NAPLETON'S NORTH PALM AUTO PARK, INC. v. ABIGAIL AGOSTO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NAPLETON’S NORTH PALM AUTO PARK, INC.,

Appellant,

v.

ABIGAIL AGOSTO,

Appellee.

No. 4D22-2507

[June 21, 2023]

Appeal of a nonfinal order from the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T.

Case No. 502021CA010394A.

Jack R. Reiter and Robert C. Weill of GrayRobinson, P.A., Miami, for

appellant.

Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach,

and Christopher W. Kellam of Keller, Melchiorre & Walsh, PLLC, Jupiter,

for appellee.

FORST, J.

Appellant Napleton’s North Palm Auto Park, Inc. (“the Dealership”)

appeals the trial court’s order granting appellee Abigail Agosto’s motion for

leave to amend her complaint to add a punitive damages claim. Agosto

sued the Dealership for negligent hiring, 1 retention, and supervision of the

Dealership’s employee (“Employee”), after Employee hit Agosto’s parked

car while allegedly intoxicated during his shift. On appeal, the Dealership

argued Agosto failed to make a reasonable showing through record

evidence that a Dealership “managing agent” engaged in gross negligence,

as required to add a claim for punitive damages by section 768.72(3)(c),

Florida Statutes (2022). We agree and reverse.

Background

1 The trial court denied Agosto’s punitive damages motion with respect to the

negligent hiring claim. Accordingly, this issue is not before us. See B&L Serv.,

Inc. v. Broward Cnty., 300 So. 3d 1205, 1208 (Fla. 4th DCA 2020).

Agosto and Employee were both employed by the Dealership. Employee

maintains that, on the day of the alleged accident, he had “a couple drinks”

on his lunchbreak at home before returning to work. That evening, while

moving his car from an employee lot across the street to a closer parking

lot, Employee “brushed” alongside Agosto’s parked car. Employee was

ultimately arrested and later entered a guilty plea to a DUI charge. His

employment was terminated on the day of the accident.

Agosto sued the Dealership for negligent hiring, retention, and

supervision of Employee. She alleged the Dealership knew or should have

known Employee had been found guilty of a DUI offense prior to hiring

him, and the Dealership knew or should have known Employee consumed

alcohol during work hours.

Eventually, Agosto moved to amend her complaint to add a claim for

punitive damages. She 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.

Agosto argued the platform manager of the Dealership, Employee’s

service manager, and the assistant service manager knew of these events

and that, instead of terminating Employee, the Dealership’s management

merely gave him a warning with no additional oversight or restrictions.

The trial court granted Agosto’s motion to amend, stating “what we have

here is this consistent conduct after [Employee] was hired, that clearly

should have indicated to [the Dealership] that [it] had a problem with this

employee, that [the Dealership] between January and April did nothing to

supervise, check, randomly test, put [Employee] in some 12 step program,

put [Employee] in some alcohol rehab program, do something to safeguard

the public.” This timely appeal followed.

Analysis

“We review de novo the trial court’s purely legal ruling that plaintiff

made a ‘reasonable showing’ under section 768.72 to recover punitive

damages.” Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357

2

So. 3d 703, 705 (Fla. 4th DCA 2023) (quoting Holmes v.

Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005)).

Section 768.72 “requires the trial court to act as a gatekeeper,” which

means that the trial court cannot “simply accept[] the allegations in a

complaint or motion to amend as true.” Bistline v. Rogers, 215 So. 3d 607,

610–11 (Fla. 4th DCA 2017). A trial court’s inquiry under section 768.72

is more intensive than at summary judgment because the statute

“necessarily requires the court to weigh the evidence and act as a

factfinder.” KIS Grp., LLC v. Moquin, 263 So. 3d 63, 66 (Fla. 4th DCA

2019); see also Fla. Hosp. Med. Servs., LLC, v. Newsholme, 255 So. 3d 348,

350–51 (Fla. 4th DCA 2018) (quashing order that “failed to adequately

consider whether the proffer was sufficient to establish a reasonable

evidentiary basis for recovery of punitive damages, and simply accepted

Plaintiffs’ allegations as true”).

