By Michael Kolcun and Amani Ambay
Resolving a conflict among the DCAs, Florida’s Supreme Court settles the dispute over the standard for pleading punitive damages: the clear and convincing standard does not apply.
Perlmutter v. Federal Ins. Co., __ So.3d __, 2026 WL 1689765 (Fla. June 11, 2026), arose from an alleged defamatory hate mail campaign where the defendants also countersued for defamation. Eventually, the defendants moved for leave to amend their pleadings to add claims for punitive damages. The trial court granted their motion, finding they made the evidentiary showing required by section 768.72(1), Florida Statutes. On appeal, however, the en banc Fourth DCA reversed, holding a trial court must make a preliminary determination of whether a reasonable jury, (1) viewing the totality of evidence identified in support of or opposition to the motion, (2) could find by clear and convincing evidence that punitive damages are warranted. In doing so, the Fourth DCA certified a conflict with five other decisions from the Second and Fifth DCAs.
The Florida Supreme Court stepped in to resolve the conflict. In a unanimous opinion by Chief Justice Muñiz, the Court concluded that the statute “mandates a procedure that is less complex—both procedurally and substantively—than what the Fourth District envisioned.”
First, the Supreme Court held that the trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent. The Court’s reasoning was simple: “The trial court does not act as a fact-finder in a proceeding under section 768.72(1).” Instead, the trial court must consider the evidence in the light most favorable to the plaintiff because “the whole point of a proceeding under section 768.72(1) is to determine whether the claimant can show reasonable evidentiary support for those allegations.”
Next, the Supreme Court clarified that the clear and convincing evidence standard applies only at trial, not when a party seeks leave to plead punitive damages under section 768.72(1). The Court reasoned that the express language of the statute calls for only a “reasonable showing by evidence … which would provide a reasonable basis for recovery of [punitive] damages.” Confined by the statutory text, the Court reasoned: “Absent express instructions from the Legislature, we are reluctant to read into the section 768.72(1) inquiry a consideration—the trial-level standard of proof—that ordinarily plays no role at the pleading stage.” Therefore, the Supreme Court held the appropriate inquiry is whether “a reasonable person could conclude, based on the claimant’s evidence, that the defendant committed ‘intentional misconduct’ or ‘gross negligence,’” as defined by section 768.72(2).
The effects of Perlmutter will be significant. Punitive damages claimants may pursue discovery and construct a record showing intentional misconduct or gross negligence without regard to potential counterevidence undercutting their claims. The trial court’s analysis will be confined to this one-sided submission, and the trial court only must determine if a reasonable person could find the requisite wrongfulness or recklessness sufficient for liability for punitive damages. Claimants will likely move swiftly, and aggressively, to seek leave to assert punitive damages claims and gain access to sensitive financial and net-worth discovery. Although the ultimate clear and convincing standard of proof still applies, the opponent will need to thoroughly examine the sufficiency of the claimant’s evidentiary submission or proffer and demonstrate that, even if accepted as true, it still fails to meet the strict requirements of under section 768.72.