During a webinar for the Florida Defense Lawyers Association (FDLA), RumbergerKirk Founding Partner Dick Caldwell reviewed statutory requirements for punitive damages and analyzed recent cases on the proof needed to support such claims under Fla. Stat. § 762.72.

There have been significant differences among the Florida District Courts of Appeal (DCA) concerning the burden plaintiffs bear in convincing the trial court to allow a punitive damages claim to be made.

Under the statute, Fla. Stat. sec. 768.72 et seq., plaintiffs must file a motion seeking leave to add a punitive damages count to the complaint. This motion must provide a “… reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Most of the cases which have been decided to date have concerned whether plaintiffs have been able to carry this burden, and the vast majority of decisions to date have rejected plaintiffs’ attempts to add the punitive damages claim. The 5^th DCA’s approach has been by far the most liberal, while the 4^th DCA has required a more complete showing by plaintiffs.

In October 2025, the Florida Supreme Court will hold oral arguments on Federal Ins. Co. v. Perlmutter, a case currently pending before the Supreme Court of Florida on certiorari from the Florida 4th District Court of Appeal. It is anticipated that this decision may resolve conflicts among the approaches undertaken by appellate courts concerning the quantum of proof necessary to add a claim for punitive damages to the case.