SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-2353 Lower Tribunal No. 2020-CA-8564-O _____________________________
AMAZULU TRANSPORT, INC. and PETER STUART WELCH, JR.,
Appellants, v.
GARY DINKINS,
Appellee. _____________________________
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Orange County. Margaret H. Schreiber, Judge.
March 14, 2025
BROWNLEE, J.
Appellant Peter Stuart Welch, Jr., appeals a nonfinal order granting Appellee
Gary Dinkins’s motion for leave to amend the complaint to add a claim for punitive
damages. Because we agree with Welch that the proffered evidence fell short of
providing a reasonable basis for the recovery of punitive damages, we reverse.
Although we reject Welch’s remaining arguments, we take this opportunity to explain
our disagreement with three of our sister courts on the issue of whether a trial judge is required to make affirmative findings when permitting a plaintiff to plead punitive
damages. We now hold there is no such requirement.
1. The Relevant Facts
Welch and Dinkins were involved in a two-car collision that occurred at
approximately 11:00 a.m. one morning. After the accident, Dinkins sued Welch for
negligence and included a vicarious liability claim against Welch’s employer, Amazulu
Transport, Inc. As the parties proceeded through discovery, Dinkins deposed Welch
and learned that he was a regular user of marijuana:
Q. Had you taken any illicit drugs within 12 hours of the accident?
A. I don’t recall. Q. At the time of the accident, were you a regular user of marijuana?
.... A. Can you define regular? Q. Well, why don’t you answer it as you understand the word regular? A. Yes.
Q. How frequently were you using marijuana around the time of the accident?
A. Daily.
Q. Did you have a habit of using it in the morning or afternoon or evening or would you use it throughout the day? What was your frequency?
A. Throughout the day.
Q. Would you use marijuana on days that you were working?
2 A. Yes.
Q. Were you using marijuana on the day that this accident happened?
A. I don’t recall. Q. Would it have been your normal routine to have used marijuana within 12 hours of the accident?
A. No.
Q. You said you used it regularly throughout the day. . . . When you used marijuana in January of 2017, how would you use marijuana? Would you smoke it or was it edible? How did - -
A. Smoke.
Q. Smoke it? And when you smoked it, would you smoke it in the morning when you first woke up? A. No. Q. When would you normally smoke marijuana in January of 2017? A. Later in the day, just more of an afternoon, evening.
Q. Do you remember using marijuana after this accident?
After the deposition, Dinkins moved to amend his complaint to add a claim for
punitive damages against Welch. According to Dinkins, Welch “testified that he was a
regular user of marijuana who would smoke [marijuana] throughout the day, including
days he was working” and such conduct was sufficiently outrageous to justify punitive
damages. In support of his motion, Dinkins proffered a portion of the deposition
testimony cited above and then filed the entire deposition transcript with the court. No
3 other evidence was proffered. Welch responded, in part, that Dinkins was not entitled
to punitive damages because there was no evidence that Welch was impaired at the time
of the accident.
At the end of the hearing on Dinkins’s motion for leave to amend, the trial court
found:
I have a proffer that’s been made that indicates this gentleman was a regular user of marijuana, used it daily around the time of the accident, had a frequency of use throughout the day, and used it on the day he worked. The requirement of the proffer has been met. I’m going to find there is a sufficient basis for the assertion of the punitive damages claim.
The trial court later entered an unelaborated, written order granting Dinkins’s motion.
Welch now challenges that ruling.
2. The Sufficiency of the Proffer
On appeal, Welch argues the trial court erred in determining Dinkins established
a basis in the record to support a claim for punitive damages. He focuses on the proffer
and argues, “[t]here was no evidence presented that [Welch] had used marijuana in the
morning prior to the accident, or that he was high or impaired at the time of the
accident.” We review the trial court’s order de novo, 1 and we agree with Welch.
“In any civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the claimant which
1 A trial court’s order allowing the amendment of a pleading to add a claim for punitive damages is reviewed de novo. See Mercer v. Saddle Creek Transp., Inc., 389 So. 3d 774, 776 (Fla. 6th DCA 2024). 4 would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat.
(2023). The trial court acts as a gatekeeper and may allow a party to assert a punitive
damages claim only if there exists a reasonable evidentiary basis for the recovery. See
Mercer, 389 So. 3d at 777–78. Florida courts have held that intoxication while driving
may constitute a basis for a punitive damages award. See Gattorno v. Souto, 390 So.
3d 134, 138 (Fla. 3d DCA 2024) (“[W]e hold that juries may award punitive damages
where voluntary intoxication is involved in an automotive accident in Florida.” (quoting
Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976))).
