For Florida trial practitioners, motions to amend a complaint to add a claim for punitive damages have been mired in procedural uncertainty. Section 768.72(1) of the Florida Statutes requires a claimant to make a “reasonable showing” of evidence before pleading punitive damages, but what exactly does that mean in practice?
Until recently, the answer heavily depended on which district you were litigating in. However, the Florida Supreme Court’s recent decision in Perlmutter v. Federal Insurance Company, No. SC2024-0058 (Fla. June 11, 2026) has resolved the conflict among Florida’s district courts of appeal. The court definitively interpreted the statutory standard, rejecting the Fourth District Court of Appeal’s strict, trial-like burden at the pleading stage.
For trial lawyers in districts that had not yet weighed in on this issue, this ruling provides immediate, much-needed clarity on how trial courts must evaluate these motions going forward.
The District Split: The Fourth’s En Banc Departure
The core of the dispute centered on interpreting the first sentence of section 768.72(1), which forbids a punitive-damages claim unless there is “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery.”
In an en banc decision, the Fourth District Court of Appeal interpreted the language in a manner that created a high hurdle for claiming punitive damages. See Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). Reading section 768.72(1) in conjunction with section 768.72(2), the Fourth District established a two-pronged test that required the trial court to:
- consider the evidentiary showings presented by all parties at the hearing, including counter-evidence submitted by the opponent; and
- make a preliminary determination as to whether a reasonable jury could find that punitive damages were warranted by clear and convincing evidence.
This interpretation functionally transformed the pleading stage into a preemptive summary judgment hearing, directly conflicting with opinions of the Second District and Fifth District, which applied a less rigorous standard.
The Florida Supreme Court’s Clarified Standard
In Perlmutter, the Florida Supreme Court quashed the Fourth District’s decision and approved the less burdensome approach adopted by the conflict cases.
The court articulated a simplified standard for trial courts to apply when granting or denying a motion for leave to amend a complaint to add a punitive damages claim:
- Only the Claimant’s Evidence is Considered: A trial court must only consider the evidence identified or proffered by the claimant. It should not entertain an evidentiary counter-submission from the opposing party.
- No “Clear and Convincing” Burden at Pleading: The trial court should not apply the “clear and convincing evidence” standard of proof during this preliminary stage.
- The “Reasonable Person” Test: The true test for evidentiary sufficiency under section 768.72(1) is simply whether a reasonable person could conclude, based solely on the claimant’s evidence, that the defendant committed “intentional misconduct” or “gross negligence.”
- Light Most Favorable to the Claimant: The trial court does not act as a fact-finder, must not weigh the evidence, and must view the record and proffered evidence in the light most favorable to the plaintiff.
The Court’s Reasoning: Textual Integrity and Statutory Context
The Florida Supreme Court grounded its decision in a textual interpretation of the statute. The court noted that section 768.72(1) explicitly mentions a burden of production for the claimant but is entirely silent on any role for the opponent’s evidence.
The court also refused to import the “clear and convincing” trial-level standard of proof from subsection (2) into the pleading requirements of subsection (1). Its analysis involved a comparison between section 768.72(1) and section 400.0237 of the Florida Statutes, which governs punitive damages in nursing home cases. The nursing home statute explicitly requires trial courts to review evidence submitted by “the parties” (plural) and expressly mandates a “clear and convincing” preliminary showing. Because the Legislature chose to omit those specific requirements from section 768.72(1), the court declined to read them into the text.
Finally, the court rejected the notion that the punitive damages gatekeeping function is similar to a summary judgment. Pleading a claim is fundamentally about setting forth ultimate facts, while summary judgment serves a different screening purpose later in litigation.
What This Means for Your Trial Practice
For trial court practitioners, Perlmutter finally establishes a universal playbook, clarifying the rules of the game so that litigators statewide are no longer guessing which standard applies. Defendants can no longer rely on competing evidentiary proffers at the pleading stage to prevent punitive damages claims. And plaintiffs no longer have to clear the high bar of the “clear and convincing” standard just to claim punitive damages.
While the high court rejected the more rigorous standard, plaintiffs must still present a reasonable evidentiary basis for their claims, and motions for leave to claim punitive damages remain highly litigated.
Navigating Interlocutory Appeals
Of course, orders granting or denying leave to amend to assert punitive damages claims are subject to immediate interlocutory appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(G). Because these orders are frequently challenged, trial practitioners must meticulously preserve the record during the proffer stage and understand how appellate courts review the trial judge’s gatekeeping decision. Many trial lawyers find engaging appellate counsel early in the process helpful in framing the evidentiary proffer and preserving key arguments for appeal.
