Florida/Georgia Personal Injury & Workers Compensation

...ona fide. The trial judge, however, stated that, because jeopardy had attached, the nol pros constituted a bona fide termination and, consequently, that evidence regarding the nol pros was irrelevant and inadmissible. The trial court also ruled that section 768.73(1)(a), Florida Statutes (1987), the statute *1355 limiting punitive damages to no more than three times the amount of a compensatory damage award, was inapplicable in this case....

...w the evidence regarding the nol pros and should have been allowed to hear the proffered testimony regarding the negotiations and conditions from which the nol pros resulted. Finally, the district court addressed the issue of punitive damages. Under section 768.73(1)(a), punitive damages must be limited to no more than three times the amount of compensatory damages awarded in any civil action based on, among other things, "misconduct in commercial transactions." The district court, in affirming...

...punitive damages. Second, even if punitive damages are awardable under the facts of this case, Alamo argues that the trial judge should have limited punitive damages to no more than three times the amount of the compensatory damage award pursuant to section 768.73(1)(a)....

...Adams, 290 So.2d at 51. Given our consideration above of legal malice and the disputed facts of this case, we find that a jury could have found sufficient malice to support an award of punitive damages. To properly address Alamo's second contention, that section 768.73(1)(a) limits the amount of the punitive damages in this case to no more than three times the amount of any compensatory damage award, it is necessary to set forth and examine the provisions of that statute. Section 768.73(1)(a) provides: In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty that involves willful, wanton, or gross misconduct, the...

...equently, we disagree with the district court's holding that the statute does not apply to cases involving intentional torts such *1358 as a malicious prosecution arising out of a commercial transaction. Nevertheless, we still must determine whether section 768.73(1)(a) applies to the instant case. Section 768.73(1)(a) was enacted by the legislature in 1986 and specifically "applies only to causes of action arising on or after July 1, 1986, and does not apply to any cause of action arising before that date." § 768.71(2)....

...ge. That language was not added until the statute was amended in 1987. The amendment became effective October 1, 1987. See ch. 87-42, § 1, Laws of Fla. The instant cause of action arose during September 1986, which was after the application date of section 768.73(1)(a) but before the effective date of the amendment....

...2d DCA 1979). As we stated in Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975), substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights. Following this rationale, we find section 768.73(1)(a) to be a substantive rather than procedural statute....

...1647, 123 L.Ed.2d 268 (1993). The establishment or elimination of such a claim is clearly a substantive, rather than procedural, decision of the legislature because such a decision does, in fact, grant or eliminate a right or entitlement. Because we find that section 768.73(1)(a) is substantive rather than procedural, we find that the amendment to section 768.73(1)(a) does not apply to the instant cause of action....

...Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000). 26 allowing punitive damages here. The district court was empowered, however, to remit the award if it determined that it was unreasonable. See id. § 768.73(1)(d)....

...post-trial admission, plain, the amended $500,000 punitive award cannot be said to bear an unreasonable relationship to their ability to pay. Under Florida law, punitive damages also are subject to a statutory cap, and Myers asserts that it was improperly applied here. Section 768.73(1)(a) of the Florida Statutes provides that “an award of punitive damages may not exceed the greater of: 1....

...one of which provides that, “[w]here the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.” Id. § 768.73(1)(c)....

...York, L. E. & W. R. Co. v. Estill, 147 U.S. 591 (1893)); see also Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989). Because the Florida statute does not require a motion by the aggrieved party, see Fla. Stat. § 768.73(1)(a), we need not consider whether the defendants properly moved for application of the statutory cap. B....

...We are satisfied Mrs. Martin produced sufficient evidence independent of the Engle findings to allow the jury to find RJR guilty of intentional misconduct or gross negligence. Nevertheless, the $25 million award is presumed excessive under Florida law. Section 768.73, Florida Statutes (2005) provides, in pertinent part: (1)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and invol...

...We review the trial court's denial of remittitur for abuse of discretion but consider de novo whether the award is within the boundaries of due process. See Engle, 945 So.2d at 1263. Turning first to whether remittitur was appropriately denied under section 768.73, the facts and circumstances in this case are significantly similar to those in Owens-Corning Fiberglas Corp....

...to asbestos. Finding the evidence sufficient to support a finding of "flagrant disregard" and "apparent indifference" to the safety of those who were exposed to Kaylo, the supreme court concluded the trial court "acted properly and responsibly under section 768.73(1) in determining that the punitive damages award ....

...Lucky Strike because sales would decrease, and collusion with other tobacco industry entities to affirmatively mislead the public into thinking cigarettes indeed may not be harmful. We find no abuse of discretion in the trial court's approval, under section 768.73(1)(b), of the $25 million punitive damages award....

...The trial court therefore correctly applied Engle. Mrs. Martin produced sufficient independent evidence to prove causation, *1073 detrimental reliance, and entitlement to punitive damages. The punitive damage award overcomes the presumption of excessiveness in section 768.73, Florida Statutes (2005), and satisfies due process in view of the evidence of decades-long wanton conduct by RJR and because the award does not financially devastate the company....

...ted to a prior punitive damage award for the same conduct. [2] To limit recovery to the first punitive damage award would be particularly unfair in Florida which limits the amount of punitive damages to three times the award of compensatory damages. § 768.73, Fla....

...on. The jury also awarded Ramlawi punitive damages totaling $10,000,000. The trial court denied all post-trial motions except for Lipsig's and Rahman's motions to reduce the punitive damage awards to three times the compensatory damages, pursuant to section 768.73, Florida Statutes (1995)....

...ments against Ramlawi and the same amount was awarded to Ramlawi for Rahman's defaming statements. A motion for remittitur was filed and the trial court reduced the punitive damages award to three times the amount of compensatory damages pursuant to section 768.73, Florida Statutes (1993)....

...carious liability on the part of Amin and Hassan. [13] The trial court defined an agent or employee as "a person who's employed to act for another and whose actions are controlled by his employer or subject to his employer's rights of control." [14] Section 768.73 provides in pertinent part: (1)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involving willful, wanton, or g...

...urt by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact. * * * * (2) The jury may neither be instructed nor informed as to the provisions of this section. § 768.73, Fla. Stat. (1993). [15] Our disposition of this issue necessarily moots out Ramlawi's argument on the cross-appeal that the trial court erred by reducing the punitive damage awards to three times the amount of the compensatory damages pursuant to § 768.73(1)(a), Florida Statutes....

...O'Shea of Ratiner, Reyes and O'Shea, P.A., Miami, Florida, for Respondent. ANSTEAD, J. We accepted jurisdiction to answer the following question certified to be of great public importance: IS THE STATUTORY PRESUMPTION AS TO EXCESSIVE PUNITIVE DAMAGES, FOUND IN SECTION 768.73(1), FLORIDA STATUTES, OVERCOME IN A CASE WHERE THE PUNITIVE DAMAGES AWARD IS ALMOST 18 TIMES THE COMPENSATORY DAMAGES AWARDED, WHEN IT IS BASED ON CLEAR AND CONVINCING EVIDENCE THAT THE AWARD WAS LESS THAN 2% OF THE DEFENDANT COMPANY'S...

...Accordingly, the district court held that the trial court did not abuse its discretion in failing to reduce the punitive damages award. Id. [2] In certifying the question to this Court, the district court, in essence, asks us to check its work here. [3] LEGAL ANALYSIS In 1986, the Florida Legislature enacted section 768.73, Florida Statutes (1997), which created statutory criteria for judicial review of punitive damage awards exceeding three times the amount awarded for compensatory damages. See § 768.73(1)(b), Fla. Stat. (1997). Section 768.73 states in pertinent part: (1)(a) In any civil action ......

...titur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact. See id. § 768.73(1)(a)-(b) (emphasis added)....

...Those factors are set out above, and Owens-Corning does not challenge these factors. Further, and most importantly, we note that in denying Owens-Corning's posttrial motions for new trial and remittitur the trial court provided a well-reasoned and detailed order in accordance with the statutory scheme set out in section 768.73(1)....

...such matters of fact as the weight of the evidence and the quantum of damages. 349 So.2d at 627. In particular, here we recognize the district court was obligated to decide whether the trial court had properly applied the statutory scheme set out in section 768.73(1) in determining whether there had been an abuse of discretion....

...switch to a less injurious product. Based on this evidence of Owens-Corning's apparent indifference to the health and safety of those persons, including Ballard, who used Kaylo, we find *489 that the trial court acted properly and responsibly under section 768.73(1) in determining that the punitive damages award in this case properly fell within the exception to the statutory cap....

...Given the clear and convincing evidence of the nature and magnitude of the risk of harm to human life found here, we find no abuse of discretion in the trial court's order approving the jury's award, or in the district court's review of that order. We recognize that the Legislature recently amended section 768.73....

...he court finds by clear and convincing evidence that the prior awards were insufficient to punish the defendant. The amendments to the law, however, do not take effect until October 1, 1999. See Ch. 99-225, § 36. Therefore, the recent amendments to section 768.73 do not affect the result we reach in this case....

...In the punitive damage punishment phase, the plaintiff Ballard presented evidence as to the company's financial position, and Owens-Corning testified as to the small profits from Kaylo sales and the financial burdens placed on the company by a deluge of asbestos claims. The jury awarded $31 million in punitive damage claims. Section 768.73, Florida Statutes (1995), entitled "Punitive damages; limitation" is implicated in this case....

...tiff and the defendant's conduct did in fact harm the plaintiff. [10] The Legislature appears to create an exception for those defendants who fall within subsection (b) of the amended statute. [11] In referencing the recent legislative amendments to section 768.73, our sole purpose is to note the existence of the amendments, and we offer no opinion on the substantive nature of the amended law.

...of Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, Jacksonville, amicus curiae, for Florida Defense Lawyers Ass'n. Edward T. O'Donnell of Herzfeld and Rubin, Miami, amicus curiae, for Product Liability Advisory Council, Inc. PER CURIAM. We review a question certified to be of great public importance: whether subsection 768.73(2)(b), Florida Statutes (Supplement 1986), is constitutional....

...After the mandate was issued, K-Mart, on September 20, 1990, moved to amend the final judgment pursuant to Florida Rule of Civil Procedure 1.540, and the State moved to intervene to assert its interest in sixty percent of the punitive damages award pursuant to subsection 768.73(2)(b), Florida Statutes (Supplement 1986), which provides: If the cause of action was based on personal injury or wrongful death, 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund created in s....

...86. Ch. 86-160, §§ 52, 70, Laws of Fla. The district court upheld the trial court's award to the State. Gordon v. State, 585 So.2d 1033 (Fla. 3d DCA 1991). Gordon contends that subsection (2) is unconstitutional. Gordon's attorneys contend that subsection 768.73(4), Florida Statutes (Supplement 1986), also is unconstitutional....

...motion for rehearing). Although judgment in this case was entered on July 27, 1989, posttrial motions were not denied until October 5, 1989. The rule 1.540 motion was filed on September 20, 1990. We moreover find no merit to counsel's claim that subsection 768.73(4), providing that attorney's fees, "if payable from the judgment, shall, to the extent that they are based on the punitive damages, be calculated based only on the portion of the judgment payable to the claimant." Valid laws in effect...

...ntract is made enter into and become part of the contract as if expressly incorporated into the contract. State ex rel. Select Tenures, Inc. v. Raulerson, 129 Fla. 346, 176 So. 270 (1937). Gordon's cause of action accrued after the effective date of section 768.73 and the contingent fee contract was entered into after the statute went into effect; hence the statute did not impair any preexisting contractual rights of Gordon's attorney....

...decision of the district court. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur. SHAW, J., concurs in part and dissents in part with an opinion. SHAW, Justice, concurring and dissenting. I agree that subsection 768.73(4) is constitutional. I cannot agree that subsections 768.73(2) and (5) are constitutional....

...493 U.S. at 62-63, 110 S.Ct. at 395. I agree that one and one-half percent of a limited portion of an award is not a taking; the instant statute, by contrast, is "too great a take" "by any standard of excessiveness," and, therefore, a taking. I also view section 768.73(5), Florida Statutes (Supplement 1986), as constitutionally infirm, because it contravenes our state constitutional guarantee of the right to trial by jury....

...of Banking and Finance. PER CURIAM. This cause is before the Court on the following certified question of law from the United States Court of Appeals for the Eleventh Circuit in Miele v. Prudential Bache Securities, 986 F.2d 459 (11th Cir.1993): Does Florida Statute § 768.73 apply to arbitration awards? Id....

