Interlocutory Appeals of Orders Allowing/Denying Claims for Punitive Damages

Pre-Amendment vs. Today

Prior to April 1, 2022, an order permitting a party to pursue a claim for punitive damages could only be reviewed by an appellate court to determine whether the procedural requirements of Florida Statute Section 768.72 were followed. Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703, 705 n.1 (Fla. 4th DCA 2023) (“Previously, certiorari review was the sole avenue for determining whether the procedural requirements of the statute governing the pleading of punitive damages claims had been followed.”). That is, before April 1, 2022, a trial court could not review orders denying leave to assert a punitive damages claim, and could not review an order granting such leave to determine whether there was a reasonable evidentiary showing or proffer by the claimant — a limitation that had not yet been addressed directly by the Florida Supreme Court.”

Today, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(G), an appellate court may review an interlocutory order granting or denying leave to amend a complaint to add a claim for punitive damages, and to review the sufficiency of the evidence or proffer considered by a trial judge. This is a powerful change in appellate procedure that will undoubtedly, and perhaps lamentably, increase the workload of our appellate judge, and will undoubtedly, and perhaps rejoiceably, allow the trial court litigant and Florida appellate attorney to settle any doubts they may have about such an order before incurring the expense of trial. 

Procedure: Leave to Add a Claim for Punitive Damages Must Be Granted

Florida Statute Section 728.72 is the statute governing punitive damages claims, and Florida Rule of Civil Procedure 1.190(f) governs the procedure for amending a complaint to include such claims. 

Punitive damages are considered “punishment” damages. The purpose of punitive damages is to punish a wrongdoer for an intentional wrong done and to deter similar misconduct by the wrongdoer and others in the future. Grove Isle Ass’n, Inc. v. Lindzon, 350 So. 3d 826, 830 (Fla. 3d DCA 2022). That a party engaged in wrongful conduct is not itself a basis for seeking punitive damages. For example, a breach of contract will not give rise to an award of punitive damages. Boyd v. Oriole Homes Corp., 515 So. 2d 300 (Fla. 4th DCA 1987). Punitive damages are recoverable in cases of fraud and gross negligence. Fraud is perhaps the most common basis for seeking punitive damages. 

A party is not entitled to make a claim for punitive damages without permission from the court – even if that party makes allegations of fraud. To obtain this permission, a party must make a reasonable evidentiary showing or proffer which would provide a reasonable basis for the recovery of punitive damages. The requirement that a party make a reasonable evidentiary showing or proffer means that mere allegations of fraud are not enough to assert a claim for punitive damages. Leason v. Farese, 133 So. 3d 1157 (Fla. Dist. Ct. App. 2014) (“We reiterate that allegations of fraud contained in a complaint cannot, standing alone, support a request to amend a complaint to include a claim for punitive damages. Such a request must be supported by a reasonable evidentiary basis.”).

Proffer By the Claimant

Florida Statute Section 728.72(1) begins: “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.” (emphasis added). The Fourth DCA has held that the phrase “by the claimant” modifies only the phrase “or proffered” and does not modify the prior phrase “evidence in the record”. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 33 (Fla. Dist. Ct. App. 2023), review granted, No. SC2024-0058, 2024 WL 4948685 (Fla. Dec. 3, 2024). This means that a trial court must consider the evidentiary showing made by all parties at a hearing on a motion to amend, and not only the showing made by the claimant. 

The Role of The Proffer in Pleading Punitive Damages 

So, we understand now that the trial court is obligated to consider all evidentiary showings before it by both parties. Now, we ought to know: What is a proffer that may be submitted by the claimant? 

“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.’” Cook v. Fla. Peninsula Ins. Co., 371 So. 3d 958, 961 (Fla. Dist. Ct. App. 2023) (quoting Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th DCA 2005)). Thus, there is a certain liberality about what documents, testimony, and other things can be submitted to provide a reasonable basis for the recovery of punitive damages. Indeed “[b]y allowing a punitive damages claimant to satisfy his initial burden by means of a proffer, section 768.72 contemplates that a claimant might obtain admissible evidence or cure existing admissibility issues through subsequent discovery.” Royal Marco Point I Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 3:07 CV 16, 2010 WL 2609367, at *2 (M.D. Fla. June 30, 2010). This is perhaps the most important thing for the trial court litigant to remember when seeking to assert a punitive damages claim. 

