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Florida Statute Section 768.72 governs claims for punitive damages, and provides:

In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. 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.

768.72(1), Fla. Stat.

To support an award of punitive damages, Plaintiff must establish that the Defendant’s conduct rises to the level of intentional misconduct or gross negligence. §768.72, Fla. Stat. Intentional misconduct and gross negligence are defined by the Statute as follows:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

768.72(2)(a) and (b), Fla.Stat. “[A]n evidentiary hearing is not required.” E.g., Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4^th DCA 2016)(citing Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996)). By its own plain language, §768.72 requires only a reasonable showing in support of a reasonable basis for punitive damages. Strasser, 677 So.2d at 23; see also §768.72(1), Fla. Stat. (“no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages”).

The procedure a court must follow to resolve a motion for leave to amend to add a claim for punitive damages. As explained by the Fourth District Court of Appeal:

First, the movant must attach the proposed amended pleading to the motion seeking leave to amend in compliance with Florida Rule of Civil Procedure 1.190(a).” Second, the ‘proffer” or other evidence of record to support the punitive damages claim must be served prior to the hearing on the motion for leave to amend. Third, the trial court must make an affirmative finding that the plaintiff made a reasonable showing by evidence, which would provide a reasonable evidentiary basis for recovering such damages if the motion to amend is granted.

Event Depot Corp. v Frank, 269 So.3d 559, 561-62 (Fla. 4^th DCA 2019)(internal citations and quotation marks omitted, and emphasis added).

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Florida Statute Section 768.72 governs claims for punitive damages.

Punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others. W.R. Grace & Co. v. Waters, 638 So.2d 502, 503 (Fla. 1994). The underlying policy objectives of punitive damages are to serve as punishment and deterrence. Id. at 504.

To support an award of punitive damages, Plaintiff must establish by clear and convincing evidence that the Defendant’s conduct rises to the level of intentional misconduct or gross negligence. §768.72, Fla. Stat. Intentional misconduct and gross negligence are defined by the Statute as follows:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

768.72(2)(a) and (b), Fla.Stat. “[A]n evidentiary hearing is not required.” E.g., Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4^th DCA 2016)(citing Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996)). By its own plain language, §768.72 requires only a reasonable showing in support of a reasonable basis for punitive damages. Strasser, 677 So.2d at 23; see also §768.72(1), Fla. Stat. (“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”).

Employers, principals, corporations, and other legal entities may be subject to punitive damages for the intentional conduct or gross negligence of their agents or employees if:

• The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
• The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
• The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

 Fla. Sta. 768.72(3)

The procedure a Florida state court must follow to resolve a motion for leave to amend to add a claim for punitive damages is as follows:

First, the movant must attach the proposed amended pleading to the motion seeking leave to amend in compliance with Florida Rule of Civil Procedure 1.190(a).” Second, the ‘proffer” or other evidence of record to support the punitive damages claim must be served prior to the hearing on the motion for leave to amend. Third, the trial court must make an affirmative finding that the plaintiff made a reasonable showing by evidence, which would provide a reasonable evidentiary basis for recovering such damages if the motion to amend is granted.

Event Depot Corp. v Frank, 269 So.3d 559, 561-62 (Fla. 4^th DCA 2019)(internal citations and quotation marks omitted, and emphasis added).

In Florida state court a prayer for punitive damages may not be included in an initial complaint and may only be sought through an amended complaint if the evidence in the record or proffered by the plaintiff reasonably shows a right to claim punitive damages under Florida Statutes section 768.72(1). Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1222 (Fla. 2016); see also Progressive Select Ins. Co. v. Lloyd's of Shelton Auto Glass, LLC, 396 So. 3d 916, 922-23 (Fla. 2d DCA 2024).

In contrast, because Federal courts have found §768.72 to be procedural in nature and in conflict with Federal Rule of Civil Procedure 8(a)(3), Federal courts apply Rule 8(a)(3) in place of § 768.72(1) and do not require an evidentiary showing or court approval to plead punitive damages. Cohen v. Office Depot, Inc., 184 F.3d 1292, 1298-99 (11th Cir. 1999).

A demand for punitive damages is not a separate or distinct cause of action. It is dependent on and auxiliary to an underlying claim.  Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1222 (Fla. 2016)(citing Liggett Grp., Inc. v. Engle, 853 So.2d 434, 456 (Fla. 3d DCA 2003)). For this reason, neither the statute of limitations nor principles of equitable tolling preclude a plaintiff from requesting punitive damages on properly pled counts. Id.

On appeal, a trail court’s decision to grant or deny a motion to amend a complaint to assert a claim for punitive damages is reviewed de novo. The sufficiency of the evidence proffered in support of punitive damages must be viewed in a light favorable to the moving party. Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock Joint Venture, L.P., 16 So. 3d 1006, 1009 (Fla. 1st DCA 2009).

