IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


HERNANDO HMA, LLC, D/B/A BAYFRONT
HEALTH SPRING HILL, F/K/A SPRING HILL HOSPITAL,

              Petitioner,

 v.                                                      Case No. 5D16-2835

ROBERT T. ERWIN, JR., AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF PATRICIA ERWIN,

              Respondent.

________________________________/

Opinion filed February 3, 2017

Petition for Certiorari Review
of Order from the Circuit Court
for Hernando County,
Richard Tombrink, Jr., Judge.

Amy L. Dilday and Gerald R. DeVega, of
McCumber, Daniels, Buntz, Hartig & Puig,
P.A., Tampa, and J. David Gallagher and
Scott Albee, of Fulmer, LeRoy & Albee,
PLLC, of Tampa, for Petitioner.

Wil H. Florin and Eric P. Czelusta, of Florin
Roebig, P.A., Palm Harbor for Respondent.

PALMER, J.

       Petitioner, Hernando HMA, LLC, d/b/a Bayfront Health Spring Hill, f/k/a Spring Hill

Hospital, has filed a petition seeking a writ of certiorari to quash the trial court's order

granting Respondent's motion to amend its complaint to assert a claim for punitive
damages. Because Petitioner seeks relief on a ground not raised below, we deny the

petition.

       Respondent, Robert Erwin, filed suit against Petitioner alleging medical

malpractice. He later filed a motion seeking to add a claim for punitive damages. After a

hearing, the trial court granted the motion, citing Estate of Despain v. Avante Group, Inc.,

(Fla. 5th DCA 2005).

        In seeking certiorari relief, Petitioner argues that the trial court erred in relying on

Despain because that decision was based on a prior version of the punitive damages

statute, see § 768.72, Fla. Stat. (1999), which has since been amended to heighten the

burden of proving an employer's fault from ordinary negligence to gross negligence. See

§ 768.72, Fla. Stat. (2016). However, Petitioner made no such argument below.

       At the hearing, Petitioner’s main argument focused on a statute of limitations issue

not relevant here. The only arguments unrelated to the statute of limitations issues were

an attack on an affidavit as hyperbole and an objection to the admission of a letter

because it had not been disclosed during discovery. Petitioner’s written "Response and

Objection to Plaintiff’s Motion to Add Punitive Damages and Plaintiff’s Proffer" also did

not include the argument now raised in this petition. Petitioner, in fact, cited the Despain

decision in support of its objection. Although the Response noted that Respondent recited

the definition of gross negligence in his motion to amend the complaint, the Response did

not argue that Respondent failed to state a claim for punitive damages. Instead, the

Response argued that (1) Respondent’s expert affidavit was insufficient and should be

stricken, (2) a letter relied upon by Respondent should be disregarded because it had not




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been produced during discovery, (3) the claim for punitive damages was barred by the

statute of limitations, and (4) the motion to amend was untimely filed.

       We deny the instant petition because “[g]enerally, a petitioner cannot raise in a

petition for writ of certiorari a ground that was not raised below.” Watkins v. State, 

, 325 (Fla. 1st DCA 2015) (quoting First Call Ventures, LLC v. Nationwide

Relocation Servs., Inc., 

, 693 (Fla. 4th DCA 2013)).1

           PETITION DENIED.

TORPY, J., concurs.
COHEN, J., dissents with opinion.




       1 When the trial court announced its ruling and reasoning therefor at the conclusion
of the hearing, Petitioner urged the court to reconsider its ruling, but not based on the
court's improper reliance on Despain. Had Petitioner done so, the trial court could have
addressed the issue immediately.


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                                                                   CASE NO. 5D16-2835

COHEN, J., dissenting.

       The panel agrees that the trial court relied on the incorrect legal standard in

granting Respondent’s motion to amend the complaint to add a claim for punitive

damages. Our disagreement is whether Petitioner preserved that issue for appellate

review. I would hold that Petitioner preserved the issue and grant the petition.

       In granting Respondent’s motion to amend, the trial court relied on this Court’s

opinion in Estate of Despain v. Avante Group, Inc., 

(Fla. 5th DCA 2005),

which, pursuant to section 768.72, Florida Statutes (1999), allowed a plaintiff to establish

the vicarious liability of an employer based on 1) willful and wanton misconduct by the

employee, and 2) “some fault” by the employer rising to the level of “ordinary 

–41 (citing Mercury Motors Express, Inc. v. Smith, 

(Fla.

1981)) (additional citations omitted). 1 The current statute sets forth a significantly different

standard. See § 768.72(3), Fla. Stat. (2016). It requires that the plaintiff establish 1)

“intentional misconduct” or “gross negligence” by the employee, and 2) knowing

participation, approval, or gross negligence on the part of the employer. 

cited Despain in its response to the motion to amend, it cited

Despain for a procedural point about the type of evidence admissible to show entitlement

to assert a claim for punitive damages. Petitioner argued the correct standard to assert a

claim for punitive damages, albeit inartfully, throughout the proceedings below. From the




       1Footnote three of Despain acknowledges that the court applied an anachronistic
version of the statute. 

n.3 (noting that an amended evidentiary
standard became effective October 1, 1999).


                                               4
time of the response to the motion to amend through the hearing, Petitioner maintained

that Respondent failed to demonstrate either intentional misconduct or conscious

disregard, as required by the statute. 2 In my view, this suffices to preserve the issue for

appellate review.

       It is true that most of the hearing was spent debating whether the statute of

limitations precluded the claim for punitive damages. Yet, in granting Respondent’s

motion to amend, the trial court did not determine whether the now-applicable

requirements of section 768.72 were met. Rather, the court cited Despain and stated that,

accepting Respondent’s proffered evidence as true, “I think that is a basis for punitive

damages . . . it allows it to go forward.” Because the trial court relied on Despain and

failed to address whether Respondent’s punitive damages claim satisfied the applicable

standard set forth in section 768.72(3), I would grant the petition. Cf. HCA Health Servs.

of Fla., Inc. v. Byers-McPheeters, 

, 670 (Fla. 4th DCA 2016) (granting

petition when the “trial court failed to fully comply with the procedural requirements of

section 768.72”).




       2  In its response to the motion to amend the complaint, Petitioner argued that
Respondent’s claim of “gross negligence” pursuant to section 768.72 failed to state a
claim for punitive damages. Additionally, at the hearing, Petitioner contended that
Respondent’s proffered evidence to support the claim for punitive damages was legally
insufficient because it did not demonstrate “gross negligence” on the part of Petitioner’s
employees, nor did it demonstrate “intentional or conscious disregard.” Respondent’s
motion to amend also cited the appropriate version of section 768.72 and acknowledged
that Respondent “must make a reasonable showing by proffered evidence that the parties
against whom punitive damages are sought were guilty of either intentional misconduct
or gross negligence.” However, Respondent argued at the hearing that for Petitioner to
be vicariously liable, there only needed to be “some fault” on its behalf.
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