• Understanding Punitive Damages in Florida
  • August 28, 2013 | Author: Rocco J. Carbone
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Jacksonville Office
  • Key Points:

    • In Florida, an award of punitive damages is a two-step process.

    • The most important defense to a punitive damage claim occurs at the evidentiary hearing, where the trial judge determines if there is a reasonable evidentiary basis to allow punitive damages.

    • Given the increase in punitive damage claims, every insured, insurer and attorney must be prepared to deal with them.


    The words "punitive damages" strike fear into the heart of every defendant. Recently, there has been a notable increase in punitive damage claims. Every insured, insurer and attorney needs to understand how and why a court will allow a claim for punitive damages to proceed to trial. The following article attempts to answer these questions, while offering the reader guidance on how to try to defend against them.

    Punitive damages are meant to "punish a defendant or to act as a deterrent." First Specialty Ins. v. Caliber One Indem. Co., 988 So.2d 708, 713 (Fla. 2d DCA 2008). Section 768.72, Florida Statutes, states that no claim for punitive damages is 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." However, no showing of "financial worth" shall occur until after the court has made a determination regarding whether punitive damages are allowed.

    In Florida, an award of punitive damages is a two-step process. First, there is a hearing before the trial court to determine whether there is sufficient evidence to warrant presenting a claim for punitive damages to the jury. Second, the plaintiff must establish to the jury, based on clear and convincing evidence, that punitive damages should be awarded. This article deals with the most important and onerous step in the process-the evidentiary hearing before the trial court.

    At trial, a defendant is only liable for punitive damages if there is clear and convincing evidence of their intentional misconduct or gross negligence. However, in order to permit a punitive damage claim to reach a jury, the trial court must merely determine that there is reasonable evidentiary basis for intentional misconduct or gross negligence in the record. Intentional misconduct means that "[t]he 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." Gross negligence means that "[t]he 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."

    Unfortunately, it is not entirely clear what each court will consider to be a reasonable basis for a punitive damages claim. Procedurally, the trial court analyzes a claim for punitive damages in the same way it considers whether a complaint sufficiently pleads a cause of action. The appellate standard of review for such a claim is de novo, rather than an abuse of discretion, due to the fact that the trial court must make a legal determination. While it is not always entirely clear what will constitute a sufficient showing for a reasonable basis, several District Courts of Appeal have weighed in on the question, notably the First, Fourth and Fifth.

    The Fourth and Fifth District Courts have held the trial court is not to evaluate and weigh the evidence proffered. In The Estate of Despain v. Avante Group, Inc., the Fifth District Court stated, "[d]iscretion is not the standard that [the court] should apply... rather, the finding of a reasonable basis of the statute requires a legal determination by the Court that the requirements of section 768.72 (1) have been met." 900 So.2d 637, 644 (Fla. 5th DCA 2005) (emphasis added); see also, Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005). This legal determination must be based on either a proffer, or evidence in the record, but it cannot be based solely on the plaintiff's counsel's own assertions. The First District Court of Appeal in Tiger Point Golf & Country Club v. Hipple, 977 So.2d 608 (Fla. 1st DCA 2007) has firmly established that the standard for punitive damages is the equivalent to criminal manslaughter. In this regard, the plaintiff must show that the defendant's behavior transcends the level of simple negligence. The conduct must enter the realm of wanton intentionality, exaggerated recklessness or such an extreme degree of negligence as to parallel an intentional and reprehensible act. See, White Construction Co. v. DuPont, 455 So.2d 1026, 1028 (Fla. 1984) (No reasonable basis for punitive damages where, although owner and employer were aware that the brakes of CAT 988 loader that injury and permanently disabled plaintiff did not work and had not worked for some time).

    Conduct which did rise to the level sufficient to warrant punitive damages is exemplified by the Fifth District's opinion in The Estate of Despain, 900 So.2d 637, 644-645 (Fla. 5th DCA 2005). The Estate of Despain was a nursing home negligence case in which the decedent suffered from a number of mental and physical illnesses prior to being admitted. The nursing home was aware of these illnesses, as well as the decedent's increased risk of weight loss, dehydration, malnourishment and her difficulty with eating. Even knowing this, the nursing staff failed to adequately monitor her food and fluid intake and overmedicated her. She rapidly lost weight, ultimately weighing 88 pounds before her death, suffered from dehydration and developed aspiration pneumonia, which led to her death. Also, the records regarding the decedent's care were "incomplete, missing or had been fabricated, which made assessment, treatment and referrals of the decedent much more difficult." All of this occurred over a three-month period. Based on the above, the court found that there was enough evidence for the court to allow a claim for punitive damages to proceed.

    An amendment to add a claim for punitive damages is not guaranteed as a matter of right. The Florida Supreme Court has consistently stated that Florida's punitive damages statute "creates a substantive legal right not to be subject to a punitive damages claim and 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) (emphasis added); see also, Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991). In other words, there is a positive legal right to be free from financial worth discovery until the trial court first makes an affirmative finding that there is an evidentiary basis for punitive damages. Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991). Thus, the burden on the plaintiff is significant; the trial court must engage in a fact review to determine whether there exists a sufficient basis to override the substantive rights of the defendant not to be subjected to punitive damages.

    Additionally, Florida's Fourth District Court of Appeal has reminded trial courts to exercise restraint in allowing punitive damages. In Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990 (Fla. 4th DCA 2004), (citing Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002)), the Fourth District Court explained its reluctance as follows:

    We [urge] restraint upon the courts in assuring that the defendant's behavior represents more than an even gross negligence prior to allowing the imposition of punitive damages in order to ensure the damages serve their proper function. While we remain hesitant to have trial courts routinely remove the question from the jury's consideration, we note that a directed verdict may be properly granted unless the evidence establishes the behavior in question involves the following type of misconduct:

    The character of negligence necessary to sustain an award of punitive damages must be of a 'gross and flagrant character, evidencing reckless disregard of human life, or of the safety of persons exposed to the dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or disregard of the safety and welfare of the public, or that the reckless indifference of the rights of others which is equivalent to an intentional violation of them.'

    884 So.2d at 1000.

    Thus, the attorney defending such claims should keep in mind that, following one's arguments against the sufficiency of the claim, the court should be reminded of this substantive legal right and the onerous burden the plaintiff has in establishing its claim.

    In conclusion, with punitive damage claims on the rise, each insured, insurer and attorney must be aware of how best to defend these claims before they are put before a jury. Utilizing the foregoing and arguments, one can begin to formulate a successful defense to defeat a punitive damage claim.