...The Mieles filed a petition in the United States District Court for the Middle District of Florida, seeking to have the award confirmed. Prudential forwarded two checks to the Mieles, including one made out to the State of Florida General Revenue Fund for 60% of the punitive damage award pursuant to section 768.73(2), Florida Statutes (1991), [1] which provides for the splitting of punitive damages between the State of Florida and the claimants in civil cases....

...ard had been fully paid. The Mieles again moved for an order confirming the award, attacking the amount tendered by Prudential on the grounds that Prudential made an erroneous calculation of the total amount of the award. The Mieles also argued that section 768.73(2) does not apply to arbitration awards, but is unconstitutional if it does. The federal district court entered an order confirming the award, including punitive damages totalling $266,654.79. The district court also held that section 768.73 applies to arbitration awards. The Mieles appealed to the Eleventh Circuit Court of Appeals, which reserved consideration of any of the issues until this Court determines whether section 768.73 applies to arbitration awards....

...Thus, although Prudential contends that the language within other subsections of the statute should not be considered in making our determination, we find that the plain meaning of "civil action" must be derived from the context in which the language lies. Section 768.73 addresses the limitation of punitive damages. In "any civil action" based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, punitive damages are limited to three times the amount of compensatory damages. § 768.73(1)(a), Fla....

...on proceedings. The subsection that sets forth the procedure for dealing with an excessive award of punitive damages states that a defendant is entitled to "remittitur" unless the claimant demonstrates to the "court" that the award is not excessive. § 768.73(1)(b). The statute further provides that this procedure is not intended to prohibit an appropriate "court" from exercising its jurisdiction to determine the reasonableness of an award that is less than three times the compensatory damages. § 768.73(1)(c). Moreover, the "jury" is not to be instructed or informed about the provisions of the statute. § 768.73(5)....

...A court need not be involved in determining the reasonableness of an award unless called upon by the parties to confirm, vacate, or modify or correct an award. See §§ 682.12-.14, Fla. Stat. (1991). When viewed within this context, the term "civil action" in section 768.73 clearly refers to an action filed in a court of this state and does not include an arbitration proceeding....

...ictionary 222 (5th ed. 1979) (emphasis added). However, Black's definition of "action" clearly contemplates a proceeding filed in a court. [4] Prudential further argues that even if arbitration proceedings are not civil actions within the meaning of section 768.73, confirmation proceedings are civil actions which would subject an award of punitive damages to the splitting provisions of the statute....

...grounds are urged for vacating or modifying or correcting the award." In an amicus brief, the Florida Department of Banking and Finance (Department) argues that the state policy of discouraging punitive damage claims will be thwarted if arbitration proceedings are not subjected to the splitting provisions of section 768.73(2). The Department further argues that such an interpretation will encourage claimants to choose arbitration in order to avoid compliance with section 768.73(2). We do not agree. Section 768.73 was enacted as a part of the 1986 Tort Reform and Insurance Act, which was intended to provide a solution for an insurance crisis that existed in the state. See Smith v. Department of Ins., 507 So.2d 1080, 1083-84 (Fla. 1987). While legitimate legislative objectives underlie section 768.73(2), namely "to allot to the public weal a portion of damages designed to deter future harm to the public and to discourage punitive damage claims by making them less remunerative to the claimant and the claimant's attorney," Gordon v....

...Complete Interiors, Inc. v. Behan, 558 So.2d 48, 50 (Fla. 5th DCA), review denied, 570 So.2d 1303 (Fla. 1990). In light of arbitration's status as an "alternative to the court system," id. at 50, we cannot assume that the same legislative objectives underlying section 768.73 are applicable to arbitration proceedings....

...es (1993) ("Voluntary binding arbitration") (implemented by Florida Rule of Civil Procedure 1.830), the claimant will be required to pay 60% of a punitive damage award to the general revenue fund of the State of Florida pursuant to the provisions of section 768.73(2), Florida Statutes (1991)....

...cedure. Additionally, arbitration awards are enforced by the utilization of the judicial system. Given the historical connotation and the modern day *475 usage of the term "civil action," I find that the definition of that term within the meaning of section 768.73(2) properly includes all legal remedies to resolve civil disputes between adversary parties....

...but is also consistent with the remedies that we have provided in this State to allow citizens to resolve disputes. The majority's holding will encourage claimants to pursue punitive damage actions in arbitration proceedings to avoid complying with section 768.73(2)....

...An arbitration award cannot be enforced until a judgment is entered by a court in reference to it. A proceeding to enforce such an award is a civil action. The enforceable judgment is the result of a civil action. If that judgment includes punitive damages, then those damages are subject to the provisions of section 768.73, Florida Statutes (1991)....

...t hand. I conclude that the normally clear-thinking majority has misfired on this one and has come up with a wrong answer. It is too bad that the legislature will be forced to correct an obvious error. GRIMES, C.J. and OVERTON, J., concur. NOTES [1] Section 768.73, Florida Statutes (1991), was enacted by the Florida Legislature as part of the Tort Reform and Insurance Act of 1986....

...aimant. (b) If the cause of action was based on personal injury or wrongful death, 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund; otherwise, 60 percent of the award shall be payable to the General Revenue Fund. § 768.73(2), Fla. Stat. (1991). [2] The legislature subsequently amended section 768.73(2) to provide that 35% of a punitive damage award is payable to the State of Florida....

...h business relationships without first finding that the plaintiff was entitled to any compensatory damages. The defendants claim that this failure to provide for compensatory damages invalidated the award of punitive damages. They cite Fla.Stat.Ann. section 768.73 (West 1982) as authority for this proposition. In pertinent part section 768.73 provides: (l)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty that involves willful, wanton, or gross misconduct, th...

...apply and enforce those duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994); Kerr Construction, Inc. v. Peters Contracting, Inc., 767 So.2d 610 (Fla. 5th DCA 2000). In Mancusi the court considered whether an amendment to section 768.73(1)(a), Florida Statutes limiting the amount of punitive damages to no more than three times the amount of any compensatory damages applied to a cause of action which predated the effective date of the amendment....

...In contrast to all the other issues raised in this appeal, our review of Lorillard’s constitutional challenge to the amount of the punitive damages award is de novo. Engle, 945 So.2d at 1263 ; Martin, 53 So.3d at 1071 . Importantly, because the punitive damages award falls well within the parameters set forth in section 768.73(l)(a) and (b), which permits an award of punitive damages in amounts of up to three and four times that of compensatory damages, the award is presumed to be constitutionally permissible under Florida law. § 768.73(l)(a), (b)(2); see also Cohen, 102 So.3d at 16 (explaining that while no bright-line rule exists, single-digit ratios are more likely to comport with constitutional due process rights) (citing Engle, 945 So.2d at 1264-65 ); Martin, 53 So.3d at 1070 (holding that section 768.73 creates a rebuttable presumption that a punitive damages award that exceeds a three to one ratio is excessive); State Farm Mut....

...award to the compensatory damages award before the remittitur, resulting in a ratio of 1.25 to 1, or after the trial court’s remittitur of the compensatory damages award to $10 million, a 2.5 to 1 ratio, the award does not exceed the parameters of section 768.73 or of the United States Constitution....

...3d DCA 1990) (per curiam), the judgment was entirely affirmed. After the issuance of the mandate, K-Mart, on September 20, 1990, moved to amend the final judgment pursuant to Florida Rule of Civil Procedure 1.540, and the State of Florida moved to intervene as a party plaintiff for the purpose of applying section 768.73(2)(b), Florida Statutes (Supp....

...OCK, and PETER MIRAMBEAU, the sum of TWO HUNDRED SEVENTY-SEVEN THOUSAND THREE HUNDRED AND 00/100 ($277,300.00) with costs to be hereinafter taxed, that shall bear interest at the rate set by Florida Statute for which let execution issue. Pursuant to section 768.73, Florida Statutes (1987) a judgment is hereby entered in favor of the General Revenue Fund of the State of Florida in the amount of THREE HUNDRED SEVEN THOUSAND TWO HUNDRED AND 00/100 DOLLARS ($307,200.00) which sum represents sixty (60) percent of the punitive damage award....

...This Court hereby directs the Clerk to amend the Final Judgment accordingly. Gordon now appeals from that portion of the amended judgment which, in effect, transfers $307,200.00 from him to the State of Florida. [2] He raises the dual contentions that section 768.73(2)(b) is unconstitutional and that the manner in which his initial judgment was amended to reflect the state's recovery was procedurally invalid....

...1986). For all these reasons, we summarily reject the contention that the state has invalidly taken a property right of the plaintiff. Ross, 48 So.2d at 412. 2. No violation of substantive due process rights. We find Gordon's alternative contention that section 768.73(2)(b) is "arbitrary" and "unreasonable" and therefore somehow deprives him of his rights to substantive due process on that basis even less persuasive....

...To successfully surmount such an objection, it need only be shown that the statute under attack bears a rational relation to a legitimate legislative interest or objective. Abdala v. World Omni Leasing, Inc., 583 So.2d 330 (Fla. 1991); Vildibill v. Johnson, 492 So.2d 1047 (Fla. 1986). At least two such bases of 768.73(2)(b) are readily apparent: (a) it is clear that the present statute [4] is founded upon and directly serves one of the most basic justifications for the existence of punitive damages in the first place: to serve as punishment for what amounts...

...ve the entire amount. Fuller, 577 So.2d at 886-87. (b) The legislative history indicates that one reason for the provision in question was to discourage punitive damages claims by making them less remunerative to the plaintiff and his attorneys. See § 768.73(4), Fla....

...e earlier judgment, Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla. 1977); Avant v. Waites, 295 So.2d 362 (Fla. 1st DCA 1974), [12] and without obtaining this court's permission to do so. Ohio Casualty, 350 So.2d at 466. Affirmed. [13] NOTES [1] Section 768.73(2)(b) provides: If the cause of action was based on personal injury or wrongful death, 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund created in s....

...[5] Of course, since the legislature could have abolished the punitive damage claim altogether, or under this rationale, required that all of the award be payable to the state, the plaintiff can hardly complain of the determination that 60% (as opposed to 30% or 90%) was appropriate. [6] Section 768.73(4) provides: Claimant's attorney's fees, if payable from the judgment, shall, to the extent that they are based on the punitive damages, be calculated based only on the portion of the judgment payable to the claimant as provided in subsection (2)....

...in his favor. Because that judgment was obviously erroneously entered as in contravention of a contrary statute, this contention is equivalent to stating that no judgment may constitutionally be corrected or reversed on appeal. [9] In deciding that § 768.73(2)(b) is valid, we have not overlooked McBride v....

...3d DCA 1991). [12] We therefore deny Gordon's motion to enforce the prior mandate in the original appeal, case no. 89-2617. [13] We certify to the Supreme Court that this case involves a question of great public importance as to the constitutionality of § 768.73(2)(b), Fla....

...Erie Insurance Exchange, 268 F.Supp. 185, 189 (W.D.Pa.1967) (citations omitted). Accordingly, the time delay does not mandate vacatur. Finally, defendants urge that any award of punitive damages in this case should be paid to the Florida General Revenue Fund pursuant to § 768.73(2) of the Florida Statutes. However, since this cause of action arose before July 1, 1986, § 768.73(2) does not apply here....

...Romaguera, 511 So.2d 559, 560 (Fla. 4th DCA 1986) (contract between hospital and physician affected by modification of bylaws). . See Cooper Indus., Inc. v. Leatherman Tool Group Inc., 532 U.S. 424 , 121 S.Ct. 1678 , 149 L.Ed.2d 674 (2001); Engle, 945 So.2d at 1263 . . § 768.73(l)(a), Fla. Stat. (2009). See also § 768.73(4), Fla. Stat. (2009) (jury may not be instructed as to these provisions). In oral argument Lawnwood argued that the excess above $500,000 should be remitted. . § 768.73(l)(c), Fla....

...ion action recognized trial judge's opportunity to observe demeanor of witnesses). There is no question that the jury's finding of clear and convincing evidence of intentional falsity, harmful intent, and actual harm in this case satisfies Gertz . . § 768.73(1)(c), Fla....

...The jury heard evidence and argument and granted both of these requests in their entirety. Judge Fine, pursuant to the verdict on September 3, 1991, entered final judgment for $586,911 in compensatory damages, $80,000 in punitive damages (representing plaintiff's 40 percent share according to Florida Statute 768.73(2)), and $81,815.02 in prejudgment interest, for a *285 total of $748,726.02....

...as well as any mitigating circumstances. Transcript of August 30, 1991 trial, page 37. The jury returned a verdict awarding $200,000 in punitive damages, $80,000 of this amount payable to Seay and $120,000 payable to the State of Florida pursuant to § 768.73(2), Florida Statutes....

