William Marvin Douberley v. Harold Peerenboom ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FEDERAL INSURANCE COMPANY, HAROLD PEERENBOOM, and
WILLIAM MARVIN DOUBERLEY,
Appellants,
v.
ISAAC “IKE” PERLMUTTER and LAURA PERLMUTTER,
Appellees.
Nos. 4D2022-1558, 4D2022-1560, and 4D2022-1562
[December 13, 2023]
Consolidated appeals of nonfinal orders from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Gerard Joseph Curley, Judge;
L.T. Case No. 50-2013-CA-015257.
Kenneth R. Drake of DeMahy Labrador Drake Cabeza, Coral Gables, for
appellant Federal Insurance Company.
Jordan S. Cohen, Ethan A. Arthur, and Victoria N. DeLeon of Wicker Smith
O’Hara McCoy & Ford, P.A., Fort Lauderdale, for appellant Harold Peerenboom.
Daniel M. Bachi of Sellars, Marion & Bachi, P.A., West Palm Beach, for
appellant William Marvin Douberley.
Roy Black and Jared M. Lopez of Black, Srebnick, Kornspan & Stumpf, P.A.,
Miami, and Elliot B. Kula and William D. Mueller of Kula & Associates, P.A.,
Miami, and Joshua E. Dubin of Joshua E. Dubin, P.A., Miami, for appellees.
EN BANC
ON MOTION FOR CERTIFICATION AND
SUA SPONTE REHEARING EN BANC
CONNER, J.
We grant the appellees’ motion for certification of conflict and question of
great public importance, sua sponte proceed with rehearing en banc, withdraw
our opinion dated September 27, 2023, and issue the following in its place.
In this consolidated appeal, Federal Insurance Company (“Federal”), Harold
Peerenboom (“Peerenboom”), and William Douberley (“Douberley”) (collectively,
1
“the Appellants”) separately appeal from trial court orders granting Isaac and
Laura Perlmutter’s (“the Perlmutters”) motions to amend their counterclaims to
seek punitive damages from the Appellants. We reverse because the record
evidence was insufficient to permit claims for punitive damages. To explain our
decision, we examine the substantive and procedural requirements for motions
to amend seeking punitive damages. We also apply those requirements to our
review of the trial court orders in this case.
Part 1: Background
The Perlmutters and Peerenboom lived in a residential community in which a
dispute arose over retaining the community tennis instructor. The dispute
resulted in the tennis instructor filing a defamation suit to which Peerenboom
was eventually added as a defendant. Peerenboom notified his insurance carrier,
Federal, about the tennis instructor’s defamation suit. Federal designated
Douberley’s law firm as Federal’s in-house counsel to defend Peerenboom in the
tennis instructor’s suit.
During the tennis instructor’s suit, Peerenboom’s family, friends, neighbors,
and colleagues received a series of “hate mail” letters falsely accusing
Peerenboom of child molestation and murder. Peerenboom suspected the
Perlmutters were involved in the hate mail because, a year earlier, Isaac
Perlmutter had circulated negative news articles about Peerenboom. Believing
he was the victim of a crime, Peerenboom reported the hate mail to law
enforcement and postal investigators and hired private investigators to develop
information about who had sent the hate mail.
As part of that investigation, Peerenboom and Douberley surreptitiously
obtained the Perlmutters’ DNA to compare against DNA obtained from the hate
mail. Peerenboom then reported to the police and media that the DNA results
had linked the Perlmutters to the hate mail campaign.
Peerenboom later filed a complaint against the Perlmutters raising various
causes of action related to the sending of the hate mail.
Upon learning that Peerenboom had surreptitiously tested their DNA, the
Perlmutters asserted a counterclaim against the Appellants. In their
counterclaim, the Perlmutters alleged conversion and civil theft of their genetic
information; abuse of process for issuing subpoenas upon them for improper
purposes; defamation for false reports of their involvement in sending the letters;
invasion of privacy for the surreptitious collection, testing, and reporting of their
DNA; and civil conspiracy to defame them and falsely implicate them in criminal
conduct.
2
The Perlmutters’ intentional tort counts relied generally upon section 760.40,
Florida Statutes (2013), which at the time 1 pertinently stated:
(a) Except for purposes of criminal prosecution, except for purposes
of determining paternity as provided in s. 409.256 or s. 742.12(1),
and except for purposes of acquiring specimens as provided in s.
943.325, DNA analysis may be performed only with the informed
consent of the person to be tested, and the results of such DNA
analysis, whether held by a public or private entity, are the exclusive
property of the person tested, are confidential, and may not be
disclosed without the consent of the person tested. . . .
(b) A person who violates paragraph (a) is guilty of a misdemeanor
of the first degree, punishable as provided in s. 775.082 or s.
775.083.
§ 760.40(2), Fla. Stat. (2013). 2
The Perlmutters later moved to amend their counterclaims to seek punitive
damages from the Appellants. The Appellants responded in opposition. After a
hearing on the Perlmutters’ motions to amend, the trial court entered the
separate orders, now on appeal, granting the motions to amend as to each of the
Appellants.
The first order, granting the punitive damages motion against Peerenboom
and Douberley, described the Perlmutters’ proffered evidence in detail. The trial
court found the Perlmutters had made a reasonable evidentiary showing in
support of the motion.
The second order, granting the punitive damages motion against Federal,
likewise detailed the proffered evidence and found: (1) Douberley committed
“intentional misconduct” as defined in section 768.72(2)(a), Florida Statutes
(2013); (2) Douberley was Federal’s employee; (3) Federal “actively and knowingly
participated” in Douberley’s intentional misconduct; and (4) Federal “knowingly
condoned, ratified, or consented to” Douberley’s intentional misconduct. The
trial court again found the Perlmutters made a reasonable evidentiary showing
in support of the motion. More specifically, the trial court permitted the
1 In 2021, section 760.40 was amended and subsection (2)(b), the misdemeanor
provision quoted below, was removed. Simultaneously, the legislature created section
817.5655, Florida Statutes (2021), to criminalize DNA testing and reporting results
without the donor’s consent, with limited exceptions.
2 Notably, as the trial court correctly ruled, the Perlmutters could not sue directly for
violation of section 760.40, as the statute did not provide for a private cause of action.
