House Bill 3873

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    Florida House of Representatives - 1998                HB 3873

        By the Committee on Civil Justice & Claims and
    Representatives Warner, Thrasher and Flanagan





  1                      A bill to be entitled

  2         An act relating to punitive damages; amending

  3         s. 768.72, F.S.; revising language with respect

  4         to claims for punitive damages in civil

  5         actions; requiring clear and convincing

  6         evidence of gross negligence or intentional

  7         misconduct to support the recovery of such

  8         damages; providing definitions; providing

  9         criteria for the imposition of punitive damages

10         with respect to employers, principals,

11         corporations, or other legal entities for the

12         conduct of an employee or agent; providing for

13         the application of the section; providing an

14         exception; amending s. 768.73, F.S.; revising

15         language with respect to limitations on

16         punitive damages; providing monetary

17         limitations; providing an exception with

18         respect to intentional misconduct; providing

19         for consolidated punitive damages trials;

20         providing for the effect of certain previous

21         punitive damages awards; providing a limitation

22         on attorney fees; providing for the application

23         of the section; providing an exception;

24         providing an effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

27

28         Section 1.  Section 768.72, Florida Statutes, is

29  amended to read:

30         768.72  Pleading in civil actions; claim for punitive

31  damages.--

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






  1         (1)  In any civil action, no claim for punitive damages

  2  shall be permitted unless there is a reasonable showing by

  3  evidence in the record or proffered by the claimant which

  4  would provide a reasonable basis for recovery of such damages.

  5  The claimant may move to amend her or his complaint to assert

  6  a claim for punitive damages as allowed by the rules of civil

  7  procedure.  The rules of civil procedure shall be liberally

  8  construed so as to allow the claimant discovery of evidence

  9  which appears reasonably calculated to lead to admissible

10  evidence on the issue of punitive damages.  No discovery of

11  financial worth shall proceed until after the pleading

12  concerning punitive damages is permitted.

13         (2)  A defendant may be held liable for punitive

14  damages only if the trier of fact, based on clear and

15  convincing evidence, finds that the defendant was personally

16  guilty of intentional misconduct or gross negligence.

17         (a)  "Intentional misconduct" means that the defendant

18  had actual knowledge of the wrongfulness of the conduct and

19  the high probability that injury or damage to the claimant

20  would result and, despite that knowledge, intentionally

21  pursued that course of conduct, resulting in injury or damage.

22         (b)  "Gross negligence" means that the defendant's

23  conduct was so reckless or wanting in care that it constituted

24  a conscious disregard or indifference to the life, safety, or

25  rights of persons exposed to such conduct.

26         (3)  In the case of an employer, principal,

27  corporation, or other legal entity, punitive damages may be

28  imposed for the conduct of an employee or agent, only if the

29  conduct of the employee or agent meets the criteria specified

30  in subsection (2), and if:

31

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






  1         (a)  The employer, principal, corporation, or other

  2  legal entity actively and knowingly participated in such

  3  conduct; or

  4         (b)  The officers, directors, or managers of the

  5  employer, principal, corporation, or other legal entity

  6  knowingly condoned, ratified, or consented to such conduct; or

  7         (c)  The employer, principal, corporation, or other

  8  legal entity engaged in conduct which constituted gross

  9  negligence and which contributed to the loss, damages, or

10  injury suffered by the claimant.

11         (4)  The provisions of this section are remedial in

12  nature and shall be applied to all civil actions pending on

13  the effective date of this act in which the trial or retrial

14  of the action has not commenced.

15         (5)  The provisions of this section shall not apply

16  with regard to any civil action based upon child abuse, abuse

17  of the elderly, or abuse of the developmentally disabled, or

18  arising under chapter 400.

19         Section 2.  Section 768.73, Florida Statutes, is

20  amended to read:

21         768.73  Punitive damages; limitation.--

22         (1)(a)  In any civil action in which the judgment for

23  compensatory damages is for $50,000 or less, judgment for

24  punitive damages awarded to a claimant may not exceed

25  $250,000, except as provided in paragraph (b). In any civil

26  action in which the judgment for compensatory damages exceeds

27  $50,000, the judgment for punitive damages awarded to a

28  claimant may not exceed three times the amount of compensatory

29  damages or $250,000, whichever is higher, except as provided

30  in paragraph (b) based on negligence, strict liability,

31  products liability, misconduct in commercial transactions,

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






  1  professional liability, or breach of warranty, and involving

  2  willful, wanton, or gross misconduct, the judgment for the

  3  total amount of punitive damages awarded to a claimant may not

  4  exceed three times the amount of compensatory damages awarded

  5  to each person entitled thereto by the trier of fact, except

  6  as provided in paragraph (b).  However, this subsection does

  7  not apply to any class action.

