Why an Initial Complaint Will Never Request For Punitive Damages?
Lilian
Guzman
Rule
1.110 of the Florida Rules of Civil Procedure states, “[a] pleading which sets
forth a claim for relief, whether an original claim, counterclaim, cross-claim,
or third-party claim must state a cause of action and shall contain . . . a
short and plain statement of the ultimate facts showing that the pleader is
entitled to relief, and a demand for judgment for the relief to which the
pleader deems himself or herself entitled.”[i] Contrary to Rule
1.110, "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.”[ii] In fact, “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 . . . gross negligence.”[iii]
Pleading
gross negligence does not necessarily require a pleading of specific
allegations, however, to claim punitive damages due to the party’s gross
negligence, the claimant must provide a reasonable basis prior to making such
allegations in its complaint.[iv] In Simeon, Inc. v. Cox[v],
the Supreme Court of Florida reiterated, “[t]he plain meaning of section
768.72 now requires a plaintiff to provide the court with a reasonable
evidentiary basis for punitive damages before the court may allow a claim for
punitive damages to be included in a plaintiff’s complaint.”[vi] The
defendant in Simeon, Inc. moved to dismiss, or in the
alternative strike, the claim for punitive damages because plaintiff neither
asserted a sufficient basis in the complaint, nor complied with the requirements
of section 768.72.[vii] The Supreme Court of Florida agreed with the
dissenting opinion of the Fifth District, and found that “this section creates
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.”[viii]
A
claim for punitive damages may ultimately be asserted in a complaint, however,
the procedural rights afforded to the defendant in section 768.72 will be waived
if no objection is made.[ix] “If the
plaintiff includes a claim for punitive damages in the complaint before a
hearing on the issue and without approval by the court, the defendant must move
to strike the claim. Otherwise, the failure to object to the claim will be a
waiver of the right to argue the issue on appeal from the final judgment. The
defendant cannot willingly proceed with an unauthorized claim for punitive
damages and then claim on appeal that the court erred in failing to require a hearing.”[x] Thus,
the proper procedure when confronted in an initial complaint with a request for
punitive damages as a defendant is to move to strike, and not move to
dismiss.[xi]
Instead of dismissing the claim, the proper procedural
avenue is to hold an evidentiary hearing, where the claimant can satisfy the
requirements of the statute by a presentation of the supporting evidence or by
a proffer of the evidence.[xii] "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.”[xiii] In
light of the logical connection between gross negligence and punitive damages,
gross negligence may be plead in the complaint if plaintiff has the ability to
proffer evidence of the reckless conduct that constitutes "conscious
disregard . . . to the life, safety, or rights of persons exposed to such
conduct,” but in order to request punitive damages there must be an explicit order
from the court to do so.[xiv]
1. You
can’t claim punitive damages without claiming gross negligence or intentional
misconduct.
2. You can’t
claim punitive damages without a reasonable showing by evidence in the
record or proffering by the claimant, which would provide a reasonable basis
for recovery of such damages.
3. Therefore
you can’t claim gross
negligence without a
reasonable showing by evidence in the record or proffering by the claimant
which would provide a reasonable basis for recovery of such damages, but
only if you are requesting punitive damages.
[i]. Fla.
R. Civ. P. 1.110.
[ii]. Fla.
Stat. §768.72(1) (2016).
[iii]. Id. at § (2).
[iv]. Id.
[v]. 671 So. 2d 158 (Fla. 1996).
[vi]. Id. at 160 (citing Globe
Newspaper Co. v. King, 658 So. 2d 518, 519–20 (Fla. 1995)).
[vii]. Id.
[viii]. Id.
[ix]. See 5 Fla. Prac., Civil Practice § 27:5 (2016-2017
ed.).
[x]. Id.
[xi]. Id.
[xii]. See Fla. Stat. §768.72 (2016).
[xiii]. Id.
[xiv]. Id.