...s, Mtg. Co. v. Palumbo-Tucker, 656 So.2d 266 (Fla. 4th DCA 1995). In that case we held that prejudgment interest was part of the total compensatory damages package for purposes of calculating the presumptive range of allowable punitive damages under section 768.73(1)(a), Florida Statutes (1993)....

...But even if reduced, punitive awards may still need to be reviewed under the federal criteria, since the federal criteria are not the same as the state criteria for limiting, capping, or reducing the award. The trial court held that the caps on punitive damages set forth in section 768.73, Florida Statutes (1999), did not apply to this case, because the jury found the defendant guilty of intentionally violating the plaintiffs civil rights and that the plaintiff was harmed by the conduct of the defendant. See § 768.73(1)(c). The section 1983 count was the only count for which the trial judge instructed the jury that it could award punitive damages. [2] Transgo, *1113 Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir.1985). It appears that section 768.73 may not apply to a federal cause of action for intentional deprivation of civil rights because section 768.71(1), entitled "Applicability, conflicts," provides that "this part [Part II, Damages] applies to any action for damages, whether in tort or in contract," "[e]xcept as otherwise specifically provided." [3] However, we do not have to reach that question in this case. The applicable Florida statute is the 1993 version of section 768.73, because that is the statute in effect when this cause of action arose....

...at 1240 (footnote omitted). Although I agree that the de novo standard of review applies to the instant case, I do not agree that the de novo standard of review required under the decision in Cooper applies to punitive damage awards that are limited (capped) pursuant to section 768.73, Florida Statutes. Therefore, in this opinion I will explain my strongly held view that Cooper does not apply to punitive damage awards that are subject to the statutory caps contained in section 768.73; and explain why section 768.73 does not apply to the instant case....

...00,000, except cap does not apply to suits arising from certain serious criminal acts enumerated in the statute); Conn. Gen. Stat. § 52-240b (1995) (punitive damages may not exceed double compensatory damages in product liability cases); Fla. Stat. § 768.73(1) (Supp....

...the umbra of the constitutional limits enunciated in Haslip. Therefore, pursuant to the language I have quoted from Cooper and the holding in Haslip, I believe that the de novo standard of review does not apply to punitive awards capped pursuant to section 768.73, Florida Statutes....

...at 568, 116 S.Ct. 1589 (emphasis supplied). Furthermore, claims of excessiveness relating to capped punitive damage awards are dealt with pursuant to the provisions of section 768.74, Florida Statutes, which allow for remittitur of excessive awards. See § 768.73(1)(c), Fla. Stat. (1993) (now found in section 768.73(1)(d), Florida Statutes (1999); providing that section 768.74 applies to review punitive damage awards)....

...As will be discussed seriatim, Florida has enacted legislation that, with limited exceptions, does place limits based on a multiple of three times the amount of compensatory damages on punitive damage awards and requires increased judicial scrutiny of such damage awards. The Florida Statutory Provisions Contained In Section 768.73 That Place Restrictions On The Amount Of Punitive Damage Awards As Justice Breyer noted in his concurring opinion in Gore, Florida has a statutory scheme that places limits on the amount of punitive damage awards. This statute, section 768.73, Florida Statutes, was originally enacted as part of the 1986 Tort Reform Act. It has been amended several times since its original enactment and the only version that could apply to the instant case is section 768.73(1)(a), Florida Statutes (1993), which provides: In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involving willful,...

...for the total amount of punitive damages awarded to a claimant may not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact, except as provided in paragraph (b). The exception provided in section 768.73(1)(b) allows an award to exceed the statutory limit if the plaintiff can prove by clear and convincing evidence that the award is not excessive in light of the facts and circumstances presented to the jury. *1124 Section 768.73 alleviates the concerns expressed in Cooper and Gore regarding the due process notice requirements. That is so because the passage of the 1986 Tort Reform Act, and specifically section 768.73, put all citizens in Florida, including the Defendant in the instant case, on notice of the provisions of the statute and the fact that wrongdoers may subject themselves, in appropriate cases, to a civil fine of treble damages....

...to the statutory cap to make de novo review pursuant to Cooper inapplicable. In the instant case, the punitive damage award exceeds three times the amount of compensatory damages. 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....

...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. As the court stated in Ballard: We recognize that the Legislature recently amended section 768.73. See Ch. 99-225, § 23, Laws of Fla. (enacted into law May 26, 1999).... The amendments to the law, however, do not take effect until October 1, 1999. See Ch. 99-225, § 36. Therefore, the recent amendments to section 768.73 do not affect the result we reach in this case. 749 So.2d at 489 (footnote omitted). Thus the 1993 version of section 768.73 is the only version that may possibly apply to the instant case. When a trial court applies the wrong version of section 768.73, remand is generally required so that the trial court may apply the correct statute. See State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200, 205 (Fla. 4th DCA 1995). However, the 1993 version of section 768.73 does not apply to the instant case either because, unlike the 1999 statute, it provides that its application is limited to cases based on negligence, strict liability, products liability, misconduct in commercial transactions, professi...

...But because the trial court did not have the opportunity to apply the Cooper criteria in the proceedings below, it is appropriate for this court to remand this case so it may do so. Conclusion I conclude that the punitive damages award is not subject to the statutory cap provisions contained in section 768.73 and, therefore, Cooper does apply to the instant case....

...Thus the court held that the trial court did not abuse its discretion in denying a motion for remittitur and affirmed a punitive damage award in the amount of $31 million, which was almost eighteen times the amount of compensatory damages that were awarded. [4] § 768.73(1)(a), Fla. Stat. (1993). The 1993 version of section 768.73 also differs from the 1999 version because the former provides that the plaintiff must demonstrate to the court by clear and convincing evidence that an award that exceeds the statutory cap is not excessive in light of the facts and ci...

...nted to the trier of fact whereas the 1999 version provides that the cap may be exceeded if the jury finds that the defendant intended to harm the plaintiff and the wrongful conduct did in fact harm him. [5] Negligence is the only category listed in section 768.73(1)(a), Florida Statutes (1993), into which assault, battery, and false arrest might possibly fit....

...& Loan Ass'n of Largo, 382 So.2d 678 (Fla.1980); Hill v. Hill, 388 So.2d 625, 626 (Fla. 1st DCA 1980) ("Here the tort allegedly committed by the husband against the wife, malicious prosecution or false imprisonment, is an intentional tort unlike negligence."). [6] I believe that section 768.73 is applicable to § 1983 actions brought in Florida courts....

...a conflict nor a frustrated purpose.") (citation omitted). Section 1983 is a very broadly worded statute that says nothing about punitive damages. The federal courts have broadly interpreted § 1983 to allow recovery of punitive damages. In my view, section 768.73 is fully consistent with the Court's decision in Haslip and does not conflict with any federal law. See Blinn v. Florida Dep't of Transp., 781 So.2d 1103 (Fla. 1st DCA 2000); WRH Mortgage, Inc. v. Butler, 684 So.2d 325 (Fla. 5th DCA 1996). Thus I believe that section 768.73 is generally applicable to § 1983 actions brought in Florida courts.

...[8] The corporate defendants produced testimony that they acted on advice of counsel, who had advised that the non-compete provision was unenforceable. [9] We have not overlooked state law on punitive damages. We have relied, however, on our supreme court's decision in Engle in deciding this case. As recognized in Lawnwood, section 768.73(1)(c), Florida Statute provides no cap on punitive damages when the jury makes a finding of "specific intent to harm." Nevertheless, the ultimate decisive factor is the United States Constitution.

...nt of compensatory damages awarded, the award is presumed excessive unless the plaintiff shows, through clear and convincing evidence, that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact. § 768.73(1), Fla....

...However, since *608 we have been unable to locate any punitive damages award against Owens-Corning as large as that awarded in this case based on similar conduct, we certify the following question to the Supreme Court as one of great public importance: IS THE STATUTORY PRESUMPTION AS TO EXCESSIVE PUNITIVE DAMAGES, FOUND IN SECTION 768.73(1), FLORIDA STATUTES, OVERCOME IN A CASE WHERE THE PUNITIVE DAMAGES AWARD IS ALMOST 18 TIMES THE COMPENSATORY DAMAGES AWARDED, WHEN IT IS BASED ON CLEAR AND CONVINCING EVIDENCE THAT THE AWARD WAS LESS THAN 2% OF THE DEFENDANT'S COMPANY...

...” R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1072 (Fla. 1st DCA 2010) (citing Engle, 945 So.2d at 1263-64 ). In this case, the trial court found that the $4.5 million punitive damages award overcame the presumption of exces-siveness under section 768.73, Florida Statutes....

...damages and explaining that, at the second stage of the trial, the defendant could introduce evidence of prior punitive damage awards in mitigation and “build a record for a due process argument based on the cumulative effect of prior awards”); § 768.73(2), Fla....

...4th DCA 2009), on cases rejecting retrospective application of a statute, where the statute in question contained no legislative language providing for the statute to apply retrospectively. Specifically, we reject reliance on: Mancusi, 632 So.2d at 1357 (where the statute at issue, section 768.73, Florida Statutes (1987), included no legislative intent for retroactive application); Hotelera Naco, Inc....

...o non-final orders permitting discovery of the amount of punitive damages they actually paid in the post-judgment settlement of an unrelated case. They argue, the.trial court departed from the essential requirements of the law by construing section ,768.73(2), Fla....

...Here, the drywall defendants seek to avoid a punitive damages claim in this case based upon the punitive damage award in the Robin action. They filed a Proffer of Proof of Prior Punitive Damages Award and Renewed Motion to Strike Plaintiffs Punitive Damages Claim. They argued section 768.73(2) prohibits a subsequent punitive damage award if punitive damages were previously awarded in any action alleging harm from the same course of conduct for which punitive damages were already awarded. Specifically, section 768.73(2) provides: (a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against tha...

...an award. They argue they are in a catch-22 situation because they will either have to provide the discovery or forgo their statutory protec *886 tion against successive punitive damage awards. - We agree with the drywall defendants’ argument that section 768.73(2) speaks only in terms of a prior punitive damage “award.” In fact, some derivation of the word “award” appears eight times within this subsection....

...�� § 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)....

...s” section where the FCCPA is. However, the punitive damages section applies to “any action for damages, whether in tort or in contract.” Fla. Stat. § 768.71 . Thus, the Eleventh Circuit has assumed that the punitive damages cap in Fla. Stat. § 768.73 (1)(a) applies to FCCPA cases....

...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). Fla. Stat. § 768.735 (1)....

...Cross-Appeal: Punitive Damages The jury awarded $25 million in punitive damages in connection with the fraud claims. In response to RJR’s motion for remittitur, the trial court reduced the punitive damages to $15,705,000. The trial court’s order states that, as the result of section 768.73(l)(a)L, Florida Statutes, the punitive damages “must be reduced to three times the compensatory damages awarded.” Plaintiff argues the trial court erred in finding the statute required the reduction of the punitive damages to three times the compensatory damages....

...ecessarily be capped at $25 million, an amount previously approved in Martin), review denied, 110 So.3d 441 (Fla.), review dismissed, 110 So.3d 442 (Fla.2013). The trial court reduced the $25 million awarded by the jury to $15,705,000 believing that section 768.73 of the Florida Statutes required it to do so. This is not, however, the case. In its order, the trial court cited section 768.73(l)(a)l. While the court did not include a year, section 768.73 did not have a subsection “(l)(a)l.” until after the 1999 amendments....

...And, under the post-1999 version of the statute (the statute has not been amended since 1999), a punitive damages award cannot exceed the greater of three times the compensatory damages award or $500,000 unless certain findings are made by the “fact finder.” See § 768.73(l)(a)-(c), Fla. Stat. (2012). It is, however, the 1995 version of the statute that governs the instant case — a fact the parties do not dispute. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding substantive amendment to section 768.73 could not be applied to cause of action that accrued prior to effective date of amendment); St. John v. Coisman, 799 So.2d 1110, 1113 (Fla. 5th DCA 2001) (holding that applicable version of section 768.73 was version in effect at the time the cause of action accrued)....

...hree-times-compensatory cap on punitive damages if “the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which *1053 were presented to the trier of fact.” § 768.73(l)(b), Fla. Stat. (1995) (emphasis added). For the foregoing reasons, we must remand the matter to the trial court to exercise the discretion afforded it by the governing 1995 version of section 768.73....

...In the event the jury should find in favor of the plaintiff on the statute of repose issue, the trial court is free to reinstate the punitive damages award made by the jury, subject to any reduction made by the trial court in the exercise of the discretion afforded it under section 768.73, Florida Statutes (1995)....

