.

Angela M. Evangelista

Special Counsel

AMEvangelista@mdwcg.com

Portrait of Angela M. Evangelista

Angela Evangelista is a member of  Casualty Department with more than 25 years of legal experience. She focuses her practice in all areas of general liability defense, including aviation, premises liability and product liability matters. Additionally she is experienced in the area of medical malpractice defense.

Angela is also an Adjunct Professor at Fairleigh Dickinson University and Montclair State University, where she teaches Legal Research and Writing, Tort law, and New York Civil and Federal Practice and Procedure, to students seeking Paralegal and Justice Studies degrees.

Prior to joining Marshall Dennehey, Angela devoted her career to civil defense litigation as a Partner at Jones Hirsch Connors Miller & Bull, P.C.  She is an active member of the New York State Bar Association.

    • St. John's University School of Law (J.D., 1991)
    • St. John's University (B.S., cum laude, 1988)
    • New York, 1992
    • U.S. District Court Eastern District of New York, 1993
    • U.S. District Court Southern District of New York, 1993
    • New Jersey, 1994
    • U.S. District Court District of New Jersey, 1994
    • New York State Bar Association
    •  “Venue in New York Personal Injury Actions CPLR Article 5: Where to Be and How to Get There,” Defense Digest, Vol. 22, No. 3, September 2016
    • “New York Practice: Responding to the Complaint,” Defense Digest, Vol. 21, No. 1, March 2015
    • New York Practice and Procedure Overview, Marshall Dennehey CLE Presentation
    • New York Practice and Procedure Discovery Process, Marshall Dennehey CLE Presentation
    • Federal Practice and Procedure for Paralegals, Montclair State University
    • New York Practice and Procedure for Paralegals, Fairleigh Dickinson University
    • Tort Law, Fairleigh Dickinson University
    • Juries and Justice, Montclair State Univeristy
    • Legal Research & Writing, Fairleigh Dickinson University
    • Adjunct Professor at Fairleigh Dickinson University
    • Classes: Tort and Personal Injury Law and New York Civil Practice, 2013 through present
    • Adjunct Professor at Montclair State University
    • Classes: Juries and Justice, Introduction to Law and Federal Practice, 2014 through present

