On June 11, 2026, the Florida Supreme Court handed down a decision that both plaintiff and defense lawyers across the state had been waiting for. In Perlmutter v. Federal Insurance Co.,  No. SC2024-0058, 2026 WL 1689765 (Fla. 2026), Chief Justice Muñiz, writing for a unanimous court, resolved a long-running conflict among Florida’s appellate courts about how hard a plaintiff must work to add a punitive damages claim to his or her lawsuit. The core takeaway: the demanding “clear and convincing evidence” standard that applies at trial does not apply at the pleading stage, and the trial court looks only at the plaintiff’s evidence when deciding whether to allow the claim. For defendants, this means a clearer, if narrower, target for opposition.

Perlmutter arose from an acrimonious dispute between neighbors over the management of Sloan’s Curve, a Palm Beach community. After Harold Peerenboom sued Isaac “Ike” and Laura Perlmutter for defamation over an alleged hate-mail campaign, the Perlmutters counterclaimed and moved to add punitive damages against Peerenboom, William Douberley (Peerenboom’s counsel in a separate matter) and Douberley’s employer, Federal Insurance Company, alleging a scheme to surreptitiously collect their DNA and use falsified results against them. The trial court granted the motion, but the Fourth District, sitting en banc, reversed and certified both conflict with decisions of the Second and Fifth Districts.

The Fourth District’s en banc opinion merits closer attention, as it framed the precise question that the Supreme Court would ultimately confront. Construing section 768.72(1) and (2), the court held that “a reasonable showing by evidence” of “a reasonable basis” for punitive damages requires the movant to demonstrate that it “will be able to produce competent, substantial evidence at trial upon which a rational trier of fact could find that the defendant specifically intended to engage in intentional or grossly negligent misconduct that was outrageous and reprehensible enough to merit punishment.” Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 33–34 (Fla. 4th DCA 2023). In doing so, the court emphasized the gate-keeping function of the trial court and found the clear and convincing standard to be required at the pleading stage, “because [the] statutory provisions must be read in pari materia[.]” Id. at 32-34.

The court certified a question of great public importance: whether section 768.72(1) and (2), read together, “require a trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of evidence identified in support of or opposition to the motion, and in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted?” Id. at 38. That certified question framed the narrow but consequential issue that the Supreme Court agreed to resolve.

The Court answered the certified question with a clear “no.” The clear and convincing evidence standard does not apply when a trial court evaluates whether to allow a punitive damages claim at the pleading stage. Instead, pulling from Bric McMann Industries, Inc. v. Regatta Beach Club Condominium Ass’n (Fla. 2d DCA 2023), the Court found the correct test to be whether a reasonable person could conclude, based on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence” as defined in section 768.72(2). Perlmutter, 2026 WL 1689765, at *4.

Perhaps the most consequential holding: the trial court should consider only the evidence identified or proffered by the claimant and “[i]t should not entertain an evidentiary counter-submission from the opponent.” Id. The Court’s reasoning is straightforward: the statutory text contemplates a burden of production for the claimant while making no mention of any role for the opponent. Id. at *5. The point is to ensure the claimant can show evidentiary support, not to evaluate that showing against contrary evidence. Id. The Court analogized to a motion to dismiss, where affidavits, discovery and testimony cannot be used to support or attack the pleading. Id.

The Court emphasized that the trial court is not acting as a fact-finder at this stage. It must not weigh the claimant’s evidence or decide credibility, and it must view the record in the light most favorable to the plaintiff. Id. at *3. The Court rejected the respondents’ analogy to summary judgment, declining to treat the section 768.72(1) proceeding as a “preemptive summary judgment hearing.” It noted that the 768.72 showing “must ultimately be a lesser standard than that required for summary judgment.” Id. at *7. Summary judgment remains available later as a screening tool.