We also note the statute in effect at the time did not provide for punitive damages.
3
Perlmutters to seek punitive damages from Federal based on section 768.72(3)(a)
and (b), Florida Statutes (2013). 3
The Appellants separately gave notice of appeal. We have consolidated all
three appeals for our review.
Part 2: Statute, Rule, and Caselaw Applicable to Pretrial
Orders Ruling on Motions to Amend to Assert Punitive Damages
A. Section 768.72 and Florida Rule of Civil Procedure 1.190
Section 768.72, Florida Statutes (2013), and Florida Rule of Civil Procedure
1.190(a) and (f) control the Perlmutters’ entitlement to punitive damages and
establish the basic substantive and procedural requirements for such an award.
Both the statute and the rule require parties to initiate the process by moving to
amend the complaint or counterclaim. § 768.72(1), Fla. Stat. (2013); Fla. R. Civ.
P. 1.190(f). In other words, a complaint or counterclaim cannot plead
entitlement to punitive damages without prior court approval.
The primary foundational requirement under both the statute and the rule 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.”
§ 768.72(1), Fla. Stat. (2013); Fla. R. Civ. P. 1.190(f). Section 768.72 pertinently
provides:
(1) 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. The claimant may
move to amend her or his complaint to assert a claim for punitive
3 The trial court’s orders permitting amendment for punitive damages claims made
detailed written findings and explanations for its rulings. We agree with the Fifth
District that “the trial court, serving as a gatekeeper, is required to make an affirmative
finding that [movant] has made a ‘reasonable showing by evidence,’ which would provide
a ‘reasonable evidentiary basis for recovering such damages’” if the motion to amend is
granted. Varnedore v. Copeland, 210 So. 3d 741, 747-48 (Fla. 5th DCA 2017) (citations
omitted); see also Petri Positive Pest Control, Inc. v. CCM Condo. Ass’n, Inc., 174 So. 3d
1122, 1122 (Fla. 4th DCA 2015) (reversing amendment to plead punitive damages where
neither the trial court’s verbal comments nor written order indicated whether it found
the plaintiff demonstrated a reasonable basis for seeking punitive damages). While not
mandatory under Florida Rule of Civil Procedure 1.190, we encourage trial courts to
identify on the record (preferably in writing) the evidence presented by the movant that
satisfied the evidentiary showing, or the evidence presented by the opposing party that
defeated the movant’s entitlement. Without an affirmative finding and identification of
evidence supporting the ruling, appellate courts will be significantly hampered in their
review of whether the trial court properly performed its gatekeeping function.
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damages as allowed by the rules of civil procedure. The rules of civil
procedure shall be liberally construed so as to allow the claimant
discovery of evidence which appears reasonably calculated to lead
to admissible evidence on the issue of punitive damages. No
discovery of financial worth shall proceed until after the pleading
concerning punitive damages is permitted.
(2) 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. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual
knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of
conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was so
reckless or wanting in care that it constituted a conscious disregard
or indifference to the life, safety, or rights of persons exposed to such
conduct.
§ 768.72(1)-(2), Fla. Stat. (2013) (emphasis added). Rule 1.190 similarly
provides:
(a) Amendments. . . . If a party files a motion to amend a pleading,
the party shall attach the proposed amended pleading to the motion.
Leave of court shall be given freely when justice so requires.
....
(f) Claims for Punitive Damages. A motion for leave to amend a
pleading to assert a claim for punitive damages shall make a
reasonable showing, by evidence in the record or evidence to be
proffered by the claimant, that provides a reasonable basis for
recovery of such damages. The motion to amend can be filed
separately and before the supporting evidence or proffer, but each
shall be served on all parties at least 20 days before the hearing.
Fla. R. Civ. P. 1.190(a), (f) (emphasis added).
We now discuss caselaw interpreting section 768.72’s and rule 1.190’s
substantive and procedural requirements regarding punitive damages motions.
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B. The Trial Court’s Gatekeeping Function
In discussing the caselaw, we begin with the overarching concept of the trial
court’s gatekeeping function.
In Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995), our supreme
court said:
We read section 768.72 to create 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.
....
The 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. To allow punitive damages
claims to proceed as before [(reviewable after final judgment)] would
render section 768.72 meaningless.
Id. at 519-20 (emphasis added).
Even before Globe Newspaper, the district courts clearly stated trial courts
bore the responsibility to determine whether juries can consider punitive
damages claims. See, e.g., Taylor v. Gunter Trucking Co., Inc., 520 So. 2d 624(Fla. 1st DCA 1988) (listing Florida Supreme Court cases supporting the trial
court’s entry of summary judgment in favor of defendants on a punitive damages
claim, and noting the focus is on whether evidence shows punitive damages
could properly be awarded by a jury). The caselaw also explained:
When claims for punitive damages are made, the respective
provinces of the court and jury are well defined. The court is to
decide at the close of evidence whether there is a legal basis for
recovery of punitive damages shown by any interpretation of the
evidence favorable to the plaintiff.
Haynes v. Arman, 192 So. 3d 546 (Fla. 5th DCA 2016) (emphasis added) (quoting
Wackenhut Corp. v. Canty, 359 So. 2d 430, 435–36 (Fla. 1978)). Thus, the early
caselaw established a gatekeeping role for trial courts regarding entitlement to
punitive damages.
Post-Globe Newspaper, this Court and others specifically acknowledged the
trial court’s “gatekeeping” function. In Bistline v. Rogers, 215 So. 3d 607 (Fla.
6
4th DCA 2017), we recognized Globe Newspaper’s clear statement that section
768.72 created “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.” Id. at 610 (emphasis added). We specifically opined the statute meant
the trial courts have a “gatekeeping” role to preclude a punitive damages claim
where no reasonable evidentiary basis for recovery exists. Id. at 611. Other
district courts have similarly identified a trial court’s gatekeeping function in
allowing punitive damages claims. See Varnedore, 210 So. 3d at 745 (“In order
to perform its function as a gatekeeper, the trial court must understand the
specific claim proposed by the plaintiff that may justify an award of punitive
damages.”); Watt v. Lo, 302 So. 3d 1021, 1025 (Fla. 1st DCA 2020)
(acknowledging the trial court understood its gatekeeping function, and, in
ruling on the plaintiff’s motion to amend, made the determination required by
the statute, the rule, and Globe Newspaper). 4
We now turn to some additional legal principles regarding the trial court’s
responsibilities in ruling on a motion to amend.