Thought Leadership

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Defense Digest

New York Practice: Responding to the Complaint

March 1, 2015

Key Points: What initial steps should be taken when preparing an answer in New York? What issues must be evaluated when preparing the answer? This article will address the issues that should be evaluated when preparing an answer. It pertains to answers in New York State courts and, to a limited extent, answers in federal court in the Eastern and Southern Districts of New York. When a case is first assigned, defense counsel is provided with the initial pleadings, generally the summons and complaint. These are often the only documents provided by our clients. Under New York’s Civil Practice Law and Rules (CPLR), litigation is commenced by the filing with the court of a summons and complaint (or summons with notice or endorsed complaint). The filing stops the running of the statute of limitations and is the official commencement of the litigation. Service of process on the defendant must be properly effectuated within 120 days of commencement of the action. (CPLR §306(b).) The first issue that an attorney should address is the practical one: when is the answer due? CPLR §320 prescribes the time periods for when a responsive pleading must be served. This is generally 20 or 30 days from completion of service (20 days when service is by personal delivery to the defendant within New York State, 30 days all other times). Service is not always complete when the papers are delivered by the process server. This is especially so when service is effectuated through substituted service (leaving the summons and complaint with someone of suitable age and discretion with follow-up mailing CPLR §308). In such a situation, service is complete ten days after the filing of the proof of service (the summons and complaint together with an affidavit of service is known as “proof of service”) with the court. The time periods for other methods of service are provided for in CPLR Article 3 and, in the interest of brevity, will not be discussed here. Unfortunately, clients are not always the best judge of when service was actually effectuated upon them. Therefore, it is recommended that one obtain an affidavit of service from the plaintiff’s counsel or from the documents filed with the court’s e-filing website. Once the due date of the responsive pleading is established, one must next determine if an extension of time to respond will be required. This additional time is not always required because the attorney is unable to find the time to prepare the answer but, rather, because the attorney is experiencing difficulty making formal contact with the client for whom they will be entering an appearance in the case. Although New York is a “notice pleading” state, where specific detailed facts are not required in an answer, an answer (or other appearance) should never be filed on behalf of a client (or business entity) without obtaining their consent to your representation of them. This first contact is the initiation of the attorney-client relationship. In addition, during this initial client contact, the basic facts about the case and corporate structure, which are necessary to formulate responses to the averments in the complaint, can be obtained. Other issues, such as the proper corporate or business entity name, proper venue, jurisdiction and potential affirmative defenses, should be discussed during this initial attorney-client conference. These issues will be discussed below. Once the question of “when” the responsive pleading is due has been determined, one must then focus on how to respond. If the case is such where a motion to dismiss pursuant to CPLR §3211 is appropriate, then a motion in lieu of answering should be considered after consulting with the claims professional. The attorney must also determine if an answer will be served. If the action was commenced by the filing of a summons with notice, then an answer is not the proper response. Rather, pursuant to CPLR §3012(b), a defendant must serve a notice of appearance and demand for the complaint. The plaintiffs will thereafter have 20 days to serve the complaint. The complaint in this instance will properly be served by sending it via mail to the attorneys who have entered an appearance on behalf of the party. There will be no need for service of the complaint upon the client through typical service of process methods. (Service of interlocutory papers – CPLR §2103(b).) The answer is thereafter due 20 days from receipt of the complaint (CPLR §3012). When litigation is commenced by either the filing of a summons and complaint or a summons and endorsed complaint, an answer is then to be served. A summons and endorsed complaint is generally responded to with a general denial answer, which must include the required affirmative defenses. Also to be addressed are jurisdiction and venue. The attorney will need to evaluate whether the court has both subject matter jurisdiction over the case and whether the court has obtained in personam jurisdiction over the defendant. Most cases pending in the Supreme Court of the State of New York have subject matter jurisdiction as the Supreme Court is a court of “general jurisdiction.” However, cases that are worth less than $25,000 should be transferred to the Civil Court of the State of New York pursuant to CPLR §325(d). If at any time it appears that a case is worth less than $25,000, a motion can be made pursuant to CPLR §325(d) to have the case transferred to the lower court. Such can also be done sua sponte by the court. However, when a case is transferred pursuant to 325(d), the plaintiff will not be limited to relief within the jurisdictional limits of the lower court. In addition, when evaluating subject matter jurisdiction, the attorney should also consider the possibility of removal of the case to federal court. Generally, such is done when the federal court has subject matter jurisdiction based upon (complete) diversity of citizenship of the parties and the amount in controversy exceeds $75,000. In addition, subject matter jurisdiction in the federal court can be obtained when the case involves a federal question, such as violation of a civil right or other federal law. If such is the case, a notice of removal must be timely served and filed in conjunction with the federal court answer. (28 U.S.C. §1446.) Timing of removal is critical and should, therefore, be evaluated as soon as the matter is assigned to counsel. Personal jurisdiction over the individual defendant will be based upon either their “presence” in the state of New York (CPLR §301) or their activity, which falls under one of the provisions provided for in New York’s long-arm statute. (CPLR §302.) The second part of personal jurisdiction is dependent upon the proper service of the summons and complaint pursuant to CPLR Article 3. Venue is generally more clear cut. Pursuant to CPLR Article 5, venue in transitory actions (most personal injury cases, including automobile cases) is properly placed in the county of residence of any party. (CPLR §503.) Residence is