I am seeking punitive damages and will include reservation to so claim per sec. 786.72 in my compliant I am drafting as pro se Plaintiff. Thus I will need to serve a motion under Fl. Sta. 786.72 and notice a hearing. Am I permitted to serve the motion on defendant and notice the hearing simultaneously with serving the underlying complaint on Defendants. if not when is the soonest I am permitted to do so? I understand punitive damages claims are always challenging to obtain in Florida. But I am unfortunate to have suffered from a relatively an open and shut case .
You must first prevail on the underlying claim in order to obtain punitive damages. Punitive damages are meant to punish a tortfeasor for egregiously bad behavior, and punitive damages are not available in many causes of action, like contract cases.
There is no such thing as an "open and shut case," and if your case is so good, you should have no problem finding a lawyer to take it on contingency. The fact that yiu are asking such a question shows you are in over your head, and the water isn't that deep yet. Please get a free consultation.
The seminal standard for the character of negligence necessary to obtain an award of punitive damages was initially established in Carraway v. Revell, 116 So. 2d 16, 20 n.12 (Fla. 1959) (cit. omit.) as follows:
The character of negligence necessary to sustain an award of punitive damages must be of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. This definition appears to be in line with the weight of authority as to the character of negligence necessary to be shown to sustain criminal liability.
The Legislature substantially revised the statutory scheme for punitive damages in the 1999 Tort Reform Act. However, while the Legislature replaced the pertinent language developed by the courts with statutory definitions for intentional misconduct and gross negligence, “these definitions appear consistent with the standard for punitive damage awards adopted by the courts.” 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 15.4 (2008 ed.); See Tiger Point Golf and Country Club v. Hipple, --- So. 2d ---, 2007 WL 4438923 *1 (Fla. 1st DCA 2007); Estate of Williams v. Tandem Health Care of FL, Inc., 899 So. 2d 369 (Fla. 1st DCA 2005).
Be aware, however, that you are not permitted to plead punitive damages without leave of court. Thus, you are not permitted to assert punitive damages in an initial complaint, or even a reservation therein to seek punitive damages in the future. Additionally, the standards for pleading punitive damages against a corporation are more difficult than merely asserting them against an individual. The plain meaning of Section 768.72 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. Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106 (Fla. 4th DCA 1994). Stated otherwise, the courts “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.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995).
In the case where the defendant is a corporation, Section 768.72(3), Fla. Stat. provides very specific prerequisites for amending the complaint to add punitive damages. The Statute establishes that a plaintiff must prove two separate requirements before there can be any punitive damage claim against a corporation:
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.