C. The Pleading and the Evidentiary Showing Must Match
“Given the nature of the applicable statute and rule, the court must consider
both the pleading component and the evidentiary component of each motion to
amend to assert punitive damage claims.” Varnedore, 210 So. 3d at 744(emphasis added) (citing Henn v. Sandler, 589 So. 2d 1334, 1335-36 (Fla. 4th
DCA 1991)). Thus, once the trial court determines the proposed amended
complaint states sufficient allegations to plead a proper punitive damages claim,
the trial court must next determine whether the movant has established a
reasonable factual basis for its punitive damages claim consistent with the
allegations in the amended complaint. Id. at 746. If the evidentiary showing
does not match the amended complaint’s allegations, the trial court should not
permit the punitive damages claim. See Desanto v. Grahn, 362 So. 3d 247, 248-
50 (Fla. 4th DCA 2023) (reversing order granting leave to amend because the
allegations of the motion to amend did not match any record evidence); HRB Tax
Grp., Inc. v. Fla. Investigation Bureau, Inc., 360 So. 3d 1159 (Fla. 4th DCA 2023)
(reversing order permitting amendment because the trial court improperly
considered allegations and evidence not relevant to the claim for which punitive
damages were sought).
4 Although not explicitly argued below or on appeal, but more fully discussed herein, we
also note that, in addition to the requirements imposed by section 768.72 and rule
1.190(a) and (f), the gatekeeping function requires the trial court to deny a motion to
amend if the opposing party’s conduct is not alleged or shown by a proper pretrial
evidentiary showing to be sufficiently reprehensible and outrageous to merit punitive
damages.
7
D. Evidentiary Showing by All Parties
The first sentence of section 768.72(1), Florida Statutes (2013), provides: “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.”
§ 768.72(1), Fla. Stat. (2013) (emphasis added).
We conclude the phrase “by the claimant” plainly modifies only its nearest
referent phrase “or proffered” and not the prior phrase “in the record.” See Acad.
for Positive Learning, Inc. v. Sch. Bd. of Palm Bch. Cnty., 315, So. 3d 675, 680
(Fla. 4th DCA 2021) (“The [nearest-reasonable-referent] canon holds simply that,
whether coming before or after what is modified, modifiers (adjectives, adverbs,
prepositional phrases, restrictive clauses) should be read as modifying the
nearest noun, verb, or other sentence element to which they can reasonably be
said to pertain.” (emphasis added) (citation omitted)).
To interpret the phrase “by the claimant” to reasonably pertain to both the
phrase “or proffered” and the phrase “in the record,” the phrase “by the claimant”
must be read as able to apply—independently—to both phrases. However,
independently applying the phrase “evidence in the record” to the phrase “by the
claimant” would result in the conjoined phrase “evidence in the record by the
plaintiff.” That conjoined phrase is not susceptible to a sound interpretation.
The only reasonable way to read section 768.72(1)’s first sentence is to
recognize the aforementioned phrases as referring to two separate categories of
evidence: evidence “in the record” and evidence “proffered by the claimant.” The
latter category, by its plain language, specifies “the claimant” as the proffered
evidence’s source. The former category, “evidence in the record,” being non-
specific as to the record evidence’s source, plainly permits the source of that
evidence to be both the claimant and any opponent.
Thus, applying section 768.72(1)’s plain language, we hold that a trial court
must consider the evidentiary showing by all parties at the hearing on the motion
to amend, that is, evidence “in the record” and evidence “proffered by the
claimant.” 5
5 Although not an issue in the instant appeals, we have previously determined section
768.72 only authorizes a proffer and does not require a full evidentiary hearing with
witness testimony. Strasser v. Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996); see
also Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 642 (Fla. 5th DCA 2005) (“[A]n
evidentiary hearing where witnesses testify and evidence is offered and scrutinized
under the pertinent evidentiary rules, as in a trial, is neither contemplated nor
mandated by the statute in order to determine whether a reasonable basis has been
established to plead punitive damages.” (emphasis added)).
8
E. Reasonable Showing of Reasonable Evidentiary Basis by the Movant
To support the motion to amend, the movant’s pretrial evidentiary showing
(sworn statements and authenticated records) must “provide the court with a
reasonable evidentiary basis for punitive damages.” Globe Newspaper, 658 So.
2d at 520. 6 Thus, a “reasonable showing by evidence” of “a reasonable basis”
for punitive damages means the movant must demonstrate the movant will be
able to produce competent, substantial evidence at trial upon which a rational
trier of fact could find that the defendant specifically intended to engage in
intentional or grossly negligent misconduct that was outrageous and
reprehensible enough to merit punishment.
Additionally, because statutory provisions must be read in pari materia, in
ruling on a motion to amend, we interpret section 768.72(1) and (2) to require
the trial court to make a preliminary determination of whether a reasonable jury,
viewing the totality of proffered evidence in the light most favorable to the
movant, could find by clear and convincing evidence that punitive damages are
warranted. 7 We make clear that the preliminary determination by the trial court
considers the evidence presented by all parties and gives the movant the benefit
of all reasonable inferences. 8 Varnedore, 210 So. 3d at 747 (noting movant’s
6 We agree with the Fifth District that “the term ‘proffer’ for purposes of rule 1.190(f)
refers only to timely filed documents and excludes oral representations of additional
evidence made during the hearing.” Varnedore, 210 So. 3d at 747. Additionally, “the
trial court cannot properly consider plaintiff’s counsel’s oral or other proffers of evidence
which are first presented during the hearing.” Id.; see also WG Evergreen Woods SH,
LLC v. Fares, 207 So. 3d 993, 996 (Fla. 5th DCA 2016) (noting the similarity between
rules 1.190(f) and 1.510(c)).
