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Florida Second DCA rules that “clear and convincing evidence” standard does not apply to motion to add punitive damages claim

On January 6, 2021, in Deaterly v. Jacobson, No. 2D20-636, the Florida Second DCA denied the certiorari petition of a defendant in a civil lawsuit who objected to a trial court order which had granted the plaintiff’s motion to amend his complaint to add a punitive damages claim.  The complaint alleged intentional infliction of emotional distress, negligence, assault, and trespass to chattels arising from an incident in which the defendant shot and killed the plaintiff’s dog.  The defendant argued that the trial court should have required the plaintiff to establish a reasonable basis for recovery of punitive damages under a clear and convincing evidence standard.  The Second DCA noted that the trial court had specifically tracked the language of the relevant statute, Fla. Stat. § 768.72, and the relevant procedural rule, Fla. R. Civ. P. 1.190(f), which require “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Neither the statute nor the procedural rule specifically refers to the clear and convincing standard in addressing pleading rules, although subsection (2) of §768.72 requires proof by clear and convincing evidence at trial to hold a defendant liable for punitive damages.  The Second DCA found that the defendant had conflated the plaintiff’s burden of proof at the pleading stage and at trial and that the defendant’s interpretation would in effect circumvent the statute and impair a claimant’s ability to plead punitive damages.