Napleton’s North Palm Auto Park, Inc. v. Agosto
6/21/23, Judge Forst
Topics: Punitive Damages
Agosto and an unnamed fellow employee both worked at Napleton’s North Palm Auto Park, a car dealership. The unnamed employee (“Employee”) had a few alcoholic drinks at lunch. Later that evening, he drove his car into Agosto’s parked car. The Employee was charged with a DUI and fired.
Agosto sued his employer for negligent hiring, retention, and supervision.
Agosto moved to add a claim for punitive damages, which required a reasonable showing through record or proffered evidence that a Dealership “managing agent” engaged in gross negligence. Agosto pointed to three events purportedly establishing the Dealership’s knowledge of Employee’s history of driving while intoxicated: (1) Employee’s DUI conviction in 2006, twelve years before the Dealership hired him; (2) the Dealership’s discipline of Employee in January 2020 based on another employee’s suspicion that Employee was intoxicated while on the clock; and (3) the assistant service manager’s observation that Employee was acting “off” and “loopy” on another occasion.
The trial court agreed that the employer had sufficient notice that the Employee had a drinking problem but took no real action, so the court permitted the addition of a punitive damage claim. The Dealership appealed the order permitting the punitive damage claim, which is indeed an appealable nonfinal order.
Section 782.72 requires the trial court to act as a gatekeeper to verify that there is reasonable evidence, not merely allegations, to show gross negligence.
Here, the judge improperly believed that it had to accept the pleadings as true, but the special punitive damages procedure actually requires the judge to be a factfinder and weigh the evidence.
Under section 768.72(3) and (3)(c), to stick an employer, principal, or corporation with punitive damages, there has to be evidence both that the tortfeasor employee/agent was grossly negligent and that the employer/principal/corporation was grossly negligent.
The Dealership argued that there was no reasonable evidence that the corporation engaged in conduct that was grossly negligent. When a corporation is involved—as it is here—the plaintiff must show that a “managing agent” of the corporation committed the acts in question. A “managing agent” must be more than mid-level management; it has to be someone of such seniority and statute within the corporation or business to have “ultimate decision-making authority for the company.” Here, plaintiff identified three midlevel managers (the Dealership’s platform manager, Employee’s service manager, and Employee’s assistant service manager who directly supervised Employee), but none of them were policymakers for the whole corporation.
Bizarrely, a “manager” who acts as an agent of the corporation is one of the types of people expressly excluded by case law as a “managing agent.” Vice presidents who don’t sit on the board aren’t high enough. It has to be someone like a president or primary owner whose actions could be deemed to be acts of the corporation. (NOTE: This test seems completely at odds with the concept of negligent supervision. Negligent supervision is the LACK of an action. The FAILURE to do something. Apparently when the corporation gives full hiring/firing authority to someone to retain an obvious drunk, that negligent supervision of middle management cannot meet the test for gross negligence. The corporation is apparently allowed to hear nothing, see nothing, know nothing, and it can place all of its power in the hands of managers and then deny that a managing agent took specific bad actions. There is arguably a grossly negligent act, but the law as applied by the DCA prohibits the business from bearing responsibility for it.)