7 We note that although the clear and convincing evidence standard can be met when
evidence is inconsistent or conflicting, the standard cannot be met when the evidence
is ambiguous. See In re Guardianship of Browning, 543 So. 2d 258, 273 (Fla. 2d DCA
1989) (“It is possible for the evidence . . . to be clear and convincing, even though some
evidence may be inconsistent. Likewise, it is possible for the evidence to be
uncontroverted, and yet not be clear and convincing.”); Westinghouse Elec. Corp., Inc. v.
Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991) (recognizing that conflicting
evidence can meet the standard, but ambiguous evidence cannot); Brewer v. Fla. Dep’t
of Health, Bd. of Nursing, 268 So. 3d 871, 873 (Fla. 1st DCA 2019) (“The clear and
convincing evidence standard precludes ambiguous evidence.” (citing Westinghouse
Elec., 590 So. 2d at 988)).
8 As we point out below, with regards to inferences to be drawn from the movant’s
evidentiary showing, the stacking of inferences is not permitted. When the trial court
makes a preliminary determination, the opposing party’s ability to present evidence that
inferentially conflicts with the movant’s evidence is not sufficient to defeat a motion to
amend. However, an opposing party’s evidence may demonstrate that the movant’s
inferences from the evidence are ambiguous or erroneous.
9
counsel is free to argue inferences that may be drawn from the timely filed
evidence and proffers).
We stress that the preliminary determination of whether the 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.9
See Varnedore, 210 So. 3d at 747 (“After all, the decision of whether to grant the
motion to add punitive damages will be based, at least in part, upon the trial
court’s determination of whether a reasonable jury could infer from the evidence
and proffer that a defendant’s conduct amounted to reckless or careless
indifference to the plaintiff’s life or safety.”).
Part 3: Application of the Substantive and
Procedural Requirements to the Instant Case
Having reviewed the above substantive and procedural requirements, we now
apply those requirements to this case’s facts and the orders granting the
Perlmutters’ motions to amend seeking punitive damages from the Appellants.
Our review is de novo. See Cleveland Clinic Fla. Health Sys. Nonprofit Corp.
v. Oriolo, 357 So. 3d 703, 705 (Fla. 4th DCA 2023) (reviewing “de novo the trial
court’s purely legal ruling that plaintiff made a ‘reasonable showing’ under
section 768.72 to recover punitive damages” (citing Holmes v.
Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005))).
A. Peerenboom’s and Douberley’s Arguments 10
The Perlmutters’ amended counterclaim asserts punitive damages liability
based on intentional misconduct. Under section 768.72(1) and (2), a punitive
damages claim for intentional misconduct requires a pleading and evidentiary
showing demonstrating “the defendant had actual knowledge of the
wrongfulness of the conduct and the high probability that injury or damage to
the claimant would result and, despite that knowledge, intentionally pursued
that course of conduct, resulting in injury or damage.” § 768.72(1), (2), Fla. Stat.
(2013) (emphasis added). In other words, section 768.72(2) requires an
9 In Bistline, we said that “an evaluation of the evidentiary showing required by section
768.72 does not contemplate the trial court simply accepting the allegations in a
complaint or motion to amend as true.” 215 So. 3d at 610. Our point in Bistline was
that the trial court’s gatekeeping function requires more than simply assuming all of
the movant’s allegations in the amended complaint are true—the standard when ruling
on a motion to dismiss for failure to state a cause of action. Instead, we opined the trial
court must evaluate the evidentiary showing by the movant. Id.10 Both Peerenboom and Douberley raise additional arguments besides the ones which
we discuss above, but we do not address those arguments.
10
evidentiary showing of specific intent, not general intent, to knowingly engage in
wrongful conduct.
Peerenboom argues the trial court erred in granting the Perlmutters’ motion
to amend because the trial court failed to use the proposed amended
counterclaim as the framework for analysis. Peerenboom points out that “th[e]
vital gatekeeping function requires trial courts to consider the movant’s proposed
amended pleading, and determine whether it has alleged a basis for punitive
damages.” Additionally, he argues the trial court failed to hold the Perlmutters
to their pleadings and permitted a punitive damages amendment based on
unpled conduct. Peerenboom and Douberley argue the Perlmutters’ proffers do
not demonstrate intentional misconduct “[rising] to a level of culpability
sufficient to support punishment” or “equivalent to that required for criminal
manslaughter in order to plead punitive damages.”
The Perlmutters’ evidentiary proffers are ambiguous in terms of establishing
specific intent by Peerenboom and Douberley to knowingly engage in wrongful
conduct, and do not demonstrate intentional misconduct “[rising] to a level of
culpability sufficient to support punishment” or “equivalent to that required for
criminal manslaughter in order to plead punitive damages.” The thrust of the
Perlmutters’ theory of intentional wrongdoing was an intent to fabricate false
evidence to connect the Perlmutters to the hate mail. However, the evidence
proffered does not support the theory without the stacking of circumstantial
inferences. Such evidence could never meet the clear and convincing evidence
standard at trial. See Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537
(Fla. 4th DCA 2016) (“The purpose of this rule against stacking inferences is ‘to
protect litigants from verdicts based on conjecture and speculation.’” (quoting
Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008))).
Because of the ambiguity of the evidence as to specific intent to intentionally
engage in wrongdoing, we agree with Peerenboom and Douberley that the
Perlmutters’ evidentiary showing was insufficient. However, even conceding that
the Perlmutters’ proffer demonstrated evidence that could lead a jury to conclude
Peerenboom and Douberley specifically intended to engage in acts constituting
misdemeanors by testing DNA and disclosing the results, we conclude there was
no proffered evidentiary showing that Peerenboom and Douberley were trying to
develop DNA information about either of the Perlmutters to invade their privacy
beyond trying to investigate the hate mail campaign. Thus, again, we conclude
the evidentiary showing was insufficient.
