January 11, 2022

Florida Rule Change Permits Immediate Appeals on Punitive Damages

The Florida Supreme Court has accepted a proposed rule amendment to permit interlocutory appeals of court orders on punitive damages claims. On January 6, 2022, the Florida Supreme Court approved by 6-1 an amendment to Florida Rule of Appellate Procedure 9.130 to allow interlocutory appeals of nonfinal orders granting or denying leave to amend a complaint to assert a claim for punitive damages. Prior to this amendment, a party could only appeal such an order by petitioning for a writ of certiorari. And in that posture, the appellate court’s review was limited only to whether the trial court complied with the procedural requirements for making such a claim.

Practically, this means Florida appellate courts will be able to immediately review trial court orders regarding punitive damages claims on both procedural and substantive grounds. With this amendment, the merits of a plaintiff’s punitive damages claim can now be appealed prior to any discovery of a defendant’s financial information. The new rule takes effect April 1, 2022.

The Florida Defense Lawyers Association (FDLA) supported the rule amendment, seeing it as a strong step towards preserving the privacy of a defendant’s financial information that is protected by the Florida Constitution. Previously, a defendant would have to wait until after final judgment was entered to appeal the substance of a plaintiff’s punitive damages claim — by which time a defendant’s private financial information already may have been subject to discovery. Now, such discovery can justifiably be guarded until the interlocutory appeal is decided. Further, FDLA recognized that the rule change would give teeth to Florida’s mandate that a plaintiff make a reasonable showing by evidence in the record or a proffer providing a reasonable basis for punitive damages (see Section 768.72, Florida Statutes). Under the new rule, a defendant has an earlier opportunity to test the sufficiency of the evidence or proffer submitted by a plaintiff.

Other commenters expressed concern that the amendment would increase case delays and appellate caseloads. In his dissent, Justice Jorge Labarga believed it was reasonable to anticipate delays in civil cases with punitive damages claims, which could lead some claimants to “reluctantly forgo meritorious claims for punitive damages.” He also expressed concern for burdening the appellate court dockets.

The Florida Justice Association shared similar concerns in its comment on the proposed amendment. It believed the amendment to be a solution with no corresponding problem — that the existing requirements for asserting a punitive damages claim and the existing remedies for review of such a claim are sufficient. It also cited protective orders as an appropriate measure for keeping a defendant’s financial information private.

None of these concerns gained traction. Accordingly, beginning April 1, 2022, Florida litigants will have the right to seek immediate appellate review of a trial court’s order granting or denying a motion to assert punitive damages against a defendant.

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