Full Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2024-2555 LT Case No. 2020-CA-005431 _____________________________ JEFFREY GRESHAM and EMARI YOUNG, as Co-Personal Representatives of the Estate of Devaughn Jarvis Gresham; JAMES KRAJEWSKI and SARAH MCKIBBEN, as Co-Personal Representatives of the Estate of Hannah Whitney Krajewski; and JAMES KRAJEWSKI, Individually, Appellants, v. FEC HIGHWAY SERVICES, LLC; LEONID MIKHAILOVICH VOYEVODSKIY; and JESSICA MERCER, Appellees. _____________________________ Nonfinal appeal from the Circuit Court for Duval County. Waddell A. Wallace, III, Judge. Curry G. Pajcic, Meredith A. Ross, Benjamin E. Richard, and Elizabeth T. Cardenas, of Pajcic & Pajcic, P.A., Jacksonville, for Appellants. Paul U. Chistolini and Amy Wells Brennan, of Chistolini Law, Tampa; and William G.K. Smoak, Sharon C. Britton, and Chance C. Arias, of Alvarez, Thompson & Smoak, P.A., Tampa, for Appellee Leonid Mikhailovich Voyevodskiy. Hinda Klein, of Conroy Simberg, Hollywood, for Appellee FEC Highway Services, LLC. No Appearance for Remaining Appellee. September 25, 2026 PER CURIAM. At issue in this appeal is the nonfinal order of the trial court, which denied the appellants’ motion for leave to pursue a claim for punitive damages against appellee, Leonid Voyevodskiy, who lost control of a semi-truck he was driving on Interstate 95, resulting in a fatal accident. Applying the appellate standard of review to the record evidence construed in appellants’ favor, we conclude that no error has been demonstrated. See Lord v. FedNat Ins. Co., 363 So. 3d 1160, 1162 (Fla. 5th DCA 2023) (“A trial court’s decision on a motion for leave to amend a complaint to add a punitive damage claim is reviewed de novo.”). The trial court’s order, which is thorough and applied the correct legal approach, is thereby affirmed. See generally Perlmutter v. Fed. Ins. Co., 434 So. 3d 681 (Fla. 2026) (addressing the legal standard a trial court must undertake “for evaluating the evidentiary showing that a claimant must make before being allowed to plead” for a claim of punitive damages); Cook v. Fla. Peninsula Ins. Co., 371 So. 3d 958, 961 (Fla. 5th DCA 2023) (describing the “more rigorous standard” that “is applied to a motion for leave to amend a complaint to assert a punitive damages claim”). AFFIRMED. MAKAR and HARRIS, JJ., concur. JAY, C.J., dissents with opinion. 2 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 3 Case No. 5D2024-2555 LT Case No. 2020-CA-005431 JAY, C.J., dissenting. In “conducting its review, the trial court [was required to] ‘consider the record evidence and the proffered evidence in the light most favorable to the plaintiff.’” Perlmutter, 434 So. 3d at 689 (quoting Hosp. Specialists, P.A. v. Deen, 373 So. 3d 1283, 1287 (Fla. 5th DCA 2023)). Using that standard, it’s my belief that “a reasonable person could conclude . . . that [Voyevodskiy] committed . . . ‘gross negligence,’ as defined in section 768.72(2).” Id. at 688. Which means that the claimants provided “reasonable evidentiary support” for their allegations of punitive behavior. Id. at 689. Or more precisely, they established “a reasonable evidentiary basis underlying the ultimate facts” that they pleaded. Id. at 691. Thus, I respectfully dissent. I Voyevodskiy was driving a semi-truck southbound on Interstate I-95 as he approached Jacksonville. Several hundred feet in front of his truck, a Kia Optima was traveling southbound in the center lane with two occupants, driver Hannah Krajewski, 21, and passenger DeVaughn Gresham, 23. “In the minutes leading up to the crash, it was raining, the roads were wet, and Mr. Voyevodskiy . . . passed multiple signs warning of an upcoming lane closure, road work, construction zone, and uneven lanes, as well as construction barrels and other vehicles.” Traffic signage visible from his cab warned drivers to slow down as they approached the upcoming construction, road work, and closure of the right lane. Florida Highway Patrol Corporal Timothy Scott testified that Voyevodskiy’s dash cam showed traffic backing up to a complete stop and the Kia’s brake lights illuminating as the Kia safely slowed. As Voyevodskiy continued toward the Kia, he veered sharply left, slamming into the concrete median wall. His truck ricocheted off the wall, the impact forcing him back across the right two lanes crushing the Kia and its occupants. The semi-truck came to a 4 complete stop after dragging the Kia approximately 160 feet. The damage to the Kia was catastrophic. Among other evidence, claimants proffered testimony from a trucking safety expert, David Dorrity. Dorrity opined that “Mr. Voyevodskiy was driving . . . 20 miles per hour too fast for the conditions.” Dorrity based this opinion on the Code of Federal Regulations and the Florida Commercial Driver’s License manual “which require a driver of a commercial motor vehicle to exercise extreme caution and reduce [his] speed by [a third] . . . when driving on a wet road.” Dorrity’s speed opinions were also based on the presence of multiple construction messages and signs, opining that Voyevodskiy “should have been driving more cautiously and slower than usual—ready to react to hazards.” Claimants synopsized this evidence by asserting that “Voyevodskiy was driving his semi-truck at an excessive speed for the circumstances and disregarded a multitude of warnings— including three message boards warning of construction and right lane blockage, five orange construction signs warning of