As the United States Supreme Court, the Florida Supreme Court, and this
Court have said, “[punitive damages] are not compensation for injury. Instead,
they are private fines levied by civil juries to punish reprehensible conduct and
to deter its future occurrence.” Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 432 (2001) (emphasis added) (quoting Gertz v. Robert Welch, Inc.,
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418 U.S. 323, 350 (1974)); see also Engle v. Liggett Grp., Inc., 945 So. 2d 1246,
1262 (Fla. 2006) (describing punitive damages as ‘“private fines’ intended to
punish the defendant and to deter future wrongdoing”); James Crystal Licenses,
LLC v. Infinity Radio Inc., 43 So. 3d 68, 76 (Fla. 4th DCA 2010) (observing that
historically punitive damages were “justified as punishment for extraordinary
wrongdoing”). As the Supreme Court in Cooper Industries observed, “[I]n
deciding whether [the punitive damages] line has been crossed, we have focused
on the same general criteria: the degree of the defendant’s reprehensibility or
culpability.” 532 U.S. at 435 (emphasis added).
“[L]ong-established precedent dictates that actions which deserve punitive
sanctions involve outrageous conduct, malicious motive, or wrongful intention.”
William Dorsky Assocs., Inc. v. Highlands Cnty. Title & Guar. Land Co., 528 So.
2d 411, 412 (Fla. 2d DCA 1988). “[P]unitive damages are reserved for truly
‘culpable conduct,’” where the conduct is “so outrageous in character, and so
extreme in degree . . . [that] the facts [of the case] to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, ‘Outrageous!’” Oriolo, 357 So. 3d at 706; see also W.R. Grace & Co.—
Conn v. Waters, 638 So. 2d 502, 503 (Fla. 1994) (“Punitive damages are
appropriate when a defendant engages in conduct which is fraudulent,
malicious, deliberately violent or oppressive, or committed with such gross
negligence as to indicate a wanton disregard for the rights of others.”); Lee Cnty.
Bank v. Winson, 444 So. 2d 459, 463 (Fla. 2d DCA 1983) (“Punitive damages may
be properly awarded only where a tort involves malice, moral turpitude, or
wanton and outrageous disregard of a plaintiff’s rights.” (citing Winn & Lovett
Grocery Co. v. Archer, 171 So. 214 (Fla. 1936))).
We conclude, as a matter of law based on the facts of this case, 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.
Thus, the Perlmutters’ counterclaims could not be amended to assert punitive
damages against Peerenboom or Douberley.
We additionally agree with Peerenboom’s and Douberley’s arguments that
because the individual claims against them fail, the conspiracy claims against
them also fail. See Palm Beach Cnty. Health Care Dist. v. Prof’l Med. Educ., Inc.,
13 So. 3d 1090, 1096 (Fla. 4th DCA 2009) (“Since the counts regarding the goals
of the conspiracy—defamation and tortious interference—fail, so too the
conspiracy count must fail.”).
Finally, we conclude the evidentiary proffer was insufficient to show
Peerenboom intentionally and wrongfully disseminated DNA test results linking
Laura Perlmutter to the hate mail while ignoring that the DNA sample was
possibly compromised or that Peerenboom’s disgruntled prior employee could
12
have been the author of the hate mail. We again conclude the evidentiary
showing presented ambiguous evidence in that regard.
For the above reasons, we reverse the trial court’s order granting the
Perlmutters’ motion to amend to seek punitive damages against Peerenboom and
Douberley. Our decision should not be construed to preclude an award of
compensatory damages, by a preponderance of the evidence burden of proof, for
any intentional tort which the jury determines Peerenboom or Douberley may
have committed. See Bistline, 215 So. 3d at 610 (recognizing that record
evidence may support an intentional tort, but not necessarily a punitive damages
award).
B. Federal’s Arguments
Regarding the liability of an employer or corporation for punitive damages
imposed for the conduct of an employee or agent, section 768.72, Florida
Statutes, provides:
In the case of an employer, principal, corporation, or other legal
entity, punitive damages may be imposed for the conduct of an
employee or agent only if the conduct of the employee or agent meets
the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other legal entity
actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal,
corporation, or other legal entity knowingly condoned, ratified, or
consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity
engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the claimant.
§ 768.72(3), Fla. Stat. (2013).
“In order to impose direct liability for punitive damages on a corporation,
there must be a showing of willful and malicious action on the part of a managing
agent of the corporation.” Partington v. Metallic Eng’g Co., Inc., 792 So. 2d 498,
501 (Fla. 4th DCA 2001) (citing Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158(Fla. 1995)). “[A] managing agent is an individual like a ‘president [or] primary
owner’ who holds a ‘position with the corporation which might result in his acts
being deemed the acts of the corporation.’” Dominguez, 295 So. 3d at 1205
(citation omitted). In other words, a managing agent is more than a mid-level
employee with some, but limited, managerial authority; instead, a managing
13
member makes policy decisions for the corporation. See id. at 1206 (holding
defendant corporation’s regional supervisor, who had “significant managerial
power” over regional program but did not make policy decisions, was not
managing agent for purpose of establishing direct corporate liability for punitive
damages).
As a preliminary matter, because we conclude a punitive damages claim
against Douberley was improper, we also conclude the trial court erred in
allowing the counterclaims to be amended to seek punitive damages against
Federal under section 768.72(3)(b). As we said in Oriolo, “[g]enerally, before one
may infer that a principal ratified an unauthorized act of his agent, the evidence
must demonstrate that the principal was fully informed—beyond having simple
constructive knowledge—and that he approved of the act.” 357 So. 3d at 707
(internal quotation marks and alterations omitted). The evidentiary proffer did
not unambiguously show that a Federal principal was fully informed of (beyond
simple constructive knowledge) and approved Douberley’s acts.
Additionally, we agree with Federal’s argument that the Perlmutters did not
allege or proffer an evidentiary showing demonstrating that Douberley, or
Federal’s claims manager to whom Douberley reported, held a position as a
corporate policymaker which might result in conduct deemed to be Federal’s
acts, or that Federal “actively and knowingly participated” in Douberley’s
intentional misconduct to merit punitive damages under section 768.72(3)(a).
For the above reasons, we also reverse the trial court’s order granting the
Perlmutters’ motion to amend to seek punitive damages against Federal.
Part 4: Conclusion
Having determined the trial court improperly granted the Perlmutters’
motions to amend their counterclaims to seek punitive damages against the
Appellants due to an insufficient evidentiary showing of a reasonable basis to
award punitive damages, we reverse and remand for the trial court to vacate the
nonfinal orders granting amendment.
