The Current Status of Punitive Damages in Florida
The Florida Supreme Court, in the case of W.R. Grace & Co.-Conn v. Waters, 638 So.2d 502 (Fla. 1994), held that successive lawsuits awarding punitive damage awards against a single defendant for the same course of conduct were appropriate. The Court restated that punitive damages are warranted 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. Winn & Lovett Grocery Company v. Archer, 126 Fla. 308, 327; 171 So. 214, 221 (1936); White Construction Company v. DuPont, 455 So.2d 1026, 1028-29 (Fla. 1984).
The Waters case was an asbestos-related personal injury claim brought against W.R. Grace seeking compensatory and punitive damages. Prior to trial, the court struck the punitive damage claim, finding that since the defendant already had punitive damages assessed against it in another case for the same course of conduct, punitive damages could not be entered against it again. The trial court ruled that the imposition of successive punitive damage awards against a single defendant for the same course of conduct was impermissible.
Multiple Punitive Damages Awards for Same Conduct
Contrary to the defendant's legal position and argument, the Florida Supreme Court refused to limit the imposition of successive punitive damage awards in mass tort and products liability litigation. Waters, 638 So.2d at 506. The Florida Supreme Court noted that limiting punitive damage awards in Florida will be particularly unfair, since punitive damages are already limited to three times the award of compensatory damages pursuant to Florida Statute §768.73 (1993). The Court reasoned that if a slightly injured plaintiff was the first to recover punitive damages against a defendant, the small award of compensatory damages would necessarily limit the amount of punitive damages significantly. Under those circumstances, it would not be proper to limit a subsequent verdict assessing punitive damages against the tort-feasor whose egregious conduct had caused injury to many persons. Waters, 638 So.2d at 505.
New Punitive Damages Trial Procedure
The Florida Supreme Court in Waters established a new trial procedure for litigating punitive damage cases in Florida courts. Waters, 638 So.2d at 506. From now on, a defendant threatened with a punitive damage claim should file a motion to bifurcate the determination of the amount of punitive damages from the remaining issues at trial. Id. The trial court is required to grant that motion. During the first portion of the trial, the jury should hear evidence regarding liability, compensatory damages, and entitlement to punitive damages. The verdict form for the initial trial should only refer to actual liability, compensatory damages, and liability for punitive damages. The amount of punitive damages should not be discussed during the initial case, nor should it be addressed on the verdict form. Id.
Once the jury makes a determination of liability, awards compensatory damages, and finds that the defendant is liable for punitive damages, a mini-trial should then be conducted where the jury will be allowed to hear evidence regarding the amount of punitive damages to be assessed against the defendant. During that portion of the trial, the plaintiff may introduce evidence of the defendant's net worth and other financial information, and the defendant may present evidence regarding its net worth, lack of ability to pay punitive damages, prior punitive damage claims entered against it, or any other relevant financial information.
After the evidence in the mini-trial has been presented, the parties may have closing argument and the jury should be provided with a verdict form that allows the jury to assess punitive damages against the defendant. This should be the only question on the mini-trial's verdict form.
Punitive Damages Procedural Requirements
Before a Plaintiff may pursue a claim for punitive damages against a Defendant, a Plaintiff must present a reasonable showing by evidence in the record or by proffer which provides a reasonable basis for the recovery of punitive damages against a Defendant. Fla.Stat. §768.72. A Plaintiff is not required to prove its punitive damages claim as to Defendant; Plaintiff must simply show that sufficient evidence exists for the Court to allow the Plaintiff to amend its complaint to include a punitive damages claim against a Defendant.
Evidentiary hearings to determine whether sufficient support exists for the punitive damages claim should be held before the court. The hearing should not be handled in conjunction with a motion for summary judgment on the issue of punitive damages. Will v. Systems Engineering Consultants, Inc., 554 So.2d 591, 592 (Fla. 3d DCA 1989). It is not necessary to prove that punitive damages should be assessed against the defendant at this portion of the litigation. There need only be sufficient evidence presented that there is factual support for a punitive damages claim.
It is not necessary to show actual malice or intent to cause the particular injuries sustained. It is enough if a Plaintiff can show or infer that the Defendant acted with malice, or improper intent. If a Plaintiff can show that the Defendant willfully pursued a course of action that would likely result in potential harm to the Plaintiff, then a punitive damages claim should be allowed. Johns-Manville v. Jansens, 463 So.2d at 242, 247 (Fla. 1st DCA 1984). If an award of punitive damages may be supported under any view of the evidence, then, the issue becomes one for the fact-finder to decide. Id at 248.
Trial attorneys representing plaintiffs in cases where punitive damages may be available must make sure to follow the requirements of Florida Statute §768.72, so as to timely move to amend the complaint to include a claim for punitive damages. This must be done early enough so that the trial of the case is not interrupted.
Once the court has allowed a claim for punitive damages, the plaintiff's lawyer will be allowed to present all evidence necessary for the entry of a finding that punitive damages should be assessed against the defendant during the main case. No evidence of the amount of punitive damages should be presented during this first case. Rather, as per the supreme court's holding in Waters, once a defendant files a motion to bifurcate the issue of punitive damages, the evidence of the amount of punitive damages must be presented in a separate mini-trial. Waters, 638 So.2d at 506.
Attorneys representing defendants who have been accused of committing acts and omissions warranting an assessment of punitive damages should aggressively defend against punitive damages from the start of the case. Counsel for the defense should not permit a punitive damages claim to be brought against their clients unless leave of court has been sought to include a claim for punitive damages and, only after a special hearing has been held where a proffer is made or evidence shown supporting the motion to amend to include a claim for punitive damages.
If the motion to add a claim for punitive damages is allowed, the defense should later challenge the punitive damages claim with a motion for summary judgment. If unsuccessful, the defense should immediately move to bifurcate the issue of punitive damages from the liability and compensatory damage portion of the trial.
A punitive damages claim against individuals and entities that commit fraudulent, malicious, deliberately violent or oppressive, or grossly negligent acts are still valid causes of action in the State of Florida. Nevertheless, the Florida Supreme Court has created a new trial procedure for the presentation of punitive damage claims in Florida courts. Thus, attorneys presented with a punitive damage case should carefully read the Supreme Court's Waters decision in preparing for trial.