...But the amount of the award was much less than the amount Mr. Kintzele sought, and the Florida Arbitration Code specifies no pleading requirements for initiating arbitration. Deciding that punitive damages awarded in arbitration are not subject to section 768.73, Florida Statutes (1993), our supreme court recently reiterated its teaching that arbitration awards are entitled to judicial deference: Under Florida law, arbitration is a favored means of dispute resolution and courts indulge every reasonable presumption to uphold proceedings resulting in an award....

...Complete Interiors, Inc. v. Behan, 558 So.2d 48, 50 (Fla. 5th DCA), review denied, 570 So.2d 1303 (Fla. 1990). In light of arbitration's status as an "alternative to the court system," id. at 50, we cannot assume that the same legislative objectives underlying section 768.73 are applicable to arbitration proceedings. If the legislature determines that arbitration proceedings should be subjected to the same punitive damage limitations as court actions, then it can so indicate. Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470 (Fla. 1995). If section 768.73, Florida Statutes (1993) does not apply to arbitration awards of punitive damages, judicially created pleading requirements on the subject must likewise be inapposite....

...that he was impaired at the time of the accident and that this was a liability issue based on the statutory cap on punitive damages. Punitive damages are generally limited to the greater of three times the amount of compensatory damages or $500,000. § 768.73(l)(a), Fla. Stat. (2008). Section 768.736 removes the cap on punitive damages if the jury finds that the defendant was impaired by drugs or alcohol....

...er the nolle prosequi Mancusi received was bargained for or bona fide. We also address Alamo's argument on appeal regarding the trial court's ruling that punitive damages should not be limited to three times the compensatory damage award pursuant to section 768.73(1)(a), Florida Statutes (1989). This section provides in pertinent part: 768.73 Punitive damages; limitation....

...based on misconduct in a commercial transaction. Rather, the instant action for which Mancusi may have been entitled to punitive damages was based on Alamo's alleged malicious prosecution of Mancusi. There is no indication from the plain meaning of section 768.73 that the legislature intended the intentional tort of malicious prosecution to be included among those civil actions for which punitive damages are limited under this statute. We do not address the distinct issue regarding the constitutionality of section 768.73, currently pending before this court in State v....

...its of reasonableness, as an award of punitive damages is not presumed to be excessive unless the amount of punitive damages exceeds “[t]hree times the amount of compensatory damages awarded to each person entitled thereto” by the trier of fact. § 768.73(l)(a)l., Fla....

...sement, 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....

...ught 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. § 768.73, which limits the amount and availability of punitive damages in certain civil actions. The latter statute precludes an award of punitive damages in excess of three times the amount of compensatory damages awarded to a claimant. Fla.Stat. § 768.73(1)(a)....

...claimant. (b) If the cause of action was based on personal injury or wrongful death, 35 percent of the award is payable to the Public Medical Assistance Trust Fund; otherwise, 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...

...For the reasons stated above, we hold that CSX has failed to demonstrate that the trial court erred or abused its discretion in denying its motion for a new trial. CSX also contends that the trial court should have granted a remittitur pursuant to section 768.73, Florida Statutes (1995), because the punitive damage verdict was excessive. Section 768.73 provides that a punitive damage award may not exceed three times the amount awarded for compensatory damages and is presumed excessive "unless the claimant demonstrates to the court by clear and convincing evidence that the award is no...

...of a civil nature." Martin contends that pursuant to Miele v. Prudential-Bache Securities, Inc., 656 So.2d 470 (Fla.1995), the term "actions of a civil nature" does not include arbitration proceedings. The court in Miele considered the issue whether section 768.73, Florida Statutes (1991), which addressed limitations on punitive damage awards, applied to arbitration proceedings. That statute provided, in pertinent part, that it applied to "any civil action" that fell within certain categories of tort actions. § 768.73, Fla....

...s. Miele, 656 So.2d at 472. Hence, Martin argues that the term "actions of a civil nature" in rule 1.010 does not include arbitration proceedings and, therefore, rule 1.525 does not apply. Subsequent to the decision in Miele, the Legislature enacted section 768.737 Florida Statutes (1999), which provides that sections 768.72, 768.725, and 768.73 do apply when punitive damages are available as a remedy in arbitration proceedings....

...tly enacts a statute." Ford v. Wainwright, 451 So.2d 471, 475 (Fla.1984). Generally, courts are permitted to consider subsequently enacted legislation in determining the meaning of a statute. [7] It is *1225 clear that the Legislature's enactment of section 768.737 indicates that the Legislature has a different view from that adopted by the court in Miele regarding the issue whether arbitration proceedings are "civil actions" within the meaning of section 768.73. We believe that enactment of section 768.737, in light of the decision in Miele, militates in favor of the view that the term "actions of a civil nature" in rule 1.010 includes motions for fees and costs filed in the circuit court that are based on awards emanating from arbitration proceedings....

...Here, the circuit court based its ruling on Miele . Although the Miele opinion is not a statute of limitations case, the language of the case supports the circuit court’s finding that arbitrations are not “actions.” The Miele court considered whether section 768.73, Florida Statutes (1991), which addressed limitations on punitive damage awards, applied to arbitration proceedings. Section 768.73 provided, in pertinent part, that it applied to “any civil action” that fell within certain categories of tort actions....

...Though acknowledging the holding in Miele , the Fifth District found that the legislature had “a different view from that *912 adopted by the court in Miele regarding the issue [of] whether arbitration proceedings are ‘civil actions’ within the meaning of section 768.73.” Id. The Fifth District reasoned that the legislature’s 1999 enactment of section 768.737, subsequent to the Miele decision, made clear its intent that section 768.73 governs arbitration as well as proceedings before the courts. Section 768.737 provides, “Where punitive damages are available as a remedy in an arbitration proceeding, ss. 768.72, 768.725 and 768.73 apply.” Based on this, the Fifth District concluded the amendment “militates in favor of the view that the term ‘actions of a civil nature’ in rule 1.010 includes motions for fees and costs filed in the Circuit Court that are based on awards emanating from arbitration proceedings.” Id....

...or. Moreover, such referral did not put an end to the action because it had to be confirmed by the circuit court, and the circuit court alone could determine entitlement to fees and the amount thereof. We cannot agree, however, that the enactment of section 768.737 represented a complete repudiation of Miele and certainly not a legislative directive that all arbi-trations are in fact “civil actions.” Section 768.73(2) was part of the 1986 Tort Reform and Insurance Act and reflected a philosophy that punitive damage awards can represent a windfall for the successful plaintiff even if such awards are otherwise appropriate to deter egregious misconduct on the part of the party being sued. Gordon v. State, 608 So.2d 800, 801-02 (Fla.1992). We consider section 768.737 to have been a legislative clarification of the punitive damages provision, the scope of which had previously been uncertain....

...ing to have the Award confirmed. Shortly thereafter, Pru-Bache forwarded two checks to the Mieles. One of the checks, representing 60% of the punitive damage award, was made out to the State of Florida General Revenue Fund, pursuant to Fla.Stat.Ann. § 768.73(2) (West Supp.1992) which provides for the splitting of punitive damages between the State of Florida and the claimants in civil cases....

...The Mieles moved again for an order confirming the award, attacking the amounts tendered by Pru-Bache on two grounds. First, the Mieles contended that Pru-Bache had erroneously calculated the total amount of the award. Second, the Mieles contended that § 768.73(2) did not apply to arbitration awards, and that if it did, it was unconstitutional. The district court entered an order confirming the Mieles’ Award (1) finding that the total amount of punitive damages was $266,-654.79, and (2) holding that § 768.73 applied to arbitration awards. The Mieles appealed. 2 II.Reason for Certification At issue in this case is whether § 768.73 applies to arbitration awards....

...(b) If the cause of action was based on personal injury or wrongful death, 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund created in § 409.2662; otherwise 60 percent of the award shall be payable to the General Revenue Fund. Fla.Stat.Ann. § 768.73 (West Supp.1992). Both parties have advanced reasonable constructions of the statute in support of their respective positions concerning whether § 768.73 applies to arbitration awards....

...o determine whether the legislature intended that arbitration awards be subject to the Florida Tort Reform and Insurance Act. III.Question Certified We respectfully certify the following question to the Supreme Court of Florida: Does Florida Statute § 768.73 apply to arbitration awards? We do not intend the particular phrasing of this question to restrict the Supreme Court of Florida in its consideration of the *461 issue or in the manner in which it gives its reply....

...The clerk of the court is directed to transmit this certificate as well as the briefs and record filed with the court to the Supreme Court of Florida, and simultaneously to transmit copies of the certificate to the attorneys for the parties. QUESTION CERTIFIED. 1 . Section 768.73(2) has since been amended to provide for 35% of a punitive damage award to be paid to the State of Florida. 1992 Fla.Laws ch. 92-85, § 2. 2 . On appeal, the Mieles raised several issues in addition to whether § 768.73 applies to their Award....

punitive damages statute is the 1999 version of section 768.73, Florida Statutes, which was in effect when

...2Because of the partial summary judgment in favor of the Estate on Myers' contributory negligence defenses, the jury was not asked to determine the fault, if any, of Myers' subcontractors. -6- pursuant to section 768.73(1)(a), Florida Statutes (2009).3 Myers now appeals the final judgment, raising four issues for review....

...to be inherent in or normal to the work . . . is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger." Restatement (Second) of Torts § 427 3Section 768.73(1)(a) limits an award of punitive damages to the greater of three times the amount of compensatory damages awarded to each claimant or $500,000....

...f the corporations were liable on the wage claims, again for specifically assessed amounts of compensatory damages. After a motion for a new trial was denied—with the exception of reducing the punitive damage awards to three times the compensatory, § 768.73, Fla....

...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. § 768.73....

...s. III. (B). Punitive Damages Awarded are Presumptively Excessive. Defendant alleges that the punitive damages in the amount of $250,000.00, based on actual damages of $57,630.93, are excessive. This excess is alleged to be in violation of Fla.Stat. § 768.73(1)(a)(b)....

...a 1:1 ratio is the constitutional maximum in cases involving six-or seven-figure compensatory damages awards. Pursuant to Florida law, an award of punitive damages may not exceed the greater of three times the amount of compensatory damages awarded. § 768.73(l)(a)l., Fla....

...the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the defendant, it may award an amount of punitive damages four times the amount of compensatory damages. § 768.73(l)(b)l., Fla. Stat. (2010). Nevertheless, section 768.73 does not prohibit an appellate court from determining the reasonableness of a punitive damages award that is less than three times the amount of compensatory damages. § 768.73(l)(d), Fla....

FARMER, Judge. In affirming the judgment below in all respects, we write only to address Judge Stone’s reluctance to include prejudgment interest in calculating the presumptive range of punitive damages under section 768.73(l)(a), Florida Statutes (1993). Section 768.73(l)(a) provides that an award of punitive damages presumptively “may not exceed three times the amount of compensatory damages awarded to each person * * In Argonaut Ins....

...it is necessarily hide-bound with the whole, The question is whether we can, to mix metaphors, split the atom and exclude one of the elements of the compensatory damages package from the calculus for punitive damages. Certainly, there is nothing in section 768.73 authorizing judges to separate the various elements composing the bundle of compensatory damages and discard from the punitive damages formula those elements that the judge personally deems unwise....

...On March 24, 1992, the trial court, in an eviction action brought by Michael and Donna Sontag against Vasilios Birlidis, entered a final judgment in favor of the Sontags awarding compensatory damages in the amount of $105,000.00 and punitive damages in the amount of $475,000.00. Pursuant to section 768.73(2)(b), Florida Statutes (1991), [1] the trial court specifically ordered that sixty percent of the $475,000.00 award of punitive damages be paid to the State of Florida, General Revenue Fund....

...BASKIN, Judge (dissenting). I would reverse the summary judgment. The trial court entered summary judgment granting the State of Florida, Department of Banking and Finance, 60% of a $475,000 punitive damage award. The trial court's ruling is contrary to section 768.73(3), Florida Statutes (1991), which provides that the State is entitled only to a share of the punitive damages collected. Here, the plaintiff in the original action did not collect any punitive damages. The parties entered into a settlement agreement which did not provide for payment of punitive damages. Because section 768.73 [2] does not provide for the Department to share in the settlement, I would reverse. In any event, the Department concedes that it requested only 60% of $409,482.76; the summary judgment, therefore, should be amended to correct the amount awarded. NOTES [1] Section 768.73(2), Florida Statutes (1991) provides as follows: (2) In any civil action, an award of punitive damages shall be payable as follows: (a) Forty percent of the award shall be payable to the claimant....

