in a complaint a
request for all the relief sought, there is still a conflict between § 768.72 and Rule
8(a)(3), because the rule clearly allows the plaintiff to include a request for
punitive damages in her initial complaint, whereas § 768.72 prevents her from
doing so....
...Lockheed Missiles & Space Co.,
171 F.3d 1208, 1217 (9th
Cir. 1999); S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist.,
60 F.3d
305, 307 (7th Cir. 1995); Exxon Corp. v. Burglin,
42 F.3d 948, 950 n.3 (5th Cir.
1995); Neifeld v. Steinberg,
438 F.2d 423, 426 (3d Cir. 1971). Rule 8(a)(3)
“occupies [§
768.72's] field of operation,” because Rule 8(a)(3) governs the ability
of plaintiffs to request any and all of the relief sought (including punitive damages)
in all pleadings that state a claim (including initial complaints). If applied in
federal court, §
768.72 would impair the operation and effect of Rule 8(a)(3).
14
The nature of the conflict between §
768.72 and Rule 8(a)(3) is similar to the
conflict in Hanna itself....
...to include a prayer for punitive damages,
15
nor is she required to proffer evidence or obtain leave of court before doing so. In
short, Rule 8(a)(3) occupies the field in which the pleading portion of § 768.72
would otherwise operate, leaving no room for it. The two provisions do conflict.
Having concluded that Florida Statutes § 768.72 conflicts with Rule 8(a)(3),
we must apply Rule 8(a)(3) unless it transgresses the Rules Enabling Act or the
Constitution....
...242, 246 (1946).
Finally, none of the parties in this case or any other cases have challenged
Rule 8(a)(3) as unconstitutional, and we see no basis for such a challenge.
III. CONCLUSION
Our application of Hanna leads us to conclude that the pleading component
of § 768.72 does not apply in this case due to its conflict with Rule 8(a)(3). For
that reason, we hold that the pleading requirements of Florida Statutes § 768.72 are
inapplicable in federal diversity cases....
CopyCited 26 times | Published | Supreme Court of Florida | 1996 WL 154142
...Defendants moved to dismiss the punitive damages claim, asserting that the plaintiffs did not allege a sufficient basis to award punitive damages. Defendants also moved to strike the punitive damages claims, asserting that plaintiffs did not strictly comply with section 768.72, Florida Statutes (1993), because they failed to proffer any evidence or establish any record entitling plaintiffs to relief. At a hearing on the motions, the plaintiffs argued that by virtue of signing this complaint under oath, they had testified under oath about these acts and had complied with section 768.72. Thereafter, the trial court denied both motions. Next, defendants sought a writ of certiorari in the Fifth District Court of Appeal. In denying the writ, the district court focused on the language in section 768.72 which states that "[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence......
...to dismiss and motion to strike, it met its obligation to review the record before allowing the punitive damages claims. Id. at 158. Judge Peterson dissented, stating that he would have granted the petition for certiorari. Judge Peterson noted that section 768.72 required a plaintiff to obtain leave from the court to incorporate a claim for punitive damages before the claim could be asserted....
...e granted certiorari, quashed the order denying the motion to dismiss and alternative motion to strike, and remanded the action to the trial court for further proceedings without prejudice to allow the plaintiffs to follow the procedures required by section
768.72. Id. (Peterson, J., dissenting). We accepted jurisdiction because this case expressly and directly conflicts with this Court's recent decision in Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). In Globe Newspaper, we analyzed section
768.72, which provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for the recovery of such damages....
...t requires the plaintiff to show this evidentiary basis before the court may allow such a claim. Consequently, we concluded that certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section 768.72....
...Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991) (financial worth discovery), and Sports Products, Inc., v. Estate of Inalien,
658 So.2d 1010 (Fla. 4th DCA 1994), review dismissed,
659 So.2d 1088 (Fla.1995), the district court ruled that the procedure mandated by section
768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section
768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section
768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section
768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section
768.72 have not been followed....
CopyCited 24 times | Published | Florida 2nd District Court of Appeal
...-8-
see also Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995) ("[A]ppellate
courts do have certiorari jurisdiction to review whether a trial judge has conformed with
the procedural requirements of section
768.72[, Florida Statutes (1993)] ....
...on with a public issue, or right to peacefully
assemble, to instruct representatives of government, or to petition for redress of
grievances before the various governmental entities of this state." Cf. Globe
Newspaper,
658 So. 2d at 519 ("We read section
768.72 to create a substantive legal
right not to be subject to a punitive damages claim ....
...of the Medical Malpractice Reform Act—to
avoid meritless claims and to encourage settlement for meritorious claims." (footnote
omitted)); Globe Newspaper,
658 So. 2d at 520 ("[A] plenary appeal cannot restore a
defendant's statutory right under section
768.72 to be free of punitive damages
allegations in a complaint until there is a reasonable showing by evidence in the record
or proffered by the claimant."); Fla. Hosp. Med. Servs., LLC v. Newsholme,
255 So. 3d
348, 350 (Fla. 4th DCA 2018) ("Certiorari jurisdiction lies to review whether a trial court
has complied with the procedural requirements of section
768.72(1)." (citing Tilton v.
Wrobel, 198 So....
CopyCited 21 times | Published | Florida 4th District Court of Appeal | 1991 WL 134418
...sufficiency of the pleadings to support such a claim. Not considered by the Martin-Johnson court, however, because it had not been adopted when the lower courts considered the issue and did not apply to the parties or their claims in that case, was section 768.72, Florida Statutes (1989), which provides as follows: 768.72 Pleading in civil actions; claim for punitive damages....
...of the November hearing showing that only the replevin count had been considered. Petitioner expanded on his protective order argument by contending that respondents could not have financial worth discovery until they had first made a showing under section 768.72 of evidence in the record or by proffer that some reasonable basis exists for the recovery of punitive damages....
...which initially denied the protective order. On the other hand, the motion to strike the punitive damages claim was first presented March 19th and determined only on April 4th. Moreover, the motion for protective order did not specifically refer to section 768.72, merely to the fact that the discovery requests were irrelevant because they were family law forms. In contrast, the section 768.72 issue was first squarely presented only by the March 19th motion. Moreover, even if the ruling at the March 14th hearing on the motion for protective order could properly be understood as a section 768.72 determination, we should be quite reluctant to treat it as the final order on the subject because respondents had misled the trial judge with their argument that the November hearing on the replevin count had also considered and determined the sufficiency of the claim for punitive damages. We do not suggest that the misleading was intentional, but the effect is undeniable. Hence we find that the statutory issue has been timely brought to us. Turning to the critical issue, we read section 768.72 as creating a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury....
...That finding necessarily includes a legal determination that the kind of claim *1336 in suit is one which allows for punitive damages under our law. Thus, to that extent, the legal sufficiency of the punitive damage pleading is also in issue in the section
768.72 setting. Because the supreme court itself has held that section
768.72 creates substantive legal rights and that its procedures are intimately tied to those substantive rights, see Smith v. Department of Insurance,
507 So.2d 1080, 1092 n. 10 (Fla. 1987), we find it difficult to understand how Martin-Johnson can any longer control this issue. We are not alone in enforcing section
768.72's substantive rights by requiring a factual inquiry into whether the necessary statutory predicate for punitive damages exists before a party can be forced to disclose personal financial worth discovery....
...If the party had to obey an order compelling a response to the discovery requests and could raise the subject only on an appeal after final judgment, the right would be meaningless. The very circumstance which the legislature sought to eradicate in section 768.72 would be allowed to occur....
...STONE, Judge, dissenting. I would deny certiorari on the authority of Martin-Johnson v. Savage. See also, Hartford Accident & Indem. Co. v. U.S.C.P. Co.,
515 So.2d 998 (Fla. 4th DCA 1987) (en banc). There is no reason to conclude that the supreme court was not aware of section
768.72, Florida Statutes, when deciding Martin-Johnson....
CopyCited 21 times | Published | Florida 2nd District Court of Appeal | 2001 WL 395425
...ve damages in count V. We can find no order in the record addressing this motion. Trans World and Metz asserted in their motion to dismiss the amended complaint that count V should be dismissed because Gandy failed to comply with the requirements of section 768.72, Florida Statutes (1999)....
CopyCited 19 times | Published | Florida 4th District Court of Appeal | 1994 WL 112249
...how sufficient evidence to allow a claim for punitive damages to be pleaded. Today we consider a petition for certiorari or mandamus posing a separate but related question arising under the identical statute we construed in Henn: viz., whether under section 768.72, Florida Statutes (1993), a pleader can include a claim for punitive damages in an initial pleading without prior leave of court. We conclude that punitive damages claims can be asserted, if at all, only with prior leave of court. We therefore grant certiorari to quash the order of the trial court refusing to strike such an unauthorized claim. Section 768.72, Florida Statutes (1993), provides as follows: 768.72 Pleading in civil actions; claim for punitive damages....
...thorization for pleading a punitive damages claim. Kraft answered the complaint after first seeking to dismiss the action on jurisdictional grounds. Later Kraft moved to strike the punitive damages claims, arguing that claimant had not complied with section 768.72....
...urther hearing within 90 days for the purpose of making the statutory showing, but meanwhile barring financial worth discovery. Kraft's petition for certiorari or mandamus timely reached us. [3] Kraft argues that there is but one possible reading of section 768.72: "That reading is plain from all of its provisions, read separately or together: the statute is designed to keep punitive damage claims out of pleadings until an evidentiary showing is made." It argues that the legislature desired to r...
...e claims, as here, for in terrorem effect. Such claims, it contends, give the claimant undue settlement leverage and force insurance companies to devote resources to claims in spite of their intrinsic lack of merit. Hence, the legislature created in section 768.72 a positive legal right not to be exposed to punitive damages until a court first determines that there is evidence enough for such a claim to be pleaded....
...First, he contends that Kraft has simply misread the statute. It really does not mean that a pleader may not include such a claim in its initial pleading without prior leave of court; rather, he argues, the court may as here allow it to stand while the claimant searches for evidence to support it. Moreover, section
768.72 is in conflict with section
817.41(6), which expressly authorizes punitive damages for misleading advertising violations; and thus he contends that the requirements of section
768.72 were intended to give way to section
817.41(6)....
...To determine whether Kraft has made the kind of extraordinary showing demanded, we begin by analyzing the statutes. It is true that section
817.41 plainly authorizes awards of punitive damages for violations of its terms. It is equally true, however, that the subject of pleading punitive damages is covered only in section
768.72. In other words, while section
817.41 creates an entitlement to punitive damages, it says nothing about how that entitlement shall be pleaded. As to the subject of pleading the entitlement, section
817.41 thus impliedly defers to section
768.72, which allows the pleading only after a judge has determined that the claimant can offer sufficient evidence to allow the claim for punitive damages to be pleaded....
...mall sums of money. From this premise, he argues that the restrictions of Chapter 768, Part II, "will make redress for `private violations' * * * ineffective and prohibitive." Consequently, he urges, the legislature could not possibly have meant for section
768.72 to be a restriction on pleading punitive damages remedies for section
817.41 violations. [4] We are unable to square claimant's conclusions with the language employed in the statutory text. Apart from the legislative directive that, where conflicting, other statutes take precedence over section
768.72, claimant can point to nothing in either of the statutes to support his conclusions....
...7.41. On the other hand, Kraft calls our attention to section
760.11(5), Florida Statutes (1993), in which while authorizing punitive damages in employment discrimination cases the legislature has also expressly stated that "The provisions of ss.
768.72 and
768.73 do not apply to this section." We agree with Kraft that, as section
760.11(5) betrays, when the legislature intends to waive the "no-punitive-damage-claim-with-out-leave-of-court" requirement, it obviously knows how to say so in unmistakable language....
...text of section
817.41, must be taken as an intent that the pleading limitation requirement be enforced as to any other statute granting a right for punitive damages unless the granting statute says otherwise. We next confront the precise meaning of section
768.72....
CopyCited 18 times | Published | District Court, M.D. Florida | 1992 U.S. Dist. LEXIS 410, 1992 WL 6518
...lo moves to dismiss the request for an award of punitive damages against him individually on the state law claims of false arrest, malicious prosecution, and defamation, because there is no record evidence supporting the demand for punitive damages. Section 768.72 of the Florida Statutes requires that the complaint be supported by such record evidence before Plaintiff may demand punitive damages....
...Defendant urges that it is substantive, and should apply in this case. Substantive law is enacted by the State Legislature; whereas, procedural rules are enacted by the Supreme Court of Florida. See Art. V, § 2(a), Fla.Const. Since the State Legislature passed Section 768.72, and the State courts have applied it, it is evident that both the Legislative and Judicial branches of the Florida's government consider this to be substantive law....
...Plantation Square Assoc., Ltd.,
761 F.Supp. 1569 (S.D.Fla.1991); Jones v. Wal-Mart Stores, Inc.,
1991 WL 236503,
1991 U.S. Dist. LEXIS 16003 (S.D.Fla.1991); Citron v. Armstrong World Indust.,
721 F.Supp. 1259 (S.D.Fla. 1989). In Lewis, this Court held that Florida Statutes section
768.72 was substantive, and thus applied in federal court claims under the Erie Doctrine....
...is for recovery of such damages." Further, in Lancer Arabians, the Middle District noted that while the State's characterization of its law as substantive is not binding, it is persuasive. The Middle District then went on to analyze Florida Statutes section 768.72 under the twin aims of the Erie Doctrine, and found the section to be substantive law....
...lice or racial bias are not sufficient under Florida law to support the claim for punitive damages. Unless and until record evidence supports that there is a basis for recovery of punitive damages, the demand is premature. Therefore, consistent with Section 768.72 of the Florida Statutes, all demands for punitive damages will be dismissed without prejudice to refile those demands once they are supported by record evidence....
...CONCLUSION This Court finds that Plaintiff has sufficiently stated a claim on all counts except one: the claimed First Amendment violations sought to be remedied under 42 U.S.C. § 1983. This portion of the complaint is dismissed with leave to amend. Further, consistent with Florida Statutes section 768.72, Plaintiff's demand for punitive damages on the pendent state claims is dismissed without prejudice....
CopyCited 17 times | Published | District Court, S.D. Florida | 1989 WL 134940
...Kane, Federal Practice and Procedure § 1357 (1969 and Supp.1989) (on motion to dismiss only complaint and attachments considered). Also as to Count III, Frio Ice has not provided evidence showing a reasonable basis for recovering punitive damages against Rodriguez, as required by Fla.Stat. § 768.72 (1986 Supp.1989)....
CopyCited 17 times | Published | Florida 5th District Court of Appeal
...injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken,
62 So.
3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file
a pleading asserting a claim for punitive damages in a civil action are enumerated in
section
768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190.
Section
768.72(1) provides that defendants in civil actions shall be free from claims
of punitive damages and related financial discovery unless the claimant makes “a
reasonable showing by evidence in the record or proffered by the claimant which would
provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
...The only basis for awarding punitive damages against individual defendants, such
as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross negligence.”
§ 768.72(2), Fla....
...negligence to justify recovery of punitive damages. “Gross negligence means that the
defendant’s conduct was so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
Id. at § 768.72(2)(b) (internal quotation marks omitted).
4
As previously stated, a party wishing to pursue punitive damages must first file a
motion seeking leave of court to file an amended complaint and then make “a reasonable
showing by evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla....
...Evidentiary component of motion to add punitive damages
Because Respondent, on remand, may choose to file another motion to amend,
we believe it would be helpful to the parties and to the trial court to complete our analysis
of the additional requirements of section 768.72 and rule 1.190(f).
If the proposed amended complaint contains sufficient allegations of gross
negligence, the trial court must next consider whether plaintiff has established a
reasonable factual basis for its punitive damage claims....
...During the hearing in this case, Respondent sometimes relied on record
evidence, such as deposition testimony and, at other times, Respondent relied on witness
testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers,
arguing that the proffers did not comply with the requirements of section 768.72 or rule
1.190(f)....
...Evidentiary component of motion to add punitive damages
Because Respondent, on remand, may choose to file another motion to amend,
we believe it would be helpful to the parties and to the trial court to complete our analysis
of the additional requirements of section 768.72 and rule 1.190(f).
If the proposed amended complaint contains sufficient allegations of gross
negligence, the trial court must next consider whether plaintiff has established a
reasonable factual basis for its punitive damage claims....
...During the hearing in this case, Respondent sometimes relied on record
evidence, such as deposition testimony and, at other times, Respondent relied on witness
testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers,
arguing that the proffers did not comply with the requirements of section 768.72 or rule
1.190(f)....
...at 324.
The Second District Court of Appeal suggested that “to require written proffers to be filed
a reasonable time prior to future hearings would appear to be a reasonable method to
assure that such hearings do satisfy the spirit of the statute [section 768.72] and the
requirements of due process.” Id....
...e the bases upon
which it granted Respondent’s motion to assert punitive damages. Because punitive
damages may only be pursued after the trial court finds the plaintiff has met or exceeded
9
the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is
required to make an affirmative finding that plaintiff has made a “reasonable showing by
evidence,” which would provide a “reasonable evidentiary basis for recovering such
damages” if the motion to amend is granted....
...D FOR FURTHER
PROCEEDINGS.
SAWAYA and LAMBERT, JJ., concur.
2In Estate of Despain v. Avante Group, Inc.,
900 So. 2d 637, 642-44 (Fla. 5th DCA
2005), we held that appellate courts would review, de novo, a trial court’s finding that a
section
768.72(1) reasonable basis exists for asserting punitive damages....
CopyCited 16 times | Published | District Court, S.D. Florida | 1989 U.S. Dist. LEXIS 12139, 1989 WL 120664
...Johnson, Miami, Fla., for W.R. Grace. Norwood S. Wilner, Jacksonville, Fla., for Armstrong, GAF, Keene, National Gypsum, U.S. Gypsum, Amchem and A.P. Green. MEMORANDUM OPINION NESBITT, District Judge. The court is presented with the issue of whether section 768.72 of the Florida Statutes, which prohibits a claim for punitive damages unless a reasonable basis exists for their recovery, is applicable in federal diversity cases. The court concludes that it is not. On July 1, 1986, the Florida legislature added to its civil code a new section entitled "Pleading in civil actions; claim for punitive damages." Section 768.72 [1] provides that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...either the Constitution's grant of power over federal procedure or Congress' attempt to exercise that power in the Enabling Act.") (footnote omitted). Defendants advance the familiar argument, however, that the Florida Supreme Court has interpreted section
768.72 as being a substantive law for purposes of Erie. The court disagrees with Defendants' assertion. In Smith v. Dept. of Insurance,
507 So.2d 1080 (Fla.1987), the constitutionality of section
768.72 was challenged....
...nt on the judiciary by the legislative branch. Although the Florida Supreme Court used the terms "substantive" and "procedural," it was deciding a matter of Florida constitutional law. The Florida Supreme Court would have no reason to decide whether section
768.72 was considered substantive or procedural in federal diversity actions, and indeed it was not doing so. The Supreme Court of Florida merely concluded that the legislature's "substantive" power to enact section
768.72 did not violate the Florida Constitution's separation of powers clause. Smith,
507 So.2d at 1092. Accordingly, Smith simply does not stand for the proposition that section
768.72 is a substantive law to be applied in federal diversity cases....
...Therefore, "[t]he only difference resulting from the state law's application is the time in the life of the lawsuit when the court determines whether the claim for punitive damages is appropriate," a difference not material to the result of the litigation. Id. at 529. To summarize, the court finds that section 768.72 is procedural because: (1) section 768.72 conflicts with Federal Rule of Civil Procedure 9(g); (2) section 768.72 is clearly a pleading statute and, indeed, is labelled as such, and pleading requirements under the Florida Rules of Civil Procedure are more stringent than those under the Federal Rules of Civil Procedure [5] ; and (3) even assuming that the Florida and Federal rules do not conflict, no inequitable administration of law will result by not applying section 768.72 in federal diversity actions, as the only practical difference between the Florida statute and the Federal Rules of Civil Procedure relates to the posture in the lawsuit in which a court decides whether a claim for punitive damages is appropriate. [6] For these reasons, the court finds that section 768.72 of the Florida Statutes is procedural and therefore inapplicable in federal diversity actions....
...See Erie,
304 U.S. at 78,
58 S.Ct. at 822. [3] Therefore, the court disagrees with the conclusion reached in the following cases: Dah Chong Hong, Ltd. v. Silk Greenhouse, Inc.,
719 F.Supp. 1072 (M.D.Fla.1988) (available on LEXIS and WESTLAW) (holding that section
768.72 is substantive and applicable in federal diversity actions); Bankest Imports, Inc....
...1537 (S.D.Fla.1989) (same); Lewis v. Snap-On Tools Corp.,
708 F.Supp. 1260, 1262 (M.D.Fla.1989) (same). [4] Unlike the provision interpreted in Lundgren, where no comparable Federal Rule of Civil Procedure existed which governed notification in governmental tort actions, section
768.72 has a counterpart Federal Rule of Civil Procedure....
CopyCited 16 times | Published | District Court, M.D. Florida | 1997 A.M.C. 1419, 1996 U.S. Dist. LEXIS 16941, 1996 WL 663715
...15(a)'s mandate to freely permit a party to amend is to be "heeded." Foman,
371 U.S. at 182,
83 S.Ct. at 230,
9 L.Ed.2d at 222. In the instant case, International Ship has moved to amend its complaint to state claims for punitive damages pursuant to Section
768.72, Fla.Stat. (1995) and Rule 15(a), Fed. R.Civ.P. Section
768.72 provides, in part, that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may *896 move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. See Fletcher v. State of Fla.,
858 F.Supp. 169, 173 (M.D.1994) (applying Section
768.72); Lewis v. Snap-On Tools Corp.,
708 F.Supp. 1260, 1262 (M.D.Fla.1989) (applying Section
768.72). Neither International Ship nor St. Paul dispute that Section
768.72 is substantive and must be applied by federal courts. Moreover, this Court has on a number of occasions found Section
768.72 to be "substantive" and, thus, has applied Section
768.72 in federal court claims under the Erie Doctrine. See Mahon,
829 F.Supp. at 385; Marcus,
782 F.Supp. at 600 ("Since the State legislature passed Section
768.72, and the State courts have applied it, it is evident that both the legislature and judicial branches of Florida's government consider this to be substantive law"); Lancer Arabians, Inc. v. Beech Aircraft Corp.,
723 F.Supp. 1444, 1446 (M.D.Fla. 1989) ("Section
768.72 ......
...ive damages. Any procedural provisions of these sections are intimately related to the definition of those substantive rights"). But see State of Wis. Inv. Bd. v. Plantation Square Assoc., Ltd.,
761 F.Supp. 1569, 1573-76 (S.D.Fla.1991) (finding that Section
768.72 clashed with Rule 8, Fed.R.Civ.P.), and Hanna v....
...460, 470,
85 S.Ct. 1136, 1143,
14 L.Ed.2d 8, 16 (1965) (stating that the preliminary inquiry for a district court is whether the state provision directly conflicts with a Federal Rule of Civil Procedure), and thus declined to apply the pleading aspects of Section
768.72 because the failure to do so would lead to neither an inequitable administration of the laws nor to forum-shopping); Jones v. Wal-Mart Stores, Inc.,
1991 WL 236503, at *2 (S.D.Fla. Apr. 25, 1991) (holding that "inasmuch as Section
768.72 is a pleading statute, it is inapplicable to Florida state law claims being litigated in federal court"); Citron v. Armstrong World Indust., Inc.,
721 F.Supp. 1259, 1261 (S.D.Fla.1989) (holding Section
768.72 to be procedural, not substantive)....
...Paul's argument is based purely on a "factual debate" between the parties and their experts and witnesses. Nothing provided by St. Paul, on a legal position, prevents this Court from allowing International Ship leave to amend its complaint. Under Florida law, the plain meaning of Section 768.72 requires only that the plaintiff provide the court with a "reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint." Globe Newspaper Co....
...The Court finds that International Ship has met this burden. Despite St. Paul's factual debate presented in its memorandum of law in opposition, International Ship has proffered record evidence which establishes a "reasonable showing" for a "reasonable basis" for recovery of punitive damages as required by Section 768.72....
CopyCited 16 times | Published | Court of Appeals for the Eleventh Circuit
...lem. 3 The Trustees also sought a declaratory judgment requiring the Defendants to indemnify the Trustees for any adverse tax consequences resulting from the drafting error. In addition, the Trustees sought punitive damages pursuant to Florida Stat. 768.72....
...he Defendants in support of the Trustees' punitive damages claim. First, Defendants argue that the magistrate failed to make an affirmative finding that a reasonable basis existed for the Trustees' punitive damages claim as required by Florida Stat. 768.72....
...use they did not allege any facts outside of the complaint and, alternatively, did not allege sufficient facts to support a punitive damages claim. We disagree. 24 This court has held that the pleading rules set forth in Fed.R.Civ.P. 8(a)(3) preempt
768.72's requirement that a plaintiff must obtain leave from the court before including a prayer for punitive damages. See Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1299 (11th Cir.1999), vacated in part,
204 F.3d 1069 (11th Cir.2000). However,
768.72 also has a discovery component which states that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Fla. Stat.
768.72. Prior to allowing discovery of financial net worth information, Defendants argue that
768.72 requires a plaintiff who has made a claim for punitive damages to produce evidence or make a proffer of evidence that shows a reasonable basis for the punitive damages claim....
...tion to dismiss or a motion to strike, not a summary judgment motion. See Will v. Systems Eng'g Consultants, Inc.,
554 So.2d 591, 592 (Fla.App. 3 Dist.1989); see also Solis v. Calvo,
689 So.2d 366 (Fla.App. 3 Dist.1997) ("Pursuant to Florida Statute section
768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....
CopyCited 15 times | Published | District Court, M.D. Florida | 1989 U.S. Dist. LEXIS 10752, 1989 WL 102282
...(b). The Court finds the memorandum of Plaintiff in opposition persuasive on this issue and finds the complaint sufficient. PUNITIVE DAMAGES Defendants seek to have the claims for punitive damages stricken from Counts IV, V, VI, and VII pursuant to Section
768.72, Florida Statutes. Section
768.72 prohibits a claim for punitive damages "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." This section is substantive and in a diversity case must be applied. Smith v. Department of Insurance,
507 So.2d 1080, 1092 (Fla.1987). The Court agrees with Defendants that the requirements of Section
768.72 have not been met....
CopyCited 15 times | Published | District Court, S.D. Florida | 1996 U.S. Dist. LEXIS 11239, 1996 WL 444930
...infliction of emotional distress under Florida law. Defendants further seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV as the allegations in the Complaint do not comply with the pleading requirements of Fla.St. § 768.72....
...to the level of sufficiently outrageous conduct to support a cause of action for intentional infliction of emotional distress and recommended that Count IV be dismissed as to both defendants. Finally, the Magistrate Judge found that Florida Statute § 768.72 is procedural and therefore is inapplicable to Plaintiff's claims for punitive damages such that the claims should not be stricken or dismissed....
...l distress under Florida law. Lastly, Defendants seek to strike and/or dismiss Blount's claim for punitive damages in Counts III and IV, as the allegations in Blount's Amended Complaint do not comply with the pleading requirements of Florida Statute § 768.72....
...for Dresnick's alleged assault and battery is a question of fact best decided by a jury. In accepting Blount's allegations as true, she has sufficiently stated a cause of action against Sterling for respondeat superior liability. VI. FLORIDA STATUTE § 768.72 IS INAPPLICABLE Defendants claim that under Florida's statute regarding the pleading of punitive damages in civil actions, Blount has not provided sufficient facts in the record to establish entitlement to such damages. Fla.Stat. § 768.72 (1995) states in part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......
...so would lead to forum shopping or inequitable administration of the laws. Hanna,
380 U.S. at 468,
85 S.Ct. at 1142. [6] In State of Wisconsin Investment Board v. Plantation Square Associates, Ltd., this Court held under this analysis that Fla.Stat. §
768.72 irreconcilably conflicted with Fed....
...necessitates 1) the presentation of evidence ... that there exists a reasonable basis for a punitive damage claim and 2) court review and determination that Plaintiff's evidentiary proffer meets the statute's "reasonable basis" standard.... To apply § 768.72 in federal courts would, in essence, convert the pleading of punitive damages from the requirement of mere notice to a quasi-adjudication of plaintiff's claim, requiring evidentiary inquiry and discovery, argumentation of counsel, and a judicial ruling....
...The majority of judges in the Southern District of Florida agree with this view, and have held that when the Florida provision conflicts with a Federal Rule of Civil Procedure, the Federal Rule is applicable. See Burger King Corp. v. Austin,
805 F.Supp. 1007, 1025 n. 30 (S.D.Fla.1992) (§
768.72 is inapplicable in federal diversity actions); Kingston Square Tenants Association v. Tuskegee Gardens, Ltd.,
792 F.Supp. 1566, 1579 (S.D.Fla.1992) ("[T]he majority of judges in the Southern District of Florida (agree) that §
768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court"); AmeriFirst Bank v....
...9(g), and that therefore, the federal rule must be applied in lieu of the state rule); In re Sahlen Assoc., Inc. Secur. Litigation,
773 F.Supp. 342, 375 (S.D.Fla.1991) (pleading in federal court is governed by FRCP 8(a)); Jones v. Wal-Mart Stores, Inc., No. 90-14113-Civ,
1991 WL 236503 (S.D.Fla. April 25, 1991) (§
768.72 is procedural); Benjamin Geisinger v. Armstrong World Indus., No. 90-0872-Civ,
1990 WL 120749 (S.D.Fla. Aug. 10, 1990) (§
768.72 is a non-substantive pleading statute); Citron v....
...1989) (finding the Florida statute to be procedural as it conflicted with Fed.R.Civ.Proc. 9(g) and so applying the federal rule). Dresnick and Sterling argue that several cases from the Middle District and one case from the Southern District have held §
768.72 to be substantive. See, e.g., Al-Site,
842 F.Supp. at 509-10; [7] Marcus v. *1375 Carrasquillo,
782 F.Supp. 593, 600 (M.D.Fla. 1992). However, in light of the persuasive analysis in Plantation, and the strong inclination in this District to hold §
768.72 procedural, the undersigned finds that in the instant case §
768.72 is inapplicable to Blount's claim for punitive damages in Count III....
...[5] This is assuming that the Federal Rule meets the second part of the Hanna analysis: It must not be beyond the scope of the Rules Enabling Act or otherwise unconstitutional.
380 U.S. at 470-71,
85 S.Ct. at 1143-44. [6] The Florida Supreme Court has held that §
768.72 creates a substantive right "not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages"....
...er(s) of federal law, a role which cannot be usurped by the state courts." Al-Site Corp. v. VSI Intern, Inc.,
842 F.Supp. 507, 510 (S.D.Fla. 1993). [7] Defendants pointed out at the hearing held before the undersigned that the court in Al-Site found §
768.72 to be substantive partly because of 1993 Amendments to the General Provisions Governing Discovery, Fed.R.Civ.P. 26. Al-Site,
842 F.Supp. at 512-13. The court there found no direct conflict between §
768.72 and 8(a), and continuing its analysis under Erie, decided that the recent Amendments made forum-shopping more likely and so violated the Erie test, and therefore determined the Florida provision was substantive. Id. However, even if forum-shopping may be more likely post-1993 so as to subvert the aims of Erie, this court agrees with the majority of the Southern District cases that there is a direct conflict under Hanna and holds §
768.72 procedural for this reason, without reaching the Erie analysis....
CopyCited 15 times | Published | District Court, M.D. Florida | 1989 U.S. Dist. LEXIS 2735, 1989 WL 25167
...Plaintiff having made five attempts to state a cause of action of invasion of privacy, and, having failed on each occasion, the Court finds Count VI should be dismissed with prejudice. PUNITIVE DAMAGES CLAIMS Plaintiffs seek punitive damages in connection with Counts I, IV, V, VII, IX, XI, XII, XIII, and XIV. Pursuant to Section 768.72, Florida Statutes, in a civil action, ......
...evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The state trial judge found that the claims of Plaintiffs were subject to the requirements of 768.72, because all of the dates in the complaint were subsequent to the July 1, 1986, effective date of the Act. As to Counts I, IV, V, VII, and IX the complaint, where the question is addressed, asserts that all actions occurred prior to July 1, 1987. The complaint is unclear as to which if any of the actions arose prior to the effective date of 768.72, July 1, 1986....
...ornia case, Lowder v. Snap-on Tools Corp. The Court, upon due consideration, concludes that the proffer of evidence by Plaintiffs do not constitute a "reasonable showing" providing a "reasonable basis" for recovery of punitive damages as required by Section 768.72, Fla.Stat....
CopyCited 15 times | Published | District Court, S.D. Florida | 1993 U.S. Dist. LEXIS 18952
...Al-Site contends that these materials are essential to prove punitive damages for its second cause of action arising under the Florida common law of unfair competition. Second Amended Complaint at 3-8 (d.e. 24). While this contention may be accurate, Fla. Stat. § 768.72 (1992) sets out certain conditions which must be met before a claimant may plead a claim for punitive damages....
...ant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Fla.Stat. § 768.72 (1992)....
...Similarly, no discovery of financial worth can be made without a comparable showing. Wisconsin Invest. Bd. v. Plantation Square Assoc., Ltd.,
761 F.Supp. 1569, 1576-81 (S.D.Fla.1991). After an extensive analysis, this Court concludes that all of Fla.Stat. §
768.72 must be applied here. This Court agrees with the court in Plantation Square, concluding that there are two elements to §
768.72: a pleading element and a discovery element. However, the two elements cannot be separated from each other as Plantation Square urges. A. Florida Court Decisions The Florida Supreme Court has interpreted Fla.Stat. §
768.72 as "substantive" in terms of whether the Florida state legislature encroached on the court's rule-making authority in approving the Tort Reform Act....
...See, e.g., Red Cross and Tipton, supra, and Baird v. Koerner,
279 F.2d 623, 627 (9th Cir.1960) ("the Erie rule excepts `matters governed by the Federal Constitution or by Acts of Congress'") (citation omitted). If the Florida Supreme Court's decision in Smith is read to interpret §
768.72 as substantive when applying the Erie doctrine, then the opinion encroaches on the boundaries established by the Rules Enabling Act, 28 U.S.C....
...§ 2072, [1] and the United States *510 Constitution Article VI, Clause 2, the Supremacy Clause. The Constitution leaves the federal courts as the final arbiter of federal law, a role which cannot be usurped by state courts. Therefore, a state court may not construe section 768.72 in light of the Erie doctrine without infringing upon a federal court's authority to interpret the limits of federal law....
...York,
326 U.S. 99,
65 S.Ct. 1464,
89 L.Ed. 2079 (1945), Byrd v. Blue Ridge Rural Electric Co-op,
356 U.S. 525,
78 S.Ct. 893,
2 L.Ed.2d 953 (1958), and Hanna v. Plumer,
380 U.S. 460,
85 S.Ct. 1136,
14 L.Ed.2d 8 (1965), to arrive at the conclusion "that §
768.72 is both a pleading rule and a discovery rule." 761 F.Supp....
...The Court agrees with Plantation Square's conclusion and defers to that reasoning. B. Plantation Square Analysis 1. Discovery Aspect This Court also agrees with Plantation Square's conclusion that federal courts must give effect to the discovery provision of Fla.Stat. §
768.72. Id. at 1580; see also, Key West Convalescent,
619 So.2d 367. In brief, the court concluded that there is no conflict between §
768.72 and Federal Rule of Civil Procedure 26....
...Hanna,
380 U.S. at 468,
85 S.Ct. at 1142. Under this analysis, if one of the aims was violated, then the court must apply the statute as substantive law. Plantation Square,
761 F.Supp. at 1579-81. The Plantation Square court applied the discovery aspects of §
768.72 as substantive law because to do otherwise would lead to forum shopping....
...istrict court discussed the discovery element of the South Dakota statute. The South Dakota district court's opinion tracks Plantation Square, concluding that the discovery aspects of the statute are substantive. Therefore, federal courts must apply § 768.72 by requiring a hearing prior to discovery. This Court agrees with that conclusion. 2. Pleading Aspect A more complicated issue arises as to whether Fla.Stat. § 768.72 creates a substantive right for pleading punitive damages. While many district courts have addressed the ramifications of Section 768.72 without arriving at a consensus, no circuit court has authoritatively discussed Florida's punitive damage amendment provisions. [6] Plantation Square presents the most detailed analysis of the reported decisions and concludes that the pleading aspects of § 768.72 should not be applied to federal courts. Applying the Hanna test, the Plantation Square court held that no conflict existed between Fed.R.Civ.P. 9(g) [7] and § 768.72, but *512 an unavoidable conflict existed between the pleading aspect of § 768.72 and Fed.R.Civ.P. 8(a)(2). [8] Concluding that § 768.72 only changes the time frame in which a plaintiff can plead punitive damages, the court ruled that Fed.R.Civ.P....
...rials related to them. a. Federal/State Conflict Looking to the first test under Hanna, we must determine whether direct conflict exists between the Federal Rules of Civil Procedure and Florida's state law. The only potential conflicts exist between §
768.72 and Fed.R.Civ.P. 8 and 9. The Court will address each in inverse order. First, Fed.R.Civ.P. 9(g) requires that "[w]hen items of special damage are claimed, they shall be specifically stated." There is no conflict between this rule and §
768.72 simply because the rule is silent with respect to the time in which items may be pled in the complaint. Plantation Square,
761 F.Supp. at 1574. Neither does §
768.72 directly conflict with Fed.R.Civ.P. 8. But see, id. at 1574-76 (concluding a direct conflict exists). Specifically, Rule 8(a)(2) requires that the pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." On its face, section
768.72 does not affect the contents of the pleading....
...The Florida law merely requires the pleader to make a showing of specific facts before the court. If the court determines that a claimant has made a reasonable showing of evidence which would provide a reasonable basis for recovery of punitive damages, then the claimant would be granted leave to amend the complaint. See Section 768.72....
...Amendments at 224-25 (emphasis added). Many litigants may interpret newly amended Rule 26 in a way to prematurely force production of financial information. In a Florida state court, punitive damages discovery would not be allowed prior to the evidentiary hearing described in section 768.72 under any circumstances. Under the new Rule 26, the opposite occurs parties must immediately produce such information "without awaiting a discovery request." Fed. R.Civ.P. 26. If the Court did not impose all of Section 768.72's provisions, Florida plaintiffs may prefer federal courts over state courts; federal pleadings would be able to contain claims for punitive damages prior to hearings and judicial acceptance while state pleadings would not....
...to "otherwise protected financial records" or use the threat of this discovery as an "unearned bargaining chip." Plantation Square,
761 F.Supp. at 1579-80. This forum shopping problem is the precise practice Hanna intended to restrain. By its terms, Section
768.72 creates a substantive right not to be subjected to discovery without a "reasonable basis for recovery of [punitive] damages." The right is likewise demonstrated by the mandate that "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Fla.Stat. §
768.72....
...Admittedly, the Court's holding that both pleading and discovery are substantive, as opposed to Plantation Square's holding that only discovery is substantive, only changes the time of the evidentiary hearing to conform with Florida's requirements. However, failing to apply section 768.72 in this manner leads to forum shopping and an inequitable application of the law. Under the confines of Erie, § 768.72 must be applied as substantive law. C. Other Jurisdictions Other federal courts have interpreted statutory provisions similar to Section 768.72 with the exception that other state statutes do not include the final sentence relating to discovery preclusion....
...The Court of Appeals in this case should identify and follow the Texas conflicts rule. What substantive law will govern when Texas' rule is applied is a matter to be determined by the Court of Appeals. Id.,
423 U.S. at 4-5,
96 S.Ct. at 168. To apply Section
768.72 in the manner prescribed in Plantation Square is such a prohibited modification. Based on this, district courts cannot rewrite Florida's statutory provisions to accomplish Erie's goals. [9] Further, there is no need to reinterpret Section
768.72 since there is no conflict between the Federal Rules and Florida's law. D. Conclusion After a thorough analysis of the record and of reported case law, the Court concludes that Fla.Stat. §
768.72 can not be divided into multiple sections without changing the meaning of the statute. Therefore, all of Section
768.72 must be applied as substantive law....
...Al-Site simply pled punitive damages in its Second Amended Complaint (d.e. 24). Inclusion of punitive damages associated with Al-Site's second cause of action arising under the Florida common law of unfair competition is premature and improper under § 768.72....
...87) denying Al-Site's motion to Compel Defendants to Produce Certain Documents Requested (d.e. 76) is AFFIRMED. Accordingly, it is ORDERED AND ADJUDGED that Al-Site's motion to compel document requests # 14 and # 15 is DENIED. Al-Site must comply with the pleading aspects of § 768.72 before discovery of the materials relating to punitive damages will be permitted. If necessary, plaintiff Al-site shall file a Motion for Evidentiary Hearing within ten (10) days from the date of this Order pursuant to Fla.Stat. § 768.72....
...he United States district courts. . . . . . (b) Such rules shall not abridge, enlarge, or modify any substantive right. [2] Plantation Square correctly holds that "the Florida Supreme Court had neither the cause nor the capacity to determine whether § 768.72 is substantive or procedural for purposes of federal diversity actions." 761 F.Supp....
...at 1575 (citations omitted) (emphasis added). [3] See Lancer Arabians, Inc. v. Beech Aircraft Corp.,
723 F.Supp. 1444, 1446 n. 4 (M.D.Fla. 1989). If the statute was held to be substantive law, federal courts would be bound by state court decisions interpreting the application of §
768.72 for non- Erie concerns. [4] Fed.R.Civ.P. 26 deals with the scope and methods of discovery. [5] South Dakota's statute, S.D.Codified Laws Ann. § 21-1-4.1, is similar to Fla.Stat. §
768.72 and states in relevant part: In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the Court shall find, after a hearing...
...based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been a willful, wanton, or malicious conduct on the part of the party claimed against. [6] See Morris v. Crow,
825 F.Supp. 295, 298 (M.D.Fla.1993) (section
768.72 "only applies where pendant state claims are brought with federal claims or in diversity suits"); Mahon v. City of Largo,
829 F.Supp. 377, 385 (M.D.Fla. 1993) (section
768.72 is substantive law); Marcus v. Carrasquillo,
782 F.Supp. 593, 600-01 (M.D.Fla.1992) (section
768.72 is substantive state law); L.S.T., Inc....
...Crow,
772 F.Supp. 1254, 1256 (M.D.Fla.1991) (plaintiffs must proffer evidence providing a basis to recover punitive damages prior to pleading in complaint); McCarthy v. Barnett Bank,
750 F.Supp. 1119, 1127 (M.D.Fla.1990) (plaintiffs pled specific acts under §
768.72 to adequately support a claim for punitive damages); Frio Ice, S.A....
...Sunfruit, Inc.,
724 F.Supp. 1373, 1383 (S.D.Fla.1989) (punitive claim stricken for failure to provide evidence showing reasonable basis for recovering punitive damages); Lancer Arabians, Inc. v. Beech Aircraft Corp.,
723 F.Supp. 1444, 1446-47 (M.D.Fla.1989) (section
768.72 "is clearly substantive because it sets the standard for establishing a claim for punitive damages") (citation omitted); Brennan v. Minneola,
723 F.Supp. 1442, 1443 (M.D.Fla.1989) (recognizing that section
768.72 is substantive law even though the state statute was preempted by federal civil rights law); Dah Chong Hong, Ltd....
...Imports, Inc. v. ISCA Corp.,
717 F.Supp. 1537, 1542-43 (S.D.Fla.1989) (section requires departure from liberal requirements of notice pleading); and Lewis v. Snap-on Tools Corp.,
708 F.Supp. 1260, 1262-63 (M.D.Fla.1989) (must proffer evidence under section
768.72). But see Edgewater Sun Spot, Inc. v. Bay Bank & Trust Co.,
154 B.R. 338 (Bankr.N.D.Fla.1993) ("no pre-trial proffer of evidence is necessary"); Burger King Corp. v. Austin,
805 F.Supp. 1007, 1025 n. 30 (S.D.Fla.1992) (section
768.72 inapplicable in federal diversity actions); Kingston Square Tenants Assn. v. Tuskegee Gardens, Ltd.,
792 F.Supp. 1566, 1579 (S.D.Fla.1992) (section "
768.72 is a pleading statute inapplicable to Florida state law claims being litigated in federal court"); In re Sahlen & Assoc., Inc. Secur. Litigation,
773 F.Supp. 342, 375 (S.D.Fla.1991) (pleading of punitive damages in federal court is governed by the provisions of FRCP 8(a)); Ameri-First Bank v. Bomar,
757 F.Supp. 1365, 1378 (S.D.Fla.1991) (FRCP 9(g) applies in lieu of §
768.72); Jones v. Wal-Mart Stores, Inc.,
1991 WL 236503 (S.D.Fla.1991) (section
768.72 is procedural); Geisinger v. Armstrong World Industries, Inc.,
1990 WL 120749 (S.D.Fla.1990) (section "
768.72 is a non-substantive pleading statute"); and Citron v. Armstrong World Industries, Inc.,
721 F.Supp. 1259 (S.D.Fla.1989) (section
768.72 is procedural and FRCP 9(g) prevails)....
CopyCited 14 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 40338, 2015 WL 1456657
...Punitive Damages Florida law provides that “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” See Fla. Stat. § 768.72 (2)....
...d actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Fla. Stat. § 768.72 (2)(a)....
...In addition, “ ‘[gjross negligence’ means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Fla. Stat. § 768.72 (2)(b)....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 1998 WL 422189
...[3] For purposes of a statute of limitation, this simplifies matters because the tort accrues when the testator dies or the will is filed for probate. [4] The trial court dismissed this action prior to the stage at which the Whalens could seek punitive damages. See § 768.72, Fla....
CopyCited 13 times | Published | District Court, M.D. Florida | 1989 U.S. Dist. LEXIS 12588, 1989 WL 128482
...The admission that the motion must be treated as one to dismiss consequently *1446 places the issues before this Court anew. [1] The Court, however, construes the Magistrate's ruling as a recommendation to this Court that the motion be granted on the basis that plaintiff did not satisfy the strictures of Fla.Stat. §
768.72. Given plaintiff's timely objection to the Magistrate's ruling, the Court examines the challenged aspects of the issue de novo. Plaintiff's primary argument denies the applicability of §
768.72 under the Erie [2] doctrine. Plaintiff argues that the statute is purely procedural and therefore federal law supplants it. Defendants note that the Florida courts treat §
768.72 as substantive law, see, e.g., Smith v. Dep't of Ins.,
507 So.2d 1080, 1092 n. 10 (Fla.1987), and that notice-of-claim statutes, which defendants analogize to §
768.72, are given substantive application under the Erie doctrine, see, e.g., Felder v....
...Citrus County,
710 F.Supp. 318, 321 (M.D.Fla.1989). Although the Court does not view the present statute as comparable to the notice-of-claim statute at issue in Redner, [3] the principles of the Erie doctrine compel adherence to the procedures of §
768.72....
...The court prefaced its analysis, however, with the observation that the substantive interests embodied in the statute would require a protective order suspending discovery during the pendency of the waiting period. Id. In other words, Lundgren instructs this Court to identify the substantive kernel of the statute, § 768.72, and respect those rights, but the procedural options for doing so are a matter of federal law. In this case, though, the procedure and the substance appear inextricably intertwined. Section 768.72 "defines the conditions the plaintiff must meet to recover punitive damages.......
...." Smith,
507 So.2d at 1092 & n. 10 (quoting and adopting trial court's opinion); [4] accord Brennan v. City of Minneola, Case No. 88-177-Civ-Oc-12, Order Denying Motions to Dismiss and to Abstain,
723 F.Supp. 1442, 1443 (M.D.Fla.1989) (finding that §
768.72 is substantive law under Erie doctrine). Thus, the procedures within §
768.72 shape the elements of the punitive damages claim and must be treated with *1447 the respect given to substantive state law. This Court is aware of one reported case in this district that has applied §
768.72 and it does so consistent with this ruling....
...of many defendants. Not only would the opportunity to coerce settlements provide an incentive to select forums, it seems plain that federal courts could become party to the inequitable administration of justice if a punitive damages claim barred by § 768.72 proceeded to trial and resulted in a verdict awarding substantial punitive damages. For all these reasons, the Court finds that plaintiff must comply with § 768.72 to proceed on the punitive damages claim. [5] The foregoing ruling is made with one caveat. Section 768.72 became effective for causes of action arising on or after July 1, 1986....
...1983), cert. denied,
449 So.2d 264 (Fla. 1984). The Court will dismiss the punitive damages claim, but this disposition does not bar subsequent efforts to seek leave to amend to include the claim upon a proper showing of entitlement consistent with Fla.Stat. §
768.72....
CopyCited 12 times | Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 412, 2003 Fla. LEXIS 824, 2003 WL 21191751
...PARIENTE and LEWIS, JJ., concur in result only. NOTES [1] The Calder Mobile is a sculpture by Alexander Calder. [2] A hearing was held on July 25, 2000, on Jacoboni's motion for leave to amend his complaint to assert a claim for punitive damages. Jacoboni filed the motion pursuant to section 768.72(1), Florida Statutes (1999), which provides in relevant part: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which woul...
CopyCited 12 times | Published | District Court, S.D. Florida
...uct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct." Mee Industries v. Dow Chemical Co. ,
608 F.3d 1202 , 1220 (11th Cir. 2010) (quoting Fla.Stat. §
768.72(2) (2005) )....
CopyCited 12 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 252, 2016 WL 3090385, 2016 Fla. LEXIS 1150
...Legal Proceedings Following the incident at the bank, Val-ladares filed . an action against Bank of America for negligence, battery, and false imprisonment. 1 In an apparent attempt to *6 comply with the legislatively established permissive scope of punitive damages pursuant to Florida Statutes, section 768.72 (1999), Valladares did not include an allegation for punitive damages in his initial complaint....
...Bank of America’s behavior was analogous to the behavior of the bank in Harris in that it also committed acts that went beyond an innocent misunderstanding. *13 Valladares did not specifically allege punitive damages under the negligence count in his original complaint in an attempt to comply with section 768.72, Florida Statutes....