Difference Between a Proffer and Admissible Evidence 

The standard applied to determine what is a reasonable basis for the recovery of punitive damages has been compared to the standard applied to determine whether a complaint states a cause of action. See Est. of Despain, 900 So.2d at 644-56. The only real difference is that in determining whether a complaint states a cause of action, the court does not look beyond the four corners of the complaint and its exhibits; But when determining whether there is a basis for the recovery of punitive damages, the court will consider evidentiary showings or proffers. In either case, the court draws inferences in favor of the complaining party. That is, when determining whether there exists a reasonable basis for the recovery of punitive damages, the court will “view the record evidence and the proffer in the light most favorable to [complainant] and accept it as true.” Id. 

Remember, this is the test a court uses to determine whether to allow a claim for punitive damages to be pursued. Make no mistake, a judge or jury will not award punitive damages to a party merely because a claimant has made a sufficient evidentiary proffer to provide a reasonable basis for recovery. Instead, if a punitive damage claim is permitted, the burden of proof at trial becomes a higher one – a party will 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.” See Florida Statute Section 768.72(2), Fla. Stat. (2022).

How Judges Evaluate Punitive Damages Proffers

First and foremost, know that the standard of review for an order granting leave to amend to add a claim for punitive damages is de novo. Palm Bay Towers Condo. Ass’n, Inc. v. Marrazza, No. 3D23-1952, 2025 WL 15530 (Fla. Dist. Ct. App. Jan. 2, 2025). The standard of review is also de novo for orders denying leave to amend to add a claim for punitive damages. Bric Mcmann Indus. Inc. v. Regatta Beach Club Condo. Ass’n, Inc., 378 So. 3d 652, 654 (Fla. Dist. Ct. App. 2023), review denied, No. SC2024-0255, 2024 WL 2337999 (Fla. May 23, 2024). This means the reviewing Court will look at these orders with fresh eyes, not affording any special deference to the trial court’s decision. 

This may seem a bit odd, considering that the reviewing court is, oftentimes, reviewing the sufficiency of evidence, which is ordinarily reviewed with deference to the trial court judge; However, recall that the standard is something akin to the standard applied to determine whether a complaint states a cause of action in that the 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.” Est. of Blakely by & Through Wilson v. Stetson Univ., Inc., 355 So. 3d 476, 481 (Fla. 5th DCA 2022).

When a Trial Court Allows for an Amendment 

The party seeking punitive damages must both plead a basis for seeking such damages and make an evidentiary showing or proffer. The practitioner can think of the requirement as: allegations first, proffer second. So, in Marrazza, the Third District Court of Appeals reversed a trial court’s order allowing a punitive damages claim on the basis of gross mismanagement (gross negligence) where several counts of the complaint simply lacked allegations of gross negligence. See Marrazza at 3 (“As for Counts One through Four, there are simply no allegations of reckless or wanting care, conscious disregard, or indifference to the life, safety and rights of persons exposed to such conduct. Each of these counts alleges that PBT was negligent and/or breached contracts related to necessary repairs of various items on the property, but make no allegations of conduct constituting gross negligence or intentional misconduct.”). In Marrazza, the complaining party did sufficiently allege a basis for one of its causes of action – for breach for fiduciary duty – but failed to make a sufficient showing or proffer to support such claim. Id. (“However, while such self-dealing or fraudulent conduct, if supported by a proffer or record evidence, might well provide a basis to add a claim for punitive damages, there is nothing in plaintiffs’ proffer or record evidence to support the above-quoted allegation contained in Count Five.”).

Trial Court Discretion to Deny Leave to Amend 

So, remember, allegations come first, evidentiary showing and proffer comes second. Both are required to seek punitive damages.

Sometimes, the basis for seeking punitive damages, or the lack of a basis, is clear. For example, in Gattorno v. Souto, a Florida appellate attorney might highlight that the Third DCA held that evidence of intoxication while driving provides a reasonable basis for the recovery of punitive damages. 390 So. 3d 134, 138 (Fla. Dist. Ct. App. 2024), reh’g denied (May 2, 2024). In the Fourth DCA’s recent opinion in Vaziri v. Jerkins, text messages with harsh and arguably abusive/harassing language did not rise to the level of intentional misconduct or gross negligence. No. 4D2024-1534, 2025 WL 44970 (Fla. Dist. Ct. App. Jan. 8, 2025).

