November 2, 2022

New Appellate Rule on Punitive Damages Rulings Takes Effect April 1

By Jonathan Mann, Esq. On January 6, 2022, the Florida Supreme Court approved a change to the Florida Rules of Appellate Procedure proposed by The Florida Bar’s Appellate Rules Committee. In Re: Amendment to Florida Rules of Appellate Procedure 9.130, Case No. SC21-129 (Fla. Jan. 6, 2022). The proposed change in question amended rule 9.130, which governs “Proceedings to Review Nonfinal and Specified Final Orders.” The amendment allows a party to seek interlocutory review of a trial court ruling on whether a party may amend its complaint to assert a claim for punitive damages. The Florida Supreme Court stated: “Specifically, new subdivision (a)(3)(G) is added to authorize appeals of nonfinal orders that grant or deny a motion for leave to amend to assert a claim for punitive damages.” The Court had previously made a referral to the Rules Committee for such an amendment and the Committee filed a report proposing the amendment. The amendment was approved by the Appellate Rules Committee and The Florida Bar Board of Governors and was published for comment. The opinion was issued 6-1 without a discussion of the majority’s reasoning for approving the proposed amendment. Justice Labarga dissented and labeled the rule change “drastic, unnecessary, and consequential.” He wrote to express strong concern over the effects of the amendment in allowing interlocutory appeals of such orders. In his dissent, Justice Labarga noted that the Committee had only “grudgingly” approved the proposed amendment. The Committee had previously voted not to recommend such an amendment. Justice Labarga stated that the subcommittee involved “felt constrained to propose an amendment upon concluding that the Court’s referral was a directive to do so.” The Report of the Rules Committee showed that the Committee would not have supported the amendment if not for the Florida Supreme Court’s mandate. Justice Labarga expressed fear that such interlocutory appeals “will necessarily stall [the case] at the trial level until the district court renders a ruling on whether the claim for punitive damages was properly permitted.” He further predicted that the fear of delays caused by those appeals would have a chilling effect on meritorious claims for punitive damages, particularly in personal injury cases: Given this additional delay, it is also not unreasonable to anticipate that some claimants in civil cases may reluctantly forgo meritorious claims for punitive damages in order to avoid delay in bringing their cases to a final resolution. Of particular concern are tort cases involving personal injury, where claims for much needed medical and economic relief will stall until the question of punitive damages is resolved. Access to our judicial system with claims authorized by law should not be impeded by unnecessary delay and resulting additional expense. Justice Labarga pointed out that, as of 2018, no other state had a rule allowing interlocutory appeals of nonfinal orders ruling on whether a party may amend its complaint to assert a claim for punitive damages like the one being approved in new rule 9.130(a)(3)(G). He also dismissed the concerns over privacy of financial discovery that had prompted adoption of the rule amendment. Justice Labarga noted that Florida law allows discovery of financial worth only after the court allows the pleading asserting punitive damages to proceed. § 768.72(1), Fla. Stat. (2019). He reasoned that “the privacy of the financial information disclosed during discovery can be effectively protected by a confidentiality order entered upon the request of the disclosing party.” Whether the concerns Justice Labarga voiced in his dissent are borne out remains to be seen. The new rule will take effect on April 1, 2022. Jonathan Mann is a senior associate with Bresky Law. He is board certified in Appellate Practice by The Florida Bar.   The Boca Raton-based firm handles appeals and litigation support, trusts & estates and corporate transactions. Article originally appeared in the Daily Business Review on 1/25/22 New Appellate Rule on Punitive Damages Rulings Takes Effect April 1