upcoming road work, two orange construction signs warning of uneven lanes, two orange construction signs warning of a closed shoulder . . . and dozens of orange construction barrels.” They also pointed out that Voyevodskiy was driving on a wet highway “on cruise control in the fast lane . . . before losing control of his semi-truck and causing the fatal wreck.” And there was more. At the time of the collision, Voyevodskiy was unable to read and understand English. He testified that Russian was the only language he understood when reading it. And at his deposition, he exclusively used a Russian interpreter. Through that interpreter, he testified to the following. Voyevodskiy was a native Russian who was raised in Kazakhstan. He only spoke Russian for the first forty-two years of his life. During that time, he had no knowledge of English letters or the English alphabet. After moving to the United States, he became an American citizen at the age of fifty-one. He admitted that he never had any “American education,” and conceded that he had tried to take English but simply “couldn’t do it.” 5 In obtaining his Commercial Driver’s License (“CDL”) from the state of North Carolina, he communicated with the Department of Motor Vehicles “[w]ith the help of [an] interpreter,” which was possible because North Carolina didn’t require a written test. Meaning, Voyevodskiy received a North Carolina CDL without having to read English. As to his Florida CDL, because of the state-to-state reciprocity, Voyevodskiy didn’t have to take a sign test, a rules test, or a driving test. While he apparently took and passed a Florida HazMat test, passing that test took him six tries. And Voyevodskiy “refused to answer hundreds of questions pertinent to the crash.” As to his ability to read and understand English signage, Voyevodskiy pleaded his Fifth Amendment privilege numerous times.  Among many others, he refused to answer the following questions, which were translated into Russian, answered in Russian, and translated back to English. Q: On September 8, 2020, did you understand the highway traffic signs and signals that were in the English language? A: Respectfully, I’m going to decline to answer your question based on [the] recommendation of my lawyer, and I plead the Fifth Amendment of the Constitution. .... Q: I’m going to pass you what we’ll mark as Exhibit 42 to our deposition. And this is a screenshot taken from your dash cam at approximately 5:44 p.m. And this is a sign that you passed as you were entering Jacksonville. Can you read the sign? A: On advice of my lawyer, I respectfully decline to answer your question and assert my Fifth Amendment privilege. 6 II In evaluating a claimants’ proffer, “the test for . . . evidentiary sufficiency . . . is whether a reasonable person could conclude, based on the claimant’s evidence, that the defendant committed ‘intentional misconduct’ or ‘gross negligence,’ as defined in section 768.72(2).” Id. at 688. But “[t]he trial court does not act as a fact- finder.” Id. at 689. “It must not weigh the claimant’s evidence, meaning that its role is not to decide the truth of the matter.” Id. Instead, “the trial court must ‘consider the record evidence and the proffered evidence in the light most favorable to the plaintiff.’” Id. (emphasis added) (citation omitted). “After all, the pleading stage—even under the unique procedure mandated by section 768.72(1)—is not the time for the claimant to prove its case.” Id. at 690. “Pleading is remote from the ‘trier of fact’ and the factual ‘find[ings]’ mentioned in section 768.72(2).” Id. (alteration in original). Here, “Plaintiffs’ punitive-damages proffer . . . included [Voyevodskiy’s] disregard of multiple traffic signs and construction warnings in the minutes leading up to the crash [and Voyevodskiy’s] driving [of] his semi-truck 20 miles per hour too fast for the conditions on cruise control in the rain, while [he] approach[ed] a construction zone, slowed and stopped traffic, a curve, and a bridge.” It also included his failure to heed “three message boards warning of construction and right lane blockage, five orange construction signs warning of upcoming road work, two orange construction signs warning of uneven lanes, two orange construction signs warning of a closed shoulder . . . and dozens of orange construction barrels.” There was compelling evidence that these systemic “failures” were explained by the fact that “Russian was the only language he could understand when reading it.” That is, he couldn’t understand written English. And because he knew he had these deficiencies, a reasonable person could conclude that Voyevodskiy’s conduct “was so reckless” that “it constituted a conscious disregard” of the lives of the victims he exposed to his behavior. See § 768.72(2)(b), Fla. Stat.; see also Hardiman v. Stevens, No. 09-cv-2110, 2011 WL 1480401, at *4 (M.D. Fla. Apr. 19, 2011) (“A reasonable juror could find that driving at 50 miles per hour on wet roads while approaching stopped traffic and striking a school bus with such force as to separate such school bus 7 from its axle amounts to gross negligence because the conduct was so ‘reckless or wanting in care that it constituted a consc[ious] disregard or indifference to the life, safety, or rights’ of others. Florida Statute § 768.72(2)(b).”). For all these reasons, it’s clear to me that the trial court should have granted claimants’ motion to pursue a claim for punitive damages. Thus, I respectfully dissent. 8