Dinkins relies on Ingram and section 316.193, Florida Statutes, to defend his
entitlement to bring a punitive damages claim. He hangs his hat on Welch’s deposition
testimony and asserts, “driving in such an intoxicated condition creates a known risk to
the public and punitive damages are a suitable corollary to those criminal laws designed
to discourage such reckless disregard for public safety.” While we agree with Dinkins’s
recitation of the law, he overlooks that Ingram and section 316.193 both require a
showing of intoxication or impairment that is absent here.
In Ingram, the Florida Supreme Court held that “the voluntary act of driving
‘while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to
be asked to provide an award of punitive damages if it determines liability exists for
compensatory damages.” 340 So. 2d at 924. The court then expounded upon the term
intoxicated and explained it is identical to the “degree of intoxication required in Section
5 860.01, Florida Statutes (1975), pertaining to automobile manslaughter.” Id. According
to the court, “intoxication means that the defendant must have been so affected from the
drinking of intoxicating liquor as to have lost or been deprived of the normal control of
either his body or his mental faculties, or both. Intoxication is synonymous with
‘drunk.’” Id. at n.10 (quoting Fla. Std. Jury Instr. (Crim.) Manslaughter--DWI, 84
(1975)) (emphasis added).
Cases decided after Ingram consistently permit a plaintiff to plead punitive
damages when there is evidence of defendant’s intoxication. See, e.g., Gattorno, 390
So. 3d at 136–38 (finding proffered evidence satisfied the statutory requirement to
provide a reasonable basis for recovery of punitive damages where proffer included
testimony that appellant drank a substantial amount of alcohol in a 45-minute period
and appeared intoxicated); Matalon v. Lee, 847 So. 2d 1077, 1079 (Fla. 4th DCA 2003)
(“A jury may award punitive damages where voluntary intoxication is involved in an
automobile accident.”).
Section 316.193—the current version of the DUI manslaughter statute—also
requires some showing of impaired faculties: “[a] person is guilty of the offense of
driving under the influence and is subject to punishment . . . if the person is driving or
in actual physical control of a vehicle within this state and . . . [t]he person is under the
influence of . . . any substance controlled under chapter 893,2 when affected to the extent
2 The parties do not dispute that marijuana is such a substance. 6 that the person’s normal faculties are impaired.” § 316.193(1)(a), Fla. Stat. (2023)
(emphasis added).3 “‘Impaired’ means diminished in some material respect.” Fla. Std.
Jury Instr. (Crim.) 7.8 (citing Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001)).
Despite the clear references to intoxication and impairment in the authorities on
which Dinkins relies, he proffered no evidence that Welch’s normal faculties were
impaired or that he was intoxicated at the time of the accident. There was no evidence
that he exhibited any such signs at all. Although Dinkins’s motion referenced
incriminating blood test results, no results were ever proffered or otherwise included in
the record. In fact, Welch never even testified that he used marijuana on the morning
On this record, Dinkins has not made a showing that would provide a reasonable
basis for the recovery of punitive damages. Consequently, we reverse the trial court’s
order granting Dinkins’s motion for leave to amend the complaint.
3. The Alleged Requirement to Make Affirmative Findings
As his second basis for reversal, Welch argues the trial court’s order granting the
motion for leave to amend the complaint “failed to make an affirmative finding that
3 This language is consistent with section 768.736, Florida Statutes, which establishes exceptions for punitive damages claims involving intoxication: “Sections 768.725 and 768.73 do not apply to any defendant who, at the time of the act or omission for which punitive damages are sought, was under the influence of any alcoholic beverage or drug to the extent that the defendant’s normal faculties were impaired, or who had a blood or breath alcohol level of 0.08 percent or higher.” (emphasis added). 7 [Dinkins] made a reasonable showing in the record which would provide a reasonable
evidentiary basis for recovering punitive damages.” We disagree that the trial court had
any obligation to make such a finding.
Welch takes issue with both the trial court’s oral pronouncement at the end of the
hearing on the motion for leave to amend and its written order. As for the oral
pronouncement, Welch argues the trial court “failed to make an affirmative finding of
what the punitive conduct was, and how it causally related to liability in this case.” He
then argues the written order is likewise insufficient because it states only that the
motion is “‘granted’ without further comment about the evidence, or how it supported
the claim of gross negligence and willful [in]difference.”
In making these arguments, Welch relies on case law from Florida’s Third,
Fourth, and Fifth Districts, holding, for example, that “the trial court, serving as a
gatekeeper, is required to make an affirmative finding that plaintiff has made a
‘reasonable showing by evidence,’ which would provide a ‘reasonable evidentiary basis
for recovering such damages’ if the motion to amend is granted.” Varnedore v.
