NAPLETON’S NORTH PALM AUTO PARK, INC., Appellant, v. ABIGAIL AGOSTO, Appellee.
No. 4D22-2507
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
[June 21, 2023]
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
Background
Agosto and Employee were both employed by the Dealership. Employee maintains that, on the day of the alleged 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
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
Agosto argued that punitive damages could be imposed on the Dealership pursuant to
(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.
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
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
[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 D647a (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.
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
Conclusion
The three managers upon whom Agosto relied in the proffer were not “managing agents” of the Dealership as required by
Reversed.
KLINGENSMITH, C.J., and CONNER, J., concur.
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Not final until disposition of timely filed motion for rehearing.