...Although this presents a problem with his award for punitive damages, it should ‘be noted that this statute, precluding an allegation of punitive damages in the initial complaint, has no application to a cause of action for negligent reporting of criminal conduct. Section 768.72 pertains only to a demand for punitive damages....
CopyCited 12 times | Published | Supreme Court of Florida | 1992 WL 163936
...The petitioners filed an answer and affirmative defenses to the complaint alleging the following grounds: 1) failure to state a cause of action; 2) lack of personal jurisdiction; 3) improper venue; 4) negligence on Leondakos' part; 5) lack of subject matter jurisdiction; 6) forum non conveniens; and 7) failure to comply with section 768.72, Florida Statutes (1989) (no claim for punitive damages can be brought in a civil action without a reasonable showing by the evidence of a basis for recovery of such damages)....
CopyCited 12 times | Published | District Court, S.D. Florida | 1997 U.S. Dist. LEXIS 2147, 1997 WL 71826
...fore the court in its supplemental jurisdiction. On both the state law claims, Ms. Teel, prays for punitive damages. Defendant Pratt & Whitney now moves to strike this prayer, pursuant to Rule 12 of the Federal Rules of Civil Procedure, arguing that section 768.72, Florida Statutes (1995), precludes such pleading. II. DISCUSSION A. Section 768.72, Florida Statutes Section 768.72 states the following requirements: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his complaint to asset a claim for punitive damages as allowed by the rules of civil procedure.... No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. § 768.72, Fla.Stat. (1995). Ms. Teel appears willing to concede that § 768.72 applies, a view which coincides with other district courts in Florida....
...[1] However, the applicability of this statute to claims arising under Florida law is a matter of some *1536 dispute in the Southern District of Florida. [2] No case from the Eleventh Circuit has resolved the disputemost likely because a decision to apply or to reject § 768.72 is not immediately appealable and because the harm from an erroneous rejection of the statute falls most heavily on parties who settle in the face of unwarranted punitive damages claims and financial worth discovery....
...by the trial court in submitting to the jury only those claims for punitive relief which are supported by the evidence at trial. [3] Without an appellate opinion on point and because of the lack of consensus within the district, the applicability of § 768.72 remains an essential issue for the court to determine today. The cases from this district that have considered § 768.72 divide along their characterization of it....
...The balance of the statute, then, serves as the restriction on pleading that the earlier case law recognized. See Al-Site,
842 F.Supp. at 509; Plantation Square,
761 F.Supp. at 1572-73. The merit of this two-part analysis has been confirmed by the Florida Supreme Court which, in a slightly different context, declared that "section
768.72 create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper Co....
...as substantive law for claims in federal court which arise under Florida law. See Al-Site,
842 F.Supp. at 511; Plantation Square,
761 F.Supp. at 1580; see also Sanders,
942 F.Supp. 571, 576 n. 5. Still, the applicability of the pleading component of §
768.72 remains in dispute, with the Plantation Square court finding it procedural and therefore irrelevant in federal court and with the Al-Site court finding the opposite....
...at 1576 (finding pleading component inapplicable) with Al-Site,
842 F.Supp. at 514 (finding the opposite). This split of authority, in light of the ubiquity of the statute, requires the court to analyze the matter anew. Thus, the court now determines whether the pleading component of §
768.72 must be viewed as binding on the federal courts. *1537 B. The Applicability of §
768.72 to Pleading Punitive Damages in Federal Court Determining whether §
768.72 applies to the pleading of punitive damages for claims arising under Florida law depends on the Erie Doctrine....
...s of inequitable administration of the law and forum shopping. Walker v. Armco Steel Corp.,
446 U.S. 740, 752,
100 S.Ct. 1978, 1986,
64 L.Ed.2d 659 (1980); Hanna,
380 U.S. at 468,
85 S.Ct. at 1142 (discussing the "twin aims" of the Erie rule). Since §
768.72 affects pleading issues which are also governed by the Federal Rules of Civil Procedure, the court must first determine the applicability of Hanna. 1. A Hanna v. Plumer Analysis for Conflict with the Federal Rules A Hanna analysis is required only if §
768.72 actually conflicts with the Federal Rules....
...Rule 9(g) expands on Rule 8(a) as follows: "[w]hen items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g) (1996). Punitive damages are special damage within the meaning of Rule 9(g). Citron,
721 F.Supp. at 1261. True to the uncertainty which surrounds §
768.72 in this district, even the cases which find a conflict with the Federal Rules differ as to which particular rule creates the conflict....
...ute because the rule was silent as to when such damages must be pleaded. Plantation Square,
761 F.Supp. at 1574 (emphasis in original). In the context of Rule 8(a), however, the Plantation Square court considered the evidentiary threshold imposed by §
768.72 to be a threat to the minimal notice requirements that the rule embodies....
...Id. at 1574. Construing this possible outcome as a conflict between Rule 8(a) and the statute, the Plantation Square court followed the second prong of Hanna by applying the Rules Enabling Act. Id. Under the Rules Enabling Act, the court held that §
768.72 did not create a substantive right which was abridged by Rule 8(a). Id. at *1538 1575-76 (distinguishing Smith v. Department of Ins.,
507 So.2d 1080 (Fla.1987)). Thus, §
768.72 did not displace Rule 8(a) and did not apply to the pleading of punitive damages on claims which arise under Florida law in federal court. Id. at 1576. In Citron, by contrast, the court conducted a Hanna analysis but found no conflict between §
768.72 and Rule 8(a)....
...The straightforward rationale of the Citron court was that "Rule 9(g) unambiguously requires a plaintiff to set forth a demand for punitive damages in its complaint." Id. Turning next to the Rules Enabling Act, to see whether the conflicting Federal Rule 9(g) improperly abridged a substantive right created by §
768.72, the Citron court made an analogy to another statute, §
768.28, Florida Statutes the pre-suit notice requirement for tort actions against the statewhich has been ruled not to be substantive for purposes of the Erie doctrine. Id. at 1261-62 (citing Lundgren v. McDaniel,
814 F.2d 600, 606 (11th Cir.1987) and §
768.28(6), Fla.Stat.). By equating the pre-suit waiting period of §
768.28 with the prohibition on unwarranted punitive damages of §
768.72, the Citron court concluded that §
768.72 must likewise be non-substantive. Id. Therefore, the Citron court declined to apply §
768.72 to the pleading of punitive damages on state law claims in federal court. Id. Still a third judge in this district, Judge Atkins, has found no conflict with the Federal Rules of Civil Procedure and thus resorted to a straight-forward Erie analysis, unguided by Hanna and the Rules Enabling Act, to determine that §
768.72 applies in diversity actions....
...aded and then noted that Rule 8, particularly subsection (a)(2), required no additional showing besides a "short and plaint statement of the claim." Id. at 512 (quoting Fed.R.Civ.P. 8(a)(2)). Finding no conflict between this language and the text of § 768.72, the Al-Site court turned to a conventional Erie analysis. Id. at 513. Looking to equalize the administration of substantive law between state and federal courts, as Erie requires, the Al-Site court concluded that failing to apply § 768.72 to pleading in federal court would give federal litigants an "unearned bargaining chip" relative to litigants in state court....
...As a result the Al-Site court concluded that "[t]he right to be free from discovery related to punitive damages is created by Florida's statute as a whole and must be applied as a whole." Id. at 514. With three such contrasting opinions on whether § 768.72 conflicts with the Federal Rules, the court is left to conduct its own Hanna analysis, looking first for conflict with Federal Rules 8 and 9....
...Significantly, even if Rule 8(a)(2) or (a)(3) were construed to require the pleading of punitive damages, there is no requirement as to when they need be pleaded, much as the Al-Site and Plantation Square courts noted in the Rule 9(g) context. Thus, Rule 8 cannot be said to be facially or operationally in conflict with § 768.72. Consideration of Rule 9(g) leads to the same conclusion. Rule 9(g) requires "[w]hen items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g). Thus, if any rule is implicated by § 768.72, it is Rule 9(g)....
...However, even Rule 9(g) is also silent as to when punitive damages must be pleaded, as both the Al-Site and Plantation Square courts have noted. See Al-Site,
842 F.Supp. at 512; Plantation Square,
761 F.Supp. at 1574. Accordingly, by conditioning the right to claim punitive damages on an evidentiary showing, §
768.72 does no violence to Rule 9(g). It merely affects the time at which the mandate of Rule 9(g) becomes relevant. In other words, Rule 9(g) does not apply until the right to plead punitive damages first accrues under §
768.72....
...15(a) (requiring that leave to amend be "freely granted"). It is the free amendment policy of the Federal Rules that makes mere notice pleading possible. Far from conflicting with the basic notice requirements of the Federal Rules, as the court feared in Plantation Square, §
768.72 accords with this most basic assumption about the development of a lawsuit. Thus, in keeping with the conclusion of the court in Al-Site, it is the conclusion of this court that the pleading component of §
768.72 does not conflict with any of the Federal Rules of Civil Procedure. Accordingly, the answer to the question of whether §
768.72 should be applied in federal court turns not on the high standard of Hanna and the Rules Enabling Act, but on the more conventional Erie analysis: whether §
768.72 is of a sufficiently substantive nature that it must be applied to prevent forum shopping or the inequitable administration of the law. See Walker,
446 U.S. at 752,
100 S.Ct. at 1986; Hanna,
380 U.S. at 468,
85 S.Ct. at 1142. 2. An Erie v. Tompkins Analysis for Inequitable Administration of the Law Much recent precedent in this district has recognized that §
768.72 is substantive under Erie, at least as regards its discovery component....
...For additional guidance on whether the statute as a whole is substantive, the court also looks to the recent Florida Supreme Court case of Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995). In Globe, the high court had to determine whether §
768.72 was of sufficiently substantive a nature to allow the interlocutory appeal of pretrial motions which raised the statute as a restriction on pleading punitive damages....
...o be subject to a punitive damages claim and ensuing financial worth until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Id. (emphasis added). This substantive interpretation of §
768.72 by the Supreme Court of Florida is longstanding. Cf. Smith v. Department of Ins.,
507 So.2d 1080, 1092 (Fla.1987) (holding §
768.72 a valid for scheme for implementing substantive rights against a challenge that the statute invaded the powers of the judiciary to control procedure)....
...of Civil Procedurethe court is bound by the determination of the Supreme Court of Florida. Precedent from the Middle District of Florida concurs in this view. Marcus,
782 F.Supp. at 600 (collecting cases). Even if the court were not bound to treat §
768.72 substantively, the court reaches the same conclusion independently....
...sity cases. See Blanchard v. State Farm Mut. Auto. Ins. Co.,
931 F.2d 789 (11th Cir.1991) (per curiam) (pronouncing judgment in accord with answer of Supreme Court of Florida to certified question). Like the statute addressed in the Blanchard cases, §
768.72 is properly viewed as a statute which prevents a claim from accruing prior to a court ruling. [4] Thus, the statute clearly has a substantive effect on the right to plead and to pursue punitive damages. When claims arising under Florida law are litigated in federal court, the substantive nature of §
768.72 in restricting the available remedies is even more clear, principally because of the close, and perhaps even indivisible, link between federal pleading and federal discovery....
...As noted by the Al-Site court above, the mandatory disclosure of all information related to the pleadings under Rule *1541 26 of the Federal Rules would induce premature production of financial worth information and create an "unearned bargaining chip" if § 768.72 did not restrict pleading of the punitive remedies sought in federal court....
...approved discovery. Finally, such a practice may also risk placing a party in non-compliance with the discovery rules pending the court's ruling on the need to disclose financial worth information. Thus, while it may be possible in theory to divide § 768.72 into a discovery component and a pleading component, no such ready distinction exists in practice....
...If the statutory right to be free from financial discovery and punitive damages claims is to be given any practical effect in federal court, it must apply to pleading as well. To avoid the forum-shopping and inequitable administration of the law that Erie warns against, § 768.72 must be treated as a substantive its entirety, and the pleading of punitive damages must be guided accordingly. Properly applied, § 768.72 bars a prayer for punitive damages for claims under Florida law unless and until reasonable proof is adduced of an entitlement to such damages....
...Plaintiff's prayer for punitive damages in the ad damnum clause of the complaint is STRICKEN without prejudice as to all counts arising under Florida law. NOTES [1] Cf. Martin v. Honeywell, Inc.,
1995 WL 868604 (M.D.Fla. July 18, 1995) (Bucklew, J.) (holding §
768.72 a substantive limitation on punitive damages which federal courts must apply); Marcus v....
...This so-called "check," however, invokes hindsight to moot on appeal the very question which the court faces today: whether a party should be spared the threat of punitive damages and related discovery from the very inception of suit. [4] As noted previously, the Citron court likened §
768.72 to a different statute, §
768.28, Florida Statutes....
...e requirement of §
768.28). However, an analogy to §
768.28 may not be a helpful one. For example, the waiting period required by §
768.28 is materially distinguishable from the outright bar to unsupported punitive damages claims that is posed by §
768.72. In fact, it is just such a distinction, among others, that underlies the Middle District of Florida's uniform determination that §
768.72 is substantive under Erie, despite Lundgren. See Lancer Arabians, Inc. v. Beech Aircraft Corp.,
723 F.Supp. 1444, 1446 (M.D.Fla.1989) (distinguishing §
768.72 from §
768.28 under Erie )....
CopyCited 12 times | Published | United States Bankruptcy Court, S.D. Florida. | 6 Fla. L. Weekly Fed. B 1, 1992 Bankr. LEXIS 293
...s to extort real estate brokerage commissions to which Debtor was not entitled. The compensatory damage award was based upon evidence that the fraudulent lien prevented the closing of a contract to sell the Property. The court also found cause under § 768.72, Florida Statutes (1989) to award punitive damages representing three times the compensatory award....
...His conduct was "malicious" within the meaning of the statute. In sum, this Court is satisfied that the compensatory damages awarded under §
713.31 arose from willful and malicious conduct by the Debtor. The state court also imposed punitive damages pursuant to §
768.72, Florida Statutes (1989)....
...damages in its Order of January 1990. In its Amended Final Judgment awarding compensatory and punitive damages issued in August 1990, the court referred to the fraudulent liens as well as to evidence presented at the damages hearing and relied upon § 768.72 in awarding treble punitive damages. Section 768.72 permits such damages if "there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." *584 Although the Debtor later filed a motion for rehea...
CopyCited 12 times | Published | District Court, S.D. Florida | 1996 U.S. Dist. LEXIS 14223, 70 Empl. Prac. Dec. (CCH) 44, 654, 76 Fair Empl. Prac. Cas. (BNA) 355, 1996 WL 550129
...Amended Complaint. Punitive Damage Claims and the State Law Causes of Action The individual defendants have also moved to dismiss Sanders's claims for punitive damages on the state law causes of action. Specifically, Defendants assert that Fla.Stat. § 768.72 applies in this action to prevent Sanders's punitive damage claims as unsupported by the reasonable showing of evidence required by the statute. Sanders responds that § 768.72 does not apply in federal actions, or alternatively, if the statute is applicable, the record contains sufficient evidence for the Court to find a reasonable basis for the punitive damage claims as the statute requires. [3] *575 1. Applicability of Fla.Stat. § 768.72 in Federal Litigation Fla.Stat. § 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...507 (S.D.Fla.1993), the most recent opinion in the Southern District considering the statute. In Al-Site, the court disagreed with other courts of this District having considered the issue by finding that both the pleading and discovery aspects of Section 768.72 should be applied substantively in federal court, whereas prior decisions either had rejected the applicability of the pleading aspect of the statute or had rejected it in toto as procedural and thus superseded by relevant Federal Rules of Civil Procedure, i.e. Fed.R.Civ.P. 8(a)(2), 9(g) and 26. This Court accepts the conclusion of Al-Site finding Section 768.72 fully applicable in federal litigation....
...United Mine Workers of America v. Gibbs,
383 U.S. 715, 726,
86 S.Ct. 1130, 1139,
16 L.Ed.2d 218 (1966), provides the basis for jurisdiction over Sanders' pendent state law claims against the individual defendants. To determine whether or not to apply Fla.Stat. §
768.72 to those claims, this Court takes heed of Justice Brennan's unequivocal assertion in Gibbs that a federal court hearing such claims "is bound to apply state law to them." 383 U.S....
...in aims of Erie, " *576 discouragement of forum-shopping and avoidance of inequitable administration of the laws, would be satisfied by application of the state law. Hanna requires that this Court first determine if conflict exists between Fla.Stat. § 768.72 and similar federal law....
...8(a)(2) obliges the pleader to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." The state statute carries no requirement as to the content of the pleader's claim for damages. Nor does the statute require the specificity of Fed.R.Civ.P. 9(g). [4] Fla.Stat. § 768.72 simply requires that the court supervise the pleading of punitive damages, such that no access to discovery of a defendant's net worth, for example, will be available until the court has permitted the punitive damage claims based on a successful factual showing of a reasonable basis therefor. The statutory burden of production of § 768.72 not found in the federal rules suggests to the Court, as it did to the Al-Site court, that the Florida Legislature has deliberately fashioned a procedure requiring court approval in every instance before net worth discovery may proceed....
...[5] Thus it can be inferred that the aim of such a procedure is to protect litigants from forced disclosure of their financial situation on the whim of their opposition. Applying the second part of the Hanna analysis, the Court determines that failure to employ Section 768.72 would inevitably lead to inequitable administration of the laws where as here, the only bases for federal court jurisdiction are the Title VII claims asserted against the employer defendant....
...there can be no prejudice to apply equally to them the law of their state of residence, when such law would be applied to the claims at issue as a matter of course if this case was being heard in state court. 2. Plaintiff's Compliance with Fla.Stat. § 768.72 Under the foregoing analysis, Fla....
...[4] Fed.R.Civ.P. 9(g) states: "When items of special damage are claimed, they shall be specifically stated." [5] The Court adopts the reasoning of the Al-Site and Plantation Square courts with respect to the applicability of the discovery aspect of Section 768.72 in federal litigation....
CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 2005 WL 1901798, 2005 U.S. App. LEXIS 16872
...8
common law on the basis of strict liability on a common carrier for the misconduct
of its agents, whether or not such agents are managers or are acting outside the
scope of their employment. She claims that Fla. Stat. § 768.72(3) is consistent
with this theory.
Delta claims that, under Fla. Stat. § 768.72(3), the Florida Legislature has
mandated when an employer may be liable for punitive damages based on an
employee’s conduct. The punitive damages claim must be dismissed because
neither Delta nor its management participated in, ratified, condoned or consented
to the actions of the four lower level employees accused of misconduct. We agree.
Section 768.72(3) provides that punitive damages may be imposed upon an
employer for the conduct of its employee or agent only of the employer actively
and knowingly participates, condones, ratifies or consents to such conduct....
CopyCited 12 times | Published | District Court, S.D. Florida
...ly if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.' " Mee Indus. v. Dow Chem. Co. ,
608 F.3d 1202 , 1220 (11th Cir. 2010) (quoting Fla. Stat. §
768.72 (2) ). Under §
768.72(3), punitive damages may be imposed against a corporation "based on the actions of an employee of the corporation only if that employee was guilty of intentional misconduct or gross negligence and one of the following is true: (a) the corpo...
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1996 WL 225719
...signed to cause, and actually causing detrimental reliance by the plaintiff. Id. at 539. We agree with the appellees that Turner's attempt to inject punitive damages into this suit was untimely. [2] As the Florida Supreme Court recently ruled, under section 768.72, Florida Statutes (1993), a plaintiff is required to obtain leave from the trial court to amend the complaint before punitive damages may be asserted and any punitive damages claim alleged prior to a party asking for and receiving leave of court must be dismissed or stricken....
...See, Dr. P. Phillips & Sons v. Kilgore,
152 Fla. 578,
12 So.2d 465, 467 (1943) ("It is in the province of the trial court to determine as a matter of law whether or not there is a basis for punitive damages and instruct the jury accordingly."). [3] Section
768.72 creates a positive legal right in the defendant not to be subject to financial worth discovery until the trial court has determined that there is an evidentiary basis for a punitive damages claim to go to the jury....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2005 WL 356956
...The standard of review in determining whether an offer of settlement comports with rule 1.442 and section
768.79 is de novo, because a proposal for settlement is in the nature of a contract. See Jamieson v. Kurland,
819 So.2d 267, 268 (Fla. 2d DCA 2002). Florida law holds that before a claim for punitive damages is allowed, section
768.72 requires a plaintiff to make an initial showing by evidence in the record or proffered by the claimant that would provide a reasonable basis for recovery of such damages....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1999 WL 436802
...s. The complaint further alleged that as a result of defendants' negligence, Barnes wandered from the facility unaccompanied, accidently fell into a pond and drowned on December 30, 1996. Plaintiff sought compensatory damages, and later, pursuant to section 768.72, Florida Statutes (1995), was granted leave to amend by adding a claim for punitive damages....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1993 Fla. App. LEXIS 5848, 1993 WL 174255
...The Petitioners argue that the trial court's order infringes on their substantive right not to be subjected to financial worth discovery until the trial court makes a finding that there is an evidentiary basis for a punitive damages claim as provided for in *369 section 768.72, Florida Statutes (1991)....
...The trial court interpreted this section to mean that a claim for punitive damages is allowed without pleading or proving malicious or willful disregard of the rights of others. The trial court's interpretation of section
400.023 conflicts with the requirements of section
768.72 which specifically provides that "[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Section
768.72, Fla. Stat. (1991). Section
768.72 creates "a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury." Henn v. Sandler,
589 So.2d 1334, 1335 (Fla. 4th DCA 1991); see Wolper Ross Ingham & Co. v. Liedman,
544 So.2d 307 (Fla. 3d DCA 1989) (holding that party seeking punitive damages is not entitled to financial worth discovery until the party complies with section
768.72)....
...Dupont,
455 So.2d 1026 (Fla. 1984); U.S. Concrete Pipe Co. v. Bould,
437 So.2d 1061 (Fla. 1983). Dr. Frazier's affidavit provides an insufficient basis to add the claim for punitive damages, as it failed to establish a reasonable basis for recovery of punitive damages. Section
768.72, Fla....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2005 WL 264118
...here is no such thing as "negligent" commission of "intentional" tort). Therefore, Quilling's complaint fails to state a cause of action for negligence. In closing, with regard to Quilling's claim for punitive damages, since he has not complied with section 768.72 of the Florida Statutes, his claim for punitive damages must be stricken....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31875183
...e "more than a real possibility, though not necessarily better than a 50-50 probability." Glaab,
236 So.2d at 184. By comparison, current statutes authorize an award of punitive damages based on clear and convincing evidence of gross negligence. See §
768.72(2), Fla....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1989 Fla. App. LEXIS 7074, 1989 WL 153771
...summary judgments. The trial court denied the motion for partial summary judgment and directed Will to provide discovery of his financial worth. The claim for punitive damages and the order directing the disclosure of financial worth are governed by section 768.72, Florida Statutes (1987), which provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...ciency of the evidence pertaining to the punitive damage claims. After careful consideration of the parties' thorough memoranda, we conclude that the issue should be presented to the trial court in the first instance under the standards set forth in section 768.72 and the Wolper Ross decision.
CopyCited 10 times | Published | Florida 3rd District Court of Appeal
...cedural matters. Colhoun v. Greyhound Lines, Inc.,
265 So.2d 18, 20 (Fla. 1972); Pledger v. Burnup & Sims, Inc.,
432 So.2d 1323, 1329 (Fla. 4th DCA 1983), rev. denied,
446 So.2d 99 (Fla. 1984); Restatement (Second) of Conflicts §§ 122, 127 (1971). Section
768.72, Florida Statutes (1989), provides, as a procedural matter, the following: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...ars reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." Third, the plaintiffs failed, as required by Section 768.72, Florida Statutes (1989), to make a reasonable evidentiary showing below which would provide a reasonable basis for recovery of punitive damages under New York law....
CopyCited 9 times | Published | District Court, M.D. Florida | 1990 U.S. Dist. LEXIS 15065, 1990 WL 175343
...PUNITIVE DAMAGES In addition to Defendants' motion to strike the substantive counts of Plaintiffs' complaint, they also move that Plaintiffs' request for punitive damages be struck. As Plaintiffs' request for punitive damages is based on state claims, Florida law controls their request. The relevant statute, Section 768.72, Florida Statutes (1989), states that a reasonable showing by evidence in the record or proffered by the claimant which shows a reasonable basis for recovery of punitive damages is necessary to sustain such a claim....
CopyCited 9 times | Published | District Court, M.D. Florida | 1999 U.S. Dist. LEXIS 17745, 13 Fla. L. Weekly Fed. D 83
...ch. (Compl. at 30-33, 37-38.) As such, Defendants' Motion to Dismiss for Failure to State a Claim is denied. II. Motion to Strike Defendants move to strike all references to punitive damages from the Complaint. Defendants assert that Fla. Stat. Ann. § 768.72 (West 1999) clearly provides that "no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Moreover, Defendants cite multiple cases as supporting the proposition that § 768.72 is substantive and therefore must be applied by federal district courts having diversity jurisdiction....
...he terms of the [Rule's] Enabling Act nor constitutional restriction." See Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1296 (11th Cir.1999) reh'g granted. The federal district courts have reached different conclusions when applying the Hanna test to §
768.72. See id. However, earlier this year the Eleventh Circuit in Cohen v. Office Depot, Inc . determined that §
768.72 conflicts with Federal Rule of Civil Procedure 8(a)(3). See id. at 1299. Following Hanna, the court in Cohen concluded that "the pleading requirements of Florida Statutes §
768.72 are inapplicable in federal diversity cases." Id....
CopyCited 9 times | Published | District Court, M.D. Florida
...Punitive Damages Lastly, the Amended Complaint asks the Court to award punitive damages. In Florida, punitive damages can only be awarded where a pleading provides a "reasonable basis" for an allegation that a party acted with "intentional misconduct or gross negligence." Fla. Stat. § 768.72 (1) - (2) ; see also Gerlach v....
..."Intentional misconduct means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, *1265 resulting in injury or damage." Fla. Stat. § 768.72 (2)(a) (internal quotes omitted). "Gross negligence means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." Id. at § 768.72(2)(b) (internal quotes omitted)....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2002 WL 10062
...breach of contract, are not intentional torts and are similarly barred by the releases. The court struck the punitive damages claim in Count XIV because it found that such claims are not permitted without prior trial court authorization, pursuant to § 768.72....
...breach of contract, are not intentional torts and are similarly barred by the releases. The court struck the punitive damages claim in Count XIV because it found that such claims are not permitted without prior trial court authorization, pursuant to § 768.72....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2001 WL 609240
...h the presuit statutory requirements. This case is analogous to Ortega v. Silva,
712 So.2d 1148 (Fla. 4th DCA 1998). There we ruled that certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section
768.72, Florida Statutes (2000). Id. at 1149. We cited to Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996), for the holding that certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section
768.72, but not so broad as to encompass review of the sufficiency of the evidence to support a claim for punitive damages when the trial judge has followed the procedural requirements of that statute....
CopyCited 9 times | Published | District Court, S.D. Florida | 1997 U.S. Dist. LEXIS 8025, 1997 WL 306874
...Defendants' motion raises a single issue that has divided the judges of the Southern District of Florida for some time. Defendants argue that plaintiffs' demand for punitive damages should be stricken because it fails to comply with the pleading requirements of section 768.72 of the Florida Statutes....
...[1] The undersigned has briefly considered this issue on previous occasions. In Frio Ice, S.A. v. SunFruit,
724 F.Supp. 1373, 1383 (S.D.Fla.1989), rev'd on other grounds,
918 F.2d 154 (11th Cir.1990), the undersigned assumed, without discussion, that section
768.72 does apply in diversity cases....
...lor v. Lee, Case No. 96-8170-CIV-RYSKAMP (Omnibus Order, March 12, 1997). Due to the frequent recurrence of this issue, and the fact that the Eleventh Circuit may never have the opportunity to resolve it, the Court believes that a full discussion of section 768.72's application in diversity actions is warranted. Section 768.72 provides as follows: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The Florida Supreme Court has "read
768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995); see also Smith v. Department of Insurance,
507 So.2d 1080, 1092 n. 10 (Fla.1987) (section
768.72 creates substantive rights). Thus, if the statute applies at the pleading stage, plaintiffs demand for punitive damages must be stricken. Several courts have recognized that section
768.72 contains two requirements, one concerning pleading and the other concerning discovery....
...The Court finds no reason to disagree with this analysis *1190 at this juncture, but would simply remark that the substantive right to be free from financial discovery absent a proper pleading of punitive damages means very little if the liberal standards of the Federal Rules of Civil Procedure, and not the first half of section 768.72, govern at the threshold stage....
...It is of course old hat that the day of the "brooding omnipresence in the sky" has passed and that federal courts sitting in diversity must apply the common and statutory law of the relevant state. See Erie R.R. Co. v. Tompkins,
304 U.S. 64,
58 S.Ct. 817,
82 L.Ed. 1188 (1938). Indeed, as applied to state statutes such as section
768.72, this precept predates even Erie, which only overruled Swift v....
...If, however, the state law and federal rule conflict, the Court must apply the federal rule only, unless it appears that the federal rule was not adopted pursuant to a constitutional delegation of authority in the Rules Enabling Act, 28 U.S.C. § 2072. [2] Accordingly, the Court must first consider whether section 768.72 conflicts with any federal rule....
...strict of Florida have reached a number of differing conclusions as to whether either of these rules conflicts with the statute. In Wisconsin Inv. Bd. v. Plantation Square Assocs., Ltd.,
761 F.Supp. 1569, 1573 (S.D.Fla.1991), Judge However held that section
768.72 conflicts with Rule 8(a), but not 9(g)....
...Judges Atkins and Hurley have found that the statute conflicts with neither federal rule. See Teel,
953 F.Supp. at 1539; Al-Site Corp. v. VSI Int'l, Inc.,
842 F.Supp. 507, 512-13 (S.D.Fla.1993). Filling out the range of logical possibilities, the Court now holds that section
768.72 conflicts with both rules. Rule 8(a) contains two separate requirements that might be thought to conflict with section
768.72....
...1160,
122 L.Ed.2d 517 (1993) (rejecting heightened pleading requirement in § 1983 cases against municipalities). The Court therefore concludes that any state statute imposing a pleading requirement stricter than that of Rule 8 conflicts with the Federal Rules. [3] In his recent Teel opinion, Judge Hurley found that section
768.72 does not conflict with Rule 8 because Rule 8 specifies the "how" of pleading, but not the "when." 953 F.Supp....
...In other words, the short and plain statement standard remains in effect, but the plaintiff cannot offer such a short and plain statement until he has made a record showing of facts sufficient to support the claim. Respectfully, the Court believes that this reading misconstrues the outworking of section 768.72. The Florida Supreme Court has made clear that section 768.72 forbids a party even to raise a punitive damages claim in its complaint without prior leave of the Court....
...mination that the kind of claim in suit is one which allows for punitive damages under [Florida] law." Henn v. Sandler,
589 So.2d 1334, 1335-36 (Fla. 4th DCA 1991). Thus, "the legal sufficiency of the punitive damage pleading is also in issue in the section
768.72 setting." Id....
...ad the punitive damages issue in a legally sufficient manner, presumably by alleging facts sufficient to sustain an award of punitive damages. See also McDonald v. Dade County Public Health,
677 So.2d 23, 24 (Fla. 3d DCA 1996) (plaintiff may satisfy
768.72 by making a proffer of evidence sufficient to support claim for punitive damages); Key West Convalescent Center v....
...mention satellite proceedings to determine the factual propriety of the satellite pleadings. *1192 The Court cannot agree that these satellite procedures do not conflict with the liberal standards of Rule 8. [4] The considerations that suggest that section 768.72 conflicts with Rule 8 suggest also that the statute conflicts with Rule 9(g)....
...See Italiano v. Jones Chemicals, Inc.,
908 F.Supp. 904, 907 (M.D.Fla.1995) ("Rule 9(g) requires no more than a specific statement that allows Defendants to prepare a responsive pleading and begin their defense."). As with Rule 8, the conflict with section
768.72 arises from the fact that the statute in effect requires a satellite pleading to the court, requesting permission to plead a claim for punitive damages. Contrary to Rule 9(g), this pleading must proffer facts sufficient to support a punitive damages award. Rather than merely stating the special damages the plaintiff hopes to recover, as contemplated by Rule 9(g), section
768.72 requires the plaintiff essentially to survive a summary judgment-type inquiry on the issue of punitive damages at the pleading stage of the litigation. Thus, the Court sees a conflict between Rule 9(g) and section
768.72. In summary, the Court finds that application of section
768.72 in federal court would upset the notice pleading system constructed by Rules 9(g) and 8(a)....
...The Rules, however, arrive before the Court with a strong presumption of constitutionality. Id. at 6,
107 S.Ct. at 970. The Court sees no reason to doubt the constitutionality of Rules 8 or 9, and until someone convincingly rebuts their presumption of constitutionality, the Court will continue to follow them in preference to section
768.72. Accordingly, the Court holds that pleading requirements of section
768.72 do not bind federal litigants....
...judgments, conflicted with Rule 38 of the Federal Rules of Appellate Procedure, which gives the circuit court discretion in determining whether or not to award damages for frivolous appeals.
480 U.S. at 1,
107 S.Ct. at 967. This Court believes that section
768.72's elimination of the "short and plain statement" standard has much the same effect as the Alabama statute's elimination of the circuit's court discretion as to appellate damages....
...Far from altering substantive rights under state law, it alters the role of the Court itself in adjudicating the diverse parties' dispute. [4] Although Judge Hurley distinguishes the Eleventh Circuit's opinion in Lundgren v. McDaniel,
814 F.2d 600 (11th Cir.1987), the Court believes that Lundgren supports a finding that section
768.72 is procedural within the meaning of Hanna....
...Of course, the state law which creates the cause of action may also specify the time at which the cause of action accrues. The state may not, however, dictate to the federal courts the procedures it must follow in conforming to this timing requirement. In section 768.72, the State has not merely stated that a claim for punitive damages does not accrue unless conditions X, Y, and Z are met....
CopyCited 9 times | Published | District Court, N.D. Florida | 51 U.C.C. Rep. Serv. 2d (West) 950, 2002 U.S. Dist. LEXIS 18777, 2002 WL 32113050
...Therefore, the Court does not find an award of future damages appropriate. C. Punitive Damages Under Florida law, in order to recover punitive damages, a plaintiff must demonstrate to the trier of fact that the defendant is personally guilty of intentional misconduct or gross negligence. See FLA. STAT. ANN. § 768.72 (West Supp.2002)....
...The Florida legislature has defined "gross negligence" as conduct which is "so reckless or wanting in care that it constituted] a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." See FLA. STAT. ANN. § 768.72(2)(b) (West Supp.2002)....
...162, p. 6-7). Myrtle Grove v. Taylor,
614 So.2d 22, 23 (Fla. 1st DCA 1993); Ten Assocs. v. Branson,
492 So.2d 1149, 1150 (Fla. 3d DCA 1986). However, the cases provided by Hady Enterprises were decided before the Florida legislature's amendment of Section
768.72, which allows recovery of punitive damages based on clear and convincing evidence of "intentional misconduct" or "gross negligence." 1999 Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2007 WL 4438923
...Hippie to amend his complaint to state a claim for punitive damages. Before a plaintiff can assert a claim for punitive damages, he must make a "reasonable showing by evidence in the record or proffered by [him] which would provide a reasonable basis for recovery of such damages." § 768.72(1), Fla....
...King,
658 So.2d 518, 519 (Fla. 1995). On appeal, the standard of review is de novo. See Holmes v. Bridgestone/Firestone, Inc.,
891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial court is determining if a plaintiff has made a `reasonable showing' under section
768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo.")....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 16277, 2001 WL 1434195
...The trial court applied the 1999 version of the statute, specifically section
768.73(1)(c), Florida Statutes (1999), to conclude that the excess award is appropriate. Although the 1999 statute certainly applies to the specific torts committed by the Defendant in the instant case, see section
768.72(2)(a) and(b), Florida Statutes (1999), I need not analyze whether the award falls within the statutory exception because this cause of action accrued in April 1993 rendering the 1999 statute inapplicable....
CopyCited 8 times | Published | District Court, M.D. Florida | 1989 U.S. Dist. LEXIS 12616, 1989 WL 128483
...Defendants' motions have seven distinct assertions. The first of these is defendants' motion for a more definite statement, which the Magistrate has denied. See Order entered January 12, 1989. The Court will address each of the six remaining issues. Defendants' second assertion is that Fla. Stat. § 768.72 bars the claim for punitive damages at this time....
...Defendant describes the statute as "a neutral and uniformly applicable Rule of Civil Procedure [which] is not a substantive burden." Defendants' Memorandum at 6-7. This description is erroneous. The Florida Supreme Court has considered an argument that § 768.72, which codifies 1986 Fla....
...The statute survived scrutiny on the basis that it is "clearly substantive because it sets the standard for establishing a claim for punitive damages." Smith v. Dep't of Insurance,
507 So.2d 1080, 1092 n. 10 (Fla.1987) (adopting and approving trial court opinion on this issue). Consequently, §
768.72 does not apply to a claim for punitive damages in a federal civil rights suit....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 9131, 2010 WL 2507279
...is applied to determine whether a complaint states a cause of action. See, e.g., Holmes v. Bridgestone/Firestone, Inc.,
891 So.2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial court is determining if a plaintiff has made a `reasonable showing' under section
768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo."); Tiger Point Golf & Country Club v....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 9119, 2010 WL 2507051
...disregard for the rights and safety of others. Owens-Corning Fiberglas Corp. v. Ballard,
749 So.2d 483, 486 (Fla.1999) (footnote omitted). The Legislature codified the definition of "gross negligence" (as a predicate for a punitive damages claim) in section
768.72(2)(b), Florida Statutes (2007): "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct....
CopyCited 8 times | Published | District Court, M.D. Florida | 1993 U.S. Dist. LEXIS 10534, 1993 WL 287397
...227,
9 L.Ed.2d 222 (1962)] (emphasis added). This Court has the discretion to deny leave to amend when it finds that permitting the amendment would be futile. In the instant case, there is insufficient evidence in the record to comply with Florida Statute Section
768.72, which provides that "no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record ......
...' actions in arresting Plaintiff constituted reckless indifference and callous disregard for Plaintiff's constitutional rights are not sufficient under Florida law to support a claim for punitive damages. In a previous decision, this Court held that Section
768.72 is substantive law and applies to federal civil rights claims. Marcus v. Carrasquillo,
782 F.Supp. 593 (M.D.Fla. 1992). Therefore, consistent with Section
768.72 requirements and previous rulings of this Court, Plaintiff's motion to amend the third amended complaint to include punitive damages is DENIED without prejudice to refile when supported by record evidence....
CopyCited 8 times | Published | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 2236, 2001 WL 128333
...blem.3 The Trustees also
sought a declaratory judgment requiring the Defendants to indemnify the Trustees for any adverse tax
consequences resulting from the drafting error. In addition, the Trustees sought punitive damages pursuant
to Florida Stat. § 768.72....
...required by
5
The parties also discuss in their briefs whether the actions taken by the Trustees were reasonable.
The district court did not address the issue and the record is not developed enough for us to do so either.
Florida Stat. § 768.72....
...y did not allege any facts
outside of the complaint and, alternatively, did not allege sufficient facts to support a punitive damages claim.
We disagree.
This court has held that the pleading rules set forth in Fed.R.Civ.P. 8(a)(3) preempt §
768.72's
requirement that a plaintiff must obtain leave from the court before including a prayer for punitive damages.
See Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1299 (11th Cir.1999), vacated in part,
204 F.3d 1069 (11th
Cir.2000). However, §
768.72 also has a discovery component which states that "[n]o discovery of financial
worth shall proceed until after the pleading concerning punitive damages is permitted." Fla. Stat. §
768.72.
Prior to allowing discovery of financial net worth information, Defendants argue that §
768.72 requires a
plaintiff who has made a claim for punitive damages to produce evidence or make a proffer of evidence that
shows a reasonable basis for the punitive damages claim....
...on to dismiss or a motion to strike, not a summary
judgment motion. See Will v. Systems Eng'g Consultants, Inc.,
554 So.2d 591, 592 (Fla.App. 3 Dist.1989);
see also Solis v. Calvo,
689 So.2d 366 (Fla.App. 3 Dist.1997) ("Pursuant to Florida Statute section
768.72
(1995), a punitive damage claim can be supported by a proffer of evidence....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1998 WL 870855
...1st DCA 1995). The court also did not err by striking the Dadics' claim for punitive damages, as a claim for punitive damages may not be asserted without the trial court having first determined that a factual basis for such damages exists as required by section 768.72, Florida Statutes (1997)....
CopyCited 8 times | Published | Court of Appeals for the Eleventh Circuit | 2004 U.S. App. LEXIS 16245, 2004 WL 1764111
...waiver, and or
laches.
(12) The counterclaim, in whole or in part, is barred by the statute of limitations.
(13) The demand for punitive damages set forth in the counterclaim should be stricken for
failure to comply with Fla.Stat. §768.72.
(14) The demand for trial by jury set forth in the counterclaim should be stricken based
upon a knowing and voluntary waiver of such right by Caroline Gomez.
(15) The counterclaim, in whole or in part, is barred by the doc...
CopyCited 7 times | Published | District Court, M.D. Florida | 2009 U.S. Dist. LEXIS 95921
...ral business practice by Provident to deny claims in reckless disregard for insureds' rights. Thus, Hogan pleads sufficient facts in his claims for punitive damages against Provident for the alleged statutory violations in Counts IIII. Pursuant to § 768.72, Florida Statutes, punitive damages on the common law claims under Counts IVVII require a showing of intentional misconduct or gross negligence....
..."Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. § 768.72(2)(a), Fla. Stat. "Gross negligence" means that the defendant's conduct was so reckless or *1290 wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. § 768.72(2)(b), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 14 Fla. L. Weekly 1317, 1989 Fla. App. LEXIS 2991, 1989 WL 56013
...granting the respondents' motion to compel production of certain financial statements reflecting the liabilities and net worth of the petitioners. The discovery relates to the respondents' claims for punitive damages and, accordingly, is governed by section 768.72, Florida Statutes (1987), which provides as follows: 768.72....
...The order under review is quashed, and the cause is remanded for further proceedings consistent with the views expressed herein. Certiorari granted; order quashed. NOTES [1] Respondents' argument that the petitioners "waived" the protection of the statute is not well taken. The supreme court has determined that section 768.72, Florida Statutes (1987), creates substantive rights and that the procedural provisions of the section are intertwined with the definition of those substantive rights....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2014 WL 853656, 2014 Fla. App. LEXIS 3062
...at they have the ability to comply with any order mandating production of additional documents, that portion of the order imposing a $200 a day fine until more documents are produced is quashed. 2. The amendment to allow a claim for punitive damages Section
768.72 of the Florida Statutes creates a “substantive legal right” not to be subject to a punitive damages claim until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. Simeon, Inc. v. Cox,
671 So.2d 158, 160 (Fla.1996); Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995). Thus, section
768.72(1) provides “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” 12 *525 This Court reviews an order granting a motion to amend to include a claim for punitive damages solely to determine whether the trial court conformed with the procedural requirements of section
768.72, in making the required evidentiary determination. As Globe,
658 So.2d at 519 , explains: We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section
768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section
768.72....
...ed by the claimant which would provide a reasonable basis for recovery of such damages. See Simeon,
671 So.2d at 160 (“[Ajppellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section
768.72 have not been followed.”)....
...The instant motion to amend was granted as a sanction for Defendants’ purported “willful disregard of the Court’s authority and directives” not from a determination that there was a reasonable evidentiary basis for recovery of punitive damages, as required by section 768.72....
...ions possible. The Court thus... [gjrants leave to the Plaintiffs and the complaint is hereby deemed amended by interlineation to include claims for punitive damages against the Defendants.” This does not comply with the procedural requirements of section
768.72. See Royal Caribbean Cruises, Ltd. v. Doe,
44 So.3d 230, 233 (Fla. 3d DCA 2010) (“Because there is no evidence in this record to suggest that the trial court made an evidentia-ry inquiry and/or factual determinations as *526 required by section
768.72, we grant RCCL’s petition and quash the trial court’s order granting the plaintiffs’ motion to amend their complaint to include a claim for punitive damages.”); Cypress Aviation, Inc....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1998 WL 329732
...Petitioner Norwegian Cruise Lines, ("Norwegian") seeks certiorari review from the denial of its motion to strike respondent Gregorio Zareno's ("Zareno") request for punitive damages. We grant certiorari and direct the trial court to strike Zareno's claim for punitive damages based upon failure to comply with Section 768.72, Florida Statutes (1997)....
...breach of maintenance and cure obligations. The complaint included a demand for punitive damages. Thereafter, Norwegian moved to strike the punitive damages demand on the basis that Zareno had failed to comply with state law procedures set forth in Section 768.72. Section 768.72 requires a proffer of record evidence to support a punitive damages claim and states specifically: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or...
...damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Norwegian contended that by electing the state court forum, Zareno was compelled to comply with the procedural requirements of Section 768.72 and could not subject Norwegian to financial worth discovery absent the showing of a reasonable evidentiary basis for recovery of punitive damages. Zareno responded by arguing that federal maritime law gave him the absolute right to plead punitive damages without the need to proffer record evidence. Zareno contended that Section 768.72 created a substantive condition precedent in direct conflict with federal maritime law and thus was inapplicable to federal maritime cases filed in state court....
...Exxon Shipping Co.,
984 F.2d 1270, (1st. Cir.), cert. denied,
508 U.S. 981,
113 S.Ct. 2987,
125 L.Ed.2d 682 (1993)(state law preempted only if found in direct conflict with basic maritime principles). Therefore we must determine whether the requirement in Section
768.72 of showing a reasonable basis for punitive damages contradicts substantive maritime law....
...s conduct on the part of the shipowner. See McWilliams v. Texaco, Inc.,
781 F.2d 514 (5th Cir.1986); Gaspard v. Taylor Diving & Salvage Co., Inc.,
649 F.2d 372 (5th Cir.1981). We agree with Norwegian that this substantive standard is not affected by Section
768.72. Section
768.72 does not impose additional obligations on a plaintiff who files in state court because the standards for whether or not punitive damages are recoverable remain the same. Section
768.72 only affects the screening method and timing of the claim by requiring a proffer at the complaint stage to demonstrate a reasonable basis for punitive damages before the claim may be submitted to the jury....
...ages at the complaint stage, neither conflicts with, nor adds to, substantive federal maritime standards for punitive damages. See Royal Caribbean Corp. v. Modesto,
614 So.2d 517 (Fla. 3d DCA 1992), review denied,
626 So.2d 207 (Fla.1993). Therefore Section
768.72 does apply to maritime claims filed in state courts, and a defendant may not be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable basis for *795 the punitive damages claim to be presented to the jury. See Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). Since Zareno failed to proffer an evidentiary basis for his punitive damages claim pursuant to Section
768.72, the claim must be stricken....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11418, 2016 WL 4035718
CONNER, J. The petitioners seek certiorari review from a trial court order granting the respondent’s motion for leave to, amend his complaint to seek punitive damages on a claim of defamation per se. See § 768.72, Fla....
...ny was false. The petitioners further argued that the respondent’s conclusory, self-serving statements in his affidavit were insufficient for the required proffer of evidence. The trial court entered an order simply stating the motion was granted. Section 768.72, Florida Statutes (2015), provides that a claim for punitive damages will not be permitted uhless there is a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recove...
...The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing. Notably, an evidential hearing is not required. Strasser v. Yalamanchi,
677 So.2d 22, 23 (Fla. 4th DCA 1996) (“Pursuant to section
768.72, a proffer of evidence can support a trial court’s determination.”). Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section
768.72, but not to review the sufficiency of the .evidence....
CopyCited 7 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 20410, 2003 WL 22576750
...t matter jurisdiction is patently lacking. Therefore, as a matter of fairness, Plaintiff is entitled to recover from the Defendants the actual amount of the expenses incurred as a result of the improper removal of this action"). [1] Under Fla. Stat. § 768.72, "gross negligence" means that "the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."
CopyCited 7 times | Published | District Court, M.D. Florida | 1994 U.S. Dist. LEXIS 9543, 1994 WL 371365
...motivated by evil intent or involves callous or reckless indifference to federally protected rights. Smith v. Wade,
461 U.S. 30,
103 S.Ct. 1625,
75 L.Ed.2d 632 (1983); H.C. by Hewett v. Jarrard,
786 F.2d 1080 (11th Cir.1986). Under Florida Statutes, §
768.72, the plaintiff cannot bring a claim for punitive damages unless there is record evidence of a basis for such a claim. Florida Statutes §
768.72 is substantive and can be applied by Federal District Courts....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1375, 41 Fla. L. Weekly Fed. D 321
...profits are still subject to disgorgement because the activities were efforts for which he
was duly compensated. See Pidcock,
854 F.2d at 448.
Punitive Damages
The trial court found that the Appellants did not establish a factual basis
for punitive damages. Section
768.72(2), Florida Statutes (2006), provides that "[a]
defendant may be held liable for punitive damages only if the trier of fact, based on
clear and convincing evidence, finds that the defendant was personally guilty of...
...fendant had actual knowledge of the
wrongfulness of the conduct and the high probability that injury or damage to the
claimant would result and, despite that knowledge, intentionally pursued that course of
conduct, resulting in injury or damage." § 768.72(2)(a). In turn, "gross negligence" was
defined to mean "that the defendant's conduct was so reckless or wanting in care that it
constituted a conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct." § 768.72(2)(b).
At trial, a plaintiff is required to establish the entitlement to an award of
punitive damages by clear and convincing evidence. § 768.725.
When claims for punitive damages are made, the respective
provinces of the court and jury are well defined....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1997 WL 65857
...The appellants assert four grounds for reversal. The first is the contention that the trial court erred in permitting the punitive damage claim to be submitted to the jury without first holding an evidentiary hearing. This claim is based upon Florida Statute section 768.72 (1995) which provides in part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by the Claimant which would provide a reasonable basis for recovery of such damages....
...The Court has also held that certiorari is appropriate to review whether a trial judge has complied with the procedural requirements of the section, but it is not so broad as to encompass review of the sufficiency of the evidence when the trial judge has complied with the procedural requirements of the section 768.72....