Copeland, 210 So. 3d 741, 748 (Fla. 5th DCA 2017) (citations omitted); see also Petri
Positive Pest Control, Inc. v. CCM Condo. Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA
2015) (“[W]e read section 768.72 as creating a positive legal right in a party not to be
subjected to financial worth discovery until the trial court has first made an affirmative
finding that there is a reasonable evidentiary basis for the punitive damages claim to go
8 to the jury.” (citation omitted)); Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071,
1075 (Fla. 3d DCA 2019).4
While we respect the thoughtful opinions of our sister courts, we are not bound
by their holdings. See CED Cap. Holdings 2000 EB, LLC v. CTCW-Berkshire Club,
LLC, 363 So. 3d 192, 195 (Fla. 6th DCA 2023) (“[T]he Sixth District Court of Appeal
is not bound by the precedent of any of its sister courts, including the Second and Fifth
District.”). Rather than looking to the case law of other districts to determine whether
a trial court must make affirmative findings when permitting a plaintiff to add a punitive
damages claim, we search the applicable statute and rule.
We begin with the statute. Section 768.72(1), Florida Statutes, governs claims
for punitive damages and provides:
(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.
Florida Rule of Civil Procedure 1.190(f) allows the amendment of a pleading to add a
claim for punitive damages when a plaintiff makes “a reasonable showing, by evidence
in the record or evidence to be proffered by the claimant, that provides a reasonable
basis for recovery of such damages.”
4 We question whether these cases require the nuanced findings that Welch asserts are necessary. 9 As evidenced by the quoted language, the requirement that a trial court make
affirmative findings when granting a motion for leave to amend a complaint to add a
punitive damages claim is born of case law, not the language of section 768.72 or rule
1.190(f). Indeed, neither the statute nor the rule contains any such requirement, and it
is not our place to supply this perceived omission. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 94 (Thomson/West, 1st ed.
2012) (“The absent provision cannot be supplied by the courts. . . . ‘To supply omissions
transcends the judicial function.’” (quoting Iselin v. United States, 270 U.S 245, 251
(1926))).
Moreover, as Florida courts frequently note, when the legislature wishes to
obligate the trial court to make affirmative findings, it knows how to do so. See, e.g.,
John Knox Vill. of Cent. Fla., Inc. v. Est. of Lawrence by and through Castleman, 379
So. 3d 1205, 1208 (Fla. 5th DCA 2024). In fact, the legislature does it all the time. See,
e.g., § 948.06(8)(e)1., Fla. Stat. (2024) (“If the court, after conducting the hearing
required by paragraph (d), determines that a violent felony offender of special concern
has committed a violation of probation or community control other than a failure to pay
costs, fines, or restitution, the court shall: Make written findings as to whether or not
the violent felony offender of special concern poses a danger to the community.”); §
61.075(3), Fla. Stat. (2024) (“In any contested dissolution action wherein a stipulation
and agreement has not been entered and filed, any distribution of marital assets or
10 marital liabilities shall be supported by factual findings in the judgment or order based
on competent substantial evidence with reference to the factors enumerated in
subsection (1). The distribution of all marital assets and marital liabilities, whether equal
or unequal, shall include specific written findings of fact as to the following . . . .”).
And, sometimes, this requirement is mandated by the rules of procedure. See, e.g., Fla.
R. Civ. P. 1.510(a) (“The court shall state on the record the reasons for granting or
denying the [summary judgment] motion.”). But we search in vain for a similar
requirement in the text of either section 768.72 or rule 1.190(f).
Nor do we believe the Florida Supreme Court’s opinion in Globe Newspaper Co.
v. King, 658 So. 2d 518 (Fla. 1995), demands affirmative findings. Unlike this case,
Globe Newspaper arrived at the appellate court on certiorari review, and ultimately, the
Florida Supreme Court was tasked with deciding whether a party can properly challenge
orders granting leave to amend to add a punitive damages claim using a petition for writ
of certiorari. The court held that they could. In doing so, it explained: “We read section
768.72 to create a substantive legal right not to be subject to a punitive damages claim
and ensuing financial worth discovery until the trial court makes a determination that
there is a reasonable evidentiary basis for recovery of punitive damages.” Id. at 519
(emphasis added). But requiring a determination is not the same as requiring an
affirmative finding. And the trial court here necessarily made the determination that
11 there was a reasonable evidentiary basis for the recovery of punitive damages when she
granted the motion. Nothing further was required.
