HERNANDO HMA, LLC, D/B/A BAYFRONT HEALTH SPRING HILL, F/K/A SPRING HILL HOSPITAL, Petitioner,
ROBERT T. ERWIN, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF PATRICIA ERWIN, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Hernando County, Richard Tombrink, Jr., Judge.
Dilday and Gerald R. DeVega, of McCumber, Daniels, Buntz,
Hartig & Puig, P.A., Tampa, and J. David Gallagher and
Scott Albee, of Fulmer, LeRoy & Albee, PLLC, of Tampa,
Florin and Eric P. Czelusta, of Florin Roebig, P.A., Palm
Harbor for Respondent.
Hernando HMA, LLC, d/b/a Bayfront Health Spring Hill, f/k/a
Spring Hill Hospital, has filed a petition seeking a writ of
certiorari to quash the trial court's order granting
Respondent's motion to amend its complaint to assert a
claim for punitive damages. Because Petitioner seeks relief
on a ground not raised below, we deny the petition.
Robert Erwin, filed suit against Petitioner alleging medical
malpractice. He later filed a motion seeking to add a claim
for punitive damages. After a hearing, the trial court
granted the motion, citing Estate of Despain v. Avante
Group, Inc., 900 So.2d 637 (Fla. 5th DCA 2005).
seeking certiorari relief, Petitioner argues that the trial
court erred in relying on Despain because that
decision was based on a prior version of the punitive damages
statute, see § 768.72, Fla. Stat. (1999), which
has since been amended to heighten the burden of proving an
employer's fault from ordinary negligence to gross
negligence. See § 768.72, Fla. Stat. (2016).
However, Petitioner made no such argument below.
hearing, Petitioner's main argument focused on a statute
of limitations issue not relevant here. The only arguments
unrelated to the statute of limitations issues were an attack
on an affidavit as hyperbole and an objection to the
admission of a letter because it had not been disclosed
during discovery. Petitioner's written "Response and
Objection to Plaintiff's Motion to Add Punitive Damages
and Plaintiff's Proffer" also did not include the
argument now raised in this petition. Petitioner, in fact,
cited the Despain decision in support of its
objection. Although the Response noted that Respondent
recited the definition of gross negligence in his motion to
amend the complaint, the Response did not argue that
Respondent failed to state a claim for punitive damages.
Instead, the Response argued that (1) Respondent's expert
affidavit was insufficient and should be stricken, (2) a
letter relied upon by Respondent should be disregarded
because it had not been produced during discovery, (3) the
claim for punitive damages was barred by the statute of
limitations, and (4) the motion to amend was untimely filed.
the instant petition because "[g]enerally, a petitioner
cannot raise in a petition for writ of certiorari a ground
that was not raised below." Watkins v. State,
159 So.3d 323, 325 (Fla. 1st DCA 2015) (quoting First
Call Ventures, LLC v. Nationwide Relocation Servs.,
Inc., 127 So.3d 691, 693 (Fla. 4th DCA
J, concurs. COHEN, J., dissents with opinion.
panel agrees that the trial court relied on the incorrect
legal standard in granting Respondent's motion to amend
the complaint to add a claim for punitive damages. Our
disagreement is whether Petitioner preserved that issue for