When punitive damages are awarded against a group of defendants, are the defendants jointly and severally liable for the punitive damages award?
In all cases in which the element of punitive damages against joint tortfeasors is an issue for determination, a special or separate verdict shall be used for the assessment of punitive damages against each tortfeasor. In contrast, verdicts for compensatory damages shall be joint and several. (Lehman v. Spencer Ladd's, Inc., 182 So.2d 402 (Fla. 1965))
Joint and several liability for punitive damages is not allowed under Florida law. (Carlson v. Armstrong World Industries, Inc., 693 F. Supp. 1073 (S.D. Fla. 1987))
In Abrams v. Paul, 453 So.2d 826 (Fla. App. 1984), the appellants argued that it was an error to permit the jury to assess punitive damages against the defendants jointly and severally. The majority of the Florida Court of Appeal for the First District did not discuss this argument on the merits because there was no objection to the verdict form. However, Judge Zehmer, concurring in part and dissenting in part, held that the verdict assessing a single sum for punitive damages against the several joint tortfeasors was clearly erroneous as a matter of law. Judge Zehmer noted that in cases where punitive damages are sought against two or more joint tortfeasors, the court should use a special verdict, which allows the jury to assess punitive damages individually in separate amounts against each of the several defendants found to be liable therefor. In this case, the verdict form used did not permit the jury to make any independent determination of punitive damages as to each defendant. Judge Zehmer held that this was a fundamental error and that the punitive damages award should be reversed as a result.
In Keyes Co. v. Sens, 382 So.2d 1273 (Fla. App. 1980), a jury awarded different amounts of compensatory and punitive damages against four defendants. At issue was whether the verdicts were contrary to law. With respect to the fact that different amounts of punitive damages were awarded against each of the four defendants, the Court noted that the fact that the verdicts fixed different amounts of punitive damages against the several defendants is of no concern, since such is legally permissible.
In Lehman v. Spencer Ladd's, Inc., 182 So.2d 402 (Fla. 1965) ("Lehman"), the Florida Supreme Court prescribed that in all cases in which the element of punitive damages against joint tortfeasors is an issue for determination, a special or separate verdict shall be used for the assessment of punitive damages against each tortfeasor. In contrast, verdicts for compensatory damages shall continue to be joint and several (at 403-404):
It is obvious that neither the so-called majority rule followed in Kellenberger, supra, nor the one we have approved in this case satisfies the demands for reasonable justice and equitable treatment in cases involving punitive damages against multiple defendants of different financial worth. As suggested by Judge Wigginton, in the opinion before us, the only practical and fair method of solving the patent inadequacies of either of the two views is a rule of practice and procedure making special verdicts as to punitive damages mandatory in such cases.
We think this suggestion is an excellent one. It is the intention of this Court to request The Florida Bar to consider the matter and to draft and present to this Court for its consideration a rule encompassing the recommendation of the district court. In the interim we do by this opinion prescribe that in all cases tried after the effective date of this opinion, and in which the element of punitive damages against joint tortfeasors in an issue for determination, a special or separate verdict shall be used for the assessment of punitive damages against each tortfeasor. Verdicts for compensatory damages shall continue as at
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present to be joint and seveal. Judgments shall be entered in accord with the verdicts rendered.
This procedure, with the allowance of evidence of financial worth of the tortfeasors, will make possible the attainment of the objective and purpose of punitive damages, if a defensible one remains, i. e. punishment of each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt.
In Carlson v. Armstrong World Industries, Inc., 693 F. Supp. 1073 (S.D. Fla. 1987), the United States District Court for the Southern District of Florida held that joint and several liability for punitive damages is not allowed under Florida law (at 1079):
5. Punitive Damages Based on Joint and Several Liability
Defendant moves to strike any claim by plaintiffs for punitive damages based on joint and several liability. Joint and several liability for punitive damages is not allowed under Florida law. See Lehman v. Spencer Ladd's, Inc., 182 So.2d 402 (Fla. 1965). Therefore, defendant's motion to strike plaintiffs' claims for punitive damages based on joint and several liability is GRANTED and those claims are stricken.
In Abrams v. Paul, 453 So.2d 826 (Fla. App. 1984), the appellants argued that it was an error to permit the jury to assess punitive damages against the defendants jointly and severally. The majority of the Florida Court of Appeal for the First District did not discuss this argument on the merits because there was no objection to the verdict form. However, Judge Zehmer, concurring in part and dissenting in part, held that the verdict assessing a single sum for punitive damages against the several joint tortfeasors was clearly erroneous as a matter of law. Citing Lehman, supra, Judge Zehmer noted that in cases where punitive damages are sought against two or more joint tortfeasors, the court should use a special verdict which allows the jury to assess punitive damages individually in separate amounts against each of the several defendants found to be liable therefor. In this case, the verdict form used did not permit the jury to make any independent determination of punitive damages as to each defendant. Judge Zehmer held that this was a fundamental error and that the punitive damages award should be reversed as a result (at 831-832):
The verdict assessing a single sum for punitive damages against the several joint tort feasors is clearly erroneous as a matter of law. Lehman v. Spencer Ladd's, Inc., 182 So.2d 402, 403 (Fla.1966); Standard Jury Instruction 6.12 (punitive damages). The Supreme Court in Lehman approved Judge John Wigginton's suggestion in his opinion for this court, Spencer Ladd's, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), that in cases where punitive damages are sought against two or more joint tort feasors, the court should use a special verdict which allows the jury to assess punitive damages individually in separate amounts against each of the several defendants found to be liable therefor. Despite the fact that differing causes of action were asserted against different defendants, the verdict form used in this case did not permit the jury to make any independent determination of punitive damages as to each defendant but, rather, required the jury to treat all of the defendants alike. For this reason, the punitive damages award should be reversed. Even if the majority's conclusion that appellants' objection was not timely raised in the motion for new trial is correct, an error of this magnitude should nevertheless be treated as fundamental error. See, Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla. 4th
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DCA 1970); Security Mutual Casualty Co. v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976); Vega v. Mahfuz, 367 So.2d 1107 (Fla. 3d DCA), cert. denied, 378 So.2d 346 (Fla.1979); Cf., Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983).
In Keyes Co. v. Sens, 382 So.2d 1273 (Fla. App. 1980), a jury awarded different amounts of compensatory and punitive damages against four defendants. At issue was whether the verdicts were contrary to law. With respect to the fact that different amounts of punitive damages were awarded against each of the four defendants, the Court noted the following (at FN 2):
The fact that the verdicts fixed different amounts of punitive damages against the several defendants is of no concern, since such is legally permissible. Lehman v. Spencer Ladd's Inc., 182 So.2d 402 (Fla. 1966).
Carlson v. Armstrong World Industries, Inc., 693 F. Supp. 1073 (S.D. Fla. 1987)
Abrams v. Paul, 453 So.2d 826 (Fla. App. 1984)
Keyes Co. v. Sens, 382 So.2d 1273 (Fla. App. 1980)
