Third District Court of Appeal
State of Florida
Opinion filed March 27, 2024.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-0639
Lower Tribunal No. 21-22353
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Giselle Gattorno and David Iglesias,
Appellants,
vs.
Steven Souto,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Lourdes Simon, Judge.
Cole, Scott & Kissane, P.A., and Lissette Gonzalez and Carly M.
Weiss, for appellants.
Florida Advocates, and Carlos D. Cabrera (Dania Beach), for appellee.
Before EMAS, LINDSEY and LOBREE, JJ.
EMAS, J.
INTRODUCTION
Appellants, Giselle Gattorno and David Iglesias, the defendants below,
appeal a nonfinal order granting plaintiff Steven Souto’s motion for leave to
amend his complaint to assert a claim for punitive damages. Appellants
contend the trial court erred in allowing leave to amend because the motion
and proffer failed to make “a reasonable showing by evidence in the record
or proffered by the claimant which would provide a reasonable basis for
recovery of such damages,” as required by section 768.72(1), Florida
Statutes (2021). Specifically, they assert that Souto failed to show that
Gattorno’s actions rose to the level of “intentional misconduct or gross
negligence” under section 768.72(2), Florida Statutes (2021). We have
jurisdiction 1 and, upon our de novo review of the evidence proffered,
1
In 2022, the Florida Supreme Court amended Florida Rule of Appellate
Procedure 9.130, authorizing appeals of nonfinal orders that “grant or deny
a motion for leave to amend to assert a claim for punitive damages.” Fla. R.
App. P. 9.130(a)(3)(G). See In re Amend. to Fla. R. App. P. 9.130, 345 So.
3d 725 (Fla. 2022). Prior to that amendment, such orders were reviewable
only by certiorari, but the scope of review was limited to determining whether
the trial court complied with the procedural requirements of section 768.72,
Florida Statutes. See, e.g., Ross Dress For Less Va., Inc. v. Castro, 134 So.
3d 511, 525 (Fla. 3d DCA 2014) (“[A]ppellate courts do have certiorari
jurisdiction to review whether a trial judge has conformed with the procedural
requirements of section 768.72, but do not have certiorari jurisdiction to
review a decision of a trial judge granting leave to amend a complaint to
include a claim for punitive damages when the trial judge has followed the
procedural requirements of section 768.72. Certiorari is not available to
review a determination that there is a reasonable showing by evidence in the
2
considered in a light most favorable to Souto, we affirm the trial court’s order
granting Souto leave to amend to assert a claim for punitive damages.
FACTS AND PROCEDURAL HISTORY
The lawsuit arises out of an incident in which Gattorno (who was driving
David Iglesias’ car) reversed out of a parking space, striking and pinning
Souto between her car and another car. As a result, Souto suffered injuries
that necessitated surgery. Among the disputed issues surrounding the
events of that evening is whether Gattorno was intoxicated.
Souto sued Gattorno and David Iglesias in a two-count complaint,
alleging Gattorno negligently operated the car causing severe and
permanent bodily injury to Souto, and that David Iglesias was vicariously
liable as the owner of the car.
Following discovery, Souto filed the underlying motion for leave to
amend the complaint to assert a claim for punitive damages on the basis that
Gattorno was intoxicated when she struck Souto with Iglesias’ car. The
evidentiary proffer included deposition testimony from four people: Gattorno,
Danielle Iglesias, Souto, and Christopher Noonan (a friend of Souto who
witnessed the incident).
record or proffered by the claimant which would provide a reasonable basis
for recovery of such damages.”) (quoting Globe Newspaper Co. v. King, 658
So. 2d 518, 519 (Fla. 1995)).
3
These four witnesses testified that Gattorno and Danielle Iglesias met
Souto, Noonan and their friends at The Wharf, a club in Miami. The two
groups arrived at the club separately and did not meet until after 2:00 a.m.
When the club closed at approximately 3:00 a.m., Noonan and one of his
friends stayed in the parking lot talking to Gattorno and Danielle Iglesias, as
the women sat in their car with the windows lowered. Meanwhile, Souto was
standing behind the vehicle speaking to an acquaintance who had parked
his car behind the women. While the details in the witnesses’ stories vary,
Souto and Noonan testified that, when Gattorno backed out of the parking
space to leave, she struck Souto, pinning him to the vehicle parked behind
her.
The accounts of these witnesses also differed on whether Gattorno
was intoxicated. Gattorno and Danielle Iglesias testified that Gattorno drank
two mojitos between 11 p.m. and 2 a.m., before they encountered the group
of men at The Wharf. Noonan and Souto testified that Gattorno drank at least
two drinks in their presence and “a couple of shots,” and that Gattorno was
acting intoxicated before the incident in the parking lot.