determined at the commencement of the litigation, and a party may be deemed to have more that one county for residence purposes. Interestingly, the CPLR does not provide for venue to be determined by the county of the site of the accident, as provided for in other states such as New Jersey. The upper right-hand corner of the summons generally sets forth the basis for the plaintiff’s choice of venue. If venue is improperly chosen by the plaintiff, a demand for change of venue must be served with the defendant’s answer. The plaintiff will thereafter have 10 days to consent to the change to a proper venue or provide an affidavit as to why their initial choice of venue was proper. If the plaintiff does neither, the defendants have five days to serve a motion seeking a change of venue. (CPLR Article 5.) These time requirements are strictly enforced, and if they are not complied with, objection to venue can be deemed waived. Therefore, defense counsel should be familiar with the requirements and time provisions set forth in Article 5 of the CPLR. The next issue one should address is to make sure that one is appearing in the correct name of the client. Such is straightforward when you are appearing for an individual. Simply make sure that you have the proper spelling of their name when discussing the case with them during your initial conference. Oftentimes, plaintiffs misspell the defendants’ names when preparing initial pleadings. It is even more common that errors are made by plaintiffs’ counsel when naming corporate entities. It is common for plaintiffs to erroneously name a non-corporate or business entity by referring to a d/b/a, such as a hotel name or store name. A formal appearance, such as an answer to a complaint, should only be entered on behalf of an actual legal entity. It is extremely important that an answer only be served on behalf of and in the name of an actual business entity, or an individual. The client is usually the best source of information as to the formal corporate or business name. However, the New York Secretary of State (and most other states) have websites that are very useful for ascertaining official corporate/partnership/LLC names (www.dos.ny.gov/). Once the aforementioned issues have all been addressed, it is finally time to evaluate the substantive allegations contained within the complaint. CPLR §3018 formally provides for three options for responding to allegations in a complaint. These are admit, deny, or deny knowledge or information as to the facts set forth in the complaint. However, by practice, additional responses have been extended to include a denial in the form alleged, which has the effect of a denial, but is generally used when the allegation is improperly worded, contains compound allegations or refers to more than one defendant. Another often used response is to “deny in the form alleged and refer all questions of law to the court.” This, too, has the effect of a denial. It is often used as a response to allegations in the plaintiff’s complaint in which it is alleged that the defendants had a “duty” to do a certain thing. Finally, the “deny in the form alleged but admit portions of the allegations in a specific paragraph of the complaint” is an option. This response is not used as often as it should be. It provides for a defendant to deny portions of an allegation while admitting other portions. Such a response is required in federal court answers. (FRCP 8.) A failure to respond to a specific numbered paragraph or allegation within a plaintiff’s complaint will be deemed an admission. Therefore, the attorney should be sure to do a count of all of the paragraph numbers in the answer to confirm that all allegations have been properly answered. It is suggested that, even if defense counsel intends to admit an allegation in the complaint, such not be left out of the answer. A formal admission should be included with the answer to avoid an inadvertent admission. Once all of the allegations have been responded to, the attorney must next address the proper affirmative defenses to be included in the answer. CPLR §3018 provides for certain affirmative defenses that must be asserted in the answer or they will be deemed waived. However, there are usually additional affirmative defenses a defendant will assert in an answer. Generally, the rule is that the answer should contain any affirmative defenses to put the plaintiff “on notice” of a reason why the defendant will be claiming that they are not liable or responsible to the plaintiff. (CPLR §3018.) A defendant in a civil action is also entitled to include in its answer a counterclaim against one or more plaintiffs. This is in essence a separate lawsuit brought by the defendant against the plaintiff seeking affirmative relief. It is generally related to the facts of the original action, but such is not a requirement. An answer to a counterclaim is required and is called a reply to counterclaim. (CPLR §§3011 and 3019.) The answer may also contain cross-claims against co-defendants. These cross-claims are generally for contractual/common law indemnification or for contribution, but they are not limited to such. An answer to a cross-claim is not required in New York unless the cross-claim specifically demands an answer thereto. (CPLR §3011.) Good practice also suggests that an answer to cross-claims, whether required or not, should include appropriate affirmative defenses because it is a formal responsive pleading, subject to the requirements of CPLR §3018. (Siegel, New York Practice §223, 5th Edition.) In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim. (FRCP 12.) Finally, the defense attorney needs to evaluate if a verification is required and by whom such should be signed. A verification is a statement under oath that certifies the truth of the allegations contained in the pleadings. The rules as to verification of pleadings are found in CPLR §§3020-3023. Once a pleading is verified, all pleadings thereafter must be verified. If the complaint is not verified, it is still a good idea to file a verified answer as it will require that the plaintiff serve a verification to their bill of particulars, and that any subsequent amended pleadings be verified. Generally, the verification is signed by the attorney preparing the answer, unless the client resides or has offices in the same county where the attorney has his or her office. If such is the case, then the client or authorized representative/officer of the business entity must execute the verification. Verifications are not used in federal court pleading practice. Answers in federal court are not verified. It should be noted that in federal court answers, each paragraph is answered separately and that responses are not grouped together. Generally, a demand for trial by jury must be included in the federal court answer. If a plaintiff has not demanded a trial by jury and the defendant fails to do so, the court may deem that a trial by jury has been waived by the parties. It is hoped that this article has addressed the basic issues that should be evaluated when preparing an answer in New York State practice.

