On June 11, 2026, the Florida Supreme Court in Perlmutter v. Federal Insurance Co., No. SC2024-0058, resolved a district-court conflict that had quietly reshaped punitive damages practice across Florida since the Fourth DCA's en banc decision below. In a unanimous opinion authored by Chief Justice Muñiz, the Court held that the "clear and convincing evidence" standard from section 768.72(2), Florida Statutes, does not apply when the trial court evaluates the sufficiency of a claimant's evidentiary showing under section 768.72(1) at the pleading stage. The Court quashed the Fourth DCA's decision, approved the conflicting decisions of the Second and Fifth DCAs, and articulated a two-part framework that is materially less demanding than what many defense practitioners in the Fourth DCA had come to expect.
The Case
The dispute traces to acrimonious neighbor litigation among residents of the Sloan's Curve community in Palm Beach. Harold Peerenboom sued Isaac and Laura Perlmutter for defamation, alleging that the couple had orchestrated a hate-mail campaign against him. The Perlmutters counterclaimed for defamation, invasion of privacy, and related torts, alleging that Peerenboom (together with lawyer William Douberley, defended by Federal Insurance Company in a separate matter) had engaged in a pretextual deposition to collect the Perlmutters' DNA from items they touched and discarded, then pressured a private lab into producing false test results linking Laura Perlmutter's DNA to the hate mail, then disseminated those results to the Palm Beach Police Department and to media outlets. The Perlmutters moved under Rule 1.190(f) to amend their counterclaims to add punitive damages against Peerenboom, Douberley, and Federal Insurance.
The trial court granted the motion. On appeal, the Fourth DCA — sitting en banc — reversed. It held that section 768.72(1) required the trial court to make a "preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted." Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 34 (Fla. 4th DCA 2023) (emphasis in original). Applying that framework, the Fourth DCA concluded that the evidence was "ambiguous" as to intent, impermissibly relied on "stacking of circumstantial inferences," and "could never meet the clear and convincing evidence standard at trial." The panel also held that Federal Insurance's corporate management lacked contemporaneous knowledge of Douberley's actions.
The Perlmutters sought review. The Florida Supreme Court accepted jurisdiction on both the certified-conflict basis (with five decisions from the Second and Fifth DCAs) and the certified question. It reversed.
The Standard the Supreme Court Adopted
Chief Justice Muñiz's opinion articulates two distinct holdings on the operation of section 768.72(1).
First, the evidence considered. "In a proceeding under section 768.72(1), the trial court should consider only the evidence identified or proffered by the claimant; it should not entertain an evidentiary counter-submission from the opponent." Slip op. at 13. The Court rejected the Fourth DCA's approach — which required consideration of "the evidentiary showing by all parties" — as a departure from what the statutory text actually contemplates. Section 768.72(1), the Court explained, "expressly contemplates a burden of production for the claimant but mentions no role for the opponent."
Second, the evidentiary-sufficiency test. "The test for deciding evidentiary sufficiency under section 768.72(1) is whether a reasonable person could conclude, based on the claimant's evidence, that the defendant committed 'intentional misconduct' or 'gross negligence,' as defined in section 768.72(2)." Slip op. at 13. That is not the clear-and-convincing standard. Section 768.72(2)'s clear-and-convincing requirement, the Court held, is the trial standard and does not migrate to the pleading-stage analysis. Where a claimant seeks punitive damages against an employer under a theory of vicarious liability, the trial court also must ask whether a reasonable person could conclude that the criteria of section 768.72(3) are satisfied.
Applying this framework, the trial court "does not act as a fact-finder." Slip op. at 14. It must not weigh evidence. It must not decide credibility. It must "consider the record evidence and the proffered evidence in the light most favorable to the plaintiff." Hosp. Specialists, P.A. v. Deen, 373 So. 3d 1283, 1287 (Fla. 5th DCA 2023) (approved by the Court).
Why the Court Rejected the Fourth DCA's Reading
The Court's rejection of the Fourth DCA's approach turned on three textual and structural observations.
Textual specificity. Section 768.72(1) expressly contemplates a burden of production for "the claimant" but says nothing about counter-evidence from the opponent. "One would expect an express command," the Court reasoned, "if the Legislature intended for the trial court to evaluate competing evidentiary submissions at the pleading stage."