...NOTES [1] A motion to dismiss or to strike is the proper vehicle to bring the issue before the trial court. Henn v. Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991); Will v. Systems Eng'g Consultants, Inc.,
554 So.2d 591 (Fla. 3d DCA 1989). [2] Pursuant to Florida Statute section
768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 509229
...Wasserman of Muchnick, Wasserman & Dolin, Hollywood, for petitioners. Mark S. Barnett, Miami Beach, for respondents. PER CURIAM. We grant this petition for writ of certiorari and quash the trial court order denying Petitioners' motion to strike a punitive damages claim. Section 768.72, Florida Statutes, provides that "......
...for punitive damages... ." Recently, in Globe Newspaper Co. v. King,
658 So.2d 518 (Fla. 1995), the supreme court recognized that certiorari review is appropriate to determine whether the trial court has conducted the evidentiary hearing required by section
768.72 prior to authorizing a punitive damages claim, approving this court's opinion in Sports Products, Inc....
CopyCited 6 times | Published | District Court, M.D. Florida | 1990 U.S. Dist. LEXIS 13515, 1990 WL 154625
...First, defendant urges that its interpretation of the statute, which excludes punitive damages, is correct and the Magistrate's interpretation is erroneous. Second, defendant seeks to bar the punitive damages claim for failure to comply with Fla.Stat. § 768.72....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 14860, 2005 WL 2219478
...to add a claim against H & K for punitive damages. In order to recover punitive damages, the plaintiff must provide the court with "a reasonable evidentiary basis for punitive damages." Globe Newspaper Co. v. King,
658 So.2d 518, 520 (Fla.1995); see §
768.72, Fla....
CopyCited 6 times | Published | District Court, M.D. Florida | 1991 U.S. Dist. LEXIS 12954, 1991 WL 183331
...ion to dismiss. As such, Defendants' motion to dismiss as to this issue is denied. 4. Defendants assert that Plaintiffs have failed to proffer any evidence that would provide a reasonable basis for recovery of punitive damages under Florida Statutes section 768.72 (1989), and therefore the State Tort Punitive Damages claims should be dismissed. Plaintiffs respond that they have met the strict requirement of section 768.72, and Florida courts have upheld complaints containing allegations of a 768.72 violation with little more than a statement of entitlement, especially where malice is an essential element of the tort, such as with false arrest, malicious prosecution, assault and battery....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 12856, 2009 WL 2777094
...the home delivered to the Hartleys; and that such a procedure was a common practice. Wayne Frier, however, argues that the Hartleys mischaracterize the deposition testimony of Roberson. To plead a claim for punitive damages, a party must comply with section
768.72, Florida Statutes. Leavins v. Crystal,
3 So.3d 1270 (Fla. 1st DCA 2009); Estate of Despain v. Avante Group, Inc.,
900 So.2d 637 (Fla. 5th DCA 2005). Section
768.72(1) provides that in any civil action no claim for punitive damages shall be permitted "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Section
768.72(2) provides that after a claim for punitive damages is made, a defendant may be held liable for those damages only if the trier of fact finds based on clear and convincing evidence that defendant was personally guilty of intentional misconduct or gross negligence. In the case of an employer, a principal, corporation or other legal entity, section *1009
768.72(3) provides that punitive damages may be imposed for the conduct of an employee if the employee was personally guilty of intentional misconduct or gross negligence, and (a) the employer actively and knowingly participated in such conduct; (b)...
...ble basis for the recovery of punitive damages. The evidence could support a finding that the management of Wayne Frier participated in the substitution of a mobile home without the consent of the buyer or condoned or consented to such practice. See § 768.72(3)(a) and (b), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 13880, 2001 WL 1174300
...tely take issue with the sufficiency of the evidence that was proffered in support of the punitive damages claim. An appellate court has certiorari jurisdiction to review only whether the trial court has conformed with the procedural requirements of section 768.72, Florida Statutes, in allowing a punitive damages claim; the court does not have certiorari jurisdiction to determine whether there is sufficient evidence to allow a punitive claim....
...Paine,
727 So.2d 1075 (Fla. 4th DCA 1999) (trial court departed from essential requirements of law by failing to dismiss amended complaint claiming punitive damages filed without first obtaining leave of court). The trial court followed the procedural requirements of section
768.72, Florida Statutes (2000)....
...I am compelled to concur because of Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). However, I agree with Justice Anstead's dissent in Globe that certiorari should be available to review whether the plaintiff has established a preliminary evidentiary basis for a punitive damages claim. See §
768.72, Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1996 WL 587878
...of certiorari were not appropriate to review orders denying motions to dismiss or strike claims for punitive damages. The court revisited the issue in Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), in light of the procedural requirements of section
768.72, Florida Statutes, which requires a trial court to make an affirmative finding that there is a reasonable evidentiary basis for punitive damages before that claim can go to the jury....
CopyCited 6 times | Published | District Court, M.D. Florida | 1992 U.S. Dist. LEXIS 7755, 59 Empl. Prac. Dec. (CCH) 41, 693, 59 Fair Empl. Prac. Cas. (BNA) 143, 1992 WL 124457
...Hanley, Thompson, Sizemore & Gonzalez, Tampa, Fla., for defendants. ORDER ON MOTIONS KOVACHEVICH, District Judge. This cause is before the Court on Defendants' motion to strike, filed on July 15, 1991, Plaintiff's request for punitive damages and a jury trial pursuant to Florida Statutes § 768.72, and in the alternative compensatory damages under Title VII of the Civil Rights Act of 1991, (42 U.S.C....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 2218, 2005 WL 430346
...Specifically, OneBeacon contends that the trial court erred by allowing Delta Fire Sprinklers, Inc. to assert a bad faith claim against it prior to a coverage determination, and by allowing Delta Fire to assert a punitive damages claim without first complying with the requirements of section 768.72, Florida Statutes (2001)....
...ture from the essential requirements of law. Our disposition of the first issue renders moot the propriety of the assertion of a punitive damage claim. CERTIORARI GRANTED; ORDER QUASHED. SHARP, W. and TORPY, JJ., concur. NOTES [1] In pertinent part, section 768.72(1), Florida Statutes (2001), provides: 768.72....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 WL 383009
...We also conclude that appellee failed to establish, by proffer or otherwise, a reasonable factual basis upon which to predicate a right to the recovery of punitive damages. Accordingly, it was not error for the trial court to refuse to permit appellee to amend his complaint to add a demand for punitive damages. See § 768.72, Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1041839
...punitive damages claim arising from a cause of action for an intentional tort such as fraudeven when the fraud is related to a contractual relationshipis a far different matter. Punitive damages generally are available for intentional torts. See § 768.72(2), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2003 WL 1722811
...The Florida standard *668 jury instruction on punitive damages was given in this case. That instruction authorizes a punitive damage award where the defendant is guilty of either intentional misconduct or gross negligence. See Standard Jury Instructions Civil Cases, No. 96-1,
689 So.2d 1042, 1044 (Fla.1997); §
768.72(2), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14590, 2009 WL 3103853
...ith certain claims. [1] See, e.g., Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). Specifically, the supreme court approved of the grant of certiorari relief to review an order denying a petitioners request to add punitive damages pursuant to section
768.72 in some instances, stating: In Kraft General Foods, Inc....
...Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991) (financial worth discovery), and Sports Products, Inc. v. Estate of Inalien,
658 So.2d 1010, (Fla. 4th DCA 1994), review dismissed,
659 So.2d 1088 (Fla.1995), the district court ruled that the procedure mandated by section
768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section
768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section
768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section
768.72 to be free of punitive damages allegations in a *144 complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section
768.72 have not been followed....
CopyCited 5 times | Published | District Court, S.D. Florida | 1998 U.S. Dist. LEXIS 8479, 1998 WL 310718
...Plaintiffs included claims for negligence, strict product liability and breach of express and implied warranties of fitness and merchantability. On March 6, 1998, plaintiffs filed a motion for leave to amend their complaint to add a claim for punitive damages pursuant to Fla. Stat. § 768.72....
...by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... 28 U.S.C. § 1446(b) (1994). [4] Plaintiff predicates this argument on Fla. Stat. § 768.72, which requires parties to seek leave to amend prior to adding a claim for punitive damages. In construing this statute, this Court is in agreement with the majority of judges in the Southern District of Florida that have held that Fla. Stat. § 768.72 is a pleading statute inapplicable to Florida state law claims litigated in federal court....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 2287, 1992 WL 42456
...l distress against Ivey, defamation by employee Williams, and defamation by Ivey based on statements of Williams and employee Kirsten Aalto; and that the trial court erred in holding prior to trial that appellants had not made a proper showing under Section 768.72, Florida Statutes (1989), that they were entitled to punitive damages against the corporate appellee....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2005 WL 700953
...Crown Eurocars, Inc.,
654 So.2d 1158 (Fla.1995). Appellant asserts the trial court reversibly erred in refusing to allow it the opportunity to amend the complaint by adding a claim for punitive damages, because the court applied the wrong legal standard. It points out that the court relied on section
768.72(3), Florida Statutes (2000), which provides that an employer, in order to be found vicariously liable for the egregious conduct of an employee, must have actual knowledge of the employee's conduct, and the court concluded the evidence did not support such finding. The estate contends the court's legal conclusion was incorrect because the provisions of section
768.72(3) are specifically made inapplicable to RRA claims by section
768.735(1), Florida Statutes (2000)....
CopyCited 5 times | Published | District Court, M.D. Florida | 2015 U.S. Dist. LEXIS 81318, 2015 WL 3866872
...11-60569-CIV,
2011 WL 4527804 , at *6 (S.D.Fla. Sept. 28, 2011); but see Alecca,
2014 WL 2987702 , at *1 (finding unpersuasive the plaintiffs argument 'that behavior that had no excuse was equated with malicious intent).' As Bank of America points out, however, Fla. Stat. §
768.72 was amended in 1999, subsequent to the decision in Story , to provide a new standard for punitive damages. Now, “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. §
768.72 (2)....
...the officers, directors, or managers of the corporation knowingly condoned, ratified, or consented to the conduct; or (3) the corporation engaged in conduct that constituted gross negligence and that contributed to the loss suffered by the claimant. § 768.72(3)....
...“‘Intentional misconduct’ means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that- injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” § 768.72(2)(a). “ ‘Gross negligence’ means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” § 768.72(2)(b)....
...Barring the application, of certain exceptions not present here, any punitive damages award is limited to the greater of: “Three times the amount of compensatory damages awarded to each claimant entitled thereto” or $500,000. §
768.73(1). Those cases that have applied the Story standard subsequent to the amendment to §
768.72 have not addressed §
768.72. See, e.g., Montgomery,
2008 WL 3540374 , at *10. The Goodins contend that the punitive damages provisions of §
768.72 et seq....
...Thus, the Eleventh Circuit has assumed that the punitive damages cap in Fla. Stat. §
768.73 (1)(a) applies to FCCPA cases. McDaniel v. Fifth Third Bank, 568 Fed.Appx. 729, 732 (11th Cir.2014). A number of other courts have also assumed that the procedural requirements in §
768.72 would apply to FCCPA actions -if they did not conflict with the Federal Rules of Civil Procedure, See, e.g., Brook v....
...06-20953-CIV,
2008 WL 5428179 , at *25-26 (S.D.Fla. Oct. 10, 2008) report and recommendation adopted in part, overruled in part sub nom. City of St. Petersburg v. Dayco Products, Inc., No. 06-20953,
2008 WL 5428172 .(SD.Fla. Dec. 30, 2008) (applying §
768.72’s provisions instead of the common law standard laid out in White Const....
...Indeed, the punitive damages provisions are plainly applicable to other causes of action arising outside of the "Torts” title be *1215 cause Fla. Stat. §
400.023 , in the "Public Health” title of the Florida code, required an express exemption from coverage under ' §
768.72(2)-(4)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 9228, 2016 WL 3265754
...(“TRG”) seeks certiorari review of
the trial court’s order granting Respondent Michael Berezovsky’s motion for leave
to add a claim for punitive damages against TRG (the “Motion”).
Because our standard of review is limited to whether the trial court
conformed to the procedural requirements of section 768.72 of the Florida Statutes,
we are compelled to deny TRG’s petition.
I....
...the Motion. The
trial court’s order merely states the conclusion that: “Plaintiff has provided a
reasonable showing by proffer and/or by evidence in the record which provides a
reasonable basis for recovery of such damages, in accordance with Section
768.72(1), Florida Statutes.”
TRG timely filed the instant petition seeking certiorari review of the trial
court’s order....
...TRG argues that Berezovsky’s breach of contract
claim and tort claims arise from the same conduct; thus, Berezovsky may not
recover identical damages in both tort and contract. Ghodrati v. Miami Paneling
Corp.,
770 So. 2d 181 (Fla. 3d DCA 2000).
5
section
768.72(3) of the Florida Statutes to assert a punitive damages claim against
a legal entity).
After oral argument, we ordered the parties to provide supplemental briefing
on a different issue: whether the torts alleged in Berezovsky...
...of its
contract with Berezovsky.
II. Standard of Review
Certiorari is the appropriate remedy to challenge a trial court’s order
allowing a punitive damages claim to proceed when the essential requirements of
law, as embodied in section 768.72, have not been followed....
...al
briefing order is simply not subject to certiorari review. As stated previously, on
6
certiorari review our inquiry is limited to whether the trial court conformed with
the procedural requirements of section 768.72....
...Fortune Cookie Restaurant, Inc.,
490 So.
2d 210 (Fla. 3d DCA 1986), this Court entertained a petition for certiorari to
review an order denying a motion to dismiss a claim for punitive damages based
on Florida’s independent tort rule, this decision predates both section
768.72 and
the Florida Supreme Court’s determination that certiorari jurisdiction is reserved
for orders granting leave to plead punitive damages claims when the trial court has
failed to comply with the statute’s procedural requirements....
...the trial court’s order on the basis initially argued by TRG: that Berezovsky had
7
failed to make the required, reasonable showing that would subject TRG, a legal
entity, to a punitive damages claim. While section 768.72(3) requires a specific
evidentiary showing that TRG, a legal entity, either (i) actively or knowingly
participated in intentional misconduct, (ii) ratified such misconduct, or, (iii) itself
engaged in conduct that constituted gross...
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1998 WL 299658
...laim for punitive damages. In Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), the court held: "We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section
768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section
768.72....
...damages." [emphasis supplied]
658 So.2d at 519. As the court later explained in Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996): "certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section
768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section
768.72."
671 So.2d at 160; see also Eugene J....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2004 WL 1620851
...See generally Murphy White Dairy, Inc. v. J.F. Simmons,
405 So.2d 298 (Fla. 4th DCA 1981). With regard to the orders granting leave to amend, we decline to exercise jurisdiction since it has not been alleged that the trial court failed to adhere to the procedural requirements of section
768.72, Florida Statutes (2002)....
CopyCited 5 times | Published | District Court, M.D. Florida | 1997 U.S. Dist. LEXIS 16558, 1997 WL 404019
...Accordingly, the Court denies the motion as to Counts I through IV. Counts V through VII arise under the Florida Civil Rights Act. Florida Statute §
760.11(5) specifically provides for punitive damages. Moreover, the section specifically states that the pleading requirements of Florida Statute §§
768.72 and
768.73 do not apply to claims arising under the Florida Civil Rights Act. Accordingly, the Court denies the motion as to Counts V through VII. Counts VIII through XI aver supplemental state law claims and, therefore, are subject to the provisions of Florida Statute §
768.72. Pursuant to section
768.72, "no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." A review of the file reveals that Plaintiff has not complied with this section....
CopyCited 5 times | Published | District Court, S.D. Florida | 1999 U.S. Dist. LEXIS 5902, 1999 WL 242419
...t can only have been conferred by Plaintiffs' sales force, such as commissions, Plaintiffs have met the exceedingly low threshold for pleading a claim. [8] Accordingly, the claim should not be dismissed. *1371 V. The Pleading Provisions of Fla.Stat. § 768.72 Do Not Apply To State Claims Being Litigated In Federal Court. Defendant's final argument is that Plaintiffs' claim for punitive damages should be barred because Plaintiffs failed to comply with Fla.Stat. § 768.72 in pleading a claim for punitive damages. Section 768.72 provides that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.......
...likely to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. The courts in the Southern District are split regarding whether § 768.72 applies to litigants pleading punitive damages claims under Florida law in federal court....
...If there is a conflict, the Federal Rules must apply unless there is no justification in the Constitution or federal law. If no such conflict exists, then the Court applies a conventional Erie analysis in order to prevent forum shopping. This Court agrees with the majority of judges in the Southern District in finding that § 768.72 is not applicable to Plaintiffs....
...In reaching this holding, this Court is persuaded by the articulate and detailed analysis contained in Judge Ryskamp's opinion in Tutor Time Child Care Systems, Inc. v. Franks Investment Group, Inc.,
966 F.Supp. 1188 (S.D.Fla.1997). In Tutor Time, the court undertook an analysis to determine if §
768.72 conflicted with any federal rule, namely Fed.R.Civ.P....
...The court found that the state statute conflicted with both rules. Id. at 1190. First, with respect to Rule 8, the court held that any state statute "imposing a pleading requirement stricter than that of Rule 8 conflicts with the Federal Rules." Id. at 1191. Likewise, the Tutor Time court found that § 768.72 conflicted with Rule 9....
...The *1372 Court found that there was no reason to doubt the constitutionality of Rules 8 or 9. This Court adopts the Tutor Time analysis and agrees with the majority of courts in the Southern District in holding that the pleading requirements of Fla.Stat. § 768.72 are not applicable to federal diversity litigants....
...Accordingly, the Court finds that this is a distinction without a difference, and thus, the Motion to Dismiss the Injunctive Relief Count should be denied. [9] The Court notes that there is unanimity among Southern District Judges regarding the discovery portion of § 768.72....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 1442, 2008 WL 313606
...ustain the imposition of punitive damages on the ground that the defendants have presented no specific argument showing why the evidence supporting the intentional misrepresentation theory of liability was an insufficient basis for punitive damages. Section 768.72(2), Florida Statutes (2001), provides for the award of punitive damages for "intentional misconduct or gross negligence." A finding of such "intentional misconduct or gross negligence" must be "based on clear and convincing evidence ......
...defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage." § 768.72(2)(a)....
...For an award of punitive damages based on "gross negligence," it must be shown "that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." § 768.72(2)(b)....
...onal misconduct or both. To sustain the jury's verdict we need only conclude that there was sufficient evidence as a matter of law to establish the existence of either "gross negligence" *633 or "intentional misconduct" as those terms are defined in section 768.72(2)....
...Remington. With respect to this basis for the punitive damage awards, the defendants assert without elaboration that "the evidence submitted by Chau in support of her intentional misrepresentation claim simply does not rise to the level needed under § 768.72." In making their argument, the defendants do not articulate any specific reason that any of the elements required for a finding of "intentional misconduct" are lacking in the evidence presented by the plaintiff in this case....
...*634 In short, the defendants have not presented any basis for reversing the punitive damage awards. IV. Conclusion The judgment against the defendants is affirmed. Affirmed. SILBERMAN, J., Concurs. SCHOONOVER, JACK R., Senior Judge, Dissents. NOTES [1] Section 768.72(3) sets forth the circumstance in which "punitive damages may be imposed [on an employer, principal, or corporation] for the conduct of an employee or agent." Here, the defendants present no argument that the requirements of section 768.72(3) were unsatisfied....
...erstate Dev. Corp. v. Ablanedo,
511 So.2d 536, 539 (Fla. 1987); see also Azar v. Richardson Greenshields Secs. Inc.,
528 So.2d 1266, 1269-70 (Fla. 2d DCA 1988). It is questionable, however, whether under the definition of "intentional misconduct" in section
768.72(2) every actionable instance of fraud or intentional misrepresentation will constitute a basis for the award of punitive damages....
...But in some circumstances such as those present in the instant casean intentional misrepresentation simply exposes the victim who relies on it to a risk of harm and the misrepresentation is not intended to cause the specific harm ultimately suffered by the victim. Under the definition of "intentional misconduct" in section 768.72(2)(a), a salient question with respect to such an instance of intentional misrepresentation is whether the party responsible for the misrepresentation had "actual knowledge" of the "high probability that injury or damage to the claiman...
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1998 WL 44582
...to strike a punitive damages claim. We have jurisdiction. See Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995) (district court *1011 of appeal has certiorari jurisdiction to review whether the trial court followed the procedural requirements of section
768.72, Florida Statutes)....
...In the complaint, Hinn sought both compensatory and punitive damages. WFTV filed a motion to strike the punitive damages, which the trial court denied after a hearing. Before a claim for punitive damages is allowed, a plaintiff must first comply with section 768.72, Florida Statutes (1997)....
...ive damages can be asserted. See Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996). Section
540.08(2), Florida Statutes (1997) authorizes recovery of punitive damages, but does not provide any procedure by which such claim may be pled. Hinn asserts that section
768.72 is not applicable to a cause of action under section
540.08. We disagree, and find that sections
540.08 and
768.72 should be read together. Although section
540.08 allows for the recovery of punitive damages, the procedure enacted by the legislature in section
768.72 must be followed....
...for punitive damages in that WFTV admitted in its answer that it continued to run the advertisement after being requested to stop. Evidence or argument presented at the hearing on the motion to strike would not satisfy the procedural requirements of section
768.72, as construed by the supreme court in Simeon, Inc. See also Mayer v. Frank,
659 So.2d 1254 (Fla. 4th DCA 1995) (procedure in section
768.72 must be strictly enforced, although in some cases the result might elevate form over substance)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2013 WL 6690683, 2013 Fla. App. LEXIS 20136
...4th DCA 2005). Upon a review of the record, we conclude that Mrs. Hoy failed to make “a reasonable showing by evidence in the record or proffered by [Mrs. Hoy] which would provide a reasonable basis for the recovery of [punitive] damages” as required by section 768.72(1), Florida Statutes (2003)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 21308, 2012 WL 6177408
...Coronado Condominium Association, Inc.,, petitions for a writ of certiorari quashing a circuit court order granting Mr. Rocque La Corte’s motion to amend to add a claim for punitive damages. Finding a failure by La Corte to comply with the procedure applicable to employers and corporate defendants under section 768.72(3), Florida Statutes (2012), we grant the petition and quash the order....
...condoned, ratified, or consented to such conduct; or (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant. § 768.72(3), Fla....
...ed misconduct of the individual property managers and construction workers— who were not, on the record before us, officers or members of the board of directors of the Association — is, without more, misconduct of the Association for purposes of section 768.72....
...ent or gross negligence of, the Association as an entity. La Corte’s pleadings and arguments apply the common law rules of agency and vicarious liability rather than the specific and heightened rules of imposition established by the Legislature in section 768.72(3)....
...012, 3 granting La Corte’s verified motion for leave to amend to plead punitive damages. . In the case below, La Corte did not sue the individual property managers or the contractor repairing the balconies: the Association is the sole defendant. . Section 768.72(3)(b) applies to “officers, directors, or managers of the employer, principal, corporation, or other legal entity.” The context makes it clear that this is a reference to those in control of the entity (not, as here, those in contr...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2013 WL 1316383, 2013 Fla. App. LEXIS 5384
...Savage,
509 So.2d 1097 (Fla.1987) (pretrial certiorari relief in civil cases is an “extraordinary remedy” that “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”), superseded by statute on other grounds, §
768.72, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
order, the court acknowledged that, pursuant to section
768.72(1), Florida Statutes, Plaintiffs needed to
CopyCited 4 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 101, 2016 Fla. LEXIS 554, 2016 WL 1065605
...In fact, a plaintiff cannot even
include a demand for punitive damages in the initial complaint and is allowed to
add a request for punitive damages only if the evidence establishes a right to claim
punitive damages by a “reasonable showing by evidence in the record,” pursuant to
section 768.72(1), Florida Statutes.
-3-
Third, the legal standard for establishing entitlement to punitive damages—
that is, that the plaintiff must prove by clear and convincing evidence that t...
...iability, fraud
by concealment, and conspiracy to commit fraud.
Approximately a year prior to trial, Soffer filed a motion to amend her
complaint to add a demand for punitive damages pursuant to Florida Rule of Civil
Procedure 1.190(f) and section 768.72, Florida Statutes....
...principles regarding amendments to pleadings, the Legislature has separately
- 23 -
addressed the right to recover punitive damages—not through the enactment of a
separate statute of limitation, but through a separate statutory scheme in section
768.72. Section 768.72(1), titled “Pleading in civil actions; claim for punitive
damages,” states in pertinent part:
In any civil action, no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in t...
...of evidence which
appears reasonably calculated to lead to admissible evidence on the
issue of punitive damages. No discovery of financial worth shall
proceed until after the pleading concerning punitive damages is
permitted.
Section 768.72(1) reveals a clear legislative intent for defendants to be free from
claims for punitive damages until an evidentiary basis exists....
...Consistent with this Court’s direction in Engle,
Soffer brought her own individual complaint, raising four causes of action that
were all approved in Engle. After conducting discovery, Soffer sought to amend
- 25 -
her complaint, pursuant to section 768.72(1), to request punitive damages for those
timely raised causes of action....
... The legal standard for establishing entitlement to punitive damages does not
vary depending on the underlying legal theory. The standard jury instructions on
punitive damages mirror the statutory directive as to proof of punitive damages as
set forth in section 768.72(2):
(2) A defendant may be held liable for punitive damages only
if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross
negligence....
...We
emphasize that Soffer still must satisfy the statutory requirements to demonstrate
entitlement to punitive damages under these theories, including that the trier of fact
must find, based on clear and convincing evidence, that R.J. Reynolds was
“personally guilty of intentional misconduct or gross negligence.” § 768.72(2),
Fla....
CopyCited 4 times | Published | District Court, N.D. Florida | 1998 U.S. Dist. LEXIS 8948, 1998 WL 307441
...us, malicious, wanton, and willful disregard for the rights and safety of Lorine Alexander." (Amended Complaint, doc. 48, ¶ 17). The defendants have moved to dismiss plaintiff's claim for punitive damages for failure to comply with Florida Statutes Section 768.72, which provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...First, the court must consider whether the state rule directly conflicts with the federal rule. If it does, the federal rule must be followed unless (1) it is beyond the scope of the Rules Enabling Act, 28 U.S.C. § 2072, or (2) it is otherwise unconstitutional. It is clear that § 768.72 directly conflicts with Rule 8(a)(2). The Southern District of Florida recently faced this precise issue and found that § 768.72 "directly and irreconcilably" conflicted with Federal Rule of Civil Procedure 8(a)(2)....
...Plantation Square Assoc.,
761 F.Supp. 1569, 1574 (S.D.Fla.1991). The court stated: Rule 8(a)(2) provides that a plaintiff's complaint establishes a claim by setting forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Section
768.72 obviously requires much more than a mere "short and plain statement" for establishing a punitive damage claim in that it necessitates 1) the presentation of evidence in the record or proffered by Plaintiff to demonstrate that there exists a reasonable basis for a punitive damage claim and 2) court review and determination that Plaintiff's evidentiary proffer meets the statute's "reasonable basis" standard. * * * * * * To apply §
768.72 in federal courts would, in essence, convert the pleading of punitive damages from the requirement of mere notice to a quasi-adjudication of plaintiff's claim, requiring evidentiary inquiry and discovery, argumentation of counsel, and a judicial ruling. Such an application would subvert not only the intent of Rule 8, but the entire system of the Federal Rules. Id. This court agrees with its sister court that §
768.72 directly conflicts with Federal Rule 8, and thus now turns to the second line of analysis, whether the Federal Rule 8(a)(2) goes beyond the Rules Enabling Act or is otherwise unconstitutional....
...dure, and does not purport to create substantive rights on its face. Subsection (b), however, requires that the Rule not abridge, enlarge or modify any substantive right. The question in this case, therefore, is whether, by preventing application of §
768.72, Federal Rule 8(a)(2) abridges or modifies any substantive right. Section
768.72 did not create any substantive rights on its own. Both before and after §
768.72 was passed [1] , the standard for *1293 proving punitive damages in Florida remained the same. The plaintiff needs to show the same level of fraudulent, malicious or wanton conduct as was always required. See, e.g., Wackenhut Corp. v. Canty,
359 So.2d 430, 435 (Fla.1978). Thus, Section
768.72 merely added a pleading requirement to Florida punitive damages claims....
...Since the section created no independent substantive claims, preventing the section's application in federal court does not abridge, enlarge or modify any substantive right. Moreover, no argument has ever been raised that Federal Rule 8(a)(2) is unconstitutional. Federal Rule 8(a)(2) thus directly conflicts with § 768.72 and is not beyond the Rules Enabling Act or unconstitutional. As a result, under Hanna, Section 768.72 must yield to Federal Rule of Civil Procedure 8(a)(2). Accordingly, it is hereby ORDERED AND ADJUDGED: (1) Defendant's Motion to Strike Count III, part of doc. 41, is DENIED. NOTES [1] Section 768.72 was passed as § 51 of the Tort Reform and Insurance Act of 1986, Chapter 86-
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2008 WL 2435576
...and breach of fiduciary duties. The complaint contained a claim for wrongful death and an alternative claim for injuries not resulting in death. At least at this point, Ms. Shotts has not sought to amend the complaint to allege punitive damages. See § 768.72, Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1994 WL 316334
...Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991) (en banc) in concluding notwithstanding Martin-Johnson, Inc. v. Savage,
509 So.2d 1097 (Fla. 1987), which did not consider the statute that an order denying a motion to strike a punitive damages claim as unjustified under section
768.72, Florida Statutes (1991) is reviewable by certiorari....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1873093
...Meeks, as personal representative of the Estate of Mary Meeks Young (the plaintiff), to include a claim for punitive damages. We have jurisdiction, but our scope of review is limited to a determination of whether the trial court adhered to the procedural requirements associated with section 768.72, Florida Statutes (1999)....
...The trial judge indicated that he did not need any further response on this issue, and defense counsel did not request any additional opportunity to respond. The trial judge did not sign the order until mid-January. In the order, the trial court recites section 768.72: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." The order contains proper descriptions of the standards for punitive damages and discusses the content of the exhibits. In this certiorari proceeding, Cambridge Convalescent Center argues that the trial court violated the procedural requirements for section 768.72 by conducting the hearing without requiring the plaintiff to amend her motion to allege in greater detail the content of the exhibits....
...that it failed to "state with particularity the grounds therefore...." Defendants further argued that they should be entitled to receive Plaintiff's Proffer thirty days before the Plaintiff's Motion to Amend was heard. Unfortunately, Florida Statute § 768.72 and the Rules of Civil Procedure do not provide guidance as to the procedural manner in which punitive damage proffers will take place....
...d line citations to depositions, testimony, and affidavits, to be filed and served in advance of the hearing so that the Defendant has a reasonable opportunity to respond. Given the potential for lengthy, complex, and voluminous proffers pursuant to § 768.72 and the frequency of these proffers, it may be helpful if the Florida Bar Committee on Rules of Civil Procedure consider drafting a proposed rule for consideration by the Supreme Court which would afford a reasonable and orderly procedure for the presentation and consideration of punitive damage proffers....
...No rule requires that the "reasonable showing" be filed in writing or that it be filed like an affidavit in support of summary judgment. See Fla.R.Civ.P. 1.510. Although Globe Newspaper gives us the power in a certiorari proceeding to enforce the procedures associated with section 768.72, the truth is that there are very few established procedures....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 20438, 2014 WL 7202971
...raises a genuine issue as to whether Mr. Patel knew or should have known he was selling alcohol to a minor. The trial court also erred in denying the appellants’ motion for leave to file an amended complaint to add a claim for punitive damages. 6 Section 768.72, Florida Statutes (2014), provides in part: (1)In any civil action, no claim for punitive damages shall be permitted unless there....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1996 Fla. App. LEXIS 8833, 1996 WL 464168
...ly entered by the lower court in favor of Potter. After the summary judgment hearing, respondents moved for discovery of Potter's financial worth. Potter objected, saying that the respondents had not complied with *473 the procedural requirements of section 768.72, Florida Statutes (1995), which has recently been explained by the Florida Supreme Court in Simeon, Inc....
CopyCited 4 times | Published | District Court, S.D. Florida | 1998 U.S. Dist. LEXIS 13284, 1998 WL 546959
...De la Torre brings his Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Banco Central and de la Torre jointly move to strike pursuant to rules 12(b)(6) and 12(f), 28 U.S.C. § 1330(a), 28 U.S.C. § 1602 et seq., and section 768.72 of the Florida Statutes....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14074, 2015 WL 5613369
...Angelo of Angelo & Banta, P.A., Fort
Lauderdale, for respondent.
PER CURIAM.
Petitioner, Petri Positive Pest Control, Inc. (Petri), seeks certiorari relief
from a November 12, 2014 order granting respondent CCM Condominium
Association, Inc.’s (CCM) motion for leave to assert a punitive damages
claim. See § 768.72, Fla. Stat. (2014). Certiorari review is available to
determine whether a trial court has complied with the procedural
requirements of section 768.72, but not the sufficiency of the evidence.
See Globe Newspaper Co....
...2d 518, 520 (Fla. 1995).
Although the trial court held a hearing on the matter, neither the
court’s verbal comments nor written order indicate whether it found that
CCM demonstrated a reasonable basis for seeking punitive damages.
“[W]e read section 768.72 as creating a positive legal right in a party not
to be subjected to financial worth discovery until the trial court has first
made an affirmative finding that there is a reasonable evidentiary basis for
the punitive damages claim to go to the jury.” Henn v....
CopyCited 3 times | Published | District Court, M.D. Florida | 1993 U.S. Dist. LEXIS 17037, 63 Fair Empl. Prac. Cas. (BNA) 762, 1993 WL 502551
...Motion to Strike The overwhelming public policy of the state of Florida is against sexual harassment. Florida law governs the issue of punitive damages as to state law claims. Litman v. Massachusetts Mut. Life Ins. Co.,
791 F.2d 855, 856 (11th Cir.1986), vacated on other grounds
798 F.2d 1355 (11th Cir.1986). Section
768.72, Florida Statutes, prohibits a claim for punitive damages "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Dah Chong Hong, Ltd., v....
CopyCited 3 times | Published | District Court, M.D. Florida | 1997 U.S. Dist. LEXIS 13339, 1997 WL 298917
...of the state law claims. See 28 U.S.C. § 1652. The Plaintiffs allege entitlement to punitive damages as part of their state law causes of action. The Defendants have moved (Docs. 7 and 13) to dismiss or strike those allegations based upon Fla.Stat. § 768.72, et seq. which establish special requirements regarding pleading, discovery procedures and the measure or amount of punitive damages recoverable under Florida law. [2] Of immediate concern is that part of § 768.72 which prohibits any allegation of punitive damages until permitted by the court after a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." The iss...
...Before undertaking a comparison between the Florida statute and the Federal Rules of Civil Procedure in order to determine whether there is, or is not, a direct collision between them, it is appropriate and instructive to be aware of both the history of Fla.Stat. § 768.72 and the statutory context and framework within which it exists (discussed in more detail, infra )....
...ure and disbursement, of punitive damage awards. See Smith v. Dep't of Insurance,
507 So.2d 1080, 1092 n. 10 (Fla.1987). Indeed, as a part of the Florida Tort Reform and Insurance Act of 1986, the provisions regarding punitive damages (codified as §§
768.72 and
768.73) were only one feature of an even broader statutory scheme addressing damages in general....
...Looking forward to the twin aims of Erie, therefore, it *1153 is clearly in the interest of those objectives to give full effect to the Florida statutory scheme in adjudicating state law claims if it is possible to do so within the constraints of existing law. A. Fla.Stat. § 768.72 and the Federal Rules Turning, then, to the first prong of the Hanna analysis, the Court must inquire whether Fla.Stat. § 768.72 directly conflicts with a federal rule or statute....
...Rather, the rule requires only that when a claim for relief is pleaded, the pleading need only contain a short and plain statement showing the entitlement and a demand for judgment. [8] *1154 Thus, the state statute and the federal rule are capable of harmonious coexistence. Fla. Stat. § 768.72 bars the prosecution, and therefore the pleading, of a claim for punitive damages until the relevant threshold showing has been made....
...No conflict between the Florida statute and Rule 8(a) appears to exist and the need for further inquiry under Hanna is therefore obviated. 2. Rule 9(g) Rule 9(g) requires that when special damages are claimed, they shall be specifically stated in the relevant pleading. It is argued that Fla.Stat. § 768.72 conflicts with this rule because all the rule would require concerning punitive damages is that such damages be specifically stated....
...titlement may be pleaded. See Al-Site,
842 F.Supp. at 512; Plantation Square,
761 F.Supp. at 1573. The lack of a timing provision in Rule 9(g) read in light of the liberal amendment provisions of Rule 15 compels the conclusion that the Rule 9(g) and §
768.72 "can exist side by side ... each controlling its own intended sphere of coverage without conflict." Walker,
446 U.S. at 752,
100 S.Ct. at 1986. B. Fla.Stat. §
768.72 and Erie's Twin Aims Absent a collision between a federal rule or statute and the applicable state law, the Court is left to make the choice of state law with reference to the policies driving the Erie rule....
...f the litigation are problematic only when they would encourage forum shopping or result in the inequitable administration of the laws. Hanna,
380 U.S. at 468,
85 S.Ct. at 1142. 1. Inequitable Administration of the Law The failure to apply Fla.Stat. §
768.72, in my opinion, works an inequitable administration of law of the type that strikes at the heart of the policies underlying the Erie doctrine. As previously noted, Fla.Stat. §
768.72 was part of a substantive tort reform package, one of the objects of which was to create a positive legal right on the part of those sued in tort under Florida law to be free from punitive damages claims absent a threshold judicial determination of a reasonable basis for their assertion. The conclusion that §
768.72 creates a substantive legal right in any party who is a target of a claim for punitive damages rests upon an examination of the legislative history and judicial construction of the statute....
...economic value, except on a purely arbitrary basis" and sought to promote "a rational basis for determining damages for noneconomic losses." ch. 86-160, Preamble. This policy interest, as it applies to punitive damages, became concrete in Fla.Stat. § 768.72 the statute in question here and Fla.Stat....
...herwise, 35 percent of the award is payable to the general revenue fund. Fla.Stat. §
768.73(1)(c)(2). When read contemporaneously with §
768.73, and in light of the Florida Tort Reform and Insurance Act as a whole, it becomes readily apparent that §
768.72 is not simply a minor adjustment to the state's procedural rules concerning pleading and discovery; rather, §
768.72 is part of a statutory device directed at reducing the in terrorem effect and the expense of litigating cases in which "throw away" punitive damages claims are made as an added inducement to settle before the pleader has developed any evidentiary basis for the assertion. The punitive damages statutes are thus a part of a broader legislative scheme of tort and insurance reform. [13] ch. 86-160, Preamble. In short, Fla.Stat. §
768.72 represents far more than a minor procedural variation it represents a means of achieving a substantive legislative goal....
...Dep't of Insurance,
507 So.2d 1080, 1092 (1987) (reasoning, in the context of a separation of powers challenge to the punitive damages statutes, that the statutes are "directly related to a substantive statutory scheme ..."). Given the expressed legislative intent, Florida courts have consistently construed Fla.Stat. §
768.72 as creating a substantive legal right not to be exposed to a claim for punitive damages as well as any contemplated financial worth discovery without a *1156 prior judicial determination that a reasonable evidentiary basis exists for the claim....
...given an incentive to bring suits in federal court if the statute is not applied here. Any failure to follow the statute in federal court would pose an unacceptable risk of forum shopping and, therefore, Erie counsels in favor of applying Fla. Stat. § 768.72. C. Application of § 768.72 The Plaintiffs argue that, because the complaint alleges fraudulent concealment, the allegations of the complaint constitute a proffer sufficient to justify the claims for punitive damages....
...While the complaint does make allegations of fraudulent concealment, it does so only in a cursory manner and does not constitute a proffer creating a reasonable basis for recovery of punitive damages. See Globe Newspaper Co.,
658 So.2d at 520 ("To allow punitive damages claims to proceed as before would render section
768.72 meaningless")....
...The Plaintiffs dispute the existence of complete diversity and have moved to remand. The presence of the federal claim, however, provides an independent basis for the exercise of jurisdiction. 15 U.S.C. § 2310(d)(1)(B) and 28 U.S.C. § 1441(a) and (c). The motion to remand will be denied. [2] Fla.Stat. § 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
CopyCited 3 times | Published | District Court, S.D. Florida | 2008 U.S. Dist. LEXIS 29013, 2008 WL 878937
...In an effort to discover financial worth information related to her prayer for punitive damages, Plaintiff propounded Interrogatories and Requests To Produce to Defendants Wlasek and Rolim. Defendants moved for a protective order, arguing that Florida Statutes § 768.72(1) requires that before Plaintiff may engage in financial worth discovery, she must receive leave of court by showing a reasonable basis for recovery on her punitive damages claim. See DE 152. In its prior Order denying Defendants a protective order, the Court ruled that § 768.72(1) is a procedural modification to Federal Rule of Civil Procedure 8 and therefore inapplicable in a diversity action. See DE 186. Defendants now move for the Court to revisit its decision. In support thereof, Defendants cite to several non-binding cases from this District that have found § 768.72(1) contains a substantive element relevant to discovery and applied it in diversity actions. The Court has carefully reviewed Defendants' thoroughly briefed Motion and the cases cited therein. While mindful of the cases in this District that have found § 768.72 applicable to diversity proceedings, the Court finds their reasoning unpersuasive. Rather, consistent with its prior Order (DE 186), the Court finds that § 768.72 is clearly a procedural alteration to Rule 8....
...The statute's full force and effect is contemplated at the pleading stage, and a second substantive step at discovery is unsupported by the statute's text. However, if the Court were to find that an inexplicable second step lay beneath the plain meaning of the text of § 768.72, the Court would be bound to analyze whether that statute and its requisite showing conflicted with Rule 26. For the reasons expressed more fully below, the Court finds that § 768.72 would directly conflict with Rule 26 and the procedures governing discovery in federal courts. Therefore, because Rule 26 violates neither the Rules Enabling Act nor the Constitution, the Court is bound to apply it and disregard § 768.72....
...on an action required by state law (there, in-hand service), the Federal Rule must control. III. Defendants support the instant Motion (DE 190) by citing to several Southern District of Florida cases that found that the so-called discovery aspect of § 768.72(1) did not conflict with Rule 26....
...1991); Al-Site Corp. v. VSI Int'l, Inc.,
842 F.Supp. 507 (S.D.Fla.1993); Sanders v. Mayor's Jewelers, Inc.,
942 F.Supp. 571 (S.D.Fla.1996). Plantation Square was the first case in the Southern District of Florida to set forth a reasoned analysis of §
768.72 under Hanna and Erie. Its analysis differentiates between the pleading and discovery aspects of §
768.72, and later cases explicitly adopt its reasoning....
...at 510 ("The Court agrees with Plantation Square 's conclusion and defers to that reasoning."); Sanders,
942 F.Supp. at 576 n. 5 ("The Court adopts the reasoning of the Al-Site and Plantation Square courts with respect to the applicability of the discovery aspect of Section
768.72 in federal litigation."). Those courts found that because there is no direct conflict, Rule 26 does not cover the situation and §
768.72(1) is to be applied....
...Nevertheless, while the Federal Rules are described as being nearly absolute in their breadth of coverage, the question centers on whether there exists a conflict between the state law and Federal Rule. Plantation Square sought to reconcile the apparent incongruity between Rule 26 and § 768.72. Despite the illustrative authority on this issue, the Court finds the reasoning supplied by Plantation Square and its progeny unpersuasive. Properly understood, § 768.72(1) would create an unmistakable hurdle for the Parties in discovery and directly conflicts with the unobstructed discovery practice codified in Federal Rule of Civil Procedure 26. By widening Plantation Square 's analysis to its proper scope, it is clear that there is a conflict between § 768.72 and Rule 26, and that Rule 26 fully contemplates parties seeking financial worth disclosure. Thus, because there is a conflict and Rule 26 covers the situation, the Court cannot apply § 768.72(1) and the showing mandated therein. Rather, the Court, as it should, applies Rule 26 to these proceedings and discovery issues that arise herein. A. The crux of the issue raised by the instant Motion is this: Whether the Court must apply Florida Statutes § 768.72 and require a showing of reasonable grounds for entitlement to recovery before allowing Plaintiff to discover Defendants' financial worth information....
...The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.... No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Fla. St. § 768.72(1) (2007)....
...is of an entirely different nature than the rest of the statute and, for Erie purposes, must be analyzed separately as a rule of discovery." Id. at 1572-73. Other courts have adopted that reading. E.g., Al-Site,
842 F.Supp. at 509 (agreeing with Plantation Square that "there are two elements to §
768.72: a pleading element and a discovery element"); Sanders,
942 F.Supp. at 576 n. 5 (adopting the reasoning of Al-Site as to the "discovery aspect of Section
768.72")....
...The first sentence of the statute requires a satisfactory showing to be made to the court before punitive damages may be pled in the complaint. The last sentence then clearly states that discovery of financial worth information may be had once a claim for punitive damages has been properly pled. Fla. St. § 768.72(1) ("No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.")....
...The statute cannot be read to require a showing before pleading and then an additional showing before discovery is allowed. Upon obtaining leave to plead punitive damages, the question of whether discovery may commence has been answered. The Eleventh Circuit held that, to the extent §
768.72(1) serves as a pleading statute, it is inapplicable in federal court. Cohen v. Office Depot, Inc.,
204 F.3d 1069, 1072 (11th Cir.2000) (citing Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1295-99 (11th Cir.1999)). The Cohen court specifically held that §
768.72(1)'s requirement of a proffer to the district court before pleading punitive damages conflicted with Federal Rule of Civil Procedure 8(a)(3)'s requirement of a demand for relief to be contained in the pleading....
...Thus, in line with Erie and Hanna, Rule 8(a)(3) is applicable in diversity actions and litigants are to include claims for relief, including punitive damages, in their initial pleadings. They need not seek leave of court or make a showing before doing so. In ruling that § 768.72 is not applicable to pleading in federal court, Cohen ruled that the statute's operative effect is inapplicable. In fairness to Defendants' argument, the Court notes that the Cohen court did not address whether there was a second showing, or a substantive discovery aspect, in § 768.72. In fact, the Eleventh Circuit had the opportunity but has not addressed the issue before the Court today of whether § 768.72(1) requires a proffer before discovery is allowed in federal court....
...judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.") (citation omitted). The continuing validity of the reasoning given in Plantation Square in light of Cohen is premised on there being two distinct parts to § 768.72....
...e, arguendo, the dual aspect reading of the statute given by Plantation Square and its progeny and address whether under Hanna Rule 26 covers the situation. B. The well reasoned decision rendered in Plantation Square is exhaustive in its analysis of §
768.72(1) under the Erie doctrine. However, assuming that §
768.72(1) would require a showing before discovery may commence in federal court, the Court's point of particular disagreement with Plantation Square is at the first step under Hanna. The Plantation Square decision framed the question in terms of whether there was any unavoidable conflict between §
768.72(1) and Rule 26.
761 F.Supp. at 1577. It noted that Rule 26 would allow financial worth discovery upon mere relevance, but that the standard of mere relevance was not an inflexible mandate. Id. at 1577-78 ("In apparent contravention of §
768.72, Rule 26 presumes access to discovery contemporaneous with a determination of relevancy....
...There is nothing in the Rules, however, to suggest this to be an inflexible mandate.") (footnotes omitted). Thus, it reasoned that Rule 26 did not exclude a showing to the court's satisfaction before allowing discovery, and so it could be read in harmony with § 768.72. Plantation Square buttressed its reasoning by looking to the disinterestedness of the Federal Rules and the substantial Florida state polices protected by § 768.72....
...) (footnote omitted). Thus, Plantation Square held that in a diversity action, parties seeking punitive damages must seek leave of court before commencing discovery of net worth. The Court finds that Plantation Square did not find a conflict between § 768.72 and the Federal Rules because it framed the issue too narrowly. Plantation Square 's narrow framing of Rule 26 begged the question of whether, and effectively precluded a finding that, it conflicted with § 768.72(1)....
...or federal courts even though some of those rules will inevitably differ from comparable state rules. " Hanna,
380 U.S. at 473,
85 S.Ct. 1136 (emphasis added). Thus, Plantation Square 's invocation of Erie partly voided Federal Rule 26 by looking to §
768.72 to supply the rule of decision in a discovery matter concerning financial worth. That court's adroit effort to merge §
768.72 with Rule 26 took up the wrong task....
...The Court must determine the question of whether the Federal Rules cover this situation, not whether state law may be grafted into a Federal Rule. IV. As noted above, the proper inquiry under Hanna is whether the Federal Rules are broad enough to cover this situation, or whether the Court must require the showing mandated by § 768.72 before allowing discovery....
...In fact, Plantation Square correctly recognized that the "presumption [behind Rule 26] of contemporaneous access [to relevant information upon pleading] seems to be driven, rather, by general notions of efficiency in the litigation process." Plantation Square,
761 F.Supp. at 1578. Section
768.72(1) has the opposite effect....
...experiments without the risk to the rest of the country.") While Florida is free to formulate its own rules for discovery, to the extent they conflict with the uniform rules of federal procedure they must be disregarded. If applied in federal court, § 768.72(1) would place a governor on Rule 26 where Congress has not seen fit to place one....
...l Rules allow for broad discovery. Fed. R.Civ.P. 26(b)(1). Such wide access by all parties to matters touching all issues to be tried allows each side to prepare its case throughly and try it efficiently. In stark contrast to such liberal discovery, § 768.72 would stem the procedure until a ruling may be given by the Court....
...possibilities for promptly settling); Fed.R.Civ.P. 37(a)(5)(A) (requiring the court to impose a sanction against a party or attorney who necessitates the court's involvement in a discovery dispute without substantial justification). To the contrary, § 768.72 would prevent financial worth discovery absent a proffer to the court establishing the reasonableness of recovery. In contrast to the laissez faire approach in federal court, under § 768.72 court intervention is necessary before financial worth discovery is to begin at all. The Plantation Square reasoning applying § 768.72 in federal court vitiates the litigant-driven procedure of the federal discovery rules in light of the state statute's policy-driven requirement of a showing and leave of court....
