Justice Delayed
By Darci Cohen | April 1, 2022
APRIL 1, 2022. Today a new amendment to the Florida Rules of Appellate Procedure goes in to effect impacting punitive damages.
Miami is filled with sunshine, beaches and a whole lot of fraud. A simple Google search makes clear that Miami is home to a hodge-podge of shady people with rather impressive tans. An arrow in a plaintiff attorney’s quiver to punish the underbelly of our burgeoning metropolis has been the right to seek punitive damages without delay. Regrettably, a recent amendment to Florida Rules of Appellate Procedure have made the road to recovery long and winding.
By way of background, punitive damages seek to punish a party for its egregious conduct based on its financial ability to pay. These damages, pursuant to Florida Statutes Section 768.73, are awarded in addition to actual damages and can be more than four times the actual damages suffered if the jury finds that the bad actor had intent to harm and did in fact harm.
The way the process works is that a (skilled) attorney during discovery rolls up their sleeves and obtains evidence that defendant took measured actions with the specific intent of harm. This attorney then presents to the judge in the trial court the evidence of fraud that has been uncovered so that the judge can determine if the misconduct is appropriate to be presented to a jury for punitive damages. If the attorney is artful in painting the picture of intentional misconduct focused on harm, then leave is permitted to seek punitive damages. An important consequence of this ruling is that plaintiff is entitled to obtain financial discovery from defendant to determine its ability to pay the punitive damages. This typically results in a deep pocketed defendant thinking twice before passing go and heading to trial.
Until recently, challenges to a punitive damages award were only actionable after entry of final judgement or by writ of certiorari if the trial court did not follow the proper procedure set forth in Fla. Stat. § 768.72. Meaning, defendants had little chance avoiding a jury determining their fate for this egregious conduct and appropriately punishing. However, a recent amendment to the Florida Rules of Appellate Procedure has taken the oomph (a term just added to Black Law’s Dictionary) out of Florida’s punitive damages statute. Effective April 1, 2022, the Rules authorize a defendant to seek an immediate appeal of an order that grants a plaintiff leave to seek punitive damages. Such orders now become “non-final” orders eligible for interlocutory appeal. See Fla. R. App. P. 9.130.
While this ability for a plaintiff to seek punitive damages still exists and will continue to be widely used in the instances of extreme and repulsive behavior, plaintiffs may now opt to forgo a claim for punitive damages altogether as they may face a long and winding road when a defendant (inevitably) appeals an order for leave to seek punitive damages to prevent or delay net worth discovery. Read Justice Jorge Labarga’s dissent to this amendment here.
