       Third District Court of Appeal
                        Opinion filed September 17, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1240
                         Lower Tribunal No. 08-53186
                             ________________


                  SCI Funeral Services of Florida, Inc.,
                                    Petitioner,

                                        vs.

                          Raul Muñoz, etc., et al.,
                                  Respondents.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose
Rodriguez, Judge.

     Gray Robinson and Ted C. Craig, for petitioner.

     Billbrough & Marks and Geoffrey B. Marks, for respondents.


Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.

     SALTER, J.

     SCI Funeral Services of Florida, Inc. (“SCI”), seeks a writ of certiorari

quashing a circuit court order allowing the respondents to assert a claim for
punitive damages. We grant the petition.

      The proposed third amended complaint alleged the following facts. The

respondents, plaintiffs below, are the parents of Yetsiyel Muñoz Ceballos,

deceased. One of Mr. Ceballos’s parents entered into a contract with a Miami

funeral home (Auxiliadora Funeraria Nacional, or “Auxiliadora”). The contract

contemplated that Mr. Muñoz Ceballos's body would be shipped to Cuba, where a

wake and burial would be conducted.

      SCI, doing business as “Gold Coast Crematory” and not affiliated with

Auxiliadora, allowed Auxiliadora to store human remains in SCI’s cooler for a fee.

Auxiliadora’s employees, not SCI’s, transported Mr. Muñoz Ceballos’s body to

SCI’s cooler, where they entered in SCI’s log book the date, the location in the

cooler where the body was placed, Mr. Muñoz Ceballos’s name, an Auxiliadora

employee’s name and signature, and an abbreviation showing that Auxiliadora was

the funeral home.     At the same time, the same two Auxiliadora employees

delivered the body of another, unrelated, decedent, using the same log book

procedure. The remains of the second decedent were to be cremated.

      It was later determined that Auxiliadora shipped the remains of the unrelated

decedent to Cuba (instead of the remains of Mr. Muñoz Ceballos) and that Mr.

Muñoz Ceballos’s body was cremated at the SCI facility. The allegations and

pretrial discovery relating to Auxiliadora also alleged that its owner, Mr. Alkhalifa,



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and other employees deceived Mr. Muñoz Ceballos’s family for days regarding the

actual circumstances of the cremation. There were no such allegations regarding

SCI or its own employees.

       In their proposed third amended complaint, Mr. Muñoz Ceballos’s parents

sought damages against Auxiliadora for tortious interference, intentional infliction

of emotional distress, violation of Florida Statutes Chapter 497,1 and punitive

damages, and against SCI for negligence, violations of Chapter 497, and punitive

damages. The trial court declined to make findings that would impute the alleged

conduct of SCI’s employee or employees to SCI under the applicable statutory

procedure. Subsections 768.72(2) and (3), Florida Statutes (2013), specify:

      (2) 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. As used in this section, the term:

      (a) "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.

      (b) "Gross negligence" means that the defendant's conduct was so
      reckless or wanting in care that it constituted a conscious disregard or
      indifference to the life, safety, or rights of persons exposed to such
      conduct.

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

1 The Florida Funeral, Cemetery, and Consumer Services Act. § 497.001, Fla. Stat
(2013).

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      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:

      (a) The employer, principal, corporation, or other legal entity actively
      and knowingly participated in such conduct;

      (b) The officers, directors, or managers of the employer, principal,
      corporation, or other legal entity knowingly condoned, ratified, or
      consented to such conduct; or

      (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.

      Here, as in Coronado Condominium Ass’n, Inc. v. La Corte, 103 So. 3d 239

(Fla. 3d DCA 2012), the respondents failed to proffer evidence satisfying any of

the three categories of corporate involvement established in section 768.72(3)(a),

(b), or (c), as required to subject SCI to a punitive damages claim.             The

respondents’ failure to comply with this statutory procedure and the trial court’s

resulting order may be redressed by certiorari. Espirito Santo Bank v. Rego, 990

So. 2d 1088 (Fla. 3d DCA 2007).

      Based on these authorities and our review of the record, we grant the petition

and quash the order granting leave to the plaintiff/respondents to add a punitive

damages claim against SCI.




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