...of court. Simeon, Inc. v. Cox,
671 So.2d 158, 160 (Fla.1996) (citing Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995)). This right is so important to the people of the State of Florida that it is incorporated into Florida civil practice by §
768.72. [4] Indeed, Plantation Square relied heavily on the importance of §
768.72....
...1136 (cautioning against an improper emphasis on the importance of a state law). The Court must limit its focus to the procedures of the federal and state systems, determine whether they conflict, and if so, faithfully apply the Federal Rules. Contrasted with Florida civil procedure, as evidenced by § 768.72(1), the procedure for discovery in federal court, as evidenced by Rule 26(b)(1), is aimed at the broad and liberal discovery of all relevant facts to bring everything to light before the trier of fact....
...g before financial worth discovery may ensue and the absence of one in federal rules, the Court compares the overall blueprint of liberal discovery evidenced by Rule 26 with the fragmentary procedure for discovery with court intervention mandated by § 768.72....
...der upon a showing that good cause exists to issue the order to prevent "annoyance, embarrassment, oppression, or undue burden or expense"). Under the Federal Rules, the showing required to prevent discovery is the inverse of the showing required by § 768.72 to engage in discovery. The absence of a default hurdle written into Rule 26(b) for protection of financial worth information is part and parcel of the federal procedure of liberal discovery. Therefore, the Court finds a conflict between the showing requirement in § 768.72(1) and the Federal Rules' absence of such a requirement....
...ore taking effect ... give the Rules presumptive validity under both the constitutional and statutory constraints."). Defendants have done nothing to rebut the presumption of validity Rule 26 enjoys under the Enabling Act. Defendants' arguments that § 768.72(1) embodies a substantive right do not apply the proper test. Defendants rely on Florida's characterization that the showing requirement found in § 768.72 grants a substantive right....
...for punitive damages. Thus, the Rule is part of the "process for enforcing rights and duties." Sibbach,
312 U.S. at 14,
61 S.Ct. 422. Therefore, Rule 26 does not violate the Rules Enabling Act. [6] The Court's departure from a tradition of applying §
768.72 to discovery practice in the Southern District of Florida is not taken lightly....
...Therefore, under Hanna, the question becomes whether application of Rule 26 would violate the twin aims of Erie : preventing both the inequitable administration of the laws and forum shopping. Hanna,
380 U.S. at 471,
85 S.Ct. 1136. Plantation Square held that failing to apply §
768.72 would not result in an inequitable administration of the laws.
761 F.Supp. at 1579. However, finding that §
768.72 did not conflict with Rule 26, Plantation Square determined that the state statute must be applied because refusing to do so would result in forum shopping by altering the character of the litigation....
...It is difficult if not impossible to imagine how pre-trial production of evidence of financial worth sooner, rather than later, would change the result of any given litigation." Plantation Square,
761 F.Supp. at 1579. Plantation Square went on to find that failing to enforce §
768.72 in diversity actions would encourage forum shopping....
..." Fed. R.Civ.P. 26(c)(1). Thus, if the discovery of this information would lead to any one of these, Defendants would be entitled to a protective order under Rule 26. Moreover, the requirement of establishing a reasonable basis for recovery found in §
768.72(1) is no more a defense to a frivolous claim than a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6). Compare Fla. St. §
768.72(1) ("[N]o claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages."), with Bell Atlantic Corp. v. Twombly, 550 U.S. ___,
127 S.Ct. 1955, 1965-66,
167 L.Ed.2d 929 (2007) (holding that requiring a complaint to properly state a claim for relief requires enough facts to demonstrate plausible grounds for recovery). Thus, Defendants' reliance on §
768.72(1) for a safe harbor would displace and add to the Federal Rules. [7] This is not the aim of Erie. Hanna,
380 U.S. at 470,
85 S.Ct. 1136 ("The Erie rule has never been invoked to void a Federal Rule."). Thus, the Court finds that a plaintiff would not seek the federal forum simply to avoid application of §
768.72(1). Therefore, even if Rule 26 were not broad enough to cover this situation, and thus did not conflict with §
768.72(1), the Court finds that application of Rule 26(b)(1) to the instant discovery requests would not result in an inequitable administration of the laws or encourage forum shopping. Rule 26 will be applied. VII. In conclusion, the Court finds that Florida Statutes §
768.72(1) is a pleading statute that has no effect on discovery practice in federal court. If application in federal court would require a showing before net worth discovery is allowed, the Court finds that there is a conflict between Federal Rule of Civil Procedure 26(b)(1) and the so-called discovery aspect of §
768.72(1)....
...be sought without prior leave of court. For the reasons already expressed, the Court also finds that Rule 26(b)(1) violates neither the Rules Enabling Act nor the Constitution. In the alternative, the Court finds that application of Rule 26 and not § 768.72(1) will lead neither to an inequitable administration of the laws nor to forum shopping as contemplated by Erie....
CopyCited 3 times | Published | District Court, S.D. Florida | 2007 U.S. Dist. LEXIS 29792, 2007 WL 1203008
...paragraph four of the amended complaint should be denied. The Court also finds that Defendants’ motion to strike Plaintiffs claim for punitive damages should be denied. Defendants argue that the claim for punitive damages violates Florida Statutes section 768.72, which bars a punitive damages claim “unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Fla. Stat. § 768.72 . However, the Eleventh Circuit “has rejected Florida pleading requirements for punitive damages in diversity eases, holding that Florida Statute[s] § 768.72 conflicts with Rule 8(a)(3)” of the Federal Rules of Civil Procedure....
CopyCited 3 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 115, 2016 Fla. LEXIS 631, 2016 WL 1163372
...hould not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of -non-final orders.’” (quoting Martin-Johnson, Inc. v. Savage,
509 So.2d 1097, 1098 (Fla.1987), superseded by statute on other grounds, §
768.72, Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1751755
...In Globe, the Florida Supreme Court found that it was proper for the district courts to grant certiorari review based upon a claim that the trial court departed from the essential requirements of the law by failing to conduct a hearing before allowing a plaintiff to seek punitive damages. Globe Newspaper,
658 So.2d at 520. Section
768.72 provides that, before a plaintiff may seek punitive damages, he or she must demonstrate by record evidence that there is a reasonable basis for the recovery of such damages....
...ie showing "at least 30 days before trial." Thus, I find the majority's reliance on legislative intent unpersuasive. I disagree with the majority that Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), lends any support for our advisory opinion. Section
768.72, Florida Statutes (1993), did not attempt to make its application retroactive and there was no ambiguity. The Florida Supreme Court held that section
768.72 created "a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper,
658 So.2d at 519 (emphasis added)....
CopyCited 3 times | Published | District Court, M.D. Florida | 1993 U.S. Dist. LEXIS 8793, 1993 WL 230793
...Consequently, the question should not be considered on a motion to dismiss. Defendants McDaniel and Alley, therefore, are not entitled to dismissal of the claims against them in their official capacities. PUNITIVE DAMAGES A. DEFENDANTS IN THEIR INDIVIDUAL CAPACITY According to Fla.Stat. Section 768.72 (1991), "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Defendants claim that Plaintiff has not complied with this provision....
...As the Sixth Circuit has stated, the correct standard for punitive damages in a 42 U.S.C. § 1983 case is the federal one. Hill v. Marshall,
962 F.2d 1209, 1217 (6th Cir.1992). Since the Plaintiff in the instant case has brought suit under 42 U.S.C. § 1983, and has alleged no pendent state claims, Fla.Stat. §
768.72 does not apply....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 2906898
...rder which struck plaintiff's demand for jury trial. We affirm, however, the order which denied plaintiff's request for leave to amend her complaint to add a claim for punitive damages, because the plaintiff failed to make a reasonable showing under section 768.72, Florida Statutes, for a recovery of punitive damages....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
considered to constitute a "reasonable basis" ( section
768.72(1) ) for the recovery of punitive damages.
CopyCited 3 times | Published | United States Bankruptcy Court, N.D. Florida | 7 Fla. L. Weekly Fed. B 113, 1993 Bankr. LEXIS 695, 1993 WL 166449
...n fraud pursuant to the Federal Rules of Civil Procedure, and allowed the parties 15 days to submit written briefs on the issue of whether the Plaintiff need make a pre-trial proffer of evidence to sustain a punitive damages claim in accordance with § 768.72 of the Florida Statutes....
...dant's Motion to Strike. Reduced to its barest essence, the issue before the Court is whether the doctrine first articulated by the Supreme Court in Erie R.R. v. Tompkins,
304 U.S. 64,
58 S.Ct. 817,
82 L.Ed. 1188 (1938), precludes the application of §
768.72 in a federal court. The Erie doctrine directed federal courts sitting in diversity jurisdiction to apply state substantive law while following federal court procedures. Thus the question to be resolved by this Court is whether §
768.72 is a state law of substance or procedure. [1] *339 Many of the federal courts which have analyzed the issue have found §
768.72 to be a substantive law. See, Bankest Imports v. Isca Corporation,
717 F.Supp. 1537 (S.D.Fla.1989); McCarthy v. Barnett Bank,
750 F.Supp. 1119 (M.D.Fla. 1990). These courts base their conclusion that §
768.72 is substantive law on a state supreme court ruling which says as much. See, Smith v. Dept. of Insurance,
507 So.2d 1080 (Fla.1987). However, this Court agrees with the analysis of Judge Nesbitt who in Citron v. Armstrong World Industries found that the state court's decision failed to decide whether §
768.72 is procedural or substantive for purposes of application in a federal court sitting in diversity....
...diversity actions. This Court instead finds the analysis of Judge Hoeveler in State of Wisconsin Investment Board v. Plantation Square Associates especially cogent.
761 F.Supp. 1569 (S.D.Fla.1991). In Plantation Square, Judge Hoeveler concluded that §
768.72 merely changed the time at which a plaintiff can plead punitive claims and which a defendant is formally exposed to such claims....
...claim sufficient to provide "notice" to the defendant of the nature of the claim and the grounds on which it rests. Claims which fail to provide adequate notice or which are baseless in fact may be subsequently disposed by appropriate motions. Under §
768.72, a plaintiff must proffer sufficient evidence to support a reasonable basis for recovery before a claim for punitive damages is allowed. Thus, application of §
768.72 in federal courts essentially converts the notice pleading requirement to a quasi-adjudication of the plaintiff's claim, requiring evidentiary inquiry and discovery, argument of counsel and a judicial ruling. Plantation Square,
761 F.Supp. at 1574. Clearly §
768.72 does not add any substantive element to a claim for punitive damages, but rather, simply shifts the time for determining whether such a claim can be sustained from post-pleading to prepleading. The Court finding that §
768.72 is inapplicable in the present dispute, it is ORDERED AND ADJUDGED that the Defendant's Motion to Strike Claim for Punitive Damages be, and hereby is denied. DONE AND ORDERED. NOTES [1] Florida Statute §
768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for the recovery of such damages....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2004 WL 2823244
...Of course, personal financial information might then be arguably relevant, depending on whether there is anything to the accounting, alter ego claim. If that claim is not tenable, discovery of such information should be in the same category as premature punitive damage discovery under section 768.72....
...The court held that even a valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature is insufficient to warrant review of a pretrial order by certiorari. [6] In this case, petitioner has not pointed out any statutory basis like section 768.72 to make the issue of personal worth discovery reviewable at this point....
...Charlton,
377 So.2d 1169 (Fla.1979) (no reason to place financial worth of defendant in special category with regard to discovery process; trial court may limit such discovery to protect party from annoyance, embarrassment, oppression, or undue burden or expense). [5] See Ch. 86-160, § 51, Laws of Fla. (codified as §
768.72, Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 WL 6925388, 2013 Fla. App. LEXIS 20493
...f law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Martbw-Johnson, Inc. v. Savage,
509 So.2d 1097 (Fla.1987), superseded by statute on other grounds, §
768.72, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1994 WL 706778
...idence met the criteria for pleading punitive damages. The court's certiorari jurisdiction is not so broad as to permit review of a finding that the plaintiff's evidentiary basis for punitive damages was sufficient to comply with the requirements of section 768.72, Florida Statutes, thereby permitting amendment of the complaint....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 12062, 2017 WL 3616403
...to amend, but there was no court reporter present and thus no
transcript can be provided. The court granted the motion in an order
that did not explain its rationale and did not indicate for which counts it
intended to allow a punitive damages claim.
Section 768.72(1), Florida Statutes (2016), provides that a punitive
damages claim is permitted only on a “reasonable showing by evidence in
the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages.” In Varnedore v....
...Globe Newspaper Co. v. King,
658 So. 2d 518, 520 (Fla.
1995). Rather, we conclude that the trial court failed to comport with the
procedural requirements for entertaining and ruling on a motion to
2
amend under section
768.72(1), Florida Statutes (2016), Florida Rule of
Civil Procedure 1.190(a) and the case law.
Petition granted....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
such claims against corporate defendants under section
768.72(3), Florida Statutes (2016), we grant the petition
CopyCited 2 times | Published | District Court of Appeal of Florida | 14 Fla. L. Weekly 2657, 1989 Fla. App. LEXIS 6546, 1989 WL 136804
...The reason for the agreement, laudably, was "to avoid a waste of judicial labor" in the event of a determination on appeal that the allegations were sufficient to support a punitive damages claim against both defendants. Because the accident occurred in 1983, the procedure outlined in section 768.72, Florida Statutes (1987), is not applicable here.
CopyCited 2 times | Published | District Court, S.D. Florida | 1998 WL 244592
...Bd.,
442 So.2d 210 (Fla.1983); Hansen v. State of Florida,
503 So.2d 1324 (Fla. 1st DCA 1987); Halpin v. Short,
490 So.2d 1271 (Fla. 2nd DCA 1986). Therefore, the motions to dismiss Counts VI and VII will be granted. II. Motions to Strike Various defendants assert that under Fla. Stat. §
768.72, Rowe's demand for punitive damages is premature and should be dismissed without prejudice to allow him to refile those demands once they are supported by record evidence. [14] The pleading provisions of Fla.Stat. §
768.72, however, do not apply to state claims being litigated in federal court....
...Armstrong World Industries, Inc.,
721 F.Supp. 1259 (S.D.Fla. 1989). Federal court pleadings are governed by the Federal Rules of Civil Procedure, not by state procedural rules. State of Wisconsin Investment Bd.,
761 F.Supp. at 1576. Several federal courts in Florida have held that Fla.Stat. §
768.72 is a substantive law that must be followed in federal court claims. Marcus v. Carrasquillo,
782 F.Supp. 593, 600-01 (M.D.Fla.1992); Lewis v. Snap-On Tools Corp.,
708 F.Supp. 1260 (M.D.Fla. 1989). This Court, however, adopts the reasoning of the Court in State of Wisconsin Investment Bd., finding that Fla.Stat. §
768.72 is procedural in nature. Application of the Florida statute only determines when a plaintiff is permitted to plead a claim for punitive damages, not whether the plaintiff will eventually receive an award of punitive damages. "Section
768.72 merely changes the time at which a plaintiff can plead punitive claims and at which defendants are formally exposed to such claims." Id....
...However, since Heck relates only to claims brought pursuant to § 1983, it does not apply to Counts VI and VII. Indeed, the State of Florida does not need to look to the accrual of § 1983 actions in order to determine at what point a plaintiff has missed the opportunity to seek a waiver of sovereign immunity. [14] Fla.Stat. § 768.72 (West 1986) provides in pertinent part: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable basis for recovery of such damages ......
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 7236, 2008 WL 2152041
...Ramlawi,
644 So.2d 523 (Fla. 3d DCA 1994); Weiss v. Courshon,
618 So.2d 255 (Fla. 3d DCA 1993). In our case, the circuit court has either basically allowed an accounting where none has been pled or has ordered premature punitive damage discovery under section
768.72, Florida Statutes (2003)....
...a claim for punitive damages. The Florida Legislature removed this device years ago so that such discovery is not permitted until the trial judge determines there is a valid claim for punitive damages to use as the predicate for such discovery. See §
768.72, Fla. Stat. (2003); Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995). *1215 In this case, by not successfully asserting a statutory basis like section
768.72, the issue of personal worth discovery is not reviewable by certiorari....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1999 WL 314133
...Degoria's complaint sought punitive damages for the federal civil rights violations but not for the state law violations. The petitioners filed an answer and affirmative defenses, and, later, moved to strike the punitive damages claim for failure to comply with the procedural requirements of section 768.72, Florida Statutes. Specifically, the motion alleged that Degoria failed to obtain leave of court prior to pleading a claim for punitive damages in his complaint. In response, Degoria argued that he was not required to comply with section 768.72, insofar as he was alleging a violation of federal law under 42 U.S.C. § 1983. He contended that one need only comply with section 768.72 when pleading state law claims....
...4th DCA), rev. denied,
642 So.2d 1363 (Fla. 1994) (to allow a punitive damages claim to proceed without trial court's prior approval would be to expose defendant to a claim for extraordinary damages, for which there is no adequate remedy on final appeal). Section
768.72, Florida Statutes, provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...ages for a federal section 1983 violation rather than for violations *1105 of state law. He notes that Counts III and IV of his complaint, which set forth his state law claims, did not seek punitive damages. The question whether one must comply with section
768.72 prior to pleading a punitive damages claim for a section 1983 violation appears to be one of first impression in the Florida state courts. In federal court actions involving both section 1983 and pendent state law claims, the federal district courts are split as to whether section
768.72 is substantive or procedural, whether this statute conflicts with the pleading requirements of the federal rules of procedure, and whether the federal courts must apply this statute. See, e.g., Meade v. Prison Health Servs., Inc., No. 94:854-CIV-T-117B,
1995 WL 350207 (M.D.Fla. June 8, 1995)(§
768.72 is inapplicable to § 1983 claims); Brennan v. City of Minneola,
723 F.Supp. 1442 (M.D.Fla. 1989)(same). But see Fletcher v. State of Florida,
858 F.Supp. 169, 173 (M.D.Fla.1994)(applying §
768.72 to § 1983 claim). See also Maynard, "Pleading Punitive Damages in Federal Court: Must One Comply with F.S. §
768.72?," 72 Fla. Bar J. 48 (May 1998). With respect to the procedural/substantive distinction, the Florida Supreme Court has stated that the procedural requirements of section
768.72 "create[] a substantive legal right not to be subjected to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Simeon, Inc....
...Section
768.71(1) provides: "Except as otherwise specifically provided, this part applies to any action for damages, whether in tort or in contract." Degoria argues that 42 U.S.C. § 1988 allows for injunctive relief, compensatory and punitive damages, and attorney's fees for section 1983 violations, and that section
768.72 has no application to section 1983 claims....
...In their reply, petitioners argue that under Howlett, "[a] State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal *1106 law." Howlett,
496 U.S. at 380,
110 S.Ct. 2430. Thus, they contend that Howlett supports the application of section
768.72 to section 1983 claims brought in Florida state court....
...Id. at 138,
108 S.Ct. 2302. The petitioners herein posit the same type of argument that was rejected by the Supreme Court in Felder. They argue that the trial court invaded the province of the legislature and violated a substantive right created by section
768.72the right to make a preliminary assessment of the efficacy of a punitive damages claim before it is pled against a defendant. Additionally, they argue that to allow the assertion of punitive damages under section 1983 without first requiring compliance with section
768.72 would "open[] the `floodgates' to meritless ......
...Although there are appreciable differences between Florida's punitive damages statute and the Wisconsin notice-of-claim statute that make the former statute less burdensome on the assertion of federal rights than the latter, the language in Felder, nevertheless, strongly indicates that section
768.72 is, in fact, inapplicable to section 1983 claims and that a plaintiff need not comply with section
768.72 prior to pleading a punitive damages claim for an alleged section 1983 violation. First, Florida's statute requires the section 1983 plaintiff to comply with a requirement that is wholly absent from section 1983 litigation in federal court. Id. at 141,
108 S.Ct. 2302. Second, compliance with section
768.72 is a "condition precedent to recovery." Id. at 144,
108 S.Ct. 2302. Third, the plaintiff's failure to comply with section
768.72 essentially provides the defendant with an affirmative defense, in that failure to seek leave to plead a punitive damages claim requires the striking or dismissal of the claim....
...ndication of a federal right." Id. at 147,
108 S.Ct. 2302. See also id. at 152,
108 S.Ct. 2302 (the state statute is more than a mere rule of procedure because it is a substantive condition on the right to sue). "[T]o the extent the [requirements of §
768.72 are] designed to sift out `specious claims' from the stream of complaints that can inundate [the courts], such a policy [is] inconsistent with the aims of the federal legislation." Id. at 149,
108 S.Ct. 2302. Based upon the foregoing, we determine that the trial court did not depart from the essential requirements of law in concluding that Degoria did not have to comply with section
768.72 before pleading a punitive damages claim for the alleged section 1983 violation....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 2143, 2009 WL 591782
...One section of the third amended complaint itself is titled "Claim for Punitive Damages." Petitioners filed a motion to dismiss the third amended complaint, together with a motion to strike that portion of the complaint titled "Claim for Punitive Damages," on the grounds that this claim violated section 768.72, Florida Statutes (2008), and the rules of civil procedure, and failed to allege sufficient facts to state a cause of action....
...The court denied the motion to dismiss based on findings that Respondent properly pled a cause of action for the alleged back injury; the court denied the motion to dismiss and/or strike the claim for punitive damages. "[T]o plead a claim for punitive damages, a plaintiff must comply with section
768.72(1), Florida Statutes." Estate of Despain v. Avante Group, Inc.,
900 So.2d 637, 641 (Fla. 5th DCA 2005). "[S]ection
768.72 has created a substantive legal right not to be subject to a punitive damage claim until the trial court rules that there is a reasonable evidentiary basis for punitive damages....
...Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995)." Holmes v. Bridgestone/Firestone, Inc.,
891 So.2d 1188, 1191 (Fla. 4th DCA 2005); see Estate of Despain,
900 So.2d at 641-42. Petitioners note that Respondent failed to follow the proper procedures in section
768.72(1), Florida Statutes (2008), and Florida Rules of Civil Procedure 1.100(a)-(b) and 1.110(b) for seeking leave of the circuit court to allege a claim for punitive damages....
...ed. To support certiorari relief, Petitioners rely on the following language in Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996): [C]ertiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section
768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section
768.72.... [A]ppellate courts should grant certiorari in instances where there is a demonstration by a petitioner that the procedures of section
768.72 have not been followed....
...5th DCA 1996). Respondent's purported "motion" contained within the third amended complaint is procedurally and substantively insufficient to satisfy the requirements of law. See King,
658 So.2d at 520 (noting that the failure to follow the procedure set out in section
768.72 "departs from the essential requirements of the law"); Reinoso v....
...3d DCA 2006) (granting certiorari relief where plaintiffs' failure to obtain leave of circuit court prior to making claim for punitive damages in their negligence complaint mandated dismissal of claim). Because the circuit court did not comply with the procedural requirements of section 768.72, allowing Respondent to skip a step and allege a claim for punitive damages without first properly seeking and receiving the court's permission to do so, Cox and Reinoso compel us to grant the petition for writ of certiorari....
CopyCited 2 times | Published | District Court, M.D. Florida
...** ‘Intentional misconduct’ means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Fla. Stat. § 768.72 (2)(a). ‘“Gross negligence’ means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” § 768.72(2)(b)....
CopyCited 2 times | Published | District Court, M.D. Florida | 1995 U.S. Dist. LEXIS 9855, 1995 WL 416326
...Ct.App.2 1993) (citing), C & J Sapp Publishing Co., v. Tandy Corp.,
585 So.2d 290 (Fla. Dist.Ct.App.2 1991). Plaintiff's complaint includes all of these elements. Further, Defendants seek dismissal of Plaintiff's claim for punitive damages. Florida Statute Section
768.72 prohibits a claim for punitive damages "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." This Court finds that the requirements of
768.72 have been met....
...Plaintiff's allegations of a violation of Federal and Florida RICO statutes constitute a reasonable basis upon which punitive damages could be awarded. Knight v. E.F. Hutton and Co., Inc.,
750 F.Supp. 1109 (M.D.Fla. 1990). Furthermore, the Florida courts have upheld complaints containing allegations of
768.72 violation with little more than a statement of entitlement, especially where malice is an essential element of the tort....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 10377
...dismiss the complaint if a certification is not included. Compare
§
702.015(4), and rule 1.115(c), with §
766.206, Fla. Stat. (2015)
(incorporating mandatory language in “[p]resuit investigation of medical
negligence claims and defenses by court”), and §
768.72, Fla....
CopyCited 2 times | Published | District Court, N.D. Florida | 1999 U.S. Dist. LEXIS 3091, 1999 WL 14252
...John Lewis Holcomb, (See above), for Heritage Health Care Center, d/b/a defendant. ORDER GRANTING LEAVE TO FILE FOURTH AMENDED COMPLAINT HINKLE, District Judge. Plaintiff has moved for leave to amend her complaint to add a claim for punitive damages. Plaintiff assumes she must comply with § 768.72, Florida Statutes, which requires the submission of evidence as a condition precedent to pleading a claim for punitive damages....
...Plaintiff has submitted evidence she says satisfies that requirement. Defendant has responded by asserting plaintiff's evidentiary showing falls short of that required by Florida law. Defendant apparently does not oppose the filing of the amended complaint on any other basis. Section 768.72 provides: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. There is a conflict among different district courts in Florida, and among different judges within the same district, with respect to the applicability of § 768.72 in federal court....
...s such as when and how notice must be given of claims and when or on what grounds pleadings may be amended. If Congress or the drafters of the Federal Rules of Civil Procedure had wanted to include in the Rules a requirement of the type set forth in § 768.72, they could have done so....
...tive damages (document 29) is GRANTED. The proposed fourth amended complaint (document 30) is deemed filed this date. NOTES [1] Compare Alexander v. University/Gainesville Healthcare Center, Inc.,
17 F.Supp.2d 1291, 1292 (N.D.Fla.1998) (holding that §
768.72 does not apply in diversity cases) and Hines v. Florida Department of Corrections, No. 4:97cv102-WS (October 15, 1997) (unpublished Report and Recommendation holding that §
768.72 does not apply in diversity cases) with T.W.M. v. American Medical Systems, Inc.,
886 F.Supp. 842, 845 (N.D.Fla.1995) (applying §
768.72 in a diversity case); compare Teel v. United Technologies Pratt & Whitney,
953 F.Supp. 1534, 1541 (S.D.Fla. 1997) (applying §
768.72 in diversity case) with Blount v. Sterling Healthcare Group, Inc.,
934 F.Supp. 1365, 1375 (S.D.Fla.1996) (holding that §
768.72 does not apply in diversity cases); compare Wilson v. Edenfield,
968 F.Supp. 681, 683 (M.D.Fla.1997) (applying §
768.72 in a diversity case), with Key Club Associates, Ltd. Partnership v. Biron,
1992 WL 56797, at *7 (M.D.Fla. March 17, 1992) (holding that §
768.72 does not apply in diversity cases).
CopyCited 2 times | Published | Florida 4th District Court of Appeal
..., LLC and
Ricardo DeAvila seek certiorari review of the trial court’s order granting
Respondent Yves Moquin’s motion to amend his complaint to assert a
claim for punitive damages. Because the court failed to follow the
procedural requirements of section 768.72, Florida Statutes, we grant the
petition.
Petitioner KIS is a company that was formed for the sole purpose of
investing in KIOSK Information Systems, Inc., a company that designs and
manufactures kiosk systems....
...1987) for the
proposition that “proof of fraud sufficient to support compensatory
damages necessarily is sufficient to create a jury question regarding
punitive damages.” Petitioners countered that regardless of the previous
ruling on the motion for summary judgment, the court was required to
conduct a section 768.72 evidentiary inquiry to determine whether there
was evidence in the record which would provide a reasonable basis for
recovery of punitive damages.
After hearing argument from both parties, the trial court made it
abundantly clear t...
...review of the order or file a motion for summary judgment in order to test
the adequacy of the punitive damages claim. This petition follows.
“Certiorari review is available to determine whether a trial court has
complied with the procedural requirements of section
768.72, but not to
review the sufficiency of the evidence.” Tilton v. Wrobel,
198 So. 3d 909,
910 (Fla. 4th DCA 2016).
Section
768.72, Florida Statutes, provides in relevant part that: “In any
civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages.” §
768.72(1), Fla....
...Weitnauer Duty Free, Inc.,
987 So. 2d 706, 708 (Fla. 4th
DCA 2008) (quoting Hosp. Corp. of Lake Worth v. Romaguera,
511 So. 2d
559, 565 (Fla. 4th DCA 1986)).
In the present case, it is clear that the trial court did not follow the
procedural requirements of section
768.72 in ruling on Respondent’s
motion to amend....
...Moreover, even if Ablanedo does stand for the proposition that a trial
court’s denial of a motion for summary judgment on a fraud claim is the
functional equivalent of a determination by the court that there is a
reasonable evidentiary basis for punitive damages, the enactment of
section 768.72 undercuts the scope of that ruling. Unlike consideration
of a motion for summary judgment which precludes the court from
weighing the evidence or reaching conclusions therefrom, section 768.72
necessarily requires the court to weigh the evidence and act as a factfinder.
It is axiomatic, then, that the analysis required for a motion for summary
judgment cannot be substituted for the analysis required under the
statute.
The First District’s holding in Noack v....
...fraud
claim. Id. In rejecting the petitioners’ argument, the court held that:
The conventional analysis utilized in resolving a summary
judgment motion has no application in the context of a
punitive damages determination under section 768.72.
Whether the entitlement to plead a claim for punitive damages
has been established must be determined under the procedure
and standards set forth in the statute, and our finding in the
earlier appeal that respo...
...Development Corp.,
678 So. 2d 472 (Fla. 5th
DCA 1996). In Potter, the court considered, and ultimately rejected, the
argument that if a trial court has determined that there is a material issue
of fact on a claim for fraud, then, ipso facto, the procedural requirements
of section
768.72 have been satisfied:
We cannot agree that a finding by the trial court that a
defendant has failed to establish that there is no material
issue of fact concerning whether he perpetrated a fraud is the
equiv...
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1999 WL 89731
...District Court of Appeal of Florida, Fourth District. February 24, 1999. Daniel M. Le Vay and Eric R. Hoecker of The Law Offices of Figueroa, Gonzalez & Hoecker, West Palm Beach, for petitioner. Michael J. Burley, Tequesta, for respondent. WARNER, J. Contrary to the provisions of section 768.72, Florida Statutes (1997), the respondent filed a second amended complaint claiming punitive damages without first obtaining leave of court....
...The petition for writ of certiorari is granted, and the order denying the motion to dismiss is quashed. The second amended complaint is dismissed with leave to move the court to amend the original complaint to assert a claim for punitive damages in accordance with the procedure of section 768.72....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 710800
...not persuaded us that one should be carved out here. Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), holding that appellate courts have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section
768.72, Florida *1136 Statutes, regarding punitive damages, is distinguishable....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1996 WL 194330
...Walt Disney World Company ("Disney") petitions this court for a writ of certiorari and asks that we quash a nonfinal order allowing the plaintiffs/respondents to amend their complaint to include a claim for punitive damages. Disney claims that the lower court failed to comply with the procedural requirements of section 768.72, Florida Statutes (1995) when it permitted the plaintiffs to add their claim....
...vailed, the court would then make a determination as to whether the punitive damages claim would proceed. Preliminarily, we note that certiorari is the proper vehicle "to review whether a trial judge has conformed with the procedural requirements of section
768.72...." Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995). At issue is that portion of section
768.72 which provides: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." In construing this provision Globe Newspaper held: "We read section
768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Id....
...In that case, the plaintiff filed a complaint that included a claim for punitive damages without seeking prior leave of court to include such a claim. The trial court entered an order which denied a motion to strike the claim and scheduled a hearing within 90 days so that the plaintiff could make the showing required by section 768.72....
...e claims, as here, for in terrorem effect. Such claims, it contends, give the claimant undue settlement leverage and force insurance companies to devote resources to claims in spite of their intrinsic lack of merit. Hence, the legislature created in section 768.72 a positive legal right not to be exposed to punitive damages until a court first determines that there is evidence enough for such a claim to be pleaded." Id....
CopyCited 2 times | Published | District Court, M.D. Florida | 21 I.E.R. Cas. (BNA) 1533, 2004 U.S. Dist. LEXIS 6877, 2004 WL 859319
...Also, Plaintiffs rely on the Florida Supreme Court's characterization of whistleblower statutes as being "tortious in nature" as justifying the availability of punitive damages. Finally, Plaintiffs cite to the savings clause contained in Florida Statutes Section
448.105 [1] of the FWA and Florida Statutes Section
768.72 as creating a substantive right for a FWA plaintiff to recover punitive damages....
...Use of the word "compensatory" in Section
448.103(2)(e) clearly indicates that punitive damages and other forms of non-compensatory damages are unavailable to correct FWA violations. This Court rejects Plaintiff's argument that the savings clause in Florida Statutes Section
448.105 in tandem with Section
768.72 creates a right to punitive damages. First, Florida Statutes Section
768.72 does not create a substantive right to punitive damages for any cause of action. Instead, Section
768.72 places additional procedural and evidentiary limitations on claims for punitive damages. See, e.g., Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995) (reading "section
768.72 to create a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.")....
CopyCited 1 times | Published | District Court, M.D. Florida | 1999 U.S. Dist. LEXIS 15271, 1999 WL 782490
...bad faith or undue delay on the part of the moving party, or (3) the amendment would be futile. See Foman,
371 U.S. at 182 ,
83 S.Ct. 227 . MRG & L requests leave to amend its counterclaim to add claims for punitive damages under Florida Statute §
768.72....
...Even though no party to this action has alleged application of Federal Rule of Civil Proce *478 dure 8(a) to MRG & L’s Motion to Amend, the Court finds it necessary in light of recent Eleventh Circuit case law to discuss both Federal Rule of Civil Procedure 8(a) and Florida Statute § 768.72....
...al claim, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Florida Statute § 768.72 states that: In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which ' would provide a reasonable basis for recovery of such damages....
...the state law would lead to forum shopping due to the possibility of different outcomes in federal and state court. See id. There has been a long-standing split in the decisions of the federal courts, of this state regarding whether Florida Statute §
768.72 is substantive or procedural. However, this split of decisions was recently remedied by the Eleventh Circuit in Cohen v. Office Depot. Inc.,
184 F.3d 1292 (11th Cir. 1999). In Cohen the Eleventh Circuit found that Florida Statute §
768.72 is directly in conflict with Federal Rule of Civil Procedure 8(a). See Cohen,
184 F.3d 1292, 1298 (11th Cir.1999). As Florida Statute §
768.72 is in direct conflict with Federal Rule of Civil Procedure 8(a), the court must apply the Federal Rule....
...at 471 ,
85 S.Ct. 1136 . In Cohen , the Eleventh Circuit specifically stated that: [E]ven if [Federal] Rule [of Civil Procedure] 8(a)(3) does not require a plaintiff to include in a complaint a request for all the relief sought, there is still a conflict between §
768.72 and Rule 8(a)(3), because [Rule 8(a)(3)] clearly allows the plaintiff to include a request for punitive damages in her initial complaint, whereas §
768.72 prevents her from doing so. A state law may conflict with a Federal Rule even where it violates no affirmative command or requirement of the rule, if the Federal Rule “occupies the statute’s field of operation.” Rule 8(a)(3) “occupies [§
768.72’s] field of operation,” because Rule 8(a)(3) governs the ability of plaintiffs to request any and all of the relief sought (including punitive damages) in all pleadings that state a claim (including initial complaints). If applied in federal court, §
768.72 would impair the operation and effect of Rule 8(a)(3). Cohen,
184 F.3d 1292, 1298 (11th Cir.1999). As the Eleventh circuit has decided that §
768.72 directly conflicts with Federal Rule of Civil Procedure 8(a), this Court must now apply Rule 8(a)(3) unless application of the Federal Rule would “transgress[ ] the Rules Enabling Act or the Constitution.” Id....
...urts. See Cohen,
184 F.3d 1292, 1298-1299 (11th Cir.1999) (citing Sibbach v. Wilson & Co.,
312 U.S. 1 , 14
61 S.Ct. 422, 427 ,
85 L.Ed. 479 (1941); Follenfant v. Rogers,
359 F.2d 30, 31-32 (5th Cir.1966)). As well as finding that Florida Statute §
768.72 conflicts with Federal Rule of Civil Procedure 8(a), the Eleventh Circuit also stated that Florida Statute §
768.72 is not unconstitutional....
...In the case at hand, MRG & L’s Motion to Amend seeks leave to amend Counts III-V of MRG & L’s Counterclaim, (Dkt. 53), to add claims for punitive damages. Defendant requests leave to amend pursuant to Federal Rules of Civil Procedure 7(b) and 15(a), and Florida Statute 768.72....
...MRG & L states that Counts III— V are tort-based claims that have arisen as a result of Plaintiffs group boycott of MRG & L. MRG & L states that Plaintiff led and organized the group boycott with the kind of malevolence that Florida Statute § 768.72 covers....
...“I’m going to crucify them. I’m going to put MRG[ & L] out of business.” In response to MRG & L’s allegations in support of amendment, Plaintiff states that MRG & L has not satisfied the requirements set out in Florida Statute § 768.72....
...end Counts III-V of its Counterclaim must be granted. Due to the Eleventh Circuit’s recent holding in Cohen , and this Court’s application of the doctrines set out in Eñe R. Co., Hanna, Mintz, and McGinty , this Court finds that Florida Statute § 768.72 does not apply to Defendant’s pendent state law claims because it is in direct conflict with Federal Rule of Civil Procedure 8(a)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 14492, 2010 WL 3766814
...The trial court entered two orders: (1) granting the plaintiffs’ motion to amend their complaint; and (2) granting portions of RCCL’S motion for a protective order but allowing inquiry into a number of areas. RCCL seeks quashal of both orders. THE ORDER AUTHORIZING AN AMENDMENT FOR PUNITIVE DAMAGES Section
768.72(1), Florida Statutes (2009), provides that “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis of such damages.” In Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995), the Florida Supreme Court concluded that section
768.72 creates “a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” (emphasis added). Although the court in Globe declined to interpret section
768.72 to permit certiora-ri review to test the sufficiency of the evidence considered by the trial judge, it did hold that certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section
768.72....
...The Florida Supreme Court “specifically agreefd] with the reasoning of the Fourth District in its decision in Sports Products, Inc. [v. Estate of Inalien,
658 So.2d 1010 (Fla. 4th DCA 1994) ], that certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section
768.72, Florida Statutes.” Globe,
658 So.2d at 520 ....
...In Globe, the Florida Supreme Court also specifically agreed with the Fourth District in Kraft General Foods, Inc. v. Rosenblum,
635 So.2d 106 (Fla. 4th DCA 1994), and Henn v. Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991), that al *233 lowing a punitive damages claim where the procedures of section
768.72 have not been followed would render the statute meaningless. Globe,
658 So.2d at 519-20 . Thus, the procedure mandated by section
768.72 must be followed, and failure to adhere to that procedure is a departure from the essential requirements of the law, reviewable by certiorari. Id. Section
768.72 provides in pertinent part: (2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence....
...or consented to such conduct; or (c)The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant. As previously stated, section 768.72(1) provides that damages shall not be permitted unless there is a reasonable showing by evidence, either in the record or proffered by the claimant, that would provide a reasonable basis for recovery of such damages....
...d or ratified the conduct; or (3) by its gross negligence, contributed to the plaintiffs’ damages. Because there is no evidence in this record to suggest that the trial court made an evidentiary inquiry and/or factual determinations as required by section 768.72, we grant RCCL’s petition and quash the trial court’s order granting the plaintiffs’ motion to amend their complaint to include a claim for punitive damages....
...sed on whether a non-seaman plaintiff may seek punitive damages in a maritime case based on the imputed fault of a principal or master, not whether, under the facts of this case, RCCL’s conduct could reasonably subject it to punitive damages under section 768.72....
...or to the incident. Based on the trial court’s unsolicited remarks indicating its proclivity to grant motions to add claims for punitive damages, its failure to consider whether the facts of the case warranted granting such a motion as required by section 768.72, and its remarks indicating its displeasure when it was informed by RCCL of RCCL’s intent to seek certiorari review of its orders, our remand is accompanied with directions to assign this case to a different judge....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 14527
...Contrary to the trial court’s conclusion,
3
there was “a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
CopyCited 1 times | Published | District Court, M.D. Florida | 1996 WL 567165, 1996 U.S. Dist. LEXIS 14788
...ity to make this same motion during the trial proceedings. While Defendant obviously opposes Plaintiffs Motion for Leave to Amend, this Court fails to see how Defendant is prejudiced by Plaintiffs motion. Neither parties dispute that Florida Statute § 768.72 is substantive and must be applied by Federal Courts....
...Plaintiff must obtain leave of court to amend her complaint before she may assert punitive damages. Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996). This Court must determine whether there is a reasonable basis for recovery of punitive damages. Id. To permit a claim for punitive damages, Florida Statute §
768.72 requires a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” This Court has the discretion to deny Plaintiffs Motion for Leave to Amend if permitting the amendment would be futile....
...Snap-On Tools Corp., the plaintiff proffered a jury verdict and various affidavits from a related case from California. Id. at
708 F.Supp. 1260 (M.D.Fla.1989). This Court concluded the Lewis plaintiff did not make a reasonable showing to provide a reasonable basis for recovery of punitive damages under Florida Statute, Section
768.72....
...onveyed to consumers the risk of liver damage or alcohol/acetaminophen interaction to consumers. In light of these allegations, Plaintiff has provided a reasonable showing for a reasonable basis for a claim for punitive damages under Florida Statute § 768.72....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 4039272, 2012 Fla. App. LEXIS 15393
...The same is true of orders dismissing claims without prejudice. Martin-Johnson, Inc. v. Savage,
509 So.2d 1097, 1099 (Fla.1987) (“Ordinarily, orders on motions to strike or dismiss claims do not qualify for review by certiorari.”), superseded on other grounds by statute, §
768.72, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31202273
...NORTHCUTT, Judge. The defendants in the proceedings below seek a writ of certiorari quashing the denial of their motion to dismiss the plaintiffs' claims for punitive damages. They contend that the circuit court failed to comply with the procedural requirements of section 768.72, Florida Statutes (1999)....
...reach of contract, fraud in the inducement, and breach of fiduciary duty. The plaintiffs sought punitive damages in the latter two counts. The defendants moved to dismiss the claims for punitive damages for failure to comply with the requirements of section 768.72, arguing the plaintiffs had not made an evidentiary showing that would provide a reasonable basis for recovery of such damages. At a hearing on the defendants' motion to dismiss, the plaintiffs claimed that section 768.72 did not apply, or had been automatically satisfied, because their complaint alleged fraud and because punitive damages may be awarded in fraud cases....
...1990), for this proposition, and the court denied the defendant's motion based on that case. In doing so, the court departed from the essential requirements of law. See Simeon *1092 Inc. v. Cox,
671 So.2d 158, 160 (Fla. 1996). We note that the federal court is in disagreement about whether section
768.72 is procedural or substantive, and whether a plaintiff must follow its procedural requirements when asserting a pendant state claim for punitive damages. Compare Primerica Fin. Servs., Inc. v. Mitchell,
48 F.Supp.2d 1363, 1371 (M.D.Fla. 1999) (stating section
768.72 requirement that the plaintiff must present evidence sufficient to state a claim for punitive damages was not applicable in federal court based on the federal rules of procedure) with Neill v. Gulf Stream Coach, Inc.,
966 F.Supp. 1149, 1155-56 (M.D.Fla.1997) (noting that requirements of section
768.72 created a substantive right to be free from a punitive damages claim absent a judicial determination that the claim has a reasonable evidentiary basis)....
...cluded in a plaintiff's complaint."
658 So.2d at 520. Moreover, Turner v. Fitzsimmons,
673 So.2d 532 (Fla. 1st DCA 1996), rejected the same argument the plaintiffs make here. Turner held that even when the pleadings allege fraud, the procedure under section
768.72 must be followed when a plaintiff seeks to obtain punitive damages from a defendant. Id. at 535-36. The plaintiffs here did not give the court any evidentiary basis for their claims. As our supreme court succinctly stated in Simeon: [T]o comply with [section
768.72's] requirements, a plaintiff must obtain leave from the trial court to amend the complaint before punitive damages may be asserted....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Ward, for
respondent.
Before SUAREZ, LAGOA, and SALTER, JJ.
SUAREZ, J.
Petitioners1 seek certiorari relief from the trial court’s order granting
Respondent Wilbur Pritchard’s (“Pritchard”) motion to amend his complaint to
assert a claim for punitive damages pursuant to section 768.72, Florida Statutes
(2018). Because we find that the trial court applied the correct law and complied
with the procedural requirements of section 768.72, we are compelled to deny the
petition.
This case stems from Pritchard’s retirement from Gold Coast, a Florida beer
distributor....
...He claims that he would not have retired had he known about the
prior negotiations since his equity plan units would have been worth much more if
he had remained.
In July 2017, Pritchard filed a motion to amend his complaint with a claim
for punitive damages pursuant to section
768.72.3 The trial court held two hearings
and ultimately granted Pritchard’s motion to amend. Petitioners now seek to quash
the trial court’s order, alleging that the court failed to comply with the
requirements of section
768.72.
Generally, certiorari relief is appropriate only if a petitioner establishes a
departure from the essential requirements of the law resulting in material injury
that cannot be remedied on appeal. See Robins v. Colombo, 43 Fla. L. Weekly
D1821, at *1 (Fla. 3d DCA Aug. 8, 2018); Nieves v. Viera,
150 So. 3d 1236, 1238
(Fla. 3d DCA 2014). Because section
768.72 creates “a substantive legal right not
to be subject to a punitive damages claim and ensuing financial worth discovery
until the trial court makes a determination that there is a reasonable evidentiary
2Levin was Gold Coast’s majority owner and Chairman; Fernandez was its Chief
Operating Officer.
3 Section
768.72(1) “requires a plaintiff to provide the court with a reasonable
evidentiary basis for punitive damages before the court may allow a claim for
punitive damages to be included in plaintiff’s complaint.” Globe Newspaper Co.
v. King,
658 So. 2d 518, 520 (Fla. 1995).
3
basis for recovery of punitive damages . . . a plenary appeal cannot restore a
defendant’s statutory right under section
768.72 ....
...e law”).
In determining whether the trial court departed from the essential
requirements of the law when it granted Pritchard’s motion to amend, we must
limit our review to whether the court complied with the procedural requirements of
section 768.72....
...remedy an incorrect
application of the correct law.” TRG Desert Inn Venture,
194 So. 3d at 519.
Based on our review of the record below, we are unable to find that the trial
court failed to comply with the procedural requirements of section
768.72.
Pritchard’s motion to amend contained a detailed table outlining the record
evidence and sworn declarations that provided the basis for his punitive damages
claim....
...nd the arguments presented
during the two hearings—that Pritchard “made the requisite showing by evidence
in the record or proffered by plaintiff that would support a reasonable basis for
recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants
....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 15261, 2001 WL 1334742
...ed him the roofing contract. However, the Castro case did not address the owner's right to proceed with its statutory and negligence causes of action, particularly where there has been no showing, as in Castro , that the owner was in pari delicto. . Section 768.72, Florida Statutes (2000), relating to punitive damages is also contained in Chapter 768, yet its application has never been confined to negligence actions....
CopyCited 1 times | Published | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 797, 2003 Fla. LEXIS 1779, 2003 WL 22410375
...Rule 1.190 is also amended, as proposed, to add new subdivision (f), Claims for Punitive Damages, which states the requirements for a party moving for leave of court to amend a pleading to assert a claim for punitive damages. See Beverly Health & Rehabilitation Services, Inc. v. Meeks,
778 So.2d 322 (Fla. 2d DCA 2000); §
768.72, Fla. Stat. (2002). We modify the Committee’s proposal to delete duplicative language and to add the term “a reasonable showing” from section
768.72, Florida Statutes (2002), which governs pleading claims for punitive damages....
CopyCited 1 times | Published | District Court, S.D. Florida
...y that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage." Mee Indus. v. Dow Chemical Co. ,
608 F.3d 1202 , 1220 (11th Cir. 2010) (citing Fla. Stat. §
768.72 (2)(a) )....
CopyCited 1 times | Published | District Court, S.D. Florida | 2016 U.S. Dist. LEXIS 91838, 2016 WL 3554922
...at 312 ,
119 S.Ct. 710 ; Fla. Stat. §§
624.155 (8),
626.9631. Of the civil remedies available outside of Florida insurance law, the Court sees no candidate more likely than a common law claim for fraud. See Montoya,
94 F.Supp.3d at 22 (citing Fla. Stat. §
768.72 ) (noting that plaintiff could bring a common law fraud claim challenging the conduct prohibited by Florida insurance law and could seek punitive damages in doing so)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1995 WL 258085
...1987), in which the court held: [W]e do not believe the harm that may result from discovery of litigant's finances is the type of "irreparable harm" contemplated by the standard of review for certiorari. We therefore are bound by Martin-Johnson unless it has been superseded by section 768.72, Florida Statutes....
...[Emphasis theirs]. Kraft,
635 So.2d at 109. This justification for certiorari is so enticing that we are saved from the rocky shoals only by the persistent whisper echoing through the surf: "What about the phrase, `or proffered by the claimant' which appears in section
768.72?" Kraft holds that under section
768.72 it is improper for a plaintiff in his original complaint ever to plead a claim for punitive damages....
...r her control, then such evidence must be established "in the record" before a claim for punitive damages is permissible. But what if sufficient evidence to support a claim for punitive damages is within the personal knowledge of the plaintiff? Does section 768.72 really contemplate that the plaintiff's "proffer" must be in response to a deposition, in answers to interrogatories, or in a filed affidavit? Why can't such a proffer be made in a sworn complaint? In our case, the plaintiff alleged un...
...had been confronted by a uniformed police officer who read the allegation to her in the presence of her children and others. Why do these allegations contained in a sworn complaint not satisfy the statutory *158 requirement of a "proffer"? Although section 768.72 requires that the court "permit" a pleading for punitive damages, it does not specify that the permission can only be sought in a hearing on a motion to amend....