The trial court conducted a hearing on the motion, discussed the
proffered evidence, and granted Souto’s motion for leave to amend to add
the punitive damages claim. This appeal followed.
4
STANDARD OF REVIEW
This Court applies de novo review to a nonfinal order granting a motion
for leave to amend a complaint to assert a claim for punitive damages. Grove
Isle Ass'n, Inc. v. Lindzon, 350 So. 3d 826, 829 (Fla. 3d DCA 2022). In doing
so, this court “views the record evidence and the proffered evidence in the
light most favorable to the plaintiffs and accepts said evidence as true for the
purpose of reviewing whether a reasonable basis exists for punitive
damages.” Est. of Blakely by & Through Wilson v. Stetson Univ., Inc., 355
So. 3d 476, 481 (Fla. 5th DCA 2022). See also Fed. Ins. Co. v. Perlmutter,
376 So. 3d 24 (Fla. 4th DCA 2023); Hosp. Specialists, P.A. v. Deen, 373 So.
3d 1283 (Fla. 5th DCA 2023).
ANALYSIS AND DISCUSSION
Appellants contend the proffer failed to provide a reasonable
evidentiary basis to allow Souto to seek punitive damages. They generally
cite to the quality of the evidence and argue the trial court applied the
incorrect standard in reaching its decision. We find Appellants’ contention to
be without merit.
“Under Florida law, the purpose of punitive damages is not to further
compensate the plaintiff, but to punish the defendant for its wrongful conduct
and to deter similar misconduct by it and other actors in the future.”
5
Manheimer v. Fla. Power & Light Co., 48 Fla. L. Weekly D1495, 2023 WL
4919540, at *2 (Fla. 3d DCA Aug. 2, 2023) (quoting Owens–Corning
Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999)). Section
768.72(1) provides:
In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence in
the record or proffered by the claimant which would provide a
reasonable basis for recovery of such damages.
Stated differently, “[t]he statute requires the trial court to act as a
gatekeeper and precludes a claim for punitive damages where there is no
reasonable evidentiary basis for recovery.” KIS Grp., LLC v. Moquin, 263 So.
3d 63, 65 (Fla. 4th DCA 2019) (quotation omitted). Such a function is
significant because punitive damages are a “game changer” in litigation—
specifically, “a punitive damages claim subjects the defendant to financial
discovery that would otherwise be off limits . . . and potentially subjects the
defendant to uninsured losses.” Manheimer, 48 Fla. L. Weekly D1495 at *2
(quotation omitted). As to the trial court’s determination, this court has
explained:
A trial court must weigh both parties’ showings when considering
whether the evidence or proffer is sufficient to establish a
reasonable evidentiary basis for recovery of punitive damages.
A trial court's inquiry under section 768.72 is more intensive than
at summary judgment because the statute necessarily requires
the court to weigh the evidence and act as a factfinder.
6
Manheimer, 48 Fla. L. Weekly D1495 at *3 (quotation omitted); see also
Napleton's N. Palm Auto Park, Inc. v. Agosto, 364 So. 3d 1103, 1105 (Fla.
4th DCA 2023) (“As a threshold matter, the trial court improperly believed it
had to accept Agosto's proffer as true.”) And while the trial court’s role as
gatekeeper requires it to consider and weigh the competing showings of the
parties and to act as a factfinder, the statute does not require the plaintiff
prove an entitlement to punitive damages by clear and convincing evidence
at this pleading stage of the case. To impose such a requirement “would
circumvent the statute and impair a claimant's ability to plead punitive
damages, and no court of this state has the discretion ‘to construe an
unambiguous statute in a way which would extend, modify, or limit, its
express terms or its reasonable and obvious implications.’” Deaterly v.
Jacobson, 313 So. 3d 798, 801 (Fla. 2d DCA 2021) (quoting Holly v. Auld,
450 So. 2d 217, 219 (Fla. 1984)).
The record below confirms that the trial court considered and weighed
the evidence offered by the parties, acted as a factfinder, and performed its
gatekeeper role in concluding that Souto provided a reasonable evidentiary
basis for the recovery of punitive damages.
We reject Appellants’ suggestion that evidence of intoxication while
driving does not provide the requisite “reasonable basis” for recovery of
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punitive damages. In Ingram v. Pettit, 340 So. 2d 922, 924 (Fla.1976), the
Florida Supreme Court explained that
we see that the courts and the Legislature have evolved the
notion that drunk drivers menace the public safety and are to be
discouraged by punishment. . . . In line with that policy, therefore,
we hold that juries may award punitive damages where voluntary
intoxication is involved in an automotive accident in Florida. . . .
