In Florida, “the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a ‘game changer’ in litigation” because it “subjects the defendant to financial discovery that would otherwise be off limits” and “potentially subjects the defendant to uninsured losses.” TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, fn. 5 (Fla. 3d DCA 2016).
Traditionally, certiorari has been the mechanism for reviewing non-final orders granting or denying leave to amend a complaint to assert a claim for punitive damages. However, that standard of review is limited to whether the trial court conformed to the procedural requirements of Section 768.72, Florida Statutes. Significantly, “[c]ertiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages,” and appellate courts are “not permitted to reweigh a trial court’s finding of a sufficient evidentiary basis for a punitive damages claim.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995); Robins v. Colombo, 253 So. 3d 94, 95 (Fla. 3d DCA 2018). Thus, certiorari relief is not available to remedy an incorrect application of the law.
Recognizing the profound impact that the granting of a motion for leave to amend a complaint can have in a lawsuit, and the narrow review available to immediately challenge it, appellate judges and practitioners have long advocated for an amendment to the Florida Rules of Appellate Procedure allowing non-final orders granting such motions to be reviewed on appeal rather than via certiorari.
On January 6, 2022, the Florida Supreme Court adopted a proposed amendment to Florida Rule of Appellate Procedure 9.130 to authorize interlocutory appeals of nonfinal orders that grant or deny a motion for leave to amend a complaint to assert a claim for punitive damages. The new amendment becomes effective April 1, 2022 and provides the following:
RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS AND SPECIFIED FINAL ORDERS
(1) – (2) [No Change]
(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:
(A) – (F) [No Change]
(G) grant or deny a motion for leave to amend to assert a claim for punitive damages.
Permitting litigants to appeal non-final orders granting or denying a motion for leave to amend to assert a claim for punitive damages is itself a game changer to Florida civil practice because: (i) it will afford defendants greater protection from financial worth discovery and uninsured losses; (ii) appellate courts will no longer be constrained by a narrow standard of review; (iii) litigants will be able to obtain a preview as to whether the weight of the evidence supporting a punitive damages claim is sufficient or insufficient, and (iv) litigants will be capable of challenging a trial court’s incorrect application of the law.
The trial and appellate attorneys at Lydecker LLP have extensive experience litigating punitive damages claims in personal injury, product liability, and commercial cases. Therefore, we have the knowledge, insight, and experience to ensuring proper record development in pending cases and effective strategies for prosecuting and defending appeals of orders granting or denying leave to amend to assert a claim for punitive damages. In addition to preserving pertinent issues for appeal, a well-developed record is essential to evaluating an insured’s potential exposure and the settlement value of a case.
For more Appellate Practice expertise, or to reach our Appellate Practice department, contact Forrest Andrews.