punitive damages claim in Florida

2026A plaintiff’s ability to assert a claim for punitive damages is governed by section 768.72, Florida Statutes, which provides that “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2020); see Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (explaining that section 768.72 creates “a substantive legal right not to be subject to a punitive damages claim . . . until the trial court makes a determinatio

2026That said, the Florida Supreme Court explained section 768.72 “create[d] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (emphasis added).

2024Ins. v. Perlmutter, 376 So. 3d 24 , 32 (Fla. 4th DCA 2023) 30 (recognizing that "trial courts have a 'gatekeeping' role to preclude a punitive damages claim where no reasonable evidentiary basis for recovery exists" (emphasis added) (quoting Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017))); cf. 701 Palafox, LLC v. Scuba Shack, Inc., 367 So. 3d 624 , 627–28 (Fla. 1st DCA 2023) ("In reviewing whether the trial court's ruling that Scuba Shack made the necessary showing under section 768.72 to allow it to assert a claim for punitive damages, we view the evidence in the light most favo

2024See Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (Section 768.72 “create[d] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.”); DeSanto v. Grahn, 362 So. 3d 247 , 248 (Fla. 4th DCA 2023) (per curiam) (“[P]unitive damages are reserved for truly culpable behavior and are intended to ‘express society’s collective outrage.’”); Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017) (“[P]unitive 2

2026This error alone warrants 7 reversal.”); Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA 2017) (“Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim.”); see also Athienitis v. Makris, 346 So. 3d 732 , 734 (Fla. 2d DCA 2022) (“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” (quoting Austin v. Austin, 120 So. 3d 669, 675 (Fla. 1st DCA 2013))).

2025Perlmutter, 376 So. 3d at 32; Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA 2017) (“Absent sufficient allegations, there would be neither a reason nor a framework for analyzing the proffered evidentiary basis for a punitive damages claim.”).

2024Consequently, "[u]nder the de novo standard, this [c]ourt views the record evidence and the proffered evidence in the light most favorable to the plaintiff and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages." Cook, 371 So. 3d at 961 (citing Est. of Despain, 900 So. 2d at 644 ); see also CCP Harbour Island, 373 So. 3d at 27 ("In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party." (quoting Case v. Newman, 154 So. 3d 1151, 11

2024Consequently, "[u]nder the de novo standard, this [c]ourt views the record evidence and the proffered evidence in the light most favorable to the plaintiff and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages." Cook, 371 So. 3d at 961 (citing Est. of Despain, 900 So. 2d at 644 ); see also CCP Harbour Island, 373 So. 3d at 27 ("In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party." (quoting Case v. Newman, 154 So. 3d 1151, 11

2024See, e.g., Perlmutter, 376 So. 3d at 34 ("stress[ing] that the preliminary determination of whether the movant made a reasonable showing by evidence of a reasonable basis for allowing a punitive damages claim is to be made without weighing evidence or witness credibility"); Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 645 (Fla. 5th DCA 2005) ("stress[ing]" in determining right to plead a claim for punitive damages that "[w]hether [the claimant] will be able to prove entitlement to an award will depend on the jury's view of the evidence submitted").

2024While the trial court can certainly consider this aspect in weighing the parties’ proffer in support of their respective positions, a proffer of evidence supporting a punitive damages claim “is merely a representation of what evidence the [party] proposes to present and is not actual evidence.” Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th DCA 2005) (quotation omitted).

2026Our Court has held that this provision “creates a substantive legal right not to be subjected to a punitive damages claim and ensuing -3- financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996) (citing Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)).

2009The “section creates a substantive legal right not to be subjected to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.” Id.

2021On that point, the Henn court stated that it "read[s] section 768.72 as creating a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury." Id. at 1335 ; see also Petri Positive Pest Control, Inc. v. CCM Condo.

2018Assoc., Inc., 174 So. 3d 1122 (Fla. 4th DCA 2015); Henn v. Sandler, 589 So. 2d 1334, 1335 (Fla. 4th DCA 1991) (en banc) (stating that section 768.72, Florida Statutes creates “a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury”).

2022“Moreover, this court is not permitted to reweigh a trial court's finding of a sufficient evidentiary basis for a punitive damages claim, and ‘such a finding could not be disturbed, or even evaluated on certiorari review.’” Robins, 253 So. 3d at 96 (quoting Espirito Santo Bank v. Rego, 990 So. 2d 1088, 1091 (Fla. 3d DCA 2007)).

2021“Moreover, this court is not permitted to reweigh a trial court’s finding of a sufficient evidentiary basis for a punitive damages claim, and ‘such a finding could not be disturbed, or even evaluated on certiorari review.’” Robins, 253 So. 3d at 96 (quoting Espirito Santo Bank v. Rego, 990 So. 2d 1088, 1091 (Fla. 3d DCA 2007)).