Firm Highlights

Thought Leadership

Court Reaffirms That Actual Cash Value Includes Labor and Overhead, Not Just Materials

Greenaker v. Universal Prop. & Cas. Ins. Co., Case No. 2D2024-1964, (Fla. 2nd DCA May 8, 2026). The plaintiffs filed a breach of contract suit against Universal for refusal to pay for all of plaintiffs’ damages from a storm in November 2020. Universal filed a motion in limine to prevent the plaintiffs from introducing evidence concerning both actual cash value and replacement cost value of the loss. They argued that the plaintiffs did not complete repairs or incur any expenses in repairing the damaged property, thus being limited to actual cash value as their measure of damage and the plaintiffs’ submitted estimate of damages contained labor costs necessary for repair and, therefore, not an actual cash value estimate. Universal further asked for a directed verdict at the hearing because the plaintiffs would have no evidence to support the claim for damages. The trial court agreed and granted Universal’s motion, entering a final judgment in Universal’s favor.  The plaintiffs filed a motion for rehearing and reconsideration due to the court improperly converting Universal’s motion in limine to a motion for final summary judgment. The court denied plaintiffs’ motion and the plaintiffs appealed. The Second District Court of Appeal agreed with the plaintiffs and determined that the trial court improperly entered a final judgment based on a pretrial ruling in limine, advising there was recognized procedures, including summary judgment, judgment on the pleadings, and default judgment that could have been exercised. Further, the court continued that the improper procedure was not the only reason for the judgment to be reversed. They noted the insurance policy did not provide a definition of actual cash value nor how to calculate it, and the parties disputed the definition and calculation of such.  Universal argued that actual cash value is defined as the value of the property that suffered the direct physical loss less depreciation and deductible, i.e. costs of physical materials that were damaged.  The plaintiffs argued that actual cash value includes the amount of repair costs in addition to the value of the property that suffered direct physical loss because it is calculated as the replacement cost minus depreciation.  The court agreed with the plaintiffs, noting that Universal’s definition was not supported by the insurance contract, the statute governing replacement value insurance contracts, nor decisional authority.  The court noted that Universal “cherry-picked” the phrase “direct physical loss” from the perils insured against provision and applied it to the loss settlement provision, which doesn’t state “direct physical loss,” but instead states “insured loss.”  Further, the court conveyed that application of “direct physical loss” would be used on both actual cash value and replacement cost value, as they are both present in the loss settlement provision, which would mean insureds never got payments beyond costs of physically damaged material, which is contradictory to the replacement cost value definition.  The court advised that the Florida Supreme Court had approved the court’s interpretation of actual cash value as including costs other than damaged physical property, including overhead and profit, noting that these costs can be included in actual cash value to which a portion, like all other costs, could be depreciated. The court noted the difference between actual cash value and replacement cost value is not between types of costs, i.e. materials vs. labor, but between the valuation of the costs with the distinction of being a depreciated vs. undepreciated value. The court refused to exclude intangible costs such as labor, profit and overhead from actual cash value, finding these costs inclusions were consistent with statutory and contractual language as well as Florida Supreme Court precedent. The court reversed the judgment and remanded the case back to the trial court.