Section 400.0237 as a contrast. In 2014, the Florida Legislature substantially amended section 400.0237, the parallel pleading-stage punitive damages statute governing nursing-home actions. As amended, section 400.0237(1)(b) expressly calls for evidentiary submissions by "the parties" and expressly directs the trial court to determine whether the claimant could satisfy the "clear and convincing evidence" standard at trial. Section 768.72(1) has neither of those features. The textual contrast defeats any argument that the general statute silently incorporates the very language the Legislature chose to add to the nursing-home statute.
Pleading-stage versus trial-stage functions. Section 768.72(2)'s clear-and-convincing standard refers to what "the trier of fact" must "find" at trial. The Court declined to import that standard into pleading, where the record is incomplete and the trier of fact has not yet been engaged. Summary judgment, the Court noted, remains available as a "screening device later in the litigation" — but section 768.72(1) is not to be treated as a preemptive summary judgment hearing.
What Plaintiffs' Counsel Should Take Away
For plaintiffs' counsel in Florida civil litigation, Perlmutter meaningfully lowers the effective bar for adding a punitive damages claim under section 768.72(1). The evidentiary showing that must be made is only that a reasonable person could conclude, based on the claimant's evidence alone, that the defendant's conduct meets the statutory definitions of intentional misconduct or gross negligence. Defendants cannot file competing declarations, affidavits, or evidentiary submissions at this stage. The trial court cannot weigh credibility. And the clear-and-convincing standard that will apply at trial is off the table for the pleading motion.
Practically, this means:
- Focus the motion on the strongest possible presentation of the claimant's own evidence. Do not concede anything to hypothetical counter-evidence.
- Tie the evidence directly to the statutory definitions. Under section 768.72(2), intentional misconduct requires actual knowledge of wrongfulness combined with a high probability of injury and conscious pursuit of the course anyway; gross negligence requires conduct so wanton as to constitute a conscious disregard of life, safety, or rights. The pleading-stage submission should map each element to specific evidence.
- If the claim runs against an employer under section 768.72(3), plead the vicarious-liability facts with the same care. The Court expressly reserved the section 768.72(3) analysis on remand.
- Do not treat the amended complaint's allegations as evidence. The Court reiterated that "the allegations contained in the claimant's proposed amended complaint are not themselves evidence." Slip op. at 15.
What Defense Counsel Should Take Away
Defense counsel in the Fourth DCA lose the most substantial pleading-stage defense they had built up under the district's now-quashed en banc reasoning. But Perlmutter is not a green light for baseless punitive damages claims. The trial court retains a meaningful gatekeeping role — it must decide, on the claimant's evidence, whether a reasonable person could conclude the substantive standards are met. The Supreme Court expressly acknowledged that courts applying the standard it announced have "frequently upheld orders denying leave to add punitive damages claims" and "reversed orders granting leave to add such claims," collecting a string of recent Second, Third, and Fifth DCA decisions doing exactly that. See, e.g., McLane Foodservice Inc. v. Wool, 400 So. 3d 757 (Fla. 3d DCA 2024); Publix Super Mkts., Inc. v. Levi, 399 So. 3d 1212 (Fla. 2d DCA 2024); Friedler v. Faena Hotels & Residences, LLC, 390 So. 3d 186 (Fla. 3d DCA 2024).
Practically:
- Focus the opposition brief on why the claimant's own evidence, taken in the light most favorable to the movant, does not permit a reasonable person to conclude that intentional misconduct or gross negligence occurred.
- Do not waste briefing space on contrary declarations or affidavits — the trial court cannot consider them under section 768.72(1).
- Preserve arguments for summary judgment. The Court expressly identified Rule 1.510 summary judgment as remaining available and involving different questions on a more complete record.
- Section 768.72(3) is a separate line of defense for punitive damages claims against employers. Perlmutter did not disturb the substantive vicarious-liability analysis, and the Court expressly declined to reach it on remand.
The Bottom Line
Perlmutter v. Federal Insurance Co. is a significant recalibration of Florida punitive damages pleading practice. The Florida Supreme Court has now definitively held that section 768.72(1) does not require the trial court to consider defense counter-evidence and does not import the clear-and-convincing standard from section 768.72(2) into the pleading-stage inquiry. Motions to plead punitive damages will be evaluated under a lower and simpler standard: whether a reasonable person could conclude, based on the claimant's evidence alone, that the substantive definitions of intentional misconduct or gross negligence are satisfied. Defense counsel who had built practice around the Fourth DCA's en banc framework will need to recalibrate; plaintiffs' counsel now have clearer guidance on what the pleading-stage showing must accomplish, and what it need not.