...(b) If the cause of action was based on personal injury or wrongful death, 60 percent of the award shall be payable to the Public Medical Assistance Trust Fund; otherwise, 60 percent of the award shall be payable to the General Revenue Fund. [2] Although the legislature amended section 768.73 to state that the original parties to an action must provide for a share to the State in any settlement agreement, § 768.73(4), Fla.Stat....

...1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006). disease that caused the Engle class member’s death and gave rise to this claim manifested after October 1, 1999, the trial court erred by declining to apply the post-1999 version of section 768.73, Florida Statutes, which bars successive awards of punitive damages under the circumstances here....

...nce, fraud by concealment, and conspiracy to commit fraud by concealment. The trial court granted the plaintiff leave to amend his complaint to add claims for punitive damages. Before trial, the defendants sought to invoke the current version of section 768.73(2)(a), Florida Statutes, which generally bars successive punitive damages awards against a defendant “in any action alleging harm from the same act or single course of conduct.” The defendants argued that section 768.73(2)(a) barred a punitive damages award because: (1) the plaintiff’s claim arose after the October 1, 1999 effective date of the statute; and (2) each defendant had already paid over $150 million in punitive damages in tobacco lawsuits based on the same conduct....

...against Philip Morris, and assessed $200,000 in punitive damages against R.J. Reynolds. In post-trial motions, the defendants argued that the plaintiff’s claim for punitive damages was barred by the current version of section 2 768.73(2)(a)....

...r $3.7 million to account for the jury’s comparative fault determination. This appeal and cross-appeal ensued. Main Appeal We first address the defendants’ argument that the trial court erred by refusing to apply the post-1999 version of section 768.73....

...Additionally, the plaintiff argues that the post- 1999 statute’s limitation on successive punitive damages awards is unconstitutional. A trial court’s ruling on an issue of statutory interpretation is subject to de novo review. Headley v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017). Section 768.73(2)(a), Florida Statutes, as amended in 1999, provides that “punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant . . . in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.” § 768.73(2)(a), Fla. Stat. (1999). The amended version of section 768.73 applies “to all causes of action arising after the effective date of [the] act,” which was October 1, 1999. § 768.73(5), Fla. Stat. (1999); Ch. 99-225, § 23, Laws of Fla. Before the 1999 amendment, section 768.73 had no such bar on successive awards of punitive damages. The question for this court, therefore, is whether the plaintiff’s cause of action arose after October 1, 1999. 3  In civil cases...

...Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057, 1058 (Fla. 4th DCA 1994). However, in Engle wrongful death cases, this court has looked to the time when the injury causing the smoker’s death manifested in determining which version of section 768.73 applied....

...Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute governs.”) (citation omitted), quashed on other grounds, 232 So. 3d 294 (Fla. 2017); R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049, 1052 (Fla. 4th DCA 2013) (holding that the 1995 version of section 768.73 applied in an Engle wrongful death case where the smoker began suffering from COPD in 1995, which caused his death in 2008: “It is ....

...3d 684, 689 (Fla. 1st DCA 2017), the First District reasoned that, although a cause of action for wrongful death usually accrues upon the decedent’s death, “Engle-progeny cases are different.” The Allen court held that the pre-1999 version of section 768.73 applied to an Engle progeny personal injury suit that converted to a wrongful death action after the smoker died....

...e claim would impair those substantive rights.” Id. at 690 (emphasis added) (citation omitted). In R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2017), the Second District extended Allen and held that the pre-1999 version of section 768.73 applied to an Engle progeny suit that was initially brought as a wrongful death action after the smoker died of lung cancer in 2007....

...It is of no consequence that the lawsuits had not been filed prior to the 1999 amendment, as the relevant inquiry is when did the claims arise or accrue. 5  Recently, this court agreed “with the First and Second District Courts of Appeal in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death.” R.J....

...4D16–4310, 43 Fla. L. Weekly D1037, 2018 WL 2126722 (Fla. 4th DCA May 9, 2018) (citing Allen and Evers). The holding in Konzelman was, however, limited to the facts before us. Specifically, we agreed with the plaintiff’s argument that the 1999 amendment to section 768.73 did not apply to an Engle class member’s personal injury claim that accrued before the effective date of the statute, even if the claim was later converted to a wrongful death action after the effective date of the statute....

...recognized an exception to the general rule that a wrongful death claim accrues or arises upon the injured party’s death, preserving an Engle class member’s vested rights where the class member eventually dies of a tobacco-related illness that manifested before the 1999 amendment to section 768.73....

...member’s personal injury survivor claim effectively carries over to a merged or amended wrongful death claim upon death for purposes of determining when a cause of action arises. However, all Engle wrongful death actions do not necessarily arise before the 1999 amendment to section 768.73, on the theory that they all relate back to the 1994 Engle class action complaint....

...We cannot agree with the sweeping proposition that all applicable statutory law in an Engle progeny case is necessarily frozen in place as of the time of the original 1994 Engle class action complaint. Turning to the facts of this case and the plain text of the current version of section 768.73, we find that the plaintiff’s wrongful death cause of action 6 arose after October 1, 1999....

...After all, the Legislature intentionally avoided any impairment of vested rights by clarifying that its 1999 amendment to the punitive damages statute would apply only to those claims “arising after the effective date of [the] act,” which was October 1, 1999. § 768.73(5), Fla....

...1999 statute arising from the harm caused by her lung cancer that manifested in 2003. Thus, because the smoking-related illness causing Mrs. Martin’s 7 death did not develop until after the 1999 amendment to section 768.73, we find that the post-1999 version of section 768.73 applies to this case. The plaintiff suggests that even if the post-1999 version of the statute applies to this case, it is unconstitutional. However, the plaintiff’s constitutional challenge to the current version of section 768.73 is not properly before us because the plaintiff did not notice the Attorney General or the State Attorney as required by Florida Rule of Civil Procedure 1.071 when challenging the constitutionality of a state statute. Therefore, applying the current version of section 768.73 to this case, we find that section 768.73(2)(a) bars a punitive damages award to the plaintiff because the defendants established before trial that punitive damages had previously been awarded against them in other actions “alleging harm from the same act or single course of...

...And even if the exception in (2)(b) did apply, the plaintiff still could not recover punitive damages because “[a]ny subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.” § 768.73(2)(b), Fla....

...ollowing amounts: (a) Stock issue — actual damages — $15,000 (b) Punitive damages on stock issue — $80,000 (c) Loss of permanent alimony — $50,000. In the final judgment, the Court reduced the punitive damages award to $45,000 based on Fla.Stat. § 768.73(1)(a) and (b)....

...Cross-Appeal: Punitive Damages The jury awarded $25 million in punitive damages in connection with the fraud claims. In response to RJR’s motion for remittitur, the trial court reduced the punitive damages to $15,705,000. The trial court’s order states that, as the result of section 768.73(l)(a)l., Florida Statutes, the punitive damages “must be reduced to three times the compensatory damages awarded.” Plaintiff argues the trial court erred in finding the statute required the reduction of the punitive damages to three times the compensatory damages....

...ent of fault, and $25 million in punitive damages), review denied, 67 So.3d 1050 (Fla.2011), cert, denied, — U.S. -, 132 S.Ct. 1794 , 182 L.Ed.2d 617 (2012). The trial court reduced the $25 million awarded by the jury to $15,705,000 believing that section 768.73 of the Florida Statutes required it to do so. This is not, however, the case. In its order, the trial court cited section 768.73(l)(a)l. While the court did not include a year, section 768.73 did not have a subsection “(l)(a)l.” until after the 1999 amendments....

...And, under the posL-1999 version of the statute (the statute has not been amended since 1999), a punitive damages award cannot exceed the greater of three times the compensatory damages award or $500,000 unless certain findings are made by the “fact finder.” See § 768.73(l)(a)-(c), Fla. Stat. (2012). It is, howevei", the 1995 version of the statute that governs the instant case — a fact the parties do not dispute. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding substantive amendment to section 768.73 could not be applied to cause of action that accrued prior to effective date of amendment); St. John v. Coisman, 799 So.2d 1110, 1113 (Fla. 5th DCA 2001) (holding that applicable version of section 768.73 was version in *107 effect at the time the cause of action accrued)....

...And, under the 1995 version of the statute, the trial court is free to exceed the three-times-compensatory cap on punitive damages if “the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.” § 768.73(l)(b), Fla. Stat. (1995) (emphasis added). For the foregoing reasons, we must remand the matter to the trial court to exercise the discretion afforded it by the governing 1995 version of section 768.73....

...In the event the jury should find in favor of the plaintiff on the statute of repose issue, the trial court is free to reinstate the punitive damages award made by the jury, subject to any reduction made by the trial court in the exercise of the discretion afforded it under section 768.73, Florida Statutes (1995)....

...d amounts. After Evers filed a subsequent motion to amend, the trial court awarded interest accruing from the date of the original final judgment. ANALYSIS I. The trial court properly applied section 768.73(1)(a) and (b), Florida Statutes (1995), to the punitive damages award. 4R.J. Reynolds also argued below that the compensatory damages award should be reduced based on Lloyd's comparative fault, an ar...

...-5-  We first address R.J. Reynolds' argument that the jury's punitive damages award should be capped at an amount that is three times the compensatory damages award amount. R.J. Reynolds contends that the post-1999 version of section 768.73 is applicable because Evers' wrongful death action is based on Loyd's death in 2007....

...effect when the cause of action arose.' " R.J. Reynolds Tobacco Co. v. Allen, 42 Fla. L. Weekly D491, D493 (Fla. 1st DCA Feb. 24, 2017), (first quoting D'Angelo v. Fitzmaurice, 863 So. 2d 311, 314 n.9 (Fla. 2003); and then citing §§ 768.72(4) & 768.73(5), Fla....

...Reynolds waived the issue of applying a three-to-one cap under the pre-1999 version of the statute, but even if the cap applied, Evers met her burden of proving that the punitive damages award was not excessive. Having determined that the trial court properly applied the 1995 version of section 768.73(1)(a) and (b), we must next address R.J....

...Reynolds'] conduct - 12 - and the harm to [Loyd]." Engle, 945 So. 2d at 1265. Consequently, we conclude that the trial court properly determined that the punitive damages award was not excessive under the 1995 version of section 768.73 and that clear and convincing evidence supported a punitive damages award in excess of the statutory cap.6 III....

...We review de novo a trial court's decision regarding judgment interest. See Santini v. Cleveland Clinic Fla., 65 So. 3d 22, 34 (Fla. 4th DCA 2011). 6We note that R.J. Reynolds also made the argument that under both the pre-1999 or post-1999 versions of section 768.73, Florida Statutes, the three-to-one cap on punitive damages should be measured by the compensatory award as reduced for comparative fault....

...4th DCA 1966))). Accordingly, the trial court properly awarded interest accruing from the date of the original final judgment. CONCLUSION The trial court properly determined that the 1995 version of section 768.73 applied to this case....

...� and (2) there is no cap on punitive damages if “the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant.” Id. § 768.73(1). 1....

...This is the sole issue on which the district court did not affirm the jury’s findings. Instead, it concluded that the record was insufficient to support a finding of specific intent and reduced the punitive award to $2 million pursuant to Fla. Stat. § 768.73(1)(b). The district court concluded that there was no evidence at trial that Mentor had a “specific intent” to harm the women who were implanted with ObTape....

...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. Chapter 99-225, section 23, amended section 768.73, Florida Statutes, to impose a stricter cap on punitive damages and to require findings by the jury to overcome that cap....

...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....

...1 CANADY, C.J. This case presents a question concerning the application of a statutory provision enacted to impose certain limitations on the award of punitive damages. In 1999, as part of a broader tort reform act, the Legislature amended section 768.73, Florida Statutes, to among other things presumptively preclude an award of punitive damages against a defendant in a civil action if “punitive damages have previously been awarded against that defendant in any state or federal c...

...Then we review the background of this case. Lastly, we explain our conclusion that the wrongful death action here is covered by the 1999 amendments. 1999 AMENDMENTS Chapter 99-225, Laws of Florida, added the following underlined language to section 768.73: (2)(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been...

...at 505. Regardless of whether Waters was the impetus for the amendments, the purpose of the amendments is clear—to presumptively bar successive awards of punitive damages against a defendant based on “the same act or single course of conduct.” § 768.73(2), Fla....

...a second verdict awarding $5 million in punitive damages.” Id. at 1232. The Fifth District’s decision On appeal, the Fifth District agreed with Reynolds that the trial court should have applied “the 1999 version of section 768.73.” Id....

