Punitive damages against an Entity

Even if a Plaintiff is able to assert a punitive damage claim against an individual defendant driver, it is often very difficult to collect on such a claim because punitive damages are rarely covered by insurance in Florida. Accordingly, Plaintiffs often attempt to obtain punitive damages from not only a defendant driver, but also from the entity that employed him. Because punitive damages are meant for punishment, the legislature has built in additional safeguards before a plaintiff is able to attempt to obtain punitive damages against an entity due to the actions of one of its employees. The standard to be able to plead punitive damages against any defendant is found in Fla. Stat. §768.72 which states:

1. In any civil action, 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…
2. A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.
   To be able to then plead punitive damages against the entity based on the conduct of an employee, the Plaintiff must further satisfy (3) of §768.72 which states:*
3. In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
   (a) The employer, principal, corporation, or other legal entity *actively and knowingly participated in such conduct;
   (b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
   (c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

As it relates to vicarious liability against an entity for punitive damages, it is well settled that before an employer or principle may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on its part, since punitive damages are imposed only as punishment of Defendant and as deterrent to others. See Mercury Motors Express. Inc. v. Smith, 393 So. 2d 545 (Fla. 1981). Section 768.72(3) provides that punitive damages may be imposed upon an employer for the conduct of the employee or agent only if the employer actively and knowingly participates, condones, ratifies or consents to such conduct. See Koutsourdis v. Delta Air Lines, Inc., 427 F. 3d 1339 (11th Cir. 2005) (applying Florida law). “Under section 768.72(3), the legislature established a heightened standard for imposing punitive damages on an employer rather than adopting the common law rules of agency and vicarious liability.” HCA Health Servs. of Fla., Inc. v. Byers-McPheeters, 201 So. 3d 669, 670 (Fla. 4th DCA 2016).

Accordingly, it is important for a defense attorney to not only evaluate whether a Plaintiff’s proffer of evidence is sufficient to plead punitive damages against an individual driver, it is also very important to evaluate the proffer to determine if punitive damages are also applicable to the driver’s employer under the law’s heightened requirements.