News

Stacey R. Gorin Installed as President of the Burlington County Bar Association

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Result

Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

News

Marshall Dennehey’s John J. Hare Brings Home Attorney of the Year Honors; Firm Named Litigation Department of the Year in Two Categories

Marshall Dennehey took home top honors in three categories at the The Legal Intelligencer’s 2026 Pennsylvania Legal Awards, held June 11 in Philadelphia. The first place awards include: Attorney of the Year: John J. Hare, Chair of the firm’s Appellate Advocacy & Post-Trial Practice Group and Executive Committee member, together with Charles “Chip” Becker of Kline & Specter Litigation Department of the Year, Appellate – Third Win in a Row! Litigation Department of the Year, Product Liability/Mass Torts “There is no one more deserving of Attorney of the Year honors than John. This award is a testament to his exceptional skill, dedication, and leadership—qualities that truly exemplify the very best of our firm,” said G. Mark Thompson, Marshall Dennehey’s President & CEO. “These honors also reflect the strength and depth of our product liability, mass torts, and appellate practices across Pennsylvania and beyond, underscoring our ongoing commitment to delivering outstanding results for our clients.” Attorney of the Year – John J. Hare, Marshall Dennehey, together with Charles “Chip” Becker, Kline & Specter Over the past year, John and Charles were opposing counsel in many of the highest-profile civil appeals in Pennsylvania. John is renowned as a preeminent appellate lawyer on the defense side, and Chip on the plaintiff's side. They have opposed each other repeatedly, exhibiting peerless professionalism and exceptional civility, while zealously litigating under the unremitting pressure of high-profile litigation and record-setting verdicts totaling more than $3.5 billion. They have also collaborated, outside of litigation, on many commissions, committees, and projects of importance to the Pennsylvania judiciary and legal community. Litigation Department of the Year – Appellate Law, Winner (previous winner, 2025 and 2024) 2025 was another standout year for the firm’s Appellate Advocacy & Post‑Trial Practice Group, led by John J. Hare, which was retained to challenge many of Pennsylvania’s “nuclear” verdicts—awards exceeding $10 million. Notably, the department persuaded the Pennsylvania Superior Court to reverse a Philadelphia judgment of $1.09 billion, the largest judgment ever overturned by a Pennsylvania appellate court. The group’s 11 full‑time Pennsylvania‑based appellate lawyers are at the center of Pennsylvania’s most high-profile matters, bringing more than 150 years of combined appellate experience. They routinely handle post‑trial and appellate matters and are frequently engaged to participate in and monitor trials in high‑exposure cases to ensure that critical legal issues are properly raised and preserved for appeal. Litigation Department of the Year – Product Liability/Mass Torts, Winner This marks the first win for the firm’s Pennsylvania Product Liability and Mass Torts practices, which operate within our Casualty Department, managed by Matthew Schorr and Jeff Rapattoni. For almost five decades, Fortune 500 product manufacturers/distributors and their insurers have turned to these groups to defend their litigation. Led by Bradley D. Remick and Vlada Tasich, our Product Liability group’s success can be attributed to its commitment to keeping abreast of ever-changing legal theories, judicial viewpoints, and evolving technology impacting the product liability landscape. Our attorneys have successfully handled thousands of product liability matters in all jurisdictions across the state. Likewise, our mass tort litigation practice – divided into Asbestos & Mass Tort, and Environmental & Toxic Tort Litigation –  has defended manufacturers, distributors, contractors, and premises owners in thousands of personal injury and other claims. Led by Kevin E. Hexstall and Patrick T. Reilly, most attorneys in these groups have more than 20 years of experience, and our seasoned trial team has tried hundreds of cases to verdict, consistently achieving strong results through both trials and settlements. In addition to these awards, Marshall Dennehey was a Litigation Department of the Year finalist for Professional Liability.

