Amendment of Complaint for Punitive Damages Should Not Be So Easily Granted

In Marshall Milton Corp v. Petit-Homme, No. 3D24-762, 2025 WL 1819149 (Fla. 3d DCA July 2, 2025), Florida’s Third District Court of Appeal had the opportunity revisit when a trial court can grant a plaintiff's motion for leave to file an amended complaint to assert a claim for punitive damages. In Florida, this is done by statute. Pursuant to section 768.72(1), Florida Statutes (2023), “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Section 768.72 “requires the trial court to act as a gatekeeper,” which means that the trial court cannot “simply accept[ ] the allegations in a complaint or motion to amend as true.” Napleton's N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1105 (Fla. 4th DCA 2023) (quoting Bistline v. Rogers, 215 So. 3d 607, 610–11 (Fla. 4th DCA 2017)).

The trial court allowed the plaintiff in the case to amend his complaint to assert punitive damages. However, the appellate court, reviewing that grant de novo, found there was insufficient evidence in the record showing willful, callous, or egregious conduct by defendant in investigating plaintiff's claim and terminating his maintenance and cure benefits. The appellate court set out the factors used to determine whether punitive damages are warranted in maintenance and cure cases and include: 1) the shipowner’s laxness in investigating claim; 2) the termination of benefits in response to seaman's retention of counsel or refusal of settlement offer; and 3) the shipowner’s failure to reinstate benefits after diagnosis of ailment previously not determined medically. After reviewing the evidence proffered, the appellate court found the evidence was insufficient to support plaintiff's claim that his benefits were wrongfully terminated after he retained counsel and declined a settlement offer. The court also found that the plaintiff could not claim that defendant showed laxness by refusing to investigate the impact of injury to plaintiff's index finger where defendant relied on physician's testimony that injury was “remarkably benign” and that potential impairment rating for index finger was five percent . The court also noted that the remaining factor was not at issue in plaintiff's case and thus, reversed the trial court and remanded for further proceedings.

This court again sets out the requirements for trial courts to test the plaintiff’s allegations before granting a motion to amend to assert a claim for punitive damages. This requires the seafarer to provide reasonable evidence of willful, callous, or egregious conduct by the shipowner.

If you are interested in receiving a copy of this ruling or wish to discuss this case or one like it further, please feel free to reach out to us at admin@miamimaritimelaw.co or by phone at 305.377.3700.

Florida Court Clarifies Personal Jurisdiction Over Non-Residents

In Pianezza v. Mia Collection Servs.. LLC, 2024 Fla. App. LEXIS 1784 (Fla. 3d DCA March 6, 2024), an action against non-resident principal and employee of foreign limited liability company alleging claims of fraud in the inducement, negligent misrepresentation, breach of express warranty, and conspiracy stemming from LLC's provision of counterfeit merchandise was not dismissed for lack of personal jurisdiction and the defendants appealed. The appellate court found that the corporate shield doctrine did not protect defendants from the trial court's exercise of personal jurisdiction where the complaint sufficiently alleged that defendants committed a tortious act within Florida by directing telephonic and electronic communications into Florida in which they allegedly fraudulently misrepresented the authenticity of merchandise sold to the plaintiff. The appellate court explained that the corporate shield doctrine will not operate to bar personal jurisdiction in Florida over an individual defendant that commits a tortious act in Florida, regardless of whether it was on behalf of a corporate employer.

The appellate court also found that defendants' affidavits were insufficient to shift the burden back to the plaintiff to demonstrate why jurisdiction was proper where, although both defendants denied in their declarations that they directed a phone call, text message, or e-mail to anyone in the state of Florida, they qualified these statements by stating they never did so on their own behalf . The qualification by these defendants failed to negate the allegation that they committed tortious acts in Florida by sending and/or directing telephonic and electronic communications into Florida. This, the court explained, leaves open the inference that they did direct phone calls, text messages, and/or emails into Florida in their capacity as employees of the LLC. The appellate court also found that principal's declaration as a corporate representative on behalf of LLC contained nothing more than legal conclusions, which plaintiff was not required to refute.

The appellate court therefore found that the trial court properly concluded that sufficient minimum contacts existed because defendants knew plaintiff was located in Florida and, therefore, knew their alleged misrepresentations would impact a Florida resident and would cause injuries in Florida. Thus, these non-resident defendants are required to defend the case brought against them in Florida.

If you are interested in receiving a copy of this decision or wish to learn more about the impact of this decision, please feel free to reach out to us at admin@miamimaritimelaw.co or blog@miamimaritimelaw.co.

Florida Tort Reform Law: A Short Summary of Some of Its Consequences and Effects

On March 24, 2023, Florida’s Governor signed into law HB 837, transforming Florida tort law. With two important exceptions, the law applies to new lawsuits filed after March 24, 2023.

