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Florida Second DCA reverses $15 million punitive damages judgment against Florida Power & Light Company in wrongful death case; finds insufficient evidence of willful and malicious conduct by “managing agent” of corporation

On October 25, 2019, in Florida Power & Light Company v. Dominguez, No. 2D18-2363, the Florida Second DCA reversed a $15 million punitive damages judgment against Florida Power & Light Company in wrongful death case, finding insufficient evidence of willful and malicious conduct by a “managing agent” of corporation. The case arose as a result of a tragic accident involving a 15-year-old boy who was electrocuted and killed by a power line which touched a bamboo stalk he was climbing. The plaintiff, his mother, alleged that FPL was negligent because it failed to follow its own maintenance and safety standards when it failed to remove the bamboo, a fast growing and uncontrollable plant, from the area near the line. She opted to pursue a direct corporate liability theory for punitive damages, which required her to prove that FPL itself engaged in conduct that 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," and that conduct contributed to the loss of the injured party. § 768.72(2)(b), (3)(c), Fla. Stat. (2013). Moreover, because a corporation cannot act on its own, "there must be a showing of willful and malicious action on the part of a managing agent of the corporation" to establish direct punitive liability. Partington v. Metallic Eng'g Co., Inc., 792 So. 2d 498, 501 (Fla. 4th DCA 2001) (citing Schropp, 654 So. 2d at 1159). The plaintiff argued that punitive liability attached to FPL through the behavior of the head of vegetation management for the region in which the accident occurred and the person identified by FPL as being the most knowledgeable about its vegetation management program. The Second DCA concluded the head of vegetation management did not qualify as “managing agent”, noting that caselaw suggests that a “managing agent” such an agent is more than just a manager or midlevel employee. See Ryder Truck Rental, Inc. v. Partington, 710 So. 2d 575, 576 (Fla. 4th DCA 1998) ("[A] job foreman is not, as required for imposing direct liability, a managing agent of the company."); Capital Bank v. MVB, Inc., 644 So. 2d 515, 521 (Fla. 3d DCA 1994) (citing Bankers Multiple Line Ins. Co. v. Farish, 464 So. 2d 530 (Fla.1985)) (holding that one of several bank vice presidents, who was not on the board of directors or the loan committee, did not qualify as a managing agent); Pier 66 Co. v. Poulos, 542 So. 2d 377, 381 (Fla. 4th DCA 1989) (holding that a hotel manager was not a managing agent of the corporation that owned the hotel). Rather, 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." Taylor v. Gunter Trucking Co., Inc., 520 So. 2d 624, 625 (Fla. 1st DCA 1988). The Second DCA alternatively concluded that even if he was a managing agent, punitive damages would be warranted only if his conduct was” equivalent to the conduct involved in criminal manslaughter," quoting Valladares v. Bank of Am. Corp., 197 So. 3d 1, 11 (Fla. 2016), and that his conduct did not meet this standard.