INTENTIONAL MISCONDUCT EXPOSED INSURER TO PUNITIVE DAMAGES
Barry Zalma
Aug 16, 2023
Read the full article at https://lnkd.in/gjqDkjzB and see the full video at https://lnkd.in/gMAQ76Cw and at https://lnkd.in/gbb4cMqp and at https://zalma.com/blog plus more than 4550 posts.
An extra today because I’ll be unable to post tomorrow.
Susanne Cook (“Appellant”) appealed the trial court’s denial of her motion for leave to amend her complaint to assert a claim for punitive damages against Florida Peninsula Insurance Company (“the Insurance Company”). In Susanne Cook v. Florida Peninsula Insurance Company, No. 5D22-2334, Florida Court of Appeals, Fifth District (August 11, 2023) the Court of Appeals resolved the dispute.
BACKGROUND
Following the conclusion of a first-party lawsuit for windstorm insurance benefits, Appellant filed a motion for leave to amend to assert a claim for punitive damages, and a proposed amended complaint alleging bad faith by the Insurance Company.
The Insurance Company allegedly ignored information in its own file confirming coverage for her claim, used faulty data when it denied the claim, failed to conduct a proper investigation of the claim, misrepresented the policy and coverages afforded under the policy, and refused to issue payment for coverage under the policy to restore the property to its pre-loss condition.
Appellant claimed she suffered actual damages including but not limited to attorney’s fees, public adjuster’s fees, expert fees, loss of use and decrease in value of her property, loss of enjoyment of her property, damaged credit, and general damages.
She supported her claim because the Insurance Company-as a business practice-misrepresented pertinent facts or insurance policy provisions relating to coverages at issue, intentionally omitted language to mislead insureds and avoid paying claims and failed to properly investigate claims.
Appellant provided examples of three other similar claims. Appellant presented copies of letters from the Insurance Company to two other insureds that were similar in substance to that which it sent to Appellant-denying coverage and misrepresenting the terms of their policies by changing and omitting the language that would trigger coverage. In the third example, Appellant presented excerpts from the deposition testimony of a corporate representative of the Insurance Company stating it did not retain an engineer to properly inspect reported damage on another claim prior to denying coverage.
The trial court found there had to be a showing of frequency of a general business practice of more than three other claims for punitive damages to be asserted and that the Insurance Company’s misrepresentation was a mistake. The trial court denied Appellant’s motion for leave to amend her complaint to assert a claim for punitive damages.
ANALYSIS
A rigorous standard is applied to a motion for leave to amend a complaint to assert a punitive damages claim. Before allowing a punitive damages claim to satisfy his initial burden by means of a proffer, the statute contemplates that a claimant might obtain admissible evidence or cure existing admissibility issues through subsequent discovery.
Punitive damage amendments by statute the burden of proof at trial and provides that a defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.
It is not whether the wrongful business practice has already been proven, but whether the plaintiff made a sufficient showing by evidence in the record or proffer to establish a reasonable basis for it to ultimately be found that the defendant engaged in the wrongful conduct as a business practice.
What is required 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 appellate court concluded that Appellant’s actual evidence and proffered evidence reasonably demonstrated an indication that the Insurance Company misrepresented coverage and failed to properly investigate claims as a general practice, in reckless disregard for the rights of its insureds.
“Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
The Court of Appeals concluded that there were reasonable inferences and sufficient circumstances submitted to plead intentional misconduct. The trial court was required to determine whether Appellant offered reasonable evidence of a misrepresentation, not whether the mistake was intentional. The trial court erroneously made a factual determination at the pleading stage. The trial court’s order was reversed.
ZALMA OPINION
There is no excuse for an insurer to lie to the insured. If, as alleged, the insurer intentionally lied to the insured about available coverages and did so as part of a normal business practice to at least three more insureds, it can be subject to punitive damages in Florida. If the Appellant proves her allegations the insurer will be punished for its wrongdoing.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.
Subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808
Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01
Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257
Daily articles are published at Zalma on Insurance Insurance, insurance claims, insurance law, and insurance fraud .
By Barry Zalma
Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe to Excellence in Claims Handling at locals.com https://lnkd.in/gfFKUaTf.
Subscribe to my publications at substack at https://lnkd.in/gcZKhG6g
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Go to the Insurance Claims Library – https://lnkd.in/gWVSBde
When Harm is Inherent in the Nature of the Act it is Intentional
Post 5237
See the video at and at and at https://zalma.com/blog plus more than 5200 posts.
No Coverage for Intentional Acts
Hitting a Person in the Face is an Intentional Act
In Unitrin Auto and Home Insurance Company v. Brian C. Sullivan, et al., George A. Ciminello, No. 2022-01607, Index No. 21632/14, Supreme Court of New York, Second Department (November 19, 2025) George A. Ciminello was injured when struck in the face by a cup filled with liquid, thrown from a moving vehicle operated by Brian C. Sullivan, with Robert Harford as the passenger who threw the cup. The vehicle approached Ciminello at about 30 mph, from 2 to 10 feet away, and Harford extended his arm to make contact. The cup splintered upon impact.
Sullivan and Harford later conceded liability on the intentional tort claim before a damages trial.
Insurance Policy:
Unitrin Auto and Home...
Obtaining Title to Church by Fraud Defeated
Post 5238
Read the full article at https://www.linkedin.com/pulse/unmitigated-gall-abuse-elderly-bishop-his-church-zalma-esq-cfe-xcasc, see the video at and at and at https://zalma.com/blog plus more than 5200 posts.
It is Villainous to Steal Church Property from Sick and Elderly Bishop
In Testimonial Cathedral Local Church of God in Christ v. EquityKey Real Estate Option, LLC et al. (Cal. Ct. App., 2d Dist., Div. 8, No. B331522 (Nov. 18, 2025) EquityKey (through broker Steven Sharpe and Frank Wheaton, a trusted advisor/friend of elderly Bishop Jimmy Hackworth) presented a deal supposedly for a $4 million life-insurance policy on Hackworth’s life with EquityKey as beneficiary. In exchange, EquityKey paid Hackworth $400,000 upfront.
Factual Background
To qualify Hackworth for the large policy, church real property on South Western Ave., Los Angeles was temporarily ...
Guilty of Money Laundering Scheme
Post 5238
See the video at https://lnkd.in/gqh7V46x and at https://lnkd.in/gmE-zrDC and at https://zalma.com/blog plus more than 5200 posts.
Prison Sentence for Fraud Must be Limited to the Fraud in Which the Defendant Participated
In United States v. Stephen O. Anagor, No. 2:24-CR-00019-DCLC-CRW (E.D. Tenn., Nov. 26, 2025) by Judge Clifton L. Corker the government sought to increase the defendant’s sentence because his co-conspirators added a fraudulent FBI scam that resulted in the victim’s suicide. Anagor sought a lower sentence because he was only involved in part of the fraud.
Charges & Plea
Defendant, a U.S. Army soldier pled guilty on June 11, 2025 to Conspiracy to Commit Mail and Wire Fraud, Aiding and Abetting Aggravated Stalking Resulting in Death and Aiding and Abetting Aggravated Identity Theft that was part of a larger 38-count superseding indictment against Anagor and co-defendants Chinagorom Onwumere and Salma Abdalkareem for an international Nigerian-based ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
