Appealing Punitive Damages


The Florida Rules of Appellate Procedure were recently amended to allow immediate appeals of nonfinal orders granting or denying leave to amend a complaint to allege punitive damages. The granting of a motion for leave to amend a complaint to add a punitive damages claim is a “game changer” in litigation. Allowing punitive damages materially alters the course of civil litigation by exposing the defendant to uninsured losses, and subjects the defendant to financial discovery that would otherwise be off limits.


Thus, there is a substantive right under Florida law to not be subject to a punitive damages claim until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.


However, up until now nearly all Florida decisions reviewing punitive damages amendments were by certiorari. Thus, appellate review of punitive damages amendments was generally limited to whether a trial court followed the proper procedures during the hearing. The sufficiency of the evidence could not be analyzed on appeal.


Even so, there is some existing precedent that explains the weight of evidence necessary to support a punitive damages claim. A motion on a leave to amend to allege punitive damages is reviewed de novo on appeal. The appellate court will review whether the trial court properly determined that there is a reasonable evidentiary basis for recovery of punitive damages. In doing so, the trial court must act as both a factfinder and a gatekeeper. The evidence has to go beyond mere allegations, and cannot be accepted as true by the trial court.


A plaintiff must proffer all of its evidence in support of punitive damages at least 20 days before the hearing. Oral proffers are not permissible, and punitive damages cannot be supported by the mere allegations of counsel.


A notice of appeal must be filed within 30 days of the date the trial court renders its written order on the motion for leave to allege punitive damages.