Saturday, 15 September 2012

Motion to Amend to Assert Punitive Damages

THE FOLLOWING IS STRICTLY FOR EDUCATIONAL PURPOSES.  NO LAWYER-CLIENT RELATIONSHIP EXISTS UNTIL I ACKNOWLEDGE IT IN WRITING AND HAVE RECEIVED THE AGREED UPON RETAINER!

A sample motion to amend to assert punitive damages is set forth below.  In Florida, punitive damages must be asserted (by virtue of F.S.A. 768.72(2)(a)) during the action through amendment, rather than initially.



IN THE CIRCUIT COURT OF THE EIGHTEEN JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA.

CASE NO.: 05-2007-CA-00xxxx-XXXX-XX

KATHY DOE,

            Plaintiff,

vs.

GOLDEN MULCH CO., INC., a
foreign corporation, and DRIVER
DRIVER,

                Defendants.
_________________________________/


PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
TO ASSERT A CLAIM FOR PUNITIVE DAMAGES

            COMES NOW the Plaintiff, KATHY DOE, by and through her undersigned counsel, and moves this Court for leave to file an amended complaint to assert a clam for punitive damages, and in support thereof state:
            1.         The grounds for this motion are that the proposed amendment is necessary to determine completely the rights of the parties in this action, to determine the scope of discovery, and to afford the Plaintiffs complete relief for their injuries.  A copy of the proposed amended complaint is attached hereto as Plaintiffs’ Exhibit “A”. 
            2.         Plaintiff’s aver that such amendment is proper pursuant to Fla.R.Civ.P. 1.190(a), F.S.A. 768.72, Pasekoff v. Kaufman, 392 So.2d 971, 976 (3rd DCA Fla. 1981), and Turner v. Trade-More, Inc., 252 So.2d 383 (4th DCA Fla. 1971), Vines v. Emerald Equipment Co., 342 So.2d 137 (Fla. 1st DCA 1977), Carlos v. Context-Marks Corp., 346 So.2d 595 (Fla. 3rd DCA 1977).
                3.         Initially, a defendant may be held liable for punitive damages where the defendant engaged in gross negligence.  Gross negligence in turn is defined as conduct so reckless or wanting in care that it constituted conscious disregard or indifference to the life, safety or rights of persons exposed to such conduct.  Sec. 768.72 Florida Statutes.
            4.         Regarding a corporate defendant, punitive damages may only be imposed for the conduct of an employee or agent if the employer participated in such conduct, knowingly condoned, ratified or consented to the conduct, or engaged in conduct that constituted gross negligence that contributed to the injuries suffered by the claimants.  Id.
            5.         This case arose when the drive shaft separated from the GOLDEN MULCH CO., INC. vehicle driven by DRIVER DRIVER, striking and disabling a handful of other vehicles, and which resulted in severe injuries to Plaintiffs.
            6.         In this case, Plaintiffs request a Hearing, pursuant to F.S.A. 768.72(1), wherein they would make the following proffer, or show the following evidence in the record:
i)          Defendant’s were engaged in interstate commerce, and delivered approximately 500 trailer loads per year, using four trucks.  Manager depo. pg. 9, lines 13-25, pg. 10, lines 1-14.
ii)         The gentlemen in charge of GOLDEN MULCH CO. INC., the General Manager, Bruce GOLDEN, talked his brother into buying the business.  GOLDEN depo. pgs. 13, lines 11-12.
iii)                 Prior to that, Bruce GOLDEN had no managerial experience.  GOLDEN depo. pgs. 8-11, detailing his employment history as a salesman and a truck DRIVER.
iv)                 As General Manager of a company involved in interstate commerce, and subject to the Federal Motor Carrier Safety Administration Regulations, Bruce GOLDEN stated that while safety was very important to GOLDEN MULCH CO., INC. the company had “no safety budget” or “safety plan, though he did have a copy of the applicable FMCSA regulations.”  GOLDEN depo. pg. 94, lines 14-16, pg. 42, lines 22-25, pg. 178, lines 14-15, pg. 179, lines 2-4.
v)                  Likewise, Bruce GOLDEN was unfamiliar with the Manufacturer’s Maintenance Schedule for the truck involved in this case (or the owner’s manual).  GOLDEN depo. pg. 153, lines 16-20, pg. 100, lines 7-14.
vi)                 Instead, Bruce GOLDEN was most concerned about delivering.  DRIVER depo. pg. 118, lines 15-18.
vii)               Trucks were repaired in house, despite the fact the company did not have a mechanic.  Manager depo. pg. 16, lines 14-25.
viii)              In house repairs included U-joints.  GOLDEN depo. pg. 91, lines 5-13.  (Note that this incident was the result of a U-joint failing).