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Supreme Court: Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1232-33 Fla. 2016); W.R. Grace & Co. v. Waters, 638 So.2d 502, 203 (Fla. 1994).

First District: Blundell v. R.J. Reynolds Tobacco Co., 324 So.3d 1014, 1016-18 (Fla. 1st DCA 2021).

Second District: White v. Boire, 320 So.3d 814, 816 (Fla. 2d DCA 2021).

Third District:  Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230, 232-33 (Fla. 3d DCA 2010).

Fourth District: Naso v. Hall, 338 So.3d 283 (Fla. 4^th DCA 2022).

Fifth District: Varnedore v. Kopeland, 210 So.3d 741, 744-747 (Fla. 5^th DCA 2017).

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2 Issues And Considerations

(1) Section 768.72 does not allow a defendant to proffer evidence to oppose the Plaintiff’s Motion. Strasser v. Yalamanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996). While a defendant may argue over the sufficiency of evidence presented, and the inferences to be drawn from the proffered evidence, a defendant cannot inject new evidence to counter a request to amend to assert a punitive damages claim. See id.

(2) “If there is any evidence tending to show that punitive damages could be properly inflicted, even if the Court be of the opinion that the preponderance of evidence is the other way, the Court should leave the question to the jury.” Jonat Properties, Inc. v. Gateman, 226 So.2d 703, 705 (Fla. 3^rd DCA 1969)(emphasis added).

(3)  While at trial a plaintiff is obligated to satisfy the trier of fact, based on clear and convincing evidence (g., Bailey v. St. Louis, 196 So.3d 375 (Fla. 2^nd DCA 2016)) that he is entitled to punitive damages, that is not the standard at the pleading stage. “If there is any evidence tending to show that punitive damages could be properly inflicted, even if the Court be of the opinion that the preponderance of evidence is the other way, the Court should leave the question to the jury.” Jonat Properties, Inc. v. Gateman, 226 So.2d 703, 705 (Fla. 3^rd DCA 1969)(emphasis added).

(4) To rise to the level of intentional misconduct, a defendant must have knowledge that there is a high probability that injury or damage would result due to their conduct. Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219, 1232, (Fla. 2016).

(5) “A corporation may be held vicariously liable for punitive damages based on the reckless and wanton misconduct of its employees so long as some fault on the part of the corporation, although not equally reckless, is shown…As a general rule, a corporate entity continues to be liable for its past tortious acts, regardless of any change in its ownership, its directors, or the personnel through whom it acts”). Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242, 252 (Fla. 1st DCA 1984).

(6) To seek “punitive damages claim against a corporate entity based on an employee’s conduct, a reasonable showing must be made that: (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; or (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.” Tallahassee Memorial Health Care v. Dukes, 272 So.3d 824, 25-26 (Fla. 1^st DCA 2019).

(7) There are two methods by which a corporation may be held liable for punitive damages: “(1) vicarious liability based on the willful and malicious actions of an employee with a finding of independent negligent conduct by the corporation; or (2) direct liability based on the willful and malicious actions of managing agents of the corporation. Under the vicarious liability theory, it is not necessary for a plaintiff to establish that the corporate employer acted with the same heightened culpability as the employee to allow punitive damages. It is sufficient if the plaintiff establishes ordinary negligence on the part of the corporate employer. As to the second method, the acts of the managing agent itself must be willful and malicious to warrant the imposition of punitive damages on the corporation.” NME Props. v. Rudich, 840 So.2d 309 (Fla. 4th DCA 2003).

(8) Courts may consider various aggravating and mitigating factors in punitive damages cases, such as “(1) The amount of the plaintiff’s litigation expenses; (2) the seriousness of the hazard to the public, (3) the profitability of the marketing misconduct (increased by an appropriate multiple); (4) the attitude and conduct of the enterprise upon discovery of the misconduct; (5) the degree of the manufacturer’s awareness of the hazard and of its excessiveness; (6) the number and level of employees involved in causing or covering up the marketing misconduct; (7) the duration of both the improper marketing behavior and its cover-up; (8) the financial condition of the enterprise and the probable effect thereon of a particular judgment; and (9) the total punishment the enterprise will probably receive from other sources.” Johns- Manville Sales Corp. v. Janssens, 463 So.2d 242, 248 (Fla. 1^st DCA 1984)( (quoting Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1319 n.5 (1976)).

(9) A plaintiff may move for punitive damages shortly before Burrv. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996)(holding that denial of plaintiff’s motion to amend to seek punitive damages filed one month before trial “was an abuse of discretion in light of Florida’s liberal policy of allowing amendments to pleadings.”).

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