In reaching our conclusion, we certify conflict with the Second District’s and
the Fifth District’s opinions in the following cases: Deaterly v. Jacobson, 313 So.
3d 798 (Fla. 2d DCA 2021); Wiendl v. Wiendl, No. 2D22-3464, 2023 WL 5311941(Fla. 2d DCA Aug. 18, 2023); Estate of Despain v. Avante Group, Inc., 900 So. 2d
637, 642 (Fla. 5th DCA 2005); Werner Enterprises, Inc. v. Mendez, 362 So. 3d
278 (Fla. 5th DCA 2023); and Cook v. Florida Peninsula Insurance Co., No. 5D22-
2334, 2023 WL 5156375 (Fla. 5th DCA Aug. 11, 2023).
We also certify to the Florida Supreme Court the following question of great
public importance:
14
On a motion to amend to add a punitive damages claim, does section
768.72(1) and (2), Florida Statutes, when read in pari materia,
require a trial court to make a preliminary determination of
whether a reasonable jury, viewing the totality of evidence
identified in support of or opposition to the motion, and in the
light most favorable to the movant, could find by clear and
convincing evidence that punitive damages are warranted?
Reversed and remanded with instructions; conflict certified; question of great
public importance certified.
KLINGENSMITH, C.J., DAMOORGIAN, CIKLIN, GERBER, LEVINE, FORST, and KUNTZ, JJ.,
concur.
ARTAU, J., concurs specially with opinion.
MAY, J., concurs in result only with opinion.
WARNER, J., dissents with opinion, in which GROSS, J., joins.
GROSS, J., dissents with opinion, in which WARNER, J., joins.
ARTAU, J., concurring specially.
The en banc majority opinion cites Cooper Industries, Inc. v. Leatherman Tool
Group, Inc., 532 U.S. 424 (2001), for the proposition that our federal constitution
establishes a “line” that should not be “crossed” when allowing a punitive or
exemplary damages claim to be pled without sufficient proof of the “defendant’s
reprehensibility or culpability.”
I disagree with the suggestion the citation to Cooper makes that the
Fourteenth Amendment provides substantive due process protection from a
punitive damages claim.
As Justice Scalia explained in BMW of North America, Inc. v. Gore, 517 U.S.
559 (1996), the Fourteenth Amendment’s Due Process Clause is not “a secret
repository of substantive guarantees against ‘unfairness’—neither the unfairness
of an excessive civil compensatory award, nor the unfairness of an ‘unreasonable’
punitive award” is protected by the Fourteenth Amendment. Id. at 598-99(Scalia, J., dissenting). Rather, “[w]hat the Fourteenth Amendment’s procedural
guarantee assures is an opportunity to contest the reasonableness of a damages
judgment in state court; but there is no federal [substantive due process]
guarantee” protecting a defendant from a punitive damages claim. Id. at 599
(citing TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 471 (1993) (Scalia, J.,
concurring in judgment)).
In other words, the original understanding of the Fourteenth Amendment did
not include protection from a punitive or exemplary damages claim. Indeed,
15
“history fails to disclose any pre-constitutional protection against” punitive
damages which were indisputably recognized at common law prior to ratification
of the Fourteenth Amendment. A. Benjamin Spencer, Due Process and Punitive
Damages: The Error of Federal Excessiveness Jurisprudence, 79 S. Cal. L. Rev.
1085, 1135-36 (2006); see also Wilkes v. Wood (1763) 98 Eng. Rep. 489 (KB)
[498] (appeal taken from Eng.) (“Damages are designed not only as a satisfaction
to the injured person, but likewise as a punishment[.]”); Huckle v. Money (1763)
95 Eng. Rep. 768 (KB) [769] (appeal taken from Eng.) (recognizing “exemplary
damages”).
“Had the Founders intended to limit punitive damages . . . in civil cases in
the same manner that they limited fines and punishments imposed in actions
initiated by the government, ‘it cannot be that they would not have explicitly said
so.’” Spencer, supra, at 1135 (quoting Twp. of Pine Grove v. Talcott, 86 U.S. 666,
674-75 (1873)). Moreover, “[i]t makes little sense to say that the Founders
purposely omitted exemplary damages when they wrote the Eighth Amendment
but intended them to be covered by implication elsewhere” in the Due Process
Clause of the Fourteenth Amendment. Id.“Although certainly many advocates of tort reform may feel that punitive
damages . . . need to be limited[,] . . . imposing such limits is a policy goal that
legislatures will have to achieve.” Id. at 1090. Policy goals are not within the
proper purview of our courts. Therefore, I reject any notion that relies upon the
Fourteenth Amendment to invoke a constitutional “line” that should not be
“crossed” to achieve a policy goal of constitutionally regulating a claim for
punitive or exemplary damages where there is no historical support that it ever
was a goal of the Amendment’s ratifiers.
Cooper involved a grossly disproportionate punitive damages award under
another state’s punitive damages statute. See generally Cooper, 532 U.S. at 426-
43. Cooper neither involved nor addressed the pleading criteria for a punitive
damages claim under Florida’s punitive damages statute. See generally id.Neither the United States Supreme Court nor our Florida Supreme Court has
ever recognized any federal constitutional protection from a claim merely being
asserted for punitive damages. Instead, our Legislature has established a
statutory right, with ample procedural due process guarantees, protecting a
defendant from a punitive damages claim if the plaintiff is unable to meet the
criteria provided in section 768.72, Florida Statutes, to plead a claim for punitive
damages. See § 768.72(1)–(2), Fla. Stat. (2013).
Thus, while I concur with the en banc majority opinion, I do so without
agreeing with the suggestion the citation to Cooper makes that our federal
constitution provides substantive due process protection from a punitive or
exemplary damages claim.
16
MAY, J., concurring in result only.
I agree with the majority’s ultimate decision to reverse, but I cannot agree
with the tortured route it takes to get there. The punitive damages statute,
section 768.72, Florida Statutes (2013), has been in its present form since 1999,
more than twenty years. Trial court judges across this state have applied it with
little difficulty, getting it right most of the time. So, I do not see the need to
elaborate on the statute’s clear language nor to create a labyrinth of obstacles
for trial court judges to overcome in making their decisions.
