Florida Senate - 2013                             CS for SB 1384
       
       
       
       By the Committee on Judiciary; and Senator Galvano
       
       
       
       
       590-03362-13                                          20131384c1
    1                        A bill to be entitled                      
    2         An act relating to nursing home litigation; amending
    3         s. 400.0237, F.S.; providing that a claim for punitive
    4         damages may not be brought unless there is a showing
    5         of admissible evidence proffered by the parties which
    6         provides a reasonable basis for recovery of punitive
    7         damages when certain criteria are applied; requiring
    8         the court to conduct a hearing to determine whether
    9         there is sufficient admissible evidence to ensure that
   10         there is a reasonable basis to believe that the
   11         claimant will be able to demonstrate by clear and
   12         convincing evidence that the recovery of punitive
   13         damages is appropriate; requiring the trier of fact to
   14         find by clear and convincing evidence that a specific
   15         person or corporate defendant actively and knowingly
   16         participated in intentional misconduct or engaged in
   17         conduct that constituted gross negligence and
   18         contributed to the loss, damages, or injury suffered
   19         by the claimant before punitive damages may be
   20         awarded; requiring an officer, director, or manager of
   21         the employer, corporation, or legal entity to condone,
   22         ratify, or consent to certain specified conduct before
   23         holding the licensee vicariously liable for punitive
   24         damages; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 400.0237, Florida Statutes, is amended
   29  to read:
   30         400.0237 Punitive damages; pleading; burden of proof.—
   31         (1)(a) In any action for damages brought under this part, a
   32  no claim for punitive damages may not be brought shall be
   33  permitted unless there is a reasonable showing of admissible by
   34  evidence that has been submitted in the record or proffered by
   35  the parties and provides claimant which would provide a
   36  reasonable basis for recovery of such damages when the criteria
   37  in this section are applied. The claimant may move to amend her
   38  or his complaint to assert a claim for punitive damages as
   39  allowed by the rules of civil procedure in accordance with
   40  evidentiary requirements set forth in this section.
   41         (b)The court shall conduct a hearing to determine whether
   42  there is sufficient admissible evidence submitted by the parties
   43  to ensure that there is a reasonable basis to believe that the
   44  claimant, at trial, will be able to demonstrate by clear and
   45  convincing evidence that the recovery of such damages is
   46  warranted. A The rules of civil procedure shall be liberally
   47  construed so as to allow the claimant discovery of evidence
   48  which appears reasonably calculated to lead to admissible
   49  evidence on the issue of punitive damages. No discovery of
   50  financial worth may not shall proceed until after the pleading
   51  on concerning punitive damages is approved by the court
   52  permitted.
   53         (2) A defendant may be held liable for punitive damages
   54  only if the trier of fact, by based on clear and convincing
   55  evidence, finds that a specific person or corporate defendant
   56  actively and knowingly participated in intentional misconduct or
   57  engaged in conduct that constitutes gross negligence and
   58  contributed to the loss, damages, or injury suffered by the
   59  claimant the defendant was personally guilty of intentional
   60  misconduct or gross negligence. As used in this section, the
   61  term:
   62         (a) “Intentional misconduct” means that the defendant
   63  against whom punitive damages are sought had actual knowledge of
   64  the wrongfulness of the conduct and the high probability that
   65  injury or damage to the claimant would result and, despite that
   66  knowledge, intentionally pursued that course of conduct,
   67  resulting in injury or damage.
   68         (b) “Gross negligence” means that the defendant’s conduct
   69  was so reckless or wanting in care that it constituted a
   70  conscious disregard or indifference to the life, safety, or
   71  rights of persons exposed to such conduct.
   72         (3) In the case of vicarious liability of an employer,
   73  principal, corporation, or other legal entity, punitive damages
   74  may not be imposed for the conduct of an employee or agent
   75  unless only if the conduct of a specifically identified the
   76  employee or agent meets the criteria specified in subsection (2)
   77  and an officer, director, or manager of the actual employer,
   78  corporation, or legal entity condoned, ratified, or consented to
   79  the specific conduct as alleged in subsection (2). A state or
   80  federal survey report of nursing facilities may not be used to
   81  establish an entitlement to punitive damages under this section:
   82         (a) The employer, principal, corporation, or other legal
   83  entity actively and knowingly participated in such conduct;
   84         (b) The officers, directors, or managers of the employer,
   85  principal, corporation, or other legal entity condoned,
   86  ratified, or consented to such conduct; or
   87         (c) The employer, principal, corporation, or other legal
   88  entity engaged in conduct that constituted gross negligence and
   89  that contributed to the loss, damages, or injury suffered by the
   90  claimant.
   91         (4) The plaintiff shall must establish at trial, by clear
   92  and convincing evidence, its entitlement to an award of punitive
   93  damages. The “greater weight of the evidence” burden of proof
   94  applies to a determination of the amount of damages.
   95         (5) This section is remedial in nature and takes shall take
   96  effect upon becoming a law.
   97         Section 2. This act shall take effect upon becoming a law.