...After then dismissing Evers and Konzelman as having agreed with Allen, the Fifth District certified conflict with those three decisions. Id. at 1237-38. - 12 -  ANALYSIS The question presented is whether the 1999 amendments to section 768.73 apply to Engle progeny wrongful death actions in which the decedent died after October 1, 1999....

...2d 800 (Fla. 1992), where this Court upheld the constitutionality of a statute that required 60 percent of a claimant’s punitive damages award to be payable to the State “[i]f the cause of action was based on personal injury or wrongful death.” Id. at 801 (quoting § 768.73(2)(b), Fla....

...Sheffield, the causes of action here purportedly arose, the Legislature continued - 29 - “substantive rights” analysis nowhere accounted for any of this caselaw, we reject that analysis. CONCLUSION We hold that the relevant 1999 amendments to section 768.73 apply in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments. Accordingly, we approve the result in Sheffield and disapprove the certified conflict cases of Allen, Evers, and K...

...brought as personal injury or wrongful death causes of action—are entitled to the res judicata effect of the Phase I findings—findings made before the effective date of the 1999 amendments. See Engle, 945 So. 2d at 1256. Therefore, Engle progeny “causes of action,” see section 768.73(5), Florida Statutes (1999), did not arise after the 1999 amendments. It is undisputed that Mrs....

...Accordance With Defendant's Motion for a Directed Verdict On Plaintiffs Claim for Punitive Damages; Defendant's Motion for Judgment in Accordance with Defendant's Motion for Directed Verdict On All Claims Made At The Close of Plaintiffs Case; Defendant's Renewed Motion Invoking Section 768.73(2), Florida Statutes; and Motion for Directed Verdict on All Claims Based on Statute of Limitations....

...Rosen of Kelley Uustal, PLC, Fort Lauderdale, for appellee. PER CURIAM. Appellant R.J. Reynolds raises several issues on appeal, and we affirm as to all of them. With regard to the applicable punitive damages statute, we agree with the First and Second District Courts of Appeal in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death....

Damages In 1999, the Legislature amended section 768.73 to prohibit punitive damage awards against

...Because there is substantial, competent evidence to support the award of punitive damages in Wagner’s case, we affirm. We hold, however, that the punitive damages award must be remitted to $42,000.00 (three times the compensatory damages) pursuant to section 768.73, Florida Statutes (1997) (the version of the statute, since substantially amended, applicable to Wagner’s case)....

...and involving willful, wanton, or gross mis *1192 conduct, the judgment for the total amount of punitive damages awarded to a claimant may not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact, except as provided in paragraph (b). Section 768.73(l)(b), in turn, provided: If any award for punitive damages exceeds the limitation specified in paragraph (a), the award is presumed to be excessive and the defendant is entitled to remittitur of the amount in excess of the limitation...

...as Corp. v. Ballard, 749 So.2d 483 (Fla.1999), supports his argument that the punitive damages award qualifies under the exception to the statutory cap because he proved by clear and convincing evidence that he is entitled to the excess verdict. See § 768.73(l)(b), Fla....

...JJ. LOGUE, C.J. In this Engle progeny case, Stefanny Sommers, as Personal Representative of the Estate of Bert Sommers, appeals the trial court’s final judgment. We find the trial court properly concluded that the current version of section 768.73(2), Florida Statutes, applied to Sommers’ wrongful death action and barred her punitive damages claim....

...During jury selection, Sommers again raised the issue of reinstating her punitive damages claims as to the non- intentional torts. Philip Morris argued that if the trial court were inclined to allow the claim for punitive damages to be reinstated, then the trial would need to be continued to determine whether section 768.73(2), Florida Statutes, barred the punitive damages claim....

...cross-appeal, remanding for a trial on punitive damages on both Sommers’ intentional and non-intentional tort claims. Philip Morris USA, Inc. v. Sommers, 289 So. 3d 17 (Fla. 3d DCA 2019). On remand, Philip Morris filed a motion to apply the current version of section 768.73, Florida Statutes....

...6 statute (October 1, 1999) and Philip Morris had already paid hundreds of millions in punitive damages for the same course of conduct. While the trial court initially denied the motion based on a district split concerning the applicability of section 768.73(2) in Engle cases, the Florida Supreme Court ultimately decided in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 125 (Fla. 2021), that the “1999 amendments to section 768.73 app[ied] in Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments.” Philip Morris then moved to vacate the trial court’s prior order denying their motion to apply the current version of section 768.73 and for summary judgment on Sommers’ punitive damages claims....

...The trial court’s finding of waiver, however, is 7 reviewed for abuse of discretion. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017). While Sommers does not dispute the trial court’s conclusion that the current version of section 768.73(2) applied to her wrongful death action, she nevertheless contends the trial court erred in applying the statute. Sommers argues she was entitled to an evidentiary hearing to determine whether Philip Morris had been sufficiently punished pursuant to section 768.73(2)(b) and contends that the trial court erred by determining that such a hearing, or even a subsequent trial on punitive damages, would be futile. Sommers alternatively argues that even if section 768.73(2) barred her from recovering punitive damages on her wrongful death claim, she was still entitled to pursue punitive damages based on her survival claim relating to the decedent’s coronary artery disease....

...the stipulation [by Philip Morris]” that 9 Sommers elected “as between [the] wrongful death claim and survival to proceed with wrongful death.” II. The trial court properly concluded that section 768.73(2) barred Sommers’ punitive damage claim. Again, Sommers does not dispute on appeal that the current version of section 768.73(2) applied to her wrongful death action. Instead, she argues the trial court erred in denying her an evidentiary hearing to determine whether Philip Morris had been sufficiently punished pursuant to section 768.73(2)(b). She contends the trial court erred in deciding that such a hearing, or a trial on punitive damages, would be futile. Section 768.73 provides: (2)(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that...

...In addition, the court may consider whether the defendant’s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court. § 768.73, Fla. Stat. (emphasis added). The initial question in applying section 768.73(2), as the trial court properly identified, is whether punitive damages have previously been awarded against Philip Morris in any state or federal court in any action alleging harm from the same act or single course of conduct for w...

...e damages in Engle progeny cases to date. Sommers does not dispute this number. Based on these findings, it 11 was proper for the trial court to conclude that Sommers’ punitive damages claim was barred by section 768.73(2)(a) unless Sommers could establish that the exception under section 768.73(2)(b) applied. This is where Sommers contends the trial court erred....

...The trial court, however, concluded that any such hearing or subsequent trial on punitive damages would be futile because even if $198 million in prior punitive damages were insufficient to punish Philip Morris, for Sommers to recover any punitive damages she would have to obtain an award greater than $198 million. See § 768.73(2)(b), Fla....

...408, 425 (2003)) (internal citations omitted). The trial court’s reasoning in this regard is sound and finds support in Philip Morris USA Inc. v. Martin, 262 So. 3d 769 (Fla. 4th DCA 2018). In Martin, the Fourth District, applying the current version of section 768.73, held that section 768.73(2)(a) barred a punitive damages award to the plaintiff because the defendants established before trial that punitive damages in the amount of approximately $150 million had previously been awarded against them in tobacco lawsuits based on the same conduct....

...be the highest constitutionally valid award permissible and determined that it would be exhausted by the prior punitive damages paid by Philip Morris for the same conduct. CONCLUSION The trial court properly concluded that the current version of section 768.73(2), Florida Statutes, applied to Sommers’ wrongful death action and barred her punitive damages claim....

...rehearing/new trial, motion for remittitur and motion to limit judgment on punitive damages. Coral Cadillac argues that the trial court erred in denying its motion to limit the punitive damage award to three times the compensatory damage award under section 768.73(l)(a), Florida Statutes (1995). Section 768.73, Florida Statutes (1995), states in pertinent part: (l)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involvi...

...to remittitur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact. § 768.73(l)(b), Fla....

...taking it out of the limitation on punitive damages. The trial court held that “because it is a consumer as opposed to a commercial transaction they’re entitled to the punitive damages.” We agree. The issue central to this argument is whether section 768.73 applies to consumer transactions....

...on the lessee’s arrest for failure to return a rental car. The jury awarded the lessee compensatory and punitive damages. Alamo argued that the punitive damages should be limited to no more than three times the amount of compensatory damages under section 768.73(1)(a)....

...ting remittitur on the compensatory and punitive damage award. See id. The court, in dicta, merely stated that there was no abuse in discretion in remitting the punitive damage award to three times the amount of compensatory damages. See id. Because section 768.73 fails to define either “commercial transaction” or “consumer transaction” and neither of the above cases addresses the issue of whether the sale of a car to an individual consumer constituted a commercial transaction under the...

...Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (when a term is undefined by statute, one of the most fundamental tenets of statutory construction requires that we give a statutory term its plain and ordinary meaning). We must conclude that had the legislature meant for “commercial transaction” under section 768.73 to include consumer transactions, it would have amended the statute to so provide....

...red a consumer transaction. In applying a plain meaning interpretation to the statute, it would appear that a transaction which occurs solely for personal use must be considered a consumer transaction, rather than a commercial transaction, and thus, section 768.73(1) should not apply....

...ent must be corrected to reflect the 2002 statutory rate of 9%. See Amerace Corp. v. Stallings, 823 So.2d 110, 114 (Fla.2002) (interest does not accrue until the date of the judgment, not the verdict); see also § 55.03, Fla. Stat. (2002). ' Because section 768.73 fails to address the issue as to whether the purchase and sale of an automobile for personal use is a consumer or commercial transaction thereby limiting a punitive damage award to three times the compensatory damage award, we certify the following question to the Florida Supreme Court to be one of great public importance: IS THE PURCHASE AND SALE OF AN AUTOMOBILE AT THE RETAIL LEVEL FOR THE BUYER’S PERSONAL OR HOUSEHOLD USE A “COMMERCIAL TRANSACTION” AS DEFINED BY SECTION 768.73, FLORIDA STATUTES (1995), THEREBY LIMITING PUNITIVE DAMAGES NOT TO EXCEED THREE TIMES THE AMOUNT OF COMPENSATORY DAMAGES? AFFIRMED IN PART; REVERSED IN PART AND REMANDED; QUESTION CERTIFIED....

by the statutes addressing punitive damages. Section 768.73, Florida Statutes, contemplates that punitive

RAMIREZ, JUAN, Jr., Associate Judge. This appeal raises the applicability and effective date of Florida Statutes section 768.73(2)(b) (1993)....

...for appellee. ON REMAND FROM THE FLORIDA SUPREME COURT PER CURIAM. In R.J. Reynolds Tobacco Co. v. Kaplan (Kaplan I), 321 So. 3d 267 (Fla. 4th DCA 2021), we affirmed as to R.J. Reynolds’ argument that punitive damages were barred by section 768.73, Florida Statutes, based on our previous decision in R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (Fla. 4th DCA 2018). 321 So. 3d at 269 n.1. In Konzelman, we concluded that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle 1 progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death....

...18, 2022), our supreme court quashed Kaplan I and remanded with instructions for reconsideration upon application of its decision in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021). In Sheffield, our supreme court disapproved of our decision in Konzelman and held that the 1999 amendments to section 768.73 apply to Engle progeny wrongful death actions in which the decedent died after October 1, 1999. 329 So. 3d at 125. Based on Sheffield, we reverse and remand to the trial court for application of the amended version of section 768.73 in determining the punitive damage award as required by Sheffield. Reversed and remanded with instructions. CONNER, C.J., FORST and KLINGENSMITH, JJ., concur. * * * No further motions for rehearing shall be permitted. 1 Engle v....

...Eric Rosen of Rosen Injury Law, P.A., Fort Lauderdale, for appellee. ON REMAND FROM THE SUPREME COURT OF FLORIDA PER CURIAM. In R.J. Reynolds Tobacco Co. v. Konzelman, 248 So. 3d 134 (Fla. 4th DCA 2018), we concluded that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death. In R.J....

...18, 2022) 1, our supreme court quashed Konzelman and remanded with instructions for reconsideration upon application of the decision in Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021). In Sheffield, the supreme court held that the 1999 amendments to section 768.73 apply to Engle progeny wrongful death actions in which the decedent died after October 1, 1999. 1 Mattson was substituted as appellee after the personal representative, Alan Konzelman, passed away.  Based on Sheffield, we reverse and remand to the trial court for application of the amended version of section 768.73 in determining the punitive damage award as required by Sheffield. Reversed and remanded with instructions. CONNER, C.J., LEVINE and FORST, JJ., concur. * * * No further motions for...

...n an Engle 1 progeny wrongful death case. We affirm. Defendants contend that the trial court erred in allowing Plaintiff to plead the claim because Defendants have previously paid hundreds of millions in punitive damages. Defendants contend that section 768.73(2), 1 Engle v....

