42
Fla. L. Weekly D307aTop of Form

Wrongful
death — Medical malpractice — Punitive damages — Amendment of complaint —
Appeals — Petition seeking writ of certiorari to quash trial court’s order
granting plaintiff’s motion to amend complaint to assert claim for punitive
damages on ground that trial court erroneously relied on supreme court case
which was based on a prior version of punitive damages statute, rather than
amended statute which heightened the burden of proving an employer’s fault from
ordinary negligence to gross negligence — Petition denied, as petition seeks
relief on ground not raised before trial court

HERNANDO
HMA, LLC, D/B/A BAYFRONT HEALTH SPRING HILL, F/K/A SPRING HILL HOSPITAL,
Petitioner, v. ROBERT T. ERWIN, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF PATRICIA ERWIN, Respondent. 5th District. Case No. 5D16-2835. Opinion filed
February 3, 2017. Petition for Certiorari Review of Order from the Circuit
Court for Hernando County, Richard Tombrink, Jr., Judge. Counsel: Amy L. 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, for Petitioner. Wil H. Florin and Eric P. Czelusta, of Florin
Roebig, P.A., Palm Harbor, for Respondent.

(PALMER,
J.) Petitioner, 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.

Respondent,
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).

In
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.

At
the 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.

We
deny 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 2013)).1

PETITION
DENIED. (TORPY, J., concurs. COHEN, J., dissents with opinion.)

__________________

1When
the trial court announced its ruling and reasoning therefor at the conclusion
of the hearing, Petitioner urged the court to reconsider its ruling, but not
based on the court’s improper reliance on Despain. Had Petitioner done
so, the trial court could have addressed the issue immediately.

__________________

(COHEN,
J., dissenting.) The 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 appellate review. I would hold that Petitioner preserved the
issue and grant the petition.

In
granting Respondent’s motion to amend, the trial court relied on this Court’s
opinion in Estate of Despain v. Avante Group, Inc., 900 So. 2d 637 (Fla.
5th DCA 2005), which, pursuant to section 768.72, Florida Statutes (1999),
allowed a plaintiff to establish the vicarious liability of an employer based
on 1) willful and wanton misconduct by the employee, and 2) “some fault” by the
employer rising to the level of “ordinary negligence.” 900 So. 2d at 640-41
(citing Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla.
1981)) (additional citations omitted).1 The current statute sets forth a
significantly different standard. See § 768.72(3), Fla. Stat. (2016). It
requires that the plaintiff establish 1) “intentional misconduct” or “gross
negligence” by the employee, and 2) knowing participation, approval, or gross
negligence on the part of the employer. Id.

While
Petitioner cited Despain in its response to the motion to amend, it
cited Despain for a procedural point about the type of evidence
admissible to show entitlement to assert a claim for punitive damages.
Petitioner argued the correct standard to assert a claim for punitive damages,
albeit inartfully, throughout the proceedings below. From the time of the
response to the motion to amend through the hearing, Petitioner maintained that
Respondent failed to demonstrate either intentional misconduct or conscious
disregard, as required by the statute.2 In my view, this suffices to preserve
the issue for appellate review.

It
is true that most of the hearing was spent debating whether the statute of
limitations precluded the claim for punitive damages. Yet, in granting Respondent’s
motion to amend, the trial court did not determine whether the now-applicable
requirements of section 768.72 were met. Rather, the court cited Despain
and stated that, accepting Respondent’s proffered evidence as true, “I think
that is a basis for punitive damages . . . it allows it to go forward.” Because
the trial court relied on Despain and failed to address whether
Respondent’s punitive damages claim satisfied the applicable standard set forth
in section 768.72(3), I would grant the petition. Cf. HCA Health Servs. of
Fla., Inc. v. Byers-McPheeters, 201 So. 3d 669, 670 (Fla. 4th DCA 2016)
(granting petition when the “trial court failed to fully comply with the
procedural requirements of section 768.72”).

__________________

1Footnote
three of Despain acknowledges that the court applied an anachronistic
version of the statute. See 900 So. 2d at 641 n.3 (noting that an
amended evidentiary standard became effective October 1, 1999).

2In
its response to the motion to amend the complaint, Petitioner argued that
Respondent’s claim of “gross negligence” pursuant to section 768.72 failed to
state a claim for punitive damages. Additionally, at the hearing, Petitioner
contended that Respondent’s proffered evidence to support the claim for
punitive damages was legally insufficient because it did not demonstrate “gross
negligence” on the part of Petitioner’s employees, nor did it demonstrate
“intentional or conscious disregard.” Respondent’s motion to amend also cited
the appropriate version of section 768.72 and acknowledged that Respondent
“must make a reasonable showing by proffered evidence that the parties against
whom punitive damages are sought were guilty of either intentional misconduct
or gross negligence.” However, Respondent argued at the hearing that for
Petitioner to be vicariously liable, there only needed to be “some fault” on
its behalf.

* *
*