...in the complaint sufficiently justify a claim for punitive damages. But are we willing to intervene by certiorari anytime a judge decides that the claim for punitive damages is sufficient? Martin-Johnson simply does not permit us to do so. In short, section 768.72 is little more than a codification of the law predating it: the defendant should not be exposed to financial discovery until the plaintiff has properly pleaded a claim for punitive damages and has proffered evidence sufficient to create a prima facie entitlement to such damages to the satisfaction of the trial court. Because section 768.72 did not dramatically change the prior law, it has not superseded Martin-Johnson....
...The attempt to sound the death knell of Martin-Johnson on the basis that the supreme court's July 1, 1987 decision arose out of a case that predated the July 1, 1986 effective date of the tort reform act does not persuade. As I understand the argument, because the enactment in 1986 of section 768.72, Florida Statutes, established conditions precedent to the maintenance of a claim for punitive damages, orders of the lower court that ostensibly do not protect the rights conferred by this statute should be reviewed by certiorari....
...at the legislature had entered the field of pleading requirements for punitive damages. Some six weeks earlier, they had expressly held this provision to be constitutional. Smith v. Department of Insurance,
507 So.2d 1080, 1092 (Fla. 1987). Although section
768.72 alters the lower court's duty, it does not really affect the principles governing review of interlocutory orders expressed in Martin-Johnson....
...For example, in the very same section, the plaintiff also is given a "right:" "[T]he Rules of Civil Procedure *159 shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages." § 768.72, Fla....
...The simple issue in this case involves the review of an order refusing to dismiss or strike a claim for punitive damages when the plaintiff has not first moved to include the claim. The Florida legislature placed that burden on a plaintiff when it enacted section 768.72, Florida Statutes (1993) as part of the Tort Reform and Insurance Act of 1986....
...The majority relies upon Martin-Johnson, Inc. v. Savage,
509 So.2d 1097 (Fla. 1987) for its decision, a case in which the factual matters considered arose prior to the July 1, 1986 effective date of the statute. Martin-Johnson did not consider or mention section
768.72 and should not be extensively relied upon to defeat the legislative dictates of section
768.72. Three district courts have addressed the question of certiorari review subsequent to Martin-Johnson and the enactment of section
768.72....
...flict with decisions of the third and fourth districts), rev. granted,
651 So.2d 1193 (Fla. 1995); Commercial Carrier Corp. v. Rockhead,
639 So.2d 660 (Fla. 3d DCA 1994) (order denying a motion to strike a punitive damages claim as unjustified under section
768.72, Florida Statutes (1991) is reviewable by certiorari); Kraft General Foods, Inc....
...I would grant Simeon's petition and quash the order denying its motion to dismiss and alternative motion to strike. The action should be remanded to the trial court for further proceedings without prejudice to the *160 petitioners to follow the adequate and reasonable procedure required by section 768.72 and explained in Kraft. There should be no need for this court to amend section 768.72....
CopyCited 1 times | Published | District Court, N.D. Florida | 2008 U.S. Dist. LEXIS 41049, 2008 WL 2157084
...refusing to pay money owed under an insurance policy for damages caused by Hurricane Ivan to Plaintiff's commercial building in September 2004. Among its demands for relief, Plaintiff has requested an award of punitive damages pursuant to Fla. Stat. § 768.72 [2] , as limited by Fla....
...h relief can be granted. ... FOURTEENTH AFFIRMATIVE DEFENSE There has been no reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of punitive damages as required by Fla. Stat. § 768.72[sic] therefore that claim should not be allowed to proceed and should be dismissed and in all respects subject to the limitations set forth in Fla....
...Stat. §
624.155 authorizes any person, after giving proper notice to the insurer, to bring a civil action against the insurer for a violation of an enumerated provision or for the commission of certain acts specified in the statute. [2] Fla. Stat. §
768.72(2) permits an award of punitive damages "if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence." [3] Fla....
...asonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage [7] Although I do not decide its applicability in this federal lawsuit, I note that Fla. Stat. 768.72(1) states, in relevant part, that: The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Wayne Frier Home Center of Pensacola, Inc. v.
2
Cadlerock Joint Venture, L.P.,
16 So. 3d 1006, 1008 (Fla. 1st DCA
2009).
A plaintiff’s ability to bring a punitive damages claim in a civil
action in Florida is governed by §
768.72, Florida Statutes. A
punitive damages claim can be added only after making a
“reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of
such damages.” §
768.72(1), Fla....
...condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal
entity engaged in conduct that constituted gross
negligence and that contributed to the loss, damages, or
injury suffered by the claimant.
§ 768.72(3), Fla. Stat.
In this case, Ms. Dukes sought to add a punitive damages
claim against TMH based upon the conduct of the “director” of the
emergency room. Ms. Dukes argued that her motion should be
granted because § 768.72(3)(b) specifically includes misconduct
condoned by the “directors” of a corporation.
What is missing from Ms....
...Dukes’s punitive damages claim
3
could not go forward in the absence of claiming or providing
evidence that TMH’s corporate management “knowingly condoned,
ratified, or consented to [the] conduct,” as required by
§ 768.72(3)(b)....
...superintendents, and workers—“who were not, on the record
before us, officers or managing members of the . . . companies.”
Fetlar, LLC,
230 So. 3d at 100. The court found these allegations
against non-management personnel to be contrary to the plain
language of §
768.72 and quashed the trial court’s order that had
allowed punitive damages to be pleaded....
...Wayne Frier Home
Center of Pensacola, Inc.,
16 So. 3d at 1009 (concluding that the
evidence could support a finding that management participated in
or condoned an employee’s misconduct).
Similarly, here, Ms. Dukes’s motion failed to meet
§
768.72(3)’s requirements for pleading a punitive damages claim.
Because the motion in this case did not allege or cite evidence that
corporate management knowingly condoned, ratified, or consented
to the alleged defamation, Ms....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit
...must
find “that the defendant was personally guilty of intentional misconduct or gross
22
Case: 14-14708 Date Filed: 03/07/2018 Page: 23 of 45
negligence.” Fla. Stat. § 768.72(2)....
...to mean “the defendant had actual knowledge of the wrongfulness of the conduct and
the high probability that injury or damage to the claimant would result and, despite
that knowledge, intentionally pursued that course of conduct, resulting in injury or
damage.” Id. § 768.72(2)(a). A plaintiff must prove such intentional misconduct by
“clear and convincing evidence.” Id. § 768.72(2).
Thus, while Engle conclusively established, by “the greater weight of the
evidence,” that Appellants concealed information and conspired to withhold that
information for purposes of awarding compensatory damages under thos...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 2508, 2009 WL 763618
...int to Allege Punitive Damages, and enforce its mandate to preclude a claim for punitive damages. We grant the petition because certiorari is the appropriate remedy to determine whether the trial court has conformed to the procedural requirements of section 768.72, Florida Statutes (2008)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 2656, 2011 WL 710157
...Sarasota Ostrich Farm/Ranch, Inc.,
875 So.2d 767, 768-769 (Fla. 2d DCA 2004); Greene v. Flewelling,
366 So.2d 777, 779-80 (Fla. 2d DCA 1978). On remand, the trial court may reconsider the plaintiffs motion to amend to add a claim for punitive damages under section
768.72, Florida Statutes (2002), since it does not appear that the court decided the motion on its merits, but relied primarily on the fact that the motion was untimely, since it was filed four days before trial....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2006 WL 471776
...Carnival timely petitioned for a writ of certiorari to review that order. As the Supreme Court explained in Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995): appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section
768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section
768.72....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 10024
...Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, for respondents Sarah Byers-
McPheeters and Bryan McPheeters.
PER CURIAM.
Petitioner seeks certiorari relief from a November 16, 2015 order
granting Respondents’ motion for leave to assert a punitive damages
claim. See §
768.72, Fla. Stat. (2015). Certiorari review is available to
determine whether a trial court has complied with the procedural
requirements of section
768.72, but not to review the sufficiency of the
evidence. Globe Newspaper Co. v. King,
658 So. 2d 518, 520 (Fla. 1995).
The trial court failed to fully comply with the procedural requirements
of section
768.72 when it expressly deferred making a finding on whether
the Respondents’ proffer established a reasonable basis for recovery
pursuant to section
768.72(3). 1
Under section
768.72(3), the legislature established a heightened
standard for imposing punitive damages on an employer rather than
adopting the common law rules of agency and vicarious liability....
...v. La Corte,
103 So. 3d 239, 241 (Fla. 3d
DCA 2012).
The trial court departed from the essential requirements of the law in
allowing Respondents to plead a punitive damages claim without first
determining whether the heightened requirements of section
768.72(3)
were met....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...During the trial court hearing on the proposed amendment and the alleged basis for punitive damages, the trial court stated that CCYC and the Director Defendants had not "challenged the evidence," and the court entered no written findings identifying any evidence considered to constitute a "reasonable basis" ( section 768.72(1) ) for the recovery of punitive damages....
...on appeal. Allstate Ins. Co. v. Langston ,
655 So. 2d 91 , 95 (Fla. 1995). Review of an order granting a motion to amend to add a punitive damages claim requires us to consider "whether a trial judge has conformed with the procedural requirements of section
768.72...", but the scope of review is "not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co....
...da, and the arguments presented during the two hearings-that [plaintiff] "made the requisite showing by evidence in the record or proffered by plaintiff that would support a reasonable basis for recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants ...." Levin v....
...damages. Artful pleading after numerous amendments is not necessarily curative. *1076 The denial of a motion to dismiss subsequently rewritten allegations is not a green light to add punitive damage claims without following the procedure mandated by section 768.72 (in which the legislature expressly required a more rigorous assessment)....
...One defendant and member of the board of directors, Scott Morrison, passed away in 2016. His estate was substituted as a defendant, but punitive damages have not been sought against the estate. Diaz also named Maylene Jimenez, a comptroller of CCYC, as a defendant, but has not served her. § 768.72, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1999 WL 9798
...The trial court struck as sham that part of the complaint which alleged the existence of an agreement between the parties to toll the statute of limitations. That ruling is supported by the record and is affirmed. The order striking the punitive damage claim without prejudice is affirmed. See § 768.72, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...of law and thus cause material injury to the petitioner
throughout the remainder of the proceedings below, effectively
leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v.
Savage,
509 So. 2d 1097, 1099 (Fla. 1987), superseded by statute
on other grounds, §
768.72, Fla....
CopyCited 1 times | Published | District Court, M.D. Florida | 2002 U.S. Dist. LEXIS 3462, 2002 WL 377145
...ims in Count II and III. The Defendants claim that punitive damages cannot be pled in this action as it would conflict with the Erie Doctrine. However, In Cohen v. Office Depot, the Eleventh Circuit Court of Appeals held that because Florida Statute § 768.72 conflicted with Federal Rule of Civil Procedure 8(a)(3), the rule would apply with respect to setting out claims for punitive damages in a pleading....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2003 WL 289499
...imed by the lienor *318 to be due or to become due and the amount actually due or to become due." Palm Coast responds that at no time did the Levins claim punitive damages in either the pleadings or the pretrial stipulation, nor did they comply with section 768.72, Florida Statutes, which provide the procedure for asserting punitive damage claims. We agree with Palm Coast that the Levins did have to seek punitive damages in the pleadings and comply with section 768.72 which requires a plaintiff to provide a reasonable evidentiary basis for a punitive damage claim before including it in a complaint....
CopyCited 1 times | Published | District Court, M.D. Florida | 1999 U.S. Dist. LEXIS 1618, 1999 WL 80351
...For a statute of limitations issue, when one state is the place of relationship for all parties, these contacts are far more important that the place of injury. Mezroub at 565. II. Claims For Punitive Damages Defendant avers that Plaintiff has improperly pled claims for punitive damages under Florida Statute, section 768.72, by not providing a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Upon review of the Florida Statute and case law provided by Defendant,...
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 19239
...Petitioners timely filed their petition for certiorari. Rule 1.190(f) hearing Section
429.297, Florida Statutes (2015), provides the statutory framework for punitive damage claims against assisted living facilities. That statute, like the more general punitive damage statute, section
768.72(1), Florida Statutes (2015), provides that “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” §
429.297(1), Fla....
...ecific nature of the mandatory hearing. We previously noted that “an evidentiary hearing where witnesses testify and evidence is offered and scrutinized under the pertinent evidentiary rules, as in a trial, is neither contemplated nor mandated by [section
768.72] in order to determine whether a reasonable basis has been established to plead punitive damages.” Estate of Despain,
900 So.2d at 642 ....
...n Woods). . Cases such as Surrey Place of Ocala v. Goodwin,
861 So.2d 1291 (Fla. 5th DCA 2004), do not provide any assistance in determining whether the current, amended rule requires a hearing as' a matter of right because those cases analyzed only section
768.72 and were decided under the previous version of rule 1.190, which did not include subsection (f).
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 17 Fla. L. Weekly Fed. B 102, 2003 Bankr. LEXIS 1927
...The court further reasoned that "[t]he nature of the wrongful act that will support [an award of punitive damages] must be characterized by some circumstance of aggravation and involve conduct that has often been described as `outrageous.'" Id. This is in accord with the general provisions of Florida Statutes Section 768.72....
...That section provides that no claim for punitive damages may be permitted unless there is an evidentiary basis to support it. Id. Moreover, the party seeking punitive damages must establish their entitlement by clear and convincing evidence. Fl.St. § 768.725....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 19092, 2010 WL 5093174
...on the fraud claim; thus, reading the complaint’s entire allegations to the jury and telling them to accept those facts as true may have interfered with the jury’s ability to independently determine the egregiousness of Belle Glade’s conduct. Section 768.72(2), Florida Statutes (2009) (emphasis added), provides that “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of i...
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 44 Fed. R. Serv. 3d 757, 1999 U.S. App. LEXIS 19581
...§ 1332.
Office Depot moved to strike the punitive damages request from the complaint and dismiss the
lawsuit. The court granted the motion to strike the punitive damages request on the ground that Cohen had
failed to comply with Florida Statutes § 768.72, which requires a plaintiff to obtain leave from the court
before including a prayer for punitive damages in a pleading....
...But that can occur only if Cohen is
permitted to assert her request for punitive damages. The district court struck Cohen's prayer for punitive
damages, because she failed to comply with the conditions for seeking punitive damages set forth in Florida
Statutes § 768.72. Section 768.72 provides as follows:
In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable
showing by evidence in the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages....
...reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery
of financial worth shall proceed until after the pleading concerning punitive damages is permitted.
Cohen argues that she satisfied the requirements of § 768.72 because she proffered evidence of malice
and wanton and reckless conduct sufficient to establish a reasonable basis for her punitive damages claim.
However, the Florida Supreme Court has interpreted § 768.72 as requiring the dismissal of any request for
punitive damages asserted without leave of the court....
...dismissed or stricken."). See also WFTV, Inc. v. Hinn,
705 So.2d 1010, 1011 (Fla. 5th Dist.Ct.App.1998);
Mayer v. Frank,
659 So.2d 1254, 1255 (Fla. 4th Dist.Ct.App.1995).
4
Thus, if §
768.72 applies in this case, the district court correctly struck the request for punitive
damages from Cohen's complaint, which means that request could not provide a basis for federal diversity
jurisdiction. If, on the other hand, §
768.72 does not apply, then the request for punitive damages should not
have been struck, and would provide a sufficient basis to satisfy the amount-in-controversy requirement for
diversity jurisdiction. Accordingly, we must determine whether the pleading requirements of §
768.72 apply
here, which entails resolving whether they conflict with any Federal Rule of Civil Procedure.2
Federal courts sitting in diversity are required to apply state substantive law and federal procedural
law....
...of Civil Procedure. If it does, "the court [is] instructed to apply the Federal rule, and can refuse to do so only
if the Advisory Committee, [the Supreme] Court, and Congress erred in their prima facie judgment that the
2
We recognize that §
768.72 contains a discovery component as well as a pleading component,
however, its discovery provision is not at issue in this case.
5
Rule in question transgresses neither the terms of the [Rules] Enabling Act nor constitutional restrictions."
Hanna,
380 U.S. at 471,
85 S.Ct. at 1144.
In addressing the applicability of §
768.72, at least one district court asked if it is substantive or
procedural, and in answering that question looked to state law decisions characterizing the provision as
substantive for some other purpose (such as the division of authority between the state legislature and
judiciary)....
...ural rule that is either unconstitutional or should not have been
adopted under the Rules Enabling Act process because it is a matter of substantive law. That exception will
be exceedingly rare, and it does not apply here because, as we shall see, § 768.72 conflicts with Federal Rule
of Civil Procedure 8(a)(3), which is a procedural rule and is not unconstitutional....
...6
where the first prong of Hanna applies, i.e., where the state provision conflicts with a federal rule of
procedure.
Applying the Hanna test, federal district courts in Florida have reached different conclusions about
whether § 768.72 applies in diversity cases. Most of the courts to address the matter agree that § 768.72
implicates Federal Rules of Civil Procedure 8(a) and 9(g), but they have split almost evenly on whether the
statute actually conflicts with either or both of those rules....
...507, 512
(S.D.Fla.1993) (no conflict); State of Wisconsin Inv. Bd. v. Plantation Square Assocs., Ltd.,
761 F.Supp.
1569, 1573-80 (S.D.Fla.1991) (conflicts with Rule 8(a)); Citron v. Armstrong World Indus., Inc.,
721
F.Supp. 1259, 1261-62 (S.D.Fla.1989) (conflicts with Rule 9(g)).
Cohen argues that §
768.72 conflicts with Federal Rule of Civil Procedure 8(a)(2) and (a)(3)....
...ading formalities, requiring
only that the pleading "give the defendant fair notice of what the plaintiff's claim is and the grounds upon
which it rests." Conley v. Gibson,
355 U.S. 41, 47,
78 S.Ct. 99, 103,
2 L.Ed.2d 80 (1957). Cohen argues that
§
768.72 essentially requires heightened pleading for punitive damages claims, contrary to the short and plain
statement rule of 8(a)(2). It is clear, however, that a request for punitive damages is not a "claim" within the
meaning of 8(a)(2); it is only part of the relief prayed for in a claim. Thus, there is no conflict between §
768.72 and Rule 8(a)(2).
7
As one district court has pointed out, "the more relevant portion of Rule 8 appears to be subsection
(a)(3)." Teel, 953 F.Supp....
...City of Atmore,
996 F.2d 1155, 1161 (11th Cir.1993) (quoting 5 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 1255, at 366 (2d ed.1990)). Punitive damages are a
remedy, so under the rule a request for them should be included in the complaint. As we noted above,
however, §
768.72 prohibits the inclusion of a request for punitive damages in any pleading without leave
of court. Thus, it appears that §
768.72 does conflict with Rule 8(a)(3).
Office Depot contends that there is no real conflict between §
768.72 and Rule 8(a)(3) because
Federal Rule of Civil Procedure 54(c) essentially renders Rule 8(a)(3) a nullity....
...y reinforces Rule 8(a)(3)'s
direction that the relief sought be included in the complaint.
Even if Rule 8(a)(3) does not require a plaintiff to include in a complaint a request for all the relief
sought, there is still a conflict between § 768.72 and Rule 8(a)(3), because the rule clearly allows the plaintiff
to include a request for punitive damages in her initial complaint, whereas § 768.72 prevents her from doing
8
so....
...Lockheed Missiles & Space Co.,
171 F.3d 1208, 1217 (9th Cir.1999);
S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist.,
60 F.3d 305, 307 (7th Cir.1995); Exxon Corp.
v. Burglin,
42 F.3d 948, 950 n. 3 (5th Cir.1995); Neifeld v. Steinberg,
438 F.2d 423, 426 (3d Cir.1971). Rule
8(a)(3) "occupies [§
768.72's] field of operation," because Rule 8(a)(3) governs the ability of plaintiffs to
request any and all of the relief sought (including punitive damages) in all pleadings that state a claim
(including initial complaints). If applied in federal court, §
768.72 would impair the operation and effect of
Rule 8(a)(3).
The nature of the conflict between §
768.72 and Rule 8(a)(3) is similar to the conflict in Hanna itself.
The issue in that case was whether a Massachusetts law or Federal Rule of Civil Procedure 4(d)(1) should
govern service of process....
... not required to wait until a later stage of the litigation to include a prayer for punitive damages, nor is she
required to proffer evidence or obtain leave of court before doing so. In short, Rule 8(a)(3) occupies the field
in which the pleading portion of § 768.72 would otherwise operate, leaving no room for it. The two
provisions do conflict.
Having concluded that Florida Statutes § 768.72 conflicts with Rule 8(a)(3), we must apply Rule
8(a)(3) unless it transgresses the Rules Enabling Act or the Constitution....
...unconstitutional, and we see no basis for such a challenge.
III. CONCLUSION
10
Our application of Hanna leads us to conclude that the pleading component of § 768.72 does not
apply in this case due to its conflict with Rule 8(a)(3). For that reason, we hold that the pleading requirements
of Florida Statutes § 768.72 are inapplicable in federal diversity cases....
CopyPublished | Florida 2nd District Court of Appeal
...certiorari. See Globe Newspaper Co. v. King,
658 So. 2d 518, 520 (Fla.
1995). Certiorari jurisdiction over orders on motions to add claims for
punitive damages was appropriate because "a plenary appeal cannot
restore a defendant's statutory right under section
768.72 to be free of
punitive damages allegations in a complaint until there is a reasonable
showing by evidence in the record or proffered by the claimant." Id.
Here, similarly, an appeal after the culmination of the proceedings to
terminate...
CopyPublished | Florida 3rd District Court of Appeal
...e
to assert a claim for punitive damages. Contrary to the trial court’s conclusion,
there was “a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
by section
768.72, Florida Statutes (2024). At the hearing, Respondents argued section
768.72 does
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 4057910
...t liability claim the court had previously dismissed. It also argued the complaint's claim for punitive damages violated the statutory requirement that a party seeking to add a claim for punitive damages establish a reasonable evidentiary basis. See § 768.72, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...r damages as equitable,
rather than legal, relief”).
2. Punitive Damages
In their complaint, the plaintiffs did not request punitive damages because, at
the time the complaint was filed, Florida Statute §
768.72 prohibited a plaintiff
from pleading punitive damages without first obtaining leave of court and
proffering evidence to support that pleading. See Cohen v. Office Depot, Inc.,
184
F.3d 1292, 1294-95 (11th Cir. 1999) (“Cohen I”). In Cohen I, which was decided
only a few weeks before the district court dismissed the present lawsuit, this Court
held that §
768.72 was inapplicable to federal court proceedings because it was
preempted by Rule 8(a)(2) of the Federal Rules of Civil Procedure....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2000 U.S. App. LEXIS 23752
...s as equitable, rather than
legal, relief").
2. Punitive Damages
In their complaint, the plaintiffs did not request punitive damages because, at the time the complaint
was filed, Florida Statute §
768.72 prohibited a plaintiff from pleading punitive damages without first
obtaining leave of court and proffering evidence to support that pleading. See Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1294-95 (11th Cir.1999) ("Cohen I"). In Cohen I, which was decided only a few weeks
before the district court dismissed the present lawsuit, this Court held that §
768.72 was inapplicable to
federal court proceedings because it was preempted by Rule 8(a)(2) of the Federal Rules of Civil Procedure.
See Cohen I,
184 F.3d at 1295-99....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 4629200
...g certain paragraphs of the
complaint admitted after petitioner failed to fully comply with an order compelling
production. As explained in Martin-Johnson, Inc. v. Savage,
509 So. 2d 1097, 1099 (Fla.
1987), superceded by statute on other grounds, §
768.72, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 13862, 2005 WL 2105374
...Browne seek certiorari review of the trial court’s order granting Elena Duke Benedict’s motion for leave to amend her counterclaims and cross-claims to add claims for punitive damages. This court has certiorari jurisdiction to review only whether the trial court complied with the procedural requirements of section
768.72, Florida Statutes (2004), in allowing an amendment to a pleading to include a punitive damages claim. Globe Newspaper Co. v. King,
658 So.2d 518, 519 (Fla.1995). After careful review of the record, we conclude that the trial court adhered to the procedural requirements of section
768.72 in authorizing the challenged amendments....
CopyPublished | Florida 3rd District Court of Appeal | 2014 WL 4628520
...damages, and against SCI for negligence, violations of Chapter 497, and punitive
damages. The trial court declined to make findings that would impute the alleged
conduct of SCI’s employee or employees to SCI under the applicable statutory
procedure. Subsections 768.72(2) and (3), Florida Statutes (2013), specify:
(2) A defendant may be held liable for punitive damages only if the
trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence....
...loss, damages, or injury suffered by the claimant.
Here, as in Coronado Condominium Ass’n, Inc. v. La Corte,
103 So. 3d 239
(Fla. 3d DCA 2012), the respondents failed to proffer evidence satisfying any of
the three categories of corporate involvement established in section
768.72(3)(a),
(b), or (c), as required to subject SCI to a punitive damages claim....
CopyPublished | Florida 3rd District Court of Appeal | 2007 WL 1062521
...So but for the Perlman decision I wouldn't be allowing the amendment at all, based on the facts, even if they were undisputed ... I'm only allowing it in a fraud count and I'm only allowing it because the Third District says that I must. (emphasis added). II. STANDARD FOR AMENDING COMPLAINT TO INCLUDE PUNITIVE DAMAGES Under section 768.72, Florida Statutes (2005), a plaintiff is required to *1090 obtain leave from the trial court to amend the complaint before punitive damages may be asserted and is further required to make an evidentiary showing that would provide a reasonable basis for recovery of such damages....
...2d DCA 2002). III. ANALYSIS Rego's reliance on Perlman is misplaced. Rego's argument confuses allegations of fraudulent inducement sufficient to survive a motion to dismiss with evidence supporting those allegations sufficient to meet the requirements of section 768.72....
...or punitive damages. See Cypress Aviation,
826 So.2d at 1092; Turner v. S.G. Fitzsimmons, IV,
673 So.2d 532, 535-36 (Fla. 1st DCA 1996). In order to be so entitled, Rego was required to present an evidentiary basis in support of his fraud claim. See Section
768.72, Florida Statutes (2005); Cypress Aviation,
826 So.2d at 1092....
...at a sufficient evidentiary basis exists for a punitive damages claim. Not so. We agree that certiorari jurisdiction does not lie to review the merits of a trial court's ruling that sufficient evidence exists to assert a punitive damages claim under section 768.72....
...identiary basis when fraud is alleged. Our holding today is entirely confined to reversing this second prong of the trial court's reasoning. An allegation of fraud, on its own and without any evidentiary support, does not satisfy the requirements of section 768.72, Florida Statutes (2005)....
...2d DCA 2002). Faced with similar facts, both the First District and the Second District rejected the same argument advanced by Rego. In both cases, the First and Second District concluded that, even when a party's pleadings allege fraud, the procedure under section
768.72 must be followed and an evidentiary basis for punitive damages must be provided before the party can assert a claim for them. See Turner,
673 So.2d at 535-36; Cypress Aviation,
826 So.2d at 1092. Because the trial court did not follow the required statutory procedure set forth in section
768.72, Florida Statutes (2005), we grant the petition for certiorari and quash the trial court's order granting Rego leave to amend his complaint to add a claim for punitive damages. SCHWARTZ, Senior Judge, concurs. RAMIREZ, J., (dissenting). As the majority opinion states in footnote 1, "[t]his Court has certiorari jurisdiction to review a claim alleging failure to comply with the procedural requirements of section
768.72, Florida Statutes (2005)." (emphasis added)....
...I. Procedural Requirements Even if the trial court misinterpreted the holding in Perlman v. Prudential Ins. Co. of America, Inc.,
686 So.2d 1378 (Fla. 3d DCA 1997), and I do not believe it did, [4] the trial court followed the procedural dictates of section
768.72 and thus certiorari relief is inappropriate in this case. Section
768.72(1) states: In any civil action, no claim for punitive damages shall be permitted unless there *1092 is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...judge has complied with the procedural requirements of the section, but our certiorari jurisdiction "is not so broad as to encompass review of the sufficiency of the evidence when the trial judge has complied with the procedural requirements of the section 768.72." Id....
...to decide the issue of punitive damages. Id. at 534. The trial court denied the request and the appellate court affirmed, stating that the request was untimely. Id. at 536. It then held that even when the pleadings allege fraud, the procedure under section 768.72 must be followed when a plaintiff seeks to obtain punitive damages from a defendant....
...Thus, the procedure whereby the trial court allowed the assertion of *1093 punitive damages was fraught with procedural infirmities. The defendants then moved to dismiss the claims for punitive damages. Id. At the hearing on the motion, plaintiffs argued that section 768.72 did not apply, or was automatically satisfied, because the complaint alleged fraud....
...I'm only allowing it in a fraud count and I'm only allowing it because the Third District says that I must. TR. 25-29. B. Perlman as Binding Precedent It is clear from the quoted portions of the hearing on the motion to amend that the trial court had a knowledgeable grasp of the issues presented and the requirements of section 768.72....
...The discussion on Perlman is accurate. The trial judge did not state, as argued in the petition, that Perlman stood for the proposition that "the pendency of a fraud claim automatically satisfies the requirements for pleading punitive damages under Section 768.72, Florida Statutes." On the contrary, the trial court properly relied on Perlman....
...ourt, which the lower court did not permit." Thus, on remand, the trial court should allow such an evidentiary proffer. NOTES [1] This Court has certiorari jurisdiction to review a claim alleging failure to comply with the procedural requirements of section 768.72, Florida Statutes (2005)....
...surance Company of America at
686 So.2d 1378. The headnote provides that, "If there is a claim of fraud sufficient to justify compensatory damage it is also sufficient to support an award of damages." [3] The Perlman opinion does not cite or discuss section
768.72 and its statutory requirements....
CopyPublished | District Court of Appeal of Florida
So. 2d 1188, 1191 (Fla. 4th DCA 2005). Section
768.72, Florida Statutes (2022), provides that a punitive
CopyPublished | Court of Appeals for the Eleventh Circuit
intentional misconduct or gross negligence. Fla. Stat. §
768.72(2); see also Fla. Std. Jury Instr. 503.1b(1)
CopyPublished | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 14536, 2011 WL 4056117
...See Globe Newspaper Co. v. King,
658 So.2d 518, 519-20 (Fla.1995) (confirming that district court jurisdiction to review orders granting amendments to add punitive damage claims does not extend to reviewing the sufficiency of evidentiary determinations under section
768.72 of the Florida Statutes); Solis v. Calvo,
689 So.2d 366, 368 (Fla. 3d DCA 1997) (confirming that while certiorari review is appropriate to determine whether the procedural requirements of section
768.72 have been met, such is not so broad authority as to encompass review of the sufficiency of the evidence supporting a determination that a claim for punitive damages may be pled)....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2017) (quoting Varnedore v. Copeland,
210 So. 3d 741, 747-48 (Fla. 5th DCA 2017)); see also Petri Positive Pest
Control, Inc. v. CCM Condo. Assoc., Inc.,
174 So. 3d 1122 (Fla. 4th DCA
2015); Henn v. Sandler,
589 So. 2d 1334, 1335 (Fla. 4th DCA 1991) (en
banc) (stating that section
768.72, Florida Statutes creates “a positive legal
right in a party not to be subjected to financial worth discovery until the
trial court has first made an affirmative finding that there is a reasonable
evidentiary basis for the punitive d...
CopyPublished | Florida 2nd District Court of Appeal
...Omega Title now argues in this petition for writ of certiorari
that the trial court erred in granting the motion without making
affirmative findings that the Butschkys had alleged a reasonable
basis for punitive damages. The rationale for this argument begins
with section 768.72(1), Florida Statutes (2018), which provides that
"no claim for punitive damages shall be permitted unless there is a
reasonable showing by evidence in the record or proffered by the
2
claimant which...
...District's decision in Henn v. Sandler,
589 So. 2d 1334 (Fla. 4th
DCA 1991), Omega Title contends that a trial court must expressly
make an affirmative finding on the record that the statutory
standard has been met. On that point, the Henn court stated that
it "read[s] section
768.72 as creating a positive legal right in a party
not to be subjected to financial worth discovery until the trial court
has first made an affirmative finding that there is a reasonable
evidentiary basis for the punitive damages claim to go to the jury."
Id....
...However, we find this error to be
essentially harmless. As we stated in Reddish, the purpose of
4
specific findings is to enable appellate review to ensure that the trial
court complied with the procedural requirements of section
768.72.
See generally Globe Newspaper Co. v. King,
658 So. 2d 518, 520
(Fla. 1995) (holding that certiorari is available to review whether the
trial court has followed the procedures set forth in section
768.72,
"but not so broad as to encompass review of the sufficiency of the
evidence considered in that inquiry"); Beverly Health & Rehab.
Servs., Inc. v. Meeks,
778 So. 2d 322, 325 (Fla. 2d DCA 2000)
(noting that "Globe Newspaper gives us the power in a certiorari
proceeding to enforce the procedures associated with section
768.72" and stating that "the trial court's decision withstands our
standard of review [on certiorari] so long as the decision is
consistent with the statute and the court has satisfied the
requirements of due process")....
...make express findings when granting leave to add a claim for
punitive damages.
Neither the applicable statute nor the associated rule of
procedure require a court to announce specific findings beyond
granting or denying a plaintiff's motion to add a punitive damages
claim. See § 768.72(1), Fla....
...1.190(f).
The First District recently addressed this issue in Watt v. Lo,
302
So. 3d 1021 (Fla. 1st DCA 2020), and recognized that the statute
and rule simply do not compel the affirmative finding that Henn and
its progeny have required:
[N]othing in the plain language of section
768.72(1) requires a trial court to make
express or affirmative findings when
determining whether to permit a claimant to
assert a punitive damages claim. All that is
required is that the claimant make the
necessary showing based on evidence in the
6
record or proffered by the claimant. §
768.72,
Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...2010).
Under Florida law, “[a] defendant may be held liable for punitive damages
only if the trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross negligence.” Fla.
Stat. § 768.72(2)....
....
“‘Gross negligence’ means that the defendant’s conduct was so reckless
or wanting in care that it constituted a conscious disregard or
indifference to the life, safety, or rights of persons exposed to such
conduct.”
Id. § 768.72(2)(a)-(b).
Florida imposes also various statutory caps on punitive damages....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 15616, 2014 WL 5002115
...Punitive damages
The Hospital argues that the award of punitive damages against the
Hospital cannot stand based on the errors discussed above. We agree. But we note
that Ms. Liles may be able to prove a claim for punitive damages on retrial for the
Hospital's actions independent of Dr. Gordon. See § 768.72(2)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal
...ging
of the fee. Napleton’s N. Palm Auto Park, Inc. v. Agosto,
364 So. 3d 1103,
1106–07 (Fla. 4th DCA 2023). As a result, the plaintiffs did not proffer a
reasonable evidentiary basis to find employer or corporate liability for
punitive damages. §
768.72(3), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Development Holdings, LLC (collectively, “Petitioners”), seek certiorari
review of the trial court’s order granting Cory Lapin’s (“Respondent”)
second amended motion for leave to file an amended complaint to add a
claim for punitive damages pursuant to section 768.72, Florida Statutes
(2021). We deny the petition.
The record before this Court reflects that the trial court complied with
the procedural requirements of section 768.72....
...3d DCA 2020); see also Event
Depot Corp. v. Frank,
269 So. 3d 559, 561-63 (Fla. 4th DCA 2019)
(recognizing that the scope of an appellate court’s certiorari review is
limited to whether the trial court complied with the procedural requirements
of section
768.72, but certiorari review is not available to review the
sufficiency of the respondent’s evidentiary proffer)....
CopyPublished | Florida 3rd District Court of Appeal
...for writ of certiorari and deny relief.
See Vital Pharms., Inc. v. Kesten, 47 Fla. L. Weekly D1783, D1783–84 (Fla.
3d DCA Aug. 24, 2022); Martin-Johnson, Inc. v. Savage,
509 So. 2d 1097,
1098 (Fla. 1987), superseded by statute on other grounds, §
768.72, Fla.
Stat....
CopyPublished | Florida 2nd District Court of Appeal
...gaged in conduct that was "so reckless or wanting
in care that it constituted a conscious disregard or indifference to the life, safety, or
rights of persons exposed to such conduct," and that conduct contributed to the loss of
the injured party. § 768.72(2)(b), (3)(c), Fla....
...rgument. See Robinson v. Winn-
Dixie Stores, Inc.,
447 So. 2d 1003, 1005 (Fla. 4th DCA 1984).
-5-
conscious disregard or indifference to the life, safety, or rights of persons exposed to
such conduct." §
768.72(2)(b)....
CopyPublished | Florida 4th District Court of Appeal
...2
We have de novo review of an order on a motion for leave to amend to assert
a claim for punitive damages. Pinnacle Prop. Mgmt. Servs., LLC v. Forde,
372 So.
3d 292, 295 (Fla. 4th DCA 2023) (citation omitted).
Section
768.72(1), Florida Statutes (2020), provides:
In any civil action, no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis
for recovery of such damages. The claimant may move to amend her
or his complaint to assert a claim for punitive damages as allowed
by the rules of civil procedure.
§
768.72(1), Fla....
...specifically intended to engage in intentional or grossly negligent
misconduct that was outrageous and reprehensible enough to
merit punishment.
Fed. Ins. Co. v. Perlmutter,
376 So. 3d 24, 33–34 (Fla. 4th DCA 2023) (emphasis
added).
Section
768.72 further provides (in relevant part):
(2) A defendant may be held liable for punitive damages only if the
trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence....
...(b) “Gross negligence” means that the defendant’s conduct was so
reckless or wanting in care that it constituted a conscious disregard
or indifference to the life, safety, or rights of persons exposed to such
conduct.
§ 768.72(2), Fla....
...not automatically provide a reasonable basis for a plaintiff to seek punitive
damages. Id. at 778. Rather, “[t]here must be some additional act that shows
the cell phone usage was reckless or a conscious disregard of or indifference to
others to show gross negligence under section 768.72(2)(b).” Id....
CopyPublished | District Court of Appeal of Florida
amend to add a claim for punitive damages under section
768.72, Florida Statutes (2018). In determining whether
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 4654900
...rsion of the punitive damages statutes resulting in an incorrect jury instruction on the standard-for awarding punitive damages and an award of punitive damages in excess of that permitted by law. Chapter 99-225, section 22, Laws of Florida, amended section 768.72(2)(b), Florida Statutes, to require a “conscious disregard” for the safety of others rather than the previous standard of “reckless disregard,” to allow for an award of punitive.damages....
...Typically, the applicable version of a statute is the one “in effect when the cause of action arose.” D’Angelo v. Fitzmaurice,
863 So.2d 311 , 314 n.9 (Fla. 2003) (citing Basel v. McFarland & Sons, Inc.,
815 So.2d 687 (Fla. 5th DCA 2002)); §§
768.72(4) &
768.73(5), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...We know this because the
legislature established that “[i]n any civil action, no claim for punitive
damages shall be permitted unless there is a reasonable showing by
evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...This requirement triggers the trial court’s
“gatekeeping” function whereby it may allow punitive damages claims only
where “a reasonable basis” for recovery exists. Globe Newspaper Co. v.
3
King,
658 So. 2d 518, 519 (Fla. 1995) (“[R]ead[ing] section
768.72 to create
a substantive legal right not to be subject to a punitive damages claim and
ensuing financial worth discovery until the trial court makes a determination
that there is a reasonable evidentiary basis for recovery of punitive
damages.”); see also Fed....
...3d DCA 2022).
This isn’t the time to prove the case, or even to determine that the
evidence proffered itself constitutes “clear and convincing evidence . . . that
the defendant was personally guilty of intentional misconduct or gross
negligence.” § 768.72(2), Fla....
...“‘Intentional misconduct’ means that
the defendant had actual knowledge of the wrongfulness of the conduct and
the high probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” § 768.72 (2)(a), Fla....
...conduct,” “engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the claimant,” or that
its “officers, directors, or managers . . . knowingly condoned, ratified, or
consented to such conduct.” § 768.72(3)(a)–(c), Fla....
...ence and, as relevant
here, (2) that the employer, via its “officers, directors, or managers
9
. . . knowingly condoned, ratified, or consented to such conduct.” Grove Isle,
350 So. 3d at 831 (citing section
768.72(3)(b), Florida Statutes)....
...mous parties at a customer call
center satisfy the requirement to support that “[t]he officers, directors, or
managers of the employer, principal, corporation, or other legal entity
knowingly condoned, ratified, or consented to such conduct.” § 768.72(3)(b),
Fla....
...But what the dissent proffers isn’t the standard, and it ignores the clear
statutory mandate that the “officers, directors, or managers . . . knowingly
11
condoned, ratified, or consented to such conduct.” § 768.72(3)(b), Fla....
...The dissent attempts
to distinguish the result in Feltar by noting that, unlike this case, “the plaintiff
did not sue the individual employee, as required by that statute.” Dissent at
10. But that misreads the rationale for Feltar as well as the plain language of
section 768.72....
...individual construction managers, superintendents, construction workers—
who were not, on the record before us, officers or managing members of the
limited liability companies—is, without more, [not] misconduct of the four
corporate petitioner/defendants for purposes of section 768.72.” 230 So....
...12
nothing to do with the fact that the employees weren’t sued and everything
do to with the fact that the plaintiff couldn’t meet the requirements of an
employer’s active participation or knowledge under section 768.72(3)(a)–(c).
Id....
...d the mandates of the statute” or
“require a showing beyond that which is required by the statute.” Dissent at
7. The requirement to put management on notice is a procedural requirement
imposed by statute, which is not met in this case. See § 768.72(3), Fla....
...opinion, those facts are somewhat incomplete since they omit discussion of
the proffer filed by the plaintiff together with her motion to amend.
The Statute
The statutory mechanism for seeking punitive damages is found in
Chapter 768.72, Florida Statutes (2022). Specifically, 768.72(1) provides:
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages....
...damages is established by Florida Statute. “In any civil action, no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...rned
multiple times that stacking 40-to-50-pound boxes seven-feet high poses a
significant danger and that ignoring those complaints shows a “conscious
disregard or indifference to life, safety, or rights of persons exposed to such
conduct?” § 768.72(2)(b), Fla. Stat. (2022). Because in reviewing the trial
court’s ruling that plaintiff made the necessary showing under section
768.72, this Court views the evidence in the light most favorable to plaintiff,
and we do not weigh the evidence or evaluate witness credibility, I submit
that the answer is yes....
...was made aware of the issue. Furthermore, the store manager testified he
told his supervisor the drivers were stacking the heavy boxes too high and
told his supervisor that he had notified McLane, thus satisfying either
subsection (b) or (c) of section 768.72(3)....
...stronger facts than present here, . .
.” But Fetlar is distinguishable because in that case, the plaintiff did not sue
the individual employee, as required by the statute. Here, Wool in fact sued
Munroe, McLane’s employee, thus complying with section 768.72,
something the plaintiff in Fetlar did not do.
The majority also cites to Coronado Condominium Association, Inc....
...s - who were not . . . officers or
members of the board of directors of the Association” - was without more,
misconduct on the part of the Association. Id. at 240-42. Accordingly, the
plaintiff did not comply with the procedural requirements of section 768.72.
The plaintiff in Coronado did not impute the alleged misconduct to the
Association as the employer of the named tortfeasors (or as a corporate
defendant)....
...In
Dukes, plaintiff alleged that she had been defamed by the “ ‘director’ of
TMH’s emergency room.” Id. at 825. Plaintiff sought to add a punitive
damages claim against TMH based upon the conduct of the “director” of the
emergency room. Plaintiff argued that her motion should be granted because
section 768.72(3)(b) specifically included misconduct condoned by the
“directors” of a corporation....
CopyPublished | Florida 2nd District Court of Appeal
...damages claim and ensuing financial worth discovery until the trial court makes a
determination that there is a reasonable evidentiary basis for recovery of punitive
damages." Cf. Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995) (holding
that in the context of section
768.72, Florida Statutes (1993), the punitive-damages
statute is generally applicable to civil actions)....
...amend. See
Globe Newspaper Co.,
658 So. 2d at 519-20 (holding that appellate courts have
certiorari jurisdiction to review whether a trial court "has conformed with the procedural
-2-
requirements of section
768.72" and "should grant certiorari in instances in which there
is a demonstration by a petitioner that the procedures of section
768.72 have not been
followed").
We conclude that it did not....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 11560, 1997 WL 633951
...§ 1983 , defamation, and intentional infliction of mental distress— we affirm the trial court’s dismissal with prejudice. We affirm the dismissal of the claim for punitive damages, without prejudice for appellant to make the evidentiary showing required by section 768.72, Florida Statutes (1995)....
CopyPublished | District Court of Appeal of Florida
So. 3d 1261, 1263 (Fla. 4th DCA 2013). Section
768.72, Florida Statutes, was enacted in 1986 to resolve
CopyPublished | Florida 3rd District Court of Appeal
...enrichment, and fraud. 5 In its complaint, Aquastar alleged that Avant had
4
While Aquastar’s fraudulent lien count asserted a claim for punitive
damages, see §
713.31(2)(c) (2018), Aquastar did not comply with the
procedural requirements of section
768.72 of the Florida Statutes.
5
In the Amended Final Judgment, the trial court ruled against Aquastar on
its claims for fraud in the inducement, conversion and unjust enrichment.
Aquastar did not appeal these rulings....
CopyPublished | Florida 5th District Court of Appeal
in light of the procedural requirements of section
768.72, Florida Statutes, which requires a trial court
CopyPublished | Florida 4th District Court of Appeal
...provided that once the policy limits were paid out, Safeco had no obligation
to defend the insured on the punitive damage claim, even if suit was
commenced with a complaint alleging general negligence and not punitive
damages, as is required pursuant to section 768.72, Florida Statutes
(2022)....
CopyPublished | Florida 4th District Court of Appeal
...provided that once the policy limits were paid out, Safeco had no obligation
to defend the insured on the punitive damage claim, even if suit was
commenced with a complaint alleging general negligence and not punitive
damages, as is required pursuant to section 768.72, Florida Statutes
(2022)....
CopyPublished | Florida 3rd District Court of Appeal
...s order
granting Ugo Colombo (“Colombo”) leave to assert a claim for punitive
damages against Bank of America. We deny the petition.
The record before this Court reflects that the trial court complied with
the procedural requirements of section 768.72(1), Florida Statutes (2021).
Colombo proffered evidence in support of his claim for punitive damages
against Bank of America, and following a hearing, the trial court entered an
order finding that Colombo “proffered a reasonable e...
...4th DCA 2019)
(recognizing that the scope of an appellate court’s certiorari review of an
order granting a motion for leave to add a claim for punitive damages is
limited to whether the trial court complied with the procedural requirements
of section 768.72, but certiorari review is not available to review the
sufficiency of the respondent’s evidentiary proffer); see also E.R....
CopyPublished | Florida 3rd District Court of Appeal
...elegable
duty to provide reasonably safe premises; and Count VI—negligent
infliction of emotional distress. The only count in which Lacalamita
specifically sought punitive damages was in Count III—gross negligence. 2
Pursuant to section 768.72(2)(b), Florida Statutes (2021), a
defendant may be held liable for punitive damages if a jury finds that the
defendant was personally guilty of “gross negligence.” Count III was based
on the same facts alleged in Count I for bre...
CopyPublished | Florida 4th District Court of Appeal
...pany
vehicle. While in the company vehicle, Pool crashed into Servinsky and
caused significant injuries. We agree that Servinsky failed to proffer
sufficient evidence to make a reasonable showing that he is entitled to
recover punitive damages under section 768.72, Florida Statutes (2019),
and reverse the circuit court’s order.
i....
...The circuit
court reasoned that a more prudent investigation would have shown that
Ebsary should not have hired Pool and given him keys to a company
vehicle.
ii. Analysis
We review de novo a trial court’s finding that a plaintiff has made a
“reasonable showing” under section
768.72 to recover punitive damages.
See Progressive Select Ins. Co. v. Ober,
353 So. 3d 1190, 1192 (Fla. 4th
DCA 2023).
The Servinskys did not proffer sufficient evidence to make a reasonable
showing that would provide a reasonable basis for the recovery of punitive
damages. §
768.72(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
...a wrongful death
medical malpractice complaint to assert a claim for punitive
damages. 1 Concluding that the record evidence and the proffered
evidence do not reasonably show that Hospital Specialists engaged
in the behavior described and defined in section 768.72(2) and (3),
Florida Statutes (2017), as required for the recovery of punitive
damages, we reverse.
BACKGROUND
According to the operative complaint, Hospital Specialists is a
Florida professional association providing hospitalist 2 services at
St....
...ptoms. Appellee
alleged that, within a reasonable degree of medical probability,
had Deen been provided with the appropriate care, he would not
have suffered the myocardial infarction which led to his ultimate
death.
Appellee later moved under section 768.72, Florida Statutes,
and Florida Rule of Civil Procedure 1.190 to amend her complaint
to assert a claim for punitive damages....
...favorable to the plaintiff. Est. of Blakely by and through Wilson v.
Stetson Univ., Inc.,
355 So. 3d 476, 481 (Fla. 5th DCA 2022) (citing
Est. of Despain v. Avante Grp., Inc.,
900 So. 2d 637, 644 (Fla. 5th
DCA 2005)).
AN OVERVIEW OF PUNITIVE DAMAGES CLAIMS
Section
768.72, Florida Statutes (2017), is titled “Pleading in
civil actions; claim for punitive damages.” Subsection (1) of this
statute provides that no claim for punitive damages in a civil
action shall be permitted “unless there is a reasonable showing by
evidence in the record or proffered by the claimant which would
provide a reasonable basis for recovery of such damages.” See also
Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995)
(explaining that section
768.72 creates a substantive legal right for
a party not to be subject to a punitive damages claim unless a trial
court first determines that there is a reasonable basis for the
recovery of such damages).
Resultingly, a punitive damages claim is not properly pled in
the initial complaint; instead, under section
768.72(1), a plaintiff,
as allowed by the rules of civil procedure, may move to amend his
or her complaint to obtain court approval to assert a claim for
punitive damages....
...For punitive damages to be imposed
against an employer, principal, corporation, or other legal entity
for the conduct of one of its employees or agents, the employee or
agent’s behavior or actions must be of such a nature to constitute
“intentional misconduct” or “gross negligence.” See § 768.72(2)–
(3)....
