CARPENTERS HOME ESTATES, INC., and HMS OF LAKELAND, INC., Petitioners,
SANDRA K. SANDERS, as personal representative of the Estate of Mary Hurst Curry, deceased, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Certiorari to the Circuit Court for Polk
County; Michael E. Raiden, Judge.
A. Valdez of Quintairos, Prieto Wood & Boyer, P.A.,
Tampa, for Petitioners.
L. Gisclar, Joanna Greber Dettloff, Jason R. Delgado, and
James L. Wilkes, II, of Wilkes & McHugh, P.A., Tampa; and
Robert E. Salyer of Wilkes & McHugh, P.A., Lexington,
Kentucky, for Respondent.
ORDER OF THE COURT:
consideration of respondent's motion for rehearing,
certification, and/or rehearing en banc filed on June 27,
2019, IT IS ORDERED that the motion for rehearing is granted
to the extent that the opinion dated June 12, 2019, is
withdrawn and the attached opinion is substituted therefor.
Respondent's motion for certification and rehearing en
banc is denied.
HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL
COURT ORDER. MARY ELIZABETH KUENZEL, CLERK
proceeding on a petition for a writ of certiorari, Carpenters
Home Estates, Inc., and HMS of Lakeland, Inc. (collectively,
"the nursing home defendants"), challenge the trial
court's order granting Sandra K. Sanders, as personal
representative of the Estate of Mary Hurst Curry, leave to
amend her negligence and wrongful-death action against them
under chapter 400, Florida Statutes (2016), to include a
claim for punitive damages. Because we agree that the court
failed to comply with the procedural requirements of section
400.0237, we grant the petition and quash the order.
to section 400.0237(1), "[a] claim for punitive damages
may not be brought under this part unless there is a showing
by admissible evidence that has been submitted by the parties
that provides a reasonable basis for recovery of such damages
when the criteria in this section are applied." Section
400.0237 creates "a substantive legal right" in
chapter 400 proceedings "not to be subject to a punitive
damages claim and ensuing financial worth discovery until the
trial court makes a determination that there is a reasonable
evidentiary basis for recovery of punitive damages."
Cf. Globe Newspaper Co. v. King, 658 So.2d 518, 519
(Fla. 1995) (holding that in the context of section 768.72,
Florida Statutes (1993), the punitive-damages statute is
generally applicable to civil actions). Because a plenary
appeal cannot restore a defendant's statutory right under
section 400.0237, we have certiorari jurisdiction to
determine whether the trial court complied with the
procedural requirements of section 400.0237 in granting
Sanders' motion for leave to amend. See Globe
Newspaper Co., 658 So.2d at 519-20 (holding that
appellate courts have certiorari jurisdiction to review
whether a trial court "has conformed with the procedural
requirements of section 768.72" and "should grant
certiorari in instances in which there is a demonstration by
a petitioner that the procedures of section 768.72 have not
conclude that it did not. When a plaintiff moves to amend a
complaint under chapter 400 to assert a claim for punitive
damages, the trial court must
conduct a hearing to determine whether there is sufficient
admissible evidence submitted by the parties to ensure that
there is a reasonable basis to believe that the claimant, at
trial, will be able to demonstrate by clear and convincing
evidence that the recovery of such damages is warranted under
a claim for direct liability . . . or under a claim for
§ 400.0237(1)(b). To establish direct liability, the
evidence would have to show that the nursing home defendants
"actively and knowingly participated in intentional
misconduct or engaged in conduct that constitutes gross
negligence and contributed to the loss, damages, or injury
suffered by the claimant." See §
400.0237(2). To establish vicarious liability, the evidence
would have to show that an employee or agent of the nursing
home defendants had engaged in the above conduct and that
"an officer, director, or manager of [the nursing home
defendants] condoned, ratified, or consented to the specific
conduct." See § 400.0237(3).
trial court's order gave multiple appalling examples of
staff dropping the ball when it came to Ms. Curry's care.
But as commonsensical as it may seem that such incidents
could only result from an institutional breakdown, the order
identified no admissible evidence that supported the
court's attribution of the staff's conduct to the
nursing home defendants under a theory of either direct or
vicarious liability. It identified no admissible evidence
implicating the nursing home defendants even in ordinary
negligence-by, say, a failure to adequately staff or a
failure to adequately train-let alone in either intentional
misconduct or gross negligence. And it identified no
admissible evidence ...