Salient Points of Select[1] Sections of the Law

·         Medical Bills. The law limits the introduction of evidence for medical damages at trial. The law limits evidence of paid medical bills and future medical care to the amount paid or needed for services regardless of the source of the payment:

o   Effects

• Defense experts on the appropriateness of the amount of medical bills required.

• Plaintiff-oriented doctors will rethink their medical treatment and billing approach.  

• Lower medical expenses should reduce non-economic damages awards and nuclear verdicts and increase settlements.

• More reasonable life care plans. 

• Reduced abuse of letters of protection.

·         Letters of Protection. If a Plaintiff receives medical services subject to a letter of protection, the plaintiff must disclose: a copy of the letter of protection; all billing for medical expenses, itemized and coded; whether the provider sold the accounts receivable to a third party, the name and dollar amount paid by the third party; whether the plaintiff had health insurance at the time of treatment and the identity of the health care coverage provider; and whether the claimant was referred for treatment under a letter of protection and, if so, the identity of the person who made the referral.

o   Effect

• Brings letters of protection out in the open. Before, the law stated that there was an attorney-client privilege in communications related to an attorney’s referral of a client for treatment. Juries will now hear about letters of protection, what they mean, the financial relationship they create and the doctor's financial interest in the case's outcome.  

Comparative Negligence. The law changes Florida's comparative negligence system from a pure comparative negligence system to a modified one, so that a plaintiff who is more at fault for their injuries than the defendant may not generally recover damages from the defendant.

o   Effect

• Avoids outsized awards against nominally negligent defendants.  In matters where the plaintiff was significantly at fault, plaintiffs will argue for more considerable damages so that defendants with low negligence pay an outsized portion of damages. However, defendants can now have a defense verdict if plaintiff found 51% at fault. 

Bad Faith. The law modifies bad faith law to allow an insurer to avoid third-party bad faith liability if the insurer tenders the policy limits or the amount demanded by the claimant within 90 days after receiving actual notice of the claim.

o   Effects 

• Ends “set-up” claims. Before this law, the system incentivized plaintiffs to devise situations that led to a bad faith claim to obtain larger settlements.   

• Reduce bad faith claims.  Allowing insurers enough time to evaluate a claim will result in more comprehensive claims handling and fewer bad faith claims.    

[1] For more information on Florida tort reform law, please feel free to reach out to me at mov@miamimaritimelaw.co or 305.377.3700.

Force Majeure Ruling in Miami Should Change How Contracts Are Written

In what is reported in the Daily Business Review to be the first ruling of its kind in Miami-Dade County, a popular retail store on Lincoln Road in Miami Beach is required to pay rent despite hardships caused by the COVID-19 pandemic. Guess? Retail Inc., the clothing store, alleged that the COVID-19 pandemic left it unable to pay its rent. The retailer refused to pay after it had to close its operations around March of last year — something Guess said was done to protect the health and safety of customers and employees, and comply with government safety guidelines. The Denison Corporation, a Miami Beach-based family business, sued in May for $291,162 in rent and other expenses owed over three months. But Guess turned around and countersued Denison. The retailer sought a refund on some payments it had made since March 17 and said it should get a break going forward, according to the suit.

The lease states that the term force majeure encompasses, “acts of God, labor disputes (whether lawful or not), material or labor shortages, restrictions by any governmental authority, civil riots, floods, or other cause beyond the control of the party asserting the existence of force majeure.” It also said, “Notwithstanding anything to the contrary in this lease, tenant shall not be excused from payment of base rent, operating costs, or any other sum due under this lease by reason of force majeure.”

Miami-Dade Circuit Court Judge Peter Lopez shot down Guess’ countersuit, saying the lease is clear that rent still has to be paid during force majeure events, including government-imposed closures for the pandemic. A force majeure clause is common in leases and can sometimes allow a party to not fulfill their contract when there is a circumstance beyond their control or an “act of God.”

At the time this decision was entered, it was reported to be a case of the first impression. It is likely to be relied upon by other jurists as litigation regarding force majeure provisions move through the Miami-Dade court system. The ruling is a clear win for landlords who still need that income to pay their taxes (no rebate there), expenses and to continue operations. It is hoped that parties facing these issues will attempt to work together to avoid these sorts of lawsuits, since the pandemic has caused hardships for everyone. In the meantime, lawsuits such as these will change the way all contracts are written in the future to make sure that pandemics are specifically named as an example of a force majeure incident and where the risk of such a situation should fall.

If you are interested in receiving Judge Lopez’ decision or wish to discuss the issue of force majeure further, please feel free to reach out to me at blog@miamimaritimelaw.co or 305.377.3700.