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]
Short and Easy[xv]
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).
[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)).
[ix]. See 5 Fla. Prac., Civil Practice § 27:5 (2016-2017 ed.).
[xii]. See Fla. Stat. §768.72 (2016).