Punitive Damages
“Under Florida law, the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future.” Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017) (quotation omitted). This is because punitive damages are reserved for truly culpable behavior and are intended to “express society’s collective outrage.” KIS Grp., LLC v. Moquin, 263 So. 3d 63, 65-66 (Fla. 4th DCA 2019). See also, Bistline, 215 So. 3d at 611 (quotation omitted) (“[P]unitive damages are reserved for particular types of behavior which go beyond mere intentional acts.”).
Standard
Punitive damages are provided for in Florida Statute § 768.72, which states “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2).
At least in this context, intentional misconduct means, “the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Fla. Stat. § 768.72(2)(a). Gross negligence “means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. at (2)(b).
There are additional requirements for punitive damages, “[i]n the case of an employer, principal, corporation, or other legal entity ….” Fla. Stat. § 768.72(3). Specifically, “punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and: (a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct; (b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct ….” Id. (emphasis added).
Leave of Court Required in Order to Plead
In Florida, punitive damages cannot be requested in an initial complaint. Instead, “a plaintiff is required to obtain leave from the trial court to amend the complaint before punitive damages may be asserted and is further required to make an evidentiary showing that would provide a reasonable basis for recovery of such damages.” Espirito Santo Bank v. Rego, 990 So. 2d 1088 (Fla. 1st DCA 2007).
Florida law provides that “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Fla. Stat. § 768.72(1).
Ordinarily a defendant’s financial information is not discoverable prior to obtaining a final judgment. Punitive damages are an exception to that rule, so such claims could be used as an excuse to seek financial information. For this reason, the Florida Supreme Court has held that Fla. Stat. § 768.72(1) “create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995).
In order to secure that right, “[t]he statute requires the trial court to act as a gatekeeper and precludes a claim for punitive damages where there is no reasonable evidentiary basis for recovery.” Bistline, 215 So. 3d at 611. Once a reasonable evidentiary basis had been made, plaintiffs may then amend their complaint “to assert a claim for punitive damages as allowed by the rules of civil procedure.” Fla. Stat. § 768.72. See also Fla. R. Civ. P. 1.190(f).
Reasonable Evidentiary Basis to Recover
As noted, under Fla. Stat. § 768.72, “a plaintiff is required to obtain leave from the trial court to amend the complaint before punitive damages may be asserted and is further required to make an evidentiary showing that would provide a reasonable basis for recovery of such damages.” Espirito Santo Bank v. Rego, 990 So. 2d 1088 (Fla. 1st DCA 2007).
However, plaintiffs need not prove a claim for punitive damages at the pleading stage. Will v. Sys. Eng’g Consultants, 554 So. 2d 591, 592 (Fla. 3d DCA 1989). Rather, plaintiffs need only establish factual allegations that form a reasonable basis for the claim. Id. See also, Meadowbrook Health Care Servs. v. Acosta, 617 So. 2d 1104, 1104 (Fla. 3d DCA 1993). The Court simply must find that the facts and evidence proffered are sufficient to establish a basis for punitive damages. See Globe Newspaper Co., 568 So. 2d at 519.
The threshold is so low at the amendment stage that “merely a representation” of what the evidence will show, rather than actual or admissible evidence, may be enough. Estate of Despain v. Avante Grp. Inc., 900 So. 2d 637, 644 (Fla. 1st DCA 2005). See also, Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1190–91 (Fla. 4th DCA 2005) (reflecting that mere hearsay can satisfy the amendment standard in Fla. Stat. § 768.72(1)).
An evidentiary hearing is not required to make this determination. See Despain, 900 So. 2d at 642; Solis v. Calvo, 689 So. 2d 366, 369 n.2 (Fla. 3d DCA 1997); Strasser v. Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996). The Court may not properly prejudge the proffered evidence supporting the claim for punitive damages in deciding whether the plaintiff has met its burden. Dolphin Cove Ass’n v. Square D. Co., 616 So. 2d 553, 553 (Fla. 2d DCA 1993).