While I appreciate the thorough and extensive work that has gone into the
majority opinion, I do not see the need for it. There is no need to discuss
statutory construction of the statute’s plain language. There is no need to
discuss a trial court’s review for clear and convincing evidence for punitive
damages at the pleading stage. There is no need to blur the distinctions between
pleading and proof—i.e., subsections one and two of section 768.72. There is no
need to resort to presumptions, to discuss the weighing of evidence, or to discuss
“ambiguous” versus “conflicting” proof.
The majority opinion cites to the recent changes made to the Florida Rules of
Appellate Procedure concerning nonfinal appeals. But the appellate rules
change simply allows us to directly review a trial court’s decision on punitive
damages at an earlier stage in the litigation, before the case turns down the
rabbit hole of the defendant’s otherwise confidential financial information. I
generally agree with the contents of Judge Gross’s and Judge Warner’s dissents.
But because I believe the majority reached the correct conclusion, which could
have been reached by simply applying the statute’s clear language, I specially
concur in the result only. I have no objection to the certified question.
WARNER, J., dissenting.
Despite stating that the trial court should make the preliminary
determination of whether to allow a plaintiff to amend a complaint to include
punitive damages without weighing the evidence, the majority states that the
trial court must also consider whether the evidence rises to the level of clear and
convincing evidence. (“[I]n ruling on a motion to amend, we interpret sections
768.72(1) and (2) to require the trial court to make a preliminary determination
of whether a reasonable jury, viewing the totality of proffered evidence in the light
most favorable to the movant, could find by clear and convincing evidence that
punitive damages are warranted.”). This inherently requires a weighing function.
I conclude that section 768.72(1) does not allow the trial court to weigh the
defendant’s evidence against the plaintiff’s evidence at the amendment stage.
Thus, I disagree with the majority’s statement that the court must consider both
parties’ evidence, as this necessitates the weighing of the evidence.
17
The majority certifies conflict with various Fifth and Second District
decisions. I agree with those courts’ interpretation of the trial court’s duty in
determining a motion to amend to allow punitive damages. In Estate of Despain
v. Avante Group, Inc., 900 So. 2d 637 (Fla. 5th DCA 2005), the court said:
[T]he standard that applies to determine whether a reasonable basis
has been shown to plead a claim for punitive damages should be
similar to the standard that is applied to determine whether a
complaint states a cause of action. Within the framework of this
standard, we will view the record evidence and the proffer in the light
most favorable to [the plaintiff] . . . .
Id. at 644 (internal citation omitted).
In Werner Enterprises, Inc. v. Mendez, 362 So. 3d 278 (Fla. 5th DCA 2023),
the court followed Despain:
Our analysis begins with what a plaintiff must do at the leave to
amend stage. Florida law requires the plaintiff to seek the trial
court’s permission before adding punitive damages to its complaint.
§ 768.72(1), Fla. Stat. (2022); see also Bistline v. Rogers, 215 So. 3d
607, 611 (Fla. 4th DCA 2017) (noting that the “statute requires the
trial court to act as a gatekeeper”). To obtain this permission, the
plaintiff must make “a reasonable showing” of having “a reasonable
basis” for the recovery of punitive damages. § 768.72(1), Fla. Stat.
The showing can be based on evidence in the record or evidence
proffered by the plaintiff. Id. “Proffered evidence is merely a
representation” of the evidence that a party proposes to present at
trial. See Grim v. State, 841 So. 2d 455, 462 (Fla. 2003).
When deciding if the plaintiff has made the required “reasonable
showing” of a “reasonable basis” for recovering punitive
damages, the trial court makes a legal determination that is
“similar to the standard that is applied to determine whether a
complaint states a cause of action.” Est. of Despain v. Avante
Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th DCA 2005); . . . Thus, the
court asks “whether a reasonable jury could infer” from the proffer
that the defendant’s conduct satisfies the statutory criteria for
punitive damages. See Varnedore v. Copeland, 210 So. 3d 741, 747
(Fla. 5th DCA 2017). When completing this task, the court views
the proffer in a light most favorable to the plaintiff. See Est. of
Despain, 900 So. 2d at 644.
Id. at 281–82 (emphasis added).
18
Most recently in Cook v. Florida Peninsula Insurance Co., 371 So. 3d 958, (Fla.
5th DCA 2023), the Fifth District again adhered to its position that the trial court
must determine whether the plaintiff has pled and offered a reasonable showing
to support punitive damages. Id. at 961–62. The court recognized that
consideration of the plaintiff’s proffer and record evidence must be made in the
light most favorable to the plaintiff. Id. at 961, 963.
The Second District has also rejected the consideration of the “clear and
convincing evidence” standard at the pleading stage. In Deaterly v. Jacobson,
313 So. 3d 798 (Fla. 2d DCA 2021), the court rejected what the majority here
seeks to impose:
Deaterly conflates the plaintiff’s burden of proof at the pleading
stage with the burden of proof at trial. The legislature has written
section 768.72(1) and (2) such that each subsection applies to
distinct stages of the litigation process. The legislature has made it
clear what is required for a claimant to plead punitive damages in
subsection (1) and the burden of proof upon the claimant at trial in
subsection (2). Under subsection (1), a trial court can allow a
claimant to add a count for punitive damages after reviewing the
evidence and concluding there is a reasonable basis for recovering
such damages. It is the plaintiff’s burden to submit evidence and
make a “reasonable showing” that establishes a reasonable basis for
recovering punitive damages. See Varnedore v. Copeland, 210 So.
3d 741, 747-48 (Fla. 5th DCA 2017). Subsection (2) clearly
expresses the quantum of evidence required at trial to find a
defendant liable for punitive damages. The basis for awarding
punitive damages against individual defendants is “if the trier of fact,
based upon clear and convincing evidence, finds the defendant
personally guilty of intentional misconduct.” § 768.72(2).
Subsection (1) does not mandate that a trial court require a claimant
to prove the entitlement to punitive damages by clear and convincing
evidence at the pleading stage. Nor does the statute expressly
require the trial court to apply subsection (2) when reviewing a
motion to amend the pleadings to add a count for punitive damages.