As a result, we decline to follow the holdings of the Third, Fourth, and Fifth
Districts and certify conflict with Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071,
1075 (Fla. 3d DCA 2019), Petri Positive Pest Control, Inc. v. CCM Condominium
Ass’n, 174 So. 3d 1122 (Fla. 4th DCA 2015), and Varnedore v. Copeland, 210 So. 3d
741, 748 (Fla. 5th DCA 2017). In doing so, we align ourselves with the First District’s
opinion in Watt v. Lo, 302 So. 3d 1021, 1024–25 (Fla. 1st DCA 2020) (“[N]othing in
the plain language of section 768.72(1) requires a trial court to make express or
affirmative findings when determining whether to permit a claimant to assert a punitive
damages claim. All that is required is that the claimant make the necessary showing
based on evidence in the record or proffered by the claimant.”).
REVERSED; CONFLICT CERTIFIED.
NARDELLA, J., concurs. WHITE, J., concurs in part and concurs in result, with opinion.
_____________________________
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED _____________________________
12 WHITE, J., concurring in part and concurring in result.
I join section 3 of the majority opinion in full. As to sections 1 and 2, while I
agree that the trial court erred in permitting Dinkins to assert a punitive damages claim,
I do so for somewhat different reasons.
I agree with the majority that the proffered evidence is insufficient to show
intoxication under Ingram or impairment under section 316.193. Dinkins also relies on
Huber v. State, 669 So. 2d 1079 (Fla. 4th DCA 1996). The majority does not address
that case so I will.
In Huber, there was testimony that the defendant had been “drinking very
heavily” on the day of the offense and was “intoxicated” at the time of the offense. 669
So. 2d at 1083. Because the record contained “evidence about the amount of alcohol
consumed, as well as evidence that the defendant was intoxicated,” the court concluded
that the trial court erred by denying the request for a voluntary intoxication defense jury
instruction. Id. (emphasis added). Huber does not help Dinkins because his proffer
contains neither evidence of the amount of marijuana Welch used nor evidence that
Welch was intoxicated.
We must view the proffered evidence in the light most favorable to Dinkins and
must not weigh the proffered evidence or make assessments of credibility. See Mercer
v. Saddle Creek Transp., Inc., 389 So. 3d 774, 776-77 (Fla. 6th DCA 2024); see also
Cook v. Fla. Peninsula Ins. Co., 371 So. 3d 958, 961-64 (Fla. 5th DCA 2023); Werner
13 Enters. v. Mendez, 362 So. 3d 278, 281-84 (Fla. 5th DCA 2023). Nevertheless, the
majority declares that “Welch never even testified that he used marijuana on the
morning of the accident.”
Although “[a] reasonable jury might well view the [evidence] that way . . . it is
not for us to definitively forecast which view a jury will take, but only to determine if
there is a reasonable view of the evidence that supports the plaintiff’s position.” Werner
Enters., 362 So. 3d at 283; see also Cook, 371 So. 3d. at 963-64 (concluding that,
because “there were reasonable inferences and sufficient circumstances submitted”
which must be viewed “in the light most favorable” to the plaintiff, the trial court erred
by making “a factual determination at the pleading stage.”); cf. Palm Beach Golf
Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1258 (11th Cir. 2015)
(“While there is contrary equivocal evidence that the final draft of the advertisement
used may not have been approved by Defendant, under the summary judgment standard,
the question of on whose behalf the fax advertisement was sent is a question to be
decided by a jury.” (emphasis added)).
Applying those standards, the jury could reasonably conclude that Welch
admitted to habitually using marijuana in the morning every day, including workdays.
Thus, the proffered evidence supports a finding that Welch used marijuana that morning
prior to the accident. A jury could make such finding by accepting Welch’s inculpatory
14 testimony, rejecting his exculpatory testimony, and drawing reasonable inferences; an
unequivocal admission is not required.
The proffered evidence fails, however, to make a reasonable showing of the
amount that Welch used. Dinkins cites no authority stating that proffered evidence of
use of an unknown amount of marijuana, standing alone, makes the reasonable showing
of intoxication or impairment required to support a punitive damages claim.
For all the foregoing reasons, the proffered evidence is simply too feeble to make
a reasonable showing that would provide a reasonable basis for the recovery of punitive
damages. Therefore, I concur in the judgment to reverse the trial court’s order granting
the motion.
Michael A. Sastre, of Sastre Saavedra & Epstein, PLLC, Miami, for Appellant, Peter Stuart Welch, Jr.
No Appearance for Appellant, Amazulu Transport, Inc.
Nicholas A. Shannin, Carol B. Shannin, and Dayna Maeder, of Shannin Law Firm, P.A., Orlando, for Appellee.