At this stage, “[t]he Florida courts do not require a fact intensive investigation into the merits. Instead, the Florida courts entertain the punitive damage issue by way of a motion to dismiss or a motion to strike, not a summary judgment motion.” Porter v. Ogden, Newell & Welch, 241 F.3d 1334, 1340 (11th Cir. 2001) (discussing Florida law and Fla. Stat. § 768.72). See also, Will, 554 So. 2d at 592; Solis, 689 So. 2d at 369.
Florida law contemplates that in most instances the determination on leave to claim punitive damages would be based on discovery responses. See Fla. Stat. § 768.72(1) (“The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages.”). Indeed, Courts have held that “[a] reasonable showing by evidence in the record would typically include depositions, interrogatories, and requests for admissions that have been filed with the court.” Estate of Despain, 900 So. 2d at 642.
In lieu of relying on evidence already in the record, the party seeking leave to claim punitive damages may do so by proffering the evidence, which would provide a reasonable basis for recovery of punitive damages. Fla. Stat. § 768.72(1). A proffer “is merely a representation of what evidence the defendant proposes to present and is not actual evidence.” Estate of Despain, 900 So. 2d at 642. However, while the proffer itself is not evidence, the evidence proffered has to be admissible.
Illustrative Cases
In Tilton v. Wrobel, 198 So. 3d 909, 911 (Fla. 4th DCA 2016), the Fourth District held that the trial court erred in granting leave to amend to seek punitive damages on a claim of defamation per se. The trial court committed to errors. Id. First, it failed to determine whether the evidentiary proffer was sufficient to allow a jury to conclude, by clear and convincing evidence, that petitioners knew the statement was false. Id. Second, if the court did evaluate the sufficiency of the proffer, then it erred in determining that it was sufficient because respondent’s self-serving affidavit was legally insufficient to show petitioners’ knowledge of the falsity of the alleged defamatory statement. Id.
In Bistline, a trial court granted a motion to amend the complaint to add a claim for punitive damages. 215 So. 3d at 610. The plaintiff in that case advised the court that “[t]he standard for determining whether a claimant has established a ‘reasonable basis’ for recovery [of punitive damages] is similar to that of whether a claimant has stated a cause of action.” Id. “The court emphasized that it was required to accept the plaintiff’s allegations as true and concluded the allegations established a reasonable basis for recovery of punitive damages.” Id.
On appeal, the Fourth District noted, “[i]t appears the trial court misapplied our decision in [a prior decision] and accepted Rogers’s allegations as true believing that the inquiry ‘is akin to determining whether the pleader has stated a cause of action.’” Bistline, 215 So. 3d at 610 (quotation omitted). The Court held that “[t]he procedural protection of this statute [Fla. Stat. § 768.72] requires more than mere allegations. We agree with Petitioners that an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true.” Id. (emphasis added).
Instead, “[t]he court should have determined whether Rogers had established a reasonable evidentiary basis to recover punitive damages against Petitioners based on ‘intentional misconduct,’ as defined in the statute, and whether there is a reasonable evidentiary showing that the conduct rises to a level of culpability sufficient to support punishment.” Bistline, 215 So. 3d at 611 (emphasis added). Since the trial court had not applied the correct standard, the order allowing punitive damages to be pled was reversed. Id.
In Fla. Hosp. Med. Servs., LLC v. Newsholme, 255 So. 3d 348 (Fla. 4th DCA 2018), the Fourth District found that the trial court applied the wrong standard in allowing plaintiffs to amend their complaint to add a claim for punitive damages. Specifically, the trial court “failed to adequately consider whether the proffer was sufficient to establish a reasonable evidentiary basis for recovery of punitive damages, and simply accepted Plaintiffs’ allegations as true, as it did in Bistline.” Id. at 350–51. The Court reversed the order allowing punitive damages to be pled. Id.
Expanding on its prior precedent on punitive damages, in KIS Grp., LLC v. Moquin, 263 So. 3d 63, 66 (Fla. 4th DCA 2019), the Fourth District held that the analysis required on a motion for summary judgment cannot be substituted for the analysis required under Fla. Stat. § 768.72, which as quoted above, “necessarily requires the court to weigh the evidence and act as a factfinder.”