WFTV, INC., A DELAWARE CORPORATION, PETITIONER,
v.
CHRISTOPHER HINN, RESPONDENT
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WFTV, Inc. sought certiorari review of a trial court's denial of its motion to strike punitive damages from Christopher Hinn's complaint under section 540.08, Florida Statutes (unauthorized publication of name or likeness). The court held that section 768.72's procedural requirements for pleading punitive damages apply to section 540.08 claims, and the trial court erred in failing to require compliance with those procedures before allowing punitive damages to proceed.
Section 768.72's procedural requirements apply to punitive damages claims under section 540.08. A plaintiff must obtain leave from the trial court to amend the complaint and must make an initial showing by evidence in the record that would provide a reasonable basis for punitive damages before such a claim can be asserted. The trial court erred in denying the motion to strike because Hinn pleaded punitive damages without first seeking leave to amend and showing a reasonable basis for that claim.
[1] A plaintiff must obtain leave from the trial court to amend the complaint before a claim for punitive damages can be asserted.
[2] Section 768.72, Florida Statutes, requires an initial showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery o…
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Join FLexlaw to unlock all legal intelligence“Before a claim for punitive damages is allowed, a plaintiff must first comply with section 768.72, Florida Statutes (1997). That statute requires an initial showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”
Establishes the mandatory procedural requirement for pleading punitive damages
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Join FLexlaw to unlock all legal intelligenceChristopher Hinn was featured in a WFTV news program whistleblower feature. WFTV used a videotape of Hinn to advertise its news program without author…
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COBB, Judge.
Petitioner, WFTV, Inc., seeks certiorari review of an order denying its motion to strike a punitive damages claim. We have jurisdiction. See Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla.1995) (district court of appeal has eertiorari jurisdiction to review whether the trial court followed the procedural requirements of section 768.72, Florida Statutes).
Respondent, Christopher Hinn, was the subject of a whistleblower feature on WFTV’s news program. Hinn sued WFTV pursuant to section 540.08, Florida Statutes (1997) (unauthorized publication of name or likeness), because WFTV used a videotape featuring him to advertise its news program. In the complaint, Hinn sought both compensatory and punitive damages. WFTV filed a motion to strike the punitive damages, which the trial court denied after a hearing.
Before a claim for punitive damages is allowed, a plaintiff must first comply with section 768.72, Florida Statutes (1997). That statute requires an initial showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. A plaintiff must obtain leave from the trial court to amend the complaint before a claim for punitive damages can be asserted. See Simeon, Inc. v. Cox, 671 So. 2d 158 (Fla.1996).
Section 540.08(2), Florida Statutes (1997) authorizes recovery of punitive damages, but does not provide any procedure by which such claim may be pled. Hinn asserts that section 768.72 is not applicable to a cause of action under section 540.08. We disagree, and find that sections 540.08 and 768.72 should be read together. Although section 540.08 allows for the recovery of punitive damages, the procedure enacted by the legislature in section 768.72 must be followed. Cf. State Capital Insurance Co. v. Mattey, 689 So. 2d 1295 (Fla. 3d DCA 1997).
At the hearing on the motion to strike, Hinn made several arguments, including that the record showed a reasonable basis for punitive damages in that WFTV admitted in its answer that it continued to run the advertisement after being requested to stop. Evidence or argument presented at the hearing on the motion to strike would not satisfy the procedural requirements of section 768.72, as construed by the supreme court in Simeon, Inc. See also Mayer v. Frank, 659 So. 2d 1254 (Fla. 4th DCA 1995) (procedure in section 768.72 must be strictly enforced, although in some cases the result might elevate form over substance). Even if the pleadings were sufficient to show a reasonable basis for punitive damages, the trial court did not indicate this in the order under review, as it merely denied the motion to strike without comment. As Hinn sought punitive damages in his complaint without first seeking leave to amend and showing a reasonable basis for that claim, the lower court erred by not granting the motion to strike. Because the statutory procedure was not followed, we grant the petition for writ of certiorari and quash the order under review.
PETITION GRANTED; ORDER QUASHED.
DAUKSCH and HARRIS, JJ., concur.
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Hall v. Lexington Ins. Co., 895 So. 2d 1161 (Fla. 4th DCA 2005)…ord or proffered by the claimant that would provide a reasonable basis for recovery of such damages. See Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla.1996); see also Stephanos v. Paine, 727 So. 2d 1075, 1076 (Fla. 4th DCA 1999); WFTV, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. 5th DCA 1998). To comply with the requirements of the statute, a plaintiff must obtain leave from the trial court to amend the complaint before punitive damages may be asserted. See Simeon, 671 So. 2d at 160. If a plaintiff fails to obta…
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Bleau Stephanos v. Paine, 727 So. 2d 1075 (Fla. 4th DCA 1999)…t supporting his claim. In this ruling, the trial court departed from the essential requirements of law. See Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla.1996); Mayer v. Frank, 659 So. 2d 1254, 1255 (Fla. 4th DCA 1995); see also WFTV, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. 5th DCA 1998). As the supreme court stated in Simeon: [i]n this case, the plaintiffs did not comply with the procedures of this section. We agree with Judge Peterson’s dissent that to comply with the statute’s requirements, a plaintif…
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Atl. Exterminating OF N. Fla., Inc. v. B.V. Alvarez and Judy Alvarez, 815 So. 2d 754 (Fla. 1st DCA 2002)…otion to strike a claim for punitive damages. We have jurisdiction, grant the writ, quash the order below, and remand with instructions to strike the claim for punitive damages. See Simeon, Inc. v. Cox, 671 So. 2d 158 (Fla.1996); WFTV, Inc. v. Hinn, 705 So. 2d 1010 (Fla. 5th DCA 1998); section 768.72, Fla. Stat. (2000). BOOTH, MINER and KAHN, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995)
- Simeon, Inc. v. COX, 671 So. 2d 158 (Fla. 1996)
- Mayer v. Frank, 659 So. 2d 1254 (Fla. 4th DCA 1995)
- State Cap. Ins. Co. v. Mattey, 689 So. 2d 1295 (Fla. 3d DCA 1997)