Insights · Business Litigation · Appeals · September 30, 2026

Pleading Punitive Damages in Florida After Perlmutter

By Patrick M. Bailey, Esq.

In Perlmutter v. Federal Insurance Co., 434 So. 3d 681 (Fla. 2026), the Florida Supreme Court recently settled an open question about the procedure for pleading punitive damages under Florida law.

Punitive damages can have a massive impact on a case, opening up financial worth discovery¹ and substantially increasing the defendant’s exposure. Therefore, it is important to understand how Perlmutter affects the pleading of punitive damages claims.

Pleading punitive damages in Florida.

In Florida, claimants must initially file their claims without requesting punitive damages, and later seek leave to add punitive damages. See Fla. R. Civ. P. 1.190(f). The substantive basis for a court to allow a party to add a claim for punitive damages, and ultimately to award punitive damages at trial, is governed by Fla. Stat. § 768.72.

That statute provides that “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.” Fla. Stat. § 768.72(1) (emphasis added). It further provides that, ultimately, a party may only be held liable for punitive damages “if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2) (emphasis added).

The Fourth District’s interpretation of the pleading standard.

In Federal Insurance Co. v. Perlmutter, 376 So. 3d 24 (Fla. 4th DCA 2023), quashed, 434 So. 3d 681 (Fla. 2026), the Fourth District began to read the substantive standard at trial into the pleading standard. The court essentially asked whether there was a “reasonable basis for recovery of such damages [based upon clear and convincing evidence].” The court also held that the trial court “must consider the evidentiary showing by all parties at the hearing on the motion to amend.” Id. at 33 (emphasis in original). The Fourth District then certified conflict with the Second and Fifth Districts, and certified the following question of great public importance:

On a motion to amend to add a punitive damages claim, does section 768.72(1) and (2), Florida Statutes, when read in pari materia, require a trial court to make a preliminary determination of whether a reasonable jury, viewing the totality of evidence identified in support of or opposition to the motion, and in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted?

Id. at 38 (emphasis in original).

The Florida Supreme Court clarifies the standard.

In June 2026, the Florida Supreme Court set the record straight. In a unanimous opinion by Chief Justice Muñiz, the Court answered the certified question in the negative, quashed the Fourth District’s decision, approved the Second and Fifth District cases, and held:

The trial court considers only the claimant’s evidence. In a proceeding under section 768.72(1), 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.” Perlmutter, 434 So. 3d at 688. The Court rejected the Fourth District’s reading of the disparate standards of subsections (1) and (2) together to create a hybrid test where a trial court would be tasked with weighing evidence at the pleading stage. The Court explained that the statute “expressly contemplates a burden of production for the claimant but mentions no role for the opponent,” and the Court declined to read one in, likening the proceeding to a motion to dismiss, where affidavits and testimony cannot be used to attack the pleading and the facts must be viewed in the light most favorable to the claimant. Id. at 689.

The test is reasonableness, not clear and convincing evidence. At the pleading stage, the test is whether, in the context of the underlying claims, “a reasonable person could conclude, based on the claimant’s evidence, that the defendant committed ‘intentional misconduct’ or ‘gross negligence,’ as defined in section 768.72(2).” Id. at 688.

The trial court is not a fact-finder. It “must not weigh the claimant’s evidence,” and “its role is not to decide the truth of the matter.” Id. at 689. Rather, the trial court is to view the evidence in the light most favorable to the claimant. However, the allegations of the proposed amended pleading “are not themselves evidence.” The claimant has to show evidentiary support for them. Id.

What this means in practice.

For the movant. Movants must ensure that the record or proffered evidence supports their claim of punitive damages and clearly ties the evidence to the statutory definition. Movants should also ensure that nonmovants do not submit evidence of their own, and if they do, the court does not consider it.

For the nonmovant. The nonmovant cannot file counter-affidavits or otherwise proffer counterevidence, and it cannot ask the court to weigh the claimant’s evidence or judge credibility. Instead, the opponent is constrained to legal argument that the evidence, taken at face value, does not meet the standard for punitive damages or that the underlying claim does not support punitive damages.

For both sides, the order is immediately appealable. Florida Rule of Appellate Procedure 9.130(a)(3)(G) authorizes an appeal from an order that grants or denies a motion for leave to amend to assert a claim for punitive damages. Therefore, both parties should ensure that their arguments are made in writing and on the record and seek written findings from the trial court to allow for appellate review.