The Dealership argues the trial court erred in finding that Agosto’s

proffer reasonably showed the Dealership had notice that Employee was

intoxicated during work hours and, as a result, the Dealership was

“grossly negligent” in its retention and supervision of Employee. As a

threshold matter, the trial court improperly believed it had to accept

Agosto’s proffer as true. In assessing whether “a reasonable evidentiary

basis exists for recovery of punitive damages,” the trial court must

consider both the movant’s proffer of evidence as well as “the other side’s

showing.” Marder v. Mueller, 358 So. 3d 1242, 1246 & n.1 (Fla. 4th DCA

2023) (citing KIS Grp., 263 So. 3d at 66).

Agosto argued that punitive damages could be imposed on the

Dealership pursuant to section 768.72(3)(c), Florida Statutes (2022). That

section provides:

(3) In the case of an employer, principal, corporation, or other

legal entity, punitive damages may be imposed for the conduct

of an employee or agent only if the conduct of the employee

or agent meets the criteria specified in subsection (2) and:

....

(c) The employer, principal, corporation, or other legal entity

engaged in conduct that constituted gross negligence and that

contributed to the loss, damages, or injury suffered by the

claimant.

§ 768.72(3)(c), Fla. Stat. (2022) (emphasis added).

3

Thus, to amend a complaint to add a claim for punitive damages

against a corporate defendant, a plaintiff must show culpable conduct at

both the employee level and the corporate level. See § 768.72(3)(c), Fla.

Stat. (2022). 2 At the employee level, the plaintiff must show “the conduct

of the employee or agent [here, Employee’s managers] meets the criteria

specified in subsection (2)” of section 768.72. Here, the Dealership’s

appeal solely focuses on the “engaged in conduct” issue at the corporate

level. We thus limit our focus to that prong.

To show corporate culpable conduct, the plaintiff must present

evidence that the corporation itself is directly liable. Partington v. Metallic

Eng’g Co., 792 So. 2d 498, 501 (Fla. 4th DCA 2001). “[B]ecause a

corporation cannot act on its own, ‘there must be a showing of willful and

malicious action on the part of a managing agent of the corporation.’” Fla.

Power & Light Co. v. Dominguez, 295 So. 3d 1202, 1205–06 (Fla. 2d DCA

2019) (quoting Partington, 792 So. 2d at 501).

A managing agent “must be ‘more than a mid-level employee who has

some, but limited, managerial authority.’” See Halum v. ZF Passive Safety

Sys. US, Inc., 48 Fla. L. Weekly D647a (Fla. 4th DCA Mar. 29, 2023)

(quoting Wells Fargo Bank, N.A. v. Elec. Funds Transfer Corp., 326 So. 3d

753, 757 (Fla. 5th DCA 2021)). A managing agent “must be an individual

of such seniority and stature within the corporation or business to have

ultimate decision-making authority for the company.” Id. (emphasis

added).

2 Agosto’s Answer Brief addresses the Dealership’s corporate culpability under

both section 768.72(3)(b) (“The officers, directors, or managers of the employer,

principal, corporation, or other legal entity knowingly condoned, ratified, or

consented to such conduct”) and section 768.72(3)(c). Agosto never argued the

applicability of subsection (3)(b) below. Nonetheless, Agosto’s (3)(b) claim has the

same deficiency as her (3)(c) argument—the three managers were not policy

makers. See, e.g., Tallahassee Mem’l Healthcare, Inc. v. Dukes, 272 So. 3d 824,

826 (Fla. 1st DCA 2019) (section 768.72(3)(b) applies to “corporate management”

and not the director of an emergency room); Fetlar, LLC v. Suarez, 230 So. 3d 97,

100 (Fla. 3d DCA 2017) (neither the construction superintendent, construction

manager, nor project manager “played any role in corporate management” for

purposes of any of the three subparagraphs of section 768.72(3)); Coronado

Condo. Ass’n v. La Corte, 103 So. 3d 239, 241 n.2 (Fla. 3d DCA 2012) (section

768.72(3)(b) applies to “those in control of the entity” and not a property

manager). Thus, Agosto’s alternative argument fails. See Robertson v. State, 829

So. 2d 901, 907 (Fla. 2002) (the tipsy coachman rule does not allow a court to

affirm on an alternative ground not argued to the trial court where there is no

evidentiary support for the alternative ground in the record).

