          Supreme Court of Florida
                                    ____________

                                    No. SC13-139
                                    ____________

                         LUCILLE RUTH SOFFER, etc.,
                                 Petitioner,

                                          vs.

                   R.J. REYNOLDS TOBACCO COMPANY,
                               Respondent.

                                  [March 17, 2016]

PARIENTE, J.

      The issue framed by the certified question in this case is whether individual

members of the Engle class are entitled to seek punitive damages under theories of

negligence or strict liability in their individual lawsuits following this Court’s

decertification of the class action in Engle v. Liggett Group, Inc., 945 So. 2d 1246,

1254 (Fla. 2006). In Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 456, 460-61

(Fla. 1st DCA 2012), the First District Court of Appeal, in a split decision, held

that individual members of the Engle class action are bound by the procedural

posture of the Engle class representatives when they pursue their individual

lawsuits and thus cannot seek punitive damages on the counts for negligence or
strict liability. Id. at 459-61. However, because its decision rested on its

interpretation of this Court’s decision in Engle, the First District certified the

following question of great public importance for this Court’s review:

      ARE MEMBERS OF THE CLASS IN ENGLE V. LIGGETT
      GROUP, INC., 945 So. 2d 1246 (Fla. 2006), ENTITLED TO
      PURSUE AN AWARD OF PUNITIVE DAMAGES UNDER
      THEORIES OF NEGLIGENCE OR STRICT LIABILITY?

Id. at 461.1 Subsequently, in Philip Morris USA, Inc. v. Hallgren, 124 So. 3d 350,

358 (Fla. 2d DCA 2013), the Second District Court of Appeal reached the opposite

conclusion, certified conflict with the First District’s decision in Soffer, and also

certified the same question as the First District. The Third and Fourth District

Courts of Appeal have adopted the reasoning of Soffer. See R.J. Reynolds

Tobacco Co. v. Williams, No. 3D13-2099, 39 Fla. L. Weekly D1863 (Fla. 3d DCA

Sept. 3, 2014) (summarily adopting the holding in Soffer); R.J. Reynolds Tobacco

Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA 2013) (adopting Soffer and vacating

punitive damages award of $50,000).

      To resolve this conflict and to answer the certified question, we hold that the

individual members of the Engle class action are not prevented from seeking

punitive damages on all claims properly raised in their subsequent individual

actions. We reach this decision for several reasons.



      1. We have jurisdiction. See art. V, §3(b)(4), Fla. Const.


                                          -2-
      First, the Engle trial court’s denial of the motion to amend the class action

complaint to include a demand for punitive damages on the counts for negligence

and strict liability was not based on the merits of the request but instead rested on

the procedural posture at the time. The procedural posture of the case changed

entirely when this Court vacated the entire punitive damages award of $145 billion

and the related findings on punitive damages, thus wiping the slate clean as it

relates to punitive damages and requiring each individual plaintiff to prove

entitlement to punitive damages in his or her individual lawsuit. See Engle, 945

So. 2d at 1254.

      Second, a demand for punitive damages is “not a separate and distinct cause

of action; rather it is auxiliary to, and dependent upon, the existence of an

underlying claim.” Liggett Grp., Inc. v. Engle, 853 So. 2d 434, 456 (Fla. 3d DCA

2003), quashed in part by Engle, 945 So. 2d at 1254. Therefore, neither the statute

of limitations nor principles of equitable tolling bars a plaintiff from requesting

punitive damages on all properly pled counts. In fact, a plaintiff cannot even

include a demand for punitive damages in the initial complaint and is allowed to

add a request for punitive damages only if the evidence establishes a right to claim

punitive damages by a “reasonable showing by evidence in the record,” pursuant to

section 768.72(1), Florida Statutes.




                                         -3-
      Third, the legal standard for establishing entitlement to punitive damages—

that is, that the plaintiff must prove by clear and convincing evidence that the

conduct causing the damage was either “intentional” or “grossly negligent”—does

not vary depending on the underlying legal theory. Even if negligence or strict

liability constitutes the underlying cause of action, the plaintiff must prove 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.” In re Std. Jury Instr. In Civ. Cases—Report No. 09-01, 35 So. 3d

666, 790 (Fla. 2010). The burden of proof is heightened from the general “more

likely than not” standard that applies to general liability questions in a civil case to

a more stringent “clear and convincing” standard, no matter what the theory of

punitive damages. The jury is instructed that, based on the allegedly intentional

misconduct or gross negligence, it must determine whether punitive damages are

warranted “as punishment” against the defendant and “as a deterrent to others.” Id.

      Accordingly, for these reasons, we answer the certified question in the

affirmative, quash the First District’s decision in Soffer, and approve the well-

reasoned decision of the Second District’s opinion in Hallgren as to the issue of

punitive damages. We further disapprove R.J. Reynolds Tobacco Co. v. Williams,

No. 3D13-2099, 2014 WL 4344369 (Fla. 3d DCA Sept. 3, 2014), as well as the




                                          -4-
portion of R.J. Reynolds Tobacco Co. v. Ciccone, 123 So. 3d 604 (Fla. 4th DCA

2013), which addresses this issue.2

                          FACTS AND BACKGROUND

      Maurice Soffer died in May of 1992 from lung cancer caused by smoking.

After this Court issued its decision in Engle, 945 So. 2d at 1254, requiring class

members to file their own individual actions within a year, Soffer’s widow, Lucille

Soffer, brought a wrongful death action against R.J. Reynolds Tobacco Company

pursuant to that decision. Her complaint asserted four causes of action, all of

which had been pled in the Engle class litigation: negligence, strict liability, fraud

by concealment, and conspiracy to commit fraud.

      Approximately a year prior to trial, Soffer filed a motion to amend her

complaint to add a demand for punitive damages pursuant to Florida Rule of Civil

Procedure 1.190(f) and section 768.72, Florida Statutes. Soffer’s request for the

amendment was not limited to any one count. R.J. Reynolds objected based on its

position that the allegations in support of the motion to amend were “conclusory

assertions that defendants’ conduct was grossly negligent or willful and wanton”

and without “factual support.” Further, R.J. Reynolds argued that “[t]o the extent



       2. We granted review in Ciccone on a separate issue regarding a certified
conflict of when a tobacco-related condition is manifested. R.J. Reynolds Tobacco
Co. v. Ciccone, No. SC13-2415 (Fla. order accepting jurisdiction filed June 13,
2014).

                                         -5-
that Plaintiff seeks punitive damages on a theory that defendants were grossly

negligent, she has not proffered anything to show . . . such conduct or the required

nexus to Plaintiff’s decedent.” (Emphasis omitted.) The trial court granted the

motion to amend.

       The case proceeded to trial, where evidence of punitive damages was

introduced without any ruling from the trial court that limited the evidence of

punitive damages to any specific count. During the jury charge conference, R.J.

Reynolds asserted for the first time that the jury should be instructed that punitive

damages could be considered only on the fraudulent concealment and conspiracy

counts based on the procedural posture of the original Engle class action. Despite

the fact that the trial court had permitted Soffer to amend her complaint to seek

punitive damages—an amendment that was not limited to any particular count—

the trial court agreed with R.J. Reynolds and instructed the jury that punitive

damages could be awarded only if the jury found in favor of Soffer on the claims

for fraudulent concealment or conspiracy and not under the negligence or strict

liability claims.

       The jury found that R.J. Reynolds was liable based on the strict liability and

negligence claims, awarding $5,000,000 in compensatory damages, reduced by

60% comparative negligence. The jury, however, rejected the claim that R.J.

Reynolds’ fraudulent concealment or conspiracy was a legal cause of Soffer’s


                                         -6-
death and thus did not consider an award of punitive damages. The jury verdict

consisted of special interrogatories as follows:

      1. Was Maurice Benson Soffer addicted to cigarettes containing
      nicotine manufactured by R.J. Reynolds Tobacco Company, and if so,
      was such addiction a legal cause of his death?
      YES __X____ NO ______

      (If you answered “NO” to question 1, your verdict is for R.J.
      Reynolds Tobacco Company and you should proceed no further
      except to date and sign the verdict form and return it to the courtroom.
      If you answered “YES” to question 1, please answer Questions 2
      through 5.)
      2. Was R.J. Reynolds Tobacco Company’s negligence a legal cause
      of Maurice Benson Soffer’s death?

      YES ___X___ NO ______
      3. Were the defective and unreasonably dangerous cigarettes placed
      on the market by R.J. Reynolds Tobacco Company a legal cause of
      Maurice Benson Soffer’s death?
      YES ___X___ NO ______
      4. Was R.J. Reynolds Tobacco Company’s concealment or omission
      of material information about the health effects or addictive nature of
      smoking cigarettes or both a legal cause of Maurice Benson Soffer’s
      death?

      YES ______ NO ___X___
      5. Was R.J. Reynolds Tobacco Company’s agreement with others to
      conceal or omit material information about the health effects or
      addictive nature of smoking cigarettes or both a legal cause of
      Maurice Benson Soffer’s death?

      YES ______ NO ___X___




                                         -7-
The jury was instructed that if it answered “NO” to questions 4 and 5, as it did, it

should not consider the questions pertaining to punitive damages.

      After reduction for comparative negligence, a judgment was entered for the

plaintiffs for a total amount of $2,000,000. Soffer appealed, asserting that the trial

court erred in instructing the jury that it was prohibited from awarding punitive

damages on the counts for negligence and strict liability.3

      The First District affirmed the trial court on this issue, noting that Soffer

chose to bring her individual action pursuant to Engle based on the benefits that

membership in the Engle class confers, specifically: (1) the res judicata effect of

certain factual findings made in Engle, which relieved individual progeny plaintiffs

of the substantial burden, time, cost, and risk of proving the tortious-conduct

elements of their actions against the defendants; and (2) a lengthy tolling of

Florida’s statute of limitations, which ordinarily is two years. Soffer, 106 So. 3d at

457-58. Thus, the First District held, “[p]rogeny plaintiffs wear the same shoes, so

to speak, as the plaintiffs in Engle because they are the plaintiffs from Engle.” Id.

at 460 (emphasis omitted). In reaching this conclusion, the First District relied on

this Court’s decision in Engle, noting that the opinion did not suggest that progeny




      3. R.J. Reynolds did not cross-appeal the compensatory damages award.


                                         -8-
plaintiffs could bring other claims and remedies that had not been timely asserted

as part of the Engle litigation. Id.

      Judge Lewis dissented from the First District’s holding in Soffer, reasoning

that res judicata did not bar a plaintiff from seeking punitive damages on all

properly pled counts because this Court’s Engle decision never required Engle

progeny plaintiffs to file identical claims. In concluding that an Engle progeny

plaintiff should be able to seek different remedies, Judge Lewis relied on three

reasons: (1) a claim for punitive damages is “not a separate and distinct cause of

action but is auxiliary to, and dependent upon, the existence of an underlying

claim”; (2) the plaintiff’s “reliance on the [Engle] Phase I findings was not relevant

to her claim for punitive damages, which she had to independently prove”; and (3)

this Court “retained most of the jury’s Phase I findings,” with the exception of the

findings on punitive damages. Id. at 463 (Lewis, J., concurring in part and

dissenting in part). Judge Lewis asserted that in his view, based on this error,

Soffer should be entitled to a new trial, limited solely to the issue of punitive

damages. Id. at 464.

      The Second District, in Hallgren, agreed with Judge Lewis’s concurring-in-

part and dissenting-in-part opinion. Hallgren, 124 So. 3d at 355. In that case,

Claire Hallgren died from lung cancer on November 26, 1995, following her sixty-

year use of tobacco products manufactured by Philip Morris and R.J. Reynolds. Id.


                                         -9-
at 351-52. Theodore Hallgren, as personal representative of her estate, filed a

complaint based on Engle, asserting four causes of action: (1) strict liability; (2)

fraudulent concealment; (3) conspiracy to commit fraudulent concealment; and (4)

negligence. Id. at 355. Hallgren also sought punitive damages on all four counts,

which the trial court permitted. Id. The trial was bifurcated into two phases. In

Phase I, the jury determined that Hallgren was a member of the Engle class and

found in favor of Hallgren on all counts, apportioning fifty percent of fault to Mrs.

Hallgren, twenty-five percent to Philip Morris, and twenty-five percent to R.J.

Reynolds. Id. In addition, the jury determined the amount of compensatory

damages, which the trial court reduced to approximately $1,000,000 based on

comparative fault, and found that Hallgren was entitled to punitive damages

against each defendant. Id. In Phase II, the jury awarded Hallgren “$750,000 in

punitive damages against both Philip Morris and R.J. Reynolds.” Id.

      The tobacco companies appealed, asserting that Hallgren was precluded

from seeking punitive damages on his claims of negligence and strict liability

because he initiated the action pursuant to Engle and was relying on the res

judicata effect of the Engle litigation, despite the Engle class plaintiffs having not

sought punitive damages under all of the same theories of liability. Id. at 353. The

Second District disagreed that an Engle progeny plaintiff is precluded from seeking




                                         - 10 -
punitive damages for strict liability and negligence as a result of the procedural

posture of Engle. Id.

      While the Second District acknowledged that members of the Engle class

benefit by the res judicata effect of the Phase I findings, the district court rejected

the notion that “such benefit precludes an Engle progeny plaintiff from seeking a

remedy barred as untimely by the Engle trial court for mere procedural

deficiencies.” Id. at 354. In fact, the Second District held that “the unique nature

of Engle necessitates a finding that progeny plaintiffs are permitted to seek

punitive damages on their claims for negligence and strict liability.” Id. In

reaching this conclusion, the Second District relied on this Court’s opinion in

Engle and concluded that the decision “neither expressly nor impliedly expanded

its Engle res judicata parameters to limit Engle progeny plaintiffs’ ability to pursue

the remedy of punitive damages.” Id. at 357. The Second District recognized that

the First District reached an opposite conclusion in Soffer and certified conflict.

Hallgren, 124 So. 3d at 358.

                                  ANALYSIS

      The certified question asks this Court whether Engle progeny plaintiffs may

pursue an award of punitive damages under theories of negligence or strict

liability, or whether they are limited to seeking punitive damages only as to the

intentional tort counts of fraudulent concealment and conspiracy that were


                                         - 11 -
permitted in the original Engle class action. In analyzing this question, we begin

by reviewing Engle, including whether progeny plaintiffs who are part of the Engle

class are bound by the procedural posture of punitive damages in the Engle class

action and whether they “stand in the shoes” of the class representatives for all

purposes. We conclude that the individual progeny plaintiffs are not bound by the

prior procedural posture of Engle when pleading punitive damages because the

findings regarding liability for punitive damages were vacated.

      We then proceed to address the additional argument raised by R.J. Reynolds:

whether the Engle progeny plaintiffs are precluded from pursuing punitive

damages on all counts because the Engle class representatives did not cross-appeal

the denial of their motion to amend. We also explain why a claim for punitive

damages is not a separate cause of action that is subject to a separate statute of

limitations. Finally, we address whether R.J. Reynolds would be prejudiced in this

case by allowing Soffer to seek punitive damages on her causes of action for

negligence and strict liability. We conclude that there is no legal or principled

basis for denying Engle progeny plaintiffs the right to pursue punitive damages on

all properly pled counts.

     I. The Engle Class Proceedings: Res Judicata & Procedural Posture

      The original Engle class action complaint was filed in May 1994. Shortly

thereafter, an amended complaint was filed, raising eight counts: (1) strict liability;


                                         - 12 -
(2) fraud; (3) conspiracy to commit fraud; (4) breach of implied warranty; (5)

intentional infliction of emotional distress; (6) negligence; (7) a request for

equitable relief; and (8) breach of express warranty. R.J. Reynolds Tobacco Co. v.

Engle, 672 So. 2d 39, 40 (Fla. 3d DCA 1996). The amended complaint sought

punitive damages only on the intentional tort counts—fraud, conspiracy to commit

fraud, and intentional infliction of emotional distress. The trial court certified the

class, and the Third District affirmed the trial court’s certification order, but

modified it to apply to only Florida citizens and residents. Id. at 40, 42.

      The trial was divided into three phases. In Phase I, the jury determined

whether the defendants were liable and whether the entire class was entitled to

punitive damages. Engle, 853 So. 2d at 441. In Phase II, the jury determined the

amount of compensatory damages for the named plaintiffs and the amount of

punitive damages for the entire class. Id. In Phase III, new juries were to

determine the defendants’ liability to the remaining class members and, if liability

was established, to determine compensatory damages. Id. at 442.

      Regarding punitive damages, class counsel announced during Phase I their

intention to seek punitive damages as to all counts, but never filed a motion to

amend the complaint to seek these damages for any counts other than the

intentional tort counts originally pled. At the conclusion of Phase I, the jury found

the defendants liable to the class members as a whole and also found that the class


                                         - 13 -
members were entitled to punitive damages. After the jury found entitlement to

punitive damages, class counsel asked for leave to amend the complaint to seek an

award of punitive damages for all counts. The trial court ultimately denied the

motion as untimely, so the Engle jury considered the amount of punitive damages

based only on the counts for fraud, conspiracy to commit fraud, and intentional

infliction of emotional distress.

         The jury found that the class as a whole was entitled to $145 billion in

punitive damages, to be divided by the class members. At this point, the

defendants appealed.4 The Third District reversed the judgment and decertified the

class.

         This Court approved in part and quashed in part the Third District’s

decision. Engle, 945 So. 2d at 1254. As to the issue of punitive damages, this

Court held that the trial court prematurely allowed the jury to consider entitlement

to, and amount of, punitive damages before the jury determined issues of causation

and damages on the underlying claims. Id. at 1263. As this Court reasoned, “a

finding of liability is required before entitlement to punitive damages can be

determined, and that liability is more than a breach of duty. A finding of liability

necessarily precedes a determination of damages, but does not compel a



      4. Because the defendants appealed after Phase II-B, the action did not
proceed to Phase III.


                                          - 14 -
compensatory award.” Id. at 1262-63.5 In other words, before damages can be

imposed, the factfinder must determine individualized issues, such as legal

causation and comparative fault—issues not yet determined in Phase I. Because

problems with the three-phase trial plan negated the continued viability of the class

action, this Court decertified the Engle class. Id. at 1267-69.

      While decertifying the class, this Court indicated that the decertification was

without prejudice for the class members to file individual claims within one year of

the issuance of this Court’s mandate, with res judicata effect given to the following

specific Phase I findings:

      Questions 1 (general causation), 2 (addiction of cigarettes), 3 (strict
      liability), 4(a) (fraud by concealment), 5(a) (civil-conspiracy-
      concealment), 6 (breach of implied warranty), 7 (breach of express
      warranty), and 8 (negligence).

Id. at 1254-55. In other words, this Court explicitly held that the common liability

findings from Phase I had res judicata effect for the Engle progeny plaintiffs but

that none of the findings pertaining to punitive damages could stand.

      The First District in Soffer and the Second District in Hallgren have each

interpreted this Court’s Engle decision, reaching different conclusions as to the

effect of Engle on claims for punitive damages. We now hold that the Second



      5. We also determined that the punitive damages award to the class based
on the intentional tort theories was clearly excessive because it would practically
bankrupt some of the defendants. Engle, 945 So. 2d at 1265 n.8.


                                        - 15 -
District’s interpretation of the effect of our Engle decision is the correct one. As

the Second District reasoned:

              We recognize and appreciate the unprecedented significance of
      the Engle decision, and we agree that the Engle class is benefited by
      the res judicata effect of the Phase I findings. Nonetheless, we cannot
      conclude that such benefit precludes an Engle progeny plaintiff from
      seeking a remedy barred as untimely by the Engle trial court for mere
      procedural deficiencies. Further, unlike the First District, we
      conclude that the unique nature of Engle necessitates a finding that
      progeny plaintiffs are permitted to seek punitive damages on their
      claims for negligence and strict liability.
              First, as noted by the First District, the supreme court did not
      address this issue in Engle; rather, the supreme court made two
      holdings with regard to punitive damages, neither of which creates a
      bar to individual progeny plaintiffs seeking punitive damages for strict
      liability and negligence claims. When the supreme court concluded
      that the punitive damages award must be reversed, it decided to
      decertify the class and retain the Phase I findings as to claims for
      negligence, strict liability, fraudulent concealment, and conspiracy to
      commit fraudulent concealment. Engle, 945 So. 2d at 1269. The
      court held that “[c]lass members can choose to initiate individual
      damages actions and the Phase I common core findings . . . will have
      res judicata effect in those trials.” Id. By specifically stating that the
      Phase I common core findings would have res judicata effect without
      declaring the same for the procedural posture of the litigation, the
      court indicated that the rejected findings (and the issues not passed
      upon) would not have the same res judicata effect as is generally the
      case when litigation is declared res judicata. Thus, while Mr.
      Hallgren and the Tobacco Companies are clearly bound by the
      findings the supreme court upheld, they are not similarly bound by the
      findings not passed upon.

Hallgren, 124 So. 3d at 354-55 (footnote omitted). We agree with Hallgren and

accordingly conclude that the res judicata effect of the Phase I findings addressed




                                        - 16 -
in Engle has no application to claims for punitive damages sought by Engle

progeny plaintiffs.

      Our decision in Engle specifically set forth those findings to which res

judicata applies; nothing within our decision expanded the res judicata effect to the

ability to pursue the remedy of punitive damages. Engle, 945 So. 2d at 1269

(“Class members can choose to initiate individual damages actions and the Phase I

common core findings . . . will have res judicata effect in those trials.”). In his

concurring-in-part and dissenting-in-part opinion in Soffer, Judge Lewis aptly

noted that R.J. Reynolds’ argument—that res judicata precludes an Engle progeny

plaintiff from seeking punitive damages on such claims—is actually an attempt to

expand the res judicata effect of Engle beyond the parameters set by this Court.

Soffer, 106 So. 3d at 462 (Lewis, J., concurring in part and dissenting in part).

      There is simply no basis to conclude that the procedural posture of Engle

would bar an Engle progeny plaintiff, such as Soffer, from amending her complaint

to request punitive damages on all counts that were properly pled in her individual

action. As the Second District explained:

      Practically speaking, however, a progeny plaintiff is still required to
      file a new complaint and go through the procedural morass of
      initiating a new cause of action. And a progeny plaintiff must still
      prove the “individual aspects of the claims specific to each plaintiff,”
      including damages. [Philip Morris USA, Inc. v. Douglas, 110 So. 3d
      419, 432 (Fla. 2013).] Because the decision preventing the Engle
      class from amending its complaint to seek punitive damages for
      negligence was merely procedural and was not decided on the merits,

                                         - 17 -
      we conclude that the res judicata effect of the Phase I findings does
      not preclude progeny plaintiffs from seeking punitive damages on
      those claims. See id. at 433 (recognizing “that a ‘purely technical,’
      non-merits judgment ‘may not be used as a basis for the operation of
      the doctrine of res judicata’ ” (quoting Kent v. Sutker, 40 So. 2d 145,
      147 (Fla. 1949))).

Hallgren, 124 So. 3d at 357. In other words, once the punitive damages award was

vacated by this Court, any individual plaintiff was back to square one on the issue

of punitive damages:

      But when the Engle trial court’s judgment as to issues of punitive
      damages was reversed, the class members seeking punitive damages
      had to effectively start over in order to plead, prove, and collect
      punitive damages. If the supreme court had not opted to decertify the
      class and had instead remanded for a new trial, the class would have
      been free to renew its motion to amend the complaint to add the
      remedy of punitive damages to all of its substantive claims. See
      generally Fla. R. Civ. P. 1.190. Thus, we conclude that Mr. Hallgren
      was entitled to assert a claim for punitive damages on his claims for
      negligence and strict liability because, as the Soffer majority
      recognized, he was in the “same position [class members] would have
      been in had they filed a complaint identical to the Engle class-action
      complaint on the same date the original complaint was filed.” Soffer,
      106 So. 3d at 460.
Hallgren, 124 So. 3d at 357 (emphasis added).

      As the Second District recognized, once this Court vacated all of the jury’s

findings pertaining to punitive damages and required members of the Engle class

to file individual complaints, the slate was wiped clean as it pertained to punitive

damages. Thus, we reject R.J. Reynolds’ argument that res judicata and the




                                        - 18 -
procedural posture of Engle prevent Soffer from seeking punitive damages on all

properly pled causes of action.

                     II. Waiver by Failure to Cross-Appeal

      As an additional aspect of its preclusion argument, R.J. Reynolds points to

Airvac, Inc. v. Ranger Insurance Co., 330 So. 2d 467, 469 (Fla. 1976), for the

proposition that a prevailing party must cross-appeal the denial of a motion to

amend or else the party waives the right to reassert that motion following any

remand. In other words, because the Engle class did not cross-appeal the denial of

the motion to amend, R.J. Reynolds contends, the trial court’s decision to disallow

the amendment was fixed.

      However, this argument by R.J. Reynolds is itself waived. When Soffer

initially moved to amend her complaint, R.J. Reynolds did not argue that the trial

court should deny the motion because the individual Engle progeny plaintiffs had

waived the right to amend a complaint to seek punitive damages as to other counts.

Now, R.J. Reynolds seeks to raise this new basis for why the trial court erred in

permitting the amendment. Thus, R.J. Reynolds has waived this argument.

      Although we conclude that this argument was waived, even if it were not,

Airvac is distinguishable. Specifically, in Airvac, the Fourth District remanded the

case on the initial appeal and directed three specific factual determinations: (1)

whether Airvac had an insurable interest in a lost aircraft, (2) whether the


                                        - 19 -
petitioner in that case held a valid lien, and (3) the amount of the lien. 330 So. 2d

at 468. After remand, the defendant requested the trial court to permit it to add a

new defense, which was intermingled with the liability questions. Id. at 469.

However, the defendant had previously sought to amend the complaint to include

this defense, and the trial court denied that request—a ruling that the defendant

never challenged. While the decision in Airvac enunciated the law of the case

doctrine in concluding that on remand the defendant could not amend its complaint

to include the new defense, this Court later clarified that it decided Airvac on

principles of waiver. See Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107

(Fla. 2001) (recognizing the confusion that the Airvac holding caused). Because,

as we have recognized in Juliano, Airvac improperly conflated the doctrines of

waiver and law of the case, we now clarify that we recede from Airvac to the

extent that it relies on the law of the case doctrine.

      As to waiver, Airvac is distinguishable because waiver depends significantly

on the posture of the case. Unlike Airvac, where the new defense was commingled

with the issues of liability that were raised on appeal, the issue pertaining to

punitive damages in this case was completely wiped clean. In fact, it makes no

sense to apply the Airvac decision to this procedural scenario. The Engle trial

court denied class counsels’ motion to amend to include additional grounds for

punitive damages based on timeliness because the motion was filed after the jury


                                         - 20 -
found entitlement to punitive damages. However, the timeliness issue became

moot when this Court decertified the class and vacated all findings pertaining to

punitive damages.

      Principles from cases vacating a trial court proceeding and ordering a new

trial are analogous. As this Court held in Ed Ricke & Sons, Inc. v. Green, “[a]n

order directing a new trial has the effect of vacating the proceeding and leaving the

case as though no trial had been had.” 609 So. 2d 504, 507 (Fla. 1992) (quoting

Atl. Coastline R.R. v. Boone, 85 So. 2d 834, 839 (Fla. 1956)). Other district courts

have likewise permitted a party to bring new claims where the case is remanded for

a new trial. See Agate v. Clampitt, 80 So. 3d 450, 452 (Fla. 2d DCA 2012);

Hethcoat v. Chevron Oil Co., 383 So. 2d 931, 933 (Fla. 1st DCA 1980). The

principles of Ed Ricke—not Airvac—apply. We therefore reject this argument.

                 III. Statute of Limitations & Equitable Tolling

      We turn next to R.J. Reynolds’ argument that the statute of limitations and

principles of equitable tolling prohibit Soffer from seeking punitive damages under

the negligence or strict liability theories. We reject this argument because a claim

for punitive damages is not a separate, free-standing cause of action subject to a

separate statute of limitations, but is rather a remedy that can be sought based on

any properly pled cause of action.




                                        - 21 -
      In Soffer, the First District held that “principles of equitable tolling do not

revive claims for punitive damages that were not timely presented.” 106 So. 3d at

459. R.J. Reynolds argues that, if not for equitable tolling, Soffer’s complaint

would have been time-barred for over a decade, and equitable tolling does not

permit a plaintiff to raise a demand for punitive damages unless this relief was

previously pursued by the class.

      The flaw in this argument is that it merges the distinct concepts of the

timeliness of filing a complaint against a defendant based on an underlying course

of conduct that results in harm to an individual, with the later ability to amend a

pleading to add additional theories of recovery under the applicable rules of

procedure. The statute of limitations is a separate and distinct concept from the

ability of either party to amend their pleadings to add additional requests for relief.

Statutes of limitations pertain to the time in which a cause of action can be brought

against a defendant. As this Court has long recognized, the purpose of the statute

of limitations is to protect parties from “defending claims which, because of their

antiquity, would place the defendant at a grave disadvantage.” Major League

Baseball v. Morsani, 790 So. 2d 1071, 1075 (Fla. 2001) (quoting Nardone v.

Reynolds, 333 So. 2d 25, 36 (Fla. 1976)).

      In contrast, a claim for punitive damages is not subject to a separate statute

of limitations, but is actually dependent on the underlying cause of action. A claim


                                         - 22 -
for punitive damages focuses on ensuring the correct remedy for the underlying

violation—one that punishes the defendant and deters others from engaging in

similar conduct. As Judge Lewis of the First District aptly noted in his concurring-

in-part and dissenting-in-part opinion:

             Engle III does not impose a blanket requirement that Engle
      progeny plaintiffs must file identical claims to the original class.
      Rather, it suggests that in order to take advantage of the Phase I
      findings, progeny plaintiffs must file the same claims. Here, Mrs.
      Soffer was able to take advantage of the Phase I findings because she,
      in fact, filed the same claims as the original class (strict liability,
      negligence, fraud, and conspiracy to commit fraud). The only
      difference is the remedy. The fact that her remedy of punitive
      damages was more extensive than that sought by the Engle class is not
      necessarily fatal. First, a claim for punitive damages is “not a separate
      and distinct cause of action but is auxiliary to, and dependent upon,
      the existence of an underlying claim.” See Liggett Grp. Inc. v. Engle,
      853 So. 2d 434, 456 (Fla. 3d DCA 2003) (“Engle II”), quashed in part
      by Engle III, 945 So. 2d at 1254; see also Country Club of Miami
      Corp. v. McDaniel, 310 So. 2d 436, 437 (Fla. 3d DCA 1975).
      Second, her reliance on the Phase I findings was not relevant to her
      claim for punitive damages, which she had to independently prove.
      See, e.g., [R.J. Reynolds Tobacco Co. v. Brown, 70 So. 3d 707, 717-
      18 (Fla. 4th DCA 2011)] (clarifying that the plaintiff must prove legal
      causation and damages). Third, the supreme court retained most of
      the jury’s Phase I findings, except that it did not retain the finding on
      entitlement to punitive damages, which it found to be premature. See
      Engle III, 945 So. 2d at 1269.

Soffer, 106 So. 3d at 463 (Lewis, J., concurring in part and dissenting in part)

(emphasis added).

      In fact, although the Florida Rules of Civil Procedure govern most of the

principles regarding amendments to pleadings, the Legislature has separately



                                          - 23 -
addressed the right to recover punitive damages—not through the enactment of a

separate statute of limitation, but through a separate statutory scheme in section

768.72. Section 768.72(1), titled “Pleading in civil actions; claim for punitive

damages,” states in pertinent part:

      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. The rules of civil procedure shall be liberally
      construed so as to allow the claimant discovery of evidence which
      appears reasonably calculated to lead to admissible evidence on the
      issue of punitive damages. No discovery of financial worth shall
      proceed until after the pleading concerning punitive damages is
      permitted.
Section 768.72(1) reveals a clear legislative intent for defendants to be free from

claims for punitive damages until an evidentiary basis exists. Thus, it is crystal

clear that the Legislature intended for plaintiffs to conduct discovery prior to

seeking punitive damages, and to thereafter allow a claim for punitive damages as

provided by the Florida Rules of Civil Procedure.

      Florida Rule of Civil Procedure 1.190(f) allows a complaint to be amended

to add a claim for punitive damages only if there is a “reasonable showing, by

evidence in the record, or evidence to be proffered by the claimant, that provides a

reasonable basis for the recovery of such damages,” thereby mirroring the statutory

mandate. Further, rule 1.190(c) provides for relation back of amendments to



                                        - 24 -
pleadings if the amended claim arises out of the same “conduct, transaction or

occurrence” set forth in the original pleading.

      Thus, so long as the cause of action is timely filed, a claimant may conduct

discovery to determine whether sufficient evidence exists to seek punitive damages

and then request to amend the complaint at a later date. Because a claim for

punitive damages cannot be filed until after a cause of action is filed, and because

it must be based on an existing cause of action and is not a separate cause of

action, a claim for punitive damages is not subject to a separate statute of

limitations. Thus, we reject the assertion that the statute of limitations and

principles of equitable tolling prohibit a plaintiff from seeking punitive damages

when the underlying action was timely filed.

                   IV. Prejudice & Application of Law to This Case

      Having concluded that res judicata, waiver, or the relevant statute of

limitations do not prevent the plaintiff from seeking to amend the complaint to

include a demand for punitive damages, we examine how these principles apply to

this case and whether R.J. Reynolds would be prejudiced by allowing Soffer to

seek punitive damages for these additional counts. Here, Soffer did not delay in

bringing her cause of action. Consistent with this Court’s direction in Engle,

Soffer brought her own individual complaint, raising four causes of action that

were all approved in Engle. After conducting discovery, Soffer sought to amend


                                        - 25 -
her complaint, pursuant to section 768.72(1), to request punitive damages for those

timely raised causes of action. The only difference between the causes of action in

Engle and Soffer is that, in Soffer, a request for punitive damages was made for all

of the counts pled.

      The procedural posture in Soffer’s individual case was completely different

at the time that Soffer sought to amend her complaint to request punitive damages

than that in Engle. In Engle, class counsel sought to amend the complaint to

include a request for punitive damages on the non-intentional tort claims after the

jury already found liability on the causes of action. Here, however, Soffer sought

to amend her complaint to request punitive damages over a year prior to trial, and

the trial court granted leave. In fact, while R.J. Reynolds objected to the

amendment, R.J. Reynolds did not contend that Soffer was barred from requesting

punitive damages on the negligence and strict liability counts until the eve of trial.

      We reject R.J. Reynolds’ argument of prejudice for many reasons. First, in

the Engle case itself, entitlement to punitive damages was determined at the same

time that the liability was decided, and there is no indication that the jury verdict

on entitlement differentiated based on the underlying cause of action. As the

Second District stated:

      [W]e find no surprise or prejudice to the Tobacco Companies in
      allowing Engle progeny plaintiffs to seek punitive damages for
      negligence and strict liability claims. From the inception, it was no
      secret that the Engle class members were seeking punitive damages as

                                         - 26 -
      a remedy on all of their substantive claims. The Tobacco Companies
      had sufficient notice and ample time to prepare their defense to those
      remedies. In Engle, however, the trial court precluded the class from
      seeking punitive damages on the non-intentional tort claims merely
      through a procedural defect—timeliness. Unlike Engle, in this case
      there was no suggestion that Mr. Hallgren’s claim seeking punitive
      damages on all claims was untimely, nor any suggestion that the
      Tobacco Companies experienced any prejudice. Accordingly, the
      Tobacco Companies should not benefit from an unjustifiable
      expansion of the res judicata effect of Engle, which applies only to the
      substantive claims, to exclude a proper and timely pleaded remedy
      sought under those claims.

Hallgren, 124 So. 3d at 357-58.

      Like the plaintiff in Hallgren, when Soffer sought to amend her complaint to

seek punitive damages as to all counts pled, R.J. Reynolds did not assert either

surprise or prejudice. After its initial objection to punitive damages was

unsuccessful, R.J. Reynolds changed tactics and, after the trial was underway and

the parties were discussing the appropriate jury instructions, argued for the first

time that punitive damages for strict liability and negligence should not be

permitted based on the procedural posture of Engle. Once again, no assertion of

surprise or prejudice was made. Now, R.J. Reynolds asserts that it was surprised

and prejudiced when the trial court permitted the plaintiffs to amend the complaint

and allow punitive damages on all claims, instead of a portion of the claims.

However, R.J. Reynolds fails to show how the differentiation as to the underlying

legal theory would affect this.




                                        - 27 -
      The legal standard for establishing entitlement to punitive damages does not

vary depending on the underlying legal theory. The standard jury instructions on

punitive damages mirror the statutory directive as to proof of punitive damages as

set forth in section 768.72(2):

              (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.

Therefore, the defendant cannot be liable for punitive damages simply on the basis

of a jury finding that the defendant was strictly liable or negligent. Absent a

finding of intentional misconduct, the defendant can be liable for punitive damages

only if there is a finding by clear and convincing evidence of gross negligence—

the same standard that applies regardless of the underlying cause of action.

      Accordingly, there is no prejudice. Thus, the trial court did not err when

allowing Soffer to amend her complaint to add punitive damages for negligence

and strict liability but did err in disallowing the jury from considering punitive

damages on those counts.


                                        - 28 -
                               V. The Proper Remedy

      Finally, we address whether the proper remedy should be a new trial on all

issues or a new trial focused solely on punitive damages. Although there is no

claim of error in this case pertaining to the liability portion of the trial, where the

jury found liability based on negligence and strict liability, R.J. Reynolds insists

that a new trial is warranted because the respective determinations of liability and

punitive damages are necessarily intertwined.

      We disagree. In fact, in Engle, although we vacated the punitive damages

award, we upheld the compensatory damages awards as they pertained to class

representatives Mary Farnan and Angie Della Vecchia and did not require a new

trial on both compensatory and punitive damages. Engle, 945 So. 2d at 1255-56.

Consistent with decisions of other appellate courts, we conclude that where a trial

court errs in striking a plaintiff’s request for punitive damages before the jury

considered the issue, the proper remedy is to reverse and remand for a new trial

limited solely to the issue of punitive damages. See, e.g., Belle Glade Chevrolet-

Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So. 3d 991, 998 (Fla. 4th

DCA 2010) (holding that the trial court abused its discretion in instructing the jury

on punitive damages, reversing the punitive damages award, and remanding for a

new trial on punitive damages alone); Estate of Canavan v. Nat’l Healthcare Corp.,

889 So. 2d 825, 827 (Fla. 2d DCA 2004) (holding that the trial court erred in


                                          - 29 -
excluding certain evidence during the punitive damages portion of the trial and

remanding for a new trial on the amount of punitive damages only); Stephens v.

Rohde, 478 So. 2d 862, 863 (Fla. 1st DCA 1985) (rejecting explicitly the

defendant’s argument that if the punitive damages demand was reinstated, any new

trial should be on both compensatory damages and punitive damages because the

two are so intertwined as to require a new trial on both, and remanding for a new

trial limited to the issue of whether punitive damages should be imposed and, if so,

the amount thereof).

      Accordingly, because the trial court erred by preventing the jury from

considering Soffer’s request for punitive damages on all four counts, we remand

for a new trial limited to the issue of whether punitive damages should be imposed

for the negligence and strict liability claims and, if so, the amount thereof. We

emphasize that Soffer still must satisfy the statutory requirements to demonstrate

entitlement to punitive damages under these theories, including that the trier of fact

must find, based on clear and convincing evidence, that R.J. Reynolds was

“personally guilty of intentional misconduct or gross negligence.” § 768.72(2),

Fla. Stat. This requires a determination that R.J. Reynolds either (1) had actual

knowledge of the wrongfulness of the conduct and the high probability that injury

or damage to the decedent would result and, despite that knowledge, intentionally

pursued that course of conduct, resulting in injury or damage; or (2) engaged in


                                        - 30 -
conduct that 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. Id.

                                  CONCLUSION

      Writing for the Second District in Hallgren, Judge Sleet summarized the

conclusion we adopt today:

              Under these circumstances, [the plaintiff] should not be limited
      to the pretrial procedural order on the Engle class’s proposed
      amendment. Once the class’s punitive damage award was reversed,
      and each class member was required to seek punitive damages anew,
      progeny plaintiffs were free to assert any remedies available under the
      law. Tacking on the remedy of punitive damages to the negligence
      and strict liability claims does not materially alter the substantive
      claims, and it does not materially differ from the punitive damages
      sought by the Engle class on the intentional tort claims. Considered in
      light of the supreme court’s decision to allow Engle progeny plaintiffs
      to “initiate individual damages actions,” one simply cannot infer that
      the supreme court intended to place a limitation upon progeny
      plaintiffs’ ability to pursue punitive damages as a remedy. The Engle
      Phase I findings simply closed the door on any new or additional
      substantive claims and permitted each plaintiff to independently prove
      his or her respective damages, including punitive damages, at separate
      trials.

Hallgren, 124 So. 3d at 358.

      For the reasons explained in this opinion, we answer the certified question in

the affirmative, quash the First District’s decision in Soffer, and approve the




                                        - 31 -
Second District’s opinion in Hallgren as to the issue of punitive damages.6 Based

on our reasoning here, we further disapprove the Third District’s decision in

Williams, 39 Fla. L. Weekly at D1863, and the Fourth District’s resolution of the

punitive damages issue in Ciccone, 123 So. 3d at 616-17 (Fla. 4th DCA 2013),

      We remand this case to the First District for further proceedings consistent

with this opinion.

      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.
CANADY, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

      First District - Case No. 1D11-3724

      (Alachua County)




       6. The Second District’s decision in Hallgren also addresses whether the
claims were barred by the statute of repose, an issue that we recently addressed in
Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 689 (Fla. 2015), and Philip
Morris USA, Inc. v. Russo, 175 So. 3d 681, 685 (Fla. 2015). In Hess, this Court
held that while the critical date of the statute of repose relating to conspiracy
claims should be the date of the last act done in furtherance of the conspiracy,
evidence of reliance need not be established within the fraud statute of repose
period. 175 So. 3d at 698-99.


                                       - 32 -
John Stewart Mills and Courtney Rebecca Brewer of The Mills Firm, P.A.,
Tallahassee, Florida; Rodney Warren Smith, Mark Alexander Avera, and Dawn
Marie Vallejos-Nichols of Avera & Smith, LLP, Gainesville, Florida; and James
William Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A.,
Tallahassee, Florida,

      for Petitioner

Gregory George Katsas of Jones Day, Washington, District of Columbia; Robert
Bruce Parrish and Charles M. Trippe, Jr. of Moseley, Prichard, Parrish, Knight &
Jones, Jacksonville, Florida,

      for Respondent




                                      - 33 -
