Florida SC Reduces Standard of Proof for Punitive Damages

A recent Florida Supreme Court decision lowered the standard of proof governing the pursuit of, or opposition to, a claim for punitive damages at the pleading stage. The lowered threshold may make it easier for attorneys and their clients to plead and pursue such claims and ultimately use it as a basis to accelerate discovery on an opposing party’s sensitive financial net-worth information or strategically posture settlement.

In Perlmutter v. Federal Insurance Co., No. SC2024-0058, 2026 WL 1689765 (Fla. June 11, 2026), the Florida Supreme Court reached two distinct conclusions concerning the sufficiency of a claim for punitive damages at the pleading stage. First, the Perlmutter Court held that in determining whether claims for punitive damages may be pled in civil actions under Florida Statute Section 768.72(1), trial courts should only consider the evidence identified or submitted by the claimant, and not counter evidence offered by the opponent. Id. at *4. In disallowing any counter evidence from the opponent, the Perlmutter Court explained that the objective behind Section 768.72(1) is to determine whether the claimant can show evidentiary support for its punitive damages claim, not require trial courts to evaluate or weigh competing evidentiary submissions at the pleading stage. Id. at *5.

Second, the Perlmutter Court held that at the pleading stage, the trial court’s governing standard for determining the sufficiency of the claimant’s evidence under Section 768.72(1) is whether a reasonable person could conclude, based on the evidence, that the opponent committed the “intentional misconduct” or “gross negligence” required for punitive damages as defined in Section 768.72(2). Id. at *4. The Perlmutter Court emphasized that in reviewing the sufficiency of the claimant’s evidence at the pleading stage, the “clear and convincing” standard of proof does not apply. Id.

In support of these relaxed standards, the Perlmutter Court reasoned that the trial court does not serve as a fact-finder at the pleading stage but must instead consider the evidence in the light most favorable to the claimant. Id. at *5. However, the Court drew an important distinction: The allegations in the complaint are not themselves evidence—rather, the claimant must show reasonable evidentiary support for those allegations to plead or maintain a claim for punitive damages. Id.

Prior to the Perlmutter decision, trial courts inconsistently applied Section 768.72(1), which governs the requirements for pleading and proving entitlement to punitive damages in civil actions, depending on the district court of appeal in which the action was pending. Specifically, the Fourth District Court of Appeal had required trial courts “to make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted. Id. at *3 (emphasis added). By contrast, the Second District Court of Appeal and Third District Court of Appeal did not apply the “clear and convincing” standard when assessing the reasonableness of a claimant’s evidentiary submission in a proceeding under Section 768.72(1). Id. This certified conflict between these district courts of appeal ultimately brought Perlmutter to the Florida Supreme Court.

Plaintiffs, now knowing that their initial proffer cannot be factually contradicted by the defense, will likely move more aggressively to add punitive damages claims to their underlying actions.

In light of this shift, the defense should consider focusing on structural or technical challenges to the plaintiff’s pleadings and proffer, rather than disputing the underlying facts. Specifically, the defense should now focus on showing that, even accepting the plaintiff’s allegations as true, the evidence fails to meet the requisite, statutory definitions of “intentional misconduct” or “gross negligence” under Section 768.72(2), or the requirements for corporate vicarious liability under Section 768.72(3).

Additionally, defense counsel should proactively use targeted protective orders and confidentiality frameworks; controlling the timing and scope of disclosure will become a key defense against tactical settlement pressure.[1]

This article was co-authored by John Bergeron, a 2026 summer associate with Rivkin Radler.

[1] Dorothy DiFiore, Florida Supreme Court Resolves Conflict on Evidentiary Requirements For Pleading Punitive Damages, Quintairos, Prieto, Wood & Boyer P.A. (June 16, 2026), https://qpwblaw.com/florida-supreme-court-resolves-conflict-on-evidentiary-requirements-for-pleading-punitive-damages/