2021 Cases and News

August Update

Fla. Justices Told Rule Would Change Game For Defendants

By Carolina Bolado

Law360 (August 31, 2021, 4:40 PM EDT) — A representative for the Florida Defense Lawyers Association urged the Florida Supreme Court on Tuesday to adopt a rule that would authorize appeals of nonfinal orders granting or denying bids to add punitive damages claims, calling it a “game changer for defendants.”

In oral arguments before the Supreme Court, Kansas Gooden of Boyd & Jenerette PA said claims for punitive damages subject defendants to damages that are not covered by their liability insurance policies and force them to submit to invasive financial discovery that would otherwise be off limits.

Currently, in order to appeal an order on punitive damages claims, a party must file a petition for writ of certiorari, but the review on appeal of that order is limited only to whether the statutory procedure was followed, not to the sufficiency of the evidence to support the claim for punitive damages.

“The procedure, or rather lack of appellate remedy, does not sufficiently protect a defendant’s constitutional or substantive rights,” Gooden said.

The rule was proposed by the Florida Bar’s Appellate Court Rules Committee. The committee had received a letter in July 2020 from the Supreme Court asking for a proposal to amend Florida Rule of Appellate Procedure 9.130 to allow for the immediate appeal of nonfinal orders granting or denying leave to amend complaints to add punitive damages claims.

Elaine Walter of Boyd Richards Parker Colonnelli, who is on the rules committee, said the committee treated that letter as a directive from the court and crafted a proposed rule consistent with the request. Walter noted that the committee had rejected similar proposals in 2016 and 2018, and said the committee found that no other state had a rule like the one proposed.

In its initial brief to the court, the rules committee said that while its members voted unanimously for the proposed amendments, a majority said they would not have done so if not for the court’s directive.

Bryan Gowdy of Creed & Gowdy, who spoke on behalf of the Florida Justice Association, told the Supreme Court that the proposed rule is not necessary and that plaintiffs generally don’t request extensive financial information during discovery for punitive damages claims anymore.

“It’s not overly intrusive — it may just be what is your net worth, period,” Gowdy said.

He added that this is just going to slow down litigation and tax already overloaded appeals courts.

In addition to the request from the Florida Supreme Court, both the Second and Third District Courts of Appeal suggested to the state last year that it amend the rules of appellate procedure to allow for the immediate appeal of orders allowing the addition of punitive damages claims.

In an opinion issued in July 2020, the Second District quashed an order allowing a plaintiff to add a punitive damages claim against a nursing home in a negligence suit and recommended changing the rules. The appeals court said a punitive damages claim can transform a lawsuit, but the current system — in which a defendant must petition for certiorari review of orders allowing these claims — is impractical and ineffective.

The Florida Bar Appellate Court Rules Committee is represented by Elaine D. Walter of Boyd Richards Parker Colonnelli.
The Florida Defense Lawyers Association is represented by Kansas Gooden of Boyd & Jenerette PA.
The Florida Justice Association is represented by Bryan Gowdy of Creed & Gowdy.
The case is In Re: Amendments to the Florida Rule of Appellate Procedure 9.130, case number SC21-129, in the Supreme Court of Florida.


Article: Elaine D. Walter: Becoming the Person to Call

By: Attorney at Law Magazine

Click here for Ms. Walter’s full bio.


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