Before bringing a punitive damages claim, seek sufficient facts through discovery to support a motion to amend your complaint to add a claim for punitive damages. Pursuant to Florida law, you are not permitted to assert a punitive damages claim in a Complaint without first seeking leave to amend. Fla. Stat. §768.72, Simeon, Inc. v. Cox 671 So. 2d 158 (Fla. 1996). This statutory section creates a substantive legal right in the defendant not to be subjected to a punitive damages claim and financial worth discovery until the trial court determines a reasonable basis for the discovery of punitive damages. Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995). Nevertheless, you are allowed to discover any evidence that appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. Fla. Stat. §768.72; Fla.R.Civ.P. R.1.280. In order to support a claim for punitive damages, the plaintiff must show that the defendant’s conduct was one of the following: (1) of gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; (2) of such entire want of care that would raise the presumption of conscious indifference; (3) that shows wantonness or recklessness or a grossly careless disregard for the public’s safety and welfare; or (4) reckless indifference to the rights of others that is equivalent to an intentional violation of those rights. White Constr. Co., Inc. v. DuPont, 455 So. 2d 1026 (Fla. 1984). The level and character of negligence necessary to sustain a punitive damages award is the same that is required to sustain a conviction for manslaughter. Chrysler Corp. v. Wolmer, 499 So. 2d 823 (Fla. 1986). If you are seeking to amend your complaint to include a claim for punitive damages, conduct discovery as soon as possible to establish record facts that will support a claim for punitive damages. Next, move to amend the complaint as early as possible so as not to delay your trial date. At the motion to amend the complaint, you should be prepared to proffer facts or present evidence that substantiates your claim for punitive damages. Once the court determines that you have a reasonable basis to recover punitive damages, then you will be allowed to amend and to discover the defendant’s financial worth. Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995). In your motion to amend, it is not necessary to prove entitlement to punitive damages. Rather, you only need to show that enough proffered facts or evidence exists for the court to allow the plaintiff to amend the complaint to include a claim for punitive damages. Fla. Stat. §768.72. The trial court should hold a hearing to decide whether sufficient support exists in the record or by proffer to allow a punitive damages claim to be alleged in the amended complaint. Fla. Stat. §768.72. During the hearing, you should show sufficient facts so that it may be inferred that the defendant acted with malice or improper intent. This is sufficient to allow an amendment to a complaint to include a claim for punitive damages. Fla. Stat. §768.72; Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352 (Fla. 1994).
When representing a client who may have a claim for punitive damages, remember to accumulate sufficient record evidence so as to substantiate your motion to amend to include a claim for punitive damages. Do not include the claim for punitive damages in your initial complaint. This will only result in having your request for punitive damages stricken. This will also show your opponent and the judge that you are not well versed in the area of punitive damages. Instead, file your complaint without a claim for punitive damages, seek early discovery to find support for your punitive damages claim, and then move to amend your complaint to include a claim for punitive damages. Support your motion with sufficient facts, documents, and affidavits to show the defendant’s conduct was punitive in nature. Obtain an order allowing you to amend your complaint for punitive damages. Amend your complaint for punitive damages, and then proceed in preparing your case for trial. If these procedural steps are not taken, then you will not be allowed to pursue your punitive damage claim regardless of how egregious the defendant’s conduct may have been in the case.