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Persons who are Injured by a Drunk Driver are Entitled to Punitive Damages

Persons Who are Injured by a Drunk Driver are Entitled to Punitive Damages

By: Manuel L. Dobrinsky

If you or a loved one is injured in a car accident with a driver who is legally intoxicated, you are entitled to make a claim for punitive damages. However, there are procedures with which you must comply with prior to making such a claim.

I. Pleading Punitive Damages

Section 768.72, Florida Statutes, provides, in pertinent part, that:

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. The claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.

F.S.A. § 768.72.

Section 768.72 was enacted to prevent frivolous or groundless punitive damage claims which force the defendant to devote resources to claims in spite of their intrinsic lack of merit. Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106, 108 (Fla. 4th DCA 1994). Accordingly, the statute requires that the claimant make a reasonable showing that the claim is not baseless or frivolous before the pleading will be permitted.

The standards for the award of punitive damages enunciated by the Florida Supreme Court in the adoption of the standard jury instruction are as follows:

Punitive damages are warranted if you find by the greater weight of the evidence that:

(1) the conduct causing [loss] [injury] [or] [damage] to (claimant) was so gross and flagrant as to show a reckless disregard of human life or of the safety of persons exposed to the effects of such conduct; or

(2) the conduct showed such an entire lack of care that the defendant must have been consciously indifferent to the consequences; or

(3) the conduct showed an entire lack of care that the defendant must have wantonly or recklessly disregarded the safety and welfare of the public; or

(4) the conduct showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights.

II. A "Reasonable Showing"

The hearing on a motion to amend the complaint is a preliminary hearing merely to determine that the claim is not groundless or frivolous. This Court is not required to find that the Plaintiff is entitled to punitive damages as a matter of law, or that the Plaintiff would be entitled to a directed verdict on this issue. Further, the Court is not required to find that the issue would survive summary adjudication. The purpose of the preliminary hearing is to eliminate baseless and frivolous punitive damages claims.

The level of proof required at this preliminary stage of the proceedings has been discussed by several courts in this state. In essence, the Court is not supposed to prejudge the evidence. See Dolphin Cove Ass'n. v. Square D Co., 616 So. 2d 553 (Fla. 2d DCA 1993) ("Prejudging the evidence is not a proper vehicle for the court's denial of the motion to amend.").

Although the standard of proof for this preliminary proceeding is lower than that required to survive a motion for summary judgment on the merits of the claim, even if the summary judgment standard is applied, the function of the Court is "to determine whether the appropriate record presented in support of [the motion to amend] conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law." Hisvey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995).

III. Proffer by the Claimant/Plaintiff

Section 768.72 provides for the amendment of a complaint either through evidence in the record or " proffered by the claimant." The proffer should support a reasonable basis to amend the complaint. If the claimant's proffer provides a reasonable showing, the Court should grant the motion.

At common law (before enactment of Section 768.72), a claimant had the right to plead a claim for punitive damages in the original complaint. As a statute in derogation of the common law, Section 768.72 must be strictly construed. In applying such a statute, it is a fundamental rule of statutory construction that the statute will not be interpreted "to make any alteration [in the common law] other than what was specified and plainly pronounced." Slawson v. Fast Food Enterprises, 671 So.2d 255, 257 (Fla. 4th DCA 1996).

Although Section 768.72 provides only for a "proffer" by the claimant to the Court, parties have occasionally attempted to turn the motion to amend the pleading into a summary adjudication on the merits of the claim by offering "alternative" evidentiary proffers. This is inappropriate. Strasser v. Yalamanchi, 677 So. 2d 22 (Fla. 4th DCA 1996) ("Contrary to petitioner's (defendants) contention, an evidentiary hearing is not mandated by the statute before a trial court has authority to permit an amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court's determination."); Solis v. Calvo, 689 So. 2d 366 (Fla. 3d DCA 1997) ("Pursuant to Florida Statute... a punitive damage claim can be supported by a proffer of evidence. A formal evidentiary hearing is not mandated by the statute.").

An objection to a motion to amend a complaint to add a claim for punitive damages is, essentially, a motion to dismiss or strike the punitive damages claim for failing to state a cause of action. See, Will v. Systems Engineering Consultants, 554 So. 2d 591 (Fla. 3d DCA 1989) ("preferable to entertain the punitive damage issue by way of a motion to dismiss, or motion to strike....."). As with all such motions, a factual adjudication is inappropriate.

IV. Punitive damages in a case involving DUI

It is well settled that punitive damages are appropriate in cases where negligence is coupled with intoxication. Ingram v. Pettit, 340 So. 2d 922 (Fla. 1976)("[W]e affirmatively hold that the voluntary act of driving ''while intoxicated'' evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages."); See also, Zuckerman v. Robinson, 846 So. 2d 1257 (Fla. 4th DCA 2003)(Legislature has singled out DUI cases as uniquely qualified for punitive damages); Matalon v. Lee, 847 So. 2d 1077 (Fla. 4th DCA 2003); D'Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001).

The Florida legislature has made exceptions to the limitations on punitive damages with relation to cases involving an intoxicated defendant. Florida Statute § 768.736 states that in cases involving a drunk defendant the burden of proof for establishing punitive damages is the "greater weight of evidence standard" as opposed to the more difficult "clear and convincing evidence" standard. Moreover, § 768.736 states that the limits on the amount of punitive damages that an injured plaintiff can recover does not apply to cases involving intoxicated defendants.


We have been successful in obtaining the right to pursue punitive damages against drunk or intoxicated drivers on numerous occasions. Once a court grants you the right to pursue these damages, defendants often want to settle the case to avoid the potential large exposure that a punitive damages verdict presents. Last year we received verdicts in excess of nine million dollars for the family members of individuals killed by drunk drivers

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