...ot 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”). Whether the caps and limitations in section 768.73 apply to limit an award of punitive damages is a separate inquiry....

...In addition, the court may consider whether the defendant’s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court. § 768.73(2), Fla....

...that the defendant 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). Section 768.73’s caps and limitations on punitive damage awards are separate from this initial inquiry and play no role at the pleading stage. At the pleading stage, the trial court cannot make factual determinations as to whether section 768.73(2) permits an additional award of punitive damages. Under this subsection, Defendants must establish that punitive damages were previously awarded against them in an action “alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.” § 768.73(2)(a), Fla. Stat. (2022). If Defendants meet this burden, then Plaintiff must prove by clear and convincing evidence “that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior.” § 768.73(2)(b), Fla. Stat. (2022). 3  Affirmance is without prejudice for Defendants to seek relief under section 768.73(2) through an appropriate motion in the trial court. Affirmed. CIKLIN, KUNTZ and ARTAU, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing....

...ive damages to plaintiff Irma S. Taylor. Shortly thereafter the State of Florida moved to intervene in the trial court and moved to alter or amend the judgment. Movant sought to assert its right to 60 percent of the punitive damage award pursuant to section 768.73, Florida Statutes....

...overy in the ’50s of this terrible truth about their product, would have been stop making it or fix it. And 1 We affirm as to Tobacco’s claim that punitive damages are barred by section 768.73(2)(a), Florida Statutes, based on R.J....

...*1237 Whether a punitive damages award-is excessive in Florida-is governed by- statute. Under ■ Florida ' law, any punitive award in excess of three times the compensatory damages is presumed to be excessive, entitling the defendant to remitti-tur to that ratio. Fla. Stat. § 768.73 ....

...Parry, Monsanto completed many of the studies that he suggested, and 7 as a result, Dr. Parry eventually changed his mind on glyphosate’s potential carcinogenicity. Lastly, the alleged “ghostwritten” articles acknowledge Monsanto’s contributions. Citing section 768.73, Florida Statutes, Monsanto further contended that it could not be held liable for punitive damages based on conduct for which punitive damages have been awarded in another case....

...The allegations and evidence presented fall short of supporting a claim for punitive damages. As a result, the trial court erred by allowing the amendment. Because of this ruling, we do not reach Monsanto’s second argument as to application of section 768.73, Florida Statutes, in terms of futility of the amendment. 14 Reversed and remanded. 15 

...he requirement that compensatory and punitive damages bear a “reasonable relationship” to each other. It is true indeed that due process-related concerns attend punitive damage awards that far exceed the size of a compensatory damages award. See § 768.73(1)(a)1., Fla....

...Of course, there will always be a ratio that can be calculated in cases involving these two types of damages, sometimes with round numbers and sometimes not. But legally speaking, the ratios aren’t meaningful except insofar as a punitive damages award approaches statutory or constitutional bounds of excessiveness. See § 768.73(1)(a)1., Fla....

court’s final judgment provided: Pursuant to Florida Statute 768.73, in an award of punitive damages, sixty-five

...We have considered all of the appellate points presented on both the main and cross appeal and find no reversible error demonstrated except as to the failure of the trial court to apportion the punitive damages between appellee and the Public Medical Assistance Trust Fund as provided in section 768.73(2), Florida Statutes (1989)....

...punitive damages award. A. Florida law requires a reasonable relationship between punitive damages and the amount of damages proved and the injury suffered. The rephased question implicates two statutes, sections 768.73 and 768.74, Florida Statutes (1997), that govern review of the punitive damages award at issue. 3 Therefore, we begin with 3. Since 1997, the first statute, section 768.73, has been substantially amended. See § 768.73, Fla....

...that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means’ ”) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). First, section 768.73, Florida Statutes (1997), addresses Florida’s limitation on punitive damages, and subject to one exception, caps a punitive damages award in relation to the compensatory damages award at a 3:1 ratio: (1) (a) In any ci...

...(c) This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages that is less than three times the amount of compensatory damages. § 768.73(1)(a)-(c). Second, section 768.74, Florida Statutes (1997), which is Florida’s remittitur and additur statute, requires the trial court, upon a proper motion, to review an award of money damages “to determine if [the] amount is excessive ....

...-8- “[w]hether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.” § 768.74(5)(d). Reading these statutes together, unless the “facts and circumstances” exception of section 768.73(1)(b) applies, section 768.73(1)(a) caps an award of punitive damages in comparison to the compensatory damages award at a ratio of 3:1, and section 768.74 provides for further review of an award that is challenged as excessive, regardless of whether the award falls inside or outside of the 3:1 cap. Therefore, even when (as the Fifth District held here) the “facts and circumstances” allow a punitive damages award to exceed the 3:1 presumptive cap of section 768.73(1)(a), that is not the end of the analysis....

...(“It is the intention of the Legislature that awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.”) (emphasis added); Guarino v. Armstrong World Indus., Inc., No. 88-1087-CIV-MARCUS, 1989 WL 265218, at *2 (S.D. Fla. Oct. 13, 1989) (describing section 768.73(1)(a) as imposing a cap on punitive damages and section -9- 768.74(2) as providing “a further check upon the imposition of excessive punitive damages”). When a trial court reviews an awar...

...Liggett Grp., Inc., 945 So. 2d 1246, 1264 (Fla. 2006)). B. The rule is no different in a wrongful death action. Given the clarity of both the statutory text and our precedent, it is not surprising that Ms. Coates acknowledges that sections 768.73 and 768.74 make relevant a comparison between punitive and compensatory damages....

...proved will always be coextensive with the injury suffered in every case to which the remittitur statute applies. - 16 -  Although we cannot say it was unreasonable to conclude that the facts and circumstances support departing from the 3:1 cap of section 768.73(1), see Coates, 308 So....

...the punitive damages statute in place when the Engle class was recertified in 1996. Based on the statute's specific language and well-established Florida law, we hold that the applicable version of the punitive damages statute is the 1999 version of section 768.73, Florida Statutes, which was in effect when the instant wrongful death cause of action accrued on the date of decedent's death....

...compensatory damages, and a second verdict awarding $ 5 million in punitive damages against Reynolds. LEGAL ANALYSIS Prior to, during, and following trial, Reynolds argued that the punitive damages issues should be governed by the current version of section 768.73, which became law on October 1, 1999, but the trial court agreed with the Estate and applied the pre-1999 version of that statute....

...The 1999 version modified the prior law in several ways, including potentially barring punitive damages awards against a defendant if punitive damages were previously awarded against that defendant "in any action alleging harm from the same act or single course of conduct." § 768.73(2)(a), Fla....

...s completely. 2 We apply the de novo standard to our review of the trial court's ruling on *1233 which version of the statute applied. See Townsend v. R.J. Reynolds Tobacco Co. , 192 So.3d 1223 , 1225 (Fla. 2016). Express statutory language controls Section 768.73(5), Florida Statutes (1999), states: "The provisions of this section shall be applied to all causes of action arising after the effective date of this act." "When the statutory language is 'clear and unambiguous and conveys a clear and...

...In large part, Evers relies upon and quotes from the Allen case, discussed above. Thus, we need not repeat the bases for our disagreement. Citing Allen and Evers , the Fourth District announced its agreement with the First and Second Districts "in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker's death." R.J....

...to be said other than we disagree for the reasons expressed above. CONCLUSION For the reasons discussed above, we hold that the Estate's wrongful death cause of action accrued on the date of Mr. Sheffield's death in 2007, making the 1999 version of section 768.73, Florida Statutes, applicable to the punitive damages issues in this case and to the possible retrial of those issues....

...LAMBERT, J., concurs in part, and dissents in part, with opinion. LAMBERT, J., concurring, in part, and dissenting, in part. I concur with affirming the award of $ 1.8 million in compensatory damages. As to the reversal of the punitive damages award, the majority opinion holds that the post-1999 version of section 768.73, Florida Statutes, applies to the instant wrongful death action because this cause of action did not accrue until the death of the decedent, Valton Sheffield, in 2007....

...Here, the parties stipulated that Mr. Sheffield's tobacco-related lung cancer first diagnosed in 1994 was a contributing legal cause of his death in 2007. I would affirm the $ 5 million punitive damages award. Engle v. Liggett Grp., Inc. , 945 So.2d 1246 (Fla. 2006). However, section 768.73(2)(b) permits the trial court to submit punitive damages to the jury "if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior." Rey...

...on because it did not use the date of death to determine when the cause of action accrued. However, the Fourth District in Martin did reject the concept that all Engle -progeny claims relate back to the 1994 Engle class action complaint. Id. Because section 768.73(2)(b) permits the trial court to submit punitive damages to the jury "if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior," whe...

...oes the State have a vested interest in causes of action that accrued during the period from July 1, 1986, to June 30, 1995, such that the Department of Banking and Finance would have the duty to pursue the collection of punitive damage awards under section 768.73 (5), Florida Statutes? In sum: Pursuant to section 768.73 (5), Florida Statutes, the Department of Banking and Finance is charged with collecting all payments due the state in any civil action in which punitive damages were awarded between July 1, 1986, and June 30, 1995. Section 768.73 , Florida Statutes, provided for limitations on punitive damage awards "[i]n any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warran...

...al Revenue Fund. The clerk of the court was required to transmit a copy of the jury verdict to the State Treasurer by certified mail and, in the final judgment, the court ordered the percentages of the award payable as set forth above. 2 Pursuant to section 768.73 (5), Florida Statutes: The Department of Banking and Finance shall collect or cause to be collected all payments due the state under this section....

...nts in light of the repeal of these provisions. Section 2, Chapter 92-85, Laws of Florida, added the language codified as subsections (3) and (5), quoted above. 3 The act included a repealer clause: "[s]ubsections (2), (3), (4), (5), (6), and (7) of section 768.73 , Florida Statutes, are repealed effective July 1, 1995, and shall be reviewed by the Legislature before that date." 4 The statute created an integrated scheme by which the punitive damage award would be allocated, the clerk notified t...

...ate collected payments when it was notified that they were due and owing. However, as of July 1, 1995, the statutory scheme no longer exists and the responsibilities imposed by the statute need no longer be performed by any of those charged. Because section 768.73 (2), Florida Statutes, which allocates 35 percent of damage awards to the state, has been repealed, the Department of Banking and Finance can no longer collect such awards. Based on the language of section 768.73 , Florida Statutes, the state receives notice of the jury's verdict from the clerk of the court....

...Thus, discussion of the amendment in the Senate Judiciary Committee indicates that the purpose of the amendment was to vest a 35-percent share of the award in the state once a verdict had been rendered. 5 Should the parties enter into a settlement agreement after a verdict had been rendered, section 768.73 (4), Florida Statutes, required that: [The agreement] must provide a proportionate share payable to the fund specified in paragraph (2)(b)....

...For purposes of this subsection, a proportionate share is a 35-percent share of that percentage of the settlement amount which the punitive damages portion of the verdict bore to the total of the compensatory and punitive damages in the verdict. Thus, in amending section 768.73 , Florida Statutes, the Legislature sought to ensure that the state received its proportionate share of punitive damages awarded in those actions covered by the statute....

...e to the several situations with which you have specifically requested assistance, the conclusions set forth above may be applied as follows: 1. The Department of Banking and Finance is authorized to collect its share of punitive damages pursuant to section 768.73 , Florida Statutes, in a case where the jury verdict awarding punitive damages was rendered prior to the repeal date but the final judgment of the trial court was entered after the repeal date....

...Thus, in those cases in which a jury verdict was forthcoming prior to July 1, 1995, the state may proceed to enforce its 35 percent share even in the event that the judge's order was entered subsequent to July 1, 1995. 2. The Department of Banking and Finance may pursue the collection of punitive damage awards under section 768.73 , Florida Statutes, in a situation where the final judgment of the trial court was rendered prior to the repeal date, but the time in which to appeal the order had not expired prior to the repeal....

...A court may choose not to allow enforcement of the award during the pendency of the appeal but may require the posting of a supersedeas bond by the party against whom the punitive damages were assessed. 4. The Department of Banking and Finance may not proceed to enforce the collection of an award under section 768.73 , Florida Statutes, in a case where the cause of action arose prior to the repeal date of the statute but the lawsuit was filed after the repeal date as no jury verdict was entered prior to July 1, 1995. Sincerely, Robert A. Butterworth Attorney General RAB/tgh 1 Section 768.73 (1)(a), Fla. Stat. (1995). 2 Section 768.73 (3), Fla....