  8         (b)  No award for punitive damages may exceed the

  9  limitations If any award for punitive damages exceeds the

10  limitation specified in paragraph (a), the award is presumed

11  to be excessive and the defendant is entitled to remittitur of

12  the amount in excess of the limitation unless the claimant

13  demonstrates to the court by clear and convincing evidence

14  that the defendant engaged in intentional misconduct and that

15  the award is not excessive in light of the facts and

16  circumstances which were presented to the trier of fact.

17         (c)  This subsection is not intended to prohibit an

18  appropriate court from exercising its jurisdiction under s.

19  768.74 in determining the reasonableness of an award of

20  punitive damages that is less than three times the amount of

21  compensatory damages.

22         (2)(a)  If any defendant in any civil action determines

23  that it has been or may be subject to repetitive claims for

24  punitive damages arising out of the same act or course of

25  conduct, the defendant may move the court for a full

26  determination of the defendant's punitive damage liability for

27  all consequences of the act or course of conduct.  Under such

28  circumstances, the issue of liability for punitive damages

29  shall be tried separately from the issue of liability for

30  compensatory damages. Evidence relating to whether punitive

31  damages should be awarded and, if so, in what amount, shall

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






  1  not be admissible until the trier of fact has determined the

  2  amount of compensatory damages. The same trier of fact that

  3  tried the issues relating to compensatory damages shall try

  4  the issues relating to punitive damages. In the phase of the

  5  trial concerning punitive damages, if the trier of fact finds

  6  that punitive damages are warranted, the trier of fact should

  7  consider the national scope, if any, of the misconduct, the

  8  degree of wrongfulness and duration of any misconduct, the

  9  scope and severity of damages, the financial resources of the

10  defendant, the number of persons harmed, the efforts made by

11  defendant to eliminate or reduce the effects of the

12  misconduct, as well as all other measures taken by the

13  defendant to mitigate the misconduct and damages caused

14  thereby. The court shall reduce any award of punitive damages

15  by the amount of any previous punitive damages awards imposed

16  against the defendant which arose out of the same act or

17  course of conduct.

18         (b)  As soon as practicable after the defendant moves

19  for a consolidated punitive damages trial, or within a time

20  frame set by the court, the defendant shall make reasonable

21  efforts to compile a list of current and potential claimants

22  who will share any punitive award. The defendant shall make

23  reasonable efforts to identify and notify any persons or

24  entities that have been impacted by the act or course of

25  conduct under consideration in the punitive damages phase of

26  the trial. Any punitive damages awarded during a trial under

27  this subsection will, to the extent practicable, be equally

28  distributed among current and potential claimants, in a manner

29  to be decided by the trial court.  Once a defendant's

30  liability for repetitive punitive damages has been determined

31  under this subsection, no further punitive damages can be

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






  1  awarded in connection with the act or course of conduct

  2  covered in this trial.

  3         (c)  In a consolidated punitive damages trial, the

  4  claimants' aggregate attorney fee in regard to punitive

  5  damages shall be limited to 15 percent of the overall punitive

  6  damages award.

  7         (3)  If punitive damages have been awarded against a

  8  defendant three or more times before the effective date of

  9  this act in any state or federal court in actions alleging

10  harm from the same act or course of conduct for which a

11  claimant subsequently seeks compensatory damages, the court

12  may conduct a hearing prior to trial to determine whether the

13  previous awards are sufficient to address all consequences of

14  the act or course of conduct. In making such determination the

15  court shall consider the factors set forth in paragraph (2)(a)

16  as well as whether any previous trier of fact considered the

17  full scope of wrongful conduct and resulting harm. If the

18  court determines that the previous awards are sufficient the

19  punitive damage claim shall not be allowed.

20         (4)  The provisions of this section are remedial in

21  nature and shall be applied to all civil actions pending on

22  the effective date of this act in which the trial or retrial

23  of the action has not commenced.

24         (5)(2)  The jury may neither be instructed nor informed

25  as to the provisions of this section.

26         (6)  The provisions of this section shall not apply

27  with regard to any civil action based upon child abuse, abuse

28  of the elderly, or abuse of the developmentally disabled, or

29  arising under chapter 400.

30         Section 3.  This act shall take effect October 1 of the

31  year in which enacted.

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    Florida House of Representatives - 1998                HB 3873

    686-118C-98






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  2                          HOUSE SUMMARY

  3
      Provides that in any civil action, no claim for punitive
  4    damages shall be permitted unless clear and convincing
      evidence exists that the defendant was personally guilty
  5    of intentional misconduct or gross negligence. Provides
      criteria for the imposition of such damages on an
  6    employer, principal, corporation, or other legal entity
      for the action of an agent or employee. Provides monetary
  7    limitations on the award of punitive damages and provides
      described exceptions. Provides for consolidated punitive
  8    damages trials. Provides with respect to such
      consolidated trials that attorney's fees shall be limited
  9    to 15 percent of the overall punitive damage award. See
      bill for details.
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