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Nip a Punitive Damages Claim in the Bud:
Procedural Issues Corporations Should Attack

October 16, 2020 | Geraldine Pena

Punitive damages in Florida are meant to punish a defendant for wrongful conduct and deter similar conduct in the future. Once a claim for punitive damages is injected into a case, the landscape of the litigation changes, opening the door to financial worth discovery and increasing the potential value of the claim. The game-changing nature of punitive damages claims highlights the importance of attacking these claims from all angles.

In Florida, a claimant seeking punitive damages must first seek the court’s leave to assert the claim. This step requires the claimant to comply with a pleading component and an evidentiary component. In other words, not only does the claimant have to present evidence demonstrating the defendant’s conduct warrants punitive damages, but the claimant must also comply with a number of pleading requirements, including filing an appropriate motion that attaches the appropriate pleadings, serving the evidence within a certain time period, and sufficiently stating a claim for punitive damages in the proposed pleading. See § 768.72(1), Fla. Stat.; Fla. R. Civ. P. 1.110(f).

Claimants who seek to assert punitive damages claims against corporations must also comply with a heightened pleading standard. Section 768.72(3) requires claimants to plead (and prove) the corporation actively and knowingly participated in the wrongful conduct; the officers, managers, or directors knowingly condoned, ratified, or consented to the conduct; or, the corporation engaged in the wrongful conduct. But corporations act only through individuals. Accordingly, the claimant must demonstrate some fault on the part of the corporation’s corporate officers, directors, or managers. See, e.g., Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla. 1995); Tallahassee Memorial Healthcare, Inc. v. Dukes, 272 So. 3d 824 (Fla. 1st DCA 2019).

A claimant who fails to make sufficient allegations of wrongdoing against a corporate officer, director, or manager fails to sufficiently state a claim for punitive damages against a corporation. See, e.g., Dukes, 272 So. 3d 824; Fetlar, LLC v. Suarez, 230 So. 3d 97 (Fla. 3d DCA 2017). Without these requisite allegations, the trial court would have no need to consider whether the claimant’s supporting evidence establishes a reasonable evidentiary basis for the recovery of punitive damages. In such case, the trial court should exercise its gatekeeping function and deny the request to add a claim for punitive damages.

A trial court order that allows the addition of a punitive damages claim without an attendant finding of compliance with the requirements of the statute would depart from the essential requirements of law. These orders are subject to immediate appellate review to determine whether the procedural requirements of the punitive damages statute were complied with.

Therefore, in addition to attacking the sufficiency of the proffered evidence, defendants facing a motion to add a punitive damages claim should be sure to evaluate whether all procedural requirements of the punitive damages statute have been complied with. Corporate defendants in particular should attack any proposed punitive damages claim that does not correctly or sufficiently allege wrongful conduct of corporate directors, officers, or managers. This strategy ensures any arguments attacking the procedural deficiencies of the proposed punitive damages claim are preserved for immediate appellate review.

Our team is available to discuss the topics written here and ready to provide additional information contained in this article. Contact us for more information.

About the Attorney

Geraldine Pena


Geraldine Pena is an associate in the firm’s Orlando office.  She concentrates her practice in the areas of general and complex civil litigation; community association law; appellate; business/commercial law; country club, condominium and homeowners' association[...] Read more

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