A defamation claim can serve as a basis to amend a complaint to add punitive damages. From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed. Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.” Fla. Stat. s. 768.72(1).
There are times a plaintiff wants to attribute an employee’s defamation of character to that employee’s company. The employer is likely the deep pocket so punitive damage against the employer carries much more weight than suing the employee, individually, for punitive damages.
If a plaintiff wants to add a punitive damages claim against a corporate entity based on an employee’s conduct, a reasonable showing must be made that:
(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.
Tallahassee Memorial Healthcare, Inc. v. Dukes, 44 Fla. L. Weekly D1306c (Fla 1stDCA 2019) quoting Fla. Stat. s. 768.72(3).
Therefore, if you want sue a corporate employer –the deep pocket–for the defamation committed by an employee and assert a basis for punitive damages, you will need to proffer evidence establishing a reasonable showing that corporate management “actively and knowingly participated in such conduct [or] knowingly condoned, ratified, or consented to such conduct [or] engaged in conduct that constituted gross negligence that contributed to the loss…suffered by the claimant.”
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.