Jennifer L. Aybar recently received a decision from the 4th DCA to reverse and remand an order granting leave to amend to allege punitive damages against our insured. At the trial level, plaintiffs alleged that our insured was reading a text message while driving when his vehicle collided with the plaintiffs' golf cart. According to plaintiffs, reading a text message in violation of section 316.305, Florida Statutes, along with the circumstances surrounding the accident (heavy pedestrian traffic) warranted punitive damages.

However, the evidentiary proffer plaintiffs provided showed that the insured testified that he heard his phone chime and glanced down, noticing that he received a text message from his wife. He did not actually testify that he read the text message he received.

Noting this distinction, the appellate agreed with Ms. Aybar's position that mere use of a cell phone, without more is not "outrageous and reprehensible enough to merit punishment." Indeed, for phone use while driving to constitute outrageous and reprehensible conduct sufficient to plead punitive damages, there must be some “additional act” “suggesting that the cell phone usage was reckless.” The Court went as far as to say that our insured’s actions in glancing down at his phone in reaction to his phone chiming “might be arguably negligent” and certainly do not “rise to the level of gross negligence or intentional misconduct needed to assert a claim for punitive damages.” Because there was no evidence that our Insured actually read the text message he received, the Court did not address the issue of whether reading a text message would constitute the necessary “additional act” that may rise to the level of gross negligence or intentional misconduct.

About Jennifer L. Aybar

Jennifer Aybar is a senior associate attorney with the firm’s Appellate Practice Division, working remotely from Orlando, Florida.  Ms. Aybar joined the firm with an array of experience.  Immediately prior to joining Boyd & Jenerette, she served as Senior Trial Counsel for a personal injury firm for four years.  Prior to that, she served as a felony prosecutor in Brevard County, Florida, and as a staff attorney in the Ninth Judicial Circuit Court as well as at both the trial and appellate levels in Maryland.  Not only does Ms. Aybar have extensive trial experience, but she also has experience behind the scenes, working alongside judges at the trial and appellate levels.  Ms. Aybar’s experience is vast and affords her a unique perspective when analyzing legal issues.

In her free time, Ms. Aybar competes in the National Physique Committee (NPC) and enjoys training hard for competitions.  She also enjoys Latin ballroom dance, horror movies, reading, and spending time with her friends and family.

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