Steps to Preserve Error on Appeal  

In Perlmutter, the Fourth DCA, sitting en banc, was divided on several issues, including the issue of whether there was a sufficient evidentiary showing that certain defendants, who surreptitiously obtained the plaintiffs’ DNA to link the DNA to certain hate mail that said defendants alleged the plaintiffs to be the source of, were trying to develop DNA information about either of the plaintiffs to invade their privacy beyond trying to investigate the hate mail campaign. Perlmutter at 35. In its opinion, the majority sitting en banc concluded that “Peerenboom’s conduct in testing and reporting DNA results, under the circumstances of the hate mail campaign leading to a law enforcement investigation, did not meet the threshold of reprehensible or outrageous conduct.” Id. at 36. Judge Warner and Gross dissented. Justice Warner wrote that, despite acknowledging that a court should not weigh the evidence in making its determination, the majority stated that the trial court must also consider whether the evidence shown rises to the level of clear and convincing evidence. Id. at 40. 

A Florida appellate attorney may argue that the Perlmutter decision is in conflict with the decisions of other appellate courts in Florida for the same reason that Justices Warner and Gross dissented from the opinion, namely, because the majority stated that the trial court, at the pleading stage, must consider whether the evidence shown rises to the level of clear and convincing evidence (essentially making the distinct pleading and trial standards under the statute the same standard). The Perlmutter case is currently before the Florida Supreme Court. 

How to Make a Record for Appellate Review 

It is important to note that “the preliminary determination of whether a 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.” Perlmutter at 34 (emphasis in original). While the dissent in Perlmutter believes that the majority failed to honor this rule, we can certainly expect that the argument that a trial court improperly weighed evidence or made credibility determinations at a motion to amend hearing will be among the most ubiquitous on appeal. 

The Impact of Record Preservation on Your Appeal 

In Florida, a corporation may be liable for punitive damages under a theory of direct liability where a corporation engaged in conduct that was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of a person exposed to the conduct, and the conduct contributed to the loss of an injured party. Fla. Power & Light Co. v. Dominguez, 295 So. 3d 1202, 1205 (Fla. 2d DCA 2019) (internal citations omitted). To establish punitive liability under such a theory, there must be a showing of willful and malicious action on the part of the managing agent of the corporation. Id. The issue of whether a managing agent of a corporation engaged in willful and malicious conduct is one that commonly arises on appeal. Recently, in Five Fran, LLC v. Davis, the Third DCA did not find a corporation liable for punitive damages in  dog bite case under a theory of direct liability where there was no showing that the corporation (i.e., its managing agent) knew that the dog was dangerous or that the corporation’s conduct was sufficiently reckless or wanting in care as to constitute a conscious disregard or indifference to the life, safety, or rights of persons exposed with the alleged conduct. No. 3D24-0833, 2025 WL 44405 (Fla. Dist. Ct. App. Jan. 8, 2025).

Takeaways for Trial Lawyers Seeking Punitive Damages 

Punitive damages are commonly sought where a bad faith business practice is alleged. On motions for directed verdict brought by an insurer, which are motions raised at trial after the close of evidence, courts have held that evidence of more than three other violations is sufficient for a party to survive the motion. Howell-Demarest v. State Farm Mutual Automobile Insurance Co., 673 So. 2d 526 (Fla. 4th DCA 1996). In Cook v. Fla. Peninsula Ins. Co., the Fifth DCA held that the Howell-Demarest “three is not enough” standard does not apply in the context of motions for leave to amend to assert a punitive damages claim. 371 So. 3d 958, 962 (Fla. Dist. Ct. App. 2023). Indeed, the Fifth DCA stated that “[t]here is no magic number for other evidence required to show frequency of a general business practice in order to assert a claim for punitive damages – at a minimum it is the plaintiff’s own claim and at least one more.” Id. 

Conclusion

Though the body of case law regarding orders granting/denying leave to assert a punitive damages claim will certainly increase in light of Florida’s recent change in the rules, a wealth of case law regarding the same exists which predate the rule-change, as orders were still reviewable in the past on plenary appeal and, sometimes, on certiorari review. We mention this to say that it is impossible to provide a comprehensive treatment of the subject in this article, though we endeavor to highlight some of the more important and common issues that arise. The trial court practitioner or litigant is advised to consult appellate counsel if he or she is considering taking an appeal. 

At Valero Law, we see to it that you – the practitioner or litigant – are able to speak with one of our attorneys directly to discuss issues of appellate practice and procedure, and we do not charge for our initial consultations. Contact an experienced attorney today at Valero Law for a free initial consultation.