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"A Game Changer": Recent Rule Change Allows for Immediate Appellate Review of Orders Permitting or Denying Punitive Damages

Sharon C. Degnan | April 4, 2022

In January, the Florida Supreme Court adopted a rule change to Florida Rule of Appellate Procedure 9.130 that allows parties to seek immediate appellate review of non-final orders granting or denying motions for leave to assert claims for punitive damages. The rule amendment became effective on April 1, 2022. See In re Amendment to Fla. R. App. P. 9.130, 2022 WL 57943 (Fla. Jan. 6, 2022). 
Prior to this amendment, parties could only seek review of an order granting leave to assert a punitive damages claim through a petition for a writ of certiorari, which limited appellate courts to reviewing only whether the trial court complied with the procedural requirements for making a punitive damages claim. Due to the amendment, Florida appellate courts will now be able to immediately review trial court orders granting or denying punitive damages claims on the merits, including testing the sufficiency of the evidence or proffer submitted by a plaintiff to justify a punitive damages claim being allowed. 
The rule amendment was initiated, at the direction of the Florida Supreme Court, by the Florida Bar’s Appellate Court Rules Committee. Prior to this occurring, various Florida appellate courts had commented on the need for immediate review of orders granting or denying motions for leave to assert punitive damages claims and, in various opinions over the years, noted the constraints the appellate courts were under due to the very limited review standard, which often resulted in punitive damages claims being allowed to proceed, even if they did not appear to be substantively proper or supported by a sufficient evidentiary showing.  The courts observed that an order granting the plaintiff leave to assert a punitive damages claim can be a “game changer” in litigation, since it can expose the defendant to intrusive financial-worth discovery and to potentially large verdicts, which may not be covered by liability insurance.
The Florida Defense Lawyers Association (FDLA) supported the rule amendment, seeing it as a strong step towards preserving the privacy of a defendant’s financial information, which is protected by the Florida Constitution. Before the amendment, a defendant had to wait until after entry of final judgment to appeal the substance of a plaintiff’s punitive damages claim and, by that time, the defendant’s private financial information was already subject to discovery. Now, such discovery can be guarded until the interlocutory appeal is decided. Further, FDLA recognized that the rule change gave teeth to Florida’s statutory mandate that plaintiffs show through record evidence or proffer a reasonable evidentiary basis to justify punitive damages. Under the new rule, defendants have an earlier opportunity to test the sufficiency of the evidence or proffer submitted by a plaintiff.
Not all commenters supported the amendment. Some expressed concern that it would increase case delays and appellate caseloads. In his dissent, Justice Jorge Labarga believed it was reasonable to anticipate delays in civil cases with punitive damages claims, which could lead some claimants to “reluctantly forgo meritorious claims for punitive damages.”  
Given that a trial court ruling granting or denying a plaintiff leave to assert a claim for punitive damages can be a “game changer” in the litigation, the new rule amendment seems appropriate and is certainly an important development in Florida law.
If you have any questions, please contact our Appellate and Coverage Practice Group at



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