4

[A managing agent] is more than just a manager or midlevel

employee. See Ryder Truck Rental, Inc. v. Partington, 710 So.

2d 575, 576 (Fla. 4th DCA 1998) (“[A] job foreman is not, as

required for imposing direct liability, a managing agent of the

company.”); Capital Bank v. MVB, Inc., 644 So. 2d 515, 521

(Fla. 3d DCA 1994) (citing Bankers Multiple Line Ins. Co. v.

Farish, 464 So. 2d 530 (Fla. 1985)) (holding that one of several

bank vice presidents, who was not on the board of directors

or the loan committee, did not qualify as a managing agent);

Pier 66 Co. v. Poulos, 542 So. 2d 377, 381 (Fla. 4th DCA 1989)

(holding that a hotel manager was not a managing agent of

the corporation that owned the hotel). Rather, a managing

agent is an individual like a “president [or] primary owner”

who holds a “position with the corporation which might result

in his acts being deemed the acts of the corporation.” Taylor

v. Gunter Trucking Co., Inc., 520 So. 2d 624, 625 (Fla. 1st DCA

1988).

Dominguez, 295 So. 3d at 1205 (second and third alterations in original)

(concluding that vegetation management program regional supervisor who

did not make policy decisions was not a “managing agent” for purposes of

establishing direct punitive liability).

Here, Agosto’s claims were based on the conduct of three of the

Dealership’s managers: the Dealership’s platform manager, Employee’s

service manager, and Employee’s assistant service manager who directly

supervised Employee.

The platform manager oversees three or four different vehicle stores in

the Palm Beach area, including the one at which Employee worked. One

who manages a single unit, or units, that is owned by the corporation, is

generally not a managing agent of that corporation. See Poulos, 542 So.

2d at 381 (hotel manager not a managing agent of corporate-owned hotel).

While the Dealership’s platform managers might have decision-making

authority over the stores he or she supervises, no evidence was presented

that the platform managers ever “participated in the formation of company

policy.” Halum, 48 Fla. L. Weekly D647 (quoting Wells Fargo, 326 So. 3d

at 758). “[M]ere [job] titles conferred on employees are insufficient to

transform low-level and mid-level supervisors into managing agents of a

company.” Id. Thus, a platform manager is not a managing agent of the

Dealership.

5

Similarly, a service manager is not a managing member of the

Dealership. There is no evidence that a service manager is more than

simply a “manager or mid-level employee.” Dominguez, 295 So. 3d at

1205. And if a service manager is not a managing agent, it follows that

the assistant service manager is also not a managing agent of that

corporation. 3

Agosto therefore failed to show that the Dealership’s managing agent(s)

committed culpable corporate conduct.

Conclusion

The three managers upon whom Agosto relied in the proffer were not

“managing agents” of the Dealership as required by section 768.72(3)(c).

Because amending a complaint to add a claim for punitive damages

requires culpable corporate conduct shown through the actions of that

corporation’s managing agent(s), the trial court erred in granting Agosto’s

motion for leave to amend. Accordingly, we reverse the trial court’s order

granting Agosto’s leave to amend.

Reversed.

KLINGENSMITH, C.J., and CONNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3 In contrast, Agosto proffered evidence from the chief operating officer (“COO”),

who would appear to be a “managing agent” of the Dealership. However, the

COO testified that he had no knowledge of any occasions—other than the incident

in question where Employee hit Agosto’s vehicle—when Employee might have

been intoxicated or drinking on the job. Since the “managing agent” would need

to be on notice of an employee’s unfitness to work or of a corporate practice to

knowingly overlook violations of its policy prohibiting drinking or intoxication in

the workplace, and the chief operating officer had no such knowledge, he cannot

be the basis for the Dealership’s direct corporate liability. See M.V. By & Through

W.W. v. Gulf Ridge Council Boy Scouts of Am., Inc., 529 So. 2d 1248, 1248 (Fla.

2d DCA 1988).

6