Thought Leadership

Appeals Court Reverses Trial Court Order Striking Complaint as Sanction for Violating Discovery Order

All Dry USA v. Savell, 2026 WL 816093 (Fla. 1st DCA 2026) The First District Court of Appeal reversed the trial court’s order denying All Dry USA’s complaint as a sanction for violating a discovery order. The appellate court found that All Dry USA’s failure to comply with the trial court’s case management order did not give the trial court the authority to strike All Dry USA’s pleadings. All Dry USA provided water mitigation, mold remediation, and a restorative tarp at the property owned by the Savells. The property had been damaged by Hurricane Sally. All Dry USA provided invoices for the three services it performed in the amount of $90,130.61. The Savells refused to pay the invoices, stating that while they had retained All Dry USA, there was no agreement reached regarding the cost of the services. All Dry USA proceeded to file a lawsuit against the Savells, alleging breach of contract and unjust enrichment. The Savells answered the lawsuit and served discovery upon All Dry USA. All Dry USA failed to respond to the discovery requests and the Savells moved for an order compelling discovery. The trial court issued an order compelling All Dry USA to respond to Savells discovery requests and comply with all outstanding discovery deadlines per the case management order. On the day its responses were due, All Dry USA filed a motion to extend the deadline to comply with the court’s order. Before the motion was ruled upon, the Savells filed a motion to have All Dry USA’s complaint stricken for violating the trial court’s order compelling All Dry USA’s responses. The trial court granted the motion to strike, and then granted the Savell’s request for entry of default final judgment, based upon there no longer being an operative complaint. The First District Court of Appeal reversed, ruling that an order striking pleadings is justified if it is found that a party has violated numerous discovery orders, or has shown a “deliberate and contumacious disregard of the court's authority.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The appellate court stated that a trial court’s authority to strike pleadings is not unbridled and that the situation before the court did not justify the striking of All Dry USA’s pleadings. In reaching its decision, the First District focused on the fact that the trial court only addressed the potential prejudice to Savell by All Dry USA failing to respond to discovery and seeking an extension of the deadline. The appellate court stated that prejudice is not the only factor to be considered and that the trial court needed to address if All Dry USA’s behavior in failing to comply with the discovery order was willful and deliberate.  The First District also stated that nothing in rule 1.200 or 1.380 grants a trial court the authority to strike a pleading because certain case management deadlines are not met. The appellate court held that the Florida Rules of Civil Procedure allow trial courts to bring the parties in, order them to comply with the case management discovery deadlines, and then strike pleadings if the subsequent discovery orders are disobeyed. This ruling shows the importance of understanding the authority that is binding on the trial court a party is appearing in front of. The First District’s view on a trial court’s ability to strike pleadings is in contrast with other appellate court’s throughout Florida.

Portrait of Thomas Glassman. Text: Joining our Cincinnati Office as a Shareholder in the Casualty Department

News

Marshall Dennehey Adds Shareholder Thomas F. Glassman in Cincinnati, Expands Casualty Practice in Ohio and Kentucky

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Perlmutter Provides Predictability for Punitive Damages Claims in Florida