2026“In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party.” Mohan, 387 So. 3d at 482 (quoting Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock Joint Venture, L.P., 16 So. 3d 1006, 1009 (Fla. 1st DCA 2009)).

2024“In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party.” Id.

1987See Gibbs, 340 So.2d at 1203 (citing Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974)).

1983However, Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), cert. dismissed, 354 So.2d 980 (Fla. 1977), held that, the court having determined that certiorari would lie to review a discovery order, the order denying the motion to dismiss the punitive damages claim could be vacated as well.

2025Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015) (“[W]e read section 768.72 as creating a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go 8 to the jury.” (citation omitted)); Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1075 (Fla. 3d DCA 2019).4 While we respect the thoughtful opinions of our sister courts, we are not bound by their holdings.

2025The order then recognized that “[b]are allegations are insufficient to support a punitive damages claim,” Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1075 (Fla. 3d DCA 2019) (citation omitted).

1987See Gibbs, 340 So.2d at 1203 (citing Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974)).

1987See Gibbs, 340 So.2d at 1203 (citing Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974).

2023Allowing a plaintiff to proceed with a punitive damages claim 6 subjects the defendant to financial discovery that would otherwise be off limits . . . and potentially subjects the defendant to uninsured losses.” TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516 , 520 n.5 (Fla. 3d DCA 2016); see also Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005) (“[A]lthough section 768.72(1) is procedural in nature, it also provides a substantive right to parties not to be subjected to a punitive damage claim and attendant discovery of financial worth until the requisit

2022See, e.g., TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516 , 520 n.5 (Fla. 3d DCA 2016) (“From a practical perspective, the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a ‘game changer’ in litigation.”) For instance, once a plaintiff is allowed to proceed with his punitive damages claim, the defendant becomes subject to financial discovery and, potentially, to uninsured losses.

2025Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015) (“[W]e read section 768.72 as creating a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go 8 to the jury.” (citation omitted)); Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1075 (Fla. 3d DCA 2019).4 While we respect the thoughtful opinions of our sister courts, we are not bound by their holdings.

2018Assoc., Inc., 174 So. 3d 1122 (Fla. 4th DCA 2015); Henn v. Sandler, 589 So. 2d 1334, 1335 (Fla. 4th DCA 1991) (en banc) (stating that section 768.72, Florida Statutes creates “a positive legal right in a party not to be subjected to financial worth discovery until the trial court has first made an affirmative finding that there is a reasonable evidentiary basis for the punitive damages claim to go to the jury”).

2024Second, as far as McLane Foodservice’s vicarious liability, “[w]hat is missing from [Wool’s] motion and proffer, however, is an allegation or evidence that corporate management knowingly condoned, ratified or consented to the alleged misconduct.” Tallahassee Mem’l Healthcare, Inc. v. Dukes, 272 So. 3d 824, 826 (Fla. 1st DCA 2019) (granting certiorari to quash amendment of pleadings to assert punitive damages claim where plaintiff imputed conduct of immediate supervisor to corporate management).

2024Dukes, 272 So. 3d at 826 .

2024"In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party." Id. (quoting Case v. Newman, 154 So. 3d 1151, 1157 (Fla. 1st DCA 2014)); see also Est. of Blakely v. Stetson Univ., Inc., 355 So. 3d 476 , 481 (Fla. 5th DCA 2022) ("The appellate court views the record evidence and the proffered evidence in the light most favorable to the plaintiffs and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages.").

2024Consequently, "[u]nder the de novo standard, this [c]ourt views the record evidence and the proffered evidence in the light most favorable to the plaintiff and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages." Cook, 371 So. 3d at 961 (citing Est. of Despain, 900 So. 2d at 644 ); see also CCP Harbour Island, 373 So. 3d at 27 ("In evaluating the sufficiency of the evidence proffered in support of a punitive damages claim, the evidence is viewed in a light favorable to the moving party." (quoting Case v. Newman, 154 So. 3d 1151, 11

2019Second, “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.” Id.

2018The circuit court’s order granting plaintiff’s motion to amend a complaint to add a punitive damages claim fails to make “an affirmative finding that the plaintiff made a ‘reasonable showing by evidence,’ which would provide a ‘reasonable evidentiary basis for recovering such damages. . . .’” Leinberger v. Magee, 226 So. 3d 899, 901 (Fla. 4th DCA 2017) (quoting Varnedore v. Copeland, 210 So. 3d 741, 747-48 (Fla. 5th DCA 2017)); see also Petri Positive Pest Control, Inc. v. CCM Condo.

2016Intramed, 93 So.3d at 507 (“The purpose of damages here was to compensate, not to make the defendant care, ‘take responsibility,’ or say it was sorry.”).