We affirmatively hold that the voluntary act of driving “while
intoxicated” evinces, without more, a sufficiently reckless attitude
for a jury to be asked to provide an award of punitive damages if
it determines liability exists for compensatory damages.
See also Case v. Newman, 154 So. 3d 1151, 1156 (Fla. 1st DCA 2014).
Because intoxication while driving can constitute a basis for a punitive
damages award, the proffered evidence satisfied the statutory requirement
to provide a reasonable basis for recovery of punitive damages:
Both Gattorno and Danielle Iglesias testified that Gattorno had at least
two mojitos between 11:00 p.m. and 2:00 a.m. In addition, Steven Souto
testified that, in his presence, Gattorno had at least two mojitos “and a couple
of shots or something” within a forty-five-minute period. Souto further
testified that Gattorno appeared to be drunk: “She was very giggly. My friend
Patricio was letting her sit on his lap. She definitely looked like she was
intoxicated.”
Noonan testified that Gattorno drank at least two mojitos within a forty-
five minute period, and that she appeared intoxicated: “[I]t seemed as if
8
Danielle wasn’t really intoxicated, and [Gattorno] was kind of more, you
know, she was drunk.” Once the club closed, and they were in the parking
lot, Gattorno and Danielle were in Iglesias’ car, with Gattorno behind the
wheel. Noonan stood outside the car, talking to them, and he told Gattorno
that Danielle should drive: “You know, I think your cousin [Danielle] should
drive because, you know, you’ve been—I feel like you’ve been drinking a
little bit too much.” According to Noonan, Danielle agreed with this
assessment and offered to drive, but Gattorno became upset, raised her
window, and “put[] the car in reverse and like hit[] the gas, like off impulse.
And that’s when she slam[med] into Steven.”
Viewing the evidence in a light most favorable to the plaintiff, there was
no error in the trial court finding Souto provided a reasonable basis to permit
leave to amend to add a claim for punitive damages. Appellants raise
additional arguments, none of which merits further discussion.2
2
For example, Appellants contend that Souto and Noonan’s testimony
included inadmissible hearsay. While the trial court can certainly consider
this aspect in weighing the parties’ proffer in support of their respective
positions, a proffer of evidence supporting a punitive damages claim “is
merely a representation of what evidence the [party] proposes to present and
is not actual evidence.” Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637,
644 (Fla. 5th DCA 2005) (quotation omitted). “By allowing a punitive
damages claimant to satisfy his initial burden by means of a proffer, section
768.72 contemplates that a claimant might obtain admissible evidence or
cure existing admissibility issues through subsequent discovery.” Cook v.
Fla. Peninsula Ins. Co., 371 So. 3d 958, 961-62 (Fla. 5th DCA 2023) (quoting
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CONCLUSION
The trial court performed its gatekeeping function in acting as a
factfinder and weighing the parties’ showings in determining whether to grant
Souto leave to amend to assert a claim for punitive damages. Upon our de
novo review of the evidence proffered, considered in a light most favorable
to the plaintiff below, we affirm the trial court’s order granting Souto leave to
amend to assert a claim for punitive damages.
Affirmed.
Royal Marco Point I Condo. Ass'n, Inc. v. QBE Ins. Corp., No. 3:07 CV 16,
2010 WL 2609367, at *2 (M.D. Fla. June 30, 2010)).
Additionally, the mere fact that the evidence proffered by the parties was in
some respect conflicting does not require a trial court to deny a motion
seeking leave to add a claim for punitive damages. Indeed, at trial a jury can
conclude that punitive damages have been proven by clear and convincing
evidence even in the face of conflicts and inconsistencies in the evidence
presented. See, e.g., In re Guardianship of Browning, 543 So. 2d 258, 273
(Fla. 2d DCA 1989) (discussing the level of proof required to meet the “clear
and convincing” standard and observing: “It is possible for the evidence in
such a case to be clear and convincing, even though some evidence may be
inconsistent. Likewise, it is possible for the evidence to be uncontroverted,
and yet not be clear and convincing.”) (additional quotation omitted). See
also Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24 (Fla. 4th DCA 2023); Edwards
v. State, 351 So. 3d 1142, 1151 (Fla. 1st DCA 2022) (noting that “clear and
convincing evidence does not mean that there are no inconsistencies in the
evidence.”)
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Giselle Gattorno and David Iglesias v. Steven Souto
Combined Opinion