ix)                 Sometimes, the trucks were inspected in house by people without even CDL training.  Manager depo. pg. 138, lines 22-25.  In any event, the general manager at the time, BRUCE GOLDEN, did not know what training or experience the in house personnel had maintaining trucks.  GOLDEN depo. pg. 45, lines 13-15.
x)                  When used trucks (including the one in question in this case) were delivered to GOLDEN MULCH CO., INC., Bruce GOLDEN “didn’t do anything” in terms of inspection, to ensure the trucks were in good working order.  GOLDEN depo. pg. 187, lines 15-25.
xi)                 Correspondingly, no records were kept of any maintenance done to the GOLDEN MULCH CO. INC. trucks.  Manager depo. pg. 13, lines 21-25.
xii)               The truck service records that are in existence, from Speedco, (which are attached as an Exhibit to DRIVER DRIVER deposition) indicate that problems were allowed to continue uncorrected for years, including a missing grease insert on the 4th U-JointSee Speedco invoice dated 9-03-2002.
xiii)              Bruce GOLDEN doesn’t know if any of those issues were ever addressed.  GOLDEN depo. pg. 119, lines 11-25, pg. 120, line 1, pg. 118, lines 17-25.
xiv)             During the time Bruce GOLDEN was in charge of the company, he doesn’t know if any safety meetings were held or safety training given.  GOLDEN depo. pg. 43, lines 14-17. 
7.                  Additionally, Plaintiff would proffer that Defendants:
i)                    Acknowledged that safety was very important, because “you don’t want to wreck, you don’t want nobody getting killed, you don’t want to be responsible for an accident.  GOLDEN depo. pg. 43, lines 11-17. 
ii)                   Knew that GOLDEN MULCH CO., INC. was subject to the Federal Motor Carrier Safety Administration Regulations, and according to Bruce GOLDEN, met those requirements.  GOLDEN depo. pg. 37, lines 8-17. 
iii)                 Did not give their DRIVERs any training.  Manager depo. pg. 10, line 25, pg. 11, lines 1-3. 
iv)                 Had no out of service criteria for steering wheel play, no procedures in place to check for steering system performance, and no out of service criteria for log book violations.  GOLDEN depo. pg. 51, lines 9-10, pg. 52, lines 20-22, pg. 53, lines 3-5. 
v)                  Had no procedures in place to train employees about FMCSA regulations.  GOLDEN depo. pg. 56, lines 6-10. 
vi)                 The General Manager, Bruce GOLDEN, was unaware of whether the owner had a system in place to comply with DOT regulations.  GOLDEN depo. pg. 99, lines 18-25, pg. 100, lines 1-2.
vii)               Knew that a lack of lubrication on the U-joints could lead to the bearings falling out.  Manager depo. pg. 58, lines 14-19.
viii)              Defendant has no records of any maintenance performed in house by GOLDEN MULCH CO., INC. employees in 2003 and 2004, with the exception of records indicating citations to different employees.  Manager depo. pg. 73, liens 21-25, pg. 74, lines 1-3.
ix)                 However, GOLDEN MULCH CO., INC. was in a financial position to pay for necessary maintenance, GOLDEN depo. pg. 122, ines 11-15, though the records would indicate same was not done.
x)                  GOLDEN MULCH CO., INC. had been audited by the Federal Motor Carrier Safety Administration in 2003, for many of the same problems, but had evidently failed to make any changes in operating procedures before the incident that gave rise to this complaint.  See Exhibit 13 to Bruce GOLDEN ‘s deposition.
8.         Without considering any applicable regulations, the record evidence in this case will show that Defendant GOLDEN MULCH CO., INC.:
a)         knew that safety was important and that its vehicles needed to be adequately                             maintained;
a)         but acquired used transport trucks (that together with a trailer could weigh up to 80,000 lbs), in unknown condition;
b)         made no attempt to determine the condition of the trucks at that time, (other than relying on its DRIVERs to do a pre-trip inspection, for which they had received no company training, and in any event, were not able to perform correctly;
c)         left numerous maintenance issues unaddressed, for a period of approximately two years, (as for some, the shops wanted to “pull the pan off,” and charge you about $300.00, GOLDEN depo. pg. 107, lines 7-9);
d)         “maintained” those same trucks in house, with untrained and/or unqualified personnel, for which no records were kept;
e)         had no safety plans, policies or procedures, to ensure things such mundane things as whether the brakes were working, whether the steering is working, whether the tires are worn out, whether the company DRIVERs are taking drugs, fit to drive, safe DRIVERs, etc.
9.         The evidence in this case will also show that Defendant GOLDEN MULCH CO., INC. failed to comply with the Federal Motor Carrier Safety Administration Regulations, see 49 CFR § 392.7, Equipment, inspection and use, 49 CFR § 392.8, Emergency equipment, inspection and use, 49 CFR § 396.7, Unsafe operations forbidden, 49 CFR § 396.11, DRIVER vehicle inspection reports, 49 CFR § 396.13 DRIVER inspection. 
9.         Likewise, Defendant DRIVER DRIVER:
i)          only had only received about six weeks of training driving trucks around 1990.  DRIVER depo. pg. 22, lines 2-6.
ii)         falsified information on his employment application.  DRIVER depo. pg. 36, lines 19-22.
iii)         did not know how to properly complete a pre-trip inspection, and was completely unfamiliar with the required concept of a post-trip inspection.  DRIVER depo. pg. 122, lines 8-24, pg. 84, lines 13-15.
iv)        was not familiar with the maintenance requirements for the truck.  DRIVER depo. pg. 85, lines 9-16.
v)         knew that following safety rules was critical, and that he was required to follow the FMCSA regulations, though he was not familiar with the FMCSA regulations. DRIVER depo. pg. 66, lines 1-10, pg. 122, line 25, pg. 123, lines 1-2.
10.       Based on the foregoing, Plaintiffs would argue that the evidence proffered demonstrated that Defendants engaged in conduct so reckless or wanting in care so as to constitute conscious disregard or indifference to the life or safety of anyone exposed to such conduct, in this case, anyone else traveling upon the public roads.   
11.       Note also that a proffer is merely a representation of what evidence the plaintiff proposed to present and is not actual evidence.  A reasonable showing by evidence in the record would typically include depositions, interrogatories, and requests for admissions that have been filed with the court.  Hence, an evidentiary hearing where witnesses testify and evidence is offered and scrutinized under the pertinent evidentiary rules, as in a trial, is neither contemplated nor mandated by the statute in order to determine whether a reasonable basis has been established to plead punitive damages.  Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 642 (Fla. 5th DCA 2005), internal citations omitted.  Note also that in analyzing a proffer, the trial court is not called upon to evaluate and weigh testimony and evidence.  Id.
12.       The applicable and controlling legal standard is the same as applied to determine whether a complaint states a cause of action.  The record evidence is viewed in the light most favorable to the moving party and is accepted as true.  Id. 
13.       In the Estate of Despain case, the plaintiff was allowed to submit its claim for punitive damages to the jury, where the defendant was inadequately staffed, and numerous records necessary for care were incomplete or lost, such that it was proper to allow amendment.  That case should be controlling here (where the Defendant was also inadequately staffed, and maintenance records necessary for routine repair and upkeep were not kept).
14.       Accordingly, as there is record evidence that Defendants engaged in gross negligence, and where Defendants knew or should have known that conduct presented a grave risk to the life, safety or rights of persons exposed to such conduct, the issue of punitive damage is proper for submission to the jury, pursuant to F.S.A. 768.72(2)(a).
            WHEREFORE, Plaintiffs move this Court for leave to file an Amended Complaint, and including in same a claim for punitive damages.
CERTIFICATE OF SERVICE
            I HEREBY CERTIFY that a copy of the foregoing has been furnished by First-Class U.S. Mail to defense counsel, Terence R. Perkins, at Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., P.O. Box 15200, Daytona Beach, FL  32115 on this 26th day of February, 2010.



__________                                                              
                                                                        Michael B. Lesage
                                                                        815 S. Washington Ave, Suite 201
                                                                        Titusville, FL  32780-4299
                                                                        (321) 269-6833
                                                                        (321) 383-9970 - FAX
                                                                        Attorney for Plaintiffs
                                                                        Florida Bar No. 00xxxx

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