The Court also pushed back on the argument that its reading guts the trial court’s gatekeeping role and in support referenced several examples where courts implementing the “reasonableness” standard denied leave. Id. For example, in the Third District, the court found plaintiff’s attempt to add a claim for punitives would fail under any standard where plaintiff could not make a showing of either gross negligence or intentional misconduct against a delivery driver and his foodservice employer after a stacked box of frozen food allegedly fell on plaintiff. McLane Foodservice Inc. v. Wool, 400 So. 3d 757, 761-62 (Fla. 3d DCA 2024). In the Second District, a claim for punitive damages was denied where plaintiff failed to make a reasonable showing that the defendant was grossly negligent where it was accused of failing to adequately secure an end cap, allegedly resulting in it falling on and injuring plaintiff. Publix Supermarkets, Inc. v. Levi, 399 So. 3d 1212, 1213-14 (Fla. 2d DCA 2024).

Lastly, the Court was careful to treat employer and corporate liability as a separate inquiry. It explained that when a claimant seeks to plead punitive damages against an employer on a vicarious-liability theory, the evidentiary-sufficiency test “also must ask whether a reasonable person could conclude that the claimant’s evidence satisfies the substantive legal criteria set out in section 768.72(3).” Perlmutter, 2026 WL 1689765, at *4. Yet the Court pointedly declined to resolve how that inquiry applied to the Perlmutters’ claims. The Fourth District had separately concluded that the Perlmutters failed to show the employer had the specific intent to engage in the alleged misconduct under section 768.72(3)(a), but the Supreme Court neither endorsed nor disturbed that analysis, expressing “no view on the merits of the Fourth District’s analysis as it relates to . . . the application of section 768.72(3)” and left the question open on remand. Id. at *7. The upshot: the Court confirmed that section 768.72(3) imposes its own, distinct requirements.

So what does this mean in the trenches? Here are the key strategic takeaways for defense practitioners:

1. Recognize the hearing is now a one-sided affair. Because the trial court considers only the plaintiff’s evidence, defendants generally cannot win the pleading-stage hearing by submitting rebuttal affidavits or competing evidence. Adjust your strategy accordingly.
2. Attack the sufficiency of the plaintiff’s own proffer. The winning question is whether a reasonable person could conclude, from the plaintiff’s evidence alone, that the conduct meets the statutory definitions. Probe gaps, conclusory assertions and over-reliance on stacking inferences within the plaintiff’s submission.
3. Make the statutory definitions the battleground. Hold plaintiffs to the precise elements: for “intentional misconduct,” actual knowledge of wrongfulness plus a high probability of injury; for “gross negligence,” conduct amounting to a conscious disregard for others’ safety or rights. Argue that even taken in the best light, the proffer doesn’t reasonably support those elements.
4. For corporate clients, press section 768.72(3) separately. Vicarious punitive liability has its own requirements: active participation, knowing condonation or ratification or the entity’s own gross negligence. The Court expressly left this issue open, so it remains fertile ground for defense arguments; although, it will have to be pursued later in litigation.
5. Tie the punitive request to the underlying claims. Since punitive damages are auxiliary to an underlying cause of action, weaknesses in the underlying claim are fair game and should be highlighted at the hearing.
6. Build the record early. Even though you cannot submit counter-evidence at the hearing, develop discovery and evidence that will support later dispositive motions and trial defenses on the heightened clear-and-convincing standard.
7. Don’t treat a loss at the pleading stage as the end. The section 768.72(1) bar is deliberately less demanding than summary judgment. If the court grants leave, you still have summary judgment, directed verdict and the clear-and-convincing standard at trial as later screening tools.

Perlmutter trades a tougher, heightened screen for a simpler, plaintiff-friendly one at the pleading stage. That’s the new reality. But the statute’s gatekeeping role, and a defendant’s substantive right against premature financial-worth discovery, remain intact. The real defense battles will increasingly happen in two places: on the sufficiency of the plaintiff’s own proffer at the hearing, and later in the case when the clear-and-convincing standard kicks in with full force. For defense firms, the message is clear: adapt your strategy to the one-sided nature of the hearing, and build your case for the fights that come after.