...The term “intentional misconduct” means “that the defendant
had actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that
course of conduct, resulting in injury or damage.” § 768.72(2)(a).
“Gross negligence” is separately defined in the statute as conduct
that “was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of
persons exposed to such conduct.” § 768.72(2)(b).
If the conduct of the employee or agent meets either
threshold, then, under section 768.72(3), the employer, principal,
corporation, or legal entity may be subject to punitive damages if:
(1) it actively and knowingly participated in such conduct; (2) its
officers, directors, or managers knowingly condoned, ratified, or
consented to such conduct; or (3) the officers, directors, or
managers engaged in conduct that constituted gross negligence
and that contributed to the loss, damages, or injury suffered by the
claimant.
Courts are also reminded that when analyzing a motion to
amend brought under section 768.72, punitive damages are not
intended to be compensation for injury but instead “are private
fines levied by civil juries to punish reprehensible conduct and to
deter its future occurrence.” Perlmutter, 48 Fla....
... lead him to exclaim, ‘Outrageous!’” Id. (alterations in original)
(quoting Oriolo,
357 So. 3d at 706).
In that vein, the Florida Supreme Court has analogized the
requisite level of negligence necessary for the assessment of
punitive damages under section
768.72 to that necessary for a
conviction for criminal manslaughter....
...protocol and section
464.012, the dispositive question here, though,
is whether assigning Lancaster to take after-hours call for Dr.
Khan’s patients, including Deen, was so outrageous in character
or reprehensible to expose Hospital Specialists to a claim for
punitive damages under section
768.72. Our answer is “No.”
A finding of intentional misconduct, under section
768.72(2)(a)’s definition, would require that Dr....
...Khan was
unavailable for consultation by phone if an issue arose regarding
Deen. The facts of the case do not rise to the level of Hospital
Specialists, through Dr. Khan or Lancaster, evincing a reckless or
conscious disregard of or indifference to human life to meet the
definition of gross negligence under section 768.72(2)(b)....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 15556, 2001 WL 1346419
...claim for punitive damages. Because the court’s order is not reviewable by certiorari, we dismiss the petition. An appellate court has certiorari jurisdiction to review only whether the trial court has conformed with the procedural requirements of section 768.72, Florida Statutes (2001), in allowing a punitive damages claim; the court does not have certiorari jurisdiction to determine whether there is sufficient evidence to allow a punitive claim....
...King,
658 So.2d 518 (Fla.1995). Compare Stephanos v. Paine,
727 So.2d 1075 (Fla. 4th DCA 1999) (trial court departed from essential requirements of law by failing to dismiss amended complaint claiming punitive damages filed without first obtaining leave of court). Section
768.72 states, “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which will provide a reasonable basis for recovery of such d...
...nitive damages. She then proffered evidence at a hearing in support of her punitive damages claim. After hearing the proffer, the trial court found the proffer sufficient to allow the punitive damages claim. Therefore, the procedural requirements of section 768.72 were met in this case....
...We write, however, to emphasize our agreement with Judge Cobb’s special concurrence in Gonzales wherein he wrote: [Cjertiorari should be available to review whether the plaintiff has established a preliminary evidentiary basis for a punitive damages claim. See § 768.72, Fla....
CopyPublished | District Court of Appeal of Florida
complied with the procedural requirements in section
768.72, Florida Statutes; we do not have jurisdiction
CopyPublished | Florida 3rd District Court of Appeal
...Lindzon’s motion for leave to amend his complaint to assert
a claim for punitive damages. 1 Because Lindzon failed to satisfy the
requirements for establishing entitlement to assert a claim for punitive
damages against a corporation pursuant to section 768.72, Florida Statutes
(2022), the trial court erred in granting Lindzon’s motion to amend, and we
therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Lindzon owns a unit at Grove Isle Condominium....
...ed
to proceed with his punitive damages claim, the defendant becomes subject
to financial discovery and, potentially, to uninsured losses. Id.; see also Est.
of Despain v. Avante Grp., Inc.,
900 So. 2d 637, 641 (Fla. 5th DCA 2005)
(“[A]lthough section
768.72(1) is procedural in nature, it also provides a
substantive right to parties not to be subjected to a punitive damage claim
and attendant discovery of financial worth until the requisite showing under
the statute has been made to the trial court”.) For these reasons, “punitive
damages are reserved for truly culpable behavior and are intended to
express society's collective outrage.” KIS Grp., LLC v. Moquin,
263 So. 3d
63, 65-66 (Fla. 4th DCA 2019) (quotation omitted).
Section
768.72, Florida Statutes (2022), governs a plaintiff’s ability to
bring a punitive damages claim....
...It provides that “no claim for punitive
7
damages shall be permitted unless there is a reasonable showing by
evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...3d at 825 (“A defendant has a substantive legal right
not to be subject to punitive damages claims if there is no reasonable basis
for recovery.”) A trial court’s determination as to whether a plaintiff has made
a “reasonable showing” under section 768.72 for a recovery of punitive
damages, “is similar to determining whether a complaint states a cause of
action, or the record supports a summary judgment, both of which are
reviewed de novo.” Holmes v....
...The statute further provides that a defendant can
be held liable for punitive damages only if the trier of fact finds, by clear and
convincing evidence, “that the defendant was personally guilty of intentional
misconduct or gross negligence.” § 768.72(2), Fla....
...hat the defendant's conduct was
so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.
8
§ 768.72(2)(a)-(b), Fla....
...ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
§ 768.72(3)(a)-(c), Fla....
...the individual construction managers, superintendents, construction
workers—who were not, on the record before us, officers or managing
members of the limited liability companies—is, without more, misconduct of
the four corporate petitioner/defendants for purposes of section
768.72. But
that is contrary to the plain language of the statute”) (emphasis added); La
Corte,
103 So. 3d at 240-41 (holding that the third amended complaint failed
to comply with the procedural requirements of section
768.72: “There are
references in the third amended complaint to a single, unnamed ‘Association
board member,’ but those references do not allege the Association's active,
knowing participation in, or consent to, misconduct by the pro...
...1959) (“[T]he character of negligence necessary to sustain
12
CONCLUSION
Because Lindzon failed to satisfy the requirements for establishing
entitlement to assert a claim for punitive damages against a corporation
pursuant to section 768.72, Florida Statutes (2022), the trial court erred in
granting Lindzon’s motion to amend....
CopyPublished | Florida 3rd District Court of Appeal
...the second
amended motion for leave to add a claim for punitive damages filed by
Mark Cantor (“Respondent”). We deny the petition.
The record before this Court reflects that the trial court complied with
the procedural requirements of section 768.72(1), Florida Statutes (2021).
The Respondent proffered evidence in support of his claim for punitive
damages against the Petitioners, and following a hearing, the trial court
entered a thorough order finding that the Respondent’s p...
...4th DCA 2019) (recognizing that the scope of an
appellate court’s certiorari review of an order granting a motion for leave to
add a claim for punitive damages is limited to whether the trial court
complied with the procedural requirements of section 768.72, but certiorari
review is not available to review the sufficiency of the respondent’s
evidentiary proffer); see also E.R....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 6439, 2004 WL 1057782
...The Parker Firm asserted that the judge previously assigned to the case had correctly denied an identical motion, and Riccard’s counsel was not relying on any new information. After the hearing, the trial judge allowed the punitive damages claim to be added. Section 768.72(1), Florida Statutes (2003), creates a substantive right not to be subjected to a punitive damage claim or *1044 financial worth discovery until a trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 6113, 2002 WL 857343
...e damages. We have jurisdiction, grant the writ, quash the order below, and remand with instructions to strike the claim for punitive damages. See Simeon, Inc. v. Cox,
671 So.2d 158 (Fla.1996); WFTV, Inc. v. Hinn,
705 So.2d 1010 (Fla. 5th DCA 1998); section
768.72, Fla....
CopyPublished | Florida 4th District Court of Appeal
...damage is likely
to be done to persons or property.” Peterson v. Pollack,
290 So. 3d 102,
110 (Fla. 4th DCA 2020) (citation omitted). “‘Willful’ means ‘intentionally,
knowingly and purposely.’” Id. (citation omitted).
Additionally, section
768.72, Florida Statutes (2017), provides:
(2) A defendant may be held liable for punitive damages only
if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional
misconduct or gross negligence....
...Based on this record, it cannot be
said that Hall acted in bad faith, with malicious purpose, or in a manner
exhibiting wanton and willful disregard of human rights, safety, or
property. See §
768.28(9)(a), Fla. Stat. The record is devoid of evidence
that Hall engaged in intentional misconduct or gross negligence. See §
768.72(2), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 7990, 2003 WL 21240042
...utes, (2) negligence, and (3) wrongful death. Each claim alleged that Avante failed to provide adequate and appropriate health care to Esterline while he was a resident. After significant discovery, Lindsay filed a motion, later amended, pursuant to section 768.72, Florida Statutes (1999), seeking to assert a claim for punitive damages against Avante....
...We deny the petition because Lindsay has an adequate remedy on appeal at the conclusion of the case. We conclude that certiorari review is not available to a plaintiff where, as here, the trial court has denied the plaintiffs claim for punitive damages, provided that the court has complied with the procedural requirements of section
768.72. As the court said in Sloan v. Toler,
778 So.2d 1094 (Fla. 3d DCA 2001): [Section
768.72] creates for defendants “a substantive legal right not to be sub *1030 ject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co....
...If the defendant is wrongfully subjected to discovery of otherwise confidential financial information, the cat is out of the bag and appeal at the conclusion of the case will not provide an adequate remedy. Id. at 520 (“a plenary appeal cannot restore a defendant’s statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant.”). A plaintiff, by contrast, does not have a corresponding right to certiorari review in this context. If the trial court erroneously strikes the plaintiffs punitive damages claim on account of section 768.72, the trial court’s ruling does not result in the disclosure of any protected confidential information....
...in relief by way of appeal at the conclusion of the case. Id. at 1095 (citation omitted). We also conclude that the trial court’s order does not depart from the essential requirements of law. The trial court followed the procedural requirements of section 768.72. That statute expressly permits the court to determine if a plaintiff has made a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery” of punitive damages. § 768.72(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
...The court held a hearing on Appellees’ motion for leave to
amend their complaint on March 15, 2023, and on March 29, 2023,
entered its order granting Appellees’ motion. The court noted that
Appellees conceded that they do not assert application of the
provisions under section 768.72(3)(a) or (b), Florida Statutes,
which would implicate proof of a “knowing,” “willful,” and/or
“malicious” nature....
...damages must first file a
motion seeking leave of court to file an amended complaint and
then make “a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis
for recovery of such damages.” § 768.72(1), Fla....
...(c) The employer, principal, corporation, or
other legal entity engaged in conduct that
constituted gross negligence and that
contributed to the loss, damages, or injury
suffered by the claimant.
§ 768.72, Fla....
CopyPublished | Florida 4th District Court of Appeal | 1993 Fla. App. LEXIS 5475, 1993 WL 164881
...This court had occasion to construe Martin-Johnson in Henn v. Sandler,
589 So.2d 1334 (Fla. 4th DCA 1991), and recognized that certiorari should still be granted to review orders prematurely requiring disclosure of financial worth in punitive damage cases, because section
768.72, Florida Statutes (1989), unequivocally prohibits such discovery until after a pleading seeking punitive damages is permitted by the court. There must be evidence in the record to provide a basis for recovering punitive damages before they can be sought. (Although Martin-Johnson did involve a punitive damage claim, section
768.72, which did not become effective until July 1, 1986, was neither applicable nor discussed in Martin-Johnson.) Because we receive so many petitions for certiorari from orders allowing discovery of financial information in cases which do...
CopyPublished | Florida 4th District Court of Appeal
...amend its complaint to assert a claim for punitive damages against the
defendant. We reverse because the plaintiff failed to make sufficient
allegations or proffer sufficient evidence to establish a reasonable basis for
recovery of punitive damages under section 768.72(3), Florida Statutes
(2020).
The underlying complaint arises from an allegedly fraudulent financial
investment which the plaintiff made through a third party....
...“We review de novo the trial court’s decision on a motion for leave to
amend a complaint to add a punitive damage claim.” Progressive Select
Ins. Co. v. Ober,
353 So. 3d 1190, 1192 (Fla. 4th DCA 2023) (citing Bistline
v. Rogers,
215 So. 3d 607, 610 (Fla. 4th DCA 2017)).
Section
768.72(1), Florida Statutes (2020), provides that “no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.” See also Fla. R. Civ. P.
1.190(f). “A defendant may be held liable for punitive damages only if the
trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence.” §
768.72(2), Fla....
...condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
§ 768.72(3)(a)–(c), Fla....
...iled to demonstrate that the
defendant and/or its officers, directors, or managers knowingly
participated in or condoned, ratified, or consented to the employee’s
conduct, or that the defendant engaged in conduct constituting gross
negligence. See § 768.72(2)(b), Fla....
CopyPublished | District Court of Appeal of Florida
of rule 1.190(a), must requirements of section
768.72 have been followed,” including compliance with
CopyPublished | Florida 3rd District Court of Appeal
damages claim By its adoption of section
768.72, the Florida Legislature put limits on how
CopyPublished | Court of Appeals for the Eleventh Circuit
...of discretion in the grant of such an award in this case.”).
Florida law allows punitive damages only “if the trier of fact, based on clear
and convincing evidence, finds that the defendant was personally guilty of
intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2)....
...“‘Intentional
misconduct’ means that the defendant had actual knowledge of the wrongfulness of
the conduct and the high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” Id. § 768.72(2)(a). “‘Gross negligence’ means that
the defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed
to such conduct.” Id. § 768.72(2)(b).
The district court denied punitive damages because “[t]he grocery exclusives
sought to be enforced against the Defendants are rife with ambiguities and the
scope of their restrictions are uncertain at best,” and, “[m]o...
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 1804, 2009 WL 530589
...Before the court granted the motion to amend, the Petitioners were allowed ample opportunity to respond and present evidence in opposition, including a hearing on the motion. The applicable legal standard for our review by certiorari is "to determine whether a court has conducted the evidentiary inquiry required by section
768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co. v. King,
658 So.2d 518, 520 (Fla.1995). The record before us demonstrates that the circuit court comported with the procedural requirements section
768.72 demands....
...2d DCA 2000) (holding that the scope of review on a petition for writ of certiorari to review the granting of a motion to amend a complaint to add a claim for punitive damages is limited to determining whether the circuit court adhered to the procedural requirements of section 768.72)....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 2150, 1998 WL 88312
...The original complaint sought both compensatory and punitive damages. Fostock did not appear at a properly noticed jury trial on the issue of damages. The jury awarded compensatory and punitive damages. On appeal, Fostock argues that the trial court’s failure to comply with the proce-' dure set out by section 768.72, Florida Statutes (1996), was fundamental error....
...wing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. Id. Had Fostock responded to the initial complaint with a motion to dismiss or strike, he would have been entitled under section
768.72 to a dismissal of the punitive damages aspect of the case. See Kraft General Foods, Inc. v. Rosenblum,
635 So.2d 106 (Fla. 4th DCA 1994). However, a defendant’s right to relief under section
768.72 is a'right that can be waived by failing to assert it....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 3651, 1993 WL 95591
...in support of that complaint, fails to state a factual predicate that could permit the imposition of punitive damages under the clear mandate of Florida law.” The parties stipulate this products liability action arose before the effective date of section 768.72, Florida Statutes (1986), which requires an evidentiary basis for pleading punitive damages....
CopyPublished | Florida 5th District Court of Appeal
...identified shooter outside and held him on the ground until law
enforcement authorities arrived at the theater.
Crump filed the underlying lawsuit in September 2019,
claiming she sustained injuries during the episode as a result of
AMC’s negligence. On July 25, 2022, pursuant to section 768.72,
Florida Statutes, and Florida Rule of Civil Procedure 1.190(f), she
filed a motion for leave to amend her complaint to add a claim for
punitive damages for AMC’s alleged gross negligence....
...3d at 1287 (citing Est. of
Blakely by and through Wilson v. Stetson Univ., Inc.,
355 So. 3d
476, 481 (Fla. 5th DCA 2022)).
A.
A plaintiff’s ability to assert a claim for punitive damages is
substantively governed by section
768.72, Florida Statutes. “[N]o
claim for punitive damages shall be permitted unless there is a
reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of
such damages.” §
768.72(1), Fla....
...3d at 1287
(quoting Varnedore,
210 So. 3d at 745). In so doing, the trial court
“must first consider whether the proposed amended complaint
actually sets forth a claim that the defendants’ conduct was grossly
5
negligent, as defined by” section
768.72....
...The trial court’s gatekeeping
function “similarly tasks the trial court with preventing a party
from being subjected to a punitive damages claim when no
reasonable [evidentiary] basis for these damages has been shown.”
Hosp. Specialists,
373 So. 3d at 1288.
By the plain language of section
768.72, punitive damages 6
are permissible “only if the trier of fact, based on clear and
convincing evidence, finds that the defendant was personally
guilty of intentional misconduct or gross negligence.” §
768.72(2),
Fla....
...employer “actively and knowingly participated in such conduct[,] .
. . knowingly condoned, ratified, or consented to such conduct[,] or
. . . engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by” a plaintiff.
See § 768.72(3), Fla....
...1995)).
“‘Intentional misconduct’ means that the defendant had
actual knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of
conduct, resulting in injury or damage.” § 768.72(2)(a), Fla....
...Rather, such
damages “are private fines levied by civil juries to punish
reprehensible conduct and to deter its future occurrence.” Hosp.
Specialists,
373 So. 3d at 1288 (citations omitted).
6
indifference to the life, safety, or rights of persons exposed to such
conduct.” §
768.72(2)(b), Fla. Stat.
As we noted in Hospital Specialists, “the Florida Supreme
Court has analogized the requisite level of negligence necessary for
the assessment of punitive damages under section
768.72 to that
necessary for a conviction for criminal manslaughter.” Hosp.
Specialists, 373 So....
...reasonable basis for the award of such damages. Simply stated,
Crump cannot meet her burden here.
Initially, we conclude that the allegations pleaded in Crump’s
proposed amended complaint do not rise to the level of gross
negligence as defined by section 768.72. Crump’s allegations
against AMC cannot constitute tortious conduct “so reckless or
wanting in care that it constituted a conscious disregard or
indifference to” Crump’s life, safety, or rights. See § 768.72(2)(b),
Fla....
...3d at 1288 (citation
omitted).
Further, even assuming arguendo the legal sufficiency of the
proposed amended complaint, Crump fails to make a “reasonable
showing” of a “reasonable basis” for the recovery of punitive
damages, as required by section 768.72....
...punitive damages “solely . . . based upon an allegation that the
negligence was a gross negligence that occurred.” In any event,
there is utterly nothing before the trial court to provide any
reasonable basis for a jury to find intentional conduct by AMC as
defined by section 768.72.
8
conduct of its employees, the actions of AMC’s employees at the
time immediately after the shots were fired in the parking lot area
simply do not rise to the level of gross negligence....
...nce” as defined by
the statute. It cannot be reasonably shown that such conduct rises
to the level of being “so reckless or wanting in care that it
constituted a conscious disregard or indifference to the life, safety,
or rights of” Crump. See § 768.72(2)(b), Fla....
...and demonstrating
a careless disregard for Crump. Additionally, there is no evidence
before the court that AMC “actively and knowingly participated in
such conduct[,] . . . [or] knowingly condoned, ratified, or consented
to such conduct[.]” See § 768.72(3), Fla....
...damages because of an alleged failure to adequately train its
employees, there is no reasonable evidentiary basis for a jury to
conclude that AMC itself “engaged in conduct that constituted
gross negligence and that contributed to the loss, damages, or
injury suffered by” Crump. See § 768.72(3), Fla....
...Accordingly, as Crump failed to both (i) plead sufficient
allegations for the recovery of punitive damages and (ii) make a
reasonable showing by the proffered evidence of a reasonable basis
by which a jury could award punitive damages against AMC, see §
768.72(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 1020187, 2012 Fla. App. LEXIS 4758
...caused "material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal." Martin-Johnson, Inc. v. Savage,
509 So.2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds, §
768.72, Fla....
CopyPublished | District Court of Appeal of Florida
recovery of such damages,” as required by section
768.72(1), Florida Statutes (2021). Specifically
CopyPublished | District Court, S.D. Florida | 2015 U.S. Dist. LEXIS 35792, 2015 WL 1311482
...eserved. See Fla. Stat. §§
624.155 (7),
626.9631. This means a plaintiff is free to bring a common law fraud claim challenging conduct prohibited by Florida’s insurance regulations. Such a plaintiff may also seek punitive damages. See Fla. Stat. §
768.72 ....
CopyPublished | Florida 3rd District Court of Appeal
...n-final order granting
leave to amend to assert punitive damages as a non-final appeal pursuant
to Rule 9.130(a)(3)(G). Under the appellate standard, the Fourth District
reviewed de novo whether the “plaintiff made a ‘reasonable showing’ under
section 768.72 to recover punitive damages.” Id....
...We have certiorari jurisdiction to review an
order granting a motion to amend to assert punitive damages. See, e.g.,
Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995). However,
our review is limited to “whether a trial judge has conformed with the
procedural requirements of section
768.72[.]” Id....
CopyPublished | Florida 3rd District Court of Appeal
...ate
of Despain v. Avante Group, Inc.,
900 So. 2d 637, 644 (Fla. 5th DCA 2005).
2
The addition of Shapiro as a counter-defendant was not challenged on
appeal and will not be addressed by this Court.
3
Section
768.72, Florida Statutes (2023), provides the basis on which a
trial court can permit a claim for punitive damages as follows:
1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable s...
...ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
§ 768.72, Fla....
CopyPublished | Florida 6th District Court of Appeal
...damages, which Florida’s courts are tasked to police. Hosp. Specialists, P.A. v. Deen,
373 So. 3d 1283, 1287 (Fla. 5th DCA 2023) (“Once the motion is filed and set for
hearing, the trial court is tasked with being a ‘gatekeeper’ . . . .”). Section
768.72,
Florida Statutes, prohibits a plaintiff from pleading a claim for punitive damages
unless the plaintiff first makes a “reasonable showing by evidence in the record or
proffered by the claimant” of “intentional misconduct” or conduct that is “so
reckless or wanting in care that it constitute[s] a conscious disregard or indifference
to the life, safety, or rights of persons exposed to such conduct.” §
768.72(1), (2),
Fla....
...By design, this statutory standard protects defendants from undue
financial exposure and abusive discovery, absent an initial evidentiary presentation
of conduct so egregious that it deserves society’s collective outrage. See Globe
Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995) (Section
768.72 “create[d]
a substantive legal right not to be subject to a punitive damages claim and ensuing
financial worth discovery until the trial court makes a determination that there is a
reasonable evidentiary basis for recovery of punitive damages.”); DeSanto v....
CopyPublished | Florida 6th District Court of Appeal
...add a claim for
punitive damages is reviewed de novo. See Mercer v. Saddle Creek Transp., Inc.,
389
So. 3d 774, 776 (Fla. 6th DCA 2024).
4
would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
...motion for leave to amend the complaint “failed to make an affirmative finding that
3
This language is consistent with section
768.736, Florida Statutes, which
establishes exceptions for punitive damages claims involving intoxication:
“Sections
768.725 and
768.73 do not apply to any defendant who, at the time of the act
or omission for which punitive damages are sought, was under the influence of any
alcoholic beverage or drug to the extent that the defendant’s normal faculties were
impai...
...for recovering such damages’ if the motion to amend is granted.” Varnedore v.
Copeland,
210 So. 3d 741, 748 (Fla. 5th DCA 2017) (citations omitted); see also Petri
Positive Pest Control, Inc. v. CCM Condo. Ass’n,
174 So. 3d 1122, 1122 (Fla. 4th DCA
2015) (“[W]e read section
768.72 as creating a positive legal right in a party not to be
subjected to financial worth discovery until the trial court has first made an affirmative
finding that there is a reasonable evidentiary basis for the punitive damages claim to...
...Rather than looking to the case law of other districts to determine whether
a trial court must make affirmative findings when permitting a plaintiff to add a punitive
damages claim, we search the applicable statute and rule.
We begin with the statute. Section 768.72(1), Florida Statutes, governs claims
for punitive damages and provides:
(1) In any civil action, no claim for punitive damages shall be permitted unless
there is a reasonable showing by evidence in the record or proffered b...
...9
As evidenced by the quoted language, the requirement that a trial court make
affirmative findings when granting a motion for leave to amend a complaint to add a
punitive damages claim is born of case law, not the language of section 768.72 or rule
1.190(f)....
....”).
And, sometimes, this requirement is mandated by the rules of procedure. See, e.g., Fla.
R. Civ. P. 1.510(a) (“The court shall state on the record the reasons for granting or
denying the [summary judgment] motion.”). But we search in vain for a similar
requirement in the text of either section 768.72 or rule 1.190(f).
Nor do we believe the Florida Supreme Court’s opinion in Globe Newspaper Co.
v....
...Florida Supreme Court was tasked with deciding whether a party can properly challenge
orders granting leave to amend to add a punitive damages claim using a petition for writ
of certiorari. The court held that they could. In doing so, it explained: “We read section
768.72 to create a substantive legal right not to be subject to a punitive damages claim
and ensuing financial worth discovery until the trial court makes a determination that
there is a reasonable evidentiary basis for recovery of punitive damages.” Id....
...4th DCA 2015), and Varnedore v. Copeland,
210 So. 3d
741, 748 (Fla. 5th DCA 2017). In doing so, we align ourselves with the First District’s
opinion in Watt v. Lo,
302 So. 3d 1021, 1024–25 (Fla. 1st DCA 2020) (“[N]othing in
the plain language of section
768.72(1) requires a trial court to make express or
affirmative findings when determining whether to permit a claimant to assert a punitive
damages claim....
CopyPublished | Florida 3rd District Court of Appeal | 2001 WL 246008
...The remaining counts were state law claims in which plaintiff did not (at this time) request punitive damages. Respondents-defendants moved to strike the punitive damages claim from the section 1983 count. Defendants argued that the plaintiff had not yet made the factual *1095 showing required by section 768.72, Florida Statutes (1999), in order to allow a punitive damages claim....
...We conclude first that certiorari review is not available at the instance of a plaintiff where, as here, the trial court has stricken the plaintiffs claim for punitive damages. That is so because the plaintiff has an adequate remedy by way of appeal at the conclusion of the case. Subsection 768.72(1), Florida Statutes (1999), provides: (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...If the defendant is wrongly subjected to discovery of otherwise confidential financial information, the cat is out of the bag and appeal at the conclusion of the case will not provide an adequate remedy. Id. at 520 ("a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant."). A plaintiff, by contrast, does not have a corresponding right to certiorari review in this context. If the trial court erroneously strikes the plaintiffs punitive damages claim on account of section 768.72, the trial court's ruling does not result in the disclosure of any protected confidential information....
...Because plaintiff has an adequate remedy by appeal, we need not address whether the trial court order departed from the essential requirements of law. We note that plaintiff relies on Sanchez v. Degoria,
733 So.2d 1103 (Fla. 4th DCA 1999), which holds that 42 U.S.C. § 1983 preempts section
768.72, Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal
...punitive damages.").
"In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
recovery of such damages." § 768.72(1), Fla....
...(2020). " '[A]
reasonable showing by evidence in the record or proffered by the
claimant' refers to actual evidence that would provide a prima facie basis
to recover punitive damages." DeSanto v. Grahn,
362 So. 3d 247, 249
(Fla. 4th DCA 2023) (quoting §
768.72(1))....
...n to
produce a reasonable evidentiary basis of such bias in order to support
its theory that Progressive acted in bad faith and in such a way as to
have been willful, wanton, and malicious or in reckless disregard of its
rights under the policy. See §
768.72(1) (requiring that "[i]n any civil
action, no claim for punitive damages shall be permitted unless there is
a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages" (emphasis added)); §
624.155(5) (setting forth the punitive
damages standard to be applied to "the acts giving rise to the violation"
in a bad faith claim). "Punitive damage amendments are different than
traditional amendments in that section
768.72 has created a
substantive legal right not to be subject to a punitive damage claim until
the trial court rules that there is a reasonable evidentiary basis for
punitive damages." Ober, 353 So....
...Bistline v. Rogers,
215 So. 3d
607, 611 (Fla. 4th DCA 2017))); cf. 701 Palafox, LLC v. Scuba Shack, Inc.,
367 So. 3d 624, 627–28 (Fla. 1st DCA 2023) ("In reviewing whether the
trial court's ruling that Scuba Shack made the necessary showing
under section
768.72 to allow it to assert a claim for punitive damages,
we view the evidence in the light most favorable to Scuba Shack....
...v.
Cadlerock Joint Venture, L.P.,
16 So. 3d 1006, 1009 (Fla. 1st DCA 2009);
and then citing Fla. Hosp. Med. Servs., LLC v. Newsholme,
255 So. 3d
348, 351 (Fla. 4th DCA 2018))). And "a reasonable showing by evidence
in the record or proffered by the claimant," §
768.72(1), "refers to actual
evidence that would provide a prima facie basis to recover punitive
damages." DeSanto, 362 So....
...appearance of a known conflict of interest in an appraisal process
promised to be impartial. But, in my view, the correct application of the
standard demands the conclusion that these claims should go to a jury.
The Governing Legal Standard
Section 768.72(1), Florida Statutes (2023), prohibits claims for
punitive damages "unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages." Thus,...
...3d at 27 ("In evaluating the sufficiency of
the evidence proffered in support of a punitive damages claim, the
evidence is viewed in a light favorable to the moving party." (quoting Case
v. Newman,
154 So. 3d 1151, 1157 (Fla. 1st DCA 2014))); Perlmutter,
376
So. 3d at 34 (explaining that section
768.72 requires the trial court to
5 The parties have not raised any arguments in this court
suggesting that the conflict certified in Perlmutter is relevant here.
33
"view[] the totality of prof...
...2d at 644-45); see also Werner Enters. v. Mendez,
362 So. 3d
278, 281-82 (Fla. 5th DCA 2023) (same); Holmes v. Bridgestone/
Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial
court is determining if a plaintiff has made a 'reasonable showing' under
section
768.72 for a recovery of punitive damages, it is similar to
determining whether a complaint states a cause of action ....
...Nor may we consider each allegation and its supporting
evidence in isolation, apart from the other pieces of the alleged cohesive
scheme. The only issue properly before us is whether Lloyd's has
proffered sufficient allegations and evidence to satisfy the section 768.72
requirement of a reasonable evidentiary basis for a jury to properly find
entitlement to punitive damages on its claims....
...process
in its favor and further minimizing the insured's rightful payout. Lloyd's
asserts that this scheme constitutes bad faith, violates several statutory
provisions, and occurred frequently enough to warrant punitive damages.
As required by section 768.72 and rule 1.190(f), Lloyd's proffered
evidence supporting its allegations....
CopyPublished | Florida 4th District Court of Appeal
...2d 1246 (Fla. 2006).
Florida Statutes (2022), limits any further punitive damages against
them. 2
Our review in this proceeding is de novo and limited to whether the trial
court erred in granting leave to amend to assert a claim for punitive
damages under section 768.72(1), Florida Statutes (2022)....
...here is a “reasonable
evidentiary basis for recovery of punitive damages,” not the amount of
punitive damages that the Plaintiff may ultimately be able to collect. See
Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995) (explaining
that section
768.72(1) creates “a substantive legal right not to be subject
to a punitive damages claim and ensuing financial worth discovery until
the trial court makes a determination that there is a reasonable evidentiary
basis for recovery of puniti...
CopyPublished | Florida 6th District Court of Appeal
...3d 874, 876 (Fla. 3d DCA 2010). Accordingly, a party may not seek
punitive damages “unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for recovery of such
damages.” § 768.72(1), Fla....
...Stat. (2018); see also Fla. R. Civ. P. 1.190(f). Mercer
can only be liable for punitive damages if a trier of fact finds, by clear and convincing
evidence, “that [he] was personally guilty of intentional misconduct or gross
negligence.” See § 768.72(2)....
...Rivera contends Mercer was grossly negligent when
he struck her. “‘Gross negligence’ means that [Mercer’s] conduct was so reckless or
wanting in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of persons exposed to such conduct.” § 768.72(2)(b).
Trial courts act as gatekeepers during the amendment process, and they should
only allow a party to amend its complaint to seek punitive damages if a reasonable
basis exists for recovery....
...a truck automatically provides a reasonable basis for a plaintiff to seek punitive
damages. There must be some additional act that shows the cell phone usage was
reckless or a conscious disregard of or indifference to others to show gross negligence
under section 768.72(2)(b).
All cell phone use is not equal....
CopyPublished | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 10692
lends any support for our advisory opinion. Section
768.72, Florida Statutes (1993), did not attempt to
CopyPublished | Florida 5th District Court of Appeal
...4th DCA 2023). “In any civil
action, no claim for punitive damages shall be permitted unless there is a
reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...They further argued that punitive damages
5
do not automatically flow from a finding that a construction lien was
fraudulent. See, e.g. Levin v. Palm Coast Builders and Constr., Inc., 840
So.2d at 317 (Fla. 4th DCA 2003). And any punitive damage claim must
comply with section 768.72 and be supported by evidence....
CopyPublished | Florida 4th District Court of Appeal
...car while allegedly intoxicated during his shift. On appeal, the Dealership
argued Agosto failed to make a reasonable showing through record
evidence that a Dealership “managing agent” engaged in gross negligence,
as required to add a claim for punitive damages by section 768.72(3)(c),
Florida Statutes (2022)....
...put [Employee] in some alcohol rehab program, do something to safeguard
the public.” This timely appeal followed.
Analysis
“We review de novo the trial court’s purely legal ruling that plaintiff
made a ‘reasonable showing’ under section
768.72 to recover punitive
damages.” Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357
2
So. 3d 703, 705 (Fla. 4th DCA 2023) (quoting Holmes v.
Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005)).
Section
768.72 “requires the trial court to act as a gatekeeper,” which
means that the trial court cannot “simply accept[] the allegations in a
complaint or motion to amend as true.” Bistline v. Rogers,
215 So. 3d 607,
610–11 (Fla. 4th DCA 2017). A trial court’s inquiry under section
768.72
is more intensive than at summary judgment because the statute
“necessarily requires the court to weigh the evidence and act as a
factfinder.” KIS Grp., LLC v....
...consider both the movant’s proffer of evidence as well as “the other side’s
showing.” Marder v. Mueller,
358 So. 3d 1242, 1246 & n.1 (Fla. 4th DCA
2023) (citing KIS Grp.,
263 So. 3d at 66).
Agosto argued that punitive damages could be imposed on the
Dealership pursuant to section
768.72(3)(c), Florida Statutes (2022)....
...ion (2) and:
....
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
§ 768.72(3)(c), Fla....
...(2022) (emphasis added).
3
Thus, to amend a complaint to add a claim for punitive damages
against a corporate defendant, a plaintiff must show culpable conduct at
both the employee level and the corporate level. See § 768.72(3)(c), Fla.
Stat. (2022). 2 At the employee level, the plaintiff must show “the conduct
of the employee or agent [here, Employee’s managers] meets the criteria
specified in subsection (2)” of section 768.72....
...A managing agent “must be an individual
of such seniority and stature within the corporation or business to have
ultimate decision-making authority for the company.” Id. (emphasis
added).
2 Agosto’s Answer Brief addresses the Dealership’s corporate culpability under
both section 768.72(3)(b) (“The officers, directors, or managers of the employer,
principal, corporation, or other legal entity knowingly condoned, ratified, or
consented to such conduct”) and section 768.72(3)(c)....
...Agosto never argued the
applicability of subsection (3)(b) below. Nonetheless, Agosto’s (3)(b) claim has the
same deficiency as her (3)(c) argument—the three managers were not policy
makers. See, e.g., Tallahassee Mem’l Healthcare, Inc. v. Dukes,
272 So. 3d 824,
826 (Fla. 1st DCA 2019) (section
768.72(3)(b) applies to “corporate management”
and not the director of an emergency room); Fetlar, LLC v. Suarez,
230 So. 3d 97,
100 (Fla. 3d DCA 2017) (neither the construction superintendent, construction
manager, nor project manager “played any role in corporate management” for
purposes of any of the three subparagraphs of section
768.72(3)); Coronado
Condo. Ass’n v. La Corte,
103 So. 3d 239, 241 n.2 (Fla. 3d DCA 2012) (section
768.72(3)(b) applies to “those in control of the entity” and not a property
manager)....
...3
Agosto therefore failed to show that the Dealership’s managing agent(s)
committed culpable corporate conduct.
Conclusion
The three managers upon whom Agosto relied in the proffer were not
“managing agents” of the Dealership as required by section 768.72(3)(c).
Because amending a complaint to add a claim for punitive damages
requires culpable corporate conduct shown through the actions of that
corporation’s managing agent(s), the trial court erred in granting Agosto’s
motion for leave to amend....
CopyPublished | Florida 3rd District Court of Appeal | 2006 WL 1688014
...In count one of the complaint, Manuel and Lisa Fuentes sued Alida C. Reinoso for negligence. In count three, the plaintiffs *537 asserted a claim for punitive damages against defendant Reinoso. [*] The defendant moved to dismiss count three for failure to comply with subsection 768.72(1), Florida Statutes (2005), which prohibits a claim for punitive damages "unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
...At an unreported hearing, the trial court denied the defendant's motion to dismiss the punitive damages claim. The plaintiffs assert, and we accept as true, that they proffered evidence in support of the punitive damages claim at the hearing below. The plaintiffs argue that this proffer satisfied subsection 768.72(1) and brought the plaintiffs into compliance with the statute....
...That being the case, we grant the petition for writ of certiorari and quash the order now before us. The punitive damages claim must be stricken. This ruling is, however, without prejudice to the plaintiffs to reallege the claim upon compliance with the procedures outlined in section 768.72 and the Simeon decision....
CopyPublished | Florida 5th District Court of Appeal
...3d DCA 2022).
7
A.
Our analysis begins with what a plaintiff must do at the leave to amend
stage. Florida law requires the plaintiff to seek the trial court’s permission
before adding punitive damages to its complaint. § 768.72(1), Fla....
...4th DCA 2017)
(noting that the “statute requires the trial court to act as a gatekeeper”). To
obtain this permission, the plaintiff must make “a reasonable showing” of
having “a reasonable basis” for the recovery of punitive damages. §
768.72(1), Fla....
...Avante Grp., Inc.,
900 So. 2d 637, 644 (Fla. 5th DCA 2005); see
also Holmes v. Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th
DCA 2005) (“When a trial court is determining if a plaintiff has made a
‘reasonable showing’ under section
768.72 for a recovery of punitive
8
damages, it is similar to determining whether a complaint states a cause of
action, or the record supports a summary judgment ....
...When
completing this task, the court views the proffer in a light most favorable to
the plaintiff. See Est. of Despain,
900 So. 2d at 644.
Substantively, punitive damages are reserved for cases in which a
defendant is “personally guilty of intentional misconduct or gross
negligence.” §
768.72(2), Fla....
...“Intentional misconduct” happens when
a defendant has “actual knowledge of the wrongfulness of the conduct and
the high probability” that it will harm the plaintiff, but nevertheless
“intentionally pursued that course of conduct,” resulting in said harm. §
768.72(2)(a), Fla. Stat. “Gross negligence” occurs when a “defendant’s
conduct was so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons exposed to
such conduct.” § 768.72(2)(b), Fla....
...3d at 747.
Because Werner made a “reasonable showing” of having a
“reasonable basis” for the recovery of punitive damages, we reverse the trial
court’s order denying leave to amend and remand with instructions to grant
the motion. See § 768.72(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 6428, 1996 WL 332953
...Before a plaintiff may assert a claim of punitive damages, the trial court must determine that there is a reasonable basis for recovery of punitive damages. Si-meon, Inc. v. Cox,
671 So.2d 158 (Fla.1996). This determination must be based on “a reasonable showing by evidence in the record or proffered by the claimant.” §
768.72, Fla....
...It is not, however, within our province to determine the sufficiency of the evidentiary showing. Id. Contrary to petitioners’ (defendants) contention, an evidentiary hearing is not mandated by the statute before a trial court has authority to permit an amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. However, the trial court erred when it allowed the amendment but deferred its decision as to whether there was “a reasonable basis for recovery” of punitive damages until trial. The procedure followed by the trial court was not authorized by section 768.72....
CopyPublished | Florida 3rd District Court of Appeal
...and Belinda Meruelo appeal from a non-final
order granting Appellee Gabriela Arevalo’s motion for leave to amend to
assert punitive damages.1 The trial court concluded that Arevalo satisfied
the punitive damages pleading standard set forth in section 768.72(1),
Florida Statutes (2024), which requires “a reasonable showing by evidence
in the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages.” We agree and therefore affirm.
I....
...In support, Menada and Meruelo
submitted an evidentiary counter-proffer.
Following a hearing, the trial court granted Arevalo’s Motion to Amend.
Menada and Meruelo timely appealed.
II. ANALYSIS
Our analysis is governed by the statutory framework in section
768.72(1), Florida Statutes (2024), which sets forth the pleading standard for
punitive damages:
In any civil action, no claim for punitive
damages shall be permitted unless there is a
reasonabl...
....
tests the sufficiency of the proffer in the light most favorable to the moving
6
party, without accepting conclusory legal conclusions or labels such as
‘gross misconduct’ at face value.” Id. at 761.
Section 768.72 creates “a substantive legal right not to be subject to a
punitive damages claim and ensuing financial worth discovery until the trial
court makes a determination that there is a reasonable evidentiary basis for
recovery of punitive damages.” Globe Newspaper Co....
...“This isn't
the time to prove the case, or even to determine that the evidence proffered
itself constitutes ‘clear and convincing evidence . . . that the defendant was
personally guilty of intentional misconduct or gross negligence.’” McLane,
400 So. 3d at 760 (Fla. 3d DCA 2024) (quoting §
768.72(2)).
We recognize that courts have taken different approaches in
determining whether and to what extent a trial court may weigh the evidence
at the punitive damages pleading stage....
...roffer, we conclude
4
Compare also KIS Grp., LLC v. Moquin,
263 So. 3d 63, 66 (Fla. 4th DCA
2019) (“Unlike consideration of a motion for summary judgment which
precludes the court from weighing the evidence or reaching conclusions
therefrom, section
768.72 necessarily requires the court to weigh the
evidence and act as a factfinder.”), with Fed....
...order granting leave to amend to assert claims for punitive damages.
5
Our opinion is limited to the issue before us, which is whether Arevalo
satisfied the punitive damages pleading requirement. We express no
opinion on the merits of Arevalo’s punitive damages claims. See § 768.725
(“In all civil actions, the plaintiff must establish at trial, by clear and convincing
evidence, its entitlement to an award of punitive damages....
...g . . . it is
not necessary to consider excising that language en banc, in order to
‘maintain uniformity in the court’s decisions.’” (quoting Fla. R. App. P.
9.331(a))).
16
The governing statute, section 768.72, Florida Statutes, provides that
“[i]n any civil action, no claim for punitive damages shall be permitted unless
there is a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages.” § 768.72(1), Fla....
CopyPublished | District Court, M.D. Florida | 2015 WL 3796282, 2015 U.S. Dist. LEXIS 79980
...1 The Punitive Damages Award Comports with Florida Law Under Florida law, “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72 (2); Myers v....
CopyPublished | Florida 3rd District Court of Appeal
...Valori and Amanda L. Fernandez,
for respondent.
Before SCALES, LINDSEY and BOKOR, JJ.
PER CURIAM.
Petition denied. See Robins v. Colombo,
253 So. 3d 94, 95-96 (Fla.
3d DCA 2018) (“[W]e limit our review to whether the procedural requirements
of section
768.72 have been followed....
CopyPublished | Florida 4th District Court of Appeal
...3d 1190, 1192 (Fla. 4th DCA 2023). To permit a claim for punitive
damages, the trial court must be presented with “a reasonable showing by
evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...2d 706, 708 (Fla. 4th DCA
2008)). Allowing a claim for punitive damages and the accompanying
financial discovery “can be a ‘game changer’ in litigation.” TRG Desert Inn
Venture, Ltd. v. Berezovsky,
194 So. 3d 516, 520 n.5 (Fla. 3d DCA 2016).
Accordingly, section
768.72(1) creates “a substantive legal right not to be
subject to a punitive damages claim” until the court determines there is a
reasonable evidentiary basis to recover punitive damages....
...3d DCA 2019) (“Bare allegations
are insufficient to support a punitive damages claim.”). As this court has
explained:
The procedural protection of this statute requires more than
mere allegations. We agree with Petitioners that an evaluation
of the evidentiary showing required by section 768.72 does not
contemplate the trial court simply accepting the allegations in
a complaint or motion to amend as true.
....
....
...“[A] reasonable showing by evidence in the record or proffered by the
claimant” refers to actual evidence that would provide a prima facie basis
to recover punitive damages. See Marder v. Mueller,
358 So. 3d 1242, 1245
(Fla. 4th DCA 2023) (quoting §
768.72(1), Fla. Stat. (2018)) (reversing an
order allowing a claim for punitive damages where “Patient did not proffer
sufficient evidence to demonstrate that Doctor’s conduct amounted to
intentional misconduct or gross negligence under section
768.72(2) as
opposed to ordinary negligence.”); Est....
...ive consists almost
entirely of bare allegations instead of evidence. Accepting their argument
that the statute requires only a representation of anticipated evidence
would leave the court with no effective way to act as a gatekeeper and thus
render section 768.72(1) virtually meaningless.
3
Because the clients did not show through record or proffered evidence
that there is a reasonable basis to recover punitive damages, we reverse
the trial court’s...
CopyPublished | Florida 3rd District Court of Appeal
...Absent some relevancy to the underlying lawsuit, a plaintiff is
only allowed to obtain financial worth discovery when a trial court determines
that there is a “reasonable evidentiary basis for recovery of punitive
damages.” Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995);
see §
768.72(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...damages claim and ensuing financial worth discovery until the trial court makes a
determination that there is a reasonable evidentiary basis for recovery of punitive
damages." Cf. Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995) (so
holding in the context of section
768.72, Florida Statutes (1993), the punitive-damages
statute generally applicable to civil actions)....
...See Globe Newspaper Co.,
658 So. 2d at 519-20 (holding that appellate courts have certiorari jurisdiction to review
whether a trial court "has conformed with the procedural requirements of section
-2-
768.72" and "should grant certiorari in instances in which there is a demonstration by a
petitioner that the procedures of section
768.72 have not been followed").
We conclude that it did not....
CopyPublished | Florida 4th District Court of Appeal
reasonable basis for recovery of such damages.” §
768.72(1), Fla. Stat. (2024). In considering a motion
CopyPublished | Florida 3rd District Court of Appeal
... wrongful conduct and to deter similar misconduct by it and other actors in
the future.”). Such damages are “reserved for only the most egregious
cases.” Friedler v. Faena Hotels & Residences, LLC,
390 So. 3d 186, 188
(Fla. 3d DCA 2024).
Section
768.72, Florida Statutes, controls much of the punitive damage
amendment process....
...atutory showing has been
met. JVA Eng’g Contractor, Inc. v. Doral 10, LLC,
402 So. 3d 1175, 1176
(Fla. 3d DCA 2025). “The gatekeeper role also extends to the trial court’s
determining whether the movant has satisfied the requirements of
subsection
768.72(3).” Id....
...1994).
A plaintiff is not allowed to bring a claim for punitive damages “unless
there is a reasonable showing by evidence in the record or proffered by the
10
claimant which would provide a reasonable basis for recovery of such
damages.” § 768.72(1), Fla....
...proffered by the claimant, that provides a reasonable basis for recovery of
such damages.”). That record evidence or proffer must reasonably
demonstrate that the defendant was guilty of either “intentional misconduct”
or “gross negligence.” § 768.72(2), Fla....
...The former “means that the
defendant had actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” § 768.72(2)(a), Fla. Stat. The latter “means
that the defendant’s conduct was so reckless or wanting in care that it
constituted a conscious disregard or indifference to the life, safety, or rights
of persons exposed to such conduct.” § 768.72(2)(b), Fla....
...conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and
that contributed to the loss, damages, or injury suffered by
the claimant.
§ 768.72(3), Fla....
...ce. While Monsanto
was well-aware of the continued reevaluation of glyphosate since 1973, the
record does not show that glyphosate is carcinogenic, Monsanto knew it was,
and Monsanto intentionally sold its product without a warning label anyway.
§ 768.72(2)(a), Fla. Stat. The record similarly does not demonstrate that
Monsanto’s “conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.” § 768.72(2)(b), Fla....
...ributing the product.”). Unsupported,
salacious allegations, a scientific outlier, and isolated internal
correspondence by mid-level employees—quoted out-of-context—simply do
not meet the statutory requirements. See § 768.72(2), (3), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...m
for punitive damages under Florida’s Adult Protective Services Act (“the
Act”). This Court has jurisdiction. See Fla. R. App. P. 9.130(a)(3)(G).
Because Maniglia failed to follow the procedures required for seeking
punitive damages under section 768.72 of the Florida Statutes (2024) and
Florida Rule of Civil Procedure 1.190, we reverse the challenged order
without prejudice to Maniglia filing a proper motion to amend that complies
with the statute and rule.
I....
...ANALYSIS2
Where, as here, a plaintiff sues under a statute that authorizes
recovery of punitive damages but does not provide the procedure for
pleading entitlement thereto, the plaintiff must comply with the requirements
for seeking punitive damages set forth in section 768.72 and rule 1.190....
...3d DCA 2024).
3
WFTV, Inc. v. Hinn,
705 So. 2d 1010, 1011 (Fla. 5th DCA 1998) (“Section
540.08(2), Florida Statutes (1997) authorizes recovery of punitive damages,
but does not provide any procedure by which such claim may be pled. . . .
[S]ections
540.08 and
768.72 should be read together. Although section
540.08 allows for the recovery of punitive damages, the procedure enacted
by the legislature in section
768.72 must be followed.”); State Capital Ins.
Co....
