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Monday, January 10, 2022

Litigation & Appellate Alert: Punitive Damages - What Attorneys Need To Know

By: Esther E. Galicia

For decades, discretionary certiorari review was the sole mechanism for an interlocutory appeal of orders granting or denying leave to plead a punitive damages claim. Review was, moreover, limited to whether the procedural requirements of Section 768.72 were adhered to. 

On January 6, 2022, the Supreme Court of Florida, in a 6-1 decision, expanded review of such rulings by amending Florida Rule of Appellate Procedure 9.130 to add subdivision (a)(3)(G). In Re: Amendment to Florida Rule of Appellate Procedure 9.130, No. SC21-129, 2022 WL 57943 (Fla. Jan. 6, 2022). The new provision confers as-of-right, non-discretionary immediate review of a nonfinal order that “grant[s] or den[ies] a motion for leave to amend to assert a claim for punitive damages.” Id. at *1. Rule 9.130(a)(3)(G) becomes effective at 12:01 a.m. on April 1, 2022 (No April Fools).
The newly-added appellate tool ostensibly allows an appellant to challenge rulings on the sufficiency of the proffered evidence in support of punitive damages. This issue was typically off-limits and evaded review via a petition for writ of certiorari.
Justice Labarga, the only dissenter, objected to the majority’s “clearing the way for immediate interlocutory appeal.” Id. In his opinion, the new appellate remedy “will necessarily stall” the case while the district court determines “whether the claim for punitive damages was properly permitted.” Id. Justice Labarga also observed that the majority’s privacy concerns regarding the financial information subject to production once punitive damages are asserted “can be effectively protected by a confidentiality order entered upon the request of the disclosing party.” Id. at *2.
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