The Florida Supreme Court has once again reaffirmed the importance of strict adherence to Section 768.72, Florida Statutes (1987), which dictates the procedural requirements a plaintiff and trial court must follow before punitive damages can be sought. In Simeon, Inc. v. Cox, 21 Fla. L. Weekly S. 153 (Fla. April 4, 1996), the supreme court held that a complaint which is signed by the plaintiffs under oath is insufficient to fulfill the procedural requirements of Section 768.72, Florida Statutes.
Section 768.72, Florida Statutes, prevents the maintenance of a claim for punitive damages unless: ... 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 ...
Prior Leave Necessary
The Florida Supreme Court was unambiguous in its interpretation of this statutes when it held the plain meaning of Section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before a court may allow a claim for punitive damages to be included in a plaintiff's complaint. Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995). Thus, punitive damages may be sought only with prior leave of court. Simeon, Inc. v. Cox, 21 Fla. L. Weekly S. 154. The trial court is required to make a determination that there exists a reasonable evidentiary basis for recovery of punitive damages. Globe Newspaper Co. v. King, 658 So. 2d at 520.
The requirement that a plaintiff must provide the trial court a reasonable evidentiary basis prior to seeking punitive damages has become well established. For example, in Mayer v. Frank, 659 So. 2d 1254 (Fla. 4th DCA 1995), plaintiff's complaint sought punitive damages without prior leave of court. The trial court denied the defendant's Motion to Strike the punitive damages claim; however, a dispute existed as to whether the trial court's denial of the Motion to Strike was based on the allegations in the pleadings or the defendant's failure to attend the hearing on the Motion to Strike. The appellate court held that the undisputed facts demonstrated that the trial court failed to follow the procedural requirements of Section 768.72 in permitting a claim for punitive damages without prior trial court authorization. Id. at 1255.
Likewise, in Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106 (Fla. 4th DCA), rev. denied, 642 So. 2d 1363 (Fla. 1994), plaintiff's initial complaint asserted a claim for punitive damages without prior leave of court. The trial court denied the defendant's Motion to Strike the punitive damages claim "without prejudice" and directed the plaintiff to schedule a hearing within ninety (90) days to make the required evidentiary showing. The appellate court held that the trial court erred in permitting plaintiff maintain a claim for punitive damages without prior court authorization. Id. at 107. See also, Henn v. Sandler, 589 So. 2d 1334 (Fla. 4th DCA 1991) (trial court required to make finding of reasonable evidentiary basis for punitive damages prior to permitting financial worth discovery of plaintiff).
Differing Interpretations
Despite these clear holdings and the pronouncement of the Florida Supreme Court in the Globe Newspaper case, the Fifth District Court of Appeal failed to require compliance of Section 768.72, Florida Statutes in Simeon, Inc. v. Cox, 655 So. 2d 156 (Fla. 5th DCA 1995). In Simeon, plaintiff filed a claim for assault, intentional inflection of emotional distress, and malicious prosecution. The complaint contained detailed accounts of the facts underlying the suit which included the defendant throwing bar stools, staplers, movie video tapes at the plaintiff and referring to her as "an idiotic bitch," "thief," "stupid fucking bitch" in the presence of others and repeatedly falsely accused her stealing money.
The complaint was sworn by plaintiffs under oath and contained the notarized signatures of both plaintiffs. The appellate court held that Section 768.72 requires only that the claimant proffer sufficient evidence to allow the court to permit a claim for punitive damages, but does not require the trial court to hold a hearing to make such a determination. Id. at 158. The court therefore, held that plaintiff's sworn complaint was sufficient to fulfill the requirements of Section 768.72. Id. The supreme court reversed the Fifth District holding that prior to asserting a claim for punitive damages, a plaintiff must seek leave of court. Simeon, Inc. v. Cox, 21 Fla. L. Weekly at S. 154.
The rational underlying the requirement of strict adherence to Section 768.72 is that this statute creates a "substantive legal right not to be subject to a punitive damage claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). Because this section creates a substantive legal right, the supreme court has held that a defendant may seek certiorari review to determine whether the trial court has conformed with the procedural requirements of Section 768.72. Simeon, Inc. v. Cox, 21 Fla. L. Weekly at S. 154; Globe Newspaper Co., 658 So. 2d at 520. In Globe, the supreme court stated, "we therefore agree with the district court in Henn and Craft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of Section 768.72 has not been followed." Globe Newspaper Co., 658 So. 2d at 520. However, appellate courts may not review the sufficiency of the evidence considered by the trial court in determining whether punitive damages may be asserted. Simone, Inc., 21 Fla. L. Weekly at S. 154; Globe Newspaper Co., 658 So. 2d at 520.
Conclusion
The Florida Supreme Court has again reaffirmed the importance of strick adherence to the procedural requirements of Section 768.72, Florida Statutes. While the court has not directed what type of evidence will suffice to allow a trial court to permit punitive damages to be asserted, it is clear that a trial court must first conclude that a reasonable evidentiary basis exists before punitive damages can be asserted. Indeed, the court has left open what form of evidence the trial court must require from a plaintiff before authorizing punitive damages.