In a much anticipated decision, the Florida Supreme Court provided clarity for the standards of proof for punitive damages claims in Perlmutter v. Federal Insurance Company, SC2024-0058 (Fla. June 11, 2026). Litigants and trial judges must be mindful of the standards laid out by the Court. And, defense practitioners must be prepared to alter their strategies to defend against such claims. Perlmutter came to the Court from the Fourth District, based on conflict jurisdiction with decisions from the Second and Fifth District and on certification of a question of great public importance as to the standard of proof for punitive damages claims at the pleading stage. Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 29 (Fla. 4th DCA 2023). In the underlying case, the Fourth District made two conclusions. First, it held that a “trial court must consider the evidentiary showing by all parties at the hearing on the motion to amend, that is, evidence ‘in the record’ and evidence ‘proffered by the claimant.’”  376 So. 3d at 33. Second, the Fourth held that it “interpreted section 768.72(1) and (2) to require 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.  Id. at 34 (underscoring in the original). In making these conclusions, the court cautioned trial courts that the “preliminary determination” analysis did not entitle the trial court to decide whether the evidence is clear and convincing and noted that the trial court should not weigh evidence and should not determine witness credibility. Id. The Florida Supreme Court accepted jurisdiction and answered the certified question in the negative. It quashed the decision below and remanded the case for application of the following standards: 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. The trial court should consider 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) or section 768.72(3). The trial court must review the request for punitive damages in the context of the underlying claims. The trial court should not apply the clear and convincing standard of proof in reviewing the sufficiency of the evidence at the pleading stage. The trial court does not act as a fact-finder; the trial court must not weigh the claimant’s evidence—it cannot decide the truth of the matter. The trial court must consider the record evidence and the proffered evidence in the light most favorable to the plaintiff, but the allegations in the proposed amended complaint are not themselves evidence. Perlmutter, SC2024-0058 at 13-15 (emphasis added). In explaining these standards, the Court interpreted the text of the statute and compared it to a related statute which governs punitive damages in the nursing home context. The nursing home statute expressly calls for evidentiary submissions by “the parties” and expressly tells the trial court to determine whether there is a reasonable basis to believe the claimant could satisfy the “clear and convincing evidence” standard at trial. Id. at 17-18 (comparing the text of section 768.72(1), Florida Statutes, with section 400.0237, Florida Statutes). Without that express language in section 768.72, the statute could not be applied in the same manner. With these standards specially delineated for the trial courts, the Court is “confident that its interpretation of section 768.72(1) will not frustrate the effectiveness of the statute in accomplishing the Legislature’s textually evident purposes.” Id.  at 22 (cleaned up). This remains to be seen. While Perlmutter provides predictability and clarity for trial courts when reviewing the evidentiary submissions in support of a punitive damages claim, the decision will not likely impact the numbers of punitive damages motions filed. Rather, these new parameters will change the way claims are defended, reminiscent of a time when rulings on punitive damages were only subject to certiorari review and appellate courts were limited in reviewing procedural errors. This decision will likely deflate the level-playing field that Florida Rule of Appellate Procedure 9.130(a)(3)(G) addressed by allowing appeals of orders granting and denying punitive damages amendments. Further, Perlmutter may have impliedly created a call to action for the Legislature to amend section 768.72(1) in the same manner it amended section 400.0237 to allow the courts to analyze “admissible evidence submitted by the parties” and determine at a hearing whether there is a reasonable basis to believe the claimant at trial would be able to demonstrate by “clear and convincing evidence” that the recovery of punitive damages is warranted. Until then, defendants must adjust their strategies. To adapt to these new standards, defense practitioners will need to tailor their strategy for defending punitive damages claims since they can no longer submit a counter-proffer or urge a court to apply the clear and convincing standard at the pleading phase. Instead, defendants will need to attack the deficiencies in the claimant’s pleadings and proffer. If the trial court fails to serve as a gatekeeper, and does not apply the above standards, then defendants can pursue an interlocutory appeal under Rule 9.130(a)(3)(G). If a nonfinal appeal is taken, then defendants should move to stay any intrusive financial discovery while the appellate court analyzes the issues on appeal. Finally, defendants should utilize Florida Rule of Civil Procedure 1.510 to serve as a screening device to allow the trial court to analyze all evidence and prevent nonmeritorious punitive damages claims from proceeding to a jury.