Florida Supreme Court Lowers the Bar for Pleading Punitive Damages

On June 11, 2026, the Florida Supreme Court issued its decision in Perlmutter v. Federal Insurance Company, resolving a conflict among Florida’s District Courts of Appeal concerning the standard governing motions for leave to plead punitive damages under section 768.72, Florida Statutes. The decision lowers the pleading-stage threshold in districts that had required a claimant’s evidentiary showing to be measured against the clear-and-convincing-evidence standard applicable at trial.

What the Court held: The Court held that the clear-and-convincing-evidence standard in section 768.72(2) applies at trial, not when the trial court determines whether a claimant may amend a pleading to assert punitive damages.

At the pleading stage, the trial court must determine whether the evidence identified in the record or proffered by the claimant provides a reasonable evidentiary basis from which a reasonable person could conclude that the defendant engaged in intentional misconduct or gross negligence.

In conducting that review, the trial court may not weigh the evidence, resolve factual disputes, or assess witness credibility. The court also may not consider an evidentiary counter-submission from the opposing party. The relevant inquiry is whether the claimant’s own showing supplies the statutorily required reasonable basis for pleading punitive damages.

What this means for defendants: This decision lowers the threshold for plaintiffs to plead punitive damages. Previously, several Florida courts applied a more rigorous screening function, requiring a showing that a reasonable jury could find clear and convincing evidence of punitive conduct. That higher bar may no longer be applied at the pleading stage anywhere in Florida. In practical terms, this means:

First, more claimants may obtain permission to plead punitive damages. In districts that previously applied a more demanding standard, trial courts may no longer ask whether a reasonable jury could find punitive liability by clear and convincing evidence. The pleading-stage inquiry is now more limited.

Second, defendants may face financial-worth discovery earlier and more frequently. Section 768.72 prohibits discovery concerning a defendant’s financial worth until the punitive-damages pleading is permitted. Because the threshold for obtaining that permission is now lower, defendants should anticipate an increased likelihood of financial discovery requests, while continuing to invoke applicable relevance, proportionality, confidentiality, and protective-order safeguards.

Third, defense counsel should develop the factual record early. Although the trial court may not weigh competing evidence during the section 768.72 proceeding, the Supreme Court emphasized that summary judgment remains available later in the litigation. On a more developed record, defendants may challenge whether the punitive-damages claim can survive summary judgment.

Bottom line: Perlmutter is a plaintiff-favorable decision that establishes a uniform statewide pleading-stage standard. Trial courts retain a gatekeeping role, but that role is limited to determining whether the claimant’s evidence supplies a reasonable evidentiary basis for punitive damages, not whether punitive liability has already been established by clear and convincing evidence.

If you have any questions on the above or anything related to the decision, the Quarles Team is available to assist.

• Ed Holloran: 317-399-2892 / ed.holloran@quarles.com
• Caroline Calavan: 813-384-6711 / caroline.calavan@quarles.com