2016Intramed, 93 So. 3d at 507 (“The purpose of damages here was to compensate, not to make the defendant care, ‘take responsibility,’ or say it was sorry.”).

1986In Walsh v. Alfidi, 448 So.2d 1084 (Fla. 1st DCA 1984), this court found the trial court erred in taking a punitive damages claim from the jury, since there was sufficient evidence for the jury to find that Alfidi had made intentional misrepresentations which Walsh had relied upon to her detriment.

1986When there is evidence of fraud, whether the "fraudulent act is `sufficiently outrageous so as to justify an award of punitive damages is a question for the jury.' Schief v. Live Supply, Inc., 431 So.2d 602 (Fla. 4th DCA 1983)." Walsh v. Alfidi , at 1087.

2010In Globe, the Florida Supreme Court also specifically agreed with the Fourth District in Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106 (Fla. 4th DCA 1994), and Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991), that al lowing a punitive damages claim where the procedures of section 768.72 have not been followed would render the statute meaningless.

1999See Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106, 110 (Fla. 4th DCA), rev. denied, 642 So.2d 1363 (Fla. 1994) (to allow a punitive damages claim to proceed without trial court's prior approval would be to expose defendant to a claim for extraordinary damages, for which there is no adequate remedy on final appeal).

2006See Globe, 658 So.2d at 519 ; Martin-Johnson, Inc. v. *361 Savage, 509 So.2d 1097 , 1099 (Fla.1987)(stating "we cannot agree that certiorari is a proper vehicle for testing denial of a motion to strike a claim for punitive damages"); but see Chemplex Fla. v. Norelli, 790 So.2d 547, 549 (Fla. 4th DCA 2001) (granting certiorari and quashing an order granting leave to amend to state a claim for punitive damages because a "plaintiff in a shareholder's derivative action against officers and directors of corporation cannot recover punitive damages in the absence of any statutory authority"); McGuire

1994As we have previously indicated in Key West Convalescent Center, Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993), we follow Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (en banc) in concluding — notwithstanding Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987), which did not consider the statute — that an order denying a motion to strike a punitive damages claim as unjustified under section 768.72, Florida Statutes (1991) is reviewable by certiorari.

2016Assn, 103 So.3d at 240-41 . 5 . , Front a practical perspective, the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a "game changer" in litigation, Allowing a’plaintiff to proceed with a punitive damages claim subjects the defendant to financial discovery .that would otherwise., be off limits, Walt Disney World Co. v. Noordhoek, 672 So.2d 98, 99 (Fla. 3d DCA 1996), and potentially subjects the defendant to uninsured losses.

2014Here, as in Coronado Condominium Ass’n, Inc. v. La Corte, 103 So.3d 239 (Fla. 3d DCA 2012), the respondents failed to proffer evidence satisfying any of the three categories of corporate involvement established in section 768.72(3)(a), (b), or (c), as required to subject SCI to a punitive damages claim.

2002The court struck the punitive damages claim in Count XIV because it found that such claims are not permitted without prior trial court authorization, pursuant to § 768.72. [5] Mayer v. Frank, 659 So.2d 1254 (Fla. 4th DCA 1995).

2002The court struck the punitive damages claim in Count XIV because it found that such claims are not permitted without prior trial court authorization, pursuant to § 768.72. [6] Mayer v. Frank, 659 So.2d 1254 (Fla. 4th DCA 1995).

2007Dupont, 455 So.2d at 1028-29 .

1985See White Construction Co. v. Dupont, 455 So.2d 1026, 1028-29 (Fla.1984).

2006See Globe, 658 So.2d at 519 ; Martin-Johnson, Inc. v. *361 Savage, 509 So.2d 1097 , 1099 (Fla.1987)(stating "we cannot agree that certiorari is a proper vehicle for testing denial of a motion to strike a claim for punitive damages"); but see Chemplex Fla. v. Norelli, 790 So.2d 547, 549 (Fla. 4th DCA 2001) (granting certiorari and quashing an order granting leave to amend to state a claim for punitive damages because a "plaintiff in a shareholder's derivative action against officers and directors of corporation cannot recover punitive damages in the absence of any statutory authority"); McGuire

2001Ortega v. Silva, 712 So.2d 1148 (Fla. 4th DCA 1998).

1996Key West Convalescent Center, Inc. v. Doherty, 619 So.2d 367, 368 (Fla. 3d DCA 1993).

1994As we have previously indicated in Key West Convalescent Center, Inc. v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993), we follow Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (en banc) in concluding — notwithstanding Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987), which did not consider the statute — that an order denying a motion to strike a punitive damages claim as unjustified under section 768.72, Florida Statutes (1991) is reviewable by certiorari.