...serving a motion for new trial or re-hearing, and if a motion for new trial or rehearing is timely served, until it is determined; provided execution or other final process may be issued on special order of the court at any time after judgment."). 7 Section 768.73 (6), Fla....

...The motion for a new trial fails to identify any error in the instruction. C. The punitive damages are not excessive. Because Flying Fish claims a violation of Florida law, the jury instructions and verdict form on punitive damages mirror the language of Section 768.73(1), Florida Statutes, which governs the amount of punitive damages: (l)(a) Except as provided in paragraphs (b) and (c), an award of punitive damages may not exceed the greater of: 1....

...When the misrepresentations were made to Flying Fish, did a manager, officer, or director of Giant have a specific intent to harm Flying Fish and did the conduct of Giant’s manager, director, or officer in fact harm Flying Fish?. (Doc. 182 at 2-3) By answering affirmatively each question, the jury in effect applied Section 768.73(l)(c) and removed the limit on punitive damages....

...Alexander, 123 So.3d 67, 81 (Fla. 3d DCA 2013) (Rothenberg, J.). The $3 million award of punitive damages is twelve times the $250,000 award of compensatory damages. 6 The “3-to-l-ratio” presumption in Giant’s motion, in Brown , and in Alexander derives from Section 768.73(l)(a), which limits punitive damages to the greater of three times the compensatory damages and $500,000. However, by operation of the statutory provision that states “[e]xcept as provided in paragraphs (b) and (c),” Section 768.73(l)(a) explicitly excludes Sections 768.73(l)(b) and (l)(c) from the “3-to-l-ratio” presumption. Section 768.73(l)(c), which removes the limit on punitive damages, applies “[w]here the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant.” The evidence supports the jury’s finding that Giant “had a specific intent to harm” Flying Fish....

...eed to do what we can to sell bikes.”); Pl.’s Ex. 93 at 1 (“At this point [Kane] has ZERO idea about what is about to take place. I played things very cool, remained *975 calm and [Kane] is all BARK and no BITE as I suspected.”)) Thus, under Section 768.73(l)(c), the jury removed the limit on punitive damages and awarded an amount that is twelve times the compensatory damages....

PER CURIAM. We agree with the State that the trial court’s order, directing the State to pay attorney’s fees for its sixty percent interest in a punitive damage award, contravenes section 768.73(4), Florida Statutes (1991), 1 and Gordon v. State, 608 So.2d 800 (Fla.1992), as the contract for representation was entered into after the effective date of the statute. Accordingly, the cause is reversed and remanded for further consistent proceedings. . Section 768.73(4) provides in pertinent part: "Claimant’s attorney’s fees, if payable from the judgment, shall, to the extent that they are based on the punitive damages, be calculated based only on the portion of the judgment payable to the clai...

PER CURIAM. Affirmed. See § 768.73(l)(a), (b), Fla.Stat. (1997).

...Debt- or, and culminated in the Debtor’s destruction. It is thus within the discretion of the Court to award punitive damages in the instant case. To determine the amount of punitive damages the Court may award, Plaintiff contends Florida Statute § 768.73(l)(a) should control. Florida Statute § 768.73 states that “in any civil action based on ... misconduct in commercial transactions ... punitive damages shall not exceed three times the amount of compensatory damages.” However, § 768.73 only applies to causes of action arising after July 1, 1986....

...cting COPD/emphysema 3 after smoking 2 In its cross-appeal, R.J. Reynolds argues that should this Court reverse the directed verdict, R.J. Reynolds would, in the alternative, be entitled to a directed verdict pursuant to the post-1999 version of section 768.73(2), Florida Statutes....

trial. Id. at 1013. We also determined that section 768.73(l)(a), Florida Statutes (1989) did not apply

...Given the ratios in other cases, the ratio of punitive to compensatory damages in this case is not unconstitutionally excessive. C. Comparison of Punitive Damages and Civil Penalties in Comparable Cases In comparable cases, the civil penalty is often three times the compensatory award. See, e.g., § 768.73(1)(a)1., Fla....

...On the main appeal, we hold that, because the specific tobacco-related disease that caused the Engle class member’s death and gave rise to this claim manifested after October 1, 1999, the trial court erred by declining to apply the post-1999 version of section 768.73, Florida Statutes, which bars successive awards of punitive damages under the circumstances here....

...nce, fraud by concealment, and conspiracy to commit fraud by concealment. The trial court granted the plaintiff leave to amend his complaint to add claims for punitive damages. Before trial, the defendants sought to invoke the current version of section 768.73(2)(a), Florida Statutes, which generally bars successive punitive damages awards against a defendant “in any action alleging harm from the same act or single course of conduct.” The defendants argued that section 768.73(2)(a) barred a punitive damages award because: (1) the plaintiff’s claim arose after the October 1, 1999 effective date of the statute; and (2) each defendant had already paid over $150 million in punitive damages in tobacco lawsuits based on the same conduct....

...against Philip Morris, and assessed $200,000 in punitive damages against R.J. Reynolds. 2  In post-trial motions, the defendants argued that the plaintiff’s claim for punitive damages was barred by the current version of section 768.73(2)(a)....

...r $3.7 million to account for the jury’s comparative fault determination. This appeal and cross-appeal ensued. Main Appeal We first address the defendants’ argument that the trial court erred by refusing to apply the post-1999 version of section 768.73....

...Additionally, the plaintiff argues that the post- 1999 statute’s limitation on successive punitive damages awards is unconstitutional. A trial court’s ruling on an issue of statutory interpretation is subject to de novo review. Headley v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017). Section 768.73(2)(a), Florida Statutes, as amended in 1999, provides that “punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant . . . in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.” § 768.73(2)(a), Fla. Stat. (1999). The amended version of section 768.73 applies “to all causes of action arising after the effective date of [the] act,” which was October 1, 1999. § 768.73(5), Fla. Stat. (1999); Ch. 99-225, § 23, Laws of Fla. Before the 1999 amendment, section 768.73 had no such bar on successive awards of punitive damages. 3  The question for this court, therefore, is whether the plaintiff’s cause of action arose after October 1, 1999. In civil cases,...

...Nationwide Mut. Fire Ins. Co. v. MacDonald, 645 So. 2d 1057, 1058 (Fla. 4th DCA 1994). However, in Engle wrongful death cases, this court has looked to the time when the injury causing the smoker’s death manifested in determining which version of section 768.73 applied....

...Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute governs.”) (citation omitted), quashed on other grounds, 232 So. 3d 294 (Fla. 2017); R.J. Reynolds Tobacco Co. v. Buonomo, 138 So. 3d 1049, 1052 (Fla. 4th DCA 2013) (holding that the 1995 version of section 768.73 applied in an Engle wrongful death case where the smoker began suffering from COPD in 1995, which caused his death in 2008: “It is ....

...3d 684, 689 (Fla. 1st DCA 2017), the First District reasoned that, although a cause of action for wrongful death usually accrues upon the decedent’s death, “Engle-progeny cases are different.” The Allen court held that the pre-1999 version of section 768.73 applied to an Engle progeny personal injury suit that converted to a wrongful death action after the smoker died....

...e claim would impair those substantive rights.” Id. at 690 (emphasis added) (citation omitted). In R.J. Reynolds Tobacco Co. v. Evers, 232 So. 3d 457 (Fla. 2d DCA 2017), the Second District extended Allen and held that the pre-1999 version of section 768.73 applied to an Engle progeny suit that was initially brought as a wrongful death action after the smoker died of lung cancer in 2007....

...It is of no consequence that the 5 lawsuits had not been filed prior to the 1999 amendment, as the relevant inquiry is when did the claims arise or accrue. Recently, this court agreed “with the First and Second District Courts of Appeal in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker’s death.” R.J....

...4D16–4310, 43 Fla. L. Weekly D1037, 2018 WL 2126722 (Fla. 4th DCA May 9, 2018) (citing Allen and Evers). The holding in Konzelman was, however, limited to the facts before us. Specifically, we agreed with the plaintiff’s argument that the 1999 amendment to section 768.73 did not apply to an Engle class member’s personal injury claim that accrued before the effective date of the statute, even if the claim was later converted to a wrongful death action after the effective date of the statute....

...recognized an exception to the general rule that a wrongful death claim accrues or arises upon the injured party’s death, preserving an Engle class member’s vested rights where the class member eventually dies of a tobacco-related illness that manifested before the 1999 amendment to section 768.73....

...member’s personal injury survivor claim effectively carries over to a merged or amended wrongful death claim upon death for purposes of determining when a cause of action arises. However, all Engle wrongful death actions do not necessarily arise before the 1999 amendment to section 768.73, on the theory that they all relate back to the 1994 Engle class action complaint....

...We cannot agree with the sweeping proposition that all applicable statutory law in an Engle progeny case is necessarily frozen in place as of the time of the original 1994 Engle class action complaint. 6  Turning to the facts of this case and the plain text of the current version of section 768.73, we find that the plaintiff’s wrongful death cause of action arose after October 1, 1999....

...After all, the Legislature intentionally avoided any impairment of vested rights by clarifying that its 1999 amendment to the punitive damages statute would apply only to those claims “arising after the effective date of [the] act,” which was October 1, 1999. § 768.73(5), Fla....

...1999 7 statute arising from the harm caused by her lung cancer that manifested in 2003. Thus, because the smoking-related illness causing Mrs. Martin’s death did not develop until after the 1999 amendment to section 768.73, we find that the post-1999 version of section 768.73 applies to this case. The plaintiff suggests that even if the post-1999 version of the statute applies to this case, it is unconstitutional. However, the plaintiff’s constitutional challenge to the current version of section 768.73 is not properly before us because the plaintiff did not notice the Attorney General or the State Attorney as required by Florida Rule of Civil Procedure 1.071 when challenging the constitutionality of a state statute. Therefore, applying the current version of section 768.73 to this case, we find that section 768.73(2)(a) bars a punitive damages award to the plaintiff because the defendants established before trial that punitive damages had previously been awarded against them in other actions “alleging harm from the same act or single course of...

...And even if the exception in (2)(b) did apply, the plaintiff still could not recover punitive damages because “[a]ny subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.” § 768.73(2)(b), Fla....

...1 Upon the Mieles’ filing a confirmation action in the district court, Prudential tendered two checks to the Mieles. One of the checks, representing 60% of the punitive damages award, was made out to the State of Florida General Revenue Fund, pursuant to Fla.Stat. Ann. § 768.73 (1991). 2 The other check was made out to the Mieles and covered the balance of the punitive damages award. The Mieles again sought to confirm the arbitration award, contending that they were entitled to the entire punitive damages award because § 768.73(2) did not apply to arbitration awards. 3 The district court disagreed, and the Mieles appealed. We certified the following question to the Florida Supreme Court: Does Florida Statute § 768.73 apply to arbitration awards? Miele v....

...Accordingly, we REVERSE and REMAND to the district court for further proceedings consistent with the Florida Supreme Court’s holding. 4 1 . The Mieles contend that, contrary to the district court’s finding, the AAA awarded them twice this amount in punitive damages. We conclude that this contention is without merit. 2 . Section 768.73(2) has since been amended to provide for 35% of a punitive damage award to be paid to the State of Florida. 1992 Fla. Laws ch. 92-85, § 2. 4 . In light of the Florida Supreme Court’s conclusion that § 768.73(2) does not apply to arbitra- 3 .The Mieles also contended (1) that even if § 768.73(2) applied to arbitration awards, it did not apply to their arbitration award, and (2) that application of § 768.73(2) to arbitration awards is unconstitutional....

...which leaves specific or individual causation (the connection 5 Reynolds raised the issue on appeal that the punitive damages award was “excessive and in violation of due process . . . .” We note, however, that they never invoked the provisions of section 768.73(2), Florida Statutes (2018) in the lower court. 7  between the Engle defendants’ addictive cigarettes and the injury that an individual plaintiff actually sustained) to be determined on an individual basis....

...evidence of gross negligence or intentional misconduct to support the recovery of” punitive damages, and provide standards for the imposition of punitive damages in certain instances. Id. Within Chapter 99-225, the legislature also made substantive revisions to section 768.73, Florida 4 The Florida State University College of Law has digitized the Florida Statutes for 1941 and 1955 to 1996....

...Procedural and substantive laws differ in that "substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those *1178 duties and rights." Mancusi, 632 So.2d at 1358. In Mancusi, the supreme court found that section 768.73(1)(a), Florida Statutes (1987), which limits punitive damages to no more than three times the compensatory damage award, was substantive in nature because the statute affects a plaintiff's right to obtain punitive damages instead of outlining procedures to recover them....

not a civil action as that term is used in section 768.73 Florida Statutes (1991)). However, section