South Florida Personal Injury Lawyers Blog
Florida Statute § 768.72(1) keeps a claim for punitive damages out of a lawsuit until the injured person makes “a reasonable showing by evidence” that would support recovering them, and a judge must give permission before the claim is added. On June 11, 2026, the Florida Supreme Court decided how demanding that early screening is. In Perlmutter v. Federal Insurance Co., all seven justices held that the clear and convincing evidence standard used at trial does not apply at this stage.
Under Perlmutter, the test for adding Florida punitive damages is whether a reasonable person could conclude, from the injured person’s own evidence, that the defendant committed intentional misconduct or gross negligence. The judge looks only at that evidence, in the light most favorable to the injured person, and does not weigh it or take a competing submission from the defense. If you were hit by a drunk driver, the question is what your evidence shows, not how the defense answers it.
Friedman Rodman Frank & Estrada has represented injured people across Miami-Dade and South Florida since 1976. Our Miami personal injury attorneys look at punitive damages early in cases involving drunk, racing, or otherwise reckless drivers.
What Florida Punitive Damages Require Under § 768.72
Punitive damages are money a jury may award to punish a defendant and deter similar conduct, separate from the compensatory damages that pay for an injured person’s losses. The Court described them that way in Perlmutter, and it noted that even when the legal requirements are met at trial, whether to award them is left to the jury.
Section 768.72(2) allows punitive damages only where the jury finds, by clear and convincing evidence, that the defendant was personally guilty of intentional misconduct or gross negligence. Gross negligence means conduct “so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” The statute also bars any discovery of a defendant’s financial worth until the punitive damages claim is allowed.
What the Court Changed in 2026
The Fourth District Court of Appeal, sitting as a full court, had required judges to ask whether a reasonable jury, looking at evidence from both sides, could find punitive damages warranted by clear and convincing evidence. The Supreme Court quashed that decision. It wrote that the trial court “does not act as a fact-finder” at this stage, and that summary judgment remains available later, on a fuller record, to test the claim.
The screening still has limits. The allegations in a proposed amended complaint are not evidence, so the request has to rest on records, testimony, or other proof. Where the claim targets an employer, such as a trucking company, for a driver’s conduct, the evidence must also reasonably support one of the routes in § 768.72(3). Those include the company’s officers, directors, or managers knowingly condoning the conduct, or the company’s own gross negligence contributing to the injury.
The Third District Court of Appeal, which hears appeals from Miami-Dade County, applied the new test on August 26, 2026, in Goldman v. Lewin. It allowed punitive damages claims against two defendants and reversed as to a third, whose conduct on the evidence offered did not meet the statutory definition of intentional misconduct.
Drunk Driving Crashes and the Punitive Damages Cap
Section 768.73(1)(a) generally limits punitive damages to the greater of three times the compensatory damages or $500,000. Section 768.736 removes that limit for a defendant who was impaired by alcohol or drugs at the time. It reaches a defendant whose normal faculties were impaired and one with a blood or breath alcohol level of 0.08 percent or higher. In a Miami car accident claim against an impaired driver, we ask for the toxicology results and the arrest report first. Those records bear on both the impairment exception and the request to add punitive damages.
Seeking Punitive Damages After a Serious Crash
A request to add punitive damages is decided on the evidence the injured person brings, so we gather the crash report, breath or blood test results, and witness accounts as early as we can. At Friedman Rodman Frank & Estrada, we represent people hurt by drunk and reckless drivers throughout Miami-Dade, Broward, and Collier Counties. We are glad to talk it through with you. Call (305) 448-8585 or contact our Miami office, and the first conversation is free.