Such a result would circumvent the statute and impair a claimant’s
ability to plead punitive damages, and no court of this state has the
discretion “to construe an unambiguous statute in a way which
would extend, modify, or limit, its express terms or its reasonable
and obvious implications.” Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984) (emphasis omitted) (quoting Am. Bankers Life Assurance Co.
of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)).
Id. at 801.
19
What I glean from these cases is that the Second and Fifth Districts review
trial court punitive damage amendment orders by assessing the plaintiff’s proffer
of evidence, not that of the defendants, construing it liberally in favor of allowing
the amendment. The majority’s approach differs from that of the Fifth and
Second Districts by requiring the plaintiff seeking to amend to add punitive
damages to offer evidence at the pleading stage of a defendant’s liability for
punitive damages that the trial court finds would meet the clear and convincing
test. Utilizing the “clear and convincing evidence” standard as a criterion to
determine whether a plaintiff should be allowed to amend a complaint to state a
claim for punitive damages requires the trial court to weigh the quality of the
evidence. If the trial court considers conflicting evidence presented by the
defendant in evaluating the plaintiff’s proffer of a reasonable evidentiary basis
for the claim, the trial court becomes engaged in weighing the evidence, a task
which is inherently a jury function. The statute differentiates between what is
required at the pleading stage and what is required to prevail at trial. We should
not add words to the statute or deviate from legislative direction.
Since the enactment of Florida Rule of Appellate Procedure 9.130(a)(3)(G), this
court and the other district courts have seen a dramatic increase in nonfinal
appeals from orders granting or denying punitive damage claims. I
wholeheartedly agree with the majority’s certification of conflict with the
decisions of the Second and Fifth Districts. I urge our Supreme Court to take
up this issue to promote and protect the uniform application of the rule of law
on this issue. 11
GROSS, J., dissenting.
The majority opinion departs from the text of section 768.72(1), Florida
Statutes, and unnecessarily complicates the statute’s pleading requirement for
punitive damages by injecting the concept of “clear and convincing evidence” into
a court’s pretrial determination.
Section 768.72 establishes a two-level requirement for punitive damages, one
at the pleading stage and one at trial.
First, before permitting a claim for punitive damages to be asserted, section
768.72(1) requires there to be “a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for recovery
11 Unlike Judge May, I conclude that the complaint stated sufficient facts supported by
evidence to warrant the punitive damage amendment. Peerenboom and Douberley’s
investigation of the hate mail did not require releasing the results to the media. This
amounts to intentional conduct to harm Perlmutter. Providing evidence to law
enforcement of a suspected crime does not give Peerenboom and Douberley free rein to
also impugn Perlmutter through the publication by the media.
20
of such damages.” § 768.72(1), Fla. Stat. (2013). The important word is
“reasonable.” The statute says it twice.
Second, section 768.72(2) provides that 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.” § 768.72(2), Fla. Stat. (2013).
Subsection (1) establishes a pre-trial pleading test; subsection (2) sets forth
the more stringent evidentiary test to be applied at trial. This is like other tests
applied in the law, such as probable cause to arrest and proof beyond a
reasonable doubt at trial. In deciding whether probable cause exists, judges do
not view facts through the lens of the proof requirements at trial. “Probable
cause” is “a reasonable ground of suspicion supported by circumstances strong
enough in themselves to warrant a cautious person in belief that the named
suspect is guilty of the offense charged.” Johnson v. State, 660 So. 2d 648, 654
(Fla. 1995).
Yet, the majority says that “without weighing evidence or witness credibility,”
a trial judge must “make a preliminary determination of whether a reasonable
jury, viewing the totality of proffered evidence in the light most favorable to the
movant, could find by clear and convincing evidence that punitive damages are
warranted.”
The statute’s simple two-word test—“reasonable showing”—is consistent with
the long-recognized concept of “reasonableness” that appears so often in the law.
The majority’s 35-word test quoted above is far from simple and not synonymous
with a “reasonable showing.”
Also, the notion of “clear and convincing evidence” necessarily requires
weighing of the evidence, 12 a task the majority says should not be performed.
To rewrite section 768.72(1), the majority employs Latin—it reads that section
“in pari materia” with section 768.72(2). Instead of relying on the text of
12 The Florida Supreme Court has defined “clear and convincing evidence” as
an intermediate standard, more than “a preponderance of the evidence,”
but less than “beyond and to the exclusion of a reasonable doubt.” This
intermediate level of proof involves both a qualitative and quantitative
standard. The evidence must be credible; the memories of the witnesses
must be clear and without confusion; and the sum total of the evidence
must be of sufficient weight to convince the trier of fact without hesitancy.
In re Hawkins, 151 So. 3d 1200, 1212 (Fla. 2014) (citations omitted; some internal
quotation marks omitted).
21
subsection (1), the majority has looked beyond the text to justify an alternative
reading. The majority has “forgot[ten], however, why context matters: It is a tool
for understanding the terms of the law, not an excuse for rewriting them.” King
v. Burwell, 576 U.S. 473, 501 (2015) (Scalia, J., dissenting).
The legislature once considered inserting a “clear and convincing evidence”
standard at the pleading stage, but did not include it in the final version of the
bill adopting section 768.72(1).
At the session where section 768.72(1) was first adopted, a proposed bill
offered by Senators Barron, Mann, Thomas and others contained the following
alternate version of the punitive damages statute, which the Legislature
ultimately rejected:
(1) In any action for the recovery of damages based on personal
injury or wrongful death, whether in tort or in contract, the plaintiff
shall not be allowed to plead for the awarding of punitive damages
without first obtaining leave of court. Leave of the court shall not
be granted unless the court is persuaded through clear and
convincing evidence that the alleged actions of the defendant
provide a legal basis for punitive damages if such allegations are
determined to be true by the trier of fact.
Fla. SB 702 (1986) (proposing the unadopted section 768.047(1), Florida
Statutes) (emphasis supplied). The key to the proper analysis of section
768.21(1) is that the Legislature has never adopted a “clear and convincing”
standard of proof for punitive damages at the pleading stage.
There are times when judges should abide by one popular understanding of
Occam’s Razor—that between two competing interpretations of statutory text,
the simplest interpretation is likely the correct one. This case is one of those
times.
* * *
Not final until disposition of timely filed motion for rehearing.
22