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Punitive damages may be awarded in civil actions as a form of punishment to deter others from engaging in conduct similar to the defendant.  Punitive damages are only available for certain claims, such as intentional torts, and only if the defendant is personally guilty of the misconduct.  Actions for tortious interference, conversion, and other business torts may give rise to an award of punitive damages.


Before a claim for punitive damages may be asserted, Section 768.72 of the Florida Statutes requires “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”  In other words, a defendant cannot be subject to a claim for punitive damages, and financial worth discovery, unless and until the trial court determines that there is a reasonable evidentiary basis to recover punitive damages. The plaintiff must seek leave to amend the complaint and proffer a reasonable evidentiary basis for punitive damages before the court.

The Fourth DCA recently confirmed that the Florida statute requires more than mere allegations and stated:

an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true.

Instead, trial courts must determine whether the plaintiff established a reasonable evidentiary basis to recover punitive damages and to show that the misconduct rises to a level of culpability that supports punishment.  Without such a showing, a claim for punitive damages is precluded.

Defendants faced with claims for punitive damages should closely scrutinize whether the plaintiff has established the necessary evidentiary basis and be prepared to challenge any unsupported claims.