Florida Adopts Rule Change to Allow for Immediate Appellate Review for Claims Related to Punitive Damages

Author: Jodi Cohen

Guest Editor: Grace Shuman

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June 7, 2022 10:08am


On January 6, 2022, the Florida Supreme Court adopted a rule change allowing a party to seek immediate nonfinal appellate review of an order granting or denying a motion for leave to amend a complaint to assert a claim for punitive damages.  The Florida Supreme Court approved the amendment to the Florida Rules of Appellate Procedure 9.130 with a vote of 6-1.[i]

The rule amendment was initiated, at the direction of the Florida Supreme Court, by the Florida Bar’s Appellate Court Rules Committee, which proposed an amendment to Florida Rule of Appellate Procedure 9.130 to allow for interlocutory review in such circumstances.

In Florida, punitive damages are not immediately available to plaintiffs or counter-plaintiffs.  Florida Statute §768.72 prohibits claims for punitive damages absent “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”[ii]  In other words, parties seeking to add punitive damage claims may only do so after submitting a sufficient evidentiary proffer.  The proffer must contain evidence of the non-moving party’s willful misconduct or gross negligence.  Once leave is granted, the party against whom punitive damages are sought may be required to disclose sensitive – and previously protected – financial information in discovery.  This is in addition to being exposed to significantly increased financial liability.

Prior to this amendment, an appellate court’s ability to review a trial court order granting leave to assert a punitive damages claim was limited.  Previously, parties had no recourse to immediately appeal any order granting or denying leave to amend a complaint or counterclaim.  Challenges were only appropriate at the conclusion of the litigation and entry of final judgment.  Prior to the amendment, a party could only appeal such an order by petitioning for a writ of certiorari.[iii]  Specifically, the previous rule (and corresponding case law) prohibited a substantive review of evidence presented by a plaintiff in support of the requested amendment prior to final appeal.  And in that posture, the appellate court’s review was limited only to whether the trial court complied with the procedural requirements for making such a claim.  Appellate courts operating within certiorari jurisdiction were barred from reviewing whether the trial court erred in accepting or rejecting that evidence as a reasonable basis for punitive damages.

With this latest amendment to Rule 9.130, litigants are free to appeal trial court orders on leave to amend for punitive damages without seeking a writ of certiorari.  This means the Florida appellate courts will be able to immediately review trial orders regarding punitive damages claims on both procedural and substantive grounds.  Now, the merits of a plaintiff’s punitive damages claim can be appeals prior to any discovery of a defendant’s financial information.

Florida appellate courts have recognized the need for immediate review of orders granting or denying a motion for leave to assert punitive damages claim and noted that they were constrained by the prior review standard, which application often resulted in punitive damages being allowed to move forward.  With this rule, parties will be able to seek immediate review should they determine such review is necessary.  The rule amendment also will ensure that a party seeking leave to assert a punitive damages claim has overcome the bar to asserting such claim with sufficient evidence.  Finally, because the granting or denying of leave to assert a punitive damages claim is a “game-changer,” exposing defendants to intrusive financial worth discovery and potentially large verdicts, the newly authorize plenary review of such a decision at an interlocutory stage is an appropriate measure and important development in Florida law.  The rule amendment goes into effect April 1, 2022.




[i] IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130, No. SC21-129, S. Ct. of Fla. (Jan. 6, 2022).

[ii] Florida Statute §768.72.

[iii] See Globe Newspaper Co. v. King, 685 So. 2d 518 (Fla. 1995).

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