...Mattey,
689 So. 2d 1295, 1297 (Fla. 3d DCA 1997) (“Reviewing the
sections at issue, we find no clear-cut reason why the two should not be read
in harmony. Section
624.155 does not delineate the procedure by which a
claim for punitive damages is to be pled, section
768.72 provides that
procedure.”) (citation omitted); Varnedore v....
...s that
govern the proof and pleadings required to pursue punitive damages.”).
To this end, a plaintiff who wishes to recover punitive damages in a
civil case must first seek and obtain leave of the trial court to assert such a
claim. See § 768.72(1), Fla....
...See Downtown Towing Co. v. Energy-Cargo MGT, LLC,
390 So. 3d
678, 678-79 (Fla. 3d DCA 2024).
Here, while the trial court properly struck the punitive damages claim
from Maniglia’s initial complaint because the claim was not authorized, see
§
768.72(1), Fla....
...3d at 745-46.
Accordingly, we affirm that aspect of the challenged order that strikes
the punitive damages claim from Maniglia’s initial complaint, and reverse the
remainder of the challenged order without prejudice to Maniglia filing a
proper motion to amend below that complies with section 768.72 and rule
1.190’s procedural requirements.3
Affirmed in part, reversed in part.
3
We express no opinion as to whether Maniglia’s evidentiary proffer
provided a reasonable basis for the recovery of punitive damages....
CopyPublished | Supreme Court of Florida
...The common law writ of certiorari is an “extraordinary
remedy.” Mintz Truppman, P.A. v. Cozen O’Connor, PLC,
346 So. 3d
577, 579 n.6 (Fla. 2022) (quoting Martin-Johnson, Inc. v. Savage,
509 So. 2d 1097, 1098-99 (Fla. 1987), superseded by statute on
other grounds, §
768.72, Fla....
CopyPublished | District Court, M.D. Florida
...f harm to Johnson by Defendants' conduct in the Copyright Infringement Action, and each Defendant's net worth. See Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie ,
54 So.3d 991 , 997-98 (Fla. 4th DCA 2010) (citing Fla. Stat. §
768.72 (2) (2009) and Humana Health Ins....
CopyPublished | District Court, S.D. Florida | 2013 WL 3989064, 2013 U.S. Dist. LEXIS 111719
...if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.’ ” 3 Mee Indus. v. Dow Chem. Co.,
608 F.3d 1202, 1220 (11th Cir.2010) (quoting Fla. Stat. §
768.72 (2))....
...e of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.’ ” Id. (quoting Fla. Stat. § 768.72 (2)(a))....
...Gross negligence requires a showing that “ ‘the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.’ ” Id. at 1220-21 (quoting Fla. Stat. § 768.72 (2)(b))....
...ly condoned, ratified, or consented to such conduct; or (c) the corporation engaged in conduct that constituted gross negligence. Tiller v. Ford Motor Co., No. 3:03-CV-489-J-32HTS,
2006 WL 166530 , at *2-3 (M.D.Fla. Jan. 21, 2006) (citing Fla. Stat. §
768.72 (3)); see also Koutsouradis v. Delta Air Lines, Inc.,
427 F.3d 1339, 1344 (11th Cir.2005) (“Section
768.72(3) provides that punitive damages may be imposed upon an employer for the conduct of its employee or agent only [i]f the employer actively and knowingly participates, condones, ratifies or consents to such conduct.”)....
...for repairs). . In so holding, the Court does not take a position as to whether the facts, as presented by Plaintiffs, prove that Stewart engaged in intentional misconduct or gross negligence. Rather, the Court holds that Kerzner is not liable under § 768.72(3) even if those facts do constitute intentional misconduct or gross negligence....
CopyPublished | Florida 3rd District Court of Appeal
...Drury, for respondents Luis Alberto Diaz and Flor de
Maria Diaz.
Before EMAS, SCALES and HENDON, JJ.
HENDON, J.
Petitioners, defendants in the liability action below, seek to quash the
trial court's order granting the respondents leave to amend to add a count
for punitive damages under section 768.72, Florida Statutes (2019)....
...We
deny the petition for certiorari.
In determining whether a trial court has departed from the essential
requirements of law in granting a motion to amend a complaint to add a
claim for punitive damages, our review is limited to whether the trial court
complied with the procedural requirements of section 768.72....
...2d 1289, 1291 (Fla. 5th DCA 1981)
(citing Doral Country Club, Inc. v. Lindgren Plumbing Co.,
175 So. 2d 570
(Fla. 3d DCA 1965)).
Applying our narrow scope of review, we conclude that the trial court
complied with the procedural requirements of section
768.72 in granting the
respondents’ motion to amend to add a claim for punitive damages.
Petition denied.
3
CopyPublished | Florida 4th District Court of Appeal
...On that
ground, the defendant argues the circuit court failed to make an
affirmative finding indicating whether and how the plaintiff had made a
reasonable evidentiary showing that the defendant had committed either
“intentional misconduct” or “gross negligence,” as those terms are defined
in section 768.72(2), Florida Statutes (2024), and as required for a jury to
award punitive damages under section 768.72(2), thus making the circuit
court’s order legally deficient.
We agree with this argument....
...finding indicating
whether and, if so, how the plaintiff has made a reasonable evidentiary
showing that the defendant had committed either “intentional
misconduct” or “gross negligence” as required for a jury to award punitive
damages under section 768.72(2).
Relevant Procedural History
The plaintiff’s motion to add punitive damages claims against the
defendant included a section entitled “Evidence Proffered or Contained in
the Record.” In that section,...
...evidence and proffered evidence in the light most favorable to the Plaintiff,
there is a more-than-reasonable basis for it to ultimately be found that
Defendant engaged in ‘intentional conduct’ or ‘gross negligence’ with
respect to her defamatory statements. Fla. Stat. §768.72(2) (defining
‘intentional conduct’ and ‘gross negligence’).”
The circuit court held a hearing on the plaintiff’s motion during the
court’s five-minute motion calendar, but did not issue an oral ruling. Two
weeks later, the circuit court entered a written order granting the plaintiff’s
motion. The order first recognized the applicable standard of review from
section 768.72(1) that “no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or proffered
by the claimant which would provide a reasonable basis for recovery of
such damages.” § 768.72(1), Fla....
...The order then recognized
that “[b]are allegations are insufficient to support a punitive damages
claim,” Cat Cay Yacht Club, Inc. v. Diaz,
264 So. 3d 1071, 1075 (Fla. 3d
DCA 2019) (citation omitted). The order next recognized that “the
evidentiary showing required by section
768.72 does not contemplate the
trial court simply accepting the allegations in a complaint or a motion to
2
amend as true.” Fla....
...However, the circuit court’s order did not specifically determine
whether and how the plaintiff’s proffered evidence had made a reasonable
showing that the defendant had committed either “intentional
misconduct” or “gross negligence,” as those terms are defined in section
768.72(2), and as required for a jury to award punitive damages under
section 768.72(2).
This Appeal
This appeal followed....
...rt failed to make an affirmative
finding indicating whether and how the plaintiff had made a reasonable
evidentiary showing that the defendant had committed either “intentional
misconduct” or “gross negligence,” as those terms are defined in section
768.72(2), and as required for a jury to award punitive damages under
section 768.72(2), thus making the circuit court’s order legally deficient.
The plaintiff responds the order reflects that the circuit court applied
the correct standard of review, and made an affirmative finding that a
rational trier of fact could find punitive damages at trial. The plaintiff
argues the circuit court was not required to make any more specific
findings.
We agree with the defendant’s argument. Section 768.72 pertinently
provides:
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
3
the record or proffered by...
...(b) “Gross negligence” means that the defendant’s conduct
was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights
of persons exposed to such conduct.
§ 768.72(1)-(2), Fla....
...ircuit court make an
affirmative finding indicating whether and how the plaintiff had made a
reasonable evidentiary showing that the defendant had committed either
“intentional misconduct” or “gross negligence,” as those terms are defined
in section 768.72(2), and as required for a jury to award punitive damages
under section 768.72(2).
Without any such affirmative finding, we cannot determine whether the
circuit court performed its gatekeeper function of determining that the
plaintiff had provided “a reasonable basis for recovery of such damages,”
with that basis being the defendant having committed either “intentional
misconduct” or “gross negligence.” § 768.72(1)-(2), Fla....
...for the circuit court to make an affirmative finding indicating whether and,
if so, how the plaintiff has made a reasonable evidentiary showing that the
defendant had committed either “intentional misconduct” or “gross
negligence,” as those terms are defined in section 768.72(2), and as
required for a jury to award punitive damages under section 768.72(2).
Nothing in this opinion should be interpreted as suggesting whether the
plaintiff has or has not made such a showing....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 10836
...See generally Murphy White Dairy, Inc. v. J.F. Simmons,
405 So.2d 298 (Fla. 4th DCA 1981). With regard to the orders granting leave to amend, we decline to exercise jurisdiction since it has not been alleged that the trial court failed to adhere to the procedural requirements of section
768.72, Florida Statutes (2002)....
CopyPublished | Florida 3rd District Court of Appeal
...This appeal followed.
5
ANALYSIS
A trial court’s decision on a motion for leave to amend to add a claim
for punitive damages is reviewed de novo. See Grove Isle Ass’n v. Lindzon,
350 So. 3d 826, 829 (Fla. 3d DCA 2022). Pursuant to section
768.72(1),
Florida Statutes (2023), “no claim for punitive damages shall be permitted
unless there is a reasonable showing by evidence in the record or proffered
by the claimant which would provide a reasonable basis for recovery of such
damages.” Section
768.72 “requires the trial court to act as a gatekeeper,”
which means that the trial court cannot “simply accept[ ] the allegations in a
complaint or motion to amend as true.” Napleton’s N....
CopyPublished | Florida 4th District Court of Appeal
...the complaint to plead claims for punitive damages. We reverse because
the trial court applied the wrong legal standard and failed to determine
whether the plaintiff established a reasonable evidentiary basis for
recovery of punitive damages as required by section 768.72, Florida
Statutes (2024).
Background
Plaintiff Anthony Iaquinto is the former president of the board of
directors of a homeowners’ association....
...3, 2024).
It is well-established that a party cannot plead a claim for punitive
damages unless there is “a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
recovery of such damages.” § 768.72(1), Fla....
...light most favorable to the movant, could find by clear and convincing
evidence that punitive damages are warranted”).
Here, the trial court erred in applying the general, liberal pleading
standard rather than the heightened standard required by section
768.72.
See Holmes v. Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th
DCA 2005) (“Punitive damage amendments are different than traditional
amendments in that section
768.72 has created a substantive legal right
not to be subject to a punitive damage claim until the trial court rules that
there is a reasonable evidentiary basis for punitive damages.”)....
CopyPublished | Florida 3rd District Court of Appeal
...o injure [them] in [their]
trade or profession, or if it imputes to another conduct, characteristics, or a
condition incompatible with the proper exercise of [their] lawful business,
trade, profession, or office.”) (citations omitted); see also § 768.72(3), Fla.
LLC v....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 23 Fla. L. Weekly Fed. B 115, 2011 Bankr. LEXIS 2636, 2011 WL 2784157
...Ronald W. Gregory, Esq., Jay B. Verona, Esq., Englander and Fischer, LLP, for Defendant. AMENDED [1] MEMORANDUM OPINION ON DEFENDANT'S MOTION TO STRIKE PRAYER FOR PUNITIVE DAMAGES MICHAEL G. WILLIAMSON, Bankruptcy Judge. Introduction The provision in section 768.72, Florida Statutes, that no claim for punitive damages shall be permitted unless the plaintiff demonstrates a reasonable basis for that relief applies in this adversary proceeding because (i) that provision does not conflict with any fe...
...[11] The Court's dismissal of the Trustee's claim under section
559.72(8) was with prejudice. [12] The Defendant now seeks to strike the Trustee's request for punitive damages because the Debtor failed to plead entitlement to that relief with specificity under section
768.72, Florida Statutes. [13] Under section
768.72, a plaintiff may not include a request for punitive damages in the initial complaint....
...[14] Instead, the plaintiff must first demonstratebased on evidence in the record or evidence proffered by the plaintiffa reasonable basis for punitive damages. [15] Once that showing is made, the plaintiff can seek leave to amend his complaint to include a request for punitive damages. [16] The Trustee contends that section 768.72's pleading requirements do not apply in federal court. [17] So the Court must determine the extent to which section 768.72 applies to the Trustee's FCCPA claim....
...Conclusions of Law The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(O). The United States Supreme Court, in Hanna v. Plumer , developed a two-part test to determine when a state lawsuch as section 768.72applies in *436 federal diversity cases....
...rce in the context of other types of federal jurisdiction, including jurisdiction exercised by bankruptcy courts under 28 U.S.C. § 1334(a) and (b). [23] The Eleventh Circuit, in Cohen v. Office Depot, Inc ., used the Hanna test to determine whether section 768.72 applies in federal diversity cases. [24] At the outset, the Cohen court noted that section 768.72 contains a "pleading" component, as well as a "discovery" component....
...[28] According to the Cohen court, the prohibition against pleading punitive damages in the initial complaint conflicts with Federal Rule Civil Procedure 8(a)(3), which requires that a claim for relief include a demand for the remedy sought. Because Rule 8(a)(3) is constitutional, the Cohen court held that section 768.72's prohibition against pleading punitive damages in the initial complaint must yield to Rule 8(a)(3)....
...*437 But the Cohen court held that remaining part of the "pleading" componentthe requirement that a plaintiff demonstrate a reasonable basis for punitive damages did not conflict with any federal procedural rule. The only federal procedural rule that could have created a potential conflict with section 768.72's requirement to demonstrate a reasonable basis for punitive damages was Federal Rule Civil Procedure 8(a)(2)....
...the first prong of the Hanna test. Ordinarily, where there is no conflict between the state law and the federal procedural rule, the court would consider the second prong of the Hanna test. But the Cohen court had already determined that one part of section 768.72's "pleading" component (i.e., the prohibition against pleading punitive damages in the initial complaint) was inapplicable in federal diversity cases....
...mponent (i.e., the requirement to demonstrate a "reasonable basis" for punitive damages) passes the second prong of the Hanna test. This Court, therefore, must now address the second prong of the Hanna test and determine whether the failure to apply section 768.72's requirement that a plaintiff demonstrate a reasonable basis for punitive damages will result in the inequitable administration of justice or promote forum shopping. Before doing so, however, it is important to note that section 768.72 does notas some courts and many litigants suggestimpose a "heightened" pleading requirement. Section 768.72, instead, provides that no claim for punitive damages shall be permitted unless the plaintiff demonstrates a reasonable basis for that relief "based on evidence in the record or proffered by the [plaintiff]." [32] Nothing in the language of section 768.72 requires that the required showing be made in the complaint....
...f punitive damages, the personal and private financial affairs of defendants would be unnecessarily exposed and, in some cases, the threat of such exposure might be used by unscrupulous plaintiffs to coerce settlements from innocent defendants. [38] Section 768.72, of course, eliminates that tactical advantage in Florida state court. Consequently, many plaintiffs would choose to file their claims in federal court to circumvent section 768.72's protections....
...nable basis for that remedy would substantially affect the outcome of cases in federal court. Because failing to apply state law would lead to the inequitable administration of justice and promote forum shopping, then state law applies. Accordingly, section 768.72's requirement that a plaintiff demonstrate a reasonable basis for entitlement to punitive damages *439 applies in this case. So while the Trustee is free to plead entitlement to punitive damages in his initial complaint, that request is still subject to challenge. Most likely, that challenge will arise when a plaintiff seeks financial worth discovery. Under section 768.72, "[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted." [39] Consequently, a defendant can object to financial worth discovery on the basis that a plaintiff has failed to demonstrate a reasonable basis for punitive damages....
...[5] Adv. Doc. No. 1 at ¶¶ 11, 12, 19, 21, 23 & 31. [6] Id. at ¶¶ 11, 19, 21 & 23. [7] Id. at ¶¶ 19-23. [8] Id. at ¶ 25. [9] Adv. Doc. No. 7; Adv. Doc. No. 11 at 2. [10] Adv. Doc. No. 11 at 10-11. [11] Id. [12] Id. at 10. [13] Adv. Doc. No. 15. [14] § 768.72(1), Fla....
...[24] Cohen,
184 F.3d at 1297-1299. [25] Id. at 1296 n. 2. [26] Id. [27] Id.; see also Porter v. Ogden, Newell & Welch,
241 F.3d 1334, 1340 (11th Cir.2001) (noting that "[t]his court, in Cohen, did not decide whether or not federal discovery rules preempt [section
768.72's discovery component"]). [28] Cohen,
184 F.3d at 1299. [29] Id. at 1297. [30] Fed.R.Civ.P. 8(a)(2). [31] Cohen,
184 F.3d at 1297. [32] §
768.72(1), Fla....
...193, 198 (1968) (observing that the "threat of having to place a dollar value on one's assets and to disclose that valuation to strangers, may well serve as a powerful weapon to coerce settlement which is not warranted by the facts of the case"). [39] § 768.72(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 73, 2004 WL 40570
...Some thirty days after it was filed, Surrey Place filed a detailed and thorough response of approximately the same length, provided an affidavit of a physician and filed numerous medical records in an effort to undermine the respondent’s punitive damage proffer. Under section 768.72, Florida Statutes, the trial judge was charged with determining that there was a reasonable evidentia-ry basis to recover punitive damages....
...rty.” The judge also observed that a hearing on the motion, even if permissible, was not mandated by statute. Based on the foregoing, we find no merit to the petitioner’s claim that the trial court failed to follow the procedural requirements of Section 768.72 or has failed to afford Surrey Place procedural due process....
CopyPublished | Florida 4th District Court of Appeal
...3d 24, 34 (Fla. 4th
DCA 2023).
A party cannot plead a punitive damages claim unless the party makes
“a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages.” § 768.72(1), Fla. Stat. (2024). “A defendant may be held liable
for punitive damages only if the trier of fact, based on clear and convincing
evidence, finds that the defendant was personally guilty of intentional
misconduct or gross negligence.” § 768.72(2), Fla. Stat. (2024).
2
Under section 768.72, “‘[i]ntentional misconduct’ means that the
defendant had actual knowledge of the wrongfulness of the conduct and
the high probability that injury or damage to the claimant would result
and, despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” § 768.72(2)(a), Fla....
...Stat. (2024). “Gross
negligence,” in turn, “means that the defendant’s conduct was so reckless
or wanting in care that it constituted a conscious disregard or indifference
to the life, safety, or rights of persons exposed to such conduct.”
§ 768.72(2)(b), Fla....
...3
award of punitive damages.”). Moreover, reversal is required because the
proposed amended complaint did not contain any allegations that
Defendant’s conduct constituted intentional misconduct or gross
negligence as defined in section 768.72....
...pected to abuse or
harass.” That allegation tracks the language of section
559.72(7), Florida
Statutes (2024), and supports Plaintiff’s underlying claim for violation of
the FCCPA, but it is insufficient to support a punitive damages claim
under section
768.72....
...A
claim, Defendant’s conduct in sending those text messages fails to rise to
the level of intentional misconduct or gross negligence needed to support
a punitive damages claim. See Perlmutter,
376 So. 3d at 35 (proving
intentional misconduct under section
768.72(2)(a) requires evidence of
“specific intent, not general intent, to knowingly engage in wrongful
conduct”); Valladares v. Bank of Am. Corp.,
197 So. 3d 1, 11 (Fla. 2016)
(gross negligence under section
768.72(2)(b) is “equivalent to the conduct
involved in criminal manslaughter”)....
...requisite evidentiary showing before granting the motion for leave to assert
a punitive damages claim.
Accordingly, we reverse the county court’s order granting leave to
amend the complaint to add a punitive damages claim and remand for
1 These cases pre-date the enactment of section 768.72, Florida Statutes, but the
proof required under the statute is generally the same as the proof required under
the common law standards....
CopyPublished | Florida 3rd District Court of Appeal
...n Florida, “the purpose of
punitive damages is not to further compensate the plaintiff, but to punish the
defendant for its wrongful conduct and to deter similar misconduct by it and
other actors in the future.” Lindzon,
350 So. 3d at 829-30. Section
768.72(1),
Florida Statutes (2024), provides that “no claim for punitive damages shall
be permitted unless there is a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
r...
...3d DCA 2016), the process
4
for asserting a claim for such damages is rather unique, in that a party may
not assert such a claim without leave of the court. See Globe Newspaper Co.
v. King,
658 So. 2d 518, 519-20 (Fla. 1995) (holding section
768.72 “requires
a plaintiff to provide the trial court with a reasonable evidentiary basis for
punitive damages before the court may allow a claim for punitive damages
to be included in a plaintiff’s complaint.”)
To be held liable for punitive damages, the trier of fact must determine
there is clear and convincing evidence “that the defendant was personally
guilty of intentional misconduct or gross negligence.” §
768.72(2), Fla....
...vide a
reasonable basis for recovery of such damages” and (2) plaintiff must then
present at trial clear and convincing evidence to the trier of fact “that the
defendant was personally guilty of intentional misconduct or gross
negligence.” § 768.72(2), Fla....
...hat Five Fran knew the dog
was dangerous or that Five Fran’s conduct was otherwise so “reckless or
wanting in care that it constituted a conscious disregard or indifference to the
life, safety, or rights of persons exposed to such conduct.” § 768.72(2)(b)),
Fla....
CopyPublished | Florida 4th District Court of Appeal
...The
plaintiffs argued that Sapp could be held liable for punitive damages
because he was grossly negligent—his conduct was “so reckless or wanting
in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of persons exposed to such conduct.” § 768.72(2)(b), Fla.
Stat....
...participated” in Sapp’s conduct, “knowingly condoned, ratified, or
consented” to Sapp’s conduct, and itself “engaged in conduct that
constituted gross negligence and that contributed to the loss, damages, or
injury suffered by [the plaintiffs].” § 768.72(3), Fla....
...should he not allow them to be pled against Publix also? Defense counsel
began by arguing that it depended upon the basis upon which they were
sought, i.e., either the various acts of gross negligence by Sapp or the
Publix corporate policy. The court then pointed to section 768.72(3)(a),
Florida Statutes, “that the employer actively and knowingly participated in
the cell phone use.” While defense counsel noted that Sapp was not on
the phone with his manager at the time of the accident, the court pointed
out...
...Defense counsel complained that the entire case
against Publix for punitive damages came down to the cell phone policy,
even though Publix had trained Sapp appropriately. The court then asked
9
counsel to address section 768.72(3)(b), which permits punitive damages
where an employer knowingly condoned, ratified, or consented to the
conduct....
...There’s no evidentiary showing that Publix has
this out-of-control fleet because of their cell phone policy.
Counsel continued and addressed some of the cases cited by the
plaintiffs. Eventually, the court noted, “It still goes back to 768.72.”
Counsel argued the case law and the theories of negligence under which
the plaintiffs were alleging liability on behalf of Publix....
...The court inquired whether Publix had not ratified the conduct of
speaking on the cell phone when Publix managers used it to communicate
with the drivers. Counsel responded that Publix was not a direct actor but
then admitted upon questioning by the court that section 768.72 did not
require direct action. The court found that, at least as to section
768.72(3)(b), direct action was not required....
...monitor its drivers for speeding, failed to investigate the use of cell phones
in accidents, and exercised “willful blindness” to its drivers’ use of cell
phones.
After further argument, the court ultimately granted the motion to
amend to add punitive damages, relying on both section 768.72(3)(a) and
(b).
Within ten days of the hearing, Publix and Sapp both filed motions to
disqualify the judge....
CopyPublished | Florida 4th District Court of Appeal
...e of the Estate of
Alberto Olivares.
PER CURIAM.
Petitioners, Publix Supermarkets and Raymond Sapp, both seek
certiorari review of an order granting plaintiff’s motion to amend to seek
punitive damages in this wrongful death cause of action. Section
768.72(1), Florida Statutes (2018), allows for the amendment of a civil
action to state a claim for punitive damages when “there is a reasonable
showing by evidence in the record or proffered by the claimant which
would provide a reasonable...
...s.
In Globe Newspaper Co. v. King,
658 So. 2d 518, 519 (Fla. 1995), our
supreme court held that:
appellate courts do have certiorari jurisdiction to review
whether a trial judge has conformed with the procedural
requirements of section
768.72, but do not have certiorari
jurisdiction to review a decision of a trial judge granting leave
to amend a complaint to include a claim for punitive damages
when the trial judge has followed the procedural requirements
of section
768.72....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 78, 2009 WL 36481
...hs old, while she was under the care of the Cradle to Crayons Childcare Center. On appeal, appellants seek a new trial, arguing that the trial court erred in allowing appellees to amend their complaint to seek punitive damages without complying with section 768.72(1), Florida Statutes (2007). Because the appellants waived their rights under section 768.72(1) by failing to appear, we affirm....
...1 Following appropriate notice to appellants, the trial court granted appel-lees’ motion without appearance by appellants. Further, appellants did not appear at a properly noticed jury trial on the issue of damages. On appeal, appellants argue that the trial court’s failure to comply with the procedure set out by section 768.72(1) was fundamental error. We do not agree. Section 768.72(1) provides in pertinent part that no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The purpose of this provision in section 768.72 is to require a showing with evidence which would provide a reasonable basis for recovery of punitive damages....
...The “section creates a substantive legal right not to be subjected to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Id. “However, a defendant’s right to relief under section 768.72 is a right that can be waived by failing to assert it.” Fostock v....
...and, as a result, they waived their right to have the statute enforced. Id. See also Solis v. Calvo,
689 So.2d 366, 368 (Fla. 3d DCA 1997); Philip J. Padova *1092 no, Florida Civil Practice § 27.5 (2007-08 ed.) (“The procedural rights afforded by-section
768.72 can be waived by a failure to object.”)....
...hat there was a "gross lack of supervision and that the facility was inadequate to accommodate the safety needs” of the children. Because of our holding here, we do not address whether these affidavits are sufficient to satisfy the requirements of section 768.72(1).
CopyPublished | Supreme Court of Florida
...rvey, no state had a
rule like the one adopted today by the majority.2 Oral Argument at
4:43, https://wfsu.org/gavel2gavel/viewcase.php?eid=2761.
At the heart of the majority’s decision is a concern for the
privacy of financial discovery. Section 768.72(1), Florida Statutes
2....
CopyPublished | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 59, 2001 WL 10395
...court's order of dismissal for lack of subject matter
jurisdiction. In that case, after the district court had stricken the Florida plaintiffs' punitive
damage claim because it had not been properly pled in accordance with Fla. Stat. § 768.72, the
court concluded that the plaintiff's class action suit did not satisfy the amount in controversy
requirement. See id. at 1294. On appeal, the Court held in Cohen I that Fla. Stat. § 768.72 did
not apply to cases filed in federal court, see id....
CopyPublished | Court of Appeals for the Eleventh Circuit
...he district court’s order of dismissal for lack of subject
matter jurisdiction. In that case, after the district court had stricken the Florida plaintiffs’
punitive damage claim because it had not been properly pled in accordance with Fla. Stat. §
768.72, the court concluded that the plaintiff’s class action suit did not satisfy the amount in
controversy requirement....
...Punitive Damages
In arguing that Tapscott continues to be controlling authority on the issue of
aggregating a class claim for punitive damages, the parties primarily rehash the
same arguments considered and rejected by this Court in Cohen II. They maintain
768.72 did not apply to cases filed in federal court, see id....
CopyPublished | Florida 4th District Court of Appeal
...Steven Selz, the defendant below, appeals an order granting plaintiffs’
motion for leave to add a claim for punitive damages in the underlying
fraudulent lien litigation. We reverse the circuit court’s order, holding that
plaintiffs failed to meet the requirements imposed by section 768.72,
Florida Statutes (2022), to amend their complaint to seek punitive
damages.
The Lower Court Proceedings
The underlying litigation involved two properties and three lower court
cases....
...t, the Trustees moved to
amend their complaint to assert a punitive damages claim, relying largely
on the findings within the summary judgment order to provide a
reasonable basis for recovery of punitive damages based on intentional
misconduct under section
768.72(2)(a), Florida Statutes (2018).
3
Sections
817.535 and
768.72, Florida Statutes
Section
817.535 sets out criminal and civil consequences for filing or
directing the filing of false documents or records against real or personal
property....
...sets forth the damages
recoverable in the “civil cause of action” under the statute as follows:
Upon a finding of intent to defraud or harass, the court or jury
shall award actual damages and punitive damages, subject
to the criteria in s.
768.72, to the person adversely affected
by the instrument. The court may also levy a civil penalty of
$2,500 for each instrument determined to be in violation of
subsection (2).
(Emphasis added). This provision expressly makes any award of punitive
damages “subject to the criteria in s.
768.72.”
Governing the procedure for asserting a claim for punitive damages,
section
768.72(1), Florida Statutes (2022), provides in pertinent part:
In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages. The claimant
may move to amend her or his complaint to assert a claim for
punitive damages as allowed by the rules of civil procedure.
The mandatory criteria in section
768.72(2) required for an award of
punitive damages is that the trier of fact, “based on clear and convincing
evidence, finds that the defendant was personally guilty of intentional
misconduct or gross negligence.”
4
Recently, in Federal Insurance Co. v. Perlmutter, 48 Fla. L. Weekly
D2320,
2023 WL 8609988 (Fla. 4th DCA December 13, 2023), this court,
in an en banc opinion, examined the pleading requirements established by
section
768.72....
...easonable
jury, viewing the totality of proffered evidence in the light most
favorable to the movant, could find by clear and convincing
evidence that punitive damages are warranted.
2023 WL 8609988 at *6. We held that under section
768.72(1),
a “reasonable showing by evidence” of “a reasonable basis” for
punitive damages means the movant must demonstrate the
movant will be able to produce competent, substantial
evidence at trial...
...4th DCA 2017) (citing Holmes v.
Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005));
see also Grove Isle Ass’n v. Lindzon,
350 So. 3d 826, 829 (Fla. 3d DCA
2022).
We hold that the plaintiffs failed to make the evidentiary showing
required by section
768.72 and Federal Insurance before being permitted
to amend their complaint to add a claim for punitive damages.
Section
768.72(2)(a), Florida Statutes (2018), defines “intentional
misconduct” as meaning “the defendant had actual knowledge of the
wrongfulness of the conduct and the high probability that injury or damage
to the claimant would result and, despite that knowledge, intentionally
pursued that course of conduct, resulting in injury or damage.” §
768.72(2)(a), Fla. Stat. (2018). Thus, “section
768.72(2) requires an
evidentiary showing of specific intent, not general intent, to knowingly
engage in wrongful conduct.” Fed....
...knowledge of the
wrongfulness of the conduct and the high probability that injury or damage
to the claimant would result and, despite that knowledge, intentionally
pursued that course of conduct, resulting in injury or damage.” Id. at *7
(quoting § 768.72(1), (2), Fla....
...ction
817.535, Florida Statutes (2018), by recording the purported equitable lien
document. Punitive damages liability based on a “should have known”
standard does not meet the specific intent requirement for intentional
misconduct as defined in section
768.72(2)....
...WARNER, J., concurring.
I concur because our court is now bound by Federal Insurance Co. v.
Perlmutter, 48 Fla. L. Weekly D2320,
2023 WL 8609988 (Fla. 4th DCA
December 13, 2023). As noted in my dissent in that case, I disagree with
the majority’s interpretation of section
768.72.
* * *
Not final until disposition of timely filed motion for rehearing.
6
CopyPublished | Florida 3rd District Court of Appeal
...We disagree and
affirm, without further discussion, the order granting the Tenant’s motion for
leave to amend to assert punitive damages because the Tenant made a
reasonable showing by extensive proffer that provided a reasonable basis
for recovery of punitive damages. See § 768.72(1), Fla....
...concern, and what they convey, in their context, is what the text means.’”
Ham v. Portfolio Recovery Assocs., LLC,
308 So. 3d 942, 946 (Fla. 2020)
(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 56 (2012)).
Section
768.725, Florida Statutes (2024), governs the plaintiff’s
burdens of proof in a punitive damages action:
In all civil actions, the plaintiff must establish at
trial, by clear and convincing evidence, its
entitlement to an award of punitive damages....
...2d 523 (Fla. 3d DCA 1987); Lawson v. Latham,
564 So. 2d 1216 (Fla. 3d DCA 1990); and ICMfg & Assocs., Inc. v. Bare Bd.
Grp., Inc.,
238 So. 3d 326 (Fla. 2d DCA 2017). However, none of these
16
cases discusses section
768.725. Indeed, two of the cases were decided
before 1999, which is when the statute was enacted. See Ch. 99-225, § 21,
Laws of Fla. Moreover, in ICMfg, which was decided after section
768.725’s
enactment but does not contain discussion of any provision in Chapter 768,
the trial court found that despite the default, the counter-plaintiff had proven
entitlement to punitive damages....
...3d at 332 (“Although the trial court
had previously entered a default on liability against the Appellants, it
specifically found that [the counter-plaintiff] had proven the elements of each
cause of action alleged in its counterclaim.”).
Because section 768.725 requires the Tenant to “establish at trial, by
clear and convincing evidence, its entitlement to an award of punitive
damages[,]” we reverse the punitive damages award and remand for a trial
on entitlement.
C....
CopyPublished | Supreme Court of Florida
...vey, no state had a
rule like the one adopted today by the majority. 2 Oral Argument at
4:43, https://wfsu.org/gavel2gavel/viewcase.php?eid=2761.
At the heart of the majority’s decision is a concern for the
privacy of financial discovery. Section 768.72(1), Florida Statutes
2....
CopyPublished | Florida 4th District Court of Appeal
...amend a wrongful death medical malpractice complaint to assert a claim
for punitive damages. We reverse because appellee failed to satisfy the
requirements to establish entitlement to assert a claim for punitive
damages against a corporation pursuant to section 768.72(3)(b), Florida
Statutes (2019).
Appellee, as personal representative of the decedent’s estate, filed the
underlying wrongful death action against appellants....
...hat the hospital’s response to the
incident reflects its “condonement and ratification of the [provider’s] gross
negligence.”
We review de novo the trial court’s purely legal ruling that plaintiff made
a “reasonable showing” under section 768.72 to recover punitive damages.
Holmes v....
...ers involved were grossly
negligent. Second, neither the complaint nor the proffered evidence
demonstrated how appellants’ actions before or during decedent’s
treatment ratified or approved the health care providers’ alleged negligent
conduct. § 768.72(3)(b), Fla. Stat. (2019).
Section 768.72(1), Florida Statutes (2019), provides that “no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recov...
...ages.” Subsection (2) adds
that “[a] defendant may be held liable for punitive damages only if the trier
of fact, based on clear and convincing evidence, finds the defendant was
personally guilty of intentional misconduct or gross negligence.” §
768.72(2), Fla. Stat. (2019). This case concerns the latter, defined in the
statute as conduct “so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.” § 768.72(2)(b), Fla....
...l, corporation, or
other legal entity. Subsection (b) permits those damages where the
“officers, directors, or managers of the employer, principal, corporation, or
other legal entity knowingly condoned, ratified, or consented to such
conduct[.]” § 768.72(3)(b), Fla....
...9.130(a)(3)(G); In
re Amend. to Fla. R. of App. P. 9.130,
345 So. 3d 725, 726 (Fla. 2022).
3
Appellee did not proffer any evidence to demonstrate that the health
care providers’ conduct amounted to “gross negligence” under section
768.72(2) as opposed to ordinary negligence....
...In sum, punitive damages are awarded to punish wrongdoers and to
deter them from committing similar bad acts in the future. See Grove Isle,
350 So. 3d at 829–30; Blundell v. R. J. Reynolds Tobacco Co.,
324 So. 3d
1014, 1016 (Fla. 1st DCA 2021) (citations omitted). Section
768.72(3)(b)
requires appellee to satisfy a heightened burden to seek punitive damages
against the hospital for its conduct....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 1997)
(Gross, J., dissenting) (“Record evidence to support an intentional tort
does not automatically support an award of punitive damages.”).
Recently, in Federal Insurance Co. v. Perlmutter, this court, in an en
banc opinion, examined the pleading requirements for punitive damages
established by section 768.72, Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...Appellant Comway Trade Logistics, LLC appeals an order denying its
motion to amend its complaint to add a claim for punitive damages. We find
that Comway Trade Logistics failed to make a reasonable showing which
would provide a reasonable basis for recovery of punitive damages. §
768.72(1) Fla....
CopyPublished | Florida 3rd District Court of Appeal
...the merits of the remaining claims raised on appeal by PBT.
4
defendant for its wrongful conduct and to deter similar misconduct by it and
other actors in the future.” Lindzon,
350 So. 3d at 829-30.
Section
768.72(1), Florida Statutes (2024), provides that “no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for re...
...itive
damages are a “gamechanger,” the process for asserting a claim for such
damages is rather unique, in that a party may not do so without leave of the
trial court. See Globe Newspaper Co. v. King,
658 So. 2d 518, 520 (Fla.
1995) (holding section
768.72 “requires a plaintiff to provide the court with a
reasonable evidentiary basis for punitive damages before the court may
allow a claim for punitive damages to be included in a plaintiff’s complaint.”)
Thus, the trial court ser...
... which would provide a reasonable basis for recovery of such damages;” and
(2) must thereafter present clear and convincing evidence to the trier of fact
“that the defendant was personally guilty of intentional misconduct or gross
negligence.” § 768.72(2), Fla....
...(2024).
As for ultimately proving entitlement to punitive damages, the jury (or
the court as trier of fact) must determine the plaintiff has established, by clear
and convincing evidence, “that the defendant was personally guilty of
intentional misconduct or gross negligence.” § 768.72(2), Fla....
...Prior to 2022, orders denying a motion to amend to assert a claim of punitive
damages were reviewable only by petition for writ of certiorari, and this court
was limited to a determination of whether the trial court followed the
procedural requirements of section 768.72....
....
(b) “Gross negligence” means that the defendant's conduct was
so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.
§ 768.72(2)(a)-(b), Fla....
...e required to show that PBT either
actively and knowingly participated in such conduct; knowingly condoned,
ratified or consented to such conduct; or engaged in conduct that constituted
gross negligence which contributed to plaintiffs’ damages. § 768.72(3), Fla.
Stat....
...through Eight, Thirteen, and Sixteen, considered together with the proffer
and record evidence, are simply inadequate to meet the punitive damages
threshold by making a “reasonable showing” of a “reasonable basis for
recovery of such damages.” § 768.72(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...to
amend a complaint to add a punitive damage claim. Bistline v. Rogers,
2
215 So. 3d 607, 610 (Fla. 4th DCA 2017) (citing Holmes v.
Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005)).
Section
768.72(1), Florida Statutes (2009), provides “no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.” See also Fla. R. Civ. P.
1.190(f); Naso v. Hall,
338 So. 3d 283, 288-89 (Fla. 4th DCA 2022).
“Punitive damage amendments are different than traditional amendments
in that section
768.72 has created a substantive legal right not to be
subject to a punitive damage claim until the trial court rules that there is
a reasonable evidentiary basis for punitive damages.” Holmes, 891 So....
CopyPublished | Florida 5th District Court of Appeal
...da Rule of Appellate
Procedure 9.130(a)(3)(G) impacts our review.
Pleading Requirements for Punitive Damages Claims
There are two operative statutes that embrace the topic of
pleading a claim for punitive damages relevant to this appeal.
Section 768.72 applies to “any civil action.” § 768.72(1), Fla....
...Stat.
It states in relevant part:
(1) In any civil action, no claim for punitive damages shall
be permitted unless there is a reasonable showing by
evidence in the record or proffered by the claimant which
would provide a reasonable basis for recovery of such
damages.
§ 768.72(1), Fla....
...when the criteria in this section are applied.
§
400.0237(1), Fla. Stat. The punitive damages claim in the
instant case was brought pursuant to section
400.0237. See Life
Care Ctrs. of Am., Inc. v. Croft,
299 So. 3d 588, 590 (Fla. 2d DCA
2020) (explaining that case law discussing section
768.72 is
significant and applicable, but section
400.0237 has different
procedural requirements).
Affirmative Findings Requirement
Under certiorari review, this Court found that “the trial court,
serving as a gatekee...
...(requiring trial courts to “make
written findings of fact” and “a specific, factual determination”).
Notwithstanding our agreement with Kovacs, we too must yield to
Varnedore because the operative statutes on which it is rooted
remain unaltered. See §
400.0237, Fla. Stat.; §
768.72, Fla....
...in writing) the evidence presented by the movant that satisfied the
evidentiary showing,” see id., appellate courts will not always be
significantly hampered in their review without such finding.
Furthermore, we express no opinion on the Fourth District Court’s
interpretation of section 768.72 as it has no bearing here.
6
CopyPublished | District Court of Appeal of Florida
215 So. 3d 607, 611 (Fla. 4th DCA 2017) (“[Section
768.72, Florida Statutes] requires the trial court
CopyPublished | Florida 3rd District Court of Appeal
...Necessarily, ‘the particular matter must be fully litigated and
determined in a contest that results in a final decision of a court of competent
jurisdiction.’” (quoting Bradenton Group, Inc. v. State,
970 So. 2d 403, 408
(Fla. 5th DCA 2007))); Bistline v. Rogers,
215 So. 3d 607, 611 (Fla. 4th DCA
2017) (“[Section
768.72, Florida Statutes] requires the trial court to act as a
gatekeeper and precludes a claim for punitive damages where there is no
reasonable evidentiary basis for recovery.”).
2
CopyPublished | Florida 3rd District Court of Appeal
...onal misconduct or gross negligence of Petitioners, on this record we are unable to conclude that the trial court, in adjudicating Respondents' motion for punitive damages, failed to apply the correct law, i.e., the procedural standards set forth in section 768.72 of the Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal
...misconduct or gross negligence of Petitioners, on this record we are unable to
conclude that the trial court, in adjudicating Respondents’ motion for punitive
damages, failed to apply the correct law, i.e., the procedural standards set forth in
section 768.72 of the Florida Statutes.
Petitions denied.
2
CopyPublished | Florida 5th District Court of Appeal
...injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken,
62 So.
3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file
a pleading asserting a claim for punitive damages in a civil action are enumerated in
section
768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190.
Section
768.72(1) provides that defendants in civil actions shall be free from claims
of punitive damages and related financial discovery unless the claimant makes “a
reasonable showing by evidence in the record or proffered by the claimant which would
provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
...The only basis for awarding punitive damages against individual defendants, such
as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross negligence.”
§ 768.72(2), Fla....
...negligence to justify recovery of punitive damages. “Gross negligence means that the
defendant’s conduct was so reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
Id. at § 768.72(2)(b) (internal quotation marks omitted).
4
As previously stated, a party wishing to pursue punitive damages must first file a
motion seeking leave of court to file an amended complaint and then make “a reasonable
showing by evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla....
...Evidentiary component of motion to add punitive damages
Because Respondent, on remand, may choose to file another motion to amend,
we believe it would be helpful to the parties and to the trial court to complete our analysis
of the additional requirements of section 768.72 and rule 1.190(f).
If the proposed amended complaint contains sufficient allegations of gross
negligence, the trial court must next consider whether plaintiff has established a
reasonable factual basis for its punitive damage claims....
...During the hearing in this case, Respondent sometimes relied on record
evidence, such as deposition testimony and, at other times, Respondent relied on witness
testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers,
arguing that the proffers did not comply with the requirements of section 768.72 or rule
1.190(f)....
...at 324.
The Second District Court of Appeal suggested that “to require written proffers to be filed
a reasonable time prior to future hearings would appear to be a reasonable method to
assure that such hearings do satisfy the spirit of the statute [section 768.72] and the
requirements of due process.” Id....
...e the bases upon
which it granted Respondent’s motion to assert punitive damages. Because punitive
damages may only be pursued after the trial court finds the plaintiff has met or exceeded
9
the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is
required to make an affirmative finding that plaintiff has made a “reasonable showing by
evidence,” which would provide a “reasonable evidentiary basis for recovering such
damages” if the motion to amend is granted....
...D FOR FURTHER
PROCEEDINGS.
SAWAYA and LAMBERT, JJ., concur.
2In Estate of Despain v. Avante Group, Inc.,
900 So. 2d 637, 642-44 (Fla. 5th DCA
2005), we held that appellate courts would review, de novo, a trial court’s finding that a
section
768.72(1) reasonable basis exists for asserting punitive damages....
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 456911, 2017 Fla. App. LEXIS 1256
...After a hearing, the trial court granted the motion, citing Estate of Despain v. Avante Group, Inc.,
900 So.2d 637 (Fla. 5th DCA 2005). In seeking certiorari relief, Petitioner argues that the trial court erred in relying on Despain because that decision was based on a prior version of the punitive damages statute, see §
768.72, Fla. Stat. (1999), which has since been amended to heighten the burden of proving an employer’s fault from ordinary negligence to gross negligence. See §
768.72, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...See Fla. R. App. P.
9.130(a)(5). Based upon Energy-Cargo’s proper and commendable
confession of error and our own independent review of the record, we
conclude Downtown Towing failed to comply with the predicate procedural
requirements of section 768.72, Florida Statutes (2023), before seeking
punitive damages....
...ded pleading
to motion to amend is mandatory); see also Caprio v. Castro,
299 So. 3d
1147, 1148 (Fla. 3d DCA 2020) (quashing trial court’s order due to “proper
and commendable confession of error” for failure to comply with
requirements of section
768.72)....
CopyPublished | Florida 4th District Court of Appeal
...car manufacturer] exhibited a reckless disregard for human life equivalent
to manslaughter by designing and marketing the [vehicle].” Id. at 825.
It is true that in 1999, after Chrysler, the Florida legislature amended
the punitive damages statute, section 768.72, Florida Statutes, into its
current form....
CopyPublished | Florida 3rd District Court of Appeal
...After the trial court had ruled in the present case, the Supreme Court of
Florida issued its decision in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202
1 The complaint did not include a claim for punitive damages, and no motion to
add such a claim pursuant to section 768.72, Florida Statutes (2012), was pending
when the offer of judgment was served....
CopyPublished | Florida 4th District Court of Appeal | 1996 Fla. App. LEXIS 1524, 1996 WL 72221
...The trial court had not, however, conducted an evidentiary hearing on respondent’s entitlement to such damages. This court has consistently held that a claim for punitive damages may not be as *329 serted without a trial court having first determined that a factual basis for such damages exists as required by section 768.72, Florida Statutes (1993)....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 620306, 2014 Fla. App. LEXIS 2188
...RIAM. This matter is before us on a petition for writ of certiorari. Petitioner Hayden Lea-son seeks review of an order allowing a punitive damages amendment to one count of respondent Scott Farese’s complaint for fraudulent misrepresentation. See § 768.72, Fla....
...We reiterate that allegations of fraud contained in a complaint cannot, standing alone, support a request to amend a complaint to include a claim for punitive damages. Such a request must be supported by a reasonable evidentiary basis. Id. Because the trial court followed the proper procedural requirements of section 768.72, Florida Statutes, we deny the petition....
CopyPublished | Florida 1st District Court of Appeal
...*1141 Petitioners seek certiorari review of the order allowing Respondents to amend their counterclaim to assert a claim for punitive damages. In such a proceeding, the scope of our review is limited to determining whether the trial court complied with the procedural requirements of section 768.72, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...*1141 Petitioners seek certiorari review of the order allowing Respondents to amend their counterclaim to assert a claim for punitive damages. In such a proceeding, the scope of our review is limited to determining whether the trial court complied with the procedural requirements of section 768.72, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...Petitioners seek certiorari review of the order allowing
Respondents to amend their counterclaim to assert a claim for
punitive damages. In such a proceeding, the scope of our review is
limited to determining whether the trial court complied with the
procedural requirements of section 768.72, Florida Statutes....
CopyPublished | Court of Appeals for the Eleventh Circuit
...approximately $ 30 million if
the corpus was included in Reverend Porter’s estate.
5
resulting from the drafting error. In addition, the Trustees sought punitive damages
pursuant to Florida Stat. § 768.72....
...documents from the Defendants in support of the Trustees’ punitive damages claim.
First, Defendants argue that the magistrate failed to make an affirmative finding that
a reasonable basis existed for the Trustees’ punitive damages claim as required by
Florida Stat. § 768.72....
...aint and,
12
alternatively, did not allege sufficient facts to support a punitive damages claim. We
disagree.
This court has held that the pleading rules set forth in Fed.R.Civ.P. 8(a)(3)
preempt §
768.72’s requirement that a plaintiff must obtain leave from the court
before including a prayer for punitive damages. See Cohen v. Office Depot, Inc.,
184
F.3d 1292, 1299 (11th Cir. 1999), vacated in part,
204 F.3d 1069 (11th Cir. 2000).
However, §
768.72 also has a discovery component which states that “[n]o discovery
of financial worth shall proceed until after the pleading concerning punitive damages
is permitted.” Fla. Stat. §
768.72. Prior to allowing discovery of financial net worth
information, Defendants argue that §
768.72 requires a plaintiff who has made a claim
for punitive damages to produce evidence or make a proffer of evidence that shows
a reasonable basis for the punitive damages claim....
...ment motion. See Will v. Systems
Eng’g Consultants, Inc.,
554 So.2d 591, 592 (Fla. App. 3 Dist. 1989); see also Solis
13
v. Calvo,
689 So.2d 366 (Fla. App. 3 Dist. 1997) (“Pursuant to Florida Statute section
768.72 (1995), a punitive damage claim can be supported by a proffer of evidence....
CopyPublished | Florida 4th District Court of Appeal
...3d 703, 705 (Fla. 4th DCA 2023).
We first address the procedural missteps in this case. Rule 1.190(f)
governs motions to amend to add claims for punitive damages. In addition
to incorporating the statutory prerequisites for punitive damages under
section 768.72, Florida Statutes (2023), the rule requires the movant to
attach the proposed amended pleading to the motion....
...basis for recovery exists.”
2023 WL 8609988 at *4. Further, to permit a
punitive damages claim, there must be “a reasonable showing by evidence
in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” §
768.72(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...motion to add a claim for punitive damages against JVA by appellee Doral
10, LLC (“Doral 10”). We have jurisdiction under Florida Rule of Appellate
Procedure 9.130(a)(3)(G). We reverse the challenged order because Doral
10’s showing below did not satisfy the requirements of section 768.72(3) of
the Florida Statutes, governing punitive damages claims asserted against a
corporate entity.
I....
...rt performs a
“gatekeeping” function, requiring the trial court to determine whether the
movant has established a reasonable basis for the recovery of punitive
damages. Fed. Ins. Co. v. Perlmutter,
376 So. 3d 24, 32 (Fla. 4th DCA
2023);2 see §
768.72(1), Fla. Stat. (2024). The gatekeeper role also extends
to the trial court’s determining whether the movant has satisfied the
requirements of subsection
768.72(3)....
...We are reversing the challenged order on
grounds other than the issue certified in Perlmutter, and express no opinion
regarding the certified issue.
4
An analysis of whether a claim for punitive damages is warranted
proceeds from section 768.72(1) of the Florida Statutes, which, in relevant
part, states: “In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for
recovery of such damages.” § 768.72(1), Fla....
...or “gross negligence,” the proposed
complaint must specifically plead, and the required proffer or record
evidence must reasonably show, that the defendant’s actions constituted
either “intentional misconduct” or “gross negligence.” §768.72(2)(a), (b), Fla.
Stat. (2024).
If the plaintiff is seeking to assert a punitive damages claim against a
corporate entity, such as JVA, section 768.72(3) places an additional hurdle
on the plaintiff:
(3) In the case of an employer, principal, corporation, or other
legal entity, punitive damages may be imposed for the conduct
of an employee or agent only if the con...
...ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the
claimant.
§ 768.72(3), Fla....
...Id; see McClane FoodService, Inc.,
2024 WL
4536221, at *3; Napleton’s N. Palm Auto Park, Inc. v. Agosto,
364 So. 3d
1103, 1106 (Fla. 4th DCA 2023); Lindzon,
350 So. 3d at 831.
In its Motion, Doral 10 made no reference to, or made any proffer
required by, section
768.72(3)’s requirements. Indeed, in the Motion, there
was no mention of JVA’s corporate conduct that would have brought JVA
within the purview of section
768.72(3). Our de novo review of the record
reveals that Doral 10’s pleading and proffer failed to satisfy section
6
768.72(3)’s requirements....
...We therefore are compelled to reverse the
challenged order.3
Reversed.
3
Although JVA raised the issue of corporate liability for punitive damages in
its response to the Motion, like the Motion, the trial court’s order made no
reference to, or findings regarding, section 768.72(3)’s requirements. While
nothing in section 768.72 or Florida Rule of Civil Procedure 1.190(f)
expressly requires that specific findings be contained in a trial court order
adjudicating a motion seeking leave to assert a punitive damages claim, our
de novo review of such an appealable...
CopyPublished | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 19785, 2014 WL 6829845
...781 any discovery or requests for future deposition until her criminal case has been completed. The parties, by tacit agreement and without court intervention, took no action in the case for several months. Petitioner then filed a motion pursuant to section 768.72, Florida Statutes (2013), for leave to amend her complaint to add a claim for punitive damages....
CopyPublished | Florida 3rd District Court of Appeal
...punitive damages claim consistent with the allegations in the amended
complaint.” Fed. Ins. Co. v. Perlmutter,
376 So. 3d 24, 32 (Fla. 4th DCA
2023).
The allegations and evidence must reasonably show either gross
negligence or intentional misconduct. §§
768.72(1), (2), Fla....
...the wrongfulness of the conduct and the high probability that injury or
damage to the claimant would result and, despite that knowledge,
3
intentionally pursued that course of conduct, resulting in injury or damage.”
§ 768.72(2)(a), Fla....
...Stat. (2024). While “‘[g]ross negligence’ means that the
defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.” § 768.72(2)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 14518, 1997 WL 795685
...luded a claim for punitive damages, notwithstanding the fact that it is well established that a claim for punitive damages may not be asserted, without a trial court having first determined that a factual basis for such damages exists as required by section 768.72, Florida Statutes (1995)....
CopyPublished | Florida 5th District Court of Appeal
...se
of reviewing whether a reasonable basis exists for punitive damages. Id.
A defendant may be held liable for punitive damages only if the trier of
fact finds that the defendant was guilty of intentional misconduct or gross
negligence. See § 768.72(2), Fla. Stat. (2017). In the instant case, Wilson
11
did not allege that Stetson engaged in intentional misconduct but rather
relied solely on allegations of gross negligence.
Section 768.72(2)(b) defines “gross negligence” as conduct “so
reckless or wanting in care that it can constitute a conscious disregard or
indifference to the life, safety, or rights of persons exposed to such conduct.”
Here, Wilson...
CopyPublished | Florida 3rd District Court of Appeal
for punitive damages against ISMG pursuant to section
768.72, Florida Statutes (2015).8 A. Qualified Privilege
CopyPublished | Florida 3rd District Court of Appeal
for punitive damages against ISMG pursuant to section
768.72, Florida Statutes (2015).8 A. Qualified Privilege
CopyPublished | Florida 6th District Court of Appeal
...punitive damages also does not resolve the issue of malice. A defendant may not be
held liable for punitive damages unless the trier of fact determines, based on clear
and convincing evidence, that the defendant was guilty of intentional misconduct or
gross negligence. § 768.72, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Reynolds’s misconduct and Plaintiff’s claims and Mr. Hardin’s
injuries. Plaintiff repeatedly argues there was sufficient evidence that R.J.
11
Reynolds’s misconduct was “intentional” or “grossly negligent” within the meaning
of section 768.72, Florida Statutes....
...While this may be true, what is lacking here is
sufficient evidence establishing that this misconduct was related to Plaintiff’s claims
and a substantial cause of Mr. Hardin’s COPD and death. The only evidence offered
on this issue was Dr. Proctor’s testimony, which as set forth below, is insufficient.
Pursuant to section 768.72(2), “[a] defendant may be held liable for punitive
damages only if the trier of fact, based on clear and convincing evidence, finds that
the defendant was personally guilty of intentional misconduct or gross negligence.”
Notably absent from section 768.72, however, is the language at issue in this case
requiring that the misconduct be related to Plaintiff’s claims and a substantial cause
of Mr....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 17624, 2001 WL 1589192
...Finding that the trial court complied with the procedural requirements for adding a punitive damage claim, we deny the petition. Before a party can assert a claim for punitive damages, the trial court must determine that a reasonable basis for the claim exists. See §
768.72, Fla. Stat. (1999). In Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), the Florida Supreme Court held that appellate courts possess certiorari jurisdiction to review whether a trial court has conformed with the procedural requirements of section
768.72, but not to review the court’s determination that the claimant demonstrated a reasonable basis for recovery of such damages. Based upon this case law, Massey’s petition must be denied. Although Massey contends that the procedural requirements of section
768.72 were not complied with because the Browns failed to proffer any evidence in support of their motion to amend, the motion to amend was heard at the same time as Massey’s motion for summary judgment and, in responding to the motion for...
CopyPublished | Florida 2nd District Court of Appeal
...'outrageous in character' and 'extreme in degree.' " CCP Harbour Island,
LLC v. Manor at Harbour Island, LLC,
373 So. 3d 18, 31 (Fla. 2d DCA
2023) (quoting Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo,
357 So. 3d 703, 706 (Fla. 4th DCA 2023)). Section
768.72, Florida
Statutes (2023), thus limits claims for punitive damages to instances
where "there is a reasonable showing by evidence in the record or
proffered by the claimant . . . that the defendant 'was personally guilty of
intentional misconduct or gross negligence.' " Wiendl v. Wiendl,
371 So.
3d 964, 966–67 (Fla. 2d DCA 2023) (quoting §
768.72(1), (2), Fla....
...igence would not suffice.")
" 'Gross negligence' means that the defendant's conduct was so
reckless or wanting in care that it constituted a conscious disregard or
indifference to the life, safety, or rights of persons exposed to such
conduct." § 768.72(2)(b)....
CopyPublished | Florida 4th District Court of Appeal
...The trial
court found the Perlmutters had made a reasonable evidentiary showing in
support of the motion.
The second order, granting the punitive damages motion against Federal,
likewise detailed the proffered evidence and found: (1) Douberley committed
“intentional misconduct” as defined in section 768.72(2)(a), Florida Statutes
(2013); (2) Douberley was Federal’s employee; (3) Federal “actively and knowingly
participated” in Douberley’s intentional misconduct; and (4) Federal “knowingly
condoned, ratified, or consented to” Douberley’s intentional misconduct....
...violation of section
760.40, as the statute did not provide for a private cause of action.
We also note the statute in effect at the time did not provide for punitive damages.
3
Perlmutters to seek punitive damages from Federal based on section
768.72(3)(a)
and (b), Florida Statutes (2013)....
...3
The Appellants separately gave notice of appeal. We have consolidated all
three appeals for our review.
Part 2: Statute, Rule, and Caselaw Applicable to Pretrial
Orders Ruling on Motions to Amend to Assert Punitive Damages
A. Section 768.72 and Florida Rule of Civil Procedure 1.190
Section 768.72, Florida Statutes (2013), and Florida Rule of Civil Procedure
1.190(a) and (f) control the Perlmutters’ entitlement to punitive damages and
establish the basic substantive and procedural requirements for such an award.
Both the statute and the rule require parties to initiate the process by moving to
amend the complaint or counterclaim. § 768.72(1), Fla....
...or court approval.
The primary foundational requirement under both the statute and the rule is
“a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.”
§ 768.72(1), Fla. Stat. (2013); Fla. R. Civ. P. 1.190(f). Section 768.72 pertinently
provides:
(1) In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in the
record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages....
...(b) “Gross negligence” means that the defendant’s conduct was so
reckless or wanting in care that it constituted a conscious disregard
or indifference to the life, safety, or rights of persons exposed to such
conduct.
§ 768.72(1)-(2), Fla....
...The motion to amend can be filed
separately and before the supporting evidence or proffer, but each
shall be served on all parties at least 20 days before the hearing.
Fla. R. Civ. P. 1.190(a), (f) (emphasis added).
We now discuss caselaw interpreting section 768.72’s and rule 1.190’s
substantive and procedural requirements regarding punitive damages motions.
5
B....
...The Trial Court’s Gatekeeping Function
In discussing the caselaw, we begin with the overarching concept of the trial
court’s gatekeeping function.
In Globe Newspaper Co. v. King,
658 So. 2d 518 (Fla. 1995), our supreme
court said:
We read section
768.72 to create a substantive legal right not to be
subject to a punitive damages claim and ensuing financial worth
discovery until the trial court makes a determination that there is a
reasonable evidentiary basis for recovery of punitive damages.
....
The plain meaning of section
768.72 now requires a plaintiff to
provide the court with a reasonable evidentiary basis for punitive
damages before the court may allow a claim for punitive damages to
be included in a plaintiff’s complaint. To allow punitive damages
claims to proceed as before [(reviewable after final judgment)] would
render section
768.72 meaningless.
Id....
...Post-Globe Newspaper, this Court and others specifically acknowledged the
trial court’s “gatekeeping” function. In Bistline v. Rogers,
215 So. 3d 607 (Fla.
6
4th DCA 2017), we recognized Globe Newspaper’s clear statement that section
768.72 created “a substantive legal right not to be subject to a punitive damages
claim and ensuing financial worth discovery until the trial court makes a
determination that there is a reasonable evidentiary basis for recovery of punitive
damages.” Id....
...considered allegations and evidence not relevant to the claim for which punitive
damages were sought).
4 Although not explicitly argued below or on appeal, but more fully discussed herein, we
also note that, in addition to the requirements imposed by section 768.72 and rule
1.190(a) and (f), the gatekeeping function requires the trial court to deny a motion to
amend if the opposing party’s conduct is not alleged or shown by a proper pretrial
evidentiary showing to be sufficiently reprehensible and outrageous to merit punitive
damages.
7
D. Evidentiary Showing by All Parties
The first sentence of section 768.72(1), Florida Statutes (2013), provides: “In
any civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.”
§ 768.72(1), Fla....
...However,
independently applying the phrase “evidence in the record” to the phrase “by the
claimant” would result in the conjoined phrase “evidence in the record by the
plaintiff.” That conjoined phrase is not susceptible to a sound interpretation.
The only reasonable way to read section 768.72(1)’s first sentence is to
recognize the aforementioned phrases as referring to two separate categories of
evidence: evidence “in the record” and evidence “proffered by the claimant.” The
latter category, by its plain language, specifies “the claimant” as the proffered
evidence’s source. The former category, “evidence in the record,” being non-
specific as to the record evidence’s source, plainly permits the source of that
evidence to be both the claimant and any opponent.
Thus, applying section 768.72(1)’s plain language, we hold that a trial court
must consider the evidentiary showing by all parties at the hearing on the motion
to amend, that is, evidence “in the record” and evidence “proffered by the
claimant.” 5
5 Although not an issue in the instant appeals, we have previously determined section
768.72 only authorizes a proffer and does not require a full evidentiary hearing with
witness testimony....
...nded to engage in
intentional or grossly negligent misconduct that was outrageous and
reprehensible enough to merit punishment.
Additionally, because statutory provisions must be read in pari materia, in
ruling on a motion to amend, we interpret section 768.72(1) and (2) to require
the trial court to make a preliminary determination of whether a reasonable jury,
viewing the totality of proffered evidence in the light most favorable to the
movant, could find by clear and convincing evidence that punitive damages are
warranted....
...s.
Our review is de novo. See Cleveland Clinic Fla. Health Sys. Nonprofit Corp.
v. Oriolo,
357 So. 3d 703, 705 (Fla. 4th DCA 2023) (reviewing “de novo the trial
court’s purely legal ruling that plaintiff made a ‘reasonable showing’ under
section
768.72 to recover punitive damages” (citing Holmes v.
Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005))).
A. Peerenboom’s and Douberley’s Arguments 10
The Perlmutters’ amended counterclaim asserts punitive damages liability
based on intentional misconduct. Under section
768.72(1) and (2), a punitive
damages claim for intentional misconduct requires a pleading and evidentiary
showing demonstrating “the defendant had actual knowledge of the
wrongfulness of the conduct and the high probability that injury or damage to
the claimant would result and, despite that knowledge, intentionally pursued
that course of conduct, resulting in injury or damage.” §
768.72(1), (2), Fla. Stat.
(2013) (emphasis added). In other words, section
768.72(2) requires an
9 In Bistline, we said that “an evaluation of the evidentiary showing required by section
768.72 does not contemplate the trial court simply accepting the allegations in a
complaint or motion to amend as true.” 215 So....
...3d at 610 (recognizing that record
evidence may support an intentional tort, but not necessarily a punitive damages
award).
B. Federal’s Arguments
Regarding the liability of an employer or corporation for punitive damages
imposed for the conduct of an employee or agent, section 768.72, Florida
Statutes, provides:
In the case of an employer, principal, corporation, or other legal
entity, punitive damages may be imposed for the conduct of an
employee or agent only if the conduct of the employee or a...
...consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the claimant.
§ 768.72(3), Fla....
...ve
damages).
As a preliminary matter, because we conclude a punitive damages claim
against Douberley was improper, we also conclude the trial court erred in
allowing the counterclaims to be amended to seek punitive damages against
Federal under section 768.72(3)(b)....
...erley reported, held a position as a
corporate policymaker which might result in conduct deemed to be Federal’s
acts, or that Federal “actively and knowingly participated” in Douberley’s
intentional misconduct to merit punitive damages under section 768.72(3)(a).
For the above reasons, we also reverse the trial court’s order granting the
Perlmutters’ motion to amend to seek punitive damages against Federal.
Part 4: Conclusion
Having determined t...
...5D22-
2334,
2023 WL 5156375 (Fla. 5th DCA Aug. 11, 2023).
We also certify to the Florida Supreme Court the following question of great
public importance:
14
On a motion to amend to add a punitive damages claim, does section
768.72(1) and (2), Florida Statutes, when read in pari materia,
require a trial court to make a preliminary determination of
whether a reasonable jury, viewing the totality of evidence
identified in...
...asserted for punitive damages. Instead, our Legislature has established a
statutory right, with ample procedural due process guarantees, protecting a
defendant from a punitive damages claim if the plaintiff is unable to meet the
criteria provided in section 768.72, Florida Statutes, to plead a claim for punitive
damages. See § 768.72(1)–(2), Fla....
...exemplary damages claim.
16
MAY, J., concurring in result only.
I agree with the majority’s ultimate decision to reverse, but I cannot agree
with the tortured route it takes to get there. The punitive damages statute,
section 768.72, Florida Statutes (2013), has been in its present form since 1999,
more than twenty years....
...There is no need to discuss
statutory construction of the statute’s plain language. There is no need to
discuss a trial court’s review for clear and convincing evidence for punitive
damages at the pleading stage. There is no need to blur the distinctions between
pleading and proof—i.e., subsections one and two of section 768.72....
...include
punitive damages without weighing the evidence, the majority states that the
trial court must also consider whether the evidence rises to the level of clear and
convincing evidence. (“[I]n ruling on a motion to amend, we interpret sections
768.72(1) and (2) to require the trial court to make a preliminary determination
of whether a reasonable jury, viewing the totality of proffered evidence in the light
most favorable to the movant, could find by clear and convincing evidence that
punitive damages are warranted.”). This inherently requires a weighing function.
I conclude that section 768.72(1) does not allow the trial court to weigh the
defendant’s evidence against the plaintiff’s evidence at the amendment stage.
Thus, I disagree with the majority’s statement that the court must consider both
parties’ evidence, as...
...5th DCA 2023),
the court followed Despain:
Our analysis begins with what a plaintiff must do at the leave to
amend stage. Florida law requires the plaintiff to seek the trial
court’s permission before adding punitive damages to its complaint.
§ 768.72(1), Fla....
...4th DCA 2017) (noting that the “statute requires the
trial court to act as a gatekeeper”). To obtain this permission, the
plaintiff must make “a reasonable showing” of having “a reasonable
basis” for the recovery of punitive damages. § 768.72(1), Fla....
...Jacobson,
313 So. 3d 798 (Fla. 2d DCA 2021), the court rejected what the majority here
seeks to impose:
Deaterly conflates the plaintiff’s burden of proof at the pleading
stage with the burden of proof at trial. The legislature has written
section
768.72(1) and (2) such that each subsection applies to
distinct stages of the litigation process....
...defendant liable for punitive damages. The basis for awarding
punitive damages against individual defendants is “if the trier of fact,
based upon clear and convincing evidence, finds the defendant
personally guilty of intentional misconduct.” § 768.72(2).
Subsection (1) does not mandate that a trial court require a claimant
to prove the entitlement to punitive damages by clear and convincing
evidence at the pleading stage....
...decisions of the Second and Fifth Districts. I urge our Supreme Court to take
up this issue to promote and protect the uniform application of the rule of law
on this issue. 11
GROSS, J., dissenting.
The majority opinion departs from the text of section 768.72(1), Florida
Statutes, and unnecessarily complicates the statute’s pleading requirement for
punitive damages by injecting the concept of “clear and convincing evidence” into
a court’s pretrial determination.
Section 768.72 establishes a two-level requirement for punitive damages, one
at the pleading stage and one at trial.
First, before permitting a claim for punitive damages to be asserted, section
768.72(1) requires there to be “a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for recovery
11 Unlike Judge May, I conclude that the complaint stated sufficient facts supported by
evidence to warrant the punitive damage amendment....
...This
amounts to intentional conduct to harm Perlmutter. Providing evidence to law
enforcement of a suspected crime does not give Peerenboom and Douberley free rein to
also impugn Perlmutter through the publication by the media.
20
of such damages.” § 768.72(1), Fla. Stat. (2013). The important word is
“reasonable.” The statute says it twice.
Second, section 768.72(2) provides that a “defendant may be held liable for
punitive damages only if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional misconduct or gross
negligence.” § 768.72(2), Fla....
...ove is far from simple and not synonymous
with a “reasonable showing.”
Also, the notion of “clear and convincing evidence” necessarily requires
weighing of the evidence, 12 a task the majority says should not be performed.
To rewrite section 768.72(1), the majority employs Latin—it reads that section
“in pari materia” with section 768.72(2)....
...King
v. Burwell,
576 U.S. 473, 501 (2015) (Scalia, J., dissenting).
The legislature once considered inserting a “clear and convincing evidence”
standard at the pleading stage, but did not include it in the final version of the
bill adopting section
768.72(1).
At the session where section
768.72(1) was first adopted, a proposed bill
offered by Senators Barron, Mann, Thomas and others contained the following
alternate version of the punitive damages statute, which the Legislature
ultimately rejected:
(1) In any action fo...
CopyPublished | Florida 2nd District Court of Appeal
...punitive damages.").
"In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
recovery of such damages." § 768.72(1), Fla....
...(2020). " '[A]
reasonable showing by evidence in the record or proffered by the
claimant' refers to actual evidence that would provide a prima facie basis
to recover punitive damages." DeSanto v. Grahn,
362 So. 3d 247, 249
(Fla. 4th DCA 2023) (quoting §
768.72(1))....
...n to
produce a reasonable evidentiary basis of such bias in order to support
its theory that Progressive acted in bad faith and in such a way as to
have been willful, wanton, and malicious or in reckless disregard of its
rights under the policy. See §
768.72(1) (requiring that "[i]n any civil
action, no claim for punitive damages shall be permitted unless there is
a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages" (emphasis added)); §
624.155(5) (setting forth the punitive
damages standard to be applied to "the acts giving rise to the violation"
in a bad faith claim). "Punitive damage amendments are different than
traditional amendments in that section
768.72 has created a
substantive legal right not to be subject to a punitive damage claim until
the trial court rules that there is a reasonable evidentiary basis for
punitive damages." Ober, 353 So....
...Bistline v. Rogers,
215 So. 3d
607, 611 (Fla. 4th DCA 2017))); cf. 701 Palafox, LLC v. Scuba Shack, Inc.,
367 So. 3d 624, 627–28 (Fla. 1st DCA 2023) ("In reviewing whether the
trial court's ruling that Scuba Shack made the necessary showing
under section
768.72 to allow it to assert a claim for punitive damages,
we view the evidence in the light most favorable to Scuba Shack....
...v.
Cadlerock Joint Venture, L.P.,
16 So. 3d 1006, 1009 (Fla. 1st DCA 2009);
and then citing Fla. Hosp. Med. Servs., LLC v. Newsholme,
255 So. 3d
348, 351 (Fla. 4th DCA 2018))). And "a reasonable showing by evidence
in the record or proffered by the claimant," §
768.72(1), "refers to actual
evidence that would provide a prima facie basis to recover punitive
damages." DeSanto, 362 So....
...appearance of a known conflict of interest in an appraisal process
promised to be impartial. But, in my view, the correct application of the
standard demands the conclusion that these claims should go to a jury.
The Governing Legal Standard
Section 768.72(1), Florida Statutes (2023), prohibits claims for
punitive damages "unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages." Thus,...
...3d at 27 ("In evaluating the sufficiency of
the evidence proffered in support of a punitive damages claim, the
evidence is viewed in a light favorable to the moving party." (quoting Case
v. Newman,
154 So. 3d 1151, 1157 (Fla. 1st DCA 2014))); Perlmutter,
376
So. 3d at 34 (explaining that section
768.72 requires the trial court to
5 The parties have not raised any arguments in this court
suggesting that the conflict certified in Perlmutter is relevant here.
33
"view[] the totality of pro...
...2d at 644-45); see also Werner Enters. v. Mendez,
362 So. 3d
278, 281-82 (Fla. 5th DCA 2023) (same); Holmes v. Bridgestone/
Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th DCA 2005) ("When a trial
court is determining if a plaintiff has made a 'reasonable showing' under
section
768.72 for a recovery of punitive damages, it is similar to
determining whether a complaint states a cause of action ....
...Nor may we consider each allegation and its supporting
evidence in isolation, apart from the other pieces of the alleged cohesive
scheme. The only issue properly before us is whether Lloyd's has
proffered sufficient allegations and evidence to satisfy the section 768.72
requirement of a reasonable evidentiary basis for a jury to properly find
entitlement to punitive damages on its claims....
...process
in its favor and further minimizing the insured's rightful payout. Lloyd's
asserts that this scheme constitutes bad faith, violates several statutory
provisions, and occurred frequently enough to warrant punitive damages.
As required by section 768.72 and rule 1.190(f), Lloyd's proffered
evidence supporting its allegations....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 22 Fla. L. Weekly Fed. B 265, 2009 Bankr. LEXIS 3955, 2009 WL 4842833
...This Court is satisfied that there is nothing in this record that indicates that there are disputed facts and that the non-moving parties are entitled to a judgment in their favor. The standard of proof of the elements to establish a claim for punitive damages under Florida law is very high. Section 768.72(2) of the Florida Statute provides: (2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence....
...in injury or damage. (b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct Fla. Stat. § 768.72(2) (2009)....
...hat could result from the acts or omissions. Furthermore, this record is clear that the evidence provided to this Court lacks significant proof that CKB participated in, condoned, or contributed to the alleged harmful conduct of Marsala. Pursuant to Section 768.72 (2009), in order to be held directly liable for punitive damages, a plaintiff must show by clear and convincing evidence that the entity engaged in intentional misconduct or gross negligence. Section 768.72(3) of the Florida Statute provides: (3) In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent mee...
...ratified, or consented to such conduct; or (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant. Fla. Stat. § 768.72(3) (2009)....
CopyPublished | Florida 3rd District Court of Appeal
...Coffey, for
respondents.
Before LAGOA, EMAS and FERNANDEZ, JJ.
EMAS, J.
Petitioner Craig Robins has filed a petition seeking certiorari relief from the
trial court’s order granting Respondents’ motion to amend to assert a claim for
punitive damages pursuant to section 768.72(1), Florida Statutes (2018)....
...Baptist Health South Florida,
Inc.,
197 So. 3d 1196, 1199 (Fla. 3d DCA 2016). In applying this standard of
review to an order granting leave to amend a complaint to add a claim for punitive
damages, we limit our review to whether the procedural requirements of section
768.72 have been followed....
...certiorari review.” Espirito Santo Bank v. Rego,
990 So. 2d 1088, 1091 (Fla. 3d
DCA 2007).
Applying our narrow standard and scope of review, we find that Petitioner
has not demonstrated that the trial court failed to comply with the procedural
requirements of section
768.72....
...The record establishes that Respondents’ motion
to amend contained a proffer and referred to and relied upon testimony, answers to
interrogatories, and exhibits attached to his motion. Further, the trial court order
granting the motion to amend was, consistent with section 768.72(1), based upon
“a reasonable showing by evidence in the record or proffered by the claimant.”
We conclude that Petitioner’s remaining arguments on this point focus on the
sufficiency of the evidence rather than compliance with the procedural
requirements of section 768.72 which, as discussed earlier, is beyond this court’s
authority to review on certiorari....
CopyPublished | Florida 3rd District Court of Appeal
...P. 9.130(a)(3)(G). Because Manheimer failed to
make a reasonable showing through record evidence that Florida Power &
Light Company (“FPL”) engaged in intentional misconduct or gross
negligence, as required pursuant to the plain language of section 768.72,
Florida Statutes, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 1999, FPL obtained an easement to install an underground
powerline on the eastern property line of 1431 W....
...The powerline was found to be located 2.3 feet
onto Manheimer’s property at its furthest encroachment point and was buried
between fifteen and forty feet below the ground.
In May 2022, Manheimer filed a motion for leave to amend his
complaint to add a claim for punitive damages pursuant to section 768.72.
The sum of Manheimer’s argument was that once FPL learned of the
trespass in April 2016, its decision not to remove the powerline from
Manheimer’s property was intentional misconduct and gross negligence.
FPL filed a motion in...
...on Manheimer’s property and Manheimer suffered no injury due to the
powerline.
The trial court held a hearing on the motion and later entered an order
denying Manheimer’s motion finding the evidence presented did not
constitute a reasonable showing under section 768.72. This appeal
followed.
STANDARD OF REVIEW
“We review de novo the trial court’s purely legal ruling that plaintiff
made a ‘reasonable showing’ under section 768.72 to recover punitive
4
damages.” Cleveland Clinic Florida Health Sys....
...KIS Grp., LLC v. Moquin,
263 So. 3d 63, 65–66 (Fla. 4th DCA 2019) (quoting Imperial Majesty Cruise
Line, LLC v. Weitnauer Duty Free, Inc.,
987 So. 2d 706, 708 (Fla. 4th DCA
2008)).
5
In Florida, section
768.72 authorizes and governs punitive damages.
Pursuant to section
768.72(2), “[a] defendant may be held liable for punitive
damages only if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional misconduct or
gross negligence.” Section
768.72(2) defines intentional misconduct and
gross negligence as:
(a) “Intentional misconduct” means that the
defendant had actual knowledge of the wrongfulness
of the conduct and the high probability...
...(b) “Gross negligence” means that the defendant’s
conduct was so reckless or wanting in care that it
constituted a conscious disregard or indifference to
the life, safety, or rights of persons exposed to such
conduct.
§ 768.72(2)(a)-(b), Fla. Stat.
No claim for punitive damages, however, may proceed “unless there is
a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla....
...and potentially subjects the defendant to uninsured losses.” TRG
Desert Inn Venture, Ltd. v. Berezovsky,
194 So. 3d 516, 520 n.5 (Fla. 3d
DCA 2016); see also Est. of Despain v. Avante Grp., Inc.,
900 So. 2d 637,
641 (Fla. 5th DCA 2005) (“[A]lthough section
768.72(1) is procedural in
nature, it also provides a substantive right to parties not to be subjected to a
punitive damage claim and attendant discovery of financial worth until the
requisite showing under the statute has been made to the trial court.”)....
...to amend to assert a claim for punitive damages. See In re Amend. to Fla.
R. of App. P. 9.130,
345 So. 3d 725, 725–26 (Fla. 2022).
Because punitive damages are meant to be reserved for the most
egregious of cases and have substantial impacts to the parties, section
768.72 “requires the trial court to act as a gatekeeper and preclude[ ] a claim
for punitive damages where there is no reasonable evidentiary basis for
recovery.” Bistline v....
...A trial court must weigh both parties’ showings
when considering whether the evidence or proffer is sufficient to establish a
reasonable evidentiary basis for recovery of punitive damages. See Marder
v. Mueller,
358 So. 3d 1242, 1246 n.1 (Fla. 4th DCA 2023). “A trial court’s
inquiry under section
768.72 is more intensive than at summary judgment
because the statute ‘necessarily requires the court to weigh the evidence
and act as a factfinder.’” Napleton’s,
2023 WL 4095777, at *2 (quoting KIS
Grp., 263 So....
...e powerline
on Manheimer’s property cannot in and of itself form a basis for the
imposition of punitive damages.
We commend the trial court for properly exercising its gate keeping
function in this case. Pursuant to the plain language of section
768.72, the
legislature enacted the section to require a more rigorous assessment of
punitive damages claims and prevent gamesmanship. See Cat Cay Yacht
Club, Inc. v. Diaz,
264 So. 3d 1071, 1076 (Fla. 3d DCA 2019) (noting that in
section
768.72 “the legislature expressly required a more rigorous
assessment” before allowing a plaintiff to add a claim for punitive damages).
While we recognize unreasonable delay by an intentional trespasser in
removing itself after notifi...
CopyPublished | Court of Appeals for the Eleventh Circuit
...r District Judge.
__________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting
by designation.
CARNES, Circuit Judge:
In our prior opinion in this case, we held that Florida Statute § 768.72
conflicts with and must yield to the “short and plain statement” rule contained in
Federal Rule of Civil Procedure 8(a)(3), and as a result a Florida plaintiff in federal
court because of diversity jurisdiction need not obtain leave of court before
pleading a request for punitive damages....
CopyPublished | Florida 4th District Court of Appeal
...intiffs James and Rose Kropke’s
motion to amend the complaint to plead a claim for punitive damages. We
reverse because the Kropkes failed to establish a reasonable evidentiary
basis to find that Long’s conduct amounted to gross negligence under
section 768.72(2)(b), Florida Statutes (2021).
Background
The car accident occurred in the morning on a residential street inside
a gated country club community....
...complaint to plead a claim
for punitive damages de novo. Marder v. Mueller,
358 So. 3d 1242, 1245
(Fla. 4th DCA 2023).
Punitive damages may only be awarded where the conduct of the
defendant amounts to gross negligence or intentional misconduct. §
768.72(2), Fla....
...Stat. (2021). Before a plaintiff may plead a claim for
punitive damages, the plaintiff must make a “reasonable showing by
evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...damages is gross negligence. Gross negligence requires proof that “the
defendant’s conduct was so reckless or wanting in care that it constituted
a conscious disregard or indifference to the life, safety, or rights of persons
exposed to such conduct.” § 768.72(2)(b), Fla....
...intended to ‘express society’s collective outrage’”) (quoting KIS Grp., LLC v.
Moquin,
263 So. 3d 63, 65–66 (Fla. 4th DCA 2019)).
The Kropkes argue that they established a reasonable basis to find that
Long’s conduct amounted to gross negligence under section
768.72(2)(b)
because their proffered evidence showed that Long “consciously
disregarded” the safety of everyone in the community by habitually
speeding, speeding at the time of the accident, and running the stop sign
at the intersection....
...but they did not proffer any actual testimony from those witnesses as to
the frequency or degree of Long’s speeding. Nor did they proffer any
evidence that Long had expressed a “conscious disregard” or “indifference”
to the safety of the community, as required by section 768.72(2)(b)....
...he same as that required to
sustain a conviction for manslaughter).
In summary, we conclude that the Kropkes’ proffer was insufficient to
establish a reasonable evidentiary basis for recovery of punitive damages
based on gross negligence under section 768.72(2)(b)....
CopyPublished | District Court, S.D. Florida | 2012 WL 3292001, 2012 U.S. Dist. LEXIS 113691
...Furthermore, Plaintiffs claim for punitive damages is denied. Under Florida law, punitive damages are only permitted “if the trier of fact based on clear and convincing evidence finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla Stat. § 768.72(2)....
CopyPublished | Florida 5th District Court of Appeal
...s of civil
procedure require leave of court to be “given freely when justice so requires.”
Fla. R. Civ. P. 1.190(a). But a more rigorous standard is applied to a motion
for leave to amend a complaint to assert a punitive damages claim.
Section 768.72, Florida Statutes (2022), governs a plaintiff’s ability to
bring a punitive damages claim. It provides that “no claim for punitive
damages shall be permitted unless there is a reasonable showing by
evidence in the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.” § 768.72(1); see also Fla.
R....
...Further, “[t]he rules of civil procedure shall be liberally
construed so as to allow the claimant discovery of evidence which appears
5
reasonably calculated to lead to admissible evidence on the issue of punitive
damages.” § 768.72(1), Fla....
...(2022).
A proffer of evidence supporting a punitive damages claim “is merely
a representation of what evidence the [party] proposes to present and is not
actual evidence.” Est. of Despain,
900 So. 2d at 644. “By allowing a punitive
damages claimant to satisfy his initial burden by means of a proffer, section
768.72 contemplates that a claimant might obtain admissible evidence or
cure existing admissibility issues through subsequent discovery.” Royal
Marco Point I Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 3:07 CV 16,
2010
WL 2609367, at *2 (M.D. Fla. June 30, 2010).
“Punitive damage amendments are different than traditional
amendments in that section
768.72 has created a substantive legal right not
to be subject to a punitive damage claim until the trial court rules that there
is a reasonable evidentiary basis for punitive damages.” Holmes v.
Bridgestone/Firestone, Inc., 891 So....
...of Despain,
900 So. 2d at 644–45.
“Within the framework of this standard, we will view the record evidence and
6
the proffer in the light most favorable to [complainant] and accept it as true.”
Id.
Finally, section
768.72(2) sets forth the burden of proof at trial and
provides that a defendant may be held liable for punitive damages “only if
the trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence.” §
768.72(2), Fla....
...punitive damages—at a minimum it is the plaintiff’s own claim and at least
one more. What is required is “a reasonable showing by evidence in the
record or proffered by the claimant which would provide a reasonable basis
for recovery of such damages.” § 768.72(1), Fla....
...ess of the
conduct and the high probability that injury or
damage to the claimant would result and, despite that
knowledge, intentionally pursued that course of
conduct, resulting in injury or damage.
§ 768.72(2)(a), Fla. Stat. (2022). Under section 768.72(2)(a), if there are
reasonable inferences and sufficient circumstances, then the issue of intent
typically becomes a question of fact for the jury, not the trial court.
Appellant claims that the trial court erred in denying he...
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 11371, 2001 WL 908817
...existing that would allow the Court to make an evidentiary finding to support the amendment.” Under current case law, an appellate court has certiorari jurisdiction to review whether a trial court has conformed with the procedural requirements of section 768.72 in allowing a punitive damage claim, but not to determine whether there is sufficient evidence to allow the claim....
CopyPublished | Florida 4th District Court of Appeal
...to amend
her complaint to state a claim for punitive damages. In the lawsuit, Patient
alleged that Doctor improperly treated Patient using a medically
unnecessary course of radiation. We reverse because Patient failed to
satisfy the requirements of section 768.72(1), Florida Statutes (2018).
Patient filed the underlying action in connection with Doctor’s
treatment of a lesion on her hand....
...It’s gonna be a battle of the
experts to see if it is. But they are entitled and I do think they
have presented a proffer to at least provide that reasonable
basis.
We review de novo the trial court’s purely legal ruling that Patient made
a “reasonable showing” under section
768.72 to recover punitive damages.
Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo for Estate of
Sasso, 48 Fla. L. Weekly D203, D203 (Fla. 4th DCA Jan. 25, 2023) (citing
Holmes v. Bridgestone/Firestone, Inc.,
891 So. 2d 1188, 1191 (Fla. 4th
DCA 2005)).
Section
768.72(1), Florida Statutes (2018), does not permit punitive
damages without “a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for
recovery of such damages.” Subsection (2) adds that “[a] defendant may
be held liable for punitive damages only if the trier of fact, based on clear
and convincing evidence, finds the defendant was personally guilty of
intentional misconduct or gross negligence.” §
768.72(2), Fla....
...(2018).
“Intentional misconduct” occurs when “the defendant had actual
knowledge of the wrongfulness of the conduct and the high probability that
injury or damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or
damage.” § 768.72(2)(a), Fla. Stat. (2018). “Gross negligence” indicates
conduct by the defendant that “was so reckless or wanting in care that it
constituted a conscious disregard or indifference to the life, safety, or
rights of persons exposed to such conduct.” § 768.72(2)(b), Fla....
...Cleveland Clinic, 48 Fla. L. Weekly at D203 (citation omitted).
Patient did not proffer sufficient evidence to demonstrate that Doctor’s
conduct amounted to intentional misconduct or gross negligence under
3
section 768.72(2) as opposed to ordinary negligence....
CopyPublished | District Court, M.D. Florida | 2007 U.S. Dist. LEXIS 25444, 2007 WL 1064217
...onscious of me law regarding punitive damages and deliberately ignored it. Fleet again fails to meet its burden. Moreover, its attempt to have this Court substitute its judgment for that of the Panel's is unavailing. [8] Pursuant to Florida Statute, § 768.72 a "defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence." § 768.72, Fla....
CopyPublished | District Court, M.D. Florida | 2013 WL 1365739, 2013 U.S. Dist. LEXIS 49008
...Id. . Under Florida law, “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Fla. Stat. § 768.72 (1)....
CopyPublished | Florida 3rd District Court of Appeal
...3d 1027 (Fla. 3d
DCA 2024), we find no error in the trial court’s determination that plaintiff
made “a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages.” § 768.72(1), Fla. Stat. (2023). See also § 768.72(2)(a)-(b), Fla.
Stat....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 5817, 2004 WL 893936
...prayer for punitive damages in connection with their fraud claim. Pursuant to Globe Newspaper Co. v. King,
658 So.2d 518 (Fla.1995), certiorari will lie to inquire into the question of whether the trial court followed the procedural requirements of section
768.72, Florida Statutes, in disposing of petitioners’ motion, but it may not serve as a vehicle to review the sufficiency of the evidence supporting the trial court’s decision that a reasonable basis for the recovery of punitive damages had not been shown. Petitioners, however, make no claim that the procedural requirements of section
768.72 were not followed, and in any event, certio-rari is not available to review the denial of a motion to add a claim for punitive damages because an adequate remedy exists by way of appeal....
...our prior decision. See Florida Department of Transportation v. Juliano,
801 So.2d 101 (Fla.2001). The conventional analysis utilized in resolving a summary judgment motion has no application in the context of a punitive damages determination under section
768.72....
CopyPublished | Florida 3rd District Court of Appeal
...scovery,
we grant the petition and quash the order under review. See Allstate Ins.
Co. v. Langston,
655 So. 2d 91, 94 (Fla. 1995) (quoting Martin-Johnson, Inc.
v. Savage,
509 So. 2d 1097, 1100 (Fla. 1987), superseded by statute on
other grounds, §
768.72, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...proceeds from this statutory direction: “In any civil action, no claim for
punitive damages shall be permitted unless there is a reasonable showing
by evidence in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.” § 768.72(1), Fla....
...3d 607, 609-10 (Fla. 4th DCA 2017).
“A defendant may be held liable for punitive damages only if the trier of fact,
based on clear and convincing evidence, finds that the defendant was
personally guilty of intentional misconduct or gross negligence.” § 768.72(2),
Fla....
...The trial court
further found that Faena, as principal, was not liable for punitive damages
for the conduct of its employees or agents when the evidence did not show
that Faena knowingly participated in or consented to the conduct at issue.
See § 768.72(3), Fla....
CopyPublished | Florida 4th District Court of Appeal
...1 For the reasons explained below,
we deny the petition.
1 Petitioner also argues that Respondents’ fourth amended complaint, attached
to the second motion for leave to amend to seek punitive damages, was deficient
in alleging gross negligence under section 768.72(2)(b), Florida Statutes (2018).
Our review of the pleading refutes this argument, and we reject this point without
further discussion.
Background
In 2011, Elizabeth Frank was injured when she fell...
...2d 812, 822 (Fla.
2004) (citation omitted).
In the seminal case of Globe Newspaper Co. v. King, the Florida
Supreme Court held:
appellate courts do have certiorari jurisdiction to review
whether a trial judge has conformed with the procedural
requirements of section 768.72, but do not have certiorari
jurisdiction to review a decision of a trial judge granting leave
to amend a complaint to include a claim for punitive damages
when the trial judge has followed the procedural requirements
of section 768.72....
...a reasonable basis for recovery of such damages.
3
658 So. 2d 518, 519 (Fla. 1995) (emphasis added).
In Leinberger v. Magee, this court, relying on a decision of the Fifth
District, 3 explained what the procedural requirements of section
768.72
entail....
...Thus, all three procedural steps were followed.
Yet, Petitioner contends that the trial court’s “fail[ure] to specify a
finding of a reasonable evidentiary basis for recovery of punitive damages
against a corporate defendant,” constituted a departure from the essential
requirements of law. Petitioner points to section 768.72(3), Florida
Statutes (2018), which provides that:
(3) In the case of an employer, principal, corporation, or other
legal entity, punitive damages may be imposed for the conduct
of an employee or agent only if t...
...Petitioner
also contends that Respondents presented no evidence implicating
Petitioner’s managers, officers, directors or principals of knowingly
condoning, ratifying, or consenting to the alleged conduct.
Respondents have argued that Petitioner waived the right to raise
challenges under section 768.72(3), Florida Statutes, based on corporate
liability....
...of providing the
Psycho Swing to The Celebration Source (i.e., placing it into the stream of
commerce) without the safety harness, instruction manual and adequate
safety training. This supports a punitive damages claim against the
corporation under section 768.72(3)(c), Florida Statutes.
Second, this court is without jurisdiction to review the sufficiency of
Respondents’ evidentiary proffer. As discussed, the scope of this court’s
certiorari review is limited to whether the trial court has complied with the
procedural requirements of section 768.72, Florida Statutes....
...4th DCA 2016) (citing Globe Newspaper Co. v. King,
658
So. 2d 518, 520 (Fla. 1995))).
The majority opinion correctly concludes that our certiorari jurisdiction
is limited by controlling precedent to “review whether a trial judge has
conformed with the procedural requirements of section
768.72.” Slip Op.
at 3 (quoting Globe Newspaper Co., 658 So....
...Additionally, the cases limiting our certiorari
jurisdiction in the context of an order allowing a party to add a claim for
punitive damages derive from the Florida Supreme Court’s opinion in
Globe Newspaper Co. In that opinion, the Florida Supreme Court analyzed
section
768.72, Florida Statutes (1993), and held:
We conclude that appellate courts do have certiorari
jurisdiction to review whether a trial judge has conformed with
the procedural requirements of section
768.72, but do not
have certiorari jurisdiction to review a decision of a trial judge
granting leave to amend a complaint to include a claim for
punitive damages when the trial judge has followed the
procedural requirements of section
768.72.
658 So. 2d at 519. In dissent, Justice Anstead explained that when section
768.72 was enacted, the legislature “specifically granted the petitioner a
substantive right to be free of financial discovery, absent a particularized
evidentiary showing.” Id....
...ope of our
certiorari jurisdiction and would have permitted review of orders allowing
a party to add a claim for punitive damages. Id. (Anstead, J., dissenting).
Four years after Globe Newspaper Co., the legislature made substantive
revisions to section 768.72....
...egislation that
it was “revising provisions with respect to limitations on punitive damages;
providing monetary limitations; providing for the effect of certain previous
punitive damages awards.” Ch. 99-225, Laws of Fla. It also enacted
sections 768.725, .735, .736, and .737, Florida Statutes. Ch. 99-225,
Laws of Fla. Relevant here, section 768.725 was enacted to “provid[e] for
evidentiary standards for an award of punitive damages.” Ch....
...99-225,
Laws of Fla.
These revisions were substantive and many. But many courts continue
to apply the test set forth four years earlier in Globe Newspaper Co. That
test was established at a time when the court explained that the “plain
meaning of section 768.72 ....
...But the statute now requires more than adherence to the
procedural requirements. For example, a defendant may “be held liable
for punitive damages only if the trier of fact, based on clear and convincing
evidence, finds that the defendant was personally guilty of intentional
misconduct or gross negligence.” § 768.72(2), Fla. Stat. (2018). And for
an employer, punitive damages can be imposed for the conduct of an
employee only if the plaintiff meets certain conditions. See § 768.72(3),
Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Victoria Teng-Le appeal an
order denying their motion to amend their complaint to add claims for punitive
damages. We conclude Appellants failed to make a reasonable showing
which would provide a reasonable basis for recovery of punitive damages. §
768.72(1), Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 27 Fla. L. Weekly Fed. B 33, 2017 Bankr. LEXIS 1066
published or communicated to a third party). . §
768.72(2), Fla. Stat. . Ferguson Transp., Inc. v. N
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 3707, 1996 WL 168910
...The request for production asked for production of all documents utilized or reviewed in the formulation of answers to these interrogatories. Petitioner promptly moved to strike the punitive damage claim, on the grounds it was not properly asserted as required by section 768.72, Florida Statutes. Also, objections to the discovery were filed on the grounds that the information sought was not reasonably *842 calculated to lead to the discovery of admissible evidence and that such discovery was premature under section 768.72....
...Respondents then served their motion to compel but, for some reason not clear on the record, the motion to compel was not heard until 1995. After a hearing, the lower court ordered all the discovery in question to be provided to respondents within ten days. Petitioner now seeks review in this court, urging that because section 768.72 was not complied with, the discovery should not be allowed; that such extensive discovery into the financial records of religious institutions violates the protections of the first amendment and, finally, the discovery ordered grossly...
...However, timely appellate review of this order was not sought in this court so this court is without jurisdiction to vacate the order. Because the punitive damage claim stands at this stage of the proceedings, respondents are entitled to financial worth discovery in support of the punitive damage claim. See § 768.72, Florida Statutes (1993)....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Nov 18, 2022
...gue that “[i]f a debtor commits
intentional misconduct by intentionally committing fraudulent
transfers, then, consistent with common law, punitive damages
should be available.”
For example, SEPH points to section 768.72(2), titled “Plead-
ing in civil actions; claim for punitive damages,” which provides
that a defendant can be held liable “for punitive damages only if the
trier of fact, based on clear and convincing evide...
...negligence.” Florida Statute §
768.71 in turn states that section
USCA11 Case: 21-11736 Document: 40-1 Date Filed: 04/11/2023 Page: 23 of 30
21-11736 Opinion of the Court 23
768.72 “applies to any action for damages, whether in tort or in
contract” but that “[i]f a provision of this part”—e.g., section
768.72—“is in conflict with any other provision of the Florida Stat-
utes, such other provision shall apply.”
Section
768.72, however, is not particularly helpful in our
analysis. First, SEPH cites no case where section
768.72 has been
applied to claims brought under FUFTA, although it does cite two
cases in which the Florida Supreme Court stated that punitive dam-
ages are appropriate where torts are committed with fraud....
...duct accomplished through fraud . . . .”); Winn & Lovett Grocery
Co. v. Archer,
171 So. 214, 221 (Fla. 1936) (stating that punitive
damages “are given solely as a punishment where torts are com-
mitted with fraud”). Second, we have held that section
768.72 is
procedural, not substantive, and its pleading requirements are in-
applicable to federal diversity cases....
...Office Depot, Inc.,
184 F.3d 1292, 1295–99 (11th Cir. 1999), vacated in part on other
grounds,
204 F.3d 1069 (11th Cir. 2000). Although not addressing
the precise issue before us in this case, our decision in Cohen sup-
ports the conclusion that section
768.72 does not create a substan-
tive right to punitive damages and cannot, standing on its own,
provide the basis to conclude that a creditor can seek punitive dam-
ages against a transferor under FUFTA.
SEPH also points to our decision in Alliant Tax Credit 31,
Inc v....
CopyPublished | Florida 3rd District Court of Appeal
...laims of strict liability/design
3
defect (Count I of the Amended Complaint) and negligence (Count VI of the
Amended Complaint).” The order cited Soffer, considered the requirements
imposed by section 768.72, Florida Statutes (2016), and held that Mrs. Ledo had
demonstrated a reasonable basis for asserting her claim for punitive damages. The
order determined that Mrs. Ledo’s proffer “satisfies the legal requirements of section
768.72.”
The Florida Supreme Court also held, in Philip Morris USA, Inc....
