USA – FLORIDA Trends and Developments Contributed by: John David Dickenson, Nicole Connors and Juan Garrido, Cozen O’Connor
Punitive Damages: A Clarified Pleading Threshold and a New Appellate Route Punitive damages have become one of the most active areas of Florida civil practice. A 2022 amend- ment to Florida’s appellate rules permits an immedi- ate appeal from an order granting or denying leave to assert a claim for punitive damages. Those orders are reviewed afresh on appeal, and the new appellate route has produced a significant body of decisions. The principal development in 2026 came when the Florida Supreme Court resolved a conflict among the District Courts of Appeal concerning the evidentiary showing required to plead punitive damages. In Perl- mutter v Federal Insurance Company , 434 So. 3d 681 (Fla. 2026), the Court held that the “clear and con- vincing evidence” standard, which a claimant must ultimately satisfy at trial, does not apply when the trial court decides whether to permit a punitive-damages claim. At the pleading stage, the claimant need only make a reasonable evidentiary showing from which a rea- sonable person could conclude that the defendant engaged in intentional misconduct or gross negli- gence. The Court therefore rejected the more demand- ing preliminary showing adopted by one District Court of Appeal and established a lower, more claimant- friendly threshold for seeking punitive damages.
Perlmutter also has particular significance for insurers defending claims against employers. To plead puni- tive damages against an employer based on vicarious liability, a claimant must make a reasonable showing as to the separate statutory requirements in Section 768.72 (3) of the Florida Statutes, which concern the employer’s own participation in, condonation of or ratification of the underlying conduct. This creates an important distinction between ordi- nary fault and punitive exposure. As decisions such as Jackson illustrate, an employer may not receive a separate allocation of ordinary fault in addition to the employee’s share. Nevertheless, the employer may still face punitive exposure based on its own statuto- rily specified conduct. For insurers evaluating poten- tial exposure, the combination of a more accessible pleading threshold and a separate route to punitive liability against an employer warrants close attention.
318 I NSURANCE L I T IGATI O N 2026
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