Key Points

  • The Third District reversed a Miami-Dade circuit court order granting leave to amend a complaint to assert punitive damages against Limousines of South Florida.
  • The court held that a missing passenger endorsement is a licensing deficiency, not the intentional course of conduct required for intentional misconduct under section 768.72(2)(a).
  • Applying the reasonable-person test from Perlmutter v. Federal Insurance Co., the court held that a statutory or licensing violation, standing alone, does not establish gross negligence without some additional act showing recklessness or conscious disregard.
  • The court required a direct link between the conduct offered to support punitive damages and the plaintiff's harm, and found the endorsement issue unrelated to the driver's failure to brake.
  • On rehearing, the panel denied certification of questions of great public importance and substituted its opinion, emphasizing the trial court's gatekeeping role.

A Florida appeals court on Wednesday reversed an order that let a motorist seek punitive damages, which punish and deter rather than compensate, from a shuttle company over a minor rear-end collision. The court held that the bus driver's alleged lack of a required passenger endorsement on her commercial license could not, by itself, support the claim.

Judge Gordo wrote for a Third District Court of Appeal panel that also included Judges Fernandez and Rebull. The panel ruled for Limousines of South Florida, Inc., whose empty shuttle bus struck the rear of Joseph Levit's car. "Any missing passenger endorsement is a licensing deficiency, not a course of conduct," Judge Gordo wrote. The ruling reversed Miami-Dade Circuit Judge Lourdes Simon, who had allowed Levit to add the punitive damages claim.

The Third District held that a statutory or licensing violation, standing alone, cannot support punitive damages unless the plaintiff's evidence shows "some 'additional act' demonstrating recklessness or a conscious disregard for the safety of others." The court also required a direct link between the violation and the plaintiff's harm. The opinion addressed trial judges directly, stating that "It is paramount that trial courts understand their proper gatekeeping role when reviewing proffers to determine whether they meet the statutory requirements for punitive damages."

The panel issued the decision on rehearing. It denied a motion for rehearing and for certification of questions of great public importance and substituted the new opinion for its earlier one.

Limousines hired Catherine Rodriguez as a passenger shuttle bus driver. Rodriguez held a valid Class B commercial driver's license, and at issue was whether she also held a valid passenger endorsement. Several months later, Rodriguez was driving an empty shuttle bus when she "failed to timely brake and made slight contact with the rear of Levit's vehicle." The opinion states that "No injuries were reported at the scene."

Levit and the three passengers in his car filed a 32-count complaint alleging various forms of negligence and later moved to add a punitive damages claim. Levit then filed a proffer that, as the opinion summarizes it, argued that the company's decision to hire Rodriguez and let her drive without the endorsement "created an imminent danger and constituted intentional misconduct or gross negligence." Judge Simon agreed, finding that allowing Rodriguez to transport passengers without the endorsement exposed the public to risk and showed a conscious disregard for the safety of others.

Florida's punitive damages statute, section 768.72, requires a "reasonable showing by evidence in the record or proffered by the claimant" that the defendant was "personally guilty of intentional misconduct or gross negligence." Earlier this year, in Perlmutter v. Federal Insurance Co., the Florida Supreme Court held that the "clear and convincing" evidence standard does not apply at that pleading stage. The test instead is whether a reasonable person could conclude from the claimant's evidence that the defendant met either statutory definition.

Intentional misconduct requires that the defendant knew the conduct was wrongful and that injury was highly probable, and pursued it anyway. Judge Gordo relied on Robertson v. Antoine, a 2025 Fourth District decision that reversed a finding of intentional misconduct against a forklift driver who drove on the wrong side of the road and collided with a motorist. The Third District held that Levit's proffer "fails at the threshold because it does not identify the intentional course of conduct required by section 768.72(2)(a)."

The conduct that caused the crash, the court wrote, was Rodriguez's failure to brake on time, and Levit offered no evidence that she drove wrongfully while knowing injury was highly probable. The panel also found the endorsement issue unconnected to the collision. The shuttle was empty, Rodriguez held a valid commercial license, and "nothing in the proffer suggested that any endorsement deficiency impaired her ability to perceive traffic, brake or otherwise operate the vehicle," Judge Gordo wrote.

The court reached the same result on gross negligence, which the statute defines as conduct "so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." Under Florida Supreme Court precedent, that level of negligence is "equivalent to the conduct involved in criminal manslaughter." The panel drew on two Sixth District decisions, Mercer v. Saddle Creek Transportation and Mirlalda v. Mitchell. Mercer held a truck driver's handheld cell phone use insufficient on its own, and Mirlalda held a commercial driver's expired license, history of suspensions and prior accident insufficient individually or collectively.

Judge Simon had relied on Rodriguez's and Limousines' alleged knowledge of the licensing problem, reasoning that Limousines still let Rodriguez drive in the course of transporting members of the public. Judge Gordo wrote that this reasoning "conflates the alleged existence of a licensing deficiency with the conduct required by section 768.72(2)(b)." The panel added that Levit's proffer "specifically did not include any showing whatsoever that Rodriguez was carrying passengers at the time of the accident." The opinion stated that "A punitive damage determination cannot rest on a hypothetical worst-case scenario rather than the conduct that actually caused the harm."

Explaining that gatekeeping duty, the panel quoted an earlier Third District decision stating that granting leave to add punitive damages "can be a 'game changer' in litigation" and that such a claim "subjects the defendant to financial discovery that would otherwise be off limits, and potentially subjects the defendant to uninsured losses."

Lawyers for Limousines of South Florida included William H. Edwards of Hamilton, Miller & Birthisel LLP. Levit and the other plaintiffs were represented by Vladimir Tsirkin of Vladimir Tsirkin & Associates, P.A.

The Third District reversed the order and remanded the case to the Miami-Dade Circuit Court for further proceedings consistent with the opinion. The appeal concerned only the punitive damages order, not the negligence claims. The opinion, filed in case No. 3D26-0024, states that it is not final until the disposition of any timely filed motion for rehearing.