Key Points

  • On remand from the Florida Supreme Court's 2026 decision in Perlmutter v. Federal Insurance Co., the Fourth District reversed orders allowing the Perlmutters to seek punitive damages from William Douberley and Federal Insurance Co., and affirmed without discussion the order allowing punitive damages against Harold Peerenboom.
  • The court held that a motion to amend under section 768.72 requires both sufficient pleading allegations and a matching evidentiary proffer, and that the Perlmutters' counterclaim lumped all defendants together as 'Conspirators' without alleging Douberley's specific intentional misconduct.
  • Intentional misconduct under section 768.72(2)(a) requires specific intent and actual knowledge, so a 'should have known' showing does not qualify, and one defendant's intentional misconduct cannot establish another defendant's direct liability for punitive damages.
  • The panel held that the 'managing agent' requirement applies to all three subsections of section 768.72(3), and found that the proffer did not show Douberley or claims adjuster Tracy Murphy was a managing agent of Federal or Chubb.
  • The court declined to consider new arguments first raised in supplemental briefing after remand, including a gross negligence theory, and declined to consider trial court events after the notice of appeal.

A Florida appeals court on Oct. 7 blocked Isaac and Laura Perlmutter from seeking punitive damages from Federal Insurance Co. and its employee William Douberley over an alleged scheme to secretly collect and test the couple's DNA. The court let the couple's punitive damages demand against Harold Peerenboom stand.

The Fourth District Court of Appeal ruled on remand from the Florida Supreme Court, which had quashed the court's 2023 decision reversing all three trial court orders. Judge Conner wrote for the court. Judges Levine and Klingensmith joined the opinion.

The decision reverses orders by Palm Beach County Circuit Judge G. Joseph Curley that had allowed the Perlmutters to add punitive damages to their counterclaims against Douberley and Federal. The panel also held that an employer can be punished for an employee's intentional misconduct only if a "managing agent," a person with top decision-making authority in the company, knew of and condoned, ratified or took part in the conduct.

The Perlmutters' proposed counterclaim alleged that Peerenboom, Douberley, Federal and Speckin Forensics conspired to collect, test and manipulate DNA results to falsely tie the couple to hate mail sent to Peerenboom. According to the counterclaim, the group acted to intimidate and retaliate against the Perlmutters and to hurt Isaac Perlmutter's financial connections with Disney.

Chubb Insurance Company of Canada, a separate corporate division of Federal, adjusted an insurance claim against Peerenboom in a suit the court calls the Kay-Dee litigation. Douberley, a Federal employee, handled Peerenboom's legal defense in that suit, and the Perlmutters were deposed there.

Florida's punitive damages statute, section 768.72, bars a punitive damages claim until the claimant makes "a reasonable showing by evidence in the record or proffered by the claimant" that would support recovery. In its 2026 decision, the Supreme Court clarified that trial judges screening such a request should consider only the claimant's evidence, should not weigh it, and should not apply the higher clear-and-convincing standard used at trial.

The panel held that the proposed pleading must allege the misconduct and the evidence must back up those allegations. Reaffirming its 2023 opinion, the court wrote that "[i]f the evidentiary showing does not match the amended complaint's allegations, the trial court should not permit the punitive damages claim."

The Perlmutters' pleading failed that test as to Douberley, Judge Conner wrote. The counterclaim used the label "Conspirators" for all the counterclaim defendants, "lumping them together and failing to differentiate which defendants engaged in the alleged wrongful conduct." According to the opinion, the counterclaim also failed to allege that Douberley acted for personal profit or with malicious motive.

The Perlmutters' evidence also fell short. Intentional misconduct under the statute requires "specific intent, not general intent, to knowingly engage in wrongful conduct," the panel wrote. The evidence on the conversion count did not show that Douberley knew he was violating section 760.40, Florida Statutes, or DNA information rights. A showing that Douberley "should have known" of the violation "does not qualify in the context of intentional misconduct," the court held.

The panel also found merit in Douberley's argument that the case was the first known to the litigants to permit a party to seek damages for "the alleged conversion of contact DNA taken from abandoned objects touched by claimants."

On the abuse-of-process count, the court held that even if collecting DNA was an ulterior motive for the depositions, the subpoenas served their legitimate purpose. The court wrote that "the process was properly used for the intended purpose for which it was created—to subpoena witnesses to offer relevant testimony." The civil conspiracy count fell with the two underlying counts.

The Perlmutters had told the court they sought to hold Federal vicariously liable, meaning liable for its employees' conduct, based on the acts of Douberley and Tracy Murphy, a Chubb claims adjuster. The reversal as to Douberley defeated the claim based on his conduct. The panel added that the Perlmutters' evidence did not show that Douberley or Murphy was a managing agent of Federal or Chubb.

The Perlmutters had argued that the statute does not require a managing agent's involvement. The panel disagreed and held that the requirement "applies to all three subsections of section 768.72(3)." The court cited case law describing a managing agent as "more than just a manager or a mid-level employee."

The panel also rejected the Perlmutters' effort to attribute Peerenboom's alleged conduct to the other defendants. The court found that the couple's evidence relied on "highly selective and parsed snippets from record documents" to connect Federal to the alleged scheme. Judge Conner wrote that "one defendant's intentional misconduct cannot establish another's direct liability for punitive damages to another defendant."

As an additional ground, the court held that the evidence did not show Douberley or Federal "actually intended to improperly harm the Perlmutters, as opposed to pursuing them for alleged defamation of Peerenboom (and possible postal-law violations)."

The panel rejected the Perlmutters' fallback argument that the orders could be upheld on a theory of gross negligence, which the statute defines as conduct so reckless that it shows conscious disregard for others' rights. The proposed counterclaim alleged only intentional misconduct, the court held. In a footnote, the panel said it would "decline to consider new arguments first raised in supplemental briefing" by either side after the remand.

Federal had waived any challenge to the counterclaim's allegations by offering only conclusory statements on the point, the court held, so the panel reversed as to Federal on the evidence alone.

Lawyers for Federal included Joseph H. Lang, Jr. of Carlton Fields, P.A. The Perlmutters were represented by Jesse Panuccio of Boies Schiller Flexner LLP. Peerenboom was represented by Wicker Smith O'Hara McCoy & Ford, P.A., and Douberley by Jones Foster P.A.

The court affirmed in part, reversed in part and remanded the consolidated appeals to the Palm Beach County circuit court. The opinion is not final until the court disposes of any timely motion for rehearing.