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. Fla.
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
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-Joint. See 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. 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
(321)
269-6833
(